Stating that homosexuality is a “variation, not an aberration”, the Supreme Court Thursday said members of the LGBTQ (lesbian, gay, bisexual, transgender and queer) community do not get proper medical care because of the “prejudices” against them.
Hearing a clutch of petitions to strike down Indian Penal Code Section 377 which criminalises same-sex relations between two consenting adults in private, Justice Indu Malhotra, one of the five judges on the Constitution Bench led by Chief Justice of India Dipak Misra, said: “They (LGBTQ) don’t get proper medical aid because of these prejudices and inhibitions.”
Additional Solicitor General Tushar Mehta said there is a separate wing in the Health Ministry to deal with the concerns of these sections, and they are encouraged to come forward with their problems.
Justice Malhotra, however, said many were unwilling to approach doctors for fear of disclosing their sexual orientation.
“That also is one reason for bisexuality. Homosexuals don’t disclose their sexuality, and due to family and societal pressure get into marriages with the other sex. Then frustration develops and leads to bisexuality. And what about the trauma of offspring who come to know one parent is homosexual,” she said.
“By treating it as illegal, there are several ramifications for society,” Justice Malhotra said. Stating that “it’s a variation, not an aberration”, she repeated what she had said on the first day of hearing — that “it’s not only humans but hundreds of animals which indulge in same-sex relations”. She also said ancient texts say “prakriti and vikriti go together”.
At this, ASG Mehta said the statement that “prakriti and vikriti go together” was in a philosophical and spiritual sense and not in the context of sexuality. “I respectfully disagree,” he said.
Appearing for a petitioner, senior advocate C U Singh referred to Section 21A of the Mental Healthcare Act, 2017 which states that “there shall be no discrimination on any basis including gender, sex, sexual orientation, religion, culture, caste, social or political beliefs, class or disability”.
Justice D Y Chandrachud said this showed that Parliament itself recognises that there should not be any discrimination on the basis of sexual orientation.
Singh credited the government with taking the Mental Healthcare Act to Rajya Sabha and wondered how sexual orientation can be ground for discrimination when Parliament has recognised that it can’t be ground for discrimination for mental health treatment. Besides reading down Section 377, the court, he said, should also issue a declaration prohibiting all sorts of discrimination on the basis of gender or sexual orientation.
CJI Misra asked if there is any provision in any statute where sexual orientation has been considered not normal or a mental disorder.
Advocate Menaka Guruswamy said that while the Supreme Court recognised live-in relationships, there is discrimination (against homosexual persons) in the application of some laws like those related to domestic violence.
When advocate Manoj George, appearing for two Christian organisations opposing petitions challenging Section 377, said the Centre had taken a U-turn on the issue, Justice A M Khanwilkar said: “Why do you say it’s a U-turn? Why can’t you see it as development of the law… It’s not a U-turn.”
The Centre, in its affidavit, has left the decision on the petitions against Section 377 to the “wisdom” of the Supreme Court.
“Just because the Centre had made a concession, it doesn’t mean we will declare it ultra vires. We will examine,” the CJI said.
Senior advocate Ashok Desai, appearing for a petitioner, traced the history of homosexuality, and said it was prevalent in ancient Greece and accepted in ancient India. The situation, he said, changed after the rise of Abrahamic faiths.
“Our forefathers noted what was happening,” Desai said, adding that during the days of the East India Company, there were many Englishmen who would say let’s go to India as it has a free society. This continued until Christianity took the view that it is sinful, he said.
Senior advocate Krishnan Venugopal contended that Section 377 violates the freedom of speech and expression and freedom of conscience. “Under the garb of regulating conduct, Section 377 actually targets the identity of the LGBT community… The fear of stigma, harassment etc stops them from approaching police when they are harassed or tortured. Thus, the freedom of expressing one’s identity is prevented… When I am unable to express my own identity, it also prevents my freedom of conscience,” he said.
Another lawyer, opposing the scrapping of Section 377, said the Centre should have elicited views of medical experts and the public.
CJI Misra said: “We don’t decide Constitutional issues by referendum… We will follow Constitutional morality.”