The top court has taken a compassionate view of the plight of India’s gay community, which has suffered deep stigma on account of an archaic law.
New Delhi: The Supreme Court Constitution bench hearing pleas seeking to decriminalise homosexuality has so far struck a compassionate note on the issue, giving hope that the draconian Section 377 may finally be on its way out.
The observations over three days of hearings range from the recognition of the consequences of stigma for mental health, and the basic right of a gay couple to live freely.
Chief Justice of India Dipak Misra also sent out a very strong message when he noted that the majority’s opinion could not be the yardstick to decide constitutional matters.
Here are some of the observations made by the five-judge bench since Tuesday:
CJI Dipak Kumar Misra
“We don’t decide Constitutional issues by referendum.”
“There is stigma because there is criminality attached to it. If Section 377 is removed, self-restraint won’t be there anymore. They (LGBTQ) themselves feel discriminated because they are treated differently. The feel stigma because of criminality attached with it.”
“A consensual relationship cannot materialise without the exercise of free choice”
“A declaration (that) this relationship is constitutional will remove the ‘ancillary disqualification’ for people joining services, contesting elections. It will no longer be seen as moral turpitude.”
Justice Indu Malhotra
“Over the years, we have created an environment in the Indian society that has led to deep-rooted discrimination against people of same sex involved in a consensual relationship and this has impacted their mental health also.”
“Homosexuals face a lot of pressure from parents and society; so they are forced to lead a heterosexual life and… turn bisexuals, which, in turn, has huge social ramifications.”
“Homosexuality is not an aberration, but a variation; homosexual behaviour can be found in animals too.”
Justice A.M. Khanwilkar
(Referring to the Centre’s decision to not challenge the petitions) “This isn’t a U-turn. There have been subsequent developments such as the (August 2017) privacy judgment issued by a nine-judge bench.”
Justice D.Y. Chandrachud
“The Centre had not challenged the Delhi high court judgment (striking down Section 377). We have created a societal environment that creates a discrimination of these individuals. If (Section) 377 goes, let’s hope such societal stigmas change.”
“A law criminalising such a relationship is an example of social disdain.”
“We don’t want a situation where two homosexuals enjoying a walk on Marine Drive should be disturbed by police and charged under (Section) 377 IPC.”
“We are not here to talk about some kinky notions of sex… We are here to discuss the nature of a particular relationship between adults and bringing it under Article 21.”
“In Hadiya judgment, we recognised the right to choose a partner to come under Article 21 (right to life). So a ‘partner’ can also be a same sex partner.”
“Courts might not have the same deference for pre-constitutional laws that they have for post-constitutional laws, due to absence of parliamentary will.”
Justice Rohinton Nariman
“You should focus on two points: Whether the order of nature is a relative concept and whether this itself is the order of nature.”