The Supreme Court on Thursday said that it would uphold "constitutional morality" and not the "majoritarian morality" while deciding on the constitutional validity of Section 377 of the Indian Penal Code which, in effect, criminalizes homosexuality.
However, the Supreme Court reversed the High Court order in December 2013 and said that those indulging in gay sex will be prosecuted and sentenced under Section 377.
The lawyer, however, urged the court to confine itself to the question of sexual rights in the cases relating to decriminalization of Section 377, and not to touch issues like gay marriage, adoption and ancillary civil rights of the lesbian, gay, bisexual and transgender (LGBT) community.
On Wednesday, the Centre had left the matter to the "wisdom" of the court, fearful of taking any stand since backing gay rights would annoy its traditional support base while backing the ban could alienate the young.
As Mehta told the court that hearing was limited to the challenge to the Section 377 that criminalises the consensual sex between two consenting adults and the issue of formation of association by invoking Article 19 (1)(c) could not be raked up, an unimpressed Justice Nariman told him that he could respond to the arguments in the course of his submissions.
"The position of the government was something else at that time".
The Supreme Court is hearing a batch of petitions challenging Section 377 while also reviewing its earlier verdict banning the IPC section. Because of criminality attached to same-sex relationships, it had various other ramifications, she said. As the advocates representing the petitioners argued in court today, Section 377 makes it all the more hard for them.
Gay sex was criminalised during the British colonial era
The affidavit clarified that if this Court is pleased to decide to examine any other question other than the constitutional validity of Section 377, or to construe any other right in favour of or in respect of LGBT, the Union of India would like to file its detailed affidavit in reply.
Still, being gay is largely seen as shameful in most of the country, and many homosexuals remain closeted.
Justice Chandrachud also observed that "We do not want a situation where two homosexuals enjoying a walk on the Marine Drive (in Mumbai) should be disturbed by the police and charged under section 377". Further, the community members rarely receive adequate health care in the country. Identifying this, Justice Indu Malhotra remarked that, "This community feels inhibited to go for medical aid due to prejudices against them". "Because of family pressures and societal pressures, they are forced to marry the opposite sex and it leads to bi-sexuality and other mental trauma".
She added that many animals, apart from humans, engaged in homosexual acts.
"It (Act) also recognises the fact that such persons can not be discriminated against on the ground of sexual orientation", the bench said.
Senior advocate C.U. Singh, appearing for certain LGBT clients, said that since the 2017 act recognises differences in sexual orientation, other laws can not discriminate between them.
Placing the ball in the Parliament's court, the Supreme Court then said that it is for the lawmakers to consider "the desirability and propriety of deleting Section 377 from the statute book or amend it".
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