Supreme Court: Once Criminality of Section 377 Goes, Stigma Against LGBTQ Will Also End


While hearing a clutch of petitions on the constitutional validity of Section 377, the Supreme court observed that there is a deep-rooted trauma involved in the society, which forces the LGBT (lesbian, gay, bisexual, and transgender) community to be in fear. It is because of the family and societal pressures that members of the LGBT community are forced to marry the opposite sex which leads to bi-sexuality and mental trauma.

A five-judge constitution bench said that an environment has been created in the Indian society over the years that has led to deep-rooted discrimination against the community. The bench, headed by Chief Justice Dipak Misra and comprising of Justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra. The bench added that that the LGBT community feels inhibited to go for medical aid due to prejudices involved against them.

Justice Indu Malhotra said in court, “It is not human beings alone who indulge in homosexual acts, many animals also show homosexual behaviour; It is not an aberration but a variation.” The Centre had said that it will leave it to the wisdom of the court to decide on the constitutional validity of Section 377 on the issue of criminalizing unnatural intercourse between two consenting adults. 

The SC said that the right to sexual orientation is not a fundamental right but the right to choose a sexual partner is a fundamental right. The Centre said that it has no objection with the court dealing with the validity of this penal provision.

Section 377 refers to ‘unnatural offences’ and says whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to pay a fine. 

In its judgement the court said, Sexual orientation, is an “essential component of identity” and the rights of lesbian, gay, bisexual and transgender population are “real rights founded on sound constitutional doctrine”. The Supreme court had in 2013 restored sexual relationship between persons of the same sex as a criminal offence by setting aside the 2009 Delhi High Court judgement that had held as unconstitutional section 377 of the IPC, which makes such actions between two consenting adults of same sex as a penal offence.