Discrimination against gays will go if criminality of section 377 is removed: SC

The Supreme Court today said the social stigma and discrimination attached to the LGBTQ community would go if criminality of consensual gay sex is done away with, even as it maintained that it would scrutinise the legal validity of section 377 of the IPC in all its aspects.

A five-judge bench headed by Chief Justice Dipak Misra, hearing a clutch of petitions challenging the constitutional validity of the 158-year-old penal law, also rejected a proposal of lawyers, seeking retention of section 377, that public opinion should be elicited on the matter, saying it did not want a referendum but would go by constitutional morality.

The bench took note of the vehement opposition of these lawyers and their allegation that the Centre had taken a "U-turn" in the case.

It then asked lawyer Maneka Guruswamy, appearing for a petitioner, whether there was any law, rule, regulation, bye-law or guideline which barred or restrained homosexuals from availing any right which are available to others.

She said though there was no such law, but there was discrimination. She also referred to the Domestic Violence Act which protects married women only.

The court said the LGBTQ community faced the stigma because of the criminality attached to consensual same-sex relationship. "Once the criminality (under section 377) goes, then everything will go (social stigma, discrimination etc)," it said.

The bench, which also comprised Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, said "we will not say that the section is ultra-vires. We will have to analyse every aspect. We will do a detailed analysis of Section 377 and its constitutional validity."