SC: Legalising gay sex will empower LGBTQ

We do not decide constitutional issues by conducting a referendum. We follow the concept of constitutional morality and not majority morality. — SC, refusing a referendum on Section 377

Social stigma and discrimination attached to the LGBTQ community would go if criminality of consensual gay sex among two consenting adults is done away with, the Supreme Court said on Thursday even as it promised to scrutinise the legal validity of Section 377 of the IPC in all its aspects.

The apex court also rejected a demand for a referendum over the constitutional validity of Section 377, saying “we do not decide constitutional issues by conducting a referendum”.

Thursday was the third day of hearing on a batch of petitions seeking the striking down of the 158year- old colonial law on the ground of discrimination.

Chief Justice Dipak Misra, who is heading the five- judge Constitution Bench, said, “The LGBTQ community feels the stigma because of the criminality attached to gay sex and, once it is removed, homosexuals can get together without any prohibition. The stigma is so because they are treated differently. Once decriminalisation is there they will feel empowered.”

The CJI said even psychiatrists have established that a different orientation is not a mental illness.

The bench, which also comprised Justices R. F. Nariman, A. M. Khanwilkar, D. Y. Chandrachud and Indu Malhotra, said, “We will try to see whether Section 377 of the IPC can stand the test of fundamental rights enshrined under Articles 14 ( right to equality), 19 ( freedom of speech and association) and 21 ( right to life and liberty)