Once criminality of Section 377 goes, so will stigma against LGBTQ

A protest against Section 377 of Indian Penal Code

"The members of the community feel inhibited to go for medical aid due to prejudices against them".

One of the observations made by the top court said, "Section 377 is the infrastructure for denying rights".

Observing that an environment has been created in the Indian society over the years that has led to deep-rooted discrimination against the community, a five-judge constitution bench, hearing petitions seeking decriminalisation of 158-year-old colonial law under Section 377 of the IPC, said discrimination against such people has also adversely impacted their mental health.

A government lawyer said that it would leave it to "the wisdom" of the court to decide the constitutional validity of Section 377.

"We are not considering all these issues".

The Supreme Court on Thursday observed that homosexuality was not an aberration but a variation and that once Section 377 is decriminalised, the stigma attached to the community will also go.

Justice Indu Malhotra observed that members of the LGBTQ community are discriminated against and, therefore, neither do they seek healthcare nor do they get proper access to it.

"There are no such provisions", she said.

Globally 72 countries criminalise same-sex relationships, according to a 2017 report by the International Lesbian, Gay, Bisexual, Trans and Intersex Association.

"A declaration that this relationship is constitutional will remove the "ancillary disqualification" for people joining services and contesting elections". "It has a chilling effect on freedom of expression", he argued.

Section 377 of the penal code, a relic from 1860s British legislation, bans gay acts as "carnal intercourse against the order of nature" and allows for jail terms of up to life. He claimed that the Centre did not support a private bill to scrap the section but is taking a different stand in court.

"They (LGBTs) will be free to work, declare (their status)...but what other civil rights will follow will be part of a future lis (legal cause of action)", Misra said, adding issues such as adoption, maintenance, right to cohabit, and maintenance can be argued later.

He then referred to the affidavit of the Centre and said many laws dealing with marriages, inheritance, adoption would be affected if the court widened the scope of the hearing.

The Centre will have to file its response after wider consultations in case the scope of the hearing widens, the ASG said.

"We don't want a situation where two homosexuals enjoying a walk on Marine Drive (a Mumbai boulevard) should be disturbed by the police and charged under Section 377", Justice J. Chandrachud, who is a part of the bench hearing the matter, was quoted as saying by the channel. "We intend to rule, subject to arguments, that two consenting adults even if engaged in unnatural sex will not be liable for prosecution for any offence".

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