A five-judge bench comprising of Chief Justice Dipak Misra, Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, is hearing a bunch of petitions challenging Section 377 of the Indian Penal Code that criminalises homosexuality.

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. The court, which is hearing a clutch of petitions challenging the validity of Section 377 of the IPC that criminalises homosexuality, also reflected on the trauma that the community has to face and the lack of medical facilities as well. A five-judge bench comprising Chief Justice Dipak Misra, Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, is hearing the matter.

The bench, headed by Chief Justice Dipak Misra, asked lawyer Maneka Guruswamy, who was appearing for a petitioner, whether there was any law, rule, regulation, bye-law or guideline that barred or restrained homosexuals from availing any right available to others. “There are no such provisions,” she said. “Once the criminality (under section 377) goes, then everything will go (all the bars, social stigma and others),” the bench added.

Here is all that the apex court has said so far on Day 3 of the hearing.

Access to medical care hindered

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.  “The members of the community feel inhibited to go for medical aid due to prejudices against them. They (LGBT) do not get proper medical care because of these inhibitions even in the medical fraternity,” she said. “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,” she added in her observation.

Societal pressure, marriage adds to the frustration 

Malhotra also said that the LGBTQ community is forced to bow down to the family and societal pressure and marry someone of the opposite sex. “Homosexuals don’t disclose there sexuality & due to family pressure etc get into marriages. Then frustration etc leads to bisexuality. And what about the trauma of off springs who come to know one parent is homosexual,” she added.

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Mental Healthcare Act states no discrimination based on sexual orientation 

Justice D Y Chandrachud referred to section 21A of the Mental Healthcare Act which says “there shall be no discrimination on any basis including gender, sex, sexual orientation, religion, culture, caste, social or political beliefs, class or disability”. “So Parliament itself now recognises that that sexual orientation cannot be a ground for discrimination,” he remarked.

During the first two days of the hearing, the petitioners argued that Section 377 was the result of Victorian-era morality and that it should be struck down immediately. The Centre also said that it would not take a stand on the validity of Section 377 of the Indian Penal Code that criminalises consensual sex between two adults of the same sex.

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