New Delhi: The Supreme Court on Thursday said that it would uphold “constitutional morality" and not the “majoritarian morality" while deciding on the constitutional validity of Section 377 of the Indian Penal Code which, in effect, criminalizes homosexuality.

The statement by Chief Justice of India Dipak Misra came on a suggestion made by one of the intervening parties to seek public opinion through a referendum on the issue of decriminalization of homosexuality.

A five-judge bench of the apex court comprising Chief Justice Misra and justices Rohinton F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra was hearing a batch petitions challenging the constitutional validity of Section 377 in the light of the right to privacy judgement delivered by a nine-judge bench in August last year.

Justice Malhotra observed that the illegality attributed to homosexuality because of Section 377 “has serious ramifications". The social stigma attached to homosexuality was a hinderance for the lesbian, gay, bisexual and transgender (LGBT) population to get access to medical facilities, which is guaranteed under the Constitution as right to life, especially in small towns, Justice Malhotra remarked.

“It (homosexuality) is not an aberration, but a variation," Justice Malhotra said while pointing out that homosexuality existed in other animal species as well.

Justice Chandrachud referred to Section 21(1)(a) of the Mental Health Act, 2017, which prohibits any discrimination among people with mental illness on various grounds including their sexual orientation, to assert that Parliament recognised the existence of the LGBT population and prohibited any discrimination on that ground.

Senior advocates Shaym Diwan, C.U. Singh and Krishnan Venugopal, who appeared for the petitioners, urged the Supreme Court to put an end to the years of discrimination faced by the LGBT population in India by protecting their rights under Article 14 (equality before law), Article 15 (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth), Article 19 (freedom of speech and expression, and to form associations or unions) and Article 21 (right to Life) of the Constitution and secure their right to private intimacy and autonomy.

Delhi High Court had in 2009 ruled that Section 377 of IPC, which prohibits “carnal intercourse against the order of nature with any man, woman or animal", was unconstitutional. This was overturned by the apex court in 2013.

In January 2018, a Supreme Court bench headed by Chief Justice Misra agreed to consider the implication of the privacy judgement and take another look at the constitutional validity of Section 377, in response to a plea by representatives of the LGBT community.

The matter would be next heard on 17 July.

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