Section 377 verdict to be decided on law, not majority view: SC

NEW DELHI: The final countdown for the likely decriminalisation of gay sex among consenting adults got underway on Thursday with the Supreme Court 90 minutes away from reserving its verdict, refusing to buy an argument that a “majority opposed legalising homosexuality”.“We decide questions of law on the basis of the Constitution, constitutional principles and its ethos, and not based on referendum,” CJI Dipak Misra said, setting up the prospect of removing a provision in the law which punishes consensual sex among gay adults.In the absence of even a semblance of opposition from the Centre to the LGBT community’s plea to decriminalise the nearly-120-year-old Section 377 of the Indian Penal Code, a bench of the CJI and Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra was racing through the proceedings by giving just a few minutes to interveners who were attempting to stop the judicial juggernaut from rolling freely in favour of LGBTs.After petitioners spoke of the demonic effect Section 377 had on the dignity and right to life of the LGBT community by making their sexual orientation a crime, the bench heard additional solicitor general Tushar Mehta for just three minutes.The Centre said it had nothing to add to its three-page affidavit. After Mehta’s brief arguments, the bench stepped up the pace of proceedings by assigning a few minutes each to five more advocates who wanted to argue against decriminalisation of Section 377.Appearing for the Apostolic Alliance of Churches and Utkal Christian Association, advocate Manoj George protested against the SC rushing through arguments.“The Constitution bench is dealing with an important issue. It patiently heard counsel after counsel for the LGBT community, which is only 5% of the population, for two and a half days. Why would it want to rush through the arguments of the side which represents the view of the overwhelming majority of population which is against decriminalisation of homosexuality?” the advocate asked.The CJI firmly told the counsel, “We decide questions of law on the basis of the Constitution, constitutional principles and its ethos. We do not decide questions based on majoritarian view obtained through a referendum.” CJI Misra added, “The Centre’s concession to leave the decision to the wisdom of the Supreme Court does not mean we will not constitutionally analyse the provision.”Persuaded by George, the bench, which intended to reserve its verdict on Thursday itself, agreed to hear the interveners for 90 minutes on Tuesday. George was supported by advocate Harshvir Pratap Singh, who had represented the right wing before a two-judge SC bench in 2013 to oppose the Delhi HC’s 2009 verdict which had decriminalised Section 377.During the arguments, senior advocate C U Singh said homosexuality or sexual orientation of LGBT persons was not a psychiatric condition and cited expert opinion supporting decriminalisation of Section 377. Justice Chandrachud said Parliament had taken a progressive view by providing for non-discrimination of persons based on their sexual orientation in the Mental Healthcare Act, 2017. The CJI added the Mental Healthcare Act appeared to be a progressive legislation as it stressed on de-stigmatisation of mental illness. Singh said the disadvantages of criminalisation were so deep-rooted that the SC needed to take affirmative action, which must go beyond decriminalisation.Former attorney general Ashok Desai, an intervener on behalf of the LGBT community, said homosexuality was part and parcel of Indian society, culture and history. “India has a history of culture and tolerance to same-sex love and homosexuality, and it is not homosexuality but Section 377 that is alien to Indian culture,” he said.