NEW DELHI: The Supreme Court while hearing a clutch of petitions on the constitutional validity of Section 377, observed that there is a deep-rooted trauma involved in the society, which forces the LGBT (lesbian, gay, bisexual, and transgender) community to be in fear.
The bench, headed by Chief Justice Dipak Misra and comprising of Justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra, also observed that it is because of the family and societal pressures that members of the LGBT community are forced to marry the opposite sex which leads to bi-sexuality and mental trauma. It added that that the LGBT community feels inhibited to go for medical aid due to prejudices involved against them.
"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," Justice Indu Malhotra said in court.
Justice DY Chandrachud referred to Section 21a of Mental Healthcare Act which expressly prohibits discrimination on the ground of sexual orientation. "So Parliament itself now recognises them", Justice Chandrachud said.
The Centre had on Wednesday said that it will leave it to the wisdom of the court to decide on the constitutional validity of Section 377 on the issue of criminalising unnatural intercourse between two consenting adults. "We leave to the wisdom of the Court to deal with the validity of Section 377 so far as it relates to consensual sexual acts between two adults," Additional Solicitor General Tushar Mehta, representing the Centre had said.
The SC had on Wednesday said the right to sexual orientation is not a fundamental right but indicated that the right to choose a sexual partner is a fundamental right.
The Centre during the hearing said that it has no objection with the court dealing with the validity of this penal provision.
Section 377 refers to 'unnatural offences' and says whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to pay a fine.
The apex court had in 2013 restored sexual relationship between persons of the same sex as a criminal offence by setting aside the 2009 Delhi High Court judgement that had held as unconstitutional section 377 of the IPC, which makes such actions between two consenting adults of same sex as a penal offence.