Sect 377 promotes discrimination: SC

The Supreme Court on Thursday observed that IPC Section 377 that criminalised gay sex has encouraged an environment that promotes discrimination of homosexuals. This, it said, was contrary to the intent of Parliament, as evident from the Mental Healthcare Act 2017 enacted last year, to prevent discrimination of any person even on the basis of their sexual orientation.

Dealing with arguments questioning the continuance of Section 377 in the Indian Penal Code (IPC), a group of psychiatrists moved an application in the ongoing proceeding before the Supreme Court and said homosexuality is not a mental disorder as even the World Health Organisation does not recognise it as one.

Appearing for the mental health practitioners, senior advocate CU Singh submitted that Sections 18 and 21 of the Mental Healthcare Act specifically provides that “the right to access mental healthcare and treatment shall mean mental health services of affordable cost, of good quality, available in sufficient quantity, accessible geographically, without discrimination on the basis of gender, sex, sexual orientation, religion, culture, caste, social or political beliefs, class, disability or any other basis and provided in a manner that is acceptable to persons with mental illness and their families and care-givers.”

The Bench comprising Chief Justice Dipak Misra, Justices RF Nariman, AM Khanwilkar, DY Chandrachud, and Indu Malhotra said, “The problem is not psychological alone but relates to right to life. Family pressures inhibit homosexuals from opening up about their orientation. That is one reason they resort to bisexuality and get married leading to further mental complications. Nobody understands them as they get disillusioned. In rural areas, doctors don’t maintain confidentiality about such patients. All this has huge ramifications as this not only affects their individual relationship but society as well.”

Justice Chandrachud pointed out that looking at the Mental Healthcare Act, it is clear that Parliament is conscious to the fact that persons cannot be discriminated based on their sexual orientation. He said, “We have encouraged an environment that promotes discrimination of this class of people. If Section 377 goes, this discrimination too will go.”

The Centre having left the decision on Section 377 to the wisdom of the court did not make any submissions trusting that no other issues incident to Section 377 get decided by the Bench. However, original petitioner Suresh Kumar Kaushal, who challenged the decriminalisation of Section 377 by the Delhi HC in Naz Foundation case judgment of Delhi HC before the apex court, moved an application stating that Section 377 cannot be scrapped as doing so will encourage same sex unions between soldiers posted in border areas and inhospitable terrains.

An application moved by Apostolic Churches Alliance was the lone voice to raise the banner of Opposition against scrapping of Section 377. The court allowed its lawyer Manoj George to make submissions on Tuesday.