SC Rejects Demand To Seek Public Opinion On Indian Penal Code Section 377


New Delhi:The Supreme Court of India has rejected the demand of seeking public opinion on Section 377 of the Indian Penal Code by saying that the court will go by constitutional morality, not majoritarian morality. Section 377 a British-era law criminalises same-sex acts.

Hearing petitions seeking decriminalising Section 377, the Constitution bench of the top court said the provision had an adverse impact on the Lesbian Gay Bisexual and Transgender (LGBT) community that felt inhibited while seeking proper medical and healthcare facilities due to prejudices.

“We do not decide constitutional issues by conducting a referendum. We follow the concept of constitutional morality and not majoritarian morality,” the five-judge bench headed by CJI DipakMisra told a lawyer favouring retention of Section 377 after he argued that the LGBT community constituted only 5-8% of the country’s population.

In 2013, when the Supreme Court revived Section 377, it had termed the LGBTQ community a “minuscule minority”.

The top court also made it clear that the petitions challenging Section 377 will be tested on judicial parameters, despite the Centre leaving it to the top court’s wisdom. The central government has asked the court to not widen the scope of petitions and include civil rights such as marriage and inheritance.

“On the mere concession of the Centre, we will not say that the section is ultra vires. We will have to analyse every aspect. We will do a detailed analysis of Section 377 and its constitutional validity,” said the bench, also comprising justices RF Nariman, AM Khanwilkar, DY Chandrachud and InduMalhotra.

Reiterating that the court was not concerned with bestiality, incest or civil issues but only with the constitutional validity of the section vis-à-vis the LGBT community, the bench fixed a time limit for the opponents.

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