Homosexual behaviour not an aberration, but a variation, says SC while hearing Sec 377 pleas

The Supreme Court, which is hearing a bunch of pleas to quash Section 377 which criminalises homosexuality, today observed that "homosexual behaviour is not an aberration, but a variation".

The matter is being heard by a five-judge bench headed by Chief Justice of India Dipak Misra, and comprising Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra.

The top court today took cognizance of the societal pressure that burdens the LGBTQ community and the lack of medical facilities they face.

Also read: SC hearing on Section 377: What happened in court yesterday

The bench questioned the counsel of the petitioners whether there was any “law, rule, regulation, bye-law or guideline that barred or restrained homosexuals from availing any right available to others”. To this, the counsel said there were no such provisions.

The bench then observed, “Once the criminality (under section 377) goes, everything will go (all the bars, social stigma and others)”, The Indian Express reported.

Justice Indu Malhotra made an observation that members of the LGBTQ community are discriminated against and hence are hesitant to even seek healthcare. She said, “They (LGBT) do not get proper medical care because of these inhibitions even in the medical fraternity." She also said it isn’t just humans who indulge in homosexual acts, and that animals too exhibit homosexual behavior. She concluded her observation by saying, “It is not an aberration but a variation."

Also read: Explained: How the plea to quash Section 377 made its way to the Supreme Court again

Justice DY Chandrachud also referred to Section 21 of the Mental Health Act which says there will be no discrimination on the basis of gender, sex, sexual orientation, etc. and emphasized that Parliament itself has declared that sexual orientation cannot be grounds for discrimination.

Meanwhile, Suresh Kumar Koushal, the petitioner who challenged the landmark Delhi High Court verdict of 2009 which decriminalised gay sex in Supreme Court in 2013, has claimed that striking down Section 377 would endanger national security. He was quoted by The Times of India as saying, "[Striking down] Section 377 would endanger national security as armed forces personnel, who remain away from family in difficult terrains, could indulge in homosexual activities with brother jawans". He has also sought intervention in the ongoing proceedings of the Supreme Court.

Below is a timeline of India's fight against Section 377 of the IPC: