Legal system, society don’t recognise it, govt. tells Delhi HC

The Centre on Monday opposed before the Delhi High Court a petition seeking recognition of same-sex marriages, saying, “our legal system, society and values do not recognise marriage between same sex couples”.

Solicitor General Tushar Mehta, representing the Centre, said the 2018 judgment of the Constitution Bench of the Supreme Court “merely decriminalises homosexuality or lesbianism, nothing more, nothing less”.

Struck down in 2018

On September 6, 2018, a five-judge Constitution Bench, led by then Chief Justice Dipak Misra, unanimously held that criminalisation of private consensual sexual conduct between adults of the same sex under Section 377 of the Indian Penal Code is clearly unconstitutional.

Basis of SC judgement of 2018 

Upholding Rights of Minority

  • SC upheld the rights of the minority over the opinion of the majority. SC noted that under the constitutional scheme no minority group must suffer deprivation of a constitutional right because they do not adhere to majoritarian views.
    • The constitution is not for just the majority, the fundamental rights are guaranteed to “any person” and “any citizen”, and the sustenance of these rights does not require majoritarian sanction.

Upholding rights of Individual

  • SC noted the importance of individual liberty over community preferences. SC said that “Denial of self-expression is like death”.
    • Sexual autonomy is an important pillar and insegregable facet of individual liberty.
    • The sexual orientation of the LGBTQ community is intrinsic to their dignity, inseparable from their autonomy and at the heart of their privacy.
    • In broadening the scope of the term “sex” prohibited as the ground of discrimination in Article 15. SC stated that it is not merely restricted to the biological attributes of an individual, but also includes their “sexual identity and character”.

Homosexuality is not a Mental Illness

  • SC has noted that modern psychiatric studies and legislation recognizes that gay persons and transgenders are not the person suffering from mental disorder and therefore cannot be penalized.
    • It also noted that the Mental Health Care Act, 2017 clears the misconceptions and stigma around homosexuality as mental illness.