Section 377: We Don't Go By Majoritarian Morality But Constitutional Morality, Says CJI Dipak Misra In SC
Section 377. (Photo Credits: Pixabay) Representational Image

On the third day of the Supreme Court hearing session to scrap Section 377, CJI Dipak Misra states that constitutional questions cannot be decided by referendum when one lawyer argued that popular opinion should be examined to decide Section 377. CJI said, "We don't go by majoritarian morality but by constitutional morality. We are only to judge Section 377 of IPC on the touchstone of Article 14, Article 19, and Article 21 of the Constitution. For that, we don't have to go to Israel."

He highlighted that the Supreme Court is not concerned with bestiality, incest or related issues but only with the constitutional validity of Section 377 of IPC as far as it concerns sexual orientation of LGBT community members. Lawyer supporting Section 377 argued that each organ has an assigned function and when organs which are not meant for reproductive functions are used for the sexual pleasure it goes against "order of nature". The definition of the 'order of nature" covers only sexual acts performing using the penis and vagina.

Earlier in the day, Justice Indu Malhotra pointed out that the homosexual community feels inhibited to go for medical aid due to prejudices against them. She elaborated on an essential issue that because of family and societal pressures, and other factors they are forced to marry the opposite sex, and it leads to bi-sexuality and other mental trauma.

In 2013, the Supreme Court had reversed the High Court order and pointed out that those indulging in gay sex will be prosecuted and sentenced under Section 377. On Wednesday, Centre had passed the buck on  Supreme Court and asked the latter to decide on the constitutionality of Section 377. The hearing has concluded for the day, and the Supreme Court will hear the intervenors for an hour on Tuesday in the coming week.