NAVTEJ SINGH JOHAR & ORS. versus UNION OF INDIA THR. SECRETARY MINISTRY OF LAW AND JUSTICE

NAVTEJ SINGH JOHAR v. UOI THR. [2018] 7 .C.R. 379SECY. MINISTRY OF LAW & JUSTICE

[DIPAK MISRA, CJI ]

NAVTEJ SINGH JOHAR & ORS.

UNION OF INDIA THR. SECRETARY

MINISTRY OF LAW AND JUSTICE(Writ Petition (Criminal) No. 76 of 2016)

SEPTEMBER 06, 2018

[DIPAK MISRA, CJI, R. F. NARIMAN,A. M. KHANWILKAR, DR. D.Y. CHANDRACHUD ANDINDU MALHOTRA, JJ.]

Penal Code, 1860 – s.377 – Constitutionality of – Held: s.377,so far as it criminalises even consensual sexual acts betweencompetent adults, fails to make distinction between non-consensualand consensual sexual acts of competent adults in private spacewhich are neither harmful nor contagious to the society – s.377subjects the LGBT community to societal pariah and dereliction andis, therefore, manifestly arbitrary, for it has become an odiousweapon for the harassment of the LGBT community by subjectingthem to discrimination and unequal treatment – Therefore, s.377 isliable to be partially struck down for being violative of Art.14 ofthe Constitution – In other words, s.377, so far as it penalizes anyconsensual sexual activity between two adults, be it homosexuals(man and man), heterosexuals (man and woman) and lesbians(woman and woman), cannot be regarded as constitutional –However, if anyone, both man and woman, engages in any kindof sexual activity with an animal, the said aspect of s.377 isconstitutional and it shall remain penal offence under s.377 –Any act of the description covered under s.377 done between theindividuals without the consent of any one of them would invitepenal liability under s.377 – Constitution of India – Art.14 –Homosexual – LGBT. (Per Dipak Misra, CJI [for himself andKhanwilkar, J.])

Penal Code, 1860 – s.377 – Expression ‘against the order ofnature’ – The expression ‘against the order of nature’ has neitherbeen defined in s.377 nor in any other provision of the IPC – Theconnotation given to the expression by various judicial

Apronouncements includes all sexual acts which are not intended forthe purpose of procreation – Therefore, if coitus is not performedfor procreation only, it does not per se make it ‘against the order ofnature’. (Per Dipak Misra, CJI [for himself and Khanwilkar, J.])

Penal Code, 1860 – s.377 – Examination of s.377 on the anvilBof Art.14 of the Constitution – Held: The classification adoptedunder s.377 has no reasonable nexus with its object as other penalprovisions such as s.375 and the POCSO Act already penalize non-consensual carnal intercourse – s.377, insofar as it applies to same-sex consenting adults, demeans them by having them prosecutedinstead of understanding their sexual orientation and attempting toCcorrect centuries of the stigma associated with such persons – s.377offends Art.14 as it discriminates between heterosexual andhomosexual adults which is distinction which has no rationalrelation to the object sought to be achieved by the Section - namely,the criminalization of all carnal sex between homosexual and/orDheterosexual adults as being against the order of nature –Yogyakarta Principles on the Application of International HumanRights Law in relation to Sexual Orientation and Gender Identitygive further content to the fundamental rights contained in Arts 14,15, 19 and 21, and in the light of these principles also, s.377 isunconstitutional. (Per R.F. Nariman, J.)E

Penal Code, 1860 – s.377 – Examination of s.377 on the anvilof Art.19(1)(a) of the Constitution – Held: s.377 amounts to anunreasonable restriction, for public decency and morality cannotbe amplified beyond rational or logical limit and cannot beaccepted as reasonable grounds for curbing the fundamental rightsFof freedom of expression and choice of the LGBT community –Consensual carnal intercourse among adults, be it homosexual orheterosexual, in private space, does not in any way harm the publicdecency or morality – Therefore, s.377 in its present form violatesArt.19(1)(a) of the Constitution. (Per Dipak Misra, CJI [for himselfGand Khanwilkar, J.])Penal Code, 1860 – s.377 – Miniscule population of LGBT –The mere fact that the percentage of population whose fundamentalright to privacy is being abridged by the existence of s.377 in itspresent form is low does not impose limitation upon theHConstitutional court from protecting the fundamental rights of those

[DIPAK MISRA, CJI ]

who are so affected by s.377. (Per Dipak Misra, CJI [for himselfand Khanwilkar, J.])

Penal Code, 1860 – s.375 and s.377 – Distinction between –The major difference between the language of s.377 and s.375 isthat of the element of absence consent which has been elaboratelyincorporated in the seven descriptions contained in the latter partof s.375 – It is the absence of willful and informed consent embodiedin the seven descriptions to s.375 which makes the offence of rapecriminal – On the other hand, s.377 contains no such descriptions/exceptions embodying the absence of willful and informed consentand criminalises even voluntary carnal intercourse both betweenhomosexuals as well as between heterosexuals. (Per Dipak Misra,CJI [for himself and Khanwilkar, J.])

Penal Code, 1860 – s.377 – Expression ‘against the order ofnature’ – Held: Sex, if performed differently, as per the choice ofthe consenting adults, does not per se make it against the order ofnature – It is the freedom of choice of two consenting adults toperform sex for procreation or otherwise and if their choice is thatof the latter, it cannot be said to be against the order of nature.(Per Dipak Misra, CJI [for himself and Khanwilkar, J.])

Penal Code, 1860 – s.377 – History of s.377 – Laws in UnitedKingdom and in United States, Discussed. (Per R.F. Nariman, J.)

Penal Code, 1860 – s.377 – Constitutionality of – Held: s.377was the product of the Victorian era, with its attendant puritanicalmoral values – Victorian morality must give way to constitutionalmorality – Constitutional morality is the soul of the Constitution,which is to be found in the Preamble of the Constitution, whichdeclares its ideals and aspirations, and is also to be found in PartIII of the Constitution, particularly with respect to those provisionswhich assure the dignity of the individual – The rationale for s.377,namely Victorian morality, has long gone and there is no reason tocontinue with - as Justice Holmes said - law merely for the sake ofcontinuing with the law when the rationale of such law has longsince disappeared – s.377, insofar as it applies to same-sexconsenting adults, demeans them by having them prosecuted insteadof understanding their sexual orientation and attempting to correctcenturies of the stigma associated with such persons. (Per R.F.Nariman, J.)

ABC

APenal Code, 1860 – s.377 – Discrimination grounded onstereotypes – Held: s.377 is the basis of persecution of members ofthe LGBT community – The section rests on deep rooted genderstereotypes – It perpetuates notions of morality which prohibit certainrelationships as being against the ‘order of nature’ – criminalprovision has sanctioned discrimination grounded on stereotypesBimposed on an entire class of persons on grounds prohibited byArt.15(1) – This constitutes discrimination on the grounds only ofsex and violates the guarantee of non-discrimination in Art.15(1) –Constitution of India – Art.15(1). (Per Dr. D. Y. Chandrachud, J.)Penal Code, 1860 – s.377 – Denial of sexual orientation isCalso denial of the right to privacy – To deny the members of theLGBT community the full expression of right to sexual orientation isto deprive them of their entitlement to full citizenship under theConstitution – By penalising sexual conduct between consentingadults, s.377 imposes moral notions which are anachronistic to aDconstitutional order – While ostensibly penalising ‘acts’, it impactsupon the identity of the LGBT community and denies them the benefitsof equal citizenship – s.377 is based on stereotype about sex –Our Constitution which protects sexual orientation must outlaw anylaw which lends the authority of the state to obstructing itsfulfilment– Constitution of India – Art.21. (Per Dr. D.Y.EChandrachud, J.)

Penal Code, 1860 – s.377 – Creation of class of criminals –Held: Although s.377 prima facie appears to criminalise certainacts or conduct, it creates class of criminals, consisting ofindividuals who engage in consensual sexual activity – It typecastsFLGBTQ individuals as sex-offenders, categorising their consensualconduct on par with sexual offences like rape and child molestation– s.377 not only criminalises acts (consensual sexual conductbetween adults) which should not constitute crime, but alsostigmatises and condemns LGBTQ individuals in society. (PerGDr. D. Y. Chandrachud, J.)

Penal Code, 1860 – s.377 – Import and effect – Held: Whilea consensual heterosexual relationship is permissible, consensualrelationship between LGBT persons is considered to be ‘carnal’,and against the order of nature – s.377 creates an artificialHdichotomy – The natural or innate sexual orientation of person

cannot be ground for discrimination – Where legislationdiscriminates on the basis of an intrinsic and core trait of anindividual, it cannot form reasonable classification based on anintelligible differentia – Constitution of India – Reasonableclassification. (Per Indu Malhotra, J.)

Penal Code, 1860 – s.377 – In contemporary civilisedjurisprudence, with States increasingly recognising the status ofsame-sex relationships, it would be retrograde to describe suchrelationships as being ‘perverse’, ‘deviant’, or ‘unnatural’. (PerIndu Malhotra, J.)

Penal Code, 1860 – s.375 and 377 – While s.375 permitsconsensual penetrative acts (the definition of ‘penetration’ includesoral and anal sex), s.377 makes the same acts of penetrationpunishable irrespective of consent – This creates dichotomy inthe law – Constitution of India – Art.14. (Per Indu Malhotra, J.)

Penal Code, 1860 – s.377 – History owes an apology to themembers of LGBT community and their families, for the delay inproviding redressal for the ignominy and ostracism that they havesuffered through the centuries – The members of this communitywere compelled to live life full of fear of reprisal and persecution– This was on account of the ignorance of the majority to recognisethat homosexuality is completely natural condition, part of rangeof human sexuality. (Per Indu Malhotra, J.)

Penal Code, 1860 – s.377 – s.377, insofar criminalising theconsensual sexual acts of adults in private, is violative of Arts.14,15, 19, and 21 of the Constitution – Such consent must be freeconsent, which is completely voluntary in nature, and devoid ofany duress or coercion – The declaration of the said reading downof s.377 shall not, however, lead to the re-opening of any concludedprosecutions, but can certainly be relied upon in all pending matterswhether they are at the trial, appellate, or revisional stages – Theprovisions of s.377 will continue to govern non-consensual sexualacts against adults, all acts of carnal intercouse against minors,and acts of beastiality. (Per Indu Malhotra, J.)

Constitution of India – Interpretation of Constitution –Concept of transformative Constitutionalism – Held: TheConstitution would become stale and dead testament without

Adynamic, vibrant and pragmatic interpretation – Constitutionalprovisions have to be construed and developed in such mannerthat their real intent and existence percolates to all segments of thesociety – Our Constitution has been perceived to be transformativein the sense that the interpretation of its provisions should not belimited to the mere literal meaning of its words; instead they oughtBto be given meaningful construction which is reflective of theirintent and purpose in consonance with the changing times –Transformative constitutionalism not only includes within its wideperiphery the recognition of the rights and dignity of individualsbut also propagates the fostering and development of an atmosphereCwherein every individual is bestowed with adequate opportunitiesto develop socially, economically and politically – Discriminationof any kind strikes at the very core of any democratic society –When guided by transformative constitutionalism, the society isdissuaded from indulging in any form of discrimination so that thenation is guided towards resplendent future – Lesbian, Gay,DBisexual and Transgender (LGBT). (Per Dipak Misra, CJI [forhimself and Khanwilkar, J.])

Constitution of India – Constitutional morality – It is onlyconstitutional morality that can be allowed to permeate into theRule of Law – Constitutional morality embraces within its sphereEseveral virtues, foremost of them being the espousal of pluralisticand inclusive society – The concept of constitutional morality urgesthe organs of the State, including the Judiciary, to preserve theheterogeneous nature of the society and to curb any attempt by themajority to usurp the rights and freedoms of smaller or minusculeFsection of the populace – Constitutional morality cannot be martyredat the altar of social morality – The veil of social morality cannotbe used to violate fundamental rights of even single individual,for the foundation of constitutional morality rests upon therecognition of diversity that pervades the society. (Per Dipak Misra,CJI [for himself and Khanwilkar, J.])G

Constitution of India – Right to live with dignity – TheConstitution has ladened the judiciary with the very important dutyto protect and ensure the right of every individual including theright to express and choose without any impediments so as to enablean individual to fully realize his/her fundamental right to live withH

[DIPAK MISRA, CJI ]

dignity – Sexual orientation is one of the many biological phenomenawhich is natural and inherent in an individual and is controlled byneurological and biological factors – The science of sexuality hastheorized that an individual exerts little or no control over who he/she gets attracted to – Any discrimination on the basis of one’ssexual orientation would entail violation of the fundamental rightof freedom of expression. (Per Dipak Misra, CJI [for himself andKhanwilkar, J.])

Constitution of India – Intention of constitutional framers wasnever to grant protection of fundamental rights only to the majoritypopulation – If such had been the intention, then all provisions inPart III of the Constitution would have contained qualifying wordssuch as ‘majority persons’ or ‘majority citizens’ – Instead, theprovisions have employed the words ‘any person’ and ‘any citizen’making it manifest that the constitutional courts are under anobligation to protect the fundamental rights of every single citizenwithout waiting for the catastrophic situation when the fundamentalrights of the majority of citizens get violated. (Per Dipak Misra,CJI [for himself and Khanwilkar, J.])Constitution of India – Sexual privacy and autonomy – Rightto privacy enables an individual to exercise his or her autonomyaway from the glare of societal expectations – In liberal democracy,recognition of the individual as an autonomous person is anacknowledgement of the State’s respect for the capacity of theindividual to make independent choices – Autonomy and privacyare inextricably linked – Each requires the other for its full realization– Sexual choices are an essential attribute of autonomy. (PerDr. D. Y. Chandrachud, J.)

Constitution of India – Choice of partner – The choice ofwhom to partner, the ability to find fulfilment in sexual intimaciesand the right not to be subjected to discriminatory behaviour areintrinsic to the constitutional protection of sexual orientation. (PerDr. D. Y. Chandrachud, J.)

Constitution of India – Right to health – Impact of s.377 onright to health – The operation of s.377 denies consenting adultsthe full realization of their right to health, as well as their sexualrights – It forces consensual sex between adults into realm offear and shame, as persons who engage in anal and oral intercourse

ABCD

Arisk criminal sanctions if they seek health advice – This lowers thestandard of health enjoyed by them and particularly by members ofsexual and gender minorities, in relation to the rest of society –s.377 has had far-reaching consequences for this “key population”,pushing them out of the public health system – Laws that criminalizesame-sex intercourse create social barriers to accessing healthcare,Band curb the effective prevention and treatment of HIV/AIDS –Criminal laws are the strongest expression of the State’s power topunish certain acts and behaviour, and it is, therefore, incumbentupon the State to ensure full protection for all persons, includingthe specific needs of sexual minorities – Penal Code, 1860 – s.377.C(Per Dr. D. Y. Chandrachud, J.)

Constitution of India – Constitutional morality – The verypurpose of fundamental rights chapter in the Constitution of Indiais to withdraw the subject of liberty and dignity of the individualand place such subject beyond the reach of majoritarianDgovernments so that constitutional morality can be applied by theSupreme Court to give effect to the rights among others of discreteand insular minorities. (Per R.F. Nariman, J.)

Constitution of India – Constitution morality – Held: TheConstitution assures to every individual the right to lead dignifiedElife – It prohibits discrimination within society – LGBT individualsare equal citizens of India, that they cannot be discriminated againstand that they have right to express themselves through their intimatechoices. (Per Dr. D. Y. Chandrachud, J.)

Constitution of India – Constitution morality and publicFmorality – Difference between – Held: Under regime of publicmorality, the conduct of society is determined by popular perceptionsexistent in society – The continuance of certain symbols, labels,names or body shapes determine the notions, sentiments and mentalattitudes of the people towards individuals and things –Constitutional morality, on the other hand, determines the mentalGattitude towards individuals and issues by the text and spirit of theConstitution – It requires that the rights of an individual ought notto be prejudiced by popular notions of society – It assumes thatcitizens would respect the vision of the framers of the Constitutionand would conduct themselves in way which furthers that vision –HConstitutional morality reflects that the ideal of justice is an

[DIPAK MISRA, CJI ]

overriding factor in the struggle for existence over any other notionof social acceptance. (Per Dr. D. Y. Chandrachud, J.)

Constitution of India – Arts.14, 21 – Persons who arehomosexual have fundamental right to live with dignity, which, inthe larger framework of the Preamble of India, will assure thecardinal constitutional value of fraternity – Such groups are entitledto the protection of equal laws, and are entitled to be treated insociety as human beings without any stigma being attached to anyof them – All government officials, including and in particular policeofficials, and other officers of the Union of India and the States, begiven periodic sensitization and awareness training of the plight ofsuch persons – LGBT – Homosexual. (Per R.F. Nariman, J.)

Constitution of India – Art.14 – classification whichdiscriminates between persons based on their innate nature, wouldbe violative of their fundamental rights, and cannot withstand thetest of constitutional morality – s.377 insofar as it criminalisesconsensual sexual acts between adults in private, is not based onany sound or rational principle, since the basis of criminalisationis the “sexual orientation” of person, over which one has “littleor no choice” – Further, the phrase “carnal intercourse againstthe order of nature” in s.377 as determining principle in penalprovision, is too open-ended, giving way to the scope for misuseagainst members of the LGBT community – Thus, apart from notsatisfying the twin-test under Art.14, s.377 is also manifestlyarbitrary, and hence violative of Art.14 of the Constitution. (PerIndu Malhotra, J.)

Constitution of India – Art.15 – Term ‘sex’ as it occurs inArt.15, is not merely restricted to the biological attributes of anindividual, but also includes their “sexual identity and character”– The prohibition against discrimination under Art.15 on the groundof ‘sex’ should, therefore, encompass instances where suchdiscrimination takes place on the basis of one’s sexual orientation– The LGBT community is sexual minority which has suffered fromunjustified and unwarranted hostile discrimination, and is equallyentitled to the protection afforded by Art.15. (Per Indu Malhotra, J.)

Constitution of India – Art.21 – LGBT, sexual orientation of –Impediment of s.377 IPC – When biological expression, be it an

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Aorientation or optional expression of choice, is faced withimpediment, albeit through any imposition of law, the individual’snatural and constitutional right is dented – Such situation urgesthe conscience of the final constitutional arbiter to demolish theobstruction and remove the impediment so as to allow the fullblossoming of the natural and constitutional rights of individuals –BYogyakarta Principle. (Per Dipak Misra, CJI [for himself andKhanwilkar, J.])

Constitution of India – Art.21 – Right to choose partner onthe basis of sexual orientation – Held: Sexual orientation is innateto human being – It is an important attribute of one’s personalityCand identity – Homosexuality and bisexuality are natural variantsof human sexuality – LGBT persons have little or no choice overtheir sexual orientation – LGBT persons, like other heterosexualpersons, are entitled to their privacy, and the right to lead dignifiedexistence, without fear of persecution – They are entitled to completeDautonomy over the most intimate decisions relating to their personallife, including the choice of their partners – Such choices must beprotected under Art.21 – The right to life and liberty wouldencompass the right to sexual autonomy, and freedom of expression– s.377 insofar as it curtails the personal liberty of LGBT personsto engage in voluntary consensual sexual relationships with aEpartner of their choice, in safe and dignified environment, isviolative of Art.21. (Per Indu Malhotra, J.)Constitution of India – Art.21 – Right to privacy – s.377 affectsthe private sphere of the lives of LGBT persons – It takes away thedecisional autonomy of LGBT persons to make choices consistentFwith their sexual orientation, which would further dignifiedexistence and meaningful life as full person – s.377 prohibitsLGBT persons from expressing their sexual orientation and engagingin sexual conduct in private, decision which inheres in the mostintimate spaces of one’s existence. (Per Indu Malhotra, J.)G

Constitution of India – Art.21 – Right to health – LGBT personsbeing sexual minority have been subjected to societal prejudice,discrimination and violence on account of their sexual orientation– Since s.377 criminalises “carnal intercourse against the order ofnature” it compels LGBT persons to lead closeted lives – As aHconsequence, LGBT persons are seriously disadvantaged and

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prejudiced when it comes to access to health-care facilities – Thisresults in serious health issues, including depression and suicidaltendencies amongst members of this community. (Per Indu Malhotra, J.)

Constitution of India – Art.32 – Duty of constitutional Courts– Held: It is expected from the courts as the final arbiter of theConstitution to uphold the cherished principles of the Constitutionand not to be remotely guided by majoritarian view or popularperception – The Court has to be guided by the conception ofconstitutional morality and not by the societal morality – Wheneverthe constitutional Courts come across situation of transgressionor dereliction in the sphere of fundamental rights, which are alsothe basic human rights of section, howsoever small part of thesociety, then it is for the constitutional Courts to ensure, with theaid of judicial engagement and creativity, that constitutional moralityprevails over social morality. (Per Dipak Misra, CJI [for himselfand Khanwilkar, J.])

Doctrines/Principles – Doctrine of progressive realization andnon-retrogression – The rationale behind the doctrine of progressiverealization of rights is the dynamic and ever growing nature of theConstitution under which the rights have been conferred to thecitizenry – The State has an obligation to take appropriate measuresfor the progressive realization of economic, social and cultural rights– The doctrine of progressive realization of rights, as naturalcorollary, gives birth to the doctrine of non-retrogression – As perthis doctrine, there must not be any regression of rights – Thedoctrine of non-retrogression sets forth that the State should nottake measures or steps that deliberately lead to retrogression on theenjoyment of rights either under the Constitution or otherwise –The two doctrines lead to the irresistible conclusion that if the lawenunciated in Suresh Koushal’s case is accepted, it would definitelytantamount to retrograde step in the direction of the progressiveinterpretation of the Constitution and denial of progressiverealization of rights – The observation was made in Suresh Koushalthat gays, lesbians, bisexuals and transgenders constitute veryminuscule part of the population – Suresh Koushal’s view getswrongly embedded with the minuscule facet and assumes criminalityon the bedrock being guided by sense of social morality – Itdiscusses about health which is no more phobia and is further

Amoved by the popular morality while totally ignoring the conceptsof privacy, individual choice and the orientation – Orientation, incertain senses, does get the neuro-impulse to express while seeingthe other gender – That apart, swayed by data, Suresh Koushal failsto appreciate that the sustenance of fundamental rights does notrequire majoritarian sanction – Thus, the ruling becomes sensitivelyBsusceptible – LGBT – Penal Code, 1860 – s.377. (Per Dipak Misra,CJI [for himself and Khanwilkar, J.])

Judicial review – Scope of – Where the validity of the law iscalled into question, judicial review will extend to scrutinizingwhether the law is manifestly arbitrary in its encroachment onCfundamental liberties – If law discriminates against group or acommunity of citizens by denying them full and equal participationas citizens, in the rights and liberties granted by the Constitution, itwould be for the Court to adjudicate upon validity of such law.(Per Dr. D. Y. Chandrachud, J.)DJurisprudence – Criminal Law Theories – ‘Bentham’sUtilitarian Theory’ and ‘The Harm Principle’ – Discussed. (PerDr. D.Y. Chandrachud, J.)

Maxim – The latin maxim ‘cessant ratione legis, cessat ipsa lex’,meaning when the reason for law ceases, the law itself ceases is aErule of law – Parliament has unequivocally declared that the earlierstigma attached to same-sex couples, as persons who are regardedas mentally ill, has gone for good – Mental Healthcare Act, 2017 –Penal Code, 1860 – s.377. (Per R.F. Nariman, J.)

Mental Healthcare Act, 2017 – s.3 – Homosexuality, whetherFa mental disorder – Medical and scientific authority has nowestablished that consensual same sex conduct is not against theorder of nature and that homosexuality is natural and normalvariant of sexuality – Parliament has provided legislativeacknowledgment of this global consensus through this enactment –Gs.3 of the Act mandates that mental illness is to be determined inaccordance with ‘nationally’ or ‘internationally’ accepted medicalstandards – The International Classification of Diseases (ICD-10)by the World Health Organization is listed as an internationallyaccepted medical standard and does not consider non-peno-vaginalsex between consenting adults either mental disorder or an illnessH– Penal Code, 1860 – s.377. (Per Dr. D. Y. Chandrachud, J.)

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LGBT – Members of the LGBT community are entitled, as allother citizens, to the full range of constitutional rights includingthe liberties protected by the Constitution – Constitution of India.(Per Dr. D. Y. Chandrachud, J.)

Legislation – Constitutional validity of legislation – Whileassessing whether law infringes fundamental right, it is not theintention of the lawmaker that is determinative, but whether theeffect or operation of the law infringes fundamental rights. (PerDr. D. Y. Chandrachud, J.)

Disposing of the writ petitions, the Court

HELD:

Per Dipak Misra, CJI [for himself and Khanwilkar, J.]– 1.The Constitution has been conceived of and designed in mannerwhich acknowledges the fact that ‘change is inevitable’. It is theduty of the courts to realize the constitutional vision of equalrights in consonance with the current demands and situationsand not to read and interpret the same as per the standards ofequality that existed decades ago. The judiciary cannot remainoblivious to the fact that the society is constantly evolving andmany variation may emerge with the changing times. There isa constant need to transform the constitutional idealism into realityby fostering respect for human rights, promoting inclusion ofpluralism, bringing harmony, that is, unity amongst diversity,abandoning the idea of alienation or some unacceptable socialnotions built on medieval egos and establishing the cult ofegalitarian liberalism founded on reasonable principles that canwithstand scrutiny. [Para 86] [475-F-H; 476-A]National Legal Services Authority v. Union of India andothers (2014) 5 SCC 269; Ashok Kumar Gupta andanother v. State of U.P. and others (1997) 5 SCC 201:[1997] 3 SCR 269; Video Electronics Pvt. Ltd. andanother v. State of Punjab and another (1990) 3 SCC87: [1989] 2 Suppl. SCR 731; Saurabh Chaudri andothers v. Union of India and others (2003) 11 SCC146: [2003] 5 Suppl. SCR 152 – relied on

Childline India Foundation and another v. Allan JohnWaters and others (2011) 6 SCC 261; Khanu v. Emperor

DEF

AAIR 1925 Sind 286; Lohana Vasantlal Devchand v. StateAIR 1968 Guj 252; State of Kerala v. KundumkaraGovindan and another [1969] Cri LJ 818 (Ker); CalvinFrancis v. State of Orissa 1992 (1) OLR 316; ChiefJustice of Andhra Pradesh and others v. L.V.A. Dixituluand Others (1979) 2 SCC 34 : [1979] 1 SCR 26 –Breferred to

Re: Same Sex Marriage [2004] 3 S.C.R. 698; State ofMissouri v. Holland 252 U.S. 416 (1920) – referred to

2.1 The concept of transformative constitutionalism has atCits kernel pledge to transform the Indian society so as toembrace therein, in letter and spirit, the ideals of justice, liberty,equality and fraternity as set out in the Preamble to ourConstitution. Transformation as singular term is diametricallyopposed to something which is static and stagnant, rather itsignifies change, alteration and the ability to metamorphose.DThus, the concept of transformative constitutionalism, which isan actuality with regard to all Constitutions and particularly sowith regard to the Indian Constitution, is, as matter of fact, theability of the Constitution to adapt and transform with the changingneeds of the times. It is this ability of Constitution to transformEwhich gives it the character of living and organic document. AConstitution continuously shapes the lives of citizens in particularand societies in general. Its exposition and energetic appreciationby constitutional courts constitute the lifeblood of progressivesocieties. The Constitution would become stale and deadtestament without dynamic, vibrant and pragmatic interpretation.F[Paras 96, 97] [479-C-G]

State of Kerala and another v. N.M. Thomas and othersAIR 1976 SC 490 : [1976] 1 SCR 906 – relied onRoad Accident Fund and another v. Mdeyide 2008 (1)SA 535 (CC); Bato Star Fishing (Pty) Ltd v. Minister ofGEnvironmental Affairs and Tourism and others [2004]ZACC 15; President of the Republic of South Africa v.Hugo (1997) 6 B.C.L.R. 708 (CC) – referred to

2.2 Equality does not only imply recognition of individualdignity but also includes within its sphere ensuring of equalHopportunity to advance and develop their human potential and

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social, economic and legal interests of every individual and theprocess of transformative constitutionalism is dedicated to thispurpose. [Para 104] [482-A-B]

Shafin Jahan v. Asokan K.M. 2018 (5) SCALE 422 –relied on

Albertyn & Goldblatt (1997) 6 B.C.L.R. 708 (CC);Investigating Directorate: Serious Economic Offencesand others v. Hyundai Motor Distributors (Pty) Ltd andothers: In Re Hyundai Motor Distributors (Pty) Ltd andothers v. Smit NO and others 2001 (1) SA 545 (CC) –referred to

3. Constitutional morality and Section 377 IPC

Whenever the constitutional courts come across situationof transgression or dereliction in the sphere of fundamental rights,which are also the basic human rights of section, howsoeversmall part of the society, then it is for the constitutional courts toensure, with the aid of judicial engagement and creativity, thatconstitutional morality prevails over social morality. In the garbof social morality, the members of the LGBT community mustnot be outlawed or given step-motherly treatment of malefactorby the society. If this happens or if such treatment to the LGBTcommunity is allowed to persist, then the constitutional courts,which are under the obligation to protect the fundamental rights,would be failing in the discharge of their duty. failure to do sowould reduce the citizenry rights to cipher. [Paras 121, 122][487-F-H]Government of NCT of Delhi v. Union of India andOthers 2018 (8) SCALE 72 – relied on

4. Perspective of human dignity

4.1 The fundamental idea of dignity is regarded as aninseparable facet of human personality. Dignity has been dulyrecognized as an important aspect of the right to life under Article21 of the Constitution. In the international sphere, the right tolive with dignity had been identified as human right way back in1948 with the introduction of the Universal Declaration of HumanRights. Dignity is that component of one’s being without which

Asustenance of his/her being to the fullest or completest isinconceivable. Dignity while expressive of choice is averse tocreation of any dent. When biological expression, be it anorientation or optional expression of choice, is faced withimpediment, albeit through any imposition of law, the individual’snatural and constitutional right is dented. Such situation urgesBthe conscience of the final constitutional arbiter to demolish theobstruction and remove the impediment so as to allow the fullblossoming of the natural and constitutional rights of individuals.This is the essence of dignity. [Paras 127, 132] [489-C-D; 490-F,G-H; 491-A]CManeka Gandhi v. Union of India and another (1978)1 SCC 248: [1978] 2 SCR 621 – relied on

Law v. Canada (Minister of Employment andImmigration) [1999] 1 S.C.R. 497 – referred to

4.2 It is not only the duty of the State and the Judiciary toDprotect basic right to dignity, but the collective at large also owesa responsibility to respect one another’s dignity, for showingrespect for the dignity of another is constitutional duty. It is anexpression of the component of constitutional fraternity. Theconcept of dignity gains importance in the present scenario, for aEchallenge has been raised to provision of law which encroachesupon this essential right of severely deprived section of oursociety. An individual’s choice to engage in certain acts withintheir private sphere has been restricted by criminalising the sameon account of the age old social perception. To harness such anessential decision, which defines the individualism of person,Fby tainting it with criminality would violate the individual’s rightto dignity by reducing it to mere letters without any spirit. [Paras134, 135] [491-F-H; 492-A]

P v. S Judgment of 30 April 1996; P v S and CornwallCounty Council Case C-13/94; Planned Parenthood ofGSoutheastern Pa. v. Casey 505 U.S. 833 (1992) –referred to

5. Homosexuality is something that is based on sense ofidentity. It is the reflection of sense of emotion and expressionof eagerness to establish intimacy. It is just as much ingrained,Hinherent and innate as heterosexuality. Sexual orientation, as

[DIPAK MISRA, CJI ]

concept, fundamentally implies pattern of sexual attraction. Itis as natural phenomenon as other natural biological phenomena.What the science of sexuality has led to is that an individual hasthe tendency to feel sexually attracted towards the same sex, forthe decision is one that is controlled by neurological and biologicalfactors. That is why it is his/her natural orientation which is innateand constitutes the core of his/her being and identity. That apart,on occasions, due to sense of mutuality of release of passion,two adults may agree to express themselves in different sexualbehaviour which may include both the genders. To this, one canattribute bisexual orientation which does not follow the rigiditybut allows room for flexibility. To compel person having certainsexual orientation to proselytize to another is like asking bodypart to perform function it was never designed to perform inthe first place. It is pure science, certain manner in which thebrain and genitals of an individual function and react. Whetherone’s sexual orientation is determined by genetic, hormonal,developmental, social and/or cultural influences (or combinationthereof), most people experience little or no sense of choice abouttheir sexual orientation. [Paras 143, 144] [494-G; 495-A-B, C-D]

K.S. Puttaswamy and another v. Union of India andothers (2017) 10 SCC 1 – followed

James Egan and John Norris Nesbit v. Her Majesty TheQueen in Right of Canada and another [1995] 2 SCR513 – referred to

6. Privacy and its concomitant aspects

6.1 Within the compartment of privacy, individual autonomyhas significant space. Autonomy is individualistic. It is expressiveof self-determination and such self-determination includes sexualorientation and declaration of sexual identity. Such an orientationor choice that reflects an individual’s autonomy is innate to him/her. It is an inalienable part of his/her identity. The said identityunder the constitutional scheme does not accept any interferenceas long as its expression is not against decency or morality. Andthe morality that is conceived of under the Constitution isconstitutional morality. Under the autonomy principle, theindividual has sovereignty over his/her body. He/she can

Asurrender his/her autonomy wilfully to another individual and theirintimacy in privacy is matter of their choice. Such concept ofidentity is not only sacred but is also in recognition of thequintessential facet of humanity in person’s nature. Theautonomy establishes identity and the said identity, in the ultimateeventuate, becomes part of dignity in an individual. [Para 149]B[497-C-E]

R. Rajagopal v. State of Tamil Nadu and others (1994)6 SCC 632 : [1994] 4 Suppl. SCR 353 – relied on

6.2 There can be no doubt that an individual also has aCright to union under Article 21 of the Constitution. As concept,union also means companionship in every sense of the word, beit physical, mental, sexual or emotional. The LGBT communityis seeking realisation of its basic right to companionship, so longas such companionship is consensual, free from the vice ofdeceit, force, coercion and does not result in violation of theDfundamental rights of others. [Para 155] [498-G; 499-A]Bowers, Attorney General of Georgia v. Hardwick etal. 478 U.S. 186 (1986); Paris Adult Theatre I v. Slaton413 U.S. 49 (1973); A.R. Coeriel and M.A.R. Aurik v.The Netherlands Communication No. 453/1991;EToonen v. Australia Communication No. 488/1992,U.C. Doc CCPR/C/50/D 488/ 1992, March 31, 1994;Dudgeon v. United Kingdom [1981] 4 EHRR 149 –referred to6.3 The observation made in Suresh Koushal that gays,Flesbians, bisexuals and transgenders constitute very minusculepart of the population is perverse due to the very reason thatsuch an approach would be violative of the equality principleenshrined under Article 14 of the Constitution. The mere factthat the percentage of population whose fundamental right toprivacy is being abridged by the existence of Section 377 in itsGpresent form is low does not impose limitation upon this Courtfrom protecting the fundamental rights of those who are so affectedby Section 377 IPC. The constitutional framers could have neverintended that the protection of fundamental rights was only forthe majority population. If such had been the intention, then allHprovisions in Part III of the Constitution would have contained

[DIPAK MISRA, CJI ]

qualifying words such as ‘majority persons’ or ‘majority citizens’.Instead, the provisions have employed the words ‘any person’and ‘any citizen’ making it manifest that the constitutional courtsare under an obligation to protect the fundamental rights of everysingle citizen without waiting for the catastrophic situation whenthe fundamental rights of the majority of citizens get violated. Asecond count on which the view in Suresh Koushal becomes highlyunsustainable is that the language of both Articles 32 and 226 ofthe Constitution is not reflective of such an intention. cursoryreading of both the Articles divulges that the right to move theSupreme Court and the High Courts under Articles 32 and 226respectively is not limited to situation when there is violationof the fundamental rights of large chunk of populace. [Paras169, 170, 172] [503-D-F; 504-C-D]

D.K. Basu v. State of W.B. (1997) 1 SCC 416 : [1996]

10 Suppl. SCR 284; Chiranjit Lal Chowdhury v. Unionof India [1950] 1 SCR 869 – relied on

7.1 The Doctrine of progressive realization of rights

invariably reminds about the living and dynamic nature of aConstitution. The rationale behind the doctrine of progressiverealization of rights is the dynamic and ever growing nature ofthe Constitution under which the rights have been conferred tothe citizenry. The constitutional courts have to recognize thatthe constitutional rights would become dead letter without theirdynamic, vibrant and pragmatic interpretation. Therefore, it isnecessary for the constitutional courts to inculcate in their judicialinterpretation and decision making sense of engagement and asense of constitutional morality so that they, with the aid of judicialcreativity, are able to fulfill their foremost constitutional obligation,that is, to protect the rights bestowed upon the citizens of ourcountry by the Constitution. The doctrine of progressiverealization of rights, as natural corollary, gives birth to thedoctrine of non-retrogression. As per this doctrine, there mustnot be any regression of rights. In progressive and an ever-improving society, there is no place for retreat. The society hasto march ahead. The doctrine of non-retrogression sets forth thatthe State should not take measures or steps that deliberatelylead to retrogression on the enjoyment of rights either under the

ABC

AConstitution or otherwise. [Paras 178, 183, 184, 188, 189] [505-D-E; 507-G-H; 508-A-B; 509-C]

McCulloch v. Maryland (1816) 17 US 316; Kazenbachv. Morgan (1966) 384 US 641 – referred to

7.2 The two doctrines lead to the irresistible conclusionBthat if the law enunciated in Suresh Koushal’s case is accepted, itwould definitely tantamount to retrograde step in the directionof the progressive interpretation of the Constitution and denialof progressive realization of rights. It is because Suresh Koushal’sview gets wrongly embedded with the minuscule facet andCassumes criminality on the bedrock being guided by sense ofsocial morality. It discusses about health which is no more phobiaand is further moved by the popular morality while totally ignoringthe concepts of privacy, individual choice and the orientation.Orientation, in certain senses, does get the neuro-impulse toexpress while seeing the other gender. That apart, swayed byDdata, Suresh Koushal fails to appreciate that the sustenance offundamental rights does not require majoritarian sanction. [Para190] [509-D-F]

Obergefell, et al. v. Hodges, Director, Ohio Departmentof Health, et al. 576 US (2015), Price Waterhouse v.EHopkins 490 U.S. 228 (1989); Kimberly Hively v. IvyTech Community College of Indiana 830 F.3d 698;Lawrence v. Texas 539 U.S. 558 (2003); Roberts v.United States Jaycees 468 U.S. 609 (1984); DelwinVriend and others v. Her Majesty the Queen in Right ofFAlberta and others [1998] 1 SCR 493; Euan Sutherlandv. United Kingdom 2001 ECHR 234; Ang Ladlad LGBTParty v. Commission of Elections G. R. No.190582,Supreme Court of Philippines (2010) – referred to

Black’s Law Dictionary, 2[nd] edn. – referred to

G8. Comparative analysis of Section 375 and Section 377 IPC

8.1 cursory reading of Section 375 IPC divulges that it isa gender specific provision for the protection of women as only aman can commit the offence of rape. The Section has been dividedinto two parts. The former part, comprising of Clauses (a) to (d),Hsimply describes what acts committed by man with woman

[DIPAK MISRA, CJI ]

would amount to rape provided that the said acts are committedin the circumstances falling under any of the seven descriptionsas stipulated by the latter part of the Section. It is in this way thatthe latter part of Section 375 IPC becomes important as it laysdown the circumstances, either of which must be present, for anact committed by man with woman to come within the sweepof the offence of rape. [Paras 206, 207] [517-B; 518-F-H]

8.2 Explanation 2 to Section 375 IPC gives the definition ofconsent for the purpose of Section 375 to the effect that consentmeans an unequivocal voluntary agreement by the woman throughwords, gestures or any form of verbal or non-verbalcommunication whereby she communicates her willingness toparticipate in any of the sexual acts described in the former partof Section 375 IPC. The element of absence of consent is firmlyingrained in all the descriptions contained in the latter part ofSection 375 IPC and the absence of willful and informed consentis sine qua non to designate the acts contained in the former partof Section 375 IPC as rape. [Paras 209, 210] [519-F-G, H; 520-A]

8.3 Section 377 IPC, unlike Section 375, is gender-neutralprovision as it uses the word ‘whoever’. Another expressionwhich has been employed in Section 377 is ‘against the order ofnature’. The phrase ‘against the order of nature’ has neither beendefined in Section 377 IPC nor in any other provision of the IPC.The foundation on which Section 377 IPC makes carnalintercourse an offence is the precept that such carnal intercourseis against the order of nature. [Paras 212, 213] [520-D, E-F]

8.4. With the passage of time and evolution of the society,procreation is not the only reason for which people choose tocome together, have live-in relationships, perform coitus or evenmarry. They do so for whole lot of reasons including emotionalcompanionship. It is the freedom of choice of two consentingadults to perform sex for procreation or otherwise and if theirchoice is that of the latter, it cannot be said to be against theorder of nature. Therefore, sex, if performed differently, as perthe choice of the consenting adults, does not per se make it againstthe order of nature. Section 377 criminalises even voluntary carnalintercourse not only between homosexuals but also between

ABC

Aheterosexuals. The major difference between the language ofSection 377 and Section 375 is that of the element of absenceconsent which has been elaborately incorporated in the sevendescriptions contained in the latter part of Section 375 IPC. It isthe absence of willful and informed consent embodied in the sevendescriptions to Section 375 which makes the offence of rapeBcriminal. On the other hand, Section 377 IPC contains no suchdescriptions/exceptions embodying the absence of willful andinformed consent and criminalises even voluntary carnalintercourse both between homosexuals as well as betweenheterosexuals. The legislature, in its wisdom, while enactingCSection 375 IPC in its amended form after the Criminal Law(Amendment) Act, 2013, has not employed the words “subjectto any other provision of the IPC”. The implication of the absenceof these words simply indicates that Section 375 IPC which doesnot criminalize consensual carnal intercourse between

heterosexuals is not subject to Section 377 IPC. [Paras 215, 216,D217, 218] [521-A, C-H]

9. Despite the Criminal Law (Amendment) Act, 2013coming into force, by virtue of which Section 375 was amended,whereby the words ‘sexual intercourse’ in Section 375 werereplaced by four elaborate clauses from (a) to (d) giving wideEdefinition to the offence of rape, Section 377 IPC still remains inthe statute book in the same form. Such an anomaly, if allowed topersist, may result in situation wherein heterosexual couplewho indulges in carnal intercourse with the willful and informedconsent of each other may be held liable for the offence of unnaturalFsex under Section 377 IPC, despite the fact that such an act wouldnot be rape within the definition as provided under Section 375IPC. Drawing an analogy, if consensual carnal intercourse betweena heterosexual couple does not amount to rape, it definitely shouldnot be labelled and designated as unnatural offence under Section

377 IPC. If any proclivity amongst the heterosexual populationGtowards consensual carnal intercourse has been allowed due tothe Criminal Law (Amendment) Act, 2013, such kind of proclivityamongst any two persons including LGBT community cannot betreated as untenable so long as it is consensual and it is confinedwithin their most private and intimate spaces. [Paras 220, 221]H[522-B-E]

10. The litmus test for survival of Section 377 IPC

10.1 When the liberty of even single person of the societyis smothered under some vague and archival stipulation that it isagainst the order of nature or under the perception that themajority population is peeved when such an individual exerciseshis/her liberty despite the fact that the exercise of such liberty iswithin the confines of his/her private space, then the signature oflife melts and living becomes bare subsistence and resultantly,the fundamental right of liberty of such an individual is abridged.[Para 230] [525-A-B]

Sunil Batra v. Delhi Administration and others [1979]1 SCR 392 – relied on

10.2 What Article 14 propounds is that ‘all like should betreated alike’. In other words, it implies equal treatment for allequals. Though the legislature is fully empowered to enact lawsapplicable to particular class, as in the case at hand in whichSection 377 applies to citizens who indulge in carnal intercourse,yet the classification, including the one made under Section 377IPC, has to satisfy the twin conditions to the effect that theclassification must be founded on an intelligible differentia andthe said differentia must have rational nexus with the objectsought to be achieved by the provision, that is, Section 377 IPC.A perusal of Section 377 IPC reveals that it classifies and penalizespersons who indulge in carnal intercourse, with the object toprotect women and children from being subjected to carnalintercourse. This classification does not have reasonable nexuswith the object sought to be achieved as the non-consensual actswhich have been criminalized by virtue of Section 377 IPC havealready been designated as penal offences under Section 375 IPCand under the POCSO Act. Per contra, the presence of this Sectionin its present form has resulted in distasteful and objectionablecollateral effect whereby even ‘consensual acts’, which areneither harmful to children nor women and are performed by acertain class of people (LGBTs) owning to some inherentcharacteristics defined by their identity and individuality, havebeen woefully targeted. This discrimination and unequal treatmentmeted out to the LGBT community as separate class of citizens

Ais unconstitutional for being violative of Article 14 of theConstitution. [Para 233, 237] [525-G; 526-A-B; 527-B-D]

M. Nagaraj and others v. Union of India and OthersAIR 2007 SC 71 : (2006) 8 SCC 212: [2006] 7 Suppl. SCR 336; E.P. Royappa v. State of Tamil Nadu andBanother (1974) 4 SCC 3: [1974] 2 SCR 348; BudhanChoudhry v. The State of Bihar AIR 1955 SC 191 :[1955] SCR 1045 – relied on

10.3 Section 377 fails to make distinction betweenconsensual and non-consensual sexual acts between competentCadults. Further, Section 377 IPC fails to take into account thatconsensual sexual acts between adults in private space are neitherharmful nor contagious to the society. On the contrary, Section377 trenches discordant note in respect of the liberty of personsbelonging to the LGBT community by subjecting them to societalpariah and dereliction. The Section also interferes with consensualDacts of competent adults in private space. Sexual acts cannot beviewed from the lens of social morality or that of traditionalprecepts wherein sexual acts were considered only for the purposeof procreation. This being the case, Section 377 IPC, so long asit criminalises consensual sexual acts of whatever nature betweenEcompetent adults, is manifestly arbitrary. The LGBT communitypossess the same human, fundamental and constitutional rightsas other citizens do since these rights inhere in individuals asnatural and human rights. The organisation of intimate relationsis matter of complete personal choice especially betweenconsenting adults. It is vital personal right falling within theFprivate protective sphere and realm of individual choice andautonomy. Such progressive proclivity is rooted in theconstitutional structure and is an inextricable part of humannature. [Paras 238, 239, 240] [527-H; 528-A-D, E-H]

Chintaman Rao v. State of Madhya Pradesh AIR 1951GSC 118 : [1950] SCR 759; S. Rangarajan v. P. JagjivanRam and Others (1989) 2 SCC 574 : [1989] 2 SCR204; Shreya Singhal v. Union of India (2015) 5 SCC 1: [2015] 5 SCR 963 – relied on

[DIPAK MISRA, CJI ]

11.1 Section 377 IPC takes within its fold private acts ofadults including the LGBT community which are not onlyconsensual but are also innocent, as such acts neither causedisturbance to the public order nor are they injurious to publicdecency or morality. The law is et domus sua cuique est tutissimumrefugium – man’s house is his castle. That apart, any display ofaffection amongst the members of the LGBT community towardstheir partners in the public so long as it does not amount toindecency or has the potentiality to disturb public order cannotbe bogged down by majority perception. Section 377 IPC amountsto unreasonable restriction as it makes carnal intercoursebetween consenting adults within their castle criminal offencewhich is manifestly not only overboard and vague but also has achilling effect on an individual’s freedom of choice. [Paras 245,246] [530-B, D]11.2 Section 377 IPC does not meet the criteria ofproportionality and is violative of the fundamental right of freedomof expression including the right to choose sexual partner.Section 377 IPC also assumes the characteristic ofunreasonableness, for it becomes weapon in the hands of themajority to seclude, exploit and harass the LGBT community. Itshrouds the lives of the LGBT community in criminality andconstant fear mars their joy of life. They constantly face socialprejudice, disdain and are subjected to the shame of being theirvery natural selves. Thus, an archaic law which is incompatiblewith constitutional values cannot be allowed to be preserved.The very existence of Section 377 IPC criminalising transgenderscasts great stigma on an already oppressed and discriminatedclass of people. This stigma, oppression and prejudice has to beeradicated and the transgenders have to progress from theirnarrow claustrophobic spaces of mere survival in hiding with theirisolation and fears to enjoying the richness of living out of theshadows with full realization of their potential and equalopportunities in all walks of life. [Paras 247, 249] [530-E-G; 531-A-B]

Shayara Bano v. Union of India and Others (2017) 9SCC 1: [2017] 3 SCR 630 – relied on

Suresh Kumar Koushal and another v. Naz Foundationand others (2014) 1 SCC 1 : [2013] 17 SCR 1019 –overruled

Naz Foundation v. Government of NCT of Delhi andothers (2009) 111 DRJ 1; Indra Sarma v. V.K.V. Sarma(2013) 15 SCC 755 : [2013] 14 SCR 1019; ShaktiVahini v. Union of India and others (2018) 7 SCC 192;Manoj Narula v. Union of India (2014) 9 SCC 1 :[2014] 9 SCR 965; Francis Coralie Mullin v.Administrator, Union Territory of Delhi and others(1981) 1 SCC 608 : [1981] 2 SCR 516; Common Cause(A Registered Society) v. Union of India and another(2018) 5 SCC 1; Anuj Garg and others v. HotelAssociation of India and others (2008) 3 SCC 1 : [2007]12 SCR 991; S. Khushboo v. Kanniammal and another(2010) 5 SCC 600 : [2010] 5 SCR 322; Kishore Samritev. State of U.P. and others (2013) 2 SCC 398 : [2012]9 SCR 733; Umesh Kumar v. State of Andhra Pradeshand another (2013) 10 SCC 591 : [2013] 14 SCR 213;Iqbal Singh Marwah and another v. MeenakshiMarwah and another (2005) 4 SCC 370 : [2005]2 SCR 708; K.A. Abbas v. Union of India and another(1970) 2 SCC 780 : [1971] 2 SCR 446; Rt. Rev. Msgr.Mark Netto v. State of Kerala and others (1979) 1 SCC23 : [1979] 1 SCR 609; Fazal Rab Choudhary v. Stateof Bihar (1982) 3 SCC 9; Jagmohan Singh v. State ofU.P. (1973) 1 SCC 20 : [1973] 2 SCR 541; State ofGujarat v. Mirzapur Moti Kureshi Kassab Jamat andothers (2005) 8 SCC 534 : [2005] 4 Suppl. SCR 582;Kesavananda Bharati v. Union of India (1973) 4 SCC225 : [1973] Suppl. SCR1; Sakshi v. Union of Indiaand others (2004) 5 SCC 518 : [2004] 2 Suppl.SCR 723; Union of India and another v. Deoki NandanAggarwal (1992) Supp. 1 SCC 323 : [1991] 3 SCR 873– referred to

Mosley v. News Group Newspapers Ltd. [2008] EWHC1777 (QB) – referred to

[DIPAK MISRA, CJI ]

Per R. F. Nariman, J.1.1 At one point of time, the thinkingin Victorian England and in America was that homosexuality wasa mental disorder. The definition of ‘mental illness’ in the MentalHealthcare Act, 2017 throws to the winds all earliermisconceptions of mental illness including the fact that same-sex couples who indulge in anal sex are persons with mentalillness. [Para 68] [577-E-F]

Lawrence v. Texas 539 U.S. 558 (2003); Obergefell etalv. Hodges, Director, Ohio Department of Health, et al.,576 US (2015) – referred to

1.2 Mental illness in our statute has to keep pace withinternational notions and accepted medical standards includingthe latest edition of the International Classification of Diseasesof the World Health Organization under Section 3(1) of the Act.Under Section 3(3), mental illness shall not be determined onthe basis of social status or membership of cultural group or forany other reason not directly relevant to the mental health of theperson. More importantly, mental illness shall not be determinedon the basis of non-conformity with moral, social, cultural, workor political values or religious beliefs prevailing in person’scommunity. It is thus clear that Parliament has unequivocallydeclared that the earlier stigma attached to same-sex couples,as persons who are regarded as mentally ill, has gone for good.The latin maxim cessant ratione legis, cessat ipsa lex, meaningwhen the reason for law ceases, the law itself ceases is rule oflaw. [Paras 73, 78] [583-C-D; 585-C-D]

H.H. Shri Swamiji of Shri Amar Mutt v. Commissioner,Hindu Religious and Charitable Endowments Dept(1979) 4 SCC 642 : [1980] 1 SCR 368; State of Punjabv. Devans Modern Breweries Ltd. (2004) 11 SCC 26: [2003] 5 Suppl. SCR 930 – relied on

Suresh Kumar Koushal and Anr. v. Naz Foundation andOrs. (2014) 1 SCC 1 : [2013] 17 SCR 116 – overruled

1.3 Section 377 was the product of the Victorian era, withits attendant puritanical moral values. Victorian morality mustgive way to constitutional morality. Constitutional morality is thesoul of the Constitution, which is to be found in the Preamble of

Athe Constitution, which declares its ideals and aspirations, and isalso to be found in Part III of the Constitution, particularly withrespect to those provisions which assure the dignity of theindividual. The rationale for Section 377, namely Victorianmorality, has long gone and there is no reason to continue with -as Justice Holmes said - law merely for the sake of continuingBwith the law when the rationale of such law has long sincedisappeared. Section 377, insofar as it applies to same-sexconsenting adults, demeans them by having them prosecutedinstead of understanding their sexual orientation and attemptingto correct centuries of the stigma associated with such persons.C[Paras 78, 79] [585-D-F, G-H]

K.S. Puttaswamy (Retd.) and Anr. v. Union of India andOrs. (2017) 10 SCC 1 – followed.

S. Khushboo v. Kanniammal and Anr. (2010) 5 SCC600 : [2010] 5 SCR 322 – relied onD

2. Section 377, in penalizing consensual gay sex, ismanifestly arbitrary. Given modern psychiatric studies andlegislation which recognizes that gay persons and transgendersare not persons suffering from mental disorder and cannottherefore be penalized, the Section must be held to be provisionEwhich is capricious and irrational. Also, roping in such personswith sentences going upto life imprisonment is clearly excessiveand disproportionate, as result of which, when applied to suchpersons, Articles 14 and 21 of the Constitution would clearly beviolated. The object sought to be achieved by the provision,Fnamely to enforce Victorian mores upon the citizenry of India,would be out of tune with the march of constitutional events thathas since taken place, rendering the said object itselfdiscriminatory when it seeks to single out same-sex couples andtransgenders for punishment. [Para 82] [587-C-E]

GShayara Bano v. Union of India (2017) 9 SCC 1;Shreya Singhal v. Union of India (2015) 5 SCC 1 :[2015] 5 SCR 963 – relied on

3. The International Commission of Jurists and theInternational Service for Human Rights on behalf of coalition ofhuman rights organizations had undertaken project to developH

[DIPAK MISRA, CJI ]

set of international legal principles on the application ofinternational law to human rights violations based on sexualorientation and gender identity to bring greater clarity andcoherence to States’ human rights obligations. distinguishedgroup of human rights experts drafted, developed, discussed andrefined these Principles. Following an experts’ meeting held atGadjah Mada University in Yogyakarta, Indonesia from 6[th] to 9[th]November, 2006, 29 distinguished experts from 25 countries withdiverse backgrounds and expertise relevant to issues of humanrights law unanimously adopted the Yogyakarta Principles on theApplication of International Human Rights Law in relation to SexualOrientation and Gender Identity. These principles give furthercontent to the fundamental rights contained in Articles 14, 15, 19and 21, and viewed in the light of these principles also, Section377 will have to be declared to be unconstitutional. [Paras 85,86, 88] [588-B-E; 598-F-F-G]

4.1 The view of Suresh Kumar Koushal is not correct.Suresh Kumar Koushal’s judgment first begins with thepresumption of constitutionality attaching to pre-constitutionallaws, such as the Indian Penal Code. The judgment goes on tostate that pre-constitutional laws, which have been adopted byParliament and used with or without amendment, beingmanifestations of the will of the people of India through Parliament,are presumed to be constitutional. [Para 89] [595-G-H; 596-A]

4.2 Article 372 of the Constitution of India continues lawsin force in the territory of India immediately before thecommencement of the Constitution. The Indian Penal Code is alaw in force in the territory of India immediately before thecommencement of this Constitution. Under Article 372(2), thePresident may, by order, make such adaptations and modificationsof an existing law as may be necessary or expedient to bringsuch law in accord with the provisions of the Constitution. Thefact that the President has not made any adaptation or modificationas mentioned in Article 372(2) does not take the matter verymuch further. The presumption of constitutionality of statute ispremised on the fact that Parliament understands the needs ofthe people, and that, as per the separation of powers doctrine,Parliament is aware of its limitations in enacting laws – it can only

ABC

Aenact laws which do not fall within List II of Schedule VII of theConstitution of India, and cannot transgress the fundamentalrights of the citizens and other constitutional provisions in doingso. Parliament is, therefore, deemed to be aware of the aforesaidconstitutional limitations. Where, however, pre-constitution lawis made by either foreign legislature or body, none of theseBparameters obtain. It is, therefore, clear that no such presumptionattaches to pre-constitutional statute like the Indian Penal Code.[Para 90] [596-B-E]

New Delhi Municipal Council v. State of Punjab andOrs. (1997) 7 SCC 339 : [1996] 10 Suppl. SCR 472 –Cdisapproved

4.3 In Suresh Kumar Koushal, the Court held that the factthat the legislature has chosen not to amend the law, despite the172[nd] Law Commission Report specifically recommendingdeletion of Section 377, may indicate that Parliament has notDthought it proper to delete the said provision, is another reasonfor not invalidating Section 377. This view is not accepted whenthe Union of India admittedly did not challenge the Delhi HighCourt judgment striking down the provision in part. Secondly,the fact that Parliament may or may not have chosen to follow aELaw Commission Report does not guide the Court’sunderstanding of its character, scope, ambit and import as wasstated in Suresh Kumar Koushal. It is neutral fact which neednot be taken into account at all. All that the Court has to see iswhether constitutional provisions have been transgressed and ifso, as natural corollary, the death knell of the challengedFprovision must follow. [Para 92] [597-D-F]

5.1 After 2013, when Section 375 was amended so as toinclude anal and certain other kinds of sexual intercourse betweena man and woman, which would not be criminalized as rape if itwas between consenting adults, it is clear that if Section 377Gcontinues to penalize such sexual intercourse, an anomalousposition would result. man indulging in such sexual intercoursewould not be liable to be prosecuted for rape but would be liableto be prosecuted under Section 377. Further, woman who could,at no point of time, have been prosecuted for rape would, despiteHher consent, be prosecuted for indulging in anal or such other

[DIPAK MISRA, CJI ]

sexual intercourse with man in private under Section 377. Thiswould render Section 377, as applied to such consenting adults,as manifestly arbitrary as it would be wholly excessive anddisproportionate to prosecute such persons under Section 377when the legislature has amended one portion of the law in 2013,making it clear that consensual sex, as described in the amendedprovision, between two consenting adults, one man and one awoman, would not be liable for prosecution. If, by having regardto what has been said above, Section 377 has to be read down asnot applying to anal and such other sex by male-female couple,then the Section will continue to apply only to homosexual sex. Ifthis be the case, the Section will offend Article 14 as it willdiscriminate between heterosexual and homosexual adults whichis distinction which has no rational relation to the object soughtto be achieved by the Section - namely, the criminalization of allcarnal sex between homosexual and/or heterosexual adults asbeing against the order of nature. Viewed either way, the Sectionfalls foul of Article 14. [Para 94] [597-G-H; 598-A-D]

5.2 The fact that only minuscule fraction of the country’spopulation constitutes lesbians and gays or transgenders, andthat in the last 150 years less than 200 persons have beenprosecuted for committing the offence under Section 377, isneither here nor there. When it is found that privacy interestscome in and the State has no compelling reason to continue anexisting law which penalizes same-sex couples who cause no harmto others, on an application of the recent judgments delivered bythis Court after Suresh Kumar Koushal, it is clear that Articles14, 15, 19 and 21 have all been transgressed without anylegitimate state rationale to uphold such provision. [Para 95] [598-E-F]

6. Persons who are homosexual have fundamental rightto live with dignity, which, in the larger framework of the Preambleof India, will assure the cardinal constitutional value of fraternity.Such groups are entitled to the protection of equal laws, and areentitled to be treated in society as human beings without anystigma being attached to any of them. Section 377 insofar as itcriminalises homosexual sex and transgender sex betweenconsenting adults is unconstitutional. The Union of India shall

ABCDE

Atake all measures to ensure that this judgment is given widepublicity through the public media, which includes television,radio, print and online media at regular intervals, and initiateprograms to reduce and finally eliminate the stigma associatedwith such persons. Above all, all government officials, includingand in particular police officials, and other officers of the Union ofBIndia and the States, be given periodic sensitization and awarenesstraining of the plight of such persons. [Paras 97, 98] [599-A-D]

Nandini Sundar v. State of Chhattisgarh, (2011) 7 SCC547 : [2011] 8 SCR 1028; Subramaniam Swamy v.Union of India (2016) 7 SCC 221 : [2016] 3 SCR 865;CNational Legal Services Authority v. Union of India(2014) 5 SCC 438; Anuj Garg and Ors. v. HotelAssociation of India and Ors. (2008) 3 SCC 1 : [2007]12 SCR 991; Common Cause v. Union of India (2018)5 SCC 1; Shafin Jahan v. Asokan K.M. 2018 SCCDOnline 343; Shakti Vahini v. Union of India 2018 SCCOnline SC 275 – relied on.

Naz Foundation v. Government of NCT of Delhi 111DRJ 1 (2009) – referred to

Bowers v. Hardwick 92 L. Ed. 2D 140 (1986); Stanleyv. Georgia, 22 L. Ed. 2D 542 (1969); Wisconsin v. Yoder,32 L. Ed. 2D 15 (1972); Lawrence v. Texas, 539 U.S.558 (2003); Planned Parenthood of Southeaster Pa. v.Casey 505 U.S. 833 (1992); Dudgeon v. UnitedKingdom, 45 Eur. Ct. H. R. (1981); Romer v. Evans517 U.S. 620 (1996); Modinos v. Cyprus 16 EHRR485 (1993); El-Al Israel Airlines Ltd. v. JonathanDanielwitz H.C.J. 721/94; Jason Jones v. AttorneyGeneral of Trinidad and Tobago Claim No. CV 2017-00720; Dhirendra Nadan v. State Case No. HAA0085of 2005; The National Coalition for Gay and LesbianEquality v. The Minister of Home Affairs Case CCT10/99; Toonen v. Australia Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994);Obergefell et al. v. Hodges, Director, Ohio Departmentof Health, et al., 576 US (2015) – referred to

[DIPAK MISRA, CJI ]

Per Dr. D.Y. Chandrachud, J. 1. When the constitutionalityof law is challenged on the ground that it violates the guaranteesin Part III of the Constitution, what is determinative is its effecton the infringement of fundamental rights. This affords theguaranteed freedoms their true potential against claim by thestate that the infringement of the right was not the object of theprovision. It is not the object of the law which impairs the rightsof the citizens. Nor is the form of the action taken determinativeof the protection that can be claimed. It is the effect of the lawupon the fundamental right which calls the courts to step in andremedy the violation. The individual is aggrieved because thelaw hurts. The hurt to the individual is measured by the violationof protected right. [Para 34] [625-F-G; 626-A-B]

National Legal Services Authority v. Union of India(2014) 5 SCC 438 – relied on

Air India v. Nergesh Meerza (1981) 4 SCC 335 : [1982]1 SCR 438 – disapproved

Sri Sri Mahadev Jiew v. Dr. B. B. Sen AIR (1951) Cal.563; Air India v. Nergesh Meerza (1981) 4 SCC 335 :[1982] 1 SCR 438; Anuj Garg v. Hotel Association ofIndia (2008) 3 SCC 1 : [2007] 12 SCR 991; TheNational Coalition for Gay and Lesbian Equality v. TheMinister of Justice 1999 (1) SA 6 (CC); Re. the KeralaEducation Bill AIR 1958 SC 956 : [1959] SCR 995;Sakal Papers v. Union of India, AIR 1962 SC 305 :[1962] SCR 842; R.C. Cooper v. Union of India (1970)1 SCC 248 : [1970] 3 SCR 530; Bennett Coleman v.Union of India AIR (1972) 2 SCC 788 : [1973] 2 SCR757; Maneka Gandhi v. Union of India (1978) 1 SCC248 : [1978] 2 SCR 621; (Meharban) NowshirwanIrani v. Emperor AIR 1934 Sind. 206; P Minwalla v.EmperorAIR 1935 Sind. 78; Ratan Mia v. State of Assam(1988) Cr.L.J. 980; P Royappa v. State of Tamil Nadu(1974) 4 SCC 3 : [1974] 2 SCR 348; Shayara Bano v.Union of India (2017) 9 SCC 1; Khanu v. Emperor AIR(1925) Sind. 286 – referred to

Griggs v Duke Power Co. 401 U.S. 424 (1971); TheNational Coalition for Gay and Lesbian Equality v. TheMinister of Justice, 1999 (1) SA 6 (CC), Sachs J.,concurring – referred to

Lyrics from Leonard Cohen’s song “Democract” (1992);Same-Sex Love in India : Literary Hisotyr (Ruth Vanitaand Saleem Kidwai, eds.) Penguin India (2008) forwritings spanning over more than 2,000 years ofIndian literature which emonstrate that same-sex lovehas flourised, evolved and been embraced in variousforms since ancient times; Law like Love : QueerPerspectives on Law (Arvind Narrain and Alok Gupta,eds.), Yoda Press (2011); K. N. Chandrasekharan Pillaiand Shabistan Aquil, “Historical Introduction to theIndian Penal Code”, in Essays on the Indian Penal Code,New Delhi, Indian Law Institute (2005); Siyuan Chen,“Codification, Macaulay and the Indian Penal Code[Book Review], Singapore Journal of Legal Studies,National University of Singapore, Faculty of Law(2011), at pages 581-584; Douglas E. Sanders, “377 andthe Unnatural Afterlife of British Colonialism in Asia”,Asian Journal of Comparative Law, Vol. 4 (2009), at page11 (“Douglas”); David Skuy, “Macaulay and the IndianPenal Code of 1862 : The Myth of the InherentSuperiority and Modernity of the English LegalSystem Compared to India’s Legal System in theNineteenth Century”, Modern Asian Studies, Vol. 32(1998), at pages 513-557; Barry Wright, “Macaulay’sIndian Penal Code: Historical Context andOriginating Principles”, Carleton University (2011);Michael Kirby, “The Sodomy Offence: England’s LeastLovely Law Export?” Journal of Commonwealth CriminalLaw, Inaugural Issue (2011); Jessica Cecil, “TheDestruction of Sodom and Gomorrah”, BritishBroadcasting Company, 11 February 2017; KSNMurthy’s Criminal Law: Indian Penal Code (KVS Sarmaed), Lexis Nexis (2016) England; Philo, translated byF.H. Colson and G.H. Whitaker, 10 Volumes, (Cambridge: Harvard University Press, 1929-1962); David F.

[DIPAK MISRA, CJI ]

Greenberg and Marcia H. Bystryn, “Christian Intoleranceof Homosexuality”, American Journal of Sociology,Vol. 88 (1982), at pages 515-548; Human Rights Watch.This Alien Legacy : The Origins of “Sodomy” Laws inBritish Colonialism (2008); H. Montgomery Hyde, JohnO’Connor, and Merlin Holland, The Trials of Oscar Wilde(2014), at page 201; Report of the DepartmentalCommittee on Homosexual Offences and Prostitution(1957) (“Wolfenden Report”); Sexual Offences(Amendment) Act 2000, Parliament of the UnitedKingdom; Enze Han, Joseph O’Mahoney, “BritishColonialism and the Criminalization of Homosexuality:Queens, Crime and Empire”, Routledge (2018); NangYin Kham, “An Introduction to the Law and JudicialSystem of Myanmar”, Centre for Asia Legal StudiesFaculty of Law, National University of Singapore, WorkingPaper 14/02, (2014); Arvind Narrain, “‘That DespicableSpecimen of Humanity’: Policing of Homosexualityin India”, in Challenging the Rule(s) of Law: Colonialism,Criminology and Human Rights in India (KalpanaKannabiran and Ranbir Singh eds.), Sage (2008); ArvindNarrain, “A New Language of Morality: From the Trialof Nowshirwan to the Judgement in Naz Foundation”;The Indian Journal of Constitutional Law, Vol. 4 (2010);Sex, Morality and the Law, (Lori Gruen and GeorgePaichas eds.) Routledge (1996); Andrew Davis,“The Framing of Sex : Evaluating Judicial Discourseon the ‘Unnatural Offences’”, Alternative Law Journal,Vol. 5 (2006); Alok Gupta, “Section 377 and the Dignityof Indian Homosexuals” The Economic and PoliticalWeekly, Vol. 41 (2006); John Sebastian, “The oppositeof unnatural intercourse : understanding Section 377through Section 375; Indian Law Review, Vol. 1 (2018);Emile Durkheim, The Division of Labour in Society,Macmillan (1984); Nivedita Menon, “How Natural isNormal? Feminism and CompulsoryHeterosexuality”, In Because I have Voice, QueerPolitics in India, (Narrain and Bhan eds.) Yoda Press(2005) – referred to

A2. discrimination will not survive constitutional scrutiny

when it is grounded in and perpetuates stereotypes about classconstituted by the grounds prohibited in Article 15(1). If anyground of discrimination, whether direct or indirect is foundedon stereotypical understanding of the role of the sex, it wouldnot be distinguishable from the discrimination which is prohibitedBby Article 15 on the grounds only of sex. provision challengedas being ultra vires the prohibition of discrimination on thegrounds only of sex under Article 15(1) is to be assessed not bythe objects of the state in enacting it, but by the effect that theprovision has on affected individuals and on their fundamentalCrights. [Para 41] [631-B, E]

K S Puttaswamy v. Union of India (2017) 10 SCC 1 –followed.

Sanwesh Pokkuluri v. UOI Writ Petition (Criminal) No.121 of 2018; Navtej Johar v. Union of India WritDPetition (Criminal) No. 76 of 2016 – referred to

Bilka-Kaufhaus GmbH v. Karin Weber von Hartz (1986)ECR 1607; Andrews v. Law Society of British Columbia(1989) 1 SCR 143; City Council of Pretoria v. Walker(1998) 3 BCLR – referred to

Elvia R. Arriola, “Gendered Inequality : Lesbians, Gays,and Feminist Legal Theory”, Berkeley Women’s LawJournal, Vol. 9 (1994), at pages 103-143; Zachary A.Kramer, “The Ultimate Gender Stereotype : EqualizingGender-Conforming and Gender-NonconformingHomosexuals under Title VII”, University of Illinois LawReview (2004), at page 490; Bennett Capers, “Note,Sexual Orientation and Title VII”, Columbia LawReview (1991), at pages 1159, 1160, 1163; AndrewKoppelman, “The Miscegenation Analogy: SodomyLaw as Sex Discrimination”, Yale Law Journal, Vol.98 (1988), at page 147; Andrew Koppelman, “WhyDiscrimination against Lesbians and Gay Men is SexDiscrimination”, New York University Law Review, Vol.69 (1994); Suzanne Pharr, Homophobia: weapon ofSexism, Chardon Press (1988), at page 18; Tarunabh

[DIPAK MISRA, CJI ]

Khaitan, “Inclusive Pluralism or Majoritarian Nationalism:Article 15, Section 377 and Who We Really Are”,Indian Constitutional Law and Philosophy (2018);International Commission of Jurists, “UnnaturalOffences” Obstacles to Justice in India Based onSexual Orientation and Gender Identity (2017) –referred to

3. By criminalizing consensual sexual conduct between twohomosexual adults, Section 377 has become the basis not just ofprosecutions but of the persecution of members of the affectedcommunity. Section 377 perpetuates notions of morality whichprohibit certain relationships as being against the ‘order of nature.’A criminal provision has sanctioned discrimination grounded onstereotypes imposed on an entire class of persons on groundsprohibited by Article 15(1). This constitutes discrimination onthe grounds only of sex and violates the guarantee of non-discrimination in Article 15(1). [Para 52] [642-A-B]

4.1 The application of Section 377 causes deprivation ofthe fundamental right to privacy which inheres in every citizen.The exercise of the natural and inalienable right to privacy entailsallowing an individual the right to self-determined sexualorientation. Thus, it is imperative to widen the scope of the rightto privacy to incorporate right to ‘sexual privacy’ to protect therights of sexual minorities. Emanating from the inalienable rightto privacy, the right to sexual privacy must be granted the sanctityof natural right, and be protected under the Constitution asfundamental to liberty and as soulmate of dignity. In order toensure to sexual and gender minorities the fulfilment of theirfundamental rights, it is imperative to ‘confront the closet’ and,

as necessary consequence, confront ‘compulsoryheterosexuality.’ [Paras 58, 59, 60] [647-A, D, E-F]

Eve Kosofsky Sedgwick, Epistemology of the Closet,University of California Press (1990); David A.J.Richards, “Sexual Autonomy and the ConstitutionalRight to Privacy: Case Study in Human Rights andthe Unwritten Constitution:, Hastings Law Journal,Vol. 30, at page 786 – referred to

416SUPREME COURT REPORTS

A4.2 Privacy creates “tiers of ‘reputable’ and ‘disreputable’sex”, only granting protection to acts behind closed doors. Thus,it is imperative that the protection granted for consensual acts inprivate must also be available in situations where sexualminorities are vulnerable in public spaces on account of theirsexuality and appearance. If one accepts the proposition thatBpublic places are heteronormative, and same-sex sexual actspartially closeted, relegating ‘homosexual‘ acts into the privatesphere, would in effect reiterate the “ambient heterosexism ofthe public space.” It must be acknowledged that membersbelonging to sexual minorities are often subjected to harassmentCin public spaces. The right to sexual privacy, founded on the rightto autonomy of free individual, must capture the right of personsof the community to navigate public places on their own terms,free from state interference. [Para 62] [648-C-E]

5. Sexual privacy and autonomy- deconstructing theDheteronormative framework

An individual’s sexuality cannot be put into boxes orcompartmentalized; it should rather be viewed as fluid, grantingthe individual the freedom to ascertain her own desires andproclivities. The self-determination of sexual orientation is anEexercise of autonomy. Human sexuality cannot be reduced to abinary formulation. Nor can it be defined narrowly in terms of itsfunction as means to procreation. To confine it to closedcategories would result in denuding human liberty of its fullcontent as constitutional right. The Constitution protects thefluidities of sexual experience. It leaves it to consenting adultsFto find fulfilment in their relationships, in diversity of cultures,among plural ways of life and in infinite shades of love and longing.[Para 66] [648-E-F; 652-C, E-F]

Common Cause (A Registered Society) v. Union of India(2018) 5 SCC 1 – followed.GSantosh Singh v Union of India (2016) 8 SCC 253 :[2016] 5 SCR 761 – relied on.

M. Mahler, “The Psychological Birth of the Humaninfant. Symbiosis And Individuation” (1975); L.Kaplan, Oneness and Separateness: From infant to

[DIPAK MISRA, CJI ]

Individual (1978); Thomas M. Jr. Scanlon, Rawls’ Theoryof Justice, University of Pennsylvania Law Review(1973) at 1022; David A. J. Richards, “Unnatural Actsand the Constitutional Right to Privacy : MoralTheory”, Fordham Law Review, Vol. 45 (1977), at pages1130-1311 – referred to

6. right to intimacy- celebration of sexual agency

6.1 By criminalising consensual acts between individualswho wish to exercise their constitutionally-protected right tosexual orientation, the State is denying its citizens the right tointimacy. The right to intimacy emanates from an individual’sprerogative to engage in sexual relations on their own terms. Itis an exercise of the individual’s sexual agency, and includes theindividual’s right to the choice of partner as well as the freedomto decide on the nature of the relationship that the individualwishes to pursue. [Para 67] [653-A-B]

Shakti Vahini v. Union of India (2018) SCC OnLineSC 275; Shafin Jahan v. Asokan (2018) SCC OnLineSC 343 – referred to.

Dipika Jain and Kimberly Rhoten,“TheHeteronormative State and the Right to Health inIndia”, NUJS Law Review, Vol. 6 (2013) – referred to

6.2 Consensual sexual relationships between adults, basedon the human propensity to experience desire must be treatedwith respect. In addition to respect for relationships based onconsent, it is important to foster society where individuals findthe ability for unhindered expression of love that they experiencetowards their partner. Social institutions must be arranged in sucha manner that individuals have the freedom to enter intorelationships untrammelled by binary of sex and gender andreceive the requisite institutional recognition to perfect theirrelationships. While ostensibly penalising ‘acts’, it impacts uponthe identity of the LGBT community and denies them the benefitsof full and equal citizenship. Section 377 is based on stereotypeabout sex. Our Constitution which protects sexual orientationmust outlaw any law which lends the authority of the state toobstructing its fulfilment. [Para 67] [654-D-F; 655-A-B]

[2018] 7 S.C.R.

A7. Section 377 and the right to health

7.1 The right to health is understood to be indispensable toa life of dignity and well-being, and includes, for instance, theright to emergency medical care and the right to the maintenanceand improvement of public health. In addition to the constitutionalBrecognition granted to the right to health, the right to health isalso recognised in international treaties, covenants, andagreements which India has ratified, including the InternationalCovenant on Economic, Social and Cultural Rights, 1966(“ICESCR”) and the Universal Declaration of Human Rights,1948 (“UDHR”). Article 12 of the ICESCR recognizes the rightCof all persons to the enjoyment of the highest attainable standardof physical and mental health. Article 12.2 requires States Partiesto take specific steps to improve the health of their citizens,including creating conditions to ensure equal and timely accessto medical services. In its General Comment No. 14, the UNDEconomic and Social Council stated that States must takemeasures to respect, protect and fulfil the health of all persons.States are obliged to ensure the availability and accessibility ofhealth-related information, education, facilities, goods andservices, without discrimination, especially for vulnerable andmarginalized populations. Pursuant to General Comment No. 14,EIndia is required to provide marginalized populations, includingmembers of the LGBTIQ community, goods and services thatare available (in sufficient quantity), accessible (physically,geographically, economically and in non-discriminatory manner),acceptable (respectful of culture and medical ethics) and of qualityF(scientifically and medically appropriate and of good quality).[Paras 68, 69] [655-D-F; 658-F-G; 659-A-E]

C.E.S.C. Limited v. Subhash Chandra Bose, (1992) 1SCC 441; Consumer Education and Research Centrev. UOI, (1995) 3 SCC 42; Paschim Banga KhetGMazdoor Samity v. State of West Bengal, (1996) 4 SCC37; Society for Unaided Private Schools of Rajasthanv. Union of India, (2012) 6 SCC 1; Devika Biswas v.Union of India & Ors., (2016) 10 SCC 726; CommonCause v. Union of India & Ors., (2018) 5 SCC 1 –relied on.H

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Bandhua Mukti Morcha v. Union of India (1984) 3 SCC161 : [1984] 2 SCR 67; Consumer Education &Research Centre v. Union of India (1995) 3 SCC 42 :[1995] 1 SCR 626; C.E.S.C. Limited v. SubhashChandra Bose (1992) 1 SCC 441 : [1991] 2 Suppl.SCR 267 ; Kirloskar Brothers Ltd. v. Employees’ StateInsurance Corporation (1996) 2 SCC 682 : [1996]1 SCR 884; State of Punjab v. Ram Lubhaya Bagga(1998) 4 SCC 117 : [1998] 1 SCR 1120; Smt M Vijayav. The Chairman and Managing Director SingareniCollieries Co. Ltd., (2001) 5 ALD 522; Devika Biswasv. Union of India (2016) 10 SCC 726 – referred to.7.2 Sexuality is natural and precious aspect of life, anessential and fundamental part of our humanity. Sexual rights areentitlements related to sexuality and emanate from the rights tofreedom, equality, privacy, autonomy, and dignity of all people.For people to attain the highest standard of health, they mustalso have the right to exercise choice in their sexual lives andfeel safe in expressing their sexual identity. [Para 71] [659-F-G;660-A]

7.3 The term ‘sexual health’ was first defined in 1975WHO Technical Report series as “the integration of the somatic,emotional, intellectual and social aspects of sexual being, in waysthat are positively enriching and that enhance personality,communication and love. The operation of Section 377 deniesconsenting adults the full realization of their right to health, aswell as their sexual rights. It forces consensual sex between adultsinto realm of fear and shame, as persons who engage in analand oral intercourse risk criminal sanctions if they seek healthadvice. This lowers the standard of health enjoyed by them andparticularly by members of sexual and gender minorities, inrelation to the rest of society. [Paras 73, 76] [660-E; 662-E-F]

UN Economic and Social Council (ECOSOC), Committeeon Economic, Social and Cultural Rights, GeneralComment No. 14: The Right to the Highest AttainableStandard of Health, UN Doc. E/C.12/2004 (2000);Definition contained in the Preamble to the WHOConstitution (1948); Sexual Rights, International

APlanned Parenthood Federation (2008); AlexandraMuller, “Health for All? Sexual Orientation, GenderIdentity, and the Implementation of the Right to Accessto Health Care in South Africa”, Health and HumanRights (2016) at pages 195–208; Institute of Medicine,“The Health of Lesbian, Gay, Bisexual, and TransgenderBPeople : Building Foundation for BetterUnderstanding”, National Academies Press (2011); WorldHealth Organization, “Gender and human rights :Defining sexual health”, (2002); World HealthOrganisation, “Sexual Health, Human Rights and theCLaw” (2015); International Women’s Health Coalition,“Sexual Rights are Human Rights” (2014) – referred to

7.4 The right to health is not simply the right not to beunwell, but rather the right to be well. It encompasses not justthe absence of disease or infirmity, but “complete physical, mentalDand social well being”, and includes both freedoms such as theright to control one’s health and body and to be free frominterference (for instance, from non-consensual medicaltreatment and experimentation), and entitlements such as theright to system of healthcare that gives everyone an equalopportunity to enjoy the highest attainable level of health. TheEjurisprudence of this Court, in recognizing the right to healthand access to medical care, demonstrates the crucial distinctionbetween negative and positive obligations. Article 21 does notimpose upon the State only negative obligations not to act in sucha way as to interfere with the right to health. This Court also hasFthe power to impose positive obligations upon the State to takemeasures to provide adequate resources or access to treatmentfacilities to secure effective enjoyment of the right to health. Whilethe enumeration of the right to equal healthcare is crucial, anindividual’s sexual health is also equally significant to holisticwell-being. healthy sex life is integral to an individual’s physicalGand mental health, regardless of whom an individual is attractedto. Criminalising certain sexual acts, thereby shunning them fromthe mainstream discourse, would invariably lead to situations ofunsafe sex, coercion, and lack of sound medical advice andsexual education, if any at all. [Paras 77, 78, 81] [662-G; 663-A-HB; 664-F-G]

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7.5 Laws that criminalize same-sex intercourse create socialbarriers to accessing healthcare, and curb the effective preventionand treatment of HIV/AIDS. Criminal laws are the strongestexpression of the State’s power to punish certain acts andbehaviour, and it is therefore incumbent upon the State to ensurefull protection for all persons, including the specific needs ofsexual minorities. The equal protection of law mandates the stateto fulfill this constitutional obligation. Indeed, the state is dutybound to revisit its laws and executive decisions to ensure thatthey do not deny equality before the law and the equal protectionof laws. That the law must not discriminate is one aspect ofequality. But there is more. The law must take affirmative stepsto achieve equal protection of law to all its citizens, irrespectiveof sexual orientation. [Para 83] [665-C-E]

Study Guide: Sexual Orientation and Human Rights,University of Minnesota Human RIghts Library(2003); Center for Health and Human Rights and OpenSociety Foundations. “Health and Human RightsResource Guide(2013)”. UNAIDS, “UNAIDS Calls onIndia and All Countries to Repeal Laws ThatCriminalize Adult Consensual Same Sex SexualConduct”(2013) – referred to

8. Section 377 and HIV prevention efforts

Section 377 has significant detrimental impact on the rightto health of those persons who are susceptible to contractingHIV – men who have sex with men (“MSM”) and transgenderpersons. MSM and transgender persons may not approach Statehealth care providers for fear of being prosecuted for engagingin criminalized intercourse. Studies show that it is the stigmaattached to these individuals that contributes to increased sexualrisk behaviour and/or decreased use of HIV prevention services.To safeguard the health of persons who are at the greatest riskof HIV infection, it is imperative that access is granted to effectiveHIV prevention and treatment services and commodities suchas clean needles, syringes, condoms and lubricants. needle ora condom can only be considered concrete representation ofthe entitlements of vulnerable groups: the fundamental humanrights of dignity, autonomy and freedom from ill-treatment, along

ABC

Awith the right to the highest attainable standard of physical andmental health, without regard to sexuality or legal status. This isthe mandate of the Directive Principles contained in Part IV ofthe Constitution. In 2017, Parliament enacted the HIV(Prevention and Control) Act, to provide for the prevention andcontrol of the spread of HIV/AIDS and for the protection of theBhuman rights of persons affected. Parliament recognized theimportance of prevention interventions for vulnerable groupsincluding MSMs. In order to promote sexual health and reduceHIV transmission among LGBT individuals, it is imperative thatthe availability, effectiveness, and quality of health services toCthe LGBT community be significantly improved. [Paras 84, 87,91, 92] [666-A-B; 667-E-F; 668-E-F; 669-A-B, F-G]

Eszter Kismodi, Jane Cottingham, Sofia Gruskin & AliceM. Miller, “Advancing sexual health through humanrights : The role of the law”, Taylor and Francis,D(2015), at pages 252-267; Regional Office for South-East Asia, World Health Organization, “HIV/AIDSamong men who have sex with men and transgenderpopulations in South-East Asia : the current situationand national responses” (2010); United NationsDevelopment Programme, “Global Commission on HIVEand the Law : Risks, Rights and Health” (2012), atpages 11-12; Communication No. 488/1992, U.N. DocCCPR/C/50/D/488/1992 (1994), decision dated 31/03/1994; Beena Thomas, Matthew J. Mimiaga, SenthilKumar, Soumya Swaminathan, Steven A. Safren, andFKenneth H. Mayer, “HIV in Indian MSM : Reasonsfor concentrated epidemic & strategies forprevention”, Indian Journal Medical Research (2011),at pages 920–929; UNAIDS, “Judging the Epidemic: Judicial Handbook on HIV, Human Rights andthe Law” (2013) at page 165 – referred to

9. Mental health

9.1 The treatment of homosexuality as disorder hasserious consequences on the mental health and well-being ofLGBT persons. The mental health of citizens “growing up in aHculture that devalues and silences same-sex desire” is severely

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impacted. Medical and scientific authority has now establishedthat consensual same sex conduct is not against the order ofnature and that homosexuality is natural and normal variant ofsexuality. Parliament has provided legislative acknowledgmentof this global consensus through the enactment of the MentalHealthcare Act, 2017. Section 3 of the Act mandates that mentalillness is to be determined in accordance with ‘nationally’ or‘internationally’ accepted medical standards. The InternationalClassification of Diseases (ICD-10) by the World HealthOrganisation is listed as an internationally accepted medicalstandard and does not consider non-peno-vaginal sex betweenconsenting adults either mental disorder or an illness. The Actthrough Section 18(2) and Section 21 provides for protectionagainst discrimination on the grounds of sexual orientation. Therepercussions of prejudice, stigma and discrimination continueto impact the psychological well-being of individuals impacted bySection 377. [Paras 93, 95] [670-C; 671-C-D, E]

9.2 Counselling practices will have to focus on providingsupport to homosexual clients to become comfortable with whothey are and get on with their lives, rather than motivating themfor change. Instead of trying to cure something that isn’t even adisease or illness, the counsellors have to adopt moreprogressive view that reflects the changed medical position andchanging societal values. There is not only need for specialskills of counsellors but also heightened sensitivity andunderstanding of LGBT lives. The medical practice must sharethe responsibility to help individuals, families, workplaces andeducational and other institutions to understand sexualitycompletely in order to facilitate the creation of society free fromdiscrimination where LGBT individuals like all other citizens aretreated with equal standards of respect and value for human rights.[Para 96] [671-F; 672-A-C]

10. Judicial review

Both Parliament and the State Legislatures can enact lawsproviding for offences arising out of legislation falling within theirlegislative domains. The authority to enact law, however, is subjectto the validity of the law being scrutinised on the touchstone ofconstitutional safeguards. Where the validity of the law is called

Ainto question, judicial review will extend to scrutinising whetherthe law is manifestly arbitrary in its encroachment on fundamentalliberties. If law discriminates against group or community ofcitizens by denying them full and equal participation as citizens,in the rights and liberties granted by the Constitution, it wouldbe for the Court to adjudicate upon validity of such law. [ParaB97] [672-G; 673-B-C]

Ketki Ranade,“Process of Sexual IdentityDevelopment for Young People with Same SexDesires: Experiences of Exclusion”, PsychologicalFoundations - The Journal (2008); Vinay Chandran,C“From judgment to practice: Section 377 and themedical sector”, Indian Journal of Medical Ethics, Vol.4 (2009) – referred to

11. India’s commitments at International Law

D11.1 International human rights treaties and jurisprudenceimpose obligations upon States to protect all individuals fromviolations of their human rights, including on the basis of theirsexual orientation. International law today has evolved towardsestablishing that the criminalization of consensual sexual actsbetween same-sex adults in private contravenes the rights toEequality, privacy, and freedom from discrimination. These rightsare recognised in international treaties, covenants, andagreements which India has ratified, including the UDHR, ICCPR,and the ICESCR. India has constitutional duty to honour theseinternationally recognized rules and principles. [Paras 98, 99]F[673-C-D; F-G]Vishaka v State of Rajasthan, (1997) 6 SCC 241 – reliedon

Dominic McGoldrick, “The Development and Statusof Sexual Orientation Discrimination underGInternational Human Rights Law”, Human Rights LawReview, Vol. 16 (2016); UN Human Rights Council,“Discriminatory laws and practices and acts of violenceagainst individuals based on their sexual orientationand gender identity” (2011); UN Human Rights Council,“Promotion and Protection of all Human Rights, Civil,H

[DIPAK MISRA, CJI ]

Political, Economic, Social and Cultural Rights,including the Right to Development” (2008) –referred to

11.2 There is contradiction between India’s internationalobligations and Section 377 of the Indian Penal Code, insofar asit criminalizes consensual sexual acts between same-sex adultsin private. In adjudicating the validity of this provision, the IndianPenal Code must be brought into conformity with both the IndianConstitution and the rules and principles of international law thatIndia has recognized. Both make crucial contribution towardsrecognizing the human rights of sexual and gender minorities.[Para 104] [676-A-B]

12. The past two decades have witnessed several decisionsby constitutional and international courts, recognizing both thedecriminalization of same-sex intercourse in private, as well asbroader rights recognizing sexual orientation equality. In 1996,South Africa became the first country in the world toconstitutionally prohibit discrimination based on sexualorientation. The United Kingdom, Bolivia, Ecuador, Fiji, andMalta specifically prohibit discrimination on the basis of genderidentity, either constitutionally or through enacted laws. Accordingthe International Lesbian, Gay, Bisexual, Trans and IntersexAssociation, 74 countries (including India) criminalize same-sexsexual conduct, as of 2017. Most of these countries lie in theSub-Saharan and Middle East region. Some of them prescribedeath penalty for homosexuality [Para 125] [693-F; 694-A-B]

Government of NCT of Delhi v. Union of India 2018 (8)SCALE 72 – referred to.

Dudgeon v The United Kingdom App No 7525/76,(1981) ECHR 5; Norris v Ireland Application No.10581/83, (1988) ECHR 22; Modinos v CyprusApplication No. 15070/89,16 EHRR 485; Bowers v.Hardwick 478 U.S. 186 (1986). Lawrence v Texas 539U.S. 558 (2003); X v. Colombia Communication No.1361/2005; National Coalition for Gay and LesbianEquality v. Minister of Justice 1999 (1) SA 6 (CC);Dhirendra Nadan Thomas McCoskar v. State [2005]FJHC 500; Caleb Orozco v. The Attorney General of

426SUPREME COURT REPORTS

ABelize Claim No. 668 of 2010; Jason Jones v. TheAttorney General of Trinidad and Tobago Claim no.CV2017-00720; Leung TC William Roy v. Secretary forJustice Civil Appeal No. 317 of 2005 El-Al IsraelAirlines Ltd v. Jonathan Danielwitz HCJ 721/94; Vriendv Alberta (1998) 1 S.C.R. 493; Sunil Babu Pant v. NepalBGovernment Writ Petition No. 917 of 2007; Oliari vItaly [2015] ECHR 716; United States v. Windsor 570U.S. 44 (2013); Obergefell v. Hodges 576 U.S.(2015);Masterpiece Cakeshop v. Colorado Civil RightsCommission 584 U.S. (2018) Lee v. Ashers Bakery Co.CLtd. [2015] NICty 2 – referred to.

Robert Wintemute, “Same-Sex Love and Indian PenalCode §377: An Important Human Rights Issue forIndia” National University of Juridical Sciences LawReview (2011); Committee on Economic, Social andDCultural Rights, “General Comment 20 : Non-discrimination in economic, social and cultural rights”(2009), at para 32; Amy Raub, “Protections Of EqualRights Across Sexual Orientation And GenderIdentity: An Analysis Of 193 National Constitutions”,Yale Journal of Law and Feminism, Vol. 28 (2017); TheEInternational Lesbian, Gay, Bisexual, Trans AndIntersex Association, “Sexual Orientation Laws of theWorld”, (2017); Halsbury’s Laws of England.3[rd] edition, Vol. 3, Butterworths (1953) at page. 271;Glanville Williams, ‘The Definition of Crime’, CurrentFLegal Problems, Vol. 8 (1955) – referred to13. Crime, morality and the Constitution: Criminal LawTheories13.1 Bentham’s Utilitarian Theory – Utilitarianism hasprovided some of the most powerful critiques of existing laws.GBentham was one of the earliest supporters for reform in sodomylaws. In his essay, “Offences Against One’s Self”, Benthamrebutted all the justifications given by the state for enacting lawson sodomy. According to Bentham, homosexuality, if viewedoutside the realms of morality and religion, is neutral behaviourwhich gives the participants pleasure and does not cause pain toH

[DIPAK MISRA, CJI ]

anyone else. Therefore, he concluded that such an act cannotconstitute an offence, and there is “no reason for punishing it atall. According to Bentham, sodomy neither cause primarymischief, nor secondary mischief, nor any danger to society.Bentham also critiqued criminal laws by analysing the utility ofthe punishment prescribed by them. He succinctly described theobjective of law through the principles of utility - “The generalobject which all laws have, or ought to have…is to augment thetotal happiness of the community; [and] to exclude…everythingthat tends to subtract from that happiness.” According toBentham, “all punishment in itself is evil because it reduces thelevel of happiness in society, and should be prescribed only if it“excludes some greater evil”. [Paras 129, 130] [694-F; 698-B;699-G; 700-A-B]

Henry M. Hart, “The Aims of the Criminal Law”, Lawand Contemporary Problems, Vol. 23 (1958), at pages401–441; Roscoe Pound, Interpretation of LegalHistory, Harvard University Press (1946); H.C.Lawson-Tancred, The Art of Rhetoric/Aristotle, Penguin(2004); Immanuel Kant: The Metaphysics of Morals(Mary Gregor ed.), Cambridge University Press(1996); Grant Lamond, “What is Crime?”, OxfordJournal of Legal Studies, Vol.27 (2007); Sir WilliamBlackstone, Commentaries on the Laws of England,Book IV, Ch. 1 & 2; Antony Duff and Sandra Marshall,“Criminalization and Sharing Wrongs”, CanadianJournal of Law and Jurisprudence, Vol. 11, (1998) atpages 7-22; Robert Nozick, Anarchy, State and Utopia,Basic Books (1974),at page 65; Lawrence C. Becker,“Criminal Attempts and the Theory of the Law ofCrimes”, Philosophy & Public Affairs, Vol 3 (1974),at page 273; Jeremy Bentham, “Offences AgainstOne’s Self” (Louis Crompton Ed.), ColumbiaUniversity – referred to

13.2 The Harm Principle – John Stuart Mill, in his treatise“On Liberty,” makes powerful case to preclude governmentsfrom interfering in those areas of an individual’s life which areprivate. Mill’s theory, called the “harm principle”, suggests thatthe state can intrude into private life by way of sanction only if

Aharm is caused to others or if the conduct is “other-affecting.Mill proposed that “all that portion of person’s life and conductwhich affects only himself, or, if it also affects others, only withtheir free, voluntary, and undeceived consent and participation”should be free from state interference. He further added that thestate and society are not justified in interfering in the self-Bregarding sphere, merely because they believe certain conductto be “foolish, perverse, or wrong. While Mill’s theory was notpropounded in relation to LGBTQ rights, his understanding ofcriminal law is well-suited to argue that sodomy laws criminalise‘self-regarding’ actions which fall under the first category ofCconduct, and should England not be subjected to sanctions eitherby the state or the society. [Para 131] [700-C, E; 701-F]Jeremy Bentham, An Introduction to the Principles ofMorals and Legislation, The Library of Economics andLiberty (1823); John Stuart Mill, On Liberty, (ElizabethDRapaport ed), Hackett Publishing Co, Inc (1978); MarkStrasser, “Lawrence, Mill, and Same Sex Relationships: On Values, Valuing and the Constitution”, SouthernCalifornia Interdisciplinary Law Journal, Vol. 15 (2006);Joseph Raz, ‘Autonomy, Toleration and the HarmPrinciple’, in Issues in Contemporary Legal Philosophy:EThe Influence of HLA Hart (R. Gavison ed.), OxfordUniversity Press (1987); Graham Hughes, “Morals andthe Criminal Law”, The Yale Law Journal, Vol.71 (1962);Sir Patrick Arthur Devlin, “The Enforcement Of Morals”Oxford University Press (1959) at page 9; AnimeshFSharma, “Section 377 : No Jurisprudential Basis.”Economic and Political Weekly, Vol. 43 (2008) at pages12-14; Hart, H. L. A, “The Changing Sense of Morality”In Political Thought (Michael Rosen and Jonathan Wolffeds.), Oxford University Press (1999) at pages 140-141;H.L.A. Hart, Law, Liberty And Morality (1979); WilliamGStarr, “Law and Morality in H.L.A. Hart’s LegalPhilosophy”, Marquette Law Review, Vol. 67 (1984);Peter August Bittlinger, “Government enforcement ofmorality : critical analysis of the Devlin-Hartcontroversy”, Doctoral Dissertations 1896 - February2014 (1975) at pages 69-70 – referred to

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13.3 broad analysis of criminal theory points to the generalconclusion that criminologists and legal philosophers have longbeen in agreement about one basic characteristic of crime: thatit should injure third person or the society. An element of largerpublic interest emerges as the crux of crime. The conduct whichSection 377 criminalises voluntary ‘carnal intercourse against theorder of nature’ with man or woman, inter alia – pertains solelyto acts between consenting adults. Such conduct is purely private,or as Mill would call it, “self-regarding,” and is neither capableof causing injury to someone else nor does it pose threat to thestability and security of society. Once the factor of consent isestablished, the question of such conduct causing any injury, doesnot arise. Although Section 377 prima facie appears to criminalisecertain acts or conduct, it creates class of criminals, consistingof individuals who engage in consensual sexual activity. Section377 not only criminalises acts (consensual sexual conductbetween adults) which should not constitute crime, but alsostigmatises and condemns LGBTQ individuals in society. [Para136] [707-B-F]

14.1 The conception of constitutional morality is differentfrom that of public or societal morality. Under regime of publicmorality, the conduct of society is determined by popularperceptions existent in society. Constitutional moralitydetermines the mental attitude towards individuals and issuesby the text and spirit of the Constitution. It builds and protectsthe foundations of democracy, without which any nation will crackunder its fissures. For this reason, constitutional morality has tobe imbibed by the citizens consistently and continuously.Constitutional morality leans towards making Indian democracyvibrant by infusing spirit of brotherhood amongst aheterogeneous population, belonging to different classes, races,religions, cultures, castes and sections. Constitutional moralitycannot, however, be nurtured unless, as recognised by thePreamble, there exists fraternity, which assures and maintainsthe dignity of each individual. [Paras 141, 143] [709-E-F, G;710-A, F-G]

Naz Foundation v. Government of NCT of Delhi (2010)Cri LJ 94 – referred to.

ABCDE

[2018] 7 S.C.R.

A14.2 Constitutional morality will impact upon any law whichdeprives the LGBT individuals of their entitlement to full andequal citizenship. After the Constitution came into force, no lawcan be divorced from constitutional morality. Society cannot dictatethe expression of sexuality between consenting adults. That is aprivate affair. Constitutional morality will supersede any cultureBor tradition. The interpretation of right in matter ofdecriminalisation and beyond must be determined by the normsof the Constitution. LGBT individuals living under the threats ofconformity grounded in cultural morality have been denied basichuman existence. They have been stereotyped and prejudiced.CConstitutional morality requires this Court not to turn blindeye to their right to an equal participation of citizenship and anequal enjoyment of living. Constitutional morality requires thatthis Court must act as counter majoritarian institution whichdischarges the responsibility of protecting constitutionallyentrenched rights, regardless of what the majority may believe.D[Paras 145, 146] [713-F-H; 714-A-B]

15. Transformative constitutionalism

15.1 In penalising consensual sexual conduct betweenadults of the same sex, Section 377 violates the constitutionalEguarantees of liberty and equality. It denudes members of theLGBT communities of their constitutional right to lead fulfillinglives. Sexual and gender based minorities cannot live in fear, ifthe Constitution has to have meaning for them on even terms.In its quest for equality and the equal protection of the law, theConstitution guarantees to them an equal citizenship. In de-Fcriminalising such conduct, the values of the Constitution assureto the LGBT community the ability to lead life of freedom fromfear and to find fulfilment in intimate choices. The choice of apartner, the desire for personal intimacy and the yearning to findlove and fulfilment in human relationships have universal appeal,Gstraddling age and time. In protecting consensual intimacies, theConstitution adopts simple principle: the state has no businessto intrude into these personal matters. Nor can societal notionsof heteronormativity regulate constitutional liberties based onsexual orientation. [Paras 147, 150 and 151] [714-C-D, G-H;715-A-B]H

[DIPAK MISRA, CJI ]

Suresh Kumar Koushal v. Naz Foundation (2014) 1 SCC1 : [2013] 17 SCR 116 – overruled

Christopher. R. Leslie, “Creating criminals: TheInjuries Inflicted by “Unenforced” Sodomy Laws”,Harvard Civil Rights and Civil Liberties Law Review,Vol. 35 (2000); Jawaharlal Nehru, “Tryst withDestiny”, address to the Constituent Assembly ofIndia, delivered on 14-15 August 1947; Uday S.Mehta,“Constitutionalism”, In The OxfordCompanion to Politics in India (Niraja Gopal Jayal andPratap Bhanu Mehta eds.), Oxford University Press(2010), at page 15; Granville Austin, The IndianConstitution: Cornerstone of Nation, Oxford UniversityPress (1966), at page 65; Constituent Assembly Debates(25 November 1949); Lord Neuberger, “UK SupremeCourt decisions on private and commercial law: Therole of public policy and public interest”, Centre forCommercial Law Studies Conference (2015);MarcGalanter, “Fifty Years on”, in BN Kirpal et al, Supremebut Not Infallible: Essays in Honour of the SupremeCourt of India, Oxford University Press (2000), atpage 57 – referred to

Per Indu Malhotra, J.1. The essential ingredient requiredto constitute an offence under Section 377 is “carnal intercourseagainst the order of nature”, which is punishable with lifeimprisonment, or imprisonment of either description up to tenyears. Section 377 applies irrespective of gender, age, or consent.The expression ‘carnal intercourse’ used in Section 377 is distinctfrom ‘sexual intercourse’ which appears in Sections 375 and 497of the IPC. The phrase “carnal intercourse against the order ofnature” is not defined by Section 377, or in the Code. [Paras12.1, 12.2] [721-F-G]Khanu v. Emperor AIR 1925 Sind 286; Khandu v.Emperor AIR 1934 Lah 261 : 1934 Cri LJ 1096;Lohana Vasantlal Devchand & Ors v. State AIR 1968Guj 252; Fazal Rab Choudhary v. State of Bihar (1982)3 SCC 9 – referred to

432SUPREME COURT REPORTS

AThe New International Webster’s ComprehensiveDictionary of the English Language (DeluxeEncyclopedic Edition, 1996) – referred to

2. Whilst great deal of scientific research has examinedpossible genetic, hormonal, developmental, psychological, socialBand cultural influences on sexual orientation, no findings haveconclusively linked sexual orientation to any one particular factoror factors. It is believed that one’s sexuality is the result of acomplex interplay between nature and nurture. Sexual orientationis an innate attribute of one’s identity, and cannot be altered.Sexual orientation is not matter of choice. It manifests in earlyCadolescence. Homosexuality is natural variant of humansexuality. [Para 13.1] [723-D-F]

Lawrence et al. v. Texas 539 U.S. 558 (2003) – referredto

DBrief for the Amici Curiae American PsychologicalAssociation, American Psychiatric Association, NationalAssociation of Social Workers, and Texas Chapter ofthe National Association of Social Workers inLawrence et al. v. Texas 539 U.S. 558(2003); KK Guliaand HN Mallick, Homosexuality: dilemma inEdiscourse, 54 Indian Journal of Physiology andPharmacology (2010), at pp. 5, 6 and 8; Jack Drescher,Out of DSM: Depathologizing Homosexuality, 5(4)Behavioral Sciences (2015), at p. 565; The ICD-10classification of mental and behavioural disorders:Fclinical descriptions and diagnostic guidelines, WorldHealth Organization, Geneva (1992); IndianPsychiatry Society: “Position statement onHomosexuality” IPS / Statement / 02/07/2018 –referred to

3. SECTION 377 IFAPPLIED TO CONSENTINGGADULTS IS VIOLATIVE OFARTICLE 14

3.1 The twin-test of classification under Article 14 providesthat: (i) there should be reasonable classification based onintelligible differentia; and, (ii) this classification should have arational nexus with the objective sought to be achieved. SectionH

[DIPAK MISRA, CJI ]

377 operates in vastly different manner for two classes ofpersons based on their “sexual orientation” i.e. the LGBTpersons and heterosexual persons. Section 377 penalises all formsof non penile-vaginal intercourse. In effect, voluntary consensualrelationships between LGBT persons are criminalised in totality.The import and effect of Section 377 is that while consensualheterosexual relationship is permissible, consensualrelationship between LGBT persons is considered to be ‘carnal’,and against the order of nature. Section 377 creates an artificialdichotomy. The natural or innate sexual orientation of personcannot be ground for discrimination. Where legislationdiscriminates on the basis of an intrinsic and core trait of anindividual, it cannot form reasonable classification based on anintelligible differentia. [Paras 14.2, 14.3] [726-D-G]

National Legal Services Authority v. Union of India &Ors. (2014) 5 SCC 438 – relied on

3.2 person’s sexual orientation is intrinsic to their being.It is connected with their individuality, and identity. classificationwhich discriminates between persons based on their innatenature, would be violative of their fundamental rights, and cannotwithstand the test of constitutional morality. [Para 14.5] [727-B]

3.3 In contemporary civilised jurisprudence, with Statesincreasingly recognising the status of same-sex relationships, itwould be retrograde to describe such relationships as being‘perverse’, ‘deviant’, or ‘unnatural’. [Para 14.6] [727-B-C]

3.4 While Section 375 permits consensual penetrative acts(the definition of ‘penetration’ includes oral and anal sex), Section377 makes the same acts of penetration punishable irrespectiveof consent. This creates dichotomy in the law. The proscriptionof consensual sexual relationship under Section 377 is notfounded on any known or rational criteria. Sexual expression andintimacy of consensual nature, between adults in private, cannotbe treated as “carnal intercourse against the order of nature”.[Paras 14.7, 14.8] [727-E-F]

Shayara Bano v. Union of India & Ors. (2017) 9 SCC1 – relied on

A4. SECTION 377 IS VIOLATIVE OFARTICLE 15

Sex as it occurs in Article 15, is not merely restricted tothe biological attributes of an individual, but also includes their“sexual identity and character”. The prohibition againstdiscrimination under Article 15 on the ground of ‘sex’ should,Btherefore, encompass instances where such discrimination takesplace on the basis of one’s sexual orientation. Race, caste, sex,and place of birth are aspects over which person has no control,ergo they are immutable. On the other hand, religion is afundamental choice of person. Discrimination based on any ofthese grounds would undermine an individual’s personalCautonomy. [Paras 15.1, 15.2] [729-C; 730-F-G]

Egan v. Canada [1995] SCC 98; Vriend v. Alberta[1998] SCC 816 – referred toNicholas Toonen v. Australia Communication No. 488/1992, U.N. Doc.CCPR/C/50/D/488/1992 (1994);DReading Swaraj into Article 15: New Deal For AllMinorities by Tarunabh Khaitan, 2 NUJS Law Review(2009), at p. 419; John Gardner, On the Ground of HerSex (uality), 18(2) Oxford Journal of Legal Studies(1998), at p. 167 – referred toE4.2 Section 15(1), of the Canadian Charter like Article 15of our Constitution, does not include “sexual orientation” as aprohibited ground of discrimination. Notwithstanding that, theCanadian Supreme Court in decision has held that sexualorientation is “ground analogous” to the other grounds specifiedFunder Section 15(1). Discrimination based on any of these groundshas adverse impact on an individual’s personal autonomy, and isundermining of his personality. similar conclusion would be inthe Indian context as well in light of the underlying aspects ofimmutability and fundamental choice. The LGBT community is asexual minority which has suffered from unjustified andGunwarranted hostile discrimination, and is equally entitled to theprotection afforded by Article 15. [Para 15.2] [731-B-D]

5. SECTION 377 VIOLATES THE RIGHTTO LIFE ANDLIBERTY GUARANTEED BYARTICLE 21

5.1 Sexual orientation is innate to human being. It is an

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important attribute of one’s personality and identity.Homosexuality and bisexuality are natural variants of humansexuality. LGBT persons have little or no choice over their sexualorientation. LGBT persons, like other heterosexual persons, areentitled to their privacy, and the right to lead dignified existence,without fear of persecution. They are entitled to completeautonomy over the most intimate decisions relating to theirpersonal life, including the choice of their partners. Such choicesmust be protected under Article 21. [Para 16.1] [733-D-E]

Maneka Gandhi v. Union of India & Anr. (1978) 1 SCC248 : [1978] 2 SCR 621; Francis Coralie Mullin v.Administrator, Union Territory of Delhi & Ors. (1981)1 SCC 608 : [1981] 2 SCR 516; K.S. Puttaswamy &Anr. v. Union of India & Ors. (2017) 10 SCC 1; CommonCause (A Registered Society) v. Union of India & Anr.(2018) 5 SCC 1 – relied on

National Coalition for Gay and Lesbian Equality andAnr. v. Minister of Justice and Ors. [1998] ZACC 15 –referred to

5.2 Section 377 insofar as it curtails the personal liberty ofLGBT persons to engage in voluntary consensual sexualrelationships with partner of their choice, in safe and dignifiedenvironment, is violative of Article 21. It inhibits them fromentering and nurturing enduring relationships. As result, LGBTindividuals are forced to either lead life of solitary existencewithout companion, or lead closeted life as “unapprehendedfelons”. Thus, Section 377 prevents LGBT persons from leadinga dignified life as guaranteed by Article 21. [Para 16.1] [734-B-C]

“unapprehended felons” - according to ProfessorEdwin Cameron, LGBT persons are reduced to the statusof “unapprehended felons” owing to the ever-so-present threat of prosecution; Edwin Cameron,Sexual Orientation and the Constitution: Test Casefor Human Rights, 110 South African Law Journal(1993), at p. 450; Bowers v. Hardwick 478 U.S. 186(1986); Paris Adult Theatre I v. Slaton 413 U.S. 49(1973) – referred to.

A6. RIGHTTO PRIVACY

6.1 The right to privacy has now been recognised to be anintrinsic part of the right to life and personal liberty underArticle 21. Sexual orientation of person is an essential attributeof privacy. Its protection lies at the core of Fundamental RightsBguaranteed by Articles 14, 15, and 21. The right to privacy isbroad-based and pervasive under our Constitutional scheme, andencompasses decisional autonomy, to cover intimate/personaldecisions and preserves the sanctity of the private sphere of anindividual. [Para 16.2] [736-C-E]

C6.2 The right to privacy is not simply the “right to be letalone”, and has travelled far beyond that initial concept. It nowincorporates the ideas of spatial privacy, and decisional privacyor privacy of choice. It extends to the right to make fundamentalpersonal choices, including those relating to intimate sexualconduct, without unwarranted State interference. Section 377Daffects the private sphere of the lives of LGBT persons. It takesaway the decisional autonomy of LGBT persons to make choicesconsistent with their sexual orientation, which would further adignified existence and meaningful life as full person. Section377 prohibits LGBT persons from expressing their sexualEorientation and engaging in sexual conduct in private, decisionwhich inheres in the most intimate spaces of one’s existence.[Para 16.2] [736-E-G; 737-A]

6.3 subjective notion of public or societal morality whichdiscriminates against LGBT persons, and subjects them toFcriminal sanction, simply on the basis of an innate characteristicruns counter to the concept of Constitutional morality, and cannotform the basis of legitimate State interest. [Para 16.2] [737-E]

7. RIGHTTO HEALTH

The right to health, and access to healthcare are also crucialGfacets of the right to life guaranteed under Article 21 of theConstitution. LGBT persons being sexual minority have beensubjected to societal prejudice, discrimination and violence onaccount of their sexual orientation. Since Section 377 criminalises“carnal intercourse against the order of nature” it compels LGBTpersons to lead closeted lives. As consequence, LGBT personsH

are seriously disadvantaged and prejudiced when it comes toaccess to health-care facilities. This results in serious healthissues, including depression and suicidal tendencies amongstmembers of this community. [Para 16.3] [738-A-C]

Common Cause (A Registered Society) v. Union of India& Anr. (2018) 5 SCC 1; C.E.S.C. Limited & Ors. v.Subhash Chandra Bose & Ors. (1992) 1 SCC 441 :[1991] 2 Suppl. SCR 267; Union of India v. MoolChand Khairati Ram Trust, (2018) SCC OnLine SC 675;Centre for Public Interest Litigation v. Union of India& Ors. (2013) 16 SCC 279 : [2013] 9 SCR 1103 –relied on

The Economic Cost of Stigma and the Exclusion ofLGBT People: Case Study of India, by M.V. LeeBadgett, World Bank Group (2014); India’shomosexual discrimination and health consequencesby Govindasamy Agoramoorthy and Minna J Hsu,41(4) Rev Saude Publica (2007), at pp. 567-660 –referred to

8. SECTION 377 VIOLATES THE RIGHTTO FREEDOMOF EXPRESSION OF LGBT PERSONS

LGBT persons express their sexual orientation in myriadways. One such way is engagement in intimate sexual acts likethose proscribed under Section 377. Owing to the fear ofharassment from law enforcement agencies and prosecution,LGBT persons tend to stay ‘in the closet’. They are forced notto disclose central aspect of their personal identity i.e. theirsexual orientation, both in their personal and professional spheresto avoid persecution in society and the opprobrium attached tohomosexuality. Unlike heterosexual persons, they are inhibitedfrom openly forming and nurturing fulfilling relationships, therebyrestricting rights of full personhood and dignified existence. Italso has an impact on their mental well-being. Section 377 cannotbe justified as reasonable restriction under Article 19(2) on thebasis of public or societal morality, since it is inherently subjective.[Paras 17.1, 17.2] [740-B, C-E; 741-E-F]

National Legal Services Authority v. Union of India &Ors. (2014) 5 SCC 438; S. Khushboo v. Kanniammal &

438SUPREME COURT REPORTS

AAnr. (2010) 5 SCC 600 : [2010] 5 SCR 322 – relied onNaz Foundation v. Government of NCT of Delhi & Ors.(2009) 111 DRJ 1 (DB); A.K. Roy v. Union of India(1982) 1 SCC 271 : [1982] 2 SCR 272– referred toSuresh Kumar Koushal & Anr. v. Naz Foundation &BOrs. (2014) 1 SCC 1 : [2013] 17 SCR116 – overruledLawrence et al. v. Texas 539 U.S. 558 (2003); NationalCoalition for Gay and Lesbian Equality and Anr. v.Minister of Justice and Ors. [1998] ZACC 15 –referred to

C9. History owes an apology to the members of thiscommunity and their families, for the delay in providing redressalfor the ignominy and ostracism that they have suffered throughthe centuries. The members of this community were compelledto live life full of fear of reprisal and persecution. This was on

Daccount of the ignorance of the majority to recognise thathomosexuality is completely natural condition, part of rangeof human sexuality. The mis-application of this provision deniedthem the Fundamental Right to equality guaranteed by Article14. It infringed the Fundamental Right to non-discrimination underArticle 15, and the Fundamental Right to live life of dignity andEprivacy guaranteed by Article 21. [Para 20] [745-E-F]

Case Law Reference

Per Dipak Misra, CJI [for himself and Khanwilkar, J.]

440SUPREME COURT REPORTS

[2018] 7 S.C.R.

[DIPAK MISRA, CJI ]

[2018] 7 S.C.R.

Under Article 32 of the Constitution of India.

WITH

GW.P. (C) No. 572/2016 and W.P. (Crl.) Nos. 88, 100, 101 and 121of 2018.

Tushar Mehta, ASG, Anand Grover, K. Radhakrishnan, MaheshJethmalani, Soumya Chakraborty, Chander Uday Singh, Ashok Desai,Shyam Divan, Sr. Advs., Saurabh Kirpal, Mahesh Agarwal, NikhilHRohatgi, Dr. Menaka Guruswamy, Ms. Arundhati Katju, Ms. Neeha

Nagpal, Sagar Gupta, Ms. Devanshi Singh, Ms. Pritha Srikumar Iyer,Shashank Khurana, E.C. Agrawala, Mrs. Shally Bhasin, Sunil Fernandes,Ms. Astha Sharma, Ms. Nupur Kumar, Ms. Tripti Tandon, Suraj Sanap,Ms. Priyanshia Sharma, Samyak Gangwal, Ms. Aarushi Mahajan,Ms. Priyam Cherian, Ms. Anju Thomas, Arun Srikumar, Ms. VasudhaSharma, Kaustav Saha, Ms. Neha Methen, O. P. Bhadani,S. S. Shamshery, Rajat Nair, R. Balasubramanium, Kanu Agarwal,Ms. Swati Ghildiyal, Ms. Ranjana Narayan, K. L. Janjani, T. A. Khan,Ms. Anil Katiyar, Arvind Kumar Sharma, B. V. Balram Das,K. V. Jagdishvaran, Mrs. G. Indira, Ms. Mugdha Pande, Ravi Sharma,Pallav Mongia, Praveen Agarwal, Pankaj Sharma, Dr. Harshvir PratapShrama, A. K. Srivastava, Paras Joshi, Pankaj Kumar, Manoj V. George,Ms. Shilpa Liza George, Aakarsh Kamra, B. D. Das, Nilkant Nayak,Towseef Ahmad Dar, Ms. Munmun, Subart, Zulfiker Ali P. S., DhirajAbraham Philip, Febin Mathew Varghese, Ms. Palak Misra,Ms. Amritananda Chakravarty, Mihir Samson, Ms. Shreya Munoth,Ms. Deepanshi Ishar, Ms. Liz Mathew, Gautam Narayan, Jawahar Raja,Chinmay Kanojia, Amjid Maqbool, Ms. Ila Sheel, Ms. Anu Bindra,Siddharth Narain, Gowthaman Rangarajan, Sai Vinod, Nikhil Nayyar,Vasuman Khandelwal, Govind Manoharan, Pukhrambam RameshKumar, Jawahar Raja, Gautam Bhatia, Arvind Narain, Chinmay Kanojia,Ajay Bansal, Gaurav Yadava, Mrs.Veena Bansal, Vijay Pratap Yadav,Ms. Harvinder Chawdhury, Dr. Nisheh Sharma, Anil Kumar Singh,Ms. Meera Patel, Tejas Patel, Mughees Ahmed Khan, Advs. for theappearing parties.

The Judgment of the Court was delivered by

DIPAK MISRA, CJI (for himself and A.M. Khanwilkar, J.)

* Ed. note: The pages mentioned in the index above giving the scheme of the judgmentdenotes the page number of the original judgment.

[2018] 7 S.C.R.

AE. Decisions in Naz Foundation andSureshKoushal ………………..……..45-48F. Other judicial pronouncements onSection 377 IPC …………….........48-57G. The Constitution – an organic charterBof progressive rights ……………57-64H. Transformative constitutionalism andthe rights of LGBT community………65-74I.Constitutional morality and Section 377 IPC..74-81CJ. Perspective of human dignity…………81-89K. Sexual orientation ………………………89-96L. Privacy and its concomitant aspects………96-111

M. Doctrine of progressive realization of rights...111-118DN. International perspective……………......118(i)United States………………………...118-122(ii)Canada………………………………123-125(iii)South Africa…………………………125E(iv)United Kingdom…………………….126-127(v)Other Courts/Jurisdictions…………127-129

O. Comparative analysis of Section 375 andSection 377 IPC……………………………129-140FP. The litmus test for survival of Section377 IPC ...................................................140-156Q. Conclusions ..............................................156-166

GA.Introduction

Not for nothing, the great German thinker, Johann Wolfgang vonGoethe, had said, “I am what I am, so take me as I am” and similarly,Arthur Schopenhauer had pronounced, “No one can escape from theirindividuality”. In this regard, it is profitable to quote few lines fromHJohn Stuart Mill:-

NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE[DIPAK MISRA, CJI ]

“But society has now fairly got the better of individuality; andthe danger which threatens human nature is not the excess, butthe deficiency of personal impulses and preferences.”

The emphasis on the unique being of an individual is the salt of his/her life. Denial of self-expression is inviting death. Irreplaceability ofindividuality and identity is grant of respect to self. This realization isone’s signature and self-determined design. One defines oneself. Thatis the glorious form of individuality. In the present case, our deliberationand focus on the said concept shall be from various spectrums.

2. Shakespeare through one of his characters in play says“What’s in name? That which we call rose by any other name wouldsmell as sweet”. The said phrase, in its basic sense, conveys that whatreally matters is the essential qualities of the substance and thefundamental characteristics of an entity but not the name by which it ora person is called. Getting further deeper into the meaning, it is understoodthat the name may be convenient concept for identification but theessence behind the same is the core of identity. Sans identity, the nameonly remains denotative term. Therefore, the identity is pivotal to one’sbeing. Life bestows honour on it and freedom of living, as facet of life,expresses genuine desire to have it. The said desire, one is inclined tothink, is satisfied by the conception of constitutional recognition, andhence, emphasis is laid on the identity of an individual which is conceivedunder the Constitution. And the sustenance of identity is the filament oflife. It is equivalent to authoring one’s own life script where freedombroadens everyday. Identity is equivalent to divinity.

3. The overarching ideals of individual autonomy and liberty,equality for all sans discrimination of any kind, recognition of identitywith dignity and privacy of human beings constitute the cardinal fourcorners of our monumental Constitution forming the concrete substratumof our fundamental rights that has eluded certain sections of our societywho are still living in the bondage of dogmatic social norms, prejudicednotions, rigid stereotypes, parochial mindset and bigoted perceptions.Social exclusion, identity seclusion and isolation from the socialmainstream are still the stark realities faced by individuals today and it isonly when each and every individual is liberated from the shackles ofsuch bondage and is able to work towards full development of his/herpersonality that we can call ourselves truly free society. The first stepon the long path to acceptance of the diversity and variegated hues that

Anature has created has to be taken now by vanquishing the enemies ofprejudice and injustice and undoing the wrongs done so as to make wayfor progressive and inclusive realisation of social and economic rightsembracing all and to begin dialogue for ensuring equal rights andopportunities for the “less than equal” sections of the society. We haveto bid adieu to the perceptions, stereotypes and prejudices deeplyBingrained in the societal mindset so as to usher in inclusivity in all spheresand empower all citizens alike without any kind of alienation anddiscrimination.

4. The natural identity of an individual should be treated to beabsolutely essential to his being. What nature gives is natural. That isCcalled nature within. Thus, that part of the personality of person has tobe respected and not despised or looked down upon. The said inherentnature and the associated natural impulses in that regard are to beaccepted. Non-acceptance of it by any societal norm or notion andpunishment by law on some obsolete idea and idealism affects the kernel

Dof the identity of an individual. Destruction of individual identity wouldtantamount to crushing of intrinsic dignity that cumulatively encapsulatesthe values of privacy, choice, freedom of speech and other expressions.It can be viewed from another angle. An individual in exercise of hischoice may feel that he/she should be left alone but no one, and wemean, no one, should impose solitude on him/her.

5. The eminence of identity has been luculently stated in NationalLegal Services Authority v. Union of India and others[1], popularlyknown as NALSA case, wherein the Court was dwelling upon the statusof identity of the transgenders. Radhakrishnan, J., after referring tocatena of judgments and certain International Covenants, opined thatFgender identity is one of the most fundamental aspects of life whichrefers to person’s intrinsic sense of being male, female or transgenderor transsexual person. person’s sex is usually assigned at birth, but arelatively small group of persons may be born with bodies whichincorporate both or certain aspects of both male and female physiology.GThe learned Judge further observed that at times, genital anatomyproblems may arise in certain persons in the sense that their innateperception of themselves is not in conformity with the sex assigned tothem at birth and may include pre-and post-operative transsexual personsand also persons who do not choose to undergo or do not have access to

NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE[DIPAK MISRA, CJI ]

operation and also include persons who cannot undergo successfuloperation. Elaborating further, he said:-

“Gender identity refers to each person’s deeply felt internal andindividual experience of gender, which may or may not correspondwith the sex assigned at birth, including the personal sense of thebody which may involve freely chosen, modification of bodilyappearance or functions by medical, surgical or other meansand other expressions of gender, including dress, speech andmannerisms. Gender identity, therefore, refers to an individual’sself-identification as man, woman, transgender or otheridentified category.”

6. Adverting to the concept of discrimination, he stated:-

“The discrimination on the ground of “sex” under Articles 15and 16, therefore, includes discrimination on the ground of genderidentity. The expression “sex” used in Articles 15 and 16 is notjust limited to biological sex of male or female, but intended toinclude people who consider themselves to be neither male norfemale.”

7. Dealing with the legality of transgender identity,Radhakrishnan, J. ruled:-

“The self-identified gender can be either male or female or athird gender. Hijras are identified as persons of third gender andare not identified either as male or female. Gender identity, asalready indicated, refers to person’s internal sense of beingmale, female or transgender, for example hijras do not identifyas female because of their lack of female genitalia or lack ofreproductive capability. This distinction makes them separatefrom both male and female genders and they consider themselvesneither man nor woman, but “third gender”.”8. Sikri, J., in his concurring opinion, dwelling upon the rights oftransgenders, laid down that gender identification is an essential componentwhich is required for enjoying civil rights by the community. It is onlywith this recognition that many rights attached to the sexual recognitionas “third gender” would be available to the said community moremeaningfully viz. the right to vote, the right to own property, the right tomarry, the right to claim formal identity through passport and ration

Acard, driver’s licence, the right to education, employment, health andso on. Emphasising on the aspect of human rights, he observed:-

“…there seems to be no reason why transgender must bedenied of basic human rights which includes right to life andliberty with dignity, right to privacy and freedom of expression,Bright to education and empowerment, right against violence, rightagainst exploitation and right against discrimination. TheConstitution has fulfilled its duty of providing rights totransgenders. Now it is time for us to recognise this and to extendand interpret the Constitution in such manner to ensure adignified life for transgender people. All this can be achieved ifCthe beginning is made with the recognition of TG as third gender.”

The aforesaid judgment, as is manifest, lays focus on inalienable“gender identity” and correctly connects with human rights and theconstitutionally guaranteed right to life and liberty with dignity. It laysstress on the judicial recognition of such rights as an inextricableDcomponent of Article 21 of the Constitution and decries any discriminationas that would offend Article 14, the “fon juris” of our Constitution.

9. It has to be borne in mind that search for identity as basichuman ideal has reigned the mind of every individual in many spherelike success, fame, economic prowess, political assertion, celebrity statusEand social superiority, etc. But search for identity, in order to have appositespace in law, sans stigmas and sans fear has to have the freedom ofexpression about his/her being which is keenly associated with theconstitutional concept of “identity with dignity”. When we talk aboutidentity from the constitutional spectrum, it cannot be pigeon-holedFsingularly to one’s orientation that may be associated with his/her birthand the feelings he/she develops when he/she grows up. Such narrowperception may initially sound to subserve the purpose of justice but on astudied scrutiny, it is soon realized that the limited recognition keeps theindividual choice at bay. The question that is required to be posed here iswhether sexual orientation alone is to be protected or both orientationGand choice are to be accepted as long as the exercise of these rights byan individual do not affect another’s choice or, to put it succinctly, hasthe consent of the other where dignity of both is maintained and privacy,as seminal facet of Article 21, is not dented. At the core of the conceptof identity lies self-determination, realization of one’s own abilitiesHvisualizing the opportunities and rejection of external views with clear

conscience that is in accord with constitutional norms and values orprinciples that are, to put in capsule, “constitutionally permissible”. Aslong as it is lawful, one is entitled to determine and follow his/her patternof life. And that is where the distinction between constitutional moralityand social morality or ethicality assumes distinguished podium, adifferent objective. Non-recognition in the fullest sense and denial ofexpression of choice by statutory penal provision and giving of stampof approval by two-Judge Bench of this Court to the said penal provision,that is, Section 377 of the Indian Penal Code, in Suresh Kumar Koushaland another v. Naz Foundation and others[2] overturning the judgmentof the Delhi High Court in Naz Foundation v. Government of NCT ofDelhi and others[3], is the central issue involved in the presentcontroversy.

B. The Reference

10. Writ Petition (Criminal) No. 76 of 2016 was filed for declaring“right to sexuality”, “right to sexual autonomy” and “right to choice of asexual partner” to be part of the right to life guaranteed under Article 21of the Constitution of India and further to declare Section 377 of theIndian Penal Code (for short, “IPC”) to be unconstitutional. When thesaid Writ Petition was listed before three-Judge Bench on 08.01.2018,the Court referred to two-Judge Bench decision rendered in SureshKoushal (supra) wherein this Court had overturned the decision renderedby the Division Bench of the Delhi High Court in Naz Foundation (supra).It was submitted by Mr. Arvind Datar, learned senior counsel appearingfor the writ petitioners, on the said occasion that the two-Judge Bench inSuresh Koushal (supra) had been guided by social morality leaning onmajoritarian perception whereas the issue, in actuality, needed to bedebated upon in the backdrop of constitutional morality. contentionwas also advanced that the interpretation placed in Suresh Kumar(supra) upon Article 21 of the Constitution is extremely narrow and, infact, the Court has been basically guided by Article 14 of the Constitution.Reliance was placed on the pronouncement in NALSA case whereinthis Court had emphasized on “gender identity and sexual orientation”.Attention of this Court was also invited to nine-Judge Bench decisionin K.S. Puttaswamy and another v. Union of India and others[4]

2 (2014) 1 SCC 1

3 (2009) 111 DRJ 1

4 (2017) 10 SCC 1

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Awherein the majority, speaking through Chandrachud, J., has opined thatsexual orientation is an essential component of rights guaranteed underthe Constitution which are not formulated on majoritarian favour oracceptance. Kaul, J, in his concurring opinion, referred to the decision inMosley v. News Group Newspapers Ltd.[5] to highlight that the emphasisfor individual’s freedom to conduct his sex life and personal relationshipsBas he wishes, subject to the permitted exceptions, countervails publicinterest.

11. The further submission that was advanced by Mr. Datar wasthat privacy of the individual having been put on such high pedestaland sexual orientation having been emphasized in the NALSA case,CSection 377 IPC cannot be construed as reasonable restriction as thatwould have the potentiality to destroy the individual autonomy and sexualorientation. It is an accepted principle of interpretation of statutes that aprovision does not become unconstitutional merely because there canbe abuse of the same. Similarly, though provision on the statute book is

Dnot invoked on many occasions, yet it does not fall into the sphere of thedoctrine of desuetude. However, Suresh Koushal’s case has been guidedby the aforesaid doctrine of desuetude.

12. Appreciating the said submissions, the three-Judge Benchstated that:-E“Certain other aspects need to be noted. Section 377 IPC usesthe phraseology “carnal intercourse against the order of nature”.The determination of order of nature is not constantphenomenon. Social morality also changes from age to age. Thelaw copes with life and accordingly change takes place. TheFmorality that public perceives, the Constitution may not conceiveof. The individual autonomy and also individual orientation cannotbe atrophied unless the restriction is regarded as reasonable toyield to the morality of the Constitution. What is natural to onemay not be natural to the other but the said natural orientationand choice cannot be allowed to cross the boundaries of law andGas the confines of law cannot tamper or curtail the inherent rightembedded in an individual under Article 21 of the Constitution. Asection of people or individuals who exercise their choice shouldnever remain in state of fear. When we say so, we may not be

NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE[DIPAK MISRA, CJI ]

understood to have stated that there should not be fear of lawbecause fear of law builds civilised society. But that law musthave the acceptability of the Constitutional parameters. That isthe litmus test.

It is necessary to note, in the course of hearing on querybeing made and Mr. Datar very fairly stated that he does notintend to challenge that part of Section 377 which relates to carnalintercourse with animals and that apart, he confines to consentingacts between two adults. As far as the first aspect is concerned,that is absolutely beyond debate. As far as the second aspect isconcerned, that needs to be debated. The consent between twoadults has to be the primary pre-condition. Otherwise the childrenwould become prey, and protection of the children in all sphereshas to be guarded and protected. Taking all the apsects in acumulative manner, we are of the view, the decision in SureshKumar Koushal’s case (supra) requires re-consideration.”

The three-Judge Bench expressed the opinion that the issues raisedshould be answered by larger Bench and, accordingly, referred thematter to the larger Bench. That is how the matter has been placedbefore us.

C. Submissions on behalf of the petitioners

13. We have heard Mr. Mukul Rohatgi, learned senior counselassisted by Mr. Saurabh Kirpal, learned counsel appearing for thepetitioners in Writ Petition (Criminal) No. 76 of 2016, Ms. Jayna Kothari,learned counsel for the petitioner in Writ Petition (Civil) No. 572 of 2016,Mr. Arvind P. Datar, learned senior counsel for the petitioner in WritPetition (Criminal) No. 88 of 2018, Mr. Anand Grover, learned seniorcounsel for the petitioners in Writ Petition (Criminal) Nos. 100 of 2018and 101 of 2018 and Dr. Menaka Guruswamy, learned counsel for thepetitioner in Writ Petition (Criminal) No. 121 of 2018. We have alsoheard Mr. Ashok Desai, Mr. Chander Uday Singh, Mr. Shyam Divanand Mr. Krishnan Venugopal, learned senior counsel appearing for variousintervenors in the matter. compilation of written submissions has beenfiled by the petitioners as well as the intervenors.

14. We have heard Mr. Tushar Mehta, learned Additional SolicitorGeneral for the Union of India, Mr. K. Radhakrishnan, learned seniorcounsel appearing in Interlocutory Application No. 94284 of 2018 in Writ

APetition (Criminal) No. 76 of 2016, Mr. Mahesh Jethmalani, learned seniorcounsel appearing in Interlocutory Application No. 91147 in Writ Petition(Criminal) No. 76 of 2016, Mr. Soumya Chakraborty, learned seniorcounsel appearing in Interlocutory Application No. 94348 of 2018 in WritPetition (Criminal) No. 76 of 2016, Mr. Manoj V. George, learned counselappearing for Apostolic Alliance of Churches & Utkal Christian CouncilBand Dr. Harshvir Pratap Sharma, learned counsel appearing inInterlocutory Application No. 93411 of 2018 in Writ Petition (Criminal)No. 76 of 2016.15. It is submitted on behalf of the petitioners and the intervenorsthat homosexuality, bisexuality and other sexual orientations are equallyCnatural and reflective of expression of choice and inclination founded onconsent of two persons who are eligible in law to express such consentand it is neither physical nor mental illness, rather they are naturalvariations of expression and free thinking process and to make it criminaloffence is offensive of the well established principles pertaining toDindividual dignity and decisional autonomy inherent in the personality ofa person, great discomfort to gender identity, destruction of the right toprivacy which is pivotal facet of Article 21 of the Constitution,unpalatable to the highly cherished idea of freedom and trauma to theconception of expression of biological desire which revolves around thepattern of mosaic of true manifestation of identity. That apart, the phraseE“order of nature” is limited to the procreative concept that may havebeen conceived as natural by systemic conservative approach andsuch limitations do not really take note of inborn traits or developedorientations or, for that matter, consensual acts which relate to responsesto series of free exercise of assertions of one’s bodily autonomy. It is

Ffurther argued that their growth of personality, relation building endeavourto enter into live-in relationship or to form an association with senseof commonality have become mirage and the essential desires arecrippled which violates Article 19(1)(a) of the Constitution. It is urgedthat the American Psychological Association has opined that sexualorientation is natural condition and attraction towards the same sex orGopposite sex are both naturally equal, the only difference being that thesame sex attraction arises in far lesser numbers.

16. The petitioners have highlighted that the rights of the lesbian,gay, bisexual and transgender (LGBT) community, who comprise 7-8%of the total Indian population, need to be recognized and protected, forH

NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE[DIPAK MISRA, CJI ]

sexual orientation is an integral and innate facet of every individual’sidentity. person belonging to the said community does not become analien to the concept of individual and his individualism cannot be viewedwith stigma. The impact of sexual orientation on an individual’s life isnot limited to their intimate lives but also impacts their family, professional,social and educational life. As per the petitioners, such individuals (sexualminorities in societies) need protection more than the heterosexuals soas to enable them to achieve their full potential and to live freely withoutfear, apprehension or trepidation in such manner that they are notdiscriminated against by the society openly or insidiously or by the Statein multifarious ways in matters such as employment, choice of partner,testamentary rights, insurability, medical treatment in hospitals and othersimilar rights arising from live-in relationships which, after the decisionin Indra Sarma v. V.K.V. Sarma[6], is recognized even by the “Protectionof Women from Domestic Violence Act, 2005” for various kinds of live-in relationships. The same protection, as per the petitioners, must beaccorded to same sex relationships.17. It is urged by the learned counsel for the petitioners thatindividuals belonging to the LGBT group suffer discrimination and abusethroughout their lives due to the existence of Section 377 IPC which isnothing but manifestation of mindset of societal values prevalentduring the Victorian era where sexual activities were considered mainlyfor procreation. The said community remains in constant state of fearwhich is not conducive for their growth. It is contended that they sufferat the hands of law and are also deprived of the citizenry rights whichare protected under the Constitution. The law should have treated themas natural victims and sensitized the society towards their plight and laidstress on such victimisation, however, the reverse is being done due towhich sense of estrangement and alienation has developed and continuesto prevail amongst the members belonging to the LGBT group.Compulsory alienation due to stigma and threat is contrary to thefundamental principle of liberty.

18. The petitioners have referred to the decision of this Court inNALSA case wherein transgenders have been recognized as thirdgender apart from male and female and have been given certain rights.Yet, in view of the existence of Section 377 in the IPC, consensualactivities amongst transgenders would continue to constitute an offence.

6 (2013) 15 SCC 755

ADrawing inspiration from the NALSA case, the petitioners submit thatthe rights of the LGBT group are not fully realized and they remainincomplete citizens because their expression as regards sexuality is notallowed to be pronounced owing to the criminality attached to the sexualacts between these persons which deserves to be given burial and,therefore, the rights of the LGBT community also need equal, if notBmore, constitutional protection. Accordingly, the petitioners are of theview that Section 377 of the IPC be read down qua the LGBT communityso as to confine it only to the offence of bestiality and non-consensualacts in view of the fact that with the coming into force of the CriminalLaw (Amendment) Act, 2013 and the Protection of Children from SexualCOffences Act, 2012 (POCSO Act), the scope of sexual assault has beenwidened to include non peno-vaginal sexual assault and also criminalizenon-consensual sexual acts between children thereby plugging importantgaps in the law governing sexual violence in India.

19. The petitioners have also submitted that Section 377, despiteDbeing pre-constitutional law, was retained post the Constitution cominginto effect by virtue of Article 372 of the Constitution, but it must benoted that the presumption of constitutionality is merely an evidentiaryburden initially on the person seeking to challenge the vires of statuteand once any violation of fundamental rights or suspect classification isprima facie shown, then such presumption has no role. In the case atEhand, the petitioners face violation of their fundamental rights to anextent which is manifestly clear and it is violation which strikes at thevery root or substratum of their existence. The discrimination sufferedat the hands of the majority, the onslaught to their dignity and invasion onthe right to privacy is demonstrably visible and permeates every nookFand corner of the society.

20. It is the argument of the petitioners that Section 377, if retainedin its present form, would involve the violation of, not one but, severalfundamental rights of the LGBTs, namely, right to privacy, right to dignity,equality, liberty and right to freedom of expression. The petitionersGcontend that sexual orientation which is natural corollary of genderidentity is protected under Article 21 of the Constitution and anydiscrimination meted out to the LGBT community on the basis of sexualorientation would run counter to the mandate provided under theConstitution and the said view has also gained approval of this Court inthe NALSA case.H21. The petitioners have also relied upon the view in K.S.Puttaswamy (supra) to advance their argument that sexual orientationis also an essential attribute of privacy. Therefore, protection of bothsexual orientation and right to privacy of an individual is extremelyimportant, for without the enjoyment of these basic and fundamentalrights, individual identity may lose significance, sense of trepidationmay take over and their existence would be reduced to mere survival. Itis further urged that sexual orientation and privacy lie at the core of thefundamental rights which are guaranteed under Articles 14, 19 and 21 ofthe Constitution and in the light of the decision in Puttaswamy (supra), ithas become imperative that Section 377 be struck down. It is contendedthat the right to privacy has to take within its ambit and sweep the rightof every individual, including LGBTs, to make decisions as per theirchoice without the fear that they may be subjected to humiliation orshunned by the society merely because of certain choice or manner ofliving.

22. Having canvassed with vehemence that sexual orientation isan important facet of the right to privacy which has been raised to thepedestal of cherished right, the learned counsel for the petitioners havevigorously propounded that sexual autonomy and the right to choose apartner of one’s choice is an inherent aspect of the right to life and rightto autonomy. In furtherance of the said view, they have relied upon theauthorities in Shakti Vahini v. Union of India and others[7] and ShafinJahan v. Asokan K.M.[8]wherein it has been clearly recognized that anindividual’s exercise of choice in choosing partner is feature of dignityand, therefore, it is protected under Articles 19 and 21 of the Constitution.

23. According to the petitioners, there is no difference betweenpersons who defy social conventions to enter into inter-religious andinter-caste marriages and those who choose same sex partner in thesense that the society may disapprove of inter-caste or inter-religiousmarriages but this Court is for enforcing constitutional rights. Similarly,as per the petitioners, even if there is disapproval by the majority of thesexual orientation or exercise of choice by the LGBT persons, the Courtas the final arbiter of the constitutional rights, should disregard socialmorality and uphold and protect constitutional morality which has beenadverted to by this Court in several cases, including Manoj Narula v.

7 (2018) 7 SCC 192

8 AIR 2018 SC 1933 : 2018 (5) SCALE 422

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AUnion of India[9], for that is the governing rule. It is argued that theDelhi High Court in Naz Foundation (supra) has referred to and analysedthe concept of constitutional morality and ultimately struck down Section377 IPC clearly stating that carnal intercourse between homosexualsand heterosexuals with consent cannot be an offence.

B24. The LGBT persons cannot, according to the petitioners, bepenalized simply for choosing same sex partner, for the constitutionalguarantee of choice of partner extends to the LGBT persons as well.Learned counsel for the petitioners and the supporting intervenors havesubmitted that sexual orientation, being an innate facet of individualidentity, is protected under the right to dignity. To bolster the said argument,Creliance has been placed upon Francis Coralie Mullin v. Administrator,Union Territory of Delhi and others[10]and Common Cause (ARegistered Society) v. Union of India and another[11]wherein it washeld that the right to life and liberty, as envisaged under Article 21, ismeaningless unless it encompasses within its sphere individual dignityDand right to dignity includes the right to carry such functions and activitiesas would constitute the meaningful expression of the human self.

25. It is submitted that Section 377 is an anathema to the conceptof fraternity as enshrined in the Preamble to our Constitution and theIndian Constitution mandates that we must promote fraternity amongstEthe citizens sans which unity shall remain distant dream.

26. The petitioners have further contended that Section 377 isviolative of Article 14 of the Constitution as the said Section is vague inthe sense that carnal intercourse against the order of nature is neitherdefined in the Section nor in the IPC or, for that matter, any other law.FThere is, as per the petitioners, no intelligible differentia or reasonableclassification between natural and unnatural sex as long as it is consensualin view of the decision of this Court in Anuj Garg and others v. HotelAssociation of India and others[12] which lays down the principle thatclassification which may have been treated as valid at the time of itsadoption may cease to be so on account of changing social norms.

27. Section 377, as argued by the petitioners, is manifestly arbitraryand over-broad and for the said purpose, immense inspiration has been

9 (2014) 9 SCC 110 (1981) 1 SCC 60811 (2018) 5 SCC 1H12 (2008) 3 SCC 1

drawn from the principles stated in Shayara Bano v. Union of Indiaand others[13] , for making consensual relationship crime on the groundthat it is against the order of nature suffers from manifest arbitrarinessat the fulcrum.

28. It is the case of the petitioners that Section 377 violates Article15 of the Constitution since there is discrimination inherent in it based onthe sex of person’s sexual partner as under Section 376(c) to (e), aperson can be prosecuted for acts done with an opposite sex partnerwithout her consent, whereas the same acts if done with same-sexpartner are criminalized even if the partner consents. The petitionershave drawn the attention of this Court to the Justice J.S Verma Committeeon Amendments to Criminal Law which had observed that ‘sex’ occurringin Article 15 includes sexual orientation and, thus, as per the petitioners,Section 377 is also violative of Article 15 of the Constitution on thiscount.

29. It is argued with astuteness that Section 377 has chillingeffect on Article 19(1)(a) of the Constitution which protects thefundamental right of freedom of expression including that of LGBTpersons to express their sexual identity and orientation, through speech,choice of romantic/sexual partner, expression of romantic/sexual desire,acknowledgment of relationships or any other means and that Section377 constitutes an unreasonable exception and is thereby not coveredunder Article 19(2) of the Constitution. To buttress the said stance, relianceis placed upon the decision in S. Khushboo v. Kanniammal andanother[14]wherein it has been held that law should not be used in such amanner that it has chilling effect on the freedom of speech andexpression. Additionally, the view in NALSA case has also been stronglypressed into service to emphasize that the said decision clearly spells outthat the right under Article 19(1)(a) includes one’s right to expression ofhis/her self-identified gender which can be expressed through words,action, behaviour or any other form.

30. The petitioners have also contended that Section 377 violatesthe rights of LGBT persons under Article 19(1)(c) and denies them theright to form associations. Similarly, such persons are hesitant to registercompanies to provide benefits to sexual minorities due to the fear ofstate action and social stigma. Further, conviction under Section 377

13 (2017) 9 SCC 114 (2010) 5 SCC 600

AIPC renders such persons ineligible for appointment as director of acompany.

31. It is averred that Section 377 IPC, by creating taint ofcriminality, deprives the LGBT persons of their right to reputation whichis facet of the right to life and liberty of citizen under Article 21 of theBConstitution as observed by this Court in Kishore Samrite v. State ofU.P. and others[15]and Umesh Kumar v. State of Andhra Pradeshand another[16] to the effect that reputation is an element of personalsecurity and protected by the Constitution with the right to enjoyment oflife and liberty. This right, as per the petitioners, is being denied to theLGBT persons because of Section 377 IPC as it makes themCapprehensive to speak openly about their sexual orientation and makesthem vulnerable to extortion, blackmail and denial of State machineryfor either protection or for enjoyment of other rights and amenities andon certain occasions, the other concomitant rights are affected.

32. The petitioners have advanced their argument that SectionD377 IPC impedes the ability of the LGBTs to realize the constitutionallyguaranteed right to shelter. To illustrate the same, the petitioners havedrawn the attention of the Court to the fact that LGBTs seek assistanceof private resources such as Gay Housing Assistance Resources (GHAR)in order to access safe and suitable shelter and this is an indication thatEthe members of this community are in need of immediate care andprotection of the State.

33. The decision in Suresh Koushal (supra), as per the petitioners,is per incuriam as the view observed therein has failed to take intoaccount the amendment to Section 375 IPC which has rendered sexualF‘carnal intercourse against the order of nature’ between man and womanas permissible. Section 377, on the other hand, has continued to rendersame sex carnal intercourse as an offence, even if it is consensual.Further, the petitioners have assailed the decision of this Court in SureshKoushal’s case on the ground that the view in the said decision onclassification is contrary to the ‘impact or effect test’, for the result, inGultimate eventuality, leads to discrimination. Thus, the petitioners havecontended that after Puttaswamy (supra), the view in Suresh Koushal(supra) needs to be overruled and the proper test would be whetherSection 377 IPC can be enacted by the Parliament today after the

15 (2013) 2 SCC 398H16 (2013) 10 SCC 591

decisions of this Court in NALSA (supra) and Puttaswamy (supra) andother authorities laying immense emphasis on individual choice.

34. It is further contended that LGBT persons are deprived oftheir rights due to the presence of Section 377 as they fear prosecutionand persecution upon revealing their sexual identities and, therefore, thisclass of persons never approached this Court as petitioners, rather theyhave always relied upon their teachers, parents, mental healthprofessionals and other organizations such as NGOs to speak on theirbehalf. It is urged that the appellants in Suresh Koushal (supra) led thisCourt to assume that LGBT persons constitute only minuscule fractionwhereas most of the studies indicate that they constitute at least 7-8%of the population and that apart, rights are not determined on the basis ofpercentage of populace but on real scrutiny of the existence of rightand denial of the same. It is the stand of the petitioners that majorityperception or view cannot be the guiding factor for sustaining theconstitutionality of provision or to declare provision as unconstitutional.

D. Submissions on behalf of the respondents and otherintervenors

35. The respondent, Union of India, has, vide affidavit dated 11[th]July, 2018, submitted that the matter at hand was referred to ConstitutionBench to decide as to whether the law laid down in Suresh Koushal(supra) is correct or not and the only question referred to this Bench isthe question of the constitutional validity of criminalizing ‘consensualacts of adults in private’ falling under Section 377 IPC.

36. Further, the Union has submitted that so far as theconstitutional validity of Section 377 IPC, to the extent it applies to‘consensual acts of adults in private’, is concerned, the respondent leavesthe same to the wisdom of this Court.

37. The respondent has also contended that in the event Section377 IPC so far as ‘consensual acts of adults in private’ is declaredunconstitutional, other ancillary issues or rights which have not beenreferred to this Bench for adjudication may not be dealt with by thisBench as in that case, the Union of India expresses the wish to filedetailed affidavit in reply, for consideration of other issues and rightswould have far reaching and wide ramifications under various otherlaws and will also have consequences which are neither contemplatedin the reference nor required to be answered by this Hon’ble Bench.

38. The respondent has submitted that allowing any other issue(other than the constitutional validity of Section 377 IPC) to be arguedand adjudicating the same without giving an opportunity to the Union ofIndia to file counter affidavit may not be in the interest of justice andwould be violative of the principles of natural justice.

B39. Another set of written submissions has been filed by Shri K.Radhakrishnan, senior counsel, on behalf of intervenor-NGO, Trust GodMinistries. The said intervenor has submitted that the observations ofthis Court in Puttaswamy (supra), particularly in Para 146, virtually pre-empt and forestall the aforesaid NGO from raising substantial contentionsto the effect that there is no uncanalised and unbridled right to privacyCand the said right cannot be abused. Further, the intervenor has contendedthat there is no personal liberty to abuse one’s organs and that the offensiveacts proscribed by Section 377 IPC are committed by abusing the organs.Such acts, as per the intervenor, are undignified and derogatory to theconstitutional concept of dignity and if any infraction is caused to theDconcept of dignity, then it would amount to constitutional wrong andconstitutional immorality.

40. It is also the case of the intervenor that issues pertaining tothe constitutional and other legal rights of the transgender community,their gender identity and sexual orientation have been exhaustivelyEconsidered in the light of the various provisions of the Constitution and,accordingly, reliefs have been granted by this Court in NALSA (supra).It is contended by the intervenor that no further reliefs can be granted tothem and the prayers made by them is only to abuse privacy and personalliberty by transgressing the concepts of dignity and public morality.

41. As per the intervenor, Section 377 rightly makes the acts statedtherein punishable as Section 377 has been incorporated after takingnote of the legal systems and principles which prevailed in ancient Indiaand now in 2018, the said Section is more relevant legally, medically,morally and constitutionally.

42. To illustrate this, the intervenor has drawn the attention of thisCourt to W. Friedmann from ‘Law in Changing Society’ wherein hehas observed that to prohibit type of conduct which particular societyconsiders worthy of condemnation by criminal sanctions is deeplyinfluenced by the values governing that society and it, therefore, variesfrom one country to another and one period of history to another.

43. Further, it has been contended by the intervenor that personsindulging in unnatural sexual acts which have been made punishableunder Section 377 IPC are more susceptible and vulnerable to contractingHIV/AIDS and the percentage of prevalence of AIDS in homosexualsis much greater than heterosexuals and that the right to privacy may notbe extended in order to enable people to indulge in unnatural offencesand thereby contact AIDS.

44. It is also the case of the intervenor that if Section 377 isdeclared unconstitutional, then the family system which is the bulwarkof social culture will be in shambles, the institution of marriage will bedetrimentally affected and rampant homosexual activities for moneywould tempt and corrupt young Indians into this trade.

45. Written submissions have also been filed on behalf of Mr.Suresh Kumar Koushal, intervenor, submitting therein that the argumentof the petitioners that consensual acts of adults in private have beendecriminalized in many parts of the world and, therefore, it deserves tobe decriminalized in India as well does not hold good for several reasonsinasmuch as the political, economic and cultural heritage of those countriesare very different from India which is multi-cultural and multi-linguisticcountry.

46. The intervenor has contended that since fundamental rightsare not absolute, there is no unreasonableness in Section 377 IPC anddecriminalizing the same would run foul to all religions practised in thecountry, and, while deciding the ambit and scope of constitutional morality,Article 25 also deserves to be given due consideration.

47. Another application for intervention, being I.A No. 91250 of2018, was filed and the same was allowed. It has been contended by thesaid intervenor that in the attempt that Section 377 is struck down, itwould render the victims complaining of forced acts covered under theexisting Section 377 IPC remediless as the said Section not only impingeson carnal intercourse against the order of nature between two consentingadults but also applies to forced penile non- vaginal sexual intercoursebetween adults. This, as per the intervenor, would be contrary to thedecision of this Court in Iqbal Singh Marwah and another v.Meenakshi Marwah and another[17].

17 (2005) 4 SCC 370

48. The applicant has also submitted that in the event consentingacts between two same sex adults are excluded from the ambit of Section377 IPC, then married woman would be rendered remediless underthe IPC against her bi-sexual husband and his consenting male partnerindulging in any sexual acts.

B49. The intervenor has suggested that the alleged misuse of Section377 IPC as highlighted by the petitioners can be curbed by adding anexplanation to Section 377 IPC defining ‘aggrieved person’ which shallinclude only non-consenting partner or aggrieved person or wife orhusband or any person on their behalf on the lines of Section 198(1) ofCode of Criminal Procedure, 1973. This, as per the applicant, wouldCcurb any mala fide complaint lodged by authorities and vindictive ormischievous persons when the act complained of is ‘consenting act’between two persons. Further, the applicant has submitted that this Courtmay be pleased to identify that the courts shall take cognizance of anoffence under Section 377 IPC only on complaint made by an aggrievedDperson. Such an approach, as per the applicant, inherently respectsconsent and also protects from interference and safeguards the privacyand dignity of an individual under Article 21 of the Constitution.50. The applicant has also contended that the constitutionality ofany legislation is always to be presumed and if there is any vagueness inEthe definition of any section, the courts have to give such definitionwhich advances the purpose of the legislation and that the courts mustmake every effort to uphold the constitutional validity of statute if thatrequires giving stretched construction in view of the decisions of thisCourt in K.A. Abbas v. Union of India and another[18] and Rt. Rev.Msgr. Mark Netto v. State of Kerala and others[19].F

51. The applicant, through his learned counsel Mr. HarvinderChowdhury, submits that if the right to privacy as recognized inPuttaswamy (supra) is allowed its full scope and swing, then that itselfwould rule out prosecution in all cases of consensual unnatural sexbetween all couples, whether heterosexual or homosexual, and withoutGhaving to engage in reading down, much less striking down of, theprovisions of Section 377 IPC in its present form. This is so because theState cannot compel individuals engaging in consensual sexual acts fromtestifying against one another as it involves breach of privacy unless

18 (1970) 2 SCC 780H19 (1979) 1 SCC 23

the consent itself is under challenge and one cannot be consentingvictim of crime so long as the consent is legally valid.

52. Submissions have also been advanced on behalf of RazaAcademy, intervenor, through its learned counsel Mr. R.R Kishore, whohas contended that homosexuality is against the order of nature andSection 377 rightly forbids it. Prohibition against carnal intercourseinvolving penetration into non-sexual parts of the body does not constitutediscrimination as laws based on biological reality can never beunconstitutional, for if male is treated as male, female as femaleand transgender as transgender, it does not amount to discrimination.

53. The applicant has submitted that the purpose of criminal lawis to protect the citizens from something that is injurious and since carnalintercourse between two persons is offensive and injurious, it is wellwithin the State’s jurisdiction to put reasonable restrictions to forbid suchaberrant human behaviour by means of legislation, for it is the duty ofthe State that people with abnormal conduct are prohibited from imperilingthe life, health and security of the community. Unrestrained pleasure,and that too of lascivious nature, is not conducive for the growth of acivilized society, such inordinate gratification needs to be curbed and,thus, prohibition against carnal intercourse as defined in Section 377IPC does not violate the constitutional rights of person.

54. Another application for intervention, being I.A No. 9341 of2011, was filed and allowed. The applicant, in his written submissions,after delineating the concept of immorality, has submitted that the doctrineof manifest arbitrariness is of no application to the present case as thelaw is not manifestly or otherwise arbitrary, for Section 377 criminalizesan act irrespective of gender or sexual orientation of the persons involved.The universal application of the said provision without any gender bias isthe touchstone of Part III of the Constitution and is not arbitrary as thereis no intentional or unreasonable discrimination in the provision.

55. The applicant has drawn the attention of this Court to thecase of Fazal Rab Choudhary v. State of Bihar[20]wherein this Courtheld that the offence under Section 377 IPC implies sexual perversity.Further, it is the case of the applicant that there should not be identicaltransplantation of Western ideology in our country which has also beena matter of concern for this Court in Jagmohan Singh v. State of U.P.[21]

20 (1982) 3 SCC 9

21 (1973) 1 SCC 20

A56. The applicant, after citing the case of State of Gujarat v.Mirzapur Moti Kureshi Kassab Jamat and others[22], has stressed uponthe fact that the interest of citizen or section of the society, howsoeverimportant, is secondary to the interest of the country or community as awhole and while judging the reasonability of restrictions imposed onfundamental rights, due consideration must also be given to the DirectiveBPrinciples stated in Part IV. In view of these aforesaid submissions, theapplicant has submitted that fundamental rights may not be overstretchedand the Directive Principles of State Policy which are fundamental inthe governance of the country cannot be neglected, for they are not lesssignificant than what is fundamental in the life of an individual as held inCKesavananda Bharati v. Union of India[23].

57. Another application for intervention, being I.A. No. 76790 of2018, has been filed by Apostolic Alliance of Churches and the UtkalChristian Council. The applicants have submitted that the Court, whileinterpreting Section 377 IPC, has to keep in mind that there can beDsituations where consent is obtained by putting person in fear of deathor hurt or consent can also be obtained under some misconception ordue to unsoundness of mind, intoxication or inability to understand thenature and the consequences of the acts prohibited by Section 377 IPC.

58. The applicant has also advanced the argument that SectionE377 IPC in its present form does not violate Article 14 of the Constitutionas it merely defines particular offence and its punishment and it is wellwithin the power of the State to determine who should be regarded as aclass for the purpose of legislation and this, as per the applicant, isreasonable classification in the context of Section 377 IPC.F59. Further, the applicant has contended that Section 377 IPC is

F59. Further, the applicant has contended that Section 377 IPC isnot violative of Article 15 of the Constitution as the said Article prohibitsdiscrimination on the grounds of only religion, race, caste, sex, place ofbirth or any of them but not sexual orientation. The word ‘sexualorientation’, as per the applicant, is alien to our Constitution and thesame cannot be imported within it for testing the constitutional validity ofGa provision or legislation. As per the applicant, if the word ‘sex’ has to bereplaced by ‘sexual orientation’, it would require constitutionalamendment.

22 (2005) 8 SCC 534H23 (1973) 4 SCC 225

60. It is also the case of the applicant that the Yogyakarta principleswhich have been heavily relied upon by the petitioners to bolster theirstand have limited sanctity inasmuch as they do not amount to aninternational treaty binding on the State parties and there are no inter-governmentally negotiated international instruments or agreed humanrights treaties on the issue of LGBTs.

61. Further, the applicant has submitted that there is no requirementto reconsider the decision of this Court in Suresh Koushal (supra)wherein it was held that there is presumption of constitutionality of alegislation and the Court must adopt self-restraint and thereby refrainfrom giving birth to judicial legislation. In the applicant’s view, thelegislative wisdom of the Parliament must be respected and it must beleft to the Parliament to amend Section 377 IPC, if so desired.

62. The applicant has contended that if the prayers of thepetitioners herein are allowed, it would amount to judicial legislation, forthe Courts cannot add or delete words into statute. It is stated that thewords ‘consent’ and/or ‘without consent’ are not mentioned in Section377 IPC and, therefore, the Courts cannot make such an artificialdistinction. To buttress this stand, the applicant has relied upon the decisionof this Court in Sakshi v. Union of India and others[24]wherein it wasobserved that the attention of the Court should be on what has been saidand also on what has not been said while interpreting the statute and thatit would be wrong and dangerous for the Court to proceed by substitutingsome other words in statute since it is well settled that statute enactingan offence or imposing penalty has to be strictly construed.

63. The applicant has also drawn the attention of this Court to thedecision in Union of India and another v. Deoki Nandan Aggarwal[25]wherein it was observed that the Court cannot rewrite, recast or re-frame the legislation for the good reason that it has no power to legislatesince the power to legislate has not been conferred upon the Court and,therefore, the Courts cannot add words to statute or read words into itwhich are not there. The Courts are to decide what the law is and notwhat it should be.

64. It is also the case of the applicant that the decriminalization ofSection 377 IPC will open floodgate of social issues which the legislative24 (2004) 5 SCC 51825 1992 Supp. (1) SCC 323

Adomain is not capable of accommodating as same sex marriages wouldbecome social experiments with unpredictable outcome.

65. Further, it is the contention of the applicant that decriminalizationof Section 377 IPC will have cascading effect on existing laws such asSection 32(d) of the Parsi Marriage and Divorce Act, 1936; SectionB27(7)(1A) of the Special Marriage Act, 1954 which permits wife topresent petition for divorce to the district court on the ground,—(i) thather husband has, since the solemnization of the marriage, been guilty ofrape, sodomy or bestiality; Section 10(2) of the Indian Divorce Act, 1869and Section 13(2) of the Hindu Marriage Act, 1955.

CE. Decisions in Naz Foundation and Suresh Koushal

66. We shall now advert to what had been stated by the DelhiHigh Court in Naz Foundation and thereafter advert to the legal baseof the decision in Suresh Koushal’s case. The Delhi High Court hadtaken the view that Article 15 of the Constitution prohibits discriminationDon several enumerated grounds including sex. The High Court preferredan expansive interpretation of ‘sex’ so as to include prohibition ofdiscrimination on the ground of ‘sexual orientation’ and that sex-discrimination cannot be read as applying to gender simpliciter.Discrimination, as per the High Court’s view, on the basis of sexualorientation is grounded in stereotypical judgments and generalization aboutEthe conduct of either sex.

67. Another facet of the Indian Constitution that the High Courtdelineated was that of inclusiveness as the Indian Constitution reflectsthis value of inclusiveness deeply ingrained in the Indian society andnurtured over several generations. The High Court categorically saidFthat those who are perceived by the majority as deviants or different arenot to be, on that score, excluded or ostracised. In the High Court’sview, where society displays inclusiveness and understanding, the LGBTpersons can be assured of life of dignity and non-discrimination.68. It has been further opined by the High Court that theGConstitution does not permit any statutory criminal law to be held captiveof the popular misconceptions of who the LGBTs are, as it cannot beforgotten that discrimination is the antithesis of equality and recognitionof equality in its truest sense will foster the dignity of every individual.That apart, the High Court had taken the view that social morality has tosuccumb to the concept of constitutional morality.H

NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE[DIPAK MISRA, CJI ]

69. On the basis of the aforesaid reasons, the High Court declaredSection 377 IPC violative of Articles 14, 15 and 21 of the Constitution inso far as it criminalises consensual sexual acts of adults in private, whereasfor non-consensual penile non-vaginal sex and penile non-vaginal sexinvolving minors, the High Court ruled that Section 377 IPC was valid.

70. The Delhi High Court judgment was challenged in SureshKoushal (supra) wherein this Court opined that acts which fall withinthe ambit of Section 377 IPC can only be determined with reference tothe act itself and to the circumstances in which it is executed. While soopining, the Court held that Section 377 IPC would apply irrespective ofage and consent, for Section 377 IPC does not criminalize particularpeople or identity or orientation and only identifies certain acts which,when committed, would constitute an offence. Such prohibition, in theCourt’s view in Suresh Koushal (supra), regulates sexual conductregardless of gender identity and orientation.

71. The Court further observed that those who indulge in carnalintercourse in the ordinary course and those who indulge in carnalintercourse against the order of nature constitute different classes andthe people falling in the latter category cannot claim that Section 377IPC suffers from the vice of arbitrariness and irrational classification.The Court further observed that while reading down Section 377 of theIndian Penal Code, it cannot be overlooked that only minuscule fractionof the country’s population constitutes lesbians, gays, bisexuals ortransgenders and in last more than 150 years, less than 200 personshave been prosecuted under Section 377 of the Indian Penal Code whichcannot, therefore, be made sound basis for declaring Section 377 IPCultra vires the provisions of Articles 14, 15 and 21 of the Constitution.

72. The submission advanced by the respondents therein to theeffect that the provision had become pernicious tool for perpetratingharassment, blackmail and torture on those belonging to the LGBTcommunity was repelled by stating that such treatment is neither mandatedby the Section nor condoned by it and the mere fact that the Section ismisused by police authorities and others is not reflection of the vires ofthe Section, though it might be relevant factor for the Legislature toconsider while judging the desirability of amending Section 377 of theIndian Penal Code.

AF. Other judicial pronouncements on Section 377 IPC

73. Presently, we may refer to some of the judgments and theviews taken therein by this Court as well as by the High Courts onSection 377 IPC so as to have holistic perspective.

74. While interpreting the said provision, the Courts have heldBthat the provision stipulates certain acts, which when committed, wouldconstitute criminal offence. In Childline India Foundation andanother v. Allan John Waters and others[26], the Court was dealingwith carnal intercourse against the order of nature when the material onrecord showed that the accused Nos. 2 and 3 used to have sex andCfellatio with PWs 1 and 4. The Court opined that the ingredients ofSection 377 IPC were proved and, accordingly, restored the convictionand sentence of 6 years’ rigorous imprisonment and confirmed theimposition of fine. In Fazal Rab Choudhary (supra), although the Courtconvicted the accused under Section 377 IPC, yet it took note of theabsence of any force in the commission of the act. The Court also tookDinto account the prevalent notions of permissive society and the fact thathomosexuality has been legalized in some countries. In view of the same,the Court reduced the sentence of 3 years imposed on the accused to 6months opining that the aforesaid aspects must also be kept in view asthey have bearing on the question of offence and quantum of sentence.

E75. reference may be made to Khanu v. Emperor[27] whichwas also alluded to in Suresh Koushal’s case. We deem it appropriateto reproduce part of Khanu’s decision to understand how the courts inIndia had understood the word “carnal intercourse against the order ofnature”. The said passage reads thus:-F“The principal point in this case is: whether the accused (who isclearly guilty of having committed the sin of Gomorrah coitusper os) with certain little child, the innocent accomplice of hisabomination, has thereby committed an offence under Section377 of the Penal Code.GSection 377 punishes certain persons who have carnal intercourseagainst the order of nature with inter alia human beings. Is theact here committed one of carnal intercourse? If so, it is clearlyagainst the order of nature, because the natural object of carnal

26 (2011) 6 SCC 261H27 AIR 1925 Sind 286

intercourse is that there should be the possibility of conceptionof human beings which in the case of coitus per os is impossible.Intercourse may be defined as mutual frequent action by membersof independent organisation. Commercial intercourse [isthereafter referred to; emphasis is made on the reciprocity].

By metaphor the word intercourse like the word commerce isapplied to the relations of the sexes. Here also there is thetemporary visitation of one organism by member of otherorganisation, for certain clearly defined and limited objects. Theprimary object of the visiting organisation is to obtain euphoriaby means of detent of the nerves consequent on the sexualcrisis. But there is no intercourse unless the visiting member isenveloped at least partially by the visited organism, for intercourseconnotes reciprocity. Looking at the question in this way it wouldseem that sin of Gomorrah is no less carnal intercourse than thesin of sodomy. …

It is to be remembered that the Penal Code does not, except inSection 377, render abnormal sexual vice punishable at all. InEngland indecent assaults are punishable very severely. It ispossible that under the Penal Code, some cases might be met byprosecuting the offender for simple assault, but that is acompoundable offence and in any case the patient could in noway be punished. It is to be supposed that the legislature intendedthat Tigellinus should carry on his nefarious profession perhapsvitiating and depraving hundreds of children with perfectimmunity?

I doubt not, therefore, that coitus per os is punishable underSection 377 of the Penal Code.”

76. In Suresh Koushal’s case, there has also been reference tothe decision of the Gujarat High Court in Lohana Vasantlal Devchandv. State[28] wherein the issue presented before the High Court was whetheran offence under Section 377 read with Section 511 IPC had beencommitted on account of the convict putting his male organ in the mouthof the victim, if the act was done voluntarily by him. contention wasraised that there was no penetration and, therefore, there could not havebeen any carnal intercourse. The High Court referred to passage

Afrom the book ‘Pyschology of Sex’ [29] authored by Mr. Havelock Elliswhich reads thus:-

“While the kiss may be regarded as the typical and normalerogenic method of contrectation for the end of attainingtumescene, there are others only less important. Any orificalBcontact ‘between persons of opposite sex’ is sometimes almostequally as effective as the kiss in stimulating tumescene; all suchcontacts, indeed, belong to the group of which the kiss is thetype, Cunnilinctus (often incorrectly termed cunnilingus) andfellatio cannot be regarded as unnatural for they have theirprototypic forms among animals, and they are found amongCvarious savage races. As forms of contrecttion and aides totumescene they are thus natural and are sometimes regarded byboth sexes as quintessential forms of sexual pleasure, thoughthey may not be considered aesthetic. They become deviations,however, and this liable to be termed “perversions”, when theyDreplace the desire of coitus”

77. After referring to the definition of sodomy, the pronouncementin Khanu (supra), Stroud’s Judicial Dictionary, 3[rd] Edition and Webster’sNew 20[th] Century Dictionary, unabridged, 2[nd] Edition, the Gujarat HighCourt opined thus:-E“In the instant case, there was an entry of male penis in theorifice of the mouth of the victim. There was the enveloping of avisiting member by the visited organism. There was thusreciprocity; intercourse connotes reciprocity. It could, therefore,be said without any doubt in my mind that the act in question willFamount to an offence, punishable under Section 337 of the IndianPenal Code.”

78. The decision in State of Kerala v. Kundumkara Govindanand another[30]has also been reproduced in Suresh Koushal’s case.The High Court of Kerala held thus:-

G“18. Even if I am to hold that there was no penetration into thevagina and the sexual acts were committed only between thethighs, I do not think that the respondents can escape convictionunder Section 377 of the Penal Code. The counsel of the

29 ‘Psychology of Sex’ Twelfth Impression, 1948, LondonH30 1969 Cri LJ 818 (Ker)

respondents contends (in this argument the Public Prosecutoralso supports him) that sexual act between the thighs is notintercourse. The argument is that for intercourse there must beencirclement of the male organ by the organ visited; and that inthe case of sexual act between the thighs, there is no possibilityof penetration.

19. The word ‘intercourse’ means ‘sexual connection’ (ConciseOxford Dictionary). In Khanu v. Emperor the meaning of theword ‘intercourse’ has been considered: (AIR p. 286)

‘Intercourse may be defined as mutual frequent action bymembers of independent organisation.’

Then commercial intercourse, social intercourse, etc. have beenconsidered; and then appears:

‘By metaphor the word intercourse, like the word commerce,is applied to the relations of the sexes. Here also there is thetemporary visitation of one organism by member of the otherorganisation, for certain clearly defined and limited objects. Theprimary object of the visiting organisation is to obtain euphoriaby means of detent of the nerves consequent on the sexualcrisis. But there is no intercourse unless the visiting member isenveloped at least partially by the visited organism, for intercourseconnotes reciprocity.’Therefore, to decide whether there is intercourse or not, what isto be considered is whether the visiting organ is enveloped atleast partially by the visited organism. In intercourse betweenthe thighs, the visiting male organ is enveloped at least partiallyby the organism visited, the thighs: the thighs are kept togetherand tight.

20. Then about penetration. The word ‘penetrate’ means in theConcise Oxford Dictionary ‘find access into or through, passthrough.’ When the male organ is inserted between the thighskept together and tight, is there no penetration? The word ‘insert’means place, fit, thrust.’ Therefore, if the male organ is ‘inserted’or ‘thrust’ between the thighs, there is ‘penetration’ to constituteunnatural offence.

DEF

A21. Unnatural offence is defined in Section 377 of the PenalCode; whoever voluntarily has carnal intercourse against theorder of nature with any man, woman or animal commits unnaturaloffence. The act of committing intercourse between the thighsis carnal intercourse against the order of nature. Thereforecommitting intercourse by inserting the male organ between theBthighs of another is an unnatural offence. In this connection, itmay be noted that the act in Section 376 is ‘sexual intercourse’and the act in Section 377 is ‘carnal intercourse against the orderof nature’.

22. The position in English law on this question has been broughtCto my notice. The old decision of R. v. Samuel Jacobs[31] laysdown that penetration through the mouth does not amount to theoffence of sodomy under English law. The counsel thereforeargues that sexual intercourse between the thighs cannot alsobe an offence under Section 377 of the Penal Code. In Sirkar v.DGula Mythien Pillai Chaithu Maho Mathu[32] Full Bench ofthe Travancore High Court held that having connection with aperson in the mouth was an offence under Section 377 of thePenal Code. In short judgment, the learned Judges held that itwas unnecessary to refer to English Statute Law and Englishtext books which proceeded upon an interpretation of the words

Esodomy, buggery and bestiality; and that the words used in thePenal Code were very simple and wide enough to include allacts against the order of nature. My view on the question is alsothat the words of Section 377 are simple and wide enough toinclude any carnal intercourse against the order of nature withinFits ambit. Committing intercourse between the thighs of anotheris carnal intercourse against the order of nature.”

79. In Calvin Francis v. State of Orissa[33], the Orissa High Courthad reproduced certain passages from Corpus Juris Secundum,Vol. 81, pp. 368-70. We may reproduce the same:-G“A statute providing that any person who shall commit any actor practice of sexual perversity, either with mankind or beast, onconviction shall be punished, is not limited to instances involving

31 1817 Russ & Ry 331 : 168 ER 830 (CCR)32 (1908) 14 TLR Appendix 43 (Ker)H33 1992 (1) OLR 316

NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE[DIPAK MISRA, CJI ]

carnal copulation, but is restricted to cases involving the sex organof at least one of the parties. The term ‘sexual perversity’ doesnot refer to every physical contact by male with the body ofthe female with intent to cause sexual satisfaction to the actor,but the condemnation of the statute is limited to unnatural conductperformed for the purpose of accomplishing abnormal sexualsatisfaction for the actor. Under statute providing that any personparticipating in the act or copulating the mouth of one personwith the sexual organ of another is guilty of the offence personis guilty of violating the statute when he has placed his mouth onthe genital organ of another, and the offence may be committedby two persons of opposite sex.”

80. Referring to the said decision, the two-Judge Bench in SureshKoushal’s case has opined:-

“60. However, from these cases no uniform test can be culledout to classify acts as “carnal intercourse against the order ofnature”. In our opinion the acts which fall within the ambit ofSection 377 IPC can only be determined with reference to theact itself and the circumstances in which it is executed. All theaforementioned cases refer to non-consensual and markedlycoercive situations and the keenness of the Court in bringingjustice to the victims who were either women or children cannotbe discounted while analysing the manner in which the sectionhas been interpreted. We are apprehensive of whether the courtwould rule similarly in case of proved consensual intercoursebetween adults. …”

81. From the aforesaid analysis, it is perceptible that the two-Judge Bench has drawn distinction between the “class” andthe “act” that has been treated as an offence. On plain readingof the provision, it is noticeable that the “act” covers all categoriesof persons if the offence is committed. Thus, the seminal issuethat emerges for consideration, as has been understood by variousHigh Courts and this Court, is whether the act can be treated asa criminal offence if it violates Articles 19(1)(a) and 21 of theConstitution. Therefore, the provision has to be tested on theanvil of the said constitutional provisions. Additionally, it is alsoto be tested on the touchstone of Article 14 especially under thescanner of its second limb, that is, manifest arbitrariness. For

474SUPREME COURT REPORTS

Aadjudging the aforesaid facets, certain fundamental conceptswhich are intrinsically and integrally associated with the expressionof person who enjoys certain inalienable natural rights whichalso have been recognized under the Constitution are required tobe addressed. In this context, the individuality of person andthe acceptance of identity invite advertence to some necessaryBconcepts which eventually recognize the constitutional status ofan individual that resultantly brushes aside the “act” and respectsthe dignity and choice of the individual.

G. The Constitution – an organic charter of progressive rights

C82. democratic Constitution like ours is an organic and breathingdocument with senses which are very much alive to its surroundings, forit has been created in such manner that it can adapt to the needs anddevelopments taking place in the society. It was highlighted by this Courtin the case of Chief Justice of Andhra Pradesh and others v. L.V.A.Dixitulu and others[34]that the Constitution is living, integrated organismDhaving soul and consciousness of its own and its pulse beats, emanatingfrom the spinal cord of its basic framework, can be felt all over its body,even in the extremities of its limbs.

83. In the case of Saurabh Chaudri and others v. Union ofIndia and others[35], it was observed:-E

“Our Constitution is organic in nature, being living organ, it isongoing and with the passage of time, law must change. Horizonsof constitutional law are expanding.”

84. Thus, we are required to keep in view the dynamic conceptsinherent in the Constitution that have the potential to enable and urge theFconstitutional courts to beam with expansionism that really grows toadapt to the ever-changing circumstances without losing the identity ofthe Constitution. The idea of identity of the individual and the constitutionallegitimacy behind the same is of immense significance. Therefore, inthis context, the duty of the constitutional courts gets accentuated. WeGemphasize on the role of the constitutional courts in realizing the evolvingnature of this living instrument. Through its dynamic and purposiveinterpretative approach, the judiciary must strive to breathe life into theConstitution and not render the document collection of mere dead34 (1979) 2 SCC 34H35 (2003) 11 SCC 146

NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE[DIPAK MISRA, CJI ]

letters. The following observations made in the case of Ashok KumarGupta and another v. State of U.P. and others[36] further throws lighton this role of the courts:-

“Therefore, it is but the duty of the Court to supply vitality, bloodand flesh, to balance the competing rights by interpreting theprinciples, to the language or the words contained in the livingand organic Constitution, broadly and liberally.”

85. The rights that are guaranteed as Fundamental Rights underour Constitution are the dynamic and timeless rights of ‘liberty’ and‘equality’ and it would be against the principles of our Constitution togive them static interpretation without recognizing their transformativeand evolving nature. The argument does not lie in the fact that the conceptsunderlying these rights change with the changing times but the changingtimes illustrate and illuminate the concepts underlying the said rights. Inthis regard, the observations in Video Electronics Pvt. Ltd. and anotherv. State of Punjab and another[37] are quite instructive:-

“Constitution is living organism and the latent meaning of theexpressions used can be given effect to only if particularsituation arises. It is not that with changing times the meaningchanges but changing times illustrate and illuminate the meaningof the expressions used. The connotation of the expressions usedtakes its shape and colour in evolving dynamic situations.”

86. Our Constitution fosters and strengthens the spirit of equalityand envisions society where every person enjoys equal rights whichenable him/her to grow and realize his/her potential as an individual.This guarantee of recognition of individuality runs through the entirelength and breadth of this dynamic instrument. The Constitution has beenconceived of and designed in manner which acknowledges the factthat ‘change is inevitable’. It is the duty of the courts to realize theconstitutional vision of equal rights in consonance with the currentdemands and situations and not to read and interpret the same as per thestandards of equality that existed decades ago. The judiciary cannotremain oblivious to the fact that the society is constantly evolving andmany variation may emerge with the changing times. There is aconstant need to transform the constitutional idealism into reality byfostering respect for human rights, promoting inclusion of pluralism,

36 (1997) 5 SCC 20137 (1990) 3 SCC 87

Abringing harmony, that is, unity amongst diversity, abandoning the idea ofalienation or some unacceptable social notions built on medieval egosand establishing the cult of egalitarian liberalism founded on reasonableprinciples that can withstand scrutiny.

87. In Ashok Kumar Gupta (supra), the Court had observed thatBcommon sense has always served in the court’s ceaseless striving as avoice of reason to maintain the blend of change and continuity of orderwhich are sine qua non for stability in the process of change in aparliamentary democracy. The Court ruled that it is not bound to acceptan interpretation which retards the progress or impedes social integration.The Court further observed that it is required to adopt such interpretationCwhich would give the ideals set out in the Preamble to the Constitutionaided by Part III and Part IV meaningful and living reality for allsections of the society.

88. It is through this armoury of expansive dynamism that thecourts have been able to give an all-inclusive interpretation to theDfundamental rights enshrined in Part III of our Constitution. This is bornetestimony by the decisions of the constitutional courts which have evolvedviews for extending the protection of fundamental rights to those whohave been deprived of the enjoyment of the same. If not for such anapproach adopted by the courts, our Constitution and its progressiveEprinciples would have been rendered ineffective and the dynamic charterwould be reduced to mere ornate document without any purpose orobject.89. The Court, as the final arbiter of the Constitution, has to keepin view the necessities of the needy and the weaker sections. The roleFof the Court assumes further importance when the class or communitywhose rights are in question are those who have been the object ofhumiliation, discrimination, separation and violence by not only the Stateand the society at large but also at the hands of their very own familymembers. The development of law cannot be mute spectator to thestruggle for the realisation and attainment of the rights of such membersGof the society.

90. The authority in NALSA is one such recent illustration wherethe rights of transgenders as third sex was recognized which had beenlong due in democracy like ours. This Court ruled: -

“It is now very well recognized that the Constitution is livingcharacter; its interpretation must be dynamic. It must beunderstood in way that intricate and advances modern realty.The judiciary is the guardian of the Constitution and by ensuringto grant legitimate right that is due to TGs, we are simplyprotecting the Constitution and the democracy inasmuch asjudicial protection and democracy in general and of human rightsin particular is characteristic of our vibrant democracy.

As we have pointed out above, our Constitution inheres liberaland substantive democracy with rule of law as an important andfundamental pillar. It has its own internal morality based on dignityand equality of all human beings. Rule of law demands protectionof individual human rights. Such rights are to be guaranteed toeach and every human being. These TGs, even though insignificantin numbers, are still human beings and therefore they have everyright to enjoy their human rights.”

The ‘living document’ concept finds place in several internationalauthorities as well. The courts in other jurisdictions have endorsed theview that the Constitution is forever evolving in nature and that aprogressive approach is mandated by the principles inherent in theConstitution itself.

91. The Supreme Court of Canada, while giving an expansiveinterpretation to marriage by including same-sex unions within itsencompass, in Re: Same Sex Marriage[38], has observed:-

“The “frozen concepts” reasoning runs contrary to one of themost fundamental principles of Canadian constitutionalinterpretation: that our Constitution is living tree which, by wayof progressive interpretation, accommodates and addresses therealities of modern life.”

92. As early as the 1920s, the Supreme Court of the United Statesin the case of State of Missouri v. Holland[39], while making comparisonbetween the ‘instrument in dispute’ and the ‘Constitution’, had made thefollowing observations with regard to the nature of the Constitution:-

“When we are dealing with words that also are constituentact, like the Constitution of the United States, we must realize38 [2004] 3 S.C.R. 69839 252 U.S. 416 (1920)

Athat they have called into life being the development of whichcould not have been foreseen completely by the most gifted ofits begetters. It was enough for them to realize or to hope thatthey had created an organism; it has taken century and hascost their successors much sweat and blood to prove that theycreated nation.”

93. In one of his celebrated works, Judge Richard Posner madecertain observations which would be relevant to be reproduced here:-

“A constitution that did not invalidate so offensive, oppressive,probably undemocratic, and sectarian law [as the ConnecticutClaw banning contraceptives] would stand revealed as containingmajor gaps. Maybe that is the nature of our, or perhaps any,written Constitution; but yet, perhaps the courts are authorizedto plug at least the most glaring gaps. Does anyone really believe,in his heart of hearts, that the Constitution should be interpretedso literally as to authorize every conceivable law that would notDviolate specific constitutional clause? This would mean that astate could require everyone to marry, or to have intercourse atleast once month, or it could take away every couple’s secondchild and place it in foster home.... We find it reassuring tothink that the courts stand between us and legislative tyrannyEeven if particular form of tyranny was not foreseen andexpressly forbidden by framers of the Constitution.”[40]

94. Thus, it is demonstrable that expansive growth of constitutionalidealism is embedded in the theory of progress, abandonment of statusquoist attitude, expansion of the concept of inclusiveness and constantFremembrance of the principle of fitting into the norm of change with aconstitutional philosophy.

H. Transformative constitutionalism and the rights of LGBTcommunity

95. For understanding the need of having constitutionalGdemocracy and for solving the million dollar question as to why we adoptedthe Constitution, we perhaps need to understand the concept oftransformative constitutionalism with some degree of definiteness. Inthis quest of ours, the ideals enshrined in the Preamble to our Constitution

40 Posner, Richard: (1992) Sex and Reason, Harvard University Press, pg. 328.HISBN 0-674- 80280-2

would be guiding laser beam. The ultimate goal of our magnificentConstitution is to make right the upheaval which existed in the Indiansociety before the adopting of the Constitution. The Court in State ofKerala and another v. N.M. Thomas and others[41]observed that theIndian Constitution is great social document, almost revolutionary in itsaim of transforming medieval, hierarchical society into modern,egalitarian democracy and its provisions can be comprehended only bya spacious, social-science approach, not by pedantic, traditional legalism.The whole idea of having Constitution is to guide the nation towards aresplendent future. Therefore, the purpose of having Constitution is totransform the society for the better and this objective is the fundamentalpillar of transformative constitutionalism.

96. The concept of transformative constitutionalism has at its kernela pledge, promise and thirst to transform the Indian society so as toembrace therein, in letter and spirit, the ideals of justice, liberty, equalityand fraternity as set out in the Preamble to our Constitution. Theexpression ‘transformative constitutionalism’ can be best understood byembracing pragmatic lens which will help in recognizing the realities ofthe current day. Transformation as singular term is diametrically opposedto something which is static and stagnant, rather it signifies change,alteration and the ability to metamorphose. Thus, the concept oftransformative constitutionalism, which is an actuality with regard to allConstitutions and particularly so with regard to the Indian Constitution,is, as matter of fact, the ability of the Constitution to adapt and transformwith the changing needs of the times.97. It is this ability of Constitution to transform which gives itthe character of living and organic document. Constitutioncontinuously shapes the lives of citizens in particular and societies ingeneral. Its exposition and energetic appreciation by constitutional courtsconstitute the lifeblood of progressive societies. The Constitution wouldbecome stale and dead testament without dynamic, vibrant and pragmaticinterpretation. Constitutional provisions have to be construed anddeveloped in such manner that their real intent and existence percolatesto all segments of the society. That is the raison d’etre for the Constitution.

98. The Supreme Court as well as other constitutional courts havetime and again realized that in society undergoing fast social andeconomic change, static judicial interpretation of the Constitution would41 AIR 1976 SC 490

Astultify the spirit of the Constitution. Accordingly, the constitutional courts,while viewing the Constitution as transformative document, haveardently fulfilled their obligation to act as the sentinel on qui vive forguarding the rights of all individuals irrespective of their sex, choice andsexual orientation.

B99. The purpose of transformative constitutionalism has been aptlydescribed in the case of Road Accident Fund and another v. Mdeyide[42]wherein the Constitutional Court of South Africa, speaking in the contextof the transformative role of the Constitution of South Africa, hadobserved:-

“Our Constitution has often been described as “transformative”.COne of the most important purposes of this transformation is toensure that, by the realisation of fundamental socio-economicrights, people disadvantaged by their deprived social andeconomic circumstances become more capable of enjoying alife of dignity, freedom and equality that lies at the heart of ourDconstitutional democracy.”100. In Bato Star Fishing (Pty) Ltd v. Minister of EnvironmentalAffairs and Tourism and others[43], the Constitutional Court of SouthAfrica opined:-

“The achievement of equality is one of the fundamental goalsEthat we have fashioned for ourselves in the Constitution. Ourconstitutional order is committed to the transformation of oursociety from grossly unequal society to one “in which there isequality between men and women and people of all races”. Inthis fundamental way, our Constitution differs from otherFconstitutions which assume that all are equal and in so doingsimply entrench existing inequalities. Our Constitution recognisesthat decades of systematic racial discrimination entrenched bythe apartheid legal order cannot be eliminated without positiveaction being taken to achieve that result. We are required to domore than that. The effects of discrimination may continueGindefinitely unless there is commitment to end it.”

101. Davies[44] understands transformation as follows:-

42 2008 (1) SA 535 (CC)

43 [2004] ZACC 15

44 Asking the Law Question: The Dissolution of Legal Theory 205 (2002), MargaretHDavies.

“Transformation which is based on the continuing evaluation andmodification of complex material and ideological environmentcannot be reduced to scientific theory of change, like those ofevolution or the halflife of radioactive substances ... practicalchange occurs within climate of serious reflection, and diversityof opinion is in my view absolutely essential as stimulus totheory.”

102. J Van der Walt[45] has metaphorically, by comparing‘constitutional transformation’ to ‘dancing’, described the art ofconstitutional transformation to be continually progressive where onedoes not stop from daring to imagine alternatives and that the societycould be different and better place where the rights of every individualare given due recognition:-

“However, even when we trade the static imagery of position,standing, for the more complex imagery of dancing, we still haveto resist the temptation to see transformation as linear movementor progress - from authoritarianism to justification, from onedancing code to another, or from volkspele jurisprudence totoyitoyi jurisprudence... I suggest that we should not only switchto more complex metaphorical code such as dancing whendiscussing transformation, but that we should also deconstructthe codes we dance to; pause to reflect upon the language interms of which we think and talk and reason aboutconstitutionalism, about rights, and about transformation, andrecognize the liberating and the captivating potential of the codesshaping and shaped by that language.

103. Again, the Supreme Court of South Africa in President ofthe Republic of South Africa v. Hugo[46]observed that the prohibitionon unfair discrimination in the interim Constitution seeks not only to avoiddiscrimination against people who are members of disadvantaged groupsbut also that at the heart of the prohibition of unfair discrimination lies arecognition that the purpose of our new constitutional and democraticorder is the establishment of society in which all human beings will beaccorded equal dignity and respect, regardless of their membership ofparticular groups.

45 Van der Walt, Dancing with codes - Protecting, developing and deconstructing propertyrights in constitutional state, 118 (2) J. S. APR. L. 258 (2001)46 (1997) 6 B.C.L.R. 708 (CC)

A104. Equality does not only imply recognition of individual dignitybut also includes within its sphere ensuring of equal opportunity to advanceand develop their human potential and social, economic and legal interestsof every individual and the process of transformative constitutionalism isdedicated to this purpose. It has been observed by Albertyn &Goldblatt[47]:-B

“The challenge of achieving equality within this transformationproject involves the eradication of systemic forms ofdiscrimination and material disadvantage based on race, gender,class and other forms of inequality. It also entails the developmentof opportunities which allow people to realise their full humanCpotential within positive social relationships.”

105. In Investigating Directorate: Serious Economic Offencesand others v. Hyundai Motor Distributors (Pty) Ltd and others: InRe Hyundai Motor Distributors (Pty) Ltd and others v. Smit NO andothers[48], the Constitutional Court of South Africa observed:-D

“The Constitution is located in history which involves transitionfrom society based on division, injustice and exclusion fromthe democratic process to one which respects the dignity of allcitizens and includes all in the process of governance. As such,the process of interpreting the Constitution must recognise theEcontext in which we find ourselves and the Constitution’s goal ofa society based on democratic values, social justice andfundamental human rights. This spirit of transition andtransformation characterises the constitutional enterprise as awhole.

... The Constitution requires that judicial officers read legislation,where possible, in ways which give effect to its fundamentalvalues. Consistently with this, when the constitutionality oflegislation is in issue, they are under duty to examine theobjects and purport of an Act and to read the provisions of theGlegislation, so far as is possible, in conformity with theConstitution.”

47 Albertyn & Goldblatt, Facing the challenge of transformation: Difficulties in thedevelopment of an indigenous jurisprudence of equality, 14 S. AFR. J. HUM. RTS.248 (1998)

48 2001 (1) SA 545 (CC)H

106. The society has changed much now, not just from the year1860 when the Indian Penal Code was brought into force but there hasalso been continuous progressive change. In many spheres, the sexualminorities have been accepted. They have been given space after theNALSA judgment but the offence punishable under Section 377 IPC, assubmitted, creates chilling effect. The freedom that is required to beattached to sexuality still remains in the pavilion with no nerves to move.The immobility due to fear corrodes the desire to express one’s ownsexual orientation as consequence of which the body with flesh andbones feels itself caged and sense of fear gradually converts itself intoa skeleton sans spirit.

107. The question of freedom of choosing partner is reflectivefrom catena of recent judgments of this Court such as Shafin Jahan(supra) wherein the Court held that person who has come of age andhas the capability to think on his/her own has right to choose his/herlife partner. It is apposite to reproduce some of the observations madeby the Court which are to the following effect:-

“It is obligatory to state here that expression of choice in accordwith law is acceptance of individual identity. Curtailment of thatexpression and the ultimate action emanating therefrom on theconceptual structuralism of obeisance to the societal will destroythe individualistic entity of person. The social values and moralshave their space but they are not above the constitutionallyguaranteed freedom. The said freedom is both constitutionaland human right. Deprivation of that freedom which is ingrainedin choice on the plea of faith is impermissible.”

108. Recently, in Shakti Vahini (supra), the Court has ruled thatthe right to choose life partner is facet of individual liberty and theCourt, for the protection of this right, issued preventive, remedial andpunitive measures to curb the menace of honour killings. The Courtobserved:-

“When the ability to choose is crushed in the name of class honourand the person’s physical frame is treated with absolute indignity,a chilling effect dominates over the brains and bones of the societyat large.”

109. An argument is sometimes advanced that what is permissiblebetween two adults engaged in acceptable sexual activity is different in

Athe case of two individuals of the same sex, be it homosexuals or lesbians,and the ground of difference is supported by social standardization.Such an argument ignores the individual orientation, which is naturallynatural, and disrobes the individual of his/her identity and the inherentdignity and choice attached to his/her being.

B110. The principle of transformative constitutionalism also placesupon the judicial arm of the State duty to ensure and uphold thesupremacy of the Constitution, while at the same time ensuring that asense of transformation is ushered constantly and endlessly in the societyby interpreting and enforcing the Constitution as well as other provisionsof law in consonance with the avowed object. The idea is to steer theCcountry and its institutions in democratic egalitarian direction wherethere is increased protection of fundamental rights and other freedoms.It is in this way that transformative constitutionalism attains the status ofan ideal model imbibing the philosophy and morals of constitutionalismand fostering greater respect for human rights. It ought to be rememberedDthat the Constitution is not mere parchment; it derives its strength fromthe ideals and values enshrined in it. However, it is only when we adhereto constitutionalism as the supreme creed and faith and develop aconstitutional culture to protect the fundamental rights of an individualthat we can preserve and strengthen the values of our compassionateConstitution.E

I. Constitutional morality and Section 377 IPC

111. The concept of constitutional morality is not limited to themere observance of the core principles of constitutionalism as themagnitude and sweep of constitutional morality is not confined to theFprovisions and literal text which Constitution contains, rather it embraceswithin itself virtues of wide magnitude such as that of ushering apluralistic and inclusive society, while at the same time adhering to theother principles of constitutionalism. It is further the result of embodyingconstitutional morality that the values of constitutionalism trickle downand percolate through the apparatus of the State for the betterment ofGeach and every individual citizen of the State.

112. In one of the Constituent Assembly Debates, Dr. Ambedkar,explaining the concept of constitutional morality by quoting the Greekhistorian, George Grote, said:-

“By constitutional morality, Grote meant... paramount reverencefor the forms of the constitution, enforcing obedience to authorityand acting under and within these forms, yet combined with thehabit of open speech, of action subject only to definite legal control,and unrestrained censure of those very authorities as to all theirpublic acts combined, too with perfect confidence in the bosomof every citizen amidst the bitterness of party contest that theforms of constitution wall not be less sacred in the eyes of hisopponents than his own.”[49]

113. Our Constitution was visualized with the aim of securing tothe citizens of our country inalienable rights which were essential forfostering spirit of growth and development and at the same time ensuringthat the three organs of the State working under the aegis of theConstitution and deriving their authority from the supreme document,that is, the Constitution, practise constitutional morality. The Executive,the Legislature and the Judiciary all have to stay alive to the concept ofconstitutional morality.

114. In the same speech[50], Dr. Ambedkar had quoted GeorgeGrote who had observed:-

“The diffusion of ‘constitutional morality’, not merely among themajority of any community, but throughout the whole is theindispensable condition of government at once free andpeaceable; since even any powerful and obstinate minority mayrender the working of free institution impracticable, withoutbeing strong enough to conquer ascendance for themselves.”[51]

This statement of Dr. Ambedkar underscores that constitutionalmorality is not natural forte for our country for the simple reason thatour country had attained freedom after long period of colonial rule and,therefore, constitutional morality at the time when the ConstituentAssembly was set up was an alien notion. However, the strengtheningof constitutional morality in contemporary India remains duty of theorgans of the State including the Judiciary.

115. The society as whole or even minuscule part of thesociety may aspire and prefer different things for themselves. They are

49 Constituent Assembly Debates, Vol. 7 (4th November 1948)

50 Ibid

51 Grote, History of Greece. Routledge, London, 2000, p. 93.

Aperfectly competent to have such freedom to be different, like differentthings, so on and so forth, provided that their different tastes and likingremain within their legal framework and neither violates any statute norresults in the abridgement of fundamental rights of any other citizen.The Preambular goals of our Constitution which contain the nobleobjectives of Justice, Liberty, Equality and Fraternity can only be achievedBthrough the commitment and loyalty of the organs of the State to theprinciple of constitutional morality.116. It is the concept of constitutional morality which strives andurges the organs of the State to maintain such heterogeneous fibre inthe society, not just in the limited sense, but also in multifarious ways. ItCis the responsibility of all the three organs of the State to curb anypropensity or proclivity of popular sentiment or majoritarianism. Anyattempt to push and shove homogeneous, uniform, consistent and astandardised philosophy throughout the society would violate the principleof constitutional morality. Devotion and fidelity to constitutional moralityDmust not be equated with the popular sentiment prevalent at particularpoint of time.

117. Any asymmetrical attitude in the society, so long as it is withinthe legal and constitutional framework, must at least be provided anenvironment in which it could be sustained, if not fostered. It is onlyEwhen such an approach is adopted that the freedom of expressionincluding that of choice would be allowed to prosper and flourish and ifthat is achieved, freedom and liberty, which is the quintessence ofconstitutional morality, will be allowed to survive.

118. In Government of NCT of Delhi v. Union of India andFothers[52], one of us (Dipak Misra, CJI) observed:-

“Constitutional morality, appositely understood, means the moralitythat has inherent elements in the constitutional norms and theconscience of the Constitution. Any act to garner justificationmust possess the potentiality to be in harmony with theGconstitutional impulse. We may give an example. When one isexpressing an idea of generosity, he may not be meeting thestandard of justness. There may be an element of condescension.But when one shows justness in action, there is no feeling of anygrant or generosity. That will come within the normative value.

H52 2018 (8) SCALE 72

That is the test of constitutional justness which falls within thesweep of constitutional morality. It advocates the principle ofconstitutional justness without subjective exposition of generosity.”

119. The duty of the constitutional courts is to adjudge the validityof law on well-established principles, namely, legislative competence orviolations of fundamental rights or of any other constitutional provisions.At the same time, it is expected from the courts as the final arbiter of theConstitution to uphold the cherished principles of the Constitution andnot to be remotely guided by majoritarian view or popular perception.The Court has to be guided by the conception of constitutional moralityand not by the societal morality.

120. We may hasten to add here that in the context of the issue athand, when penal provision is challenged as being violative of thefundamental rights of section of the society, notwithstanding the factwhether the said section of the society is minority or majority, themagna cum laude and creditable principle of constitutional morality, in aconstitutional democracy like ours where the rule of law prevails, mustnot be allowed to be trampled by obscure notions of social morality whichhave no legal tenability. The concept of constitutional morality wouldserve as an aid for the Court to arrive at just decision which would bein consonance with the constitutional rights of the citizens, howsoeversmall that fragment of the populace may be. The idea of number, in thiscontext, is meaningless; like zero on the left side of any number.

121. In this regard, we have to telescopically analyse socialmorality vis-à-vis constitutional morality. It needs no special emphasis tostate that whenever the constitutional courts come across situation oftransgression or dereliction in the sphere of fundamental rights, whichare also the basic human rights of section, howsoever small part of thesociety, then it is for the constitutional courts to ensure, with the aid ofjudicial engagement and creativity, that constitutional morality prevailsover social morality.122. In the garb of social morality, the members of the LGBTcommunity must not be outlawed or given step-motherly treatment ofmalefactor by the society. If this happens or if such treatment to theLGBT community is allowed to persist, then the constitutional courts,which are under the obligation to protect the fundamental rights, wouldbe failing in the discharge of their duty. failure to do so would reducethe citizenry rights to cipher.

DEF

A123. We must not forget that the founding fathers adopted aninclusive Constitution with provisions that not only allowed the State, butalso, at times, directed the State, to undertake affirmative action toeradicate the systematic discrimination against the backward sectionsof the society and the expulsion and censure of the vulnerablecommunities by the so-called upper caste/sections of the society thatBexisted on massive scale prior to coming into existence of theConstituent Assembly. These were nothing but facets of the majoritariansocial morality which were sought to be rectified by bringing into forcethe Constitution of India. Thus, the adoption of the Constitution, was, ina way, an instrument or agency for achieving constitutional morality andCmeans to discourage the prevalent social morality at that time. countryor society which embraces constitutional morality has at its core thewell-founded idea of inclusiveness.

124. While testing the constitutional validity of impugned provisionof law, if constitutional court is of the view that the impugned provisionDfalls foul to the precept of constitutional morality, then the said provisionhas to be declared as unconstitutional for the pure and simple reasonthat the constitutional courts exist to uphold the Constitution.

J. Perspective of human dignity

125. While discussing about the role of human dignity in gay rightsEadjudication and legislation, Michele Finck[53] observes:-

“As concept devoid of precise legal meaning, yet widelyappealing at an intuitive level, dignity- can be easily manipulatedand transposed into number of legal contexts. With regard tothe rights of lesbian and gay individuals, dignity captures whatFNussbaum described as the transition from “disgust” to“humanity.” Once looked at with disgust and considered unworthyof some rights, there is increasing consensus that homosexualsshould no longer be deprived of the benefits of citizenship thatare available to heterosexuals, such as the ability to contractGmarriage, on the sole ground of their sexual orientation.Homosexuals are increasingly considered as “full humans”disposing of equal rights, and dignity functions as the vocabularythat translates such socio-cultural change into legal change”

53 The role of human dignity in gay rights adjudication and legislation: comparativeperspective, Michele Finck, International Journal of Constitutional Law, Volume 14,HJan 2016, page no.26 to 53

NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE[DIPAK MISRA, CJI ]

126. The Universal Declaration of Human Rights, 1948 becamethe Magna Carta of people all over the world. The first Article of theUDHR was uncompromising in its generality of application: All humanbeings are born free and equal in dignity and rights. Justice Kirbysuccinctly observed:-

“This language embraced every individual in our world. It didnot apply only to citizens. It did not apply only to ‘white’ people.It did not apply only to good people. Prisoners, murderers andeven traitors were to be entitled to the freedoms that weredeclared. There were no exceptions to the principles ofequality.”[54]

127. The fundamental idea of dignity is regarded as an inseparablefacet of human personality. Dignity has been duly recognized as animportant aspect of the right to life under Article 21 of the Constitution.In the international sphere, the right to live with dignity had been identifiedas human right way back in 1948 with the introduction of the UniversalDeclaration of Human Rights. The constitutional courts of our countryhave solemnly dealt with the task of assuring and preserving the right todignity of each and every individual whenever the occasion arises, forwithout the right to live with dignity, all other fundamental rights may notrealise their complete meaning.

128. To understand person’s dignity, one has to appreciate howthe dignity of another is to be perceived. Alexis de Tocqueville tells us[55]:-

“Whenever I find myself in the presence of another human being,of whatever station, my dominant feeling is not so much to servehim or please him as not to offend his dignity.”

129. Every individual has many possessions which assume theposition of his/her definitive characteristics. There may not be anyobsession with them but he/she may abhor to be denuded of them, forthey are sacred to him/her and so inseparably associated that he/shemay not conceive of any dissolution. He/she would like others to respectthe said attributes with singular acceptable condition that there is mutualrespect. Mutual respect abandons outside interference and is averse toany kind of interdiction. It is based on the precept that the individuality of

54 Human Rights Gay Rights by Michael Kirby, Published in ‘Humane Rights’ in 2016by Future Leaders

55 56, New York State Bar Journal (No 3. April, 1984), p.50

Aan individual is recognized, accepted and respected. Such respect forthe conception of dignity has become fundamental right under Article21 of the Constitution and that ushers in the right of liberty of expression.Dignity and liberty as twin concept in society that cares for both,apart from painting grand picture of humanity, also smoothens theatmosphere by promoting peaceful co-existence and thereby makes theBadministration of justice easy. In such society, everyone becomes apart of the social engineering process where rights as inviolable andsacrosanct principles are adhered to; individual choice is not an exceptionand each one gets his/her space. Though no tower is built, yet the towerof individual rights with peaceful co-existence is visible.

130. In Common Cause (A Regd. Society) (supra), one of ushas observed that human dignity is beyond definition and it may, attimes, defy description. To some, it may seem to be in the world ofabstraction and some may even perversely treat it as an attribute ofegotism or accentuated eccentricity. This feeling may come from theDroots of absolute cynicism, but what really matters is that life withoutdignity is like sound that is not heard. Dignity speaks, it has its sound, itis natural and human. It is combination of thought and feeling.

131. In Maneka Gandhi v. Union of India and another[56],Krishna Iyer, J. observed that life is terrestrial opportunity for unfoldingEpersonality and when any aspect of Article 21 is viewed in truncatedmanner, several other freedoms fade out automatically. It has to be bornein mind that dignity of all is sacrosanct human right and sans dignity,human life loses its substantial meaning.

132. Dignity is that component of one’s being without whichFsustenance of his/her being to the fullest or completest is inconceivable.In the theatre of life, without possession of the attribute of identity withdignity, the entity may be allowed entry to the centre stage but would becharacterized as spineless entity or, for that matter, projected as aruling king without the sceptre. The purpose of saying so is that theidentity of every individual attains the quality of an “individual being”Gonly if he/she has the dignity. Dignity while expressive of choice is averseto creation of any dent. When biological expression, be it an orientationor optional expression of choice, is faced with impediment, albeit throughany imposition of law, the individual’s natural and constitutional right is

56 (1978) 1 SCC 248H

dented. Such situation urges the conscience of the final constitutionalarbiter to demolish the obstruction and remove the impediment so as toallow the full blossoming of the natural and constitutional rights ofindividuals. This is the essence of dignity and we say, without anyinhibition, that it is our constitutional duty to allow the individual to behaveand conduct himself/herself as he/she desires and allow him/her to expresshimself/herself, of course, with the consent of the other. That is the rightto choose without fear. It has to be ingrained as necessary pre-requisitethat consent is the real fulcrum of any sexual relationship.

133. In this context, we may travel little abroad. In Law v.Canada (Minister of Employment and Immigration)[57] capturing theessence of dignity, the Supreme Court of Canada has made the followingobservations:-

“Human dignity means that an individual or group feels self-respect and self-worth. It is concerned with physical andpsychological integrity and empowerment. Human dignity isharmed by unfair treatment premised upon personal traits orcircumstances which do not relate to individual needs, capacities,or merits. It is enhanced by laws which are sensitive to the needs,capacities, and merits of different individuals, taking into accountthe context underlying their differences. Human dignity is harmedwhen individuals and groups are marginalized, ignored, ordevalued, and is enhanced when laws recognise the full place ofall individuals and groups within Canadian society.”

134. It is not only the duty of the State and the Judiciary to protectthis basic right to dignity, but the collective at large also owes aresponsibility to respect one another’s dignity, for showing respect forthe dignity of another is constitutional duty. It is an expression of thecomponent of constitutional fraternity.

135. The concept of dignity gains importance in the presentscenario, for challenge has been raised to provision of law whichencroaches upon this essential right of severely deprived section ofour society. An individual’s choice to engage in certain acts within theirprivate sphere has been restricted by criminalising the same on accountof the age old social perception. To harness such an essential decision,which defines the individualism of person, by tainting it with criminality

57 1999 1 S.C.R. 497

Awould violate the individual’s right to dignity by reducing it to mere letterswithout any spirit.

136. The European Court of Justice in P v. S[58] in the context ofrights of individuals who intend to or have undergone sex reassignmenthas observed that where person is dismissed on the ground that he orBshe intends to undergo or has undergone gender reassignment, he or sheis treated unfavorably by comparison with persons of the sex to whichhe or she was deemed to belong before undergoing gender reassignment.To tolerate such discrimination would tantamount, as regards such aperson, to failure to respect the dignity and freedom to which he or sheis entitled and which the Court has duty to safeguard.C

137. In Planned Parenthood of Southeastern Pa. v. Casey[59],the United States Supreme Court had opined that such matters whichinvolve the most intimate and personal choices person may make in alifetime, choices central to personal dignity and autonomy, are central tothe liberty protected by the Fourteenth Amendment.D

138. From the aforesaid pronouncements, some in differentspheres but some also in the sphere of sexual orientation, the constitutionalcourts have laid emphasis on individual inclination, expression of bothemotional and physical behaviour and freedom of choice, of course,subject to the consent of the other. biological engagement, inEcontradistinction to going to restaurant or going to theatre to see afilm or play, is founded on company wherein both the parties haveconsented for the act. The inclination is an expression of choice thatdefines the personality to cumulatively build up the elevated paradigm ofdignity. Be it clarified that expression of choice, apart from being facetFof dignity, is also an essential component of liberty. Liberty as concepthas to be given its due place in the realm of dignity, for both are connectedwith the life and living of persona.

K. Sexual orientation

139. After stating about the value of dignity, we would haveGproceeded to deal with the cherished idea of privacy which has recentlyreceived concrete clarity in Puttaswamy’s case. Prior to that, we areadvised to devote some space to sexual orientation and the instructive

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definition of LGBT by Michael Kirby, former Judge of the High Court ofAustralia:-

“Homosexual: People of either gender who are attracted, sexually,emotionally and in relationships, to persons of the same sex.

Bisexual: Women who are attracted to both sexes; men who are attractedto both sexes.

Lesbian: Women who are attracted to women.

Gay: Men who are attracted to men, although this term is sometimesalso used generically for all same-sex attracted persons.

Gender identity: phenomenon distinct from sexual orientation whichrefers to whether person identifies as male or female. This identity’may exist whether there is “conformity or non-conformity” betweentheir physical or biological or birth sex and their psychological sex andthe way they express it through physical characteristics, appearanceand conduct. It applies whether, in the Indian sub-continent, they identifyas hijra or kothi or by another name.

Intersex: Persons who are born with chromosomal pattern or physicalcharacteristics that do not clearly fall on one side or the other of binarymalefemale line.

LGBT or LGBTIQ: Lesbian, Gay, Bisexual, Transsexual, Intersex andQueer minorities. The word ‘Queer’ is sometimes used generically,usually by younger people, to include the members of all of the sexualminorities. I usually avoid this expression because of its pejorativeovertones within an audience unfamiliar with the expression. However,it is spreading and, amongst the young, is often seen as an instance oftaking possession of pejorative word in order to remove its sting.

MSM: Men who have sex with men. This expression is common inUnited Nations circles. It refers solely to physical, sexual activity bymen with men. The expression is used on the basis that in some countries- including India - some men may engage in sexual acts with their ownsex although not identifying as homosexual or even accepting romanticor relationship emotion.”[60]

140. Presently, we shall focus on the aspect of sexual orientation.Every human being has certain basic biological characteristics andacquires or develops some facets under certain circumstances. The first

60 Sexual Orientation & Gender Identity – New Province of Law for India, J. MichaelD. Kirby, Tagore Lectures, 2013

Acan generally be termed as inherent orientation that is natural to his/herbeing. The second can be described as demonstration of his/her choicewhich gradually becomes an inseparable quality of his/her being, for theindividual also leans on different expression because of the inclinationto derive satisfaction. The third one has the proclivity which he/shemaintains and does not express any other inclination. The first one isBhomosexuality, the second, bisexuality and third, heterosexuality. Thethird one is regarded as natural and the first one, by the same standard,is treated to be unnatural. When the second category exercises his/herchoice of homosexuality and involves in such an act, the same is also notaccepted. In sum, the ‘act’ is treated either in accord with nature orCagainst the order of nature in terms of societal perception.141. The Yogyakarta Principles define the expression “sexualorientation” thus:-

“Sexual Orientation” is understood to refer to each person’scapacity for profound emotional, affectional and sexual attractionDto and intimate and sexual relations with, individuals of differentgender or the same gender or more than one gender.”

142. In its study, the American Psychological Association hasattempted to define “sexual orientation” in the following manner:-

E“Sexual orientation refers to an enduring pattern of emotional,romantic and/or sexual attractions to men. women or both sexes.Sexual orientation also refers to person’s sense of identity basedon those attractions, related behaviors, and membership in acommunity of others who share those attractions. Research overseveral decades has demonstrated that sexual orientation rangesFalong continuum, from exclusive attraction to the other sex toexclusive attraction to the same sex.”[61]

143. From the aforesaid, it has to be appreciated thathomosexuality is something that is based on sense of identity. It is thereflection of sense of emotion and expression of eagerness to establishGintimacy. It is just as much ingrained, inherent and innate asheterosexuality. Sexual orientation, as concept, fundamentally impliesa pattern of sexual attraction. It is as natural phenomenon as othernatural biological phenomena. What the science of sexuality has led to is

61 American Psychological Association, “Answers to Your Questions for BetterHUnderstanding of Sexual Orientation & Homosexuality,” 2008

that an individual has the tendency to feel sexually attracted towards thesame sex, for the decision is one that is controlled by neurological andbiological factors. That is why it is his/her natural orientation which isinnate and constitutes the core of his/her being and identity. That apart,on occasions, due to sense of mutuality of release of passion, twoadults may agree to express themselves in different sexual behaviourwhich may include both the genders. To this, one can attribute bisexualorientation which does not follow the rigidity but allows room forflexibility.

144. The society cannot remain unmindful to the theory whichseveral researches, conducted both in the field of biological andpsychological science, have proven and reaffirmed time and again. Tocompel person having certain sexual orientation to proselytize toanother is like asking body part to perform function it was neverdesigned to perform in the first place. It is pure science, certain mannerin which the brain and genitals of an individual function and react. Whetherone’s sexual orientation is determined by genetic, hormonal,developmental, social and/or cultural influences (or combination thereof),most people experience little or no sense of choice about their sexualorientation.[62]

145. The statement of the American Psychological Associationon homosexuality which was released in July 1994 reiterates this positionin the following observations:-

“The research on homosexuality is very[7] clear. Homosexualityis neither mental illness nor moral depravity. It is simply the waya minority of our population expresses human love and sexuality.Study after study documents the mental health of gay men andlesbians. Studies of judgment, stability, reliability, and social andvocational adaptiveness all show that gay men and lesbiansfunction every bit as well as heterosexuals. Nor is homosexualitya matter of individual choice. Research suggests that thehomosexual orientation is in place very early in the life cycle,possibly even before birth. It is found in about ten percent of thepopulation, figure which is surprisingly constant across cultures,

62 UNHCR GUIDELINES ON INTERNATIONAL PROTECTION NO. 9: Claims toRefugee Status based on Sexual Orientation and/or Gender Identity within the contextof Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to theStatus of Refugees

Airrespective of the different moral values and standards of aparticular culture. Contrary to what some imply, the incidence ofhomosexuality in population does not appear to change withnew moral codes or social mores. Research findings suggestthat efforts to repair homosexuals are nothing more than social”prejudice garbed in psychological accouterments.

(Emphasis is ours)

146. In the said context, the observations made by Leonard Saxto the following effect are relevant and are reproduced below:-

“Biologically, the difference between gay man and straightCman is something like the difference between left-handed personand right-handed person. Being left- handed isn’t just phase.A left-handed person won’t someday magically turn into right-handed person.... Some children are destined at birth to be left-handed, and some boys are destined at birth to grow up to beDgay.”

147. The Supreme Court of Canada in the case of James Eganand John Norris Nesbit v. Her Majesty The Queen in Right ofCanada and another[63], while holding that sexual orientation is one ofthe grounds for claiming the benefit under Section 15(1) as it is analogousEto the grounds already set out in the list in Section 15(1) and the said listnot being finite and exhaustive can be extended to LGBTs on account ofthe historical, social, political and economic disadvantage suffered byLGBTs, has observed:-

“Sexual orientation is deeply personal characteristic that is eitherunchangeable or changeable only at unacceptable personal costs,Fand so falls within the ambit of s. 15 protection as being analogousto the enumerated grounds.”

148. It is worth noting that scientific study has, by way of keenanalysis, arrived at the conclusion as regards the individual’s inherentorientation. Apart from orientation, as stated earlier, there can be situationsGwhich influence the emotional behaviour of an individual to seek intimacyin the same gender that may bring two persons together in biologicalpattern. It has to be treated as consensual activity and reflective ofconsensual choice.

63 [1995] 2 SCR 513H

L. Privacy and its concomitant aspects

149. While testing the constitutional validity of Section 377 IPC,due regard must be given to the elevated right to privacy as has beenrecently proclaimed in Puttaswamy (supra). We shall not delve in detailupon the concept of the right to privacy as the same has been delineatedat length in Puttaswamy (supra). In the case at hand, our focus is limitedto dealing with the right to privacy vis-à-vis Section 377 IPC and otherfacets such as right to choice as part of the freedom of expression andsexual orientation. That apart, within the compartment of privacy,individual autonomy has significant space. Autonomy is individualistic.It is expressive of self-determination and such self-determination includessexual orientation and declaration of sexual identity. Such an orientationor choice that reflects an individual’s autonomy is innate to him/her. It isan inalienable part of his/her identity. The said identity under theconstitutional scheme does not accept any interference as long as itsexpression is not against decency or morality. And the morality that isconceived of under the Constitution is constitutional morality. Under theautonomy principle, the individual has sovereignty over his/her body. He/she can surrender his/her autonomy wilfully to another individual andtheir intimacy in privacy is matter of their choice. Such concept ofidentity is not only sacred but is also in recognition of the quintessentialfacet of humanity in person’s nature. The autonomy establishes identityand the said identity, in the ultimate eventuate, becomes part of dignityin an individual. This dignity is special to the man/woman who has rightto enjoy his/her life as per the constitutional norms and should not beallowed to wither and perish like mushroom. It is directional shiftfrom conceptual macrocosm to cognizable microcosm. When such culturegrows, there is an affirmative move towards more inclusive andegalitarian society. Non-acceptance of the same would tantamount todenial of human rights to people and one cannot be oblivious of thesaying of Nelson Mandela – “to deny people their human rights is tochallenge their very humanity.”

150. Article 12 of the Universal Declaration of Human Rights,(1948) makes reference to privacy by stating:-

“No one shall be subjected to arbitrary interference with hisprivacy, family, home or correspondence nor to attacks upon hishonour and reputation. Everyone has the right to the protectionof the law against such interference or attacks.”

A151. Similarly, Article 17 of the International Covenant of Civiland Political Rights, to which India is party, talks about privacy thus:-

“No one shall be subjected to arbitrary or unlawful interferencewith his privacy, family, home and correspondence, nor tounlawful attacks on his honour and reputation.”

152. The European Convention on Human Rights also seeks toprotect the right to privacy by stating:-

“1. Everyone has the right to respect for his private and familylife, his home and his correspondence.

2. There shall be no interference by public authority exceptsuch as is in accordance with law and is necessary in democraticsociety in the interests of national security, public safety or theeconomic well being of the country, for the protection of healthor morals or for the protection of the rights and freedoms ofothers.”

153. In the case of Dudgeon v. United Kingdom[64], privacyhas been defined as under:-

“Perhaps the best and most succinct legal definition of privacy isthat given by Warren and Brandeis - it is “the right to be letalone”.”E

154. In R. Rajagopal v. State of Tamil Nadu and others[65], whilediscussing the concept of right to privacy, it has been observed that theright to privacy is implicit in the right to life and liberty guaranteed to thecitizens of this country by Article 21 and it is “right to be let alone”, fora citizen has right to safeguard the privacy of his/her own, his/herFfamily, marriage, procreation, motherhood, child-bearing and education,among other matters.

155. The above authorities capture the essence of the right toprivacy. There can be no doubt that an individual also has right to aunion under Article 21 of the Constitution. When we say union, we doGnot mean the union of marriage, though marriage is union. As concept,union also means companionship in every sense of the word, be it physical,mental, sexual or emotional. The LGBT community is seeking realisationof its basic right to companionship, so long as such companionship is

64 [1981] 4 EHRR 149

H65 (1994) 6 SCC 632

consensual, free from the vice of deceit, force, coercion and does notresult in violation of the fundamental rights of others.

156. Justice Blackmun, in his vigorous dissent, in the case ofBowers, Attorney General of Georgia v. Hardwick et al.[66], regardingthe “right to be let alone”, referred to Paris Adult Theatre I v. Slaton[67]wherein he observed that only the most willful blindness could obscurethe fact that sexual intimacy is sensitive, key relationship of humanexistence, central to family life, community welfare and the developmentof human personality. Justice Blackmun went on to observe:-

“The fact that individuals define themselves in significant waythrough their intimate sexual relationships with others suggests,in Nation as diverse as ours, that there may be many “right”ways of conducting those relationships, and that much of therichness of relationship will come from the freedom an individualhas to choose the form and nature of these intensely personalbonds. … In variety of circumstances, we have recognizedthat necessary corollary of giving individuals freedom to choosehow to conduct their lives is acceptance of the fact that differentindividuals will make different choices.”157. In A.R. Coeriel and M.A.R. Aurik v. The Netherlands[68],the Human Rights Committee observed that the notion of privacy refersto the sphere of person’s life in which he or she can freely express hisor her identity, be it by entering into relationships with others or alone.The Committee was of the view that person’s surname constitutes animportant component of one’s identity and that the protection againstarbitrary or unlawful interference with one’s privacy includes theprotection against arbitrary or unlawful interference with the right tochoose and change one’s own name.

158. We may also usefully refer to the views of the Human RightsCommittee in Toonen v. Australia[69] to the effect that the introductionof the concept of arbitrariness is intended to guarantee that everyinterference provided for by the law should be in accordance with theprovisions, aims and objectives of the Covenant and should be, in any

66 Bowers v. Hardwick, 478 U.S. 186 (1986)

67 413 U.S. 49 (1973)

68 Communication No. 453/1991, para. 10.2

69 Communication No. 488/1992, U.C. Doc CCPR/C/ 50/D 488/ 1992, March 31,1994, para. 8.3

Aevent, reasonable in the circumstances. The requirement ofreasonableness implies that any interference with privacy must beproportional to the end sought and be necessary in the circumstances ofany given case.

159. The South African Constitutional Court in National CoalitionBfor Gay and Lesbian Equality and another v. Minister of Justiceand others[70]has arrived at theory of privacy in sexuality that includesboth decisional and relational elements. It lays down that privacyrecognises that we all have right to sphere of private intimacy andautonomy which allows us to establish and nurture human relationshipswithout interference from the outside community. The way in which weCgive expression to our sexuality is at the core of this area of privateintimacy. If, in expressing our sexuality, we act consensually and withoutharming one another, invasion of that precinct will be breach of ourprivacy. The Court admitted that the society had poor record of seekingto regulate the sexual expression of South Africans. It observed that inDsome cases, as in this one, the reason for the regulation wasdiscriminatory; the law, for example, outlawed sexual relationships amongpeople of different races. The fact that law prohibiting forms of sexualconduct is discriminatory does not, however, prevent it at the same timefrom being an improper invasion of the intimate sphere of human life towhich protection is given by the Constitution in Section 14. The CourtEemphasized that the importance of right to privacy in the newconstitutional order should not be denied even while acknowledging theimportance of equality. In fact, emphasising the breach of both theserights in the present case highlights just how egregious the invasion ofthe constitutional rights of gay persons has been. The offence which liesFat the heart of the discrimination in this case constitutes, at the sametime and independently, breach of the rights of privacy and dignitywhich, without doubt, strengthens the conclusion that the discriminationis unfair.

160. At home, the view as to the right to privacy underwent aGsea-change when nine-Judge Bench of this Court in Puttaswamy(supra) elevated the right to privacy to the stature of fundamental rightunder Article 21 of the Constitution. One of us, Chandrachud, J., speakingfor the majority, regarded the judgment in Suresh Koushal as discordantnote and opined that the reasons stated therein cannot be regarded as

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valid constitutional basis for disregarding claim based on privacy underArticle 21 of the Constitution. Further, he observed that the reasoning inSuresh Koushal’s decision to the effect that “a minuscule fraction ofthe country’s population constitutes lesbians, gays, bisexuals ortransgenders” is not sustainable basis to deny the right to privacy.

161. It was further observed that the purpose of elevating certainrights to the stature of guaranteed fundamental rights is to insulate theirexercise from the disdain of majorities, whether legislative or popular,and the guarantee of constitutional rights does not depend upon theirexercise being favourably regarded by majoritarian opinion.

162. The test of popular acceptance, in view of the majority opinion,was not at all valid basis to disregard rights which have been conferredwith the sanctity of constitutional protection. The Court noted that thediscrete and insular minorities face grave dangers of discrimination forthe simple reason that their views, beliefs or way of life does not accordwith the ‘mainstream’, but in democratic Constitution founded on theRule of Law, it does not mean that their rights are any less sacred thanthose conferred on other citizens.

163. As far as the aspect of sexual orientation is concerned, theCourt opined that it is an essential attribute of privacy and discriminationagainst an individual on the basis of sexual orientation is deeply offensiveto the dignity and self-worth of the individual. The Court was of theview that equality demands that the sexual orientation of each individualin the society must be protected on an even platform, for the right toprivacy and the protection of sexual orientation lie at the core of thefundamental rights guaranteed by Articles 14, 15 and 21 of theConstitution.

164. Regarding the view in Suresh Koushal’s case to the effectthat the Delhi High Court in Naz Foundation case had erroneouslyrelied upon international precedents in its anxiety to protect the so-calledrights of LGBT persons, the nine-Judge Bench was of the opinion thatthe aforesaid view in Suresh Koushal (supra) was unsustainable. Therights of the lesbian, gay, bisexual and transgender population, as per thedecision in Puttaswamy (supra), cannot be construed to be “so-calledrights” as the expression “so-called” seems to suggest the exercise ofliberty in the garb of right which is illusory.

A165. The Court regarded such construction in Suresh Koushal’scase as inappropriate of the privacy based claims of the LGBT population,for their rights are not at all “so-called” but are real rights founded onsound constitutional doctrine. The Court went on to observe that therights of the LGBT community inhere in the right to life, dwell in privacyand dignity and they constitute the essence of liberty and freedom. Further,Bthe Court observed that sexual orientation being an essential componentof identity, equal protection demands equal protection of the identity ofevery individual without discrimination.

166. Speaking in the same tone and tenor, Kaul, J., whileconcurring with the view of Chandrachud, J., observed that the right toCprivacy cannot be denied even if there is minuscule fraction of thepopulation which is affected. He was of the view that the majoritarianconcept does not apply to constitutional rights and the Courts are oftencalled upon to take what may be categorized as non-majoritarian view.

167. Kaul, J. went on to opine that one’s sexual orientation isDundoubtedly an attribute of privacy and in support of this view, he referredto the observations made in Mosley (supra) which read thus:-

“130... It is not simply matter of personal privacy v. the publicinterest. The modern perception is that there is public interestin respecting personal privacy. It is thus question of takingEaccount of conflicting public interest considerations and evaluatingthem according to increasingly well recognized criteria.

131. When the courts identify an infringement of person’s Article8 rights, and in particular in the context of his freedom to conducthis sex life and personal relationships as he wishes, it is right toFafford remedy and to vindicate that right. The only permittedexception is where there is countervailing public interest whichin the particular circumstances is strong enough to outweigh it;that is to say. because one at least of the established “limitingprinciples” comes into play. Was it necessary and proportionateGfor the intrusion to take place, for example, in order to exposeillegal activity or to prevent the public from being significantlymisled by public claims hitherto made by the individual concerned(as with Naomi Campbell’s public denials of drug- taking)? Orwas it necessary because the information, in the words of theStrasbourg court in Von Hannover at (60) and (76). would make

contribution to “a debate of general interest”? That is, of course,a very high test, it is yet to be determined how far that doctrinewill be taken in the courts of this jurisdiction in relation tophotography in public places. If taken literally, it would mean avery significant change in what is permitted. It would have aprofound effect on the tabloid and celebrity culture to which wehave become accustomed in recent years.””

168. After the nine-Judge bench decision in Puttaswamy (supra),the challenge to the vires of Section 377 IPC has been stronger thanever. It needs to be underscored that in the said decision, the nine-JudgeBench has held that sexual orientation is also facet of person’s privacyand that the right to privacy is fundamental right under the Constitutionof India.

169. The observation made in Suresh Koushal (supra) that gays,lesbians, bisexuals and transgenders constitute very minuscule part ofthe population is perverse due to the very reason that such an approachwould be violative of the equality principle enshrined under Article 14 ofthe Constitution. The mere fact that the percentage of population whosefundamental right to privacy is being abridged by the existence of Section377 in its present form is low does not impose limitation upon thisCourt from protecting the fundamental rights of those who are so affectedby the present Section 377 IPC.

170. The constitutional framers could have never intended thatthe protection of fundamental rights was only for the majority population.If such had been the intention, then all provisions in Part III of theConstitution would have contained qualifying words such as ‘majoritypersons’ or ‘majority citizens’. Instead, the provisions have employedthe words ‘any person’ and ‘any citizen’ making it manifest that theconstitutional courts are under an obligation to protect the fundamentalrights of every single citizen without waiting for the catastrophic situationwhen the fundamental rights of the majority of citizens get violated.

171. Such view is well supported on two counts, namely, onethat the constitutional courts have to embody in their approach telescopicvision wherein they inculcate the ability to be futuristic and do notprocrastinate till the day when the number of citizens whose fundamentalrights are affected and violated grow in figures. In the case at hand,whatever be the percentage of gays, lesbians, bisexuals and transgenders,

Athis Court is not concerned with the number of persons belonging to theLGBT community. What matters is whether this community is entitledto certain fundamental rights which they claim and whether suchfundamental rights are being violated due to the presence of law in thestatute book. If the answer to both these questions is in the affirmative,then the constitutional courts must not display an iota of doubt and mustBnot hesitate in striking down such provision of law on the account of itbeing violative of the fundamental rights of certain citizens, howeverminuscule their percentage may be.

172. second count on which the view in Suresh Koushal (supra)becomes highly unsustainable is that the language of both Articles 32Cand 226 of the Constitution is not reflective of such an intention. cursoryreading of both the Articles divulges that the right to move the SupremeCourt and the High Courts under Articles 32 and 226 respectively is notlimited to situation when there is violation of the fundamental rights ofa large chunk of populace.D

173. Such view is also fortified by several landmark judgmentsof the Supreme Court such as D.K. Basu v. State of W.B.[71]wherein theCourt was concerned with the fundamental rights of only those personswho were put under arrest and which again formed minuscule fractionof the total populace. Another recent case wherein the Supreme CourtEwhile discharging its constitutional duty did not hesitate to protect thefundamental right to die with dignity is Common Cause (A Regd.Society) (supra) wherein the Supreme Court stepped in to protect thesaid fundamental right of those who may have slipped into permanentvegetative state, who again form very minuscule part of the society.

F174. Such an approach reflects the idea as also mooted by MartinLuther King Jr. who said, “Injustice anywhere is threat to justiceeverywhere”. While propounding this view, we are absolutely consciousof the concept of reasonable classification and the fact that even singleperson legislation could be valid as held in Chiranjit Lal Chowdhury v.Union of India[72], which regarded the classification to be reasonableGfrom both procedural and substantive points of view.

175. We are aware that the legislature is fully competent to enactlaws which are applicable only to particular class or group. But, for the

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classification to be valid, it must be founded on an intelligible differentiaand the differentia must have rational nexus with the object sought tobe achieved by particular provision of law.

176. That apart, since it is alleged that Section 377 IPC in itspresent form violates fundamental right protected by Article 21 of theConstitution, that is, the right to personal liberty, it has to not only standthe test of Article 21 but it must also stand the test of Article 19 which isto say that the restriction imposed by it has to be reasonable and alsothat of Article 14 which is to say that Section 377 must not be arbitrary.

177. Whether Section 377 stands the trinity test of Articles 14, 19and 21 as propounded in the case of Maneka Gandhi (supra) will beascertained and determined at later stage of this judgment when weget into the interpretative dissection of Section 377 IPC.

M. Doctrine of progressive realization of rights

178. When we talk about the rights guaranteed under theConstitution and the protection of these rights, we observe andcomprehend manifest ascendance and triumphant march of such rightswhich, in turn, paves the way for the doctrine of progressive realizationof the rights under the Constitution. This doctrine invariably reminds usabout the living and dynamic nature of Constitution. Edmund Burke,delineating upon the progressive and the perpetual growing nature of aConstitution, had said that Constitution is ever-growing and it isperpetually continuous as it embodies the spirit of nation. It is enrichedat the present by the past experiences and influences and makes thefuture richer than the present.

179. In N.M. Thomas (supra), Krishna Iyer, J., in his concurringopinion, observed thus:-

“Law, including constitutional law, can no longer go it alone’ butmust be illumined in the interpretative process by sociology andallied fields of knowledge. Indeed, the term ‘constitutional law’symbolizes an intersection of law and politics, wherein issues ofpolitical power are acted on by persons trained in the legaltradition, working in judicial institutions, following the proceduresof law, thinking as lawyers think. So much so, wider perspectiveis needed to resolve issues of constitutional law.”

AAnd again:-

“An overview of the decided cases suggests the need to re-interpret the dynamic import of the ‘equality clauses’ and, tostress again, beyond reasonable doubt, that the paramount law.which is organic and regulates our nation’s growing life, mustBtake in its sweep ethics, economics, politics and sociology’.”

The learned Judge, expanding the horizon of his concern,reproduced the lament of Friedman:-

“It would be tragic if the law were so petrified as to be unableto respond to the unending challenge of evolutionary orCrevolutionary changes in society.’’

The main assumptions which Friedman makes are:

“first, the law is, in Holmes’ phrase, not brooding omnipotencein the sky’, but flexible instrument of social order, dependenton the political values of the society which it purports toregulate....”

Naturally surges the interrogation, what are the challenges ofchanging values to which the guarantee of equality must respondand how?”

E180. Further, Krishna Iyer, J. referred to the classic statementmade by Chief Justice Marshall in McCulloch v. Maryland[73] whichwas also followed by Justice Brennan in Kazenbach v. Morgan[74]. Thesaid observation reads thus:-

“Let the end be legitimate, let it be within the scope of theFconstitution, and all means which are appropriate, which areplainly adapted to that end, which are not prohibited, but consistwith the letter and spirit of the constitution, are constitutional.”

181. In Manoj Narula (supra), the Court recognized the dynamicnature of the Indian Constitution and observed that it is living documentGwith capabilities of enormous dynamism. It is Constitution made for aprogressive society and the working of such Constitution depends uponthe prevalent atmosphere and conditions.

73 (1816) 17 US 316

74 (1966) 384 US 641H

182. In Government of NCT of Delhi (supra), the Court, whilecontemplating on what is it that makes Constitution dynamic and aliving document, observed that it is the philosophy of ‘constitutional culture’which, as set of norms and practices, breathes life into the words ofthe great document and it constantly enables the words to keep stridewith the rapid and swift changes occurring in the society and theresponsibility of fostering constitutional culture rests upon the shouldersof the State. Thereafter, the Court went on to observe:-“The Constitutional Courts, while interpreting the constitutionalprovisions, have to take into account the constitutional culture,bearing in mind its flexible and evolving nature, so that theprovisions are given meaning which reflect the object andpurpose of the Constitution.”

And again, it proceeded to reproduce the wise words of JusticeBrennan:-

“We current Justices read the Constitution in the only way thatwe can: as Twentieth Century Americans. We look to the historyof the time of framing and to the intervening history ofinterpretation. But the ultimate question must be, what do thewords of the text mean in our time? For the genius of theConstitution rests not in any static meaning it might have had ina world that is dead and gone, but in the adaptability of its greatprinciples to cope with current problems and current needs. Whatthe constitutional fundamentals meant to the wisdom of othertimes cannot be their measure to the vision of our time. Similarly,what those fundamentals mean for us, our descendants will learn,cannot be the measure to the vision of their time.”

183. We have discussed, in brief, the dynamic and progressivenature of the Constitution to accentuate that rights under the Constitutionare also dynamic and progressive, for they evolve with the evolution ofa society and with the passage of time. The rationale behind the doctrineof progressive realization of rights is the dynamic and ever growing natureof the Constitution under which the rights have been conferred to thecitizenry.

184. The constitutional courts have to recognize that theconstitutional rights would become dead letter without their dynamic,

Avibrant and pragmatic interpretation. Therefore, it is necessary for theconstitutional courts to inculcate in their judicial interpretation and decisionmaking sense of engagement and sense of constitutional morality sothat they, with the aid of judicial creativity, are able to fulfill their foremostconstitutional obligation, that is, to protect the rights bestowed upon thecitizens of our country by the Constitution.B

185. Here, it is also apposite to refer to the words of Lord Roskillin his presidential address to the Bentham Club at University College ofLondon on February 29, 1984 on the subject ‘Law Lords, Reactionariesor Reformers’[75] which read as follows:-

C“Legal policy now stands enthroned and will I hope remain oneof the foremost considerations governing the development bythe House of Lords of the common law. What direction shouldthis development now take? I can think of several occasionsupon which we have all said to ourselves:-

“this case requires policy decision what is the right policyDdecision?” The answer is, and I hope will hereafter be, to followthat route which is most consonant with the current needs of thesociety, and which will be seen to be sensible and willpragmatically thereafter be easy to apply. No doubt the LawLords will continue to be the targets for those academic lawyersEwho will seek intellectual perfection rather than imperfectpragmatism. But much of the common law and virtually allcriminal law, distasteful as it may be to some to have toacknowledge it. is blunt instrument by means of which humanbeings, whether they like it or not, are governed and subject towhich they are required to live, and blunt instruments are rarelyFperfect intellectually or otherwise. By definition they operate”bluntly and not sharply.

[Emphasis supplied]

186. What the words of Lord Roskill suggest is that it is not onlythe interpretation of the Constitution which needs to be pragmatic, dueGto the dynamic nature of Constitution, but also the legal policy of aparticular epoch must be in consonance with the current and the presentneeds of the society, which are sensible in the prevalent times and at thesame time easy to apply.

75 Lord Roskill, “Law Lords, Reactionaries or Reformers”, Current Legal ProblemsH(1984)

187. This also gives birth to an equally important role of the Stateto implement the constitutional rights effectively. And of course, whenwe say State, it includes all the three organs, that is, the legislature, theexecutive as well as the judiciary. The State has to show concernedcommitment which would result in concrete action. The State has anobligation to take appropriate measures for the progressive realizationof economic, social and cultural rights.

188. The doctrine of progressive realization of rights, as naturalcorollary, gives birth to the doctrine of non-retrogression. As per thisdoctrine, there must not be any regression of rights. In progressive andan ever-improving society, there is no place for retreat. The society hasto march ahead.

189. The doctrine of non-retrogression sets forth that the Stateshould not take measures or steps that deliberately lead to retrogressionon the enjoyment of rights either under the Constitution or otherwise.

190. The aforesaid two doctrines lead us to the irresistibleconclusion that if we were to accept the law enunciated in SureshKoushal’s case, it would definitely tantamount to retrograde step inthe direction of the progressive interpretation of the Constitution anddenial of progressive realization of rights. It is because Suresh Koushal’sview gets wrongly embedded with the minuscule facet and assumescriminality on the bedrock being guided by sense of social morality. Itdiscusses about health which is no more phobia and is further movedby the popular morality while totally ignoring the concepts of privacy,individual choice and the orientation. Orientation, in certain senses, doesget the neuro-impulse to express while seeing the other gender. Thatapart, swayed by data, Suresh Koushal fails to appreciate that thesustenance of fundamental rights does not require majoritarian sanction.Thus, the ruling becomes sensitively susceptible.

N. International perspective

(i) United States

191. The Supreme Court of the United States in Obergefell, etal. v. Hodges, Director, Ohio Department of Health, et al.[76],highlighting the plight of homosexuals, observed that until the mid-20[th]century, same-sex intimacy had long been condemned as immoral by

76 576 US (2015)

Athe State itself in most Western nations and belief was often embodiedin the criminal law and for this reason, homosexuals, among others, werenot deemed to have dignity in their own distinct identity. The Courtfurther noted that truthful declaration by same-sex couples of what wasin their hearts had to remain unspoken and even when greater awarenessof the humanity and integrity of homosexual persons came in the periodBafter World War II, the argument that gays and lesbians had just claimto dignity was in conflict with both law and widespread socialconventions. The Court also observed that same-sex intimacy remaineda crime in many States and that gays and lesbians were prohibited frommost government employment, barred from military service, excludedCunder immigration laws, targeted by the police and burdened in theirrights to associate.192. The Court further observed that what the statutes in questionseek to control is personal relationship, whether or not entitled to formalrecognition in the law, that is within the liberty of persons to chooseDwithout being punished as criminals. Further, the Court acknowledgedthat adults may choose to enter upon relationship in the confines oftheir homes and their own private lives and still retain their dignity asfree persons and that when sexuality finds overt expression in intimateconduct with another person, the conduct can be but one element in apersonal bond that is more enduring. The Court held that such libertyEprotected by the Constitution allows homosexual persons the right tomake this choice.

193. In the case of Price Waterhouse v. Hopkins[77], the SupremeCourt of the United States, while evaluating the legal relevance of sexstereotyping, observed thus:-F

“...we are beyond the day when an employer could evaluateemployees by assuming or insisting that they matched thestereotype associated with their group, for, “‘[i]n forbiddingemployers to discriminate against individuals because of theirsex, Congress intended to strike at the entire spectrum of disparateGtreatment of men and women resulting from sex stereotypes.””

194. In the case of Kimberly Hively v. Ivy Tech CommunityCollege of Indiana[78], while holding that discrimination amongst

77 490 U.S. 228 (1989)78 830 F.3d 698 (7th Cir. 2016)H

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employees based on their sexual orientation amounts to discriminationbased on sex, the Court observed as under:-

“We would be remiss not to consider the EEOC’s recent decisionin which it concluded that “sexual orientation is inherently ‘sex-based consideration,’ and an allegation of discrimination basedon sexual orientation is necessarily an allegation of sexdiscrimination under Title VII.” Baldwin v. Foxx, EEOC AppealNo. 0120133080, 2015 WL 4397641, at *5, *10 (July 16, 2015).The EEOC, the body charged with enforcing Title VII, came tothis conclusion for three primary reasons. First, it concluded that“sexual orientation discrimination is sex discrimination becauseit necessarily entails treating an employee less favorably becauseof the employee’s sex.” Id. at *5 (proffering the example of awoman who is suspended for placing photo of her femalespouse on her desk, and man who faces no consequences forthe same act). Second, it explained that “sexual orientationdiscrimination is also sex discrimination because it is associationaldiscrimination on the basis of sex,” in which an employerdiscriminates against lesbian, gay, or bisexual employees basedon who they date or marry. Id. at *6-7. Finally, the EEOCdescribed sexual orientation discrimination as form ofdiscrimination based on gender stereotypes in which employeesare harassed or punished for failing to live up to societal normsabout appropriate masculine and feminine behaviors, mannerisms,and appearances.Id. In coming to these conclusions, the EEOCnoted critically that “courts have attempted to distinguishdiscrimination based on sexual orientation from discriminationbased on sex, even while noting that the “borders [between thetwo classes] are imprecise.” Id. at *8 (quoting Simonton, 232F.3d at 35).

[Underlining is ours]

195. In the case of Lawrence v. Texas[79], while dealing with theissue of decriminalization of sexual conduct between homosexuals, theU.S. Supreme Court observed that the said issue neither involved minorsnor persons who might be injured or coerced or who are situated inrelationships where consent might not easily be refused nor did it involvepublic conduct or prostitution nor the question whether the government79 539 U.S. 558 (2003)

Amust give formal recognition to any relationship that homosexual personsseek to enter. The Court further observed that the issue related to twoadults who, with full and mutual consent of each other, engaged in sexualpractices common to homosexual lifestyle. The Court declared thatthe petitioners were entitled to respect for their private lives and that theState could not demean their existence or control their destiny by makingBtheir private sexual conduct crime, for their right to liberty under theDue Process Clause gives them the full right to engage in their conductwithout the intervention of the State.

196. In Roberts v. United States Jaycees[80], the Supreme Courtof the United States observed:-C“Our decisions have referred to constitutionally protected“freedom of association” in two distinct senses. In one line ofdecisions, the Court has concluded that choices to enter into andmaintain certain intimate human relationships must be securedagainst undue intrusion by the State because of the role of suchDrelationships in safeguarding the individual freedom that is centralto our constitutional scheme. In this respect, freedom ofassociation receives protection as fundamental element ofpersonal liberty. In another set of decisions, the Court hasrecognized right to associate for the purpose of engaging inthose activities protected by the First Amendment ~ speech,Eassembly, petition for the redress of grievances, and the exerciseof religion. The Constitution guarantees freedom of associationof this kind as an indispensable means of preserving otherindividual liberties. The intrinsic and instrumental features ofconstitutionally protected association may, of course, coincide.”

[Emphasis added]

(ii)Canada

197. The Supreme Court of Canada, in Delwin Vriend and othersv. Her Majesty the Queen in Right of Alberta and others[81], whileinterpreting breach of Section 15(1) of the Canadian Charter of RightsGand Freedoms, arrived at the conclusion that ‘sex’ includes sexualorientation. Section 15(1) of the Charter reads thus:-

“Every individual is equal before and under the law and has theright to the equal protection and equal benefit of the law without80 468 U.S. 609 (1984)H81 [1998] 1 SCR 493

discrimination and, in particular, without discrimination based onrace, national or ethnic origin, colour, religion, sex, age or physicaldisability.”

198. In Delwin Vriend, the Supreme Court of Canada, relyingon the reasoning adopted by it in Egan v. Canada (supra), applied itswell-known test of grounds analogous to those specified textually. TheEgan test is:-

“In Egan, it was said that there are two aspects which are relevantin determining whether the distinction created by the lawconstitutes discrimination. First, “whether the equality right wasdenied on the basis of personal characteristic which is eitherenumerated in s. 15(1) or which is analogous to thoseenumerated”. Second “whether that distinction has the effecton the claimant of imposing burden, obligation or disadvantagenot imposed upon others or of withholding or limiting access tobenefits or advantages which are available to others” (para. 131).A discriminatory distinction was also described as one which is“capable of either promoting or perpetuating the view that theindividual adversely affected by this distinction is less capable,or less worthy of recognition or value as human being or as amember of Canadian society, equally deserving of concern,respect, and consideration” (Egan, at para. 56, per L’Heureux -Dube J.). It may as well be appropriate to consider whether theunequal treatment is based on “the stereotypical application ofpresumed group or personal characteristics” (Miron, at para.128, per McLachlin J.)

In Egan, it was held, on the basis of “historical social, politicaland economic disadvantage suffered by homosexuals” and theemerging consensus among legislatures (at para. 176), as wellas previous judicial decisions (at para. 177), that sexual orientationis ground analogous to those listed in s. 15(1). Sexual orientationis “a deeply personal characteristic that is either unchangeableor changeable only at unacceptable personal costs” (para. 5). Itis analogous to the other personal characteristics enumerated ins. 15(1); and therefore this step of the test is satisfied.”

199. Thereafter, the Court in Delwin Vriend (supra) observedthat perhaps the most important outcome is the psychological harm whichmay ensue from the state of affairs as the fear of discrimination (by

ALGBT) would logically lead them to concealment of true identity andthis is harmful to their personal confidence and self-esteem. The Courtheld that this is clear example of distinction which demeans theindividual and strengthens and perpetrates the view that gays and lesbiansare less worthy of protection as individuals in Canada’s society and thepotential harm to the dignity and perceived worth of gay and lesbianBindividuals constitutes particularly cruel form of discrimination.

(iii)South Africa

200. The Constitutional Court of South Africa in National Coalitionfor Gay & Lesbian Equality (supra) made the following relevantCobservations:-

“Its symbolic effect is to state that in the eyes of our legal systemall gay men are criminals. The stigma thus attached to significantproportion of our population is manifest. But the harm imposedby the criminal law is far more than symbolic. As result of theDcriminal offence, gay men are at risk of arrest, prosecution andconviction of the offence of sodomy simply because they seekto engage in sexual conduct which is part of their experience ofbeing human. Just as apartheid legislation rendered the lives ofcouples of different racial groups perpetually at risk, the sodomyoffence builds insecurity and vulnerability into the daily lives ofEgay men. There can be no doubt that the existence of lawwhich punishes form of sexual expression for gay men degradesand devalues gay men in our broader society. As such it is apalpable invasion of their dignity and breach of section 10 ofthe Constitution.”

F(iv) United Kingdom

201. In Euan Sutherland v. United Kingdom[82], the issue beforethe European Commission of Human Rights was whether the differencein age limit for consent for sexual activities for homosexuals andheterosexuals, the age limit being 16 years in the case of heterosexualsGand 18 years in the case of homosexuals, is justified. While consideringthe same, the Commission observed that no objective and reasonablejustification exists for the maintenance of higher minimum age of consentin case of male homosexuals as compared to heterosexuals and that theapplication discloses discriminatory treatment in the exercise of the

NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE[DIPAK MISRA, CJI ]

applicant’s right to respect for private life under Article 8 of theConvention. The Commission further observed that sexual orientationwas usually established before the age of puberty in both boys and girlsand referred to evidence that reducing the age of consent would unlikelyaffect the majority of men engaging in homosexual activity, either ingeneral or within specific age groups. The Council of the British MedicalAssociation (BMA) concluded in its Report that the age of consent forhomosexual men should be set at 16 since the then existing law mightinhibit efforts to improve the sexual health of young homosexual andbisexual men. An equal age of consent was also supported by the RoyalCollege of Psychiatrists, the Health Education Authority and the NationalAssociation of Probation Officers as well as by other bodies andorganizations concerned with health and social welfare. It is further notedthat equality of treatment in respect of the age of consent is nowrecognized by the great majority of Member States of the Council ofEurope.

(v) Other Courts/Jurisdictions

202. In Ang Ladlad LGBT Party v. Commission of Elections[83],the Supreme Court of the Republic of the Philippines observed:-

“Freedom of expression constitutes one of the essentialfoundations of democratic society, and this freedom appliesnot only to those that are favorably received but also to thosethat offend, shock, or disturb. Any restriction imposed in thissphere must be proportionate to the legitimate aim pursued.Absent any compelling state interest, it is not for the COMELECor this Court to impose its views on the populace.”

Elaborating further, the Court held:-

“It follows that both expressions concerning one’s homosexualityand the activity of forming political association that supportsLGBT individuals are protected as well.”

The Court navigated through European and United Nations Judicialdecisions and held:-

“In the area of freedom of expression, for instance, United Statescourts have ruled that existing free speech doctrines protect gay

83 G. R. No.190582, Supreme Court of Philippines (2010)

and lesbian rights to expressive conduct. In order to justify theprohibition of particular expression of opinion, public institutionsmust show that their actions were caused by “something morethan mere desire to avoid the discomfort and unpleasantnessthat always accompany an unpopular viewpoint.”

B203. Further, in Toonen’s case, the Human Rights Committee madethe following relevant observations:-

“I concur with this view, as the common denominator for thegrounds “race, colour and sex” are biological or genetic factors.This being so, the criminalization of certain behaviour operatingCunder Sections 122(a), (c) and 123 of the Tasmanian CriminalCode must be considered incompatible with article 26 of theCovenant.

Firstly, these provisions of the Tasmanian Criminal Codeprohibit sexual intercourse between men and between women,Dthereby making distinction between heterosexuals andhomosexuals. Secondly, they criminalize other sexual contactsbetween consenting men without at the same time criminalizingsuch contacts between women. These provisions therefore setaside the principle of equality before the law. It should beemphasized that it is the criminalization as such that constitutesEdiscrimination of which individuals may claim to be victims, andthus violates article 26, notwithstanding the fact that the law hasnot been enforced over considerable period of time: thedesignated behaviour none the less remains criminal offence.”

204. In Dudgeon (supra), the European Court of Human RightsFmade the following observations with respect to homosexuality:-

“It cannot be maintained in these circumstances that there is a“pressing social need” to make such acts criminal offences, therebeing no sufficient justification provided by the risk of harm tovulnerable sections of society requiring protection or by theGeffects on the public. On the issue of proportionality, the Courtconsiders that such justifications as there are for retaining thelaw in force unamended are outweighed by the detrimentaleffects which the very existence of the legislative provisions inquestion can have on the life of person of homosexualorientation like the applicant. Although members of the public

NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE[DIPAK MISRA, CJI ]

who regard homosexuality as immoral may be shocked, offendedor disturbed by the commission by others of private homosexualacts, this cannot on its own warrant the application of penal”sanctions when it is consenting adults alone who are involved.

[Emphasis supplied]

O. Comparative analysis of Section 375 and Section 377 IPC

205. Let us, in the obtaining situation, conduct comparativeanalysis of the offence of rape and unnatural offences as defined underSection 375 and Section 377 of the IPC respectively. Section 375 IPCdefines the offence of rape and reads as under:-

Section 375. Rape-A man is said to commit “rape” if he —

(a) penetrates his penis, to any extent, into the vagina, mouth,urethra or anus of woman or makes her to do so with him orany other person; or

(b) inserts, to any extent, any object or part of the body, notbeing the penis, into the vagina, the urethra or anus of womanor makes her to do so with him or any other person; or

(c) manipulates any part of the body of woman so as to causepenetration into the vagina, urethra, anus or any part of body ofsuch woman or makes her to do so with him or any other person;or

(d) applies his mouth to the vagina, anus, urethra of woman ormakes her to do so with him or any other person, under thecircumstances falling under any of the following sevendescriptions: —

First. —Against her will.

Secondly. —Without her consent.

Thirdly. —With her consent, when her consent has been obtainedby putting her or any person in whom she is interested, in fear ofdeath or of hurt.

Fourthly. —With her consent, when the man knows that he isnot her husband and that her consent is given because she believesthat he is another man to whom she is or believes herself to belawfully married.

Fifthly. —With her consent when, at the time of giving suchconsent, by reason of unsoundness of mind or intoxication or theadministration by him personally or through another of anystupefying or unwholesome substance, she is unable to understandthe nature and consequences of that to which she gives consent.

Sixthly. —With or without her consent, when she is under eighteenyears of age.

Seventhly. —When she is unable to communicate consent.

Explanation I.—For the purposes of this section, “vagina” shallalso include labia majora.

Explanation 2. — Consent means an unequivocal voluntaryagreement when the woman by words, gestures or any form ofverbal or non-verbal communication, communicates willingnessto participate in the specific sexual act:

Provided that woman who does not physically resist to the actof penetration shall not by the reason only of that fact, be regardedas consenting to the sexual activity.

Exception I.—A medical procedure or intervention shall notconstitute rape.

Exception 2. —Sexual intercourse or sexual acts by man withhis own wife, the wife not being under fifteen years of age, isnot rape.’.

206. cursory reading of Section 375 IPC divulges that it is agender specific provision for the protection of women as only man canFcommit the offence of rape. The Section has been divided into two parts.The former part, comprising of Clauses (a) to (d), simply describes whatacts committed by man with woman would amount to rape providedthat the said acts are committed in the circumstances falling under anyof the seven descriptions as stipulated by the latter part of the Section.

207. It is in this way that the latter part of Section 375 IPC becomesimportant as it lays down the circumstances, either of which must bepresent, for an act committed by man with woman to come withinthe sweep of the offence of rape. To put it differently, for completing theoffence of rape, any of the circumstances described in the latter part ofSection 375 must be present. Let us now dissect each of the seven

descriptions appended to Section 375 IPC which specify the absence ofa willful and informed consent for constituting the offence of rape.

208. The first description provides that any of the acts describedin the former part of Section 375 IPC would amount to rape if such actsare committed against the will of the woman. The second descriptionstipulates that the acts described in the former part would amount torape if such acts are committed without the consent of the woman. Asper the third description, the acts would amount to rape even if the womanhas given her consent but the said consent has been obtained by puttingher or any person in whom she is interested, in fear of death or of hurt.As per the fourth description, the acts would amount to rape when thewoman has given her consent but the same was given by her under thebelief that she is or believes herself to be lawfully married to the mancommitting the acts stated in the former part of the Section. The fifthdescription provides that the acts described in the former part wouldamount to rape if the woman gives her consent but at the time of givingsuch consent, she is unable to understand the nature and consequencesof the acts to which she consents due to the reason of unsoundness ofmind or intoxication or the administration of any stupefying orunwholesome substance either by the man who commits the acts orthrough another third person. The sixth description is plain and simple asit stipulates that the acts described in the former part of the Sectionwould amount to rape, irrespective of the fact whether the woman hasgiven her consent or not, if, at the time when the acts were committed,the woman was below the age of eighteen years. Coming to the seventhand the last description, it provides that the acts prescribed in the formerpart would amount to rape if the woman is unable to communicate herconsent.

209. Explanation 2 to Section 375 IPC gives the definition ofconsent for the purpose of Section 375 to the effect that consent meansan unequivocal voluntary agreement by the woman through words,gestures or any form of verbal or non-verbal communication wherebyshe communicates her willingness to participate in any of the sexualacts described in the former part of Section 375 IPC.

210. We have scrutinized the anatomy of the seven descriptionscontained in the latter part of Section 375 IPC along with Explanation 2to Section 375 IPC to emphasize and accentuate that the element ofabsence of consent is firmly ingrained in all the descriptions contained in

ABC

Athe latter part of Section 375 IPC and the absence of willful and informedconsent is sine qua non to designate the acts contained in the formerpart of Section 375 IPC as rape.

211. Presently, we proceed to scan the anatomy of Section 377 ofIPC and x-ray the provision to study its real nature and content. It readsBthus:-

“Section 377. Unnatural offences.—Whoever voluntarily hascarnal intercourse against the order of nature with any man,woman or animal, shall be punished with imprisonment for life,or with imprisonment of either description for term which mayCextend to ten years, and shall also be liable to fine.

Explanation.—Penetration is sufficient to constitute the carnalintercourse necessary to the offence described in this section.”

212. Section 377 IPC, unlike Section 375, is gender-neutralprovision as it uses the word ‘whoever’. The word ‘carnal’, as per theDBlack’s Law Dictionary[84], means of the body, relating to the body, fleshyor sexual. ‘Sexual intercourse’ has been defined in Black’s Law Dictionaryas contact between male and female’s organ.

213. Another expression which has been employed in Section 377is ‘against the order of nature’. The phrase ‘against the order of nature’Ehas neither been defined in Section 377 IPC nor in any other provision ofthe IPC. The foundation on which Section 377 IPC makes carnalintercourse an offence is the precept that such carnal intercourse isagainst the order of nature. This brings us to the important question as towhat is ‘against the order of nature’?

F214. In Khanu (supra), where the question before the Court waswhether coitus per os (mouth contact with the male genitals) amountsto carnal intercourse against the order of nature, the Court ruled in theaffirmative observing that the natural object of intercourse is that thereshould be the possibility of conception of human beings which in thecase of coitus per os is impossible. Thus, the most common argumentGagainst homosexuality and criminalization of carnal intercourse evenbetween consenting adults of opposite sex is that traditionally, the essentialpurpose of sex is to procreate.

84 Black’s Law Dictionary, 2nd edn.

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215. With the passage of time and evolution of the society,procreation is not the only reason for which people choose to cometogether, have live-in relationships, perform coitus or even marry. Theydo so for whole lot of reasons including emotional companionship.Homer Clark writes:-

“But the fact is that the most significant function of marriagetoday seems to be that it furnishes emotional satisfactions to befound in no other relationships. For many people it is the refugefrom the coldness and impersonality of contemporary existence.”

216. In the contemporary world where even marriage is now notequated to procreation of children, the question that would arise is whetherhomosexuality and carnal intercourse between consenting adults ofopposite sex can be tagged as ‘against the order of nature’. It is thefreedom of choice of two consenting adults to perform sex for procreationor otherwise and if their choice is that of the latter, it cannot be said to beagainst the order of nature. Therefore, sex, if performed differently, asper the choice of the consenting adults, does not per se make it againstthe order of nature.

217. Section 377 criminalises even voluntary carnal intercoursenot only between homosexuals but also between heterosexuals. Themajor difference between the language of Section 377 and Section 375is that of the element of absence consent which has been elaboratelyincorporated in the seven descriptions contained in the latter part ofSection 375 IPC. It is the absence of willful and informed consentembodied in the seven descriptions to Section 375 which makes theoffence of rape criminal.

218. On the other hand, Section 377 IPC contains no suchdescriptions/exceptions embodying the absence of willful and informedconsent and criminalises even voluntary carnal intercourse both betweenhomosexuals as well as between heterosexuals. While saying so, wegain strength and support from the fact that the legislature, in its wisdom,while enacting Section 375 IPC in its amended form after the CriminalLaw (Amendment) Act, 2013, has not employed the words “subject toany other provision of the IPC”. The implication of the absence of thesewords simply indicates that Section 375 IPC which does not criminalizeconsensual carnal intercourse between heterosexuals is not subject toSection 377 IPC.

A219. Section 377, so far as it criminalises carnal intercoursebetween heterosexuals is legally unsustainable in its present form forthe simple reason that Section 375 IPC clearly stipulates that carnalintercourse between man and woman with the willful and informedconsent of the woman does not amount to rape and is not penal.B220. Despite the Criminal Law (Amendment) Act, 2013 coming

B220. Despite the Criminal Law (Amendment) Act, 2013 cominginto force, by virtue of which Section 375 was amended, whereby thewords ‘sexual intercourse’ in Section 375 were replaced by four elaborateclauses from (a) to (d) giving wide definition to the offence of rape,Section 377 IPC still remains in the statute book in the same form. Suchan anomaly, if allowed to persist, may result in situation wherein aCheterosexual couple who indulges in carnal intercourse with the willfuland informed consent of each other may be held liable for the offence ofunnatural sex under Section 377 IPC, despite the fact that such an actwould not be rape within the definition as provided under Section 375IPC.D

221. Drawing an analogy, if consensual carnal intercoursebetween heterosexual couple does not amount to rape, it definitelyshould not be labelled and designated as unnatural offence under Section377 IPC. If any proclivity amongst the heterosexual population towardsconsensual carnal intercourse has been allowed due to the Criminal LawE(Amendment) Act, 2013, such kind of proclivity amongst any two personsincluding LGBT community cannot be treated as untenable so long as itis consensual and it is confined within their most private and intimatespaces.

222. There is another aspect which needs to be discussed, whichis whether criminalisation of carnal intercourse under Section 377 servesFany useful purpose under the prevalent criminal law. Delineating on thisaspect, the European Commission of Human Rights in Dudgeon (supra)opined thus:-

“The 1967 Act, which was introduced into Parliament as PrivateGMember’s Bill, was passed to give effect to the recommendationsconcerning homosexuality made in 1957 in the report of theDepartmental Committee on Homosexual Offences andProstitution established under the chairman ship of Sir JohnWolfenden (the “Wolfenden Committee” and “Wolfendenreport”). The Wolfenden Committee regarded the function ofHthe criminal law in this field as:

NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE[DIPAK MISRA, CJI ]

“to preserve public order and decency, to protect the citizenfrom what is offensive or injurious, and to provide sufficientsafeguards against exploitation and corruption of others,particularly those who are specially vulnerable because theyare young, weak in body or mind, inexperienced, or in stateof special physical, official, or economic dependence”,

but not

“to intervene in the private lives of citizens, or to seek to enforceany particular pattern of behaviour, further than is necessary”to carry out the purposes we have outlined.

The Wolfenden Committee concluded that homosexual behaviourbetween consenting adults in private was part of the “realm ofprivate morality and immorality which is, in brief and crude terms,not the law’s business” and should no longer be criminal”

[Underlining is ours]

223. At the very least, it can be said that criminalisation ofconsensual carnal intercourse, be it amongst homosexuals, heterosexuals,bi-sexuals or transgenders, hardly serves any legitimate public purposeor interest. Per contra, we are inclined to believe that if Section 377remains in its present form in the statute book, it will allow the harassmentand exploitation of the LGBT community to prevail. We must make itclear that freedom of choice cannot be scuttled or abridged on the threatof criminal prosecution and made paraplegic on the mercurial stance ofmajoritarian perception.

P. The litmus test for survival of Section 377 IPC

224. Having discussed the various principles and concepts andbearing in mind the sacrosanctity of the fundamental rights which guidesthe constitutional courts, we shall now proceed to deal with theconstitutionality of Section 377 IPC on the bedrock of the principlesenunciated in Articles 14, 19 and 21 of the Constitution.

225. It is axiomatic that the expression ‘life or personal liberty’ inArticle 21 embodies within itself variety of rights. In Maneka Gandhi(supra), Bhagwati, J. (as he then was) observed:-

“The expression ‘personal liberty’ in Article 21 is of the widestamplitude and it covers variety of rights which go to constitute

the personal liberty of man and some of them have been raisedto the status of distinct fundamental rights and given additionalprotection under Article 19...”

226. In Anuj Garg (supra), while dealing with the constitutionalvalidity of Section 30 of the Punjab Excise Act, 1914 prohibitingBemployment of “any man under the age of 25 years” or “any woman”,the Court, holding it ultra vires, ruled thus:-

“31. … It is their life; subject to constitutional, statutory andsocial interdicts—a citizen of India should be allowed to live herlife on her own terms.”

CAnd again:-

“35. Privacy rights prescribe autonomy to choose professionwhereas security concerns texture methodology of delivery ofthis assurance. But it is reasonable proposition that the measuresto safeguard such guarantee of autonomy should not be soDstrong that the essence of the guarantee is lost. State protectionmust not translate into censorship.”

227. In Common Cause (A Regd. Society) (supra), the Court,in the context of right to dignity, observed:-

“Right to life and liberty as envisaged under Article 21 isEmeaningless unless it encompasses within its sphere individualdignity and right to dignity includes the right to carry suchfunctions and activities as would constitute the meaningfulexpression of the human self.”

228. In Puttaswamy (supra), the right to privacy has been declaredFto be fundamental right by this Court as being facet of life andpersonal liberty protected under Article 21 of the Constitution.

229. In view of the above authorities, we have no hesitation tosay that Section 377 IPC, in its present form, abridges both human dignityas well as the fundamental right to privacy and choice of the citizenry,Ghowsoever small. As sexual orientation is an essential and innate facetof privacy, the right to privacy takes within its sweep the right of everyindividual including that of the LGBT to express their choices in terms ofsexual inclination without the fear of persecution or criminal prosecution.

230. The sexual autonomy of an individual to choose his/her sexualpartner is an important pillar and an insegregable facet of individual liberty.When the liberty of even single person of the society is smotheredunder some vague and archival stipulation that it is against the order ofnature or under the perception that the majority population is peevedwhen such an individual exercises his/her liberty despite the fact thatthe exercise of such liberty is within the confines of his/her private space,then the signature of life melts and living becomes bare subsistenceand resultantly, the fundamental right of liberty of such an individual isabridged.231. While saying so, we are absolutely conscious of the fact thatthe citizenry may be deprived of their right to life and personal liberty ifthe conditions laid down in Article 21 are fulfilled and if, at the sametime, the procedure established by law as laid down in Maneka Gandhi(supra) is satisfied. Article 21 requires that for depriving person of hisright to life and personal liberty, there has to be law and the said lawmust prescribe fair procedure. The seminal point is to see whetherSection 377 withstands the sanctity of dignity of an individual, expressionof choice, paramount concept of life and whether it allows an individualto lead to life that one’s natural orientation commands. That apart,more importantly, the question is whether such gender-neutral offence,with the efflux of time, should be allowed to remain in the statute bookespecially when there is consent and such consent elevates the status ofbodily autonomy. Hence, the provision has to be tested on the principlesevolved under Articles 14, 19 and 21 of the Constitution.

232. In Sunil Batra v. Delhi Administration and others[85],Krishna Iyer, J. opined that what is punitively outrageous, scandalizinglyunusual or cruel and rehabilitatively counterproductive, is unarguablyunreasonable and arbitrary and is shot down by Article 14 and 19 and ifinflicted with procedural unfairness, falls foul of Article 21.

233. We, first, must test the validity of Section 377 IPC on theanvil of Article 14 of the Constitution. What Article 14 propounds is that‘all like should be treated alike’. In other words, it implies equal treatmentfor all equals. Though the legislature is fully empowered to enact lawsapplicable to particular class, as in the case at hand in which Section377 applies to citizens who indulge in carnal intercourse, yet the

85 AIR 1978 SC 1675 : (1978) 4 SCC 494

Aclassification, including the one made under Section 377 IPC, has tosatisfy the twin conditions to the effect that the classification must befounded on an intelligible differentia and the said differentia must have arational nexus with the object sought to be achieved by the provision,that is, Section 377 IPC.

B234. In M. Nagaraj and others v. Union of India and others[86],it has been held:-

“The gravamen of Article 14 is equality of treatment. Article 14confers personal right by enacting prohibition which isabsolute. By judicial decisions, the doctrine of classification isCread into Article 14. Equality of treatment under Article 14 is anobjective test. It is not the test of intention. Therefore, the basicprinciple underlying Article 14 is that the law must operate equallyon all persons under like circumstances.”

235. In E.P. Royappa v. State of Tamil Nadu and another[87],Dthis Court observed that equality is dynamic concept with many aspectsand dimensions and it cannot be “cribbed, cabined and confined” withintraditional and doctrinaire limits. It was further held that equality isantithetic to arbitrariness, for equality and arbitrariness are sworn enemies;one belongs to the rule of law in republic while the other, to the whimand caprice of an absolute monarch.E236. In Budhan Choudhry v. The State of Bihar[88], whiledelineating on the concept of reasonable classification, the Court observedthus:-

“It is now well-established that while article 14 forbids classlegislation, it does not forbid reasonable classification for theFpurposes of legislation. In order, however, to pass the test ofpermissible classification two conditions must be fulfilled, namely,(i) that the classification must be founded on an intelligibledifferentia which distinguishes persons or things that are groupedtogether from others left out of the group and (ii) that differentiaGmust have rational relation to the object sought to be achievedby the statute in question. The classification may be founded ondifferent bases; namely, geographical, or according to objects or

86 AIR 2007 SC 71 : (2006) 8 SCC 21287 AIR 1974 SC 555 : (1974) 4 SCC 3H88 AIR 1955 SC 191

occupations or the like. What is necessary is that there must bea nexus between the basis of classification and the object of theAct under consideration. It is also well established by the decisionsof this Court that article 14 condemns discrimination not only bya substantive law but also by law of procedure.”

237. perusal of Section 377 IPC reveals that it classifies andpenalizes persons who indulge in carnal intercourse with the object toprotect women and children from being subjected to carnal intercourse.That being so, now it is to be ascertained whether this classification hasa reasonable nexus with the object sought to be achieved. The answeris in the negative as the non-consensual acts which have been criminalizedby virtue of Section 377 IPC have already been designated as penaloffences under Section 375 IPC and under the POCSO Act. Per contra,the presence of this Section in its present form has resulted in distastefuland objectionable collateral effect whereby even ‘consensual acts’, whichare neither harmful to children nor women and are performed by certainclass of people (LGBTs) owning to some inherent characteristics definedby their identity and individuality, have been woefully targeted. Thisdiscrimination and unequal treatment meted out to the LGBT communityas separate class of citizens is unconstitutional for being violative ofArticle 14 of the Constitution.

238. In Shayara Bano (supra), the Court observed that manifestarbitrariness of provision of law can also be ground for declaring alaw as unconstitutional. Opining so, the Court observed thus:-

“The test of manifest arbitrariness, therefore, as laid down in theaforesaid judgments would apply to invalidate legislation as wellas subordinate legislation under Article 14. Manifest arbitrariness,therefore, must be something done by the legislature capriciously,irrationally and/or without adequate determining principle. Also,when something is done which is excessive and disproportionate,such legislation would be manifestly arbitrary. We are, therefore,of the view that arbitrariness in the sense of manifest arbitrarinessas pointed out by us above would apply to negate legislation aswell under Article 14.”

239. In view of the law laid down in Shayara Bano (supra) andgiven the fact that Section 377 criminalises even consensual sexual actsbetween adults, it fails to make distinction between consensual and

Anon-consensual sexual acts between competent adults. Further, Section377 IPC fails to take into account that consensual sexual acts betweenadults in private space are neither harmful nor contagious to the society.On the contrary, Section 377 trenches discordant note in respect of theliberty of persons belonging to the LGBT community by subjecting themto societal pariah and dereliction. Needless to say, the Section alsoBinterferes with consensual acts of competent adults in private space.Sexual acts cannot be viewed from the lens of social morality or that oftraditional precepts wherein sexual acts were considered only for thepurpose of procreation. This being the case, Section 377 IPC, so long asit criminalises consensual sexual acts of whatever nature betweenCcompetent adults, is manifestly arbitrary.240. The LGBT community possess the same human, fundamentaland constitutional rights as other citizens do since these rights inhere inindividuals as natural and human rights. We must remember that equalityis the edifice on which the entire non-discrimination jurisprudence rests.DRespect for individual choice is the very essence of liberty under lawand, thus, criminalizing carnal intercourse under Section 377 IPC isirrational, indefensible and manifestly arbitrary. It is true that the principleof choice can never be absolute under liberal Constitution and the lawrestricts one individual’s choice to prevent harm or injury to others.However, the organisation of intimate relations is matter of completeEpersonal choice especially between consenting adults. It is vital personalright falling within the private protective sphere and realm of individualchoice and autonomy. Such progressive proclivity is rooted in theconstitutional structure and is an inextricable part of human nature.

241. In the adverting situation, we must also examine whetherFSection 377, in its present form, stands the test of Article 19 of theConstitution in the sense of whether it is unreasonable and, therefore,violative of Article 19. In Chintaman Rao v. State of MadhyaPradesh[89], this Court, in the context of reasonable restrictions underArticle 19, opined thus:-G“The phrase “reasonable restriction” connotes that the limitationimposed on person in enjoyment of the right should not bearbitrary or of an excessive nature, beyond what is required inthe interests of the public. The word “reasonable” impliesintelligent care and deliberation, that is, the choice of course

H89 AIR 1951 SC 118

which reason dictates. Legislation which arbitrarily or excessivelyinvades the right cannot be said to contain the quality ofreasonableness and unless it strikes proper balance betweenthe freedom guaranteed in article 19(1)(g) and the social controlpermitted by clause (6) of article 19, it must be held to be wantingin that quality.”

242. In S. Rangarajan v. P. Jagjivan Ram and others[90], theCourt observed, though in different context, thus:-

“ ... Our commitment of freedom of expression demands that itcannot be suppressed unless the situations created by allowingthe freedom are pressing and the community interest isendangered. The anticipated danger should not be remote,conjectural or far-fetched. It should have proximate and directnexus with the expression.”

243. In S. Khushboo (supra), this Court, while observing that‘morality and decency’ on the basis of which reasonable restrictions canbe imposed on the rights guaranteed under Article 19 should not beamplified beyond rational and logical limit, ruled that even though theconstitutional freedom of speech and expression is not absolute and canbe subjected to reasonable restrictions on grounds such as `decency andmorality’ among others, yet it is necessary to tolerate unpopular views inthe socio-cultural space.

244. In the case of Shreya Singhal v. Union of India[91], thisCourt, while striking down Section 66A of the Information TechnologyAct, 2000, had observed that when provision is vague and overboardin the sense that it criminalises protected speech and speech of innocentnature, resultantly, it has chilling effect and is liable to be struck down.The Court opined:-

“We, therefore, hold that the Section is unconstitutional also onthe ground that it takes within its sweep protected speech andspeech that is innocent in nature and is liable therefore to beused in such way as to have chilling effect on free speechand would, therefore, have to be struck down on the ground ofoverbreadth.”

90 (1989) 2 SCC 574

91(2015) 5 SCC 1

A245. In the obtaining situation, we need to check whether publicorder, decency and morality as grounds to limit the fundamental right ofexpression including choice can be accepted as reasonable restrictionsto uphold the validity of Section 377 IPC. We are of the conscious viewthat Section 377 IPC takes within its fold private acts of adults includingthe LGBT community which are not only consensual but are also innocent,Bas such acts neither cause disturbance to the public order nor are theyinjurious to public decency or morality. The law is et domus sua cuiqueest tutissimum refugium – man’s house is his castle. Sir EdwardCoke[92] said:-

“The house of everyone is to him as his castle and fortress, asCwell for his defence against injury and violence as for his repose.”

246. That apart, any display of affection amongst the membersof the LGBT community towards their partners in the public so long asit does not amount to indecency or has the potentiality to disturb publicorder cannot be bogged down by majority perception. Section 377 IPCDamounts to unreasonable restriction as it makes carnal intercoursebetween consenting adults within their castle criminal offence whichis manifestly not only overboard and vague but also has chilling effecton an individual’s freedom of choice.

247. In view of the test laid down in the aforesaid authorities,ESection 377 IPC does not meet the criteria of proportionality and isviolative of the fundamental right of freedom of expression including theright to choose sexual partner. Section 377 IPC also assumes thecharacteristic of unreasonableness, for it becomes weapon in the handsof the majority to seclude, exploit and harass the LGBT community. Itshrouds the lives of the LGBT community in criminality and constantFfear mars their joy of life. They constantly face social prejudice, disdainand are subjected to the shame of being their very natural selves. Thus,an archaic law which is incompatible with constitutional values cannotbe allowed to be preserved.

248. Bigoted and homophobic attitudes dehumanize theGtransgenders by denying them their dignity, personhood and above all,their basic human rights. It is important to realize that identity and sexualorientation cannot be silenced by oppression. Liberty, as the linchpin ofour constitutional values, enables individuals to define and express theiridentity and individual identity has to be acknowledged and respected.H92 Semayne’s Case, 77 Eng. Rep. 194, 195; 5 Co. Rep. 91, 195 (K.B. 1604)

249. The very existence of Section 377 IPC criminalisingtransgenders casts great stigma on an already oppressed anddiscriminated class of people. This stigma, oppression and prejudice hasto be eradicated and the transgenders have to progress from their narrowclaustrophobic spaces of mere survival in hiding with their isolation andfears to enjoying the richness of living out of the shadows with fullrealization of their potential and equal opportunities in all walks of life.The ideals and objectives enshrined in our benevolent Constitution canbe achieved only when each and every individual is empowered andenabled to participate in the social mainstream and in the journey towardsachieving equality in all spheres, equality of opportunities in all walks oflife, equal freedoms and rights and, above all, equitable justice. This canbe achieved only by inclusion of all and exclusion of none from themainstream.250. We must realize that different hues and colours togethermake the painting of humanity beautiful and this beauty is the essence ofhumanity. We need to respect the strength of our diversity so as tosustain our unity as cohesive unit of free citizens by fostering toleranceand respect for each others’ rights thereby progressing towardsharmonious and peaceful co-existence in the supreme bond of humanity.Attitudes and mentality have to change to accept the distinct identity ofindividuals and respect them for who they are rather than compellingthem to ‘become’ who they are not. All human beings possess the equalright to be themselves instead of transitioning or conditioning themselvesas per the perceived dogmatic notions of group of people. To changethe societal bias and root out the weed, it is the foremost duty of eachone of us to “stand up and speak up” against the slightest form ofdiscrimination against transgenders that we come across. Let us movefrom darkness to light, from bigotry to tolerance and from the winter ofmere survival to the spring of life ¯ as the herald of New India ¯ to amore inclusive society.

251. It is through times of grave disappointment, denunciation,adversity, grief, injustice and despair that the transgenders have stoodfirm with their formidable spirit, inspired commitment, strong determinationand infinite hope and belief that has made them look for the rainbow inevery cloud and lead the way to future that would be the harbinger ofliberation and emancipation from certain bondage indescribable inwords – towards the basic recognition of dignity and humanity of all and

ABCDE

Atowards leading life without pretence eschewing duality andambivalence. It is their momentous “walk to freedom” and journey to aconstitutional ethos of dignity, equality and liberty and this freedom canonly be fulfilled in its truest sense when each of us realize that the LGBTcommunity possess equal rights as any other citizen in the country underthe magnificent charter of rights – our Constitution.

252. Thus analysed, Section 377 IPC, so far as it penalizes anyconsensual sexual activity between two adults, be it homosexuals (manand man), heterosexuals (man and woman) and lesbians (womanand woman), cannot be regarded as constitutional. However, if anyone,by which we mean both man and woman, engages in any kind ofCsexual activity with an animal, the said aspect of Section 377 IPC isconstitutional and it shall remain penal offence under Section 377 IPC.Any act of the description covered under Section 377 IPC done betweenthe individuals without the consent of any one of them would invite penalliability under Section 377 IPC.

DQ. Conclusions

253. In view of the aforesaid analysis, we record our conclusionsin seriatim:-

(i)The eminence of identity which has been luculently statedEin the NALSA case very aptly connects human rights andthe constitutional guarantee of right to life and liberty withdignity. With the same spirit, we must recognize that theconcept of identity which has constitutional tenabilitycannot be pigeon-holed singularly to one’s orientation as itmay keep the individual choice at bay. At the core of theFconcept of identity lies self-determination, realization ofone’s own abilities visualizing the opportunities and rejectionof external views with clear conscience that is in accordwith constitutional norms and values or principles that are,to put in capsule, “constitutionally permissible”.

G(ii)In Suresh Koushal (supra), this Court overturned thedecision of the Delhi High Court in Naz Foundation (supra)thereby upholding the constitutionality of Section 377 IPCand stating ground that the LGBT community comprisedonly minuscule fraction of the total population and thatthe mere fact that the said Section was being misused is

not reflection of the vires of the Section. Such view isconstitutionally impermissible.

(iii) Our Constitution is living and organic document capableof expansion with the changing needs and demands of thesociety. The Courts must commemorate that it is theConstitution and its golden principles to which they beartheir foremost allegiance and they must robe themselveswith the armoury of progressive and pragmatic interpretationto combat the evils of inequality and injustice that try tocreep into the society. The role of the Courts gains moreimportance when the rights which are affected belong to aclass of persons or minority group who have been deprivedof even their basic rights since time immemorial.

(iv) The primary objective of having constitutional democracyis to transform the society progressively and inclusively.Our Constitution has been perceived to be transformativein the sense that the interpretation of its provisions shouldnot be limited to the mere literal meaning of its words; insteadthey ought to be given meaningful construction which isreflective of their intent and purpose in consonance withthe changing times. Transformative constitutionalism notonly includes within its wide periphery the recognition ofthe rights and dignity of individuals but also propagates thefostering and development of an atmosphere wherein everyindividual is bestowed with adequate opportunities to developsocially, economically and politically. Discrimination of anykind strikes at the very core of any democratic society.When guided by transformative constitutionalism, the societyis dissuaded from indulging in any form of discrimination sothat the nation is guided towards resplendent future.

(v)Constitutional morality embraces within its sphere severalvirtues, foremost of them being the espousal of pluralisticand inclusive society. The concept of constitutional moralityurges the organs of the State, including the Judiciary, topreserve the heterogeneous nature of the society and tocurb any attempt by the majority to usurp the rights andfreedoms of smaller or minuscule section of the populace.Constitutional morality cannot be martyred at the altar of

social morality and it is only constitutional morality that canbe allowed to permeate into the Rule of Law. The veil ofsocial morality cannot be used to violate fundamental rightsof even single individual, for the foundation ofconstitutional morality rests upon the recognition of diversitythat pervades the society.

(vi) The right to live with dignity has been recognized as humanright on the international front and by number of precedentsof this Court and, therefore, the constitutional courts muststrive to protect the dignity of every individual, for withoutthe right to dignity, every other right would be renderedmeaningless. Dignity is an inseparable facet of everyindividual that invites reciprocative respect from others toevery aspect of an individual which he/she perceives as anessential attribute of his/her individuality, be it an orientationor an optional expression of choice. The Constitution hasladened the judiciary with the very important duty to protectand ensure the right of every individual including the rightto express and choose without any impediments so as toenable an individual to fully realize his/her fundamental rightto live with dignity.

E(vii) Sexual orientation is one of the many biological phenomenawhich is natural and inherent in an individual and is controlledby neurological and biological factors. The science ofsexuality has theorized that an individual exerts little or nocontrol over who he/she gets attracted to. Any discriminationon the basis of one’s sexual orientation would entail aFviolation of the fundamental right of freedom of expression.

(viii) After the privacy judgment in Puttaswamy (supra), the rightto privacy has been raised to the pedestal of fundamentalright. The reasoning in Suresh Koushal (supra), that onlya minuscule fraction of the total population comprises ofGLGBT community and that the existence of Section 377IPC abridges the fundamental rights of very minusculepercentage of the total populace, is found to be discordantnote. The said reasoning in Suresh Koushal (supra), inour opinion, is fallacious, for the framers of our ConstitutionHcould have never intended that the fundamental rights shall

NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE[DIPAK MISRA, CJI ]

be extended for the benefit of the majority only and that theCourts ought to interfere only when the fundamental rightsof large percentage of the total populace is affected. Infact, the said view would be completely against theconstitutional ethos, for the language employed in Part IIIof the Constitution as well as the intention of the framers ofour Constitution mandates that the Courts must step inwhenever there is violation of the fundamental rights, evenif the right/s of single individual is/are in peril.

(ix) There is manifest ascendance of rights under theConstitution which paves the way for the doctrine ofprogressive realization of rights as such rights evolve withthe evolution of the society. This doctrine, as naturalcorollary, gives birth to the doctrine of non-retrogression,as per which there must not be atavism of constitutionalrights. In the light of the same, if we were to accept theview in Suresh Koushal (supra), it would tantamount to aretrograde step in the direction of the progressiveinterpretation of the Constitution and denial of progressiverealization of rights.

(x)Autonomy is individualistic. Under the autonomy principle,the individual has sovereignty over his/her body. He/shecan surrender his/her autonomy wilfully to another individualand their intimacy in privacy is matter of their choice.Such concept of identity is not only sacred but is also inrecognition of the quintessential facet of humanity in aperson’s nature. The autonomy establishes identity and thesaid identity, in the ultimate eventuate, becomes part ofdignity in an individual.

(xi) cursory reading of both Sections 375 IPC and 377 IPCreveals that although the former Section gives duerecognition to the absence of ‘wilful and informed consent’for an act to be termed as rape, per contra, Section 377does not contain any such qualification embodying in itselfthe absence of ‘wilful and informed consent’ to criminalizecarnal intercourse which consequently results in criminalizingeven voluntary carnal intercourse between homosexuals,heterosexuals, bisexuals and transgenders. Section 375 IPC,

after the coming into force of the Criminal Law(Amendment) Act, 2013, has not used the words ‘subjectto any other provision of the IPC’. This indicates thatSection 375 IPC is not subject to Section 377 IPC.

(xii) The expression ‘against the order of nature’ has neitherbeen defined in Section 377 IPC nor in any other provisionof the IPC. The connotation given to the expression byvarious judicial pronouncements includes all sexual actswhich are not intended for the purpose of procreation.Therefore, if coitus is not performed for procreation only, itdoes not per se make it ‘against the order of nature’.

(xiii) Section 377 IPC, in its present form, being violative of theright to dignity and the right to privacy, has to be tested,both, on the pedestal of Articles 14 and 19 of the Constitutionas per the law laid down in Maneka Gandhi (supra) andother later authorities.

(xiv) An examination of Section 377 IPC on the anvil of Article14 of the Constitution reveals that the classification adoptedunder the said Section has no reasonable nexus with itsobject as other penal provisions such as Section 375 IPCand the POCSO Act already penalize non-consensual carnalintercourse. Per contra, Section 377 IPC in its present formhas resulted in an unwanted collateral effect whereby even‘consensual sexual acts’, which are neither harmful tochildren nor women, by the LGBTs have been woefullytargeted thereby resulting in discrimination and unequaltreatment to the LGBT community and is, thus, violative ofArticle 14 of the Constitution.

(xv) Section 377 IPC, so far as it criminalises even consensualsexual acts between competent adults, fails to make adistinction between non-consensual and consensual sexualacts of competent adults in private space which are neitherharmful nor contagious to the society. Section 377 IPCsubjects the LGBT community to societal pariah anddereliction and is, therefore, manifestly arbitrary, for it hasbecome an odious weapon for the harassment of the LGBTcommunity by subjecting them to discrimination and unequal

[DIPAK MISRA, CJI ]

treatment. Therefore, in view of the law laid down inShayara Bano (supra), Section 377 IPC is liable to bepartially struck down for being violative of Article 14 of theConstitution.

(xvi) An examination of Section 377 IPC on the anvil of Article19(1)(a) reveals that it amounts to an unreasonablerestriction, for public decency and morality cannot beamplified beyond rational or logical limit and cannot beaccepted as reasonable grounds for curbing the fundamentalrights of freedom of expression and choice of the LGBTcommunity. Consensual carnal intercourse among adults,be it homosexual or heterosexual, in private space, doesnot in any way harm the public decency or morality.Therefore, Section 377 IPC in its present form violatesArticle 19(1)(a) of the Constitution.

(xvii)Ergo, Section 377 IPC, so far as it penalizes any consensualsexual relationship between two adults, be it homosexuals(man and man), heterosexuals (man and woman) orlesbians (woman and woman), cannot be regarded asconstitutional. However, if anyone, by which we mean botha man and woman, engages in any kind of sexual activitywith an animal, the said aspect of Section 377 isconstitutional and it shall remain penal offence underSection 377 IPC. Any act of the description covered underSection 377 IPC done between two individuals without theconsent of any one of them would invite penal liability underSection 377 IPC.

(xviii)The decision in Suresh Koushal (supra), not being inconsonance with what we have stated hereinabove, isoverruled.

254. The Writ Petitions are, accordingly, disposed of. There shallbe no order as to costs.

R. F. NARIMAN, J. 1. “The love that dare not speak its name”is how the love that exists between same-sex couples was described byLord Alfred Douglas, the lover of Oscar Wilde, in his poem Two Lovespublished in 1894 in Victorian England.

A2. The word “homosexual” is not derived from “homo” meaningman, but from “homo” meaning same.[1] The word “lesbian” is derivedfrom the name of the Greek island of Lesbos, where it was rumored thatfemale same-sex couples proliferated. What we have before us is arelook at the constitutional validity of Section 377 of the Indian PenalCode which was enacted in the year 1860 (over 150 years ago) insofarBas it criminalises consensual sex between adult same-sex couples.

3. These cases have had chequered history. Writ petitions werefiled before the Delhi High Court challenging the constitutional validityof Section 377 of the Penal Code insofar as it criminalizes consensualsex between adult same-sex couples within the confines of their homesCor other private places. Division Bench of the Delhi High Court inNaz Foundation v. Government of NCT of Delhi (“NazFoundation”), 111 DRJ 1 (2009), after considering wide-rangingarguments on both sides, finally upheld the plea of the petitioners in thefollowing words:

D“132. We declare that Section 377 IPC, insofar it criminalisesconsensual sexual acts of adults in private, is violative of Articles21, 14 and 15 of the Constitution. The provisions of Section 377IPC will continue to govern non-consensual penile non-vaginalsex and penile non-vaginal sex involving minors. By ‘adult’ weEmean everyone who is 18 years of age and above. personbelow 18 would be presumed not to be able to consent to asexual act. This clarification will hold till, of course, Parliamentchooses to amend the law to effectuate the recommendation ofthe Law Commission of India in its 172[nd] Report which we believeremoves great deal of confusion. Secondly, we clarify that ourFjudgment will not result in the re-opening of criminal casesinvolving Section 377 IPC that have already attained finality.

We allow the writ petition in the above terms.”

4. Despite the fact that no appeal was filed by the Union of India,in appeals filed by private individuals and groups, the Supreme Court inGSuresh Kumar Koushal and Anr. v. Naz Foundation and Ors.(“Suresh Kumar Koushal”), (2014) 1 SCC 1, reversed the judgment

1Homo in Greek means ‘same’ – the Nicene creed that was accepted by the CatholicChurch after the Council at Nicaea, held by Emperor Constantine in 325 AD, wasformulated with the word ‘homo’ at the forefront. When coupled with ‘sios’ it meanssame substance, meaning thereby that Jesus Christ was divine as he was of the sameHsubstance as God.

NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE[DIPAK MISRA, CJI ][R. F. NARIMAN, J.]

of the High Court. Reviews that were filed against the aforesaid judgment,including by the Union of India, were dismissed by this Court.

5. Meanwhile, the Supreme Court delivered an important judgmentreported as National Legal Services Authority v. Union of India(“NALSA”), (2014) 5 SCC 438, which construed Articles 15 and 21 ofthe Constitution of India as including the right to gender identity andsexual orientation, and held that just like men and women, transgenderscould enjoy all the fundamental rights that other citizens of India couldenjoy. Thereafter, in Justice K.S. Puttaswamy (Retd.) and Anr. v.Union of India and Ors. (“Puttaswamy”), (2017) 10 SCC 1, nine-Judge Bench of this Court unanimously declared that there is afundamental right of privacy which enured in favour of all persons, theconcomitant of which was that the right to make choices that werefundamental to person’s way of living could not be interfered with bythe State without compelling necessity and/or harm caused to otherindividuals.

6. The impetus of this decision is what led to three-Judge Benchorder of 08.01.2018, which referred to the judgment of Puttaswamy(supra) and other arguments made by Shri Datar, to refer the correctnessof Suresh Kumar Koushal’s case (supra) to larger Bench. This ishow the matter has come to us.

History of Section 377

7. In the western world, given the fact that both Judaism andChristianity outlawed sexual intercourse by same-sex couples, offencesrelating thereto were decided by ecclesiastical courts. It is only as aresult of Henry VIII of England breaking with the Roman Catholic Churchthat legislation in his reign, namely the Buggery Act of 1533, prohibited“the detestable and abominable offence” of buggery committed withmankind or beast.

8. Between 1806, when reliable figures begin, and 1900, 8,921men were indicted for sodomy, gross indecency or other ‘unnaturalmisdemeanours’ in England and Wales. Ninety men per year were, onaverage, indicted for homosexual offences in this period. About thirdas many were arrested and their case considered by magistrates. Mostof the men convicted were imprisoned, but between 1806 and 1861,when the death penalty for sodomy was finally abolished, 404 men weresentenced to death. Fifty-six were executed, and the remainder were

ABC

Aeither imprisoned or transported to Australia for life. Two such men,James Pratt and John Smith, were the last to be executed in Britain forsodomy on 27 November, 1835.

9. During the reign of the East India Company in India, Parliamentestablished what was called the Indian Law Commission. In 1833,BThomas Babington Macaulay was appointed to chair the Commission.[2]

10.The Indian Law Commission, with Macaulay as its head,submitted the Draft Penal Code to the Government of India on 14.10.1837.This draft consisted of 488 clauses. After the First Report submitted on23.07.1846, the Second Report of Her Majesty’s Commissioners forCrevising and consolidating the law was submitted by C.H. Cameron andD. Eliott on 24.06.1847. These Commissioners concluded that the DraftPenal Code was sufficiently complete, and, with slight modifications, fitto be acted upon. The revised edition of the Penal Code was thenforwarded to the Judges of the Supreme Court at Calcutta on 30.05.1851,and also to the Judges of the Sudder Court at Calcutta.D

11. The revised edition of the Penal Code as prepared by Mr.Bethune, the Legislative member of the Legislative Council of India,together with the views of the Chief Justice and Mr. Justice Buller ofthe Supreme Court at Calcutta, as well as those of Mr. Justice Colvilewere sent to the Company in London. The Court of Directors in LondonEwere anxious to see the Penal Code enacted as early as possible. They,therefore, constituted Council in which Sir Barnes Peacock was madethe fourth member.

12.This Council or Committee prepared revised Penal Codewhich was then referred to Select Committee in 1857. Given the IndianFMutiny of 1857, the Code was passed soon thereafter in October, 1860and brought into force on 01.01.1862. Sir James Fitzjames Stephenproclaimed that:

“The Indian Penal Code is to the English criminal law what amanufactured article ready for use is to the materials out of

Gwhich it is made. It is to the French Penal Code and, I may add,

2 Thomas Babington Macaulay was Whig liberal who was precocious genius. Apartfrom having photographic memory with which he astounded persons around him, oneincident which took place when Macaulay was only 5 years old told the world whatwas in store for it when Macaulay would reach adulthood. lady dropped some hotcoffee on the five-year old child and expressed great sorrow for doing so. The childHriposted, after letting out scream, “Madam, the agony has abated”.

to the North Germany Code of 1871, what finished picture isto sketch. It is far simpler, and much better expressed, thanLivingston’s Code for Louisiana; and its practical success hasbeen complete”.

13. He further described the Penal Code as:-

“the criminal law of England freed from all technicalities andsuperfluities, systematically arranged and modified in some fewparticulars (they are surprisingly few), to suit circumstances ofBritish India.”

14.According to Lord Macaulay, good Code should have thequalities of precision and comprehensibility. In letter to Lord Auckland,the Governor General of India in Council, which accompanied his draftPenal Code, he stated:

“There are two things which legislator should always have inview while he is framing laws: the one is that they should be asfar as possible precise; the other that they should be easilyunderstood. That law, and especially penal law, should bedrawn in words which convey no meaning to the people who areto obey it, is an evil. On the other hand, loosely worded law isno law, and to whatever extent legislature uses vagueexpressions, to that extent it abdicates its functions, and resignsthe power of making law to the Courts of Justice.”

15. Stung to the quick, when criticized as to the delay in bringingout the Code, he observed in Minute to Lord Auckland as follows:

“…when I remember the slow progress of law reforms at homeand when I consider that our Code decides hundreds ofquestions… every one of which if stirred in England would giveoccasion to voluminous controversy and to many animateddebates, I must acknowledge that I am inclined to fear that wehave been guilty rather of precipitation than of delay.”

16. Earlier, he had described the core objective of his project inhis 04.06.1835 Minute to the Council which could be paraphrased asfollows:-

It should be more than mere digest of existing laws, coveringall contingencies, and ‘nothing that is not in the Code ought to belaw’.

AIt should suppress crime with the least infliction of suffering andallow for the ascertaining of the truth at the smallest possiblecost of time and money.

Its language should be clear, unequivocal and concise. Everycriminal act should be separately defined, its language followedBprecisely in indictment and conduct found to fall clearly withinthe definition.

Uniformity was to be the chief end and special definitions,procedures or other exceptions to account for different races orsects should not be included without clear and strong reasons.

C17. It is interesting to note that Lord Macaulay’s Draft wassubstantially different from what was enacted as Section 377. Macaulay’soriginal draft read:-

“361. Whoever, intending to gratify unnatural lust, touches forthat purpose any person, or any animal, or is by his own consentDtouched by any person, for the purpose of gratifying unnaturallust, shall be punished with imprisonment of either descriptionfor term which may extend to fourteen years and must not beless than two years, and shall be liable to fine.

362. Whoever, intending to gratify unnatural lust, touches forEthat purpose any person without that person’s free and intelligentconsent, shall be punished with imprisonment of either descriptionfor term which may extend to life and must not be less thanseven years, and shall also be liable to fine.”

18.What is remarkable for the time in which he lived is the factFthat Lord Macaulay would punish touching another person for the purposeof gratifying “unnatural lust” without their “free and intelligent consent”with term of imprisonment extendable to life (but not less than sevenyears) while the penalty for the same offence, when consensual, wouldbe imprisonment for maximum term of fourteen years (but not lessthan two years). Even in this most prudish of all periods of English history,GLord Macaulay recognized lesser sentence for the crime of “unnaturallust”, if performed with consent. Living in the era in which he lived, heclearly eschewed public discussion on this subject, stating:-

“Clause 361 and 362 relate to an odious class of offencesrespecting which it is desirable that as little as possible should beH

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said. We leave, without comment, to the judgment of his Lordshipin Council the two clauses which we have provided for theseoffences. We are unwilling to insert, either in the text or in thenotes, anything which could give rise to public discussion on thisrevolting subject; as we are decidedly of the opinion that theinjury which would be done to the morals of the community bysuch discussion would far more than compensate for any benefitswhich might be derived from legislative measures framed withthe greatest precision.”

19.At what stage of the proceedings before the various personsand committees after 1837, Section 377 finally took shape, is not clear.What is clear is that it is the Committee of Sir Barnes Peacock whichfinally sent the draft equivalent of Section 377 for enactment.

20.The Indian Penal Code, given its long life of over 150 years,has had surprisingly few amendments made to it. The 42[nd] LawCommission Report, early in this country’s history, did not recommendthe amendment or deletion of Section 377. But B. P. Jeevan Reddy, J.’sLaw Commission Report of the year 2000 (the 172[nd] Report)recommended its deletion consequent to changes made in the precedingsections, which made it clear that anal sex between consenting adults,whether same-sex or otherwise, would not be penalized.

Law in the United Kingdom

21.As has been mentioned earlier in this judgment, the firstenactment prohibiting same-sex intercourse was passed in the year 1533in the reign of Henry VIII. The death penalty was prescribed even forconsenting adults who indulged in this “abomination”. The trial of personssuch as Oscar Wilde is what led to law reform in the U.K., albeit 60years later.

22.The Marquess of Queensberry’s son, Lord Alfred Douglas,was having an affair with Oscar Wilde, which the Marquess discovered.At Oscar Wilde’s club, the Marquess left note describing Oscar Wildeas “somdomite” which led to one of the most celebrated defamationactions in England. In the course of his cross-examination of OscarWilde, Sir Edward Carson was able to draw from his famous witnessthe fact that boys could be plain or ugly, which would have led to thetruth of establishing the charge against Oscar Wilde. Rather than go onwith the trial, Oscar Wilde hastily withdrew his action for defamation.

ABut that was not the end. prosecution under the Criminal LawAmendment Act of 1885 followed, in which Oscar Wilde was convictedand sent to jail for period of two years. He never quite recovered, forafter his jail sentence was served out, he died broken and impoverishedman in Paris at the early age of 46.[3]

B23.The winds of change slowly blew over the British Isles andfinally, post the Second World War, what is known as the WolfendenCommittee was appointed on 24.08.1954, inter alia to consider the lawand practice relating to homosexual offences and the treatment of personsconvicted of such offences by the courts. The Committee Report, eventhough it is of vintage of September 1957, makes interesting reading.CIn paragraphs 31 and 32 of the Report, the Committee opined:-

“31. Even if it could be established that homosexuality were adisease, it is clear that many individuals, however their state isreached, present social rather than medical problems and mustbe dealt with by social, including penological, methods. This isDespecially relevant when the claim that homosexuality is an illnessis taken to imply that its treatment should be medicalresponsibility. Much more important than the academic questionwhether homosexuality is disease is the practical questionwhether doctor should carry out any part or all of the treatment.EPsychiatrists deal regularly with problems of personality whichare not regarded as diseases, and conversely the treatment ofcases of recognized psychiatric illness may not be strictly medicalbut may best be carried out by non-medical supervision orenvironmental change. Examples would be certain cases of seniledementia or chronic schizophrenia which can best be managedFat home. In fact, the treatment of behavior disorders, even whenmedically supervised, is rarely confined to psychotherapy or totreatment of strictly medical kind. This is not to deny that expertadvice should be sought in very many homosexual cases. Weshall have something more to say on these matters in connectionGwith the treatment of offenders.

3 Much more could have come from the pen of this genius. In fact, when crossing theU.S. Customs and being asked whether he had anything to declare, his famous answerwas said to have been, “I have nothing to declare except my genius.” But even unjust jailsentences can produce remarkable things – The Ballad of Reading Gaol is masterpieceof English poetry which the world would never have received had he not been incarceratedHin Reading Gaol.

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32. The claim that homosexuality is an illness carries the furtherimplication that the sufferer cannot help it and therefore carriesa diminished responsibility for his actions. Even if it wereaccepted that homosexuality could properly be described as a“disease”, we should not accept this corollary. There are no primafacie grounds for supposing that because particular person’ssexual propensity happens to lie in the direction of persons of hisor her own sex it is any less controllable than that of those whosepropensity is for persons of the opposite sex. We are informedthat patients in mental hospitals, with few exceptions, show clearlyby their behavior that they can and do exercise high degree ofresponsibility and self-control; for example, only small minorityneed to be kept in locked wards. The existence of varying degreesof self-control is matter of daily experience - the extent towhich coughing can be controlled is an example - and the capacityfor self-control can vary with the personality structure or withtemporary physical or emotional conditions. The question whichis important for us here is whether the individual suffers from acondition which causes diminished responsibility. This is adifferent question from the question whether he was responsiblein the past for the causes or origins of his present condition. Thatis an interesting enquiry and may be of relevance in otherconnections; but our concern is with the behavior which flowsfrom the individual’s present condition and with the extent towhich he is responsible for that behavior, whatever may havebeen the causes of the condition from which it springs. Just asexpert opinion can give valuable assistance in deciding on theappropriate ways of dealing with convicted person, so can ithelp in assessing the additional factors that may affect his presentresponsibility?”

24. It then went on to note in paragraph 36 that the evidencebefore them showed that homosexuality existed in all levels of societyand was prevalent in all trades and professions. In paragraph 53, themain arguments for retention of the existing law were set out. Insofar associetal health was concerned, the Committee rejected this for lack ofevidence. It went on to state:-

“54. As regards the first of these arguments, it is held that conductof this kind is cause of the demoralization and decay of

ABCDEF

Acivilisations, and that therefore, unless we wish to see our nationdegenerate and decay, such conduct must be stopped, by everypossible means. We have found no evidence to support this view,and we cannot feel it right to frame the laws which should governthis country in the present age by reference to hypotheticalexplanations of the history of other peoples in ages distant inBtime and different in circumstances from our own. In so far asthe basis of this argument can be precisely formulated, it is oftenno more than the expression of revulsion against what is regardedas unnatural, sinful or disgusting. Many people feel this revulsion,for one or more of these reasons. But moral conviction orCinstinctive feeling, however strong, is not valid basis foroverriding the individual’s privacy and for bringing within theambit of the criminal law private sexual behaviour of this kind. Itis held also that if such men are employed in certain professionsor certain branches of the public service their private habits mayrender them liable to threats of blackmail or to other pressuresDwhich may make them “bad security risks.” If this is true, it istrue also of some other categories of persons: for example,drunkards, gamblers and those who become involved incompromising situations of heterosexual kind; and while it maybe valid ground for excluding from certain forms of employmentEmen who indulge in homosexual behaviour, it does not, in ourview, constitute sufficient reason for making their private sexualbehaviour an offence in itself.”

(Emphasis supplied)

25.Insofar as the damaging effects on family life were concerned,Fthis was rejected by stating:-

“55. The second contention, that homosexual behaviour betweenmales has damaging effect on family life, may well be true.Indeed, we have had evidence, that it often is; cases in whichhomosexual behaviour on the part of the husband has broken upGa marriage are by no means rare, and there are also cases inwhich man in whom the homosexual component is relativelyweak nevertheless derives such satisfaction from homosexualoutlets that he does not enter upon marriage which might havebeen successfully and happily consummated. We deplore thisHdamage to what we regard as the basic unit of society; but cases

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are also frequently encountered in which marriage has beenbroken up by homosexual behaviour on the part of the wife, andno doubt some women, too, derive sufficient satisfaction fromhomosexual outlets to prevent their marrying. We have had noreasons shown to us which would lead us to believe thathomosexual behaviour between males inflicts any greater damageon family life than adultery, fornication or lesbian behaviour. Thesepractices are all reprehensible from the point of view of harm tothe family, but it is difficult to see why on this ground malehomosexual behaviour alone among them should be criminaloffence. This argument is not to be taken as saying that societyshould condone or approve male homosexual behaviour. Butwhere adultery, fornication and lesbian behaviour are not criminaloffences there seems to us to be no valid ground, on the basis ofdamage to the family, for so regarding homosexual behaviourbetween men. Moreover, it has to be recognized that the mereexistence of the condition of homosexuality in one of the partnerscan result in an unsatisfactory marriage, so that for homosexualto marry simply for the sake of conformity with the acceptedstructure of society or in the hope of curing his condition mayresult in disaster.”

26. And in rejecting the allegation that men indulging in suchpractices with other men may turn their attention to boys, the Committeesaid:-

“56. We have given anxious consideration to the third argument,that an adult male who has sought as his partner another adultmale may turn from such relationship and seek as his partner aboy or succession of boys. We should certainly not wish tocountenance any proposal which might tend to increase offencesagainst minors. Indeed, if we thought that any recommendationfor change in the law would increase the danger to minors, weshould not make it. But in this matter, we have been muchinfluenced by our expert witnesses. They are in no doubt thatwhatever may be the origins of the homosexual condition, thereare two recognisably different categories among adult malehomosexuals. There are those who seek as partners other adultmales, and there are paedophiliacs, that is to say men who seekas partners boys who have not reached puberty.

57. We are authoritatively informed that man who hashomosexual relations with an adult partner seldom turns to boys,and vice-versa, though it is apparent from the police reports wehave seen and from other evidence submitted to us that suchcases do happen.”

27. Finally, the Committee stated:

“60. We recognise that proposal to change law which hasoperated for many years so as to make legally permissible actswhich were formerly unlawful, is open to criticisms which mightnot be made in relation to proposal to omit, from code of lawsbeing formulated de novo, any provision making these acts illegal.To reverse long-standing tradition is serious matter and notto be suggested lightly. But the task entrusted to us, as weconceive it, is to state what we regard as just and equitablelaw. We therefore do not think it appropriate that considerationof this question should be unduly influenced by regard for thepresent law, much of which derives from traditions whose originsare obscure.

61. Further, we feel bound to say this. We have outlined thearguments against change in the law, and we recognise theirweight. We believe, however, that they have been met by thecounter-arguments we have already advanced. There remainsone additional counter-argument which we believe to be decisive,namely, the importance which society and the law ought to giveto individual freedom of choice and action in matters of privatemorality. Unless deliberate attempt is to be made by society,acting through the agency of the law, to equate the sphere ofcrime with that of sin, there must remain realm of privatemorality and immorality which is, in brief and crude terms, notthe law’s business. To say this is not to condone or encourageprivate immorality. On the contrary, to emphasise the personaland private responsibility of the individual for his own actions,and that is responsibility which mature agent can properly beexpected to carry for himself without the threat of punishmentfrom the law.

62. We accordingly recommend that homosexual behaviourbetween consenting adults in private should no longer be criminaloffence.”

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28.Change came slowly. It was only in 1967 that the WolfendenCommittee Report was acted upon by the British Parliament by enactingthe Sexual Offences Act, 1967, which abolished penal offences involvingconsenting same-sex adults.

29. In 2017, the United Kingdom passed the Policing and CrimesAct which served as an amnesty law to pardon persons who werecautioned or convicted under legislations that outlawed homosexual acts.[4]

The Law in the United States

30.At the time that the United States achieved independence in1776, the law in all the States insofar as same-sex offences wereconcerned, was the English law. This state of affairs continued untilchallenges were made in the last century to state statutes whichcriminalized sodomy. One such case, namely, Bowers v. Hardwick(“Bowers”), 92 L. Ed. 2d 140 (1986), reached the United StatesSupreme Court in the year 1986. By 5:4 decision, the United StatesSupreme Court upheld Georgia statute criminalizing sodomy and itsapplicability to the commission of that act with another adult male in thebedroom of the respondent’s home. Justice White, who spoke for themajority of the Court, did this on several grounds.

31. First and foremost, he stated that there was no right to privacythat extended to homosexual sodomy. No connection between family,marriage, or procreation and homosexuality had been demonstrated tothe court. The next ground for upholding such law was that proscriptionsagainst such conduct had ancient roots. Stanley v. Georgia (“Stanley”),22 L. Ed. 2d 542 (1969), where the Court held that the First Amendmentprohibits conviction for possessing and reading obscene material in theprivacy of one’s home, was brushed aside stating that Stanley itselfrecognized that its holding offered no protection for possession of drugs,firearms or stolen goods in the home. Therefore, such claimedfundamental right could not possibly exist when adultery, incest and othersexual crimes are punished, even though they may be committed in thehome. Another important rationale was that the Georgia law was basedon notion of morality, which is choice that could legitimately be

4 The impetus for this law was the prosecution of Alan Turing in 1952. Alan Turing wasinstrumental in cracking intercepted code messages that enabled the Allies to defeatGermany in many crucial engagements in the War. Turing accepted chemical castrationtreatment as an alternative to prison upon conviction, but committed suicide justbefore his 42[nd] birthday in 1954.

Aexercised by State Legislature. Chief Justice Burger, concurring, againrelied heavily on ‘ancient roots’, stating that throughout the history ofwestern civilization, homosexual sodomy was outlawed in the Judeo-Christian tradition, which the Georgia legislature could well follow. JusticePowell, concurring with the majority, found that to imprison personupto 20 years for single, private, consensual act of sodomy within theBhome would be cruel and unusual punishment within the meaning ofthe Eighth Amendment. However, since no trial had taken place on thefacts, and since the respondent did not raise any such Eighth Amendmentissue, Justice Powell concurred with the majority.

32. The dissenting opinion of four Justices makes interestingCreading. Justice Blackmun, who spoke for four dissenters, began withthe classical definition of the old privacy right which is the “right to be letalone”, and quoted from Justice Holmes’ article The Path of the Law,stating:-

“[i]t is revolting to have no better reason for rule of law thanDthat so it was laid down in the time of Henry IV. It is still morerevolting if the grounds upon which it was laid down havevanished long since, and the rule simply persists from blind imitationof the past.”

33. So much, then, for history and its “ancient roots”. JusticeEBlackmun’s dissent then went on to consider the famous judgment inWisconsin v. Yoder, 32 L. Ed. 2d 15 (1972), in which the Court hadupheld the fundamental right of the Amish community not to send theirchildren to schools, stating that way of life that is odd or even erraticbut interferes with no rights or interests of others is not to be condemnedFbecause it is different. Referring to Judeo-Christian values, the Courtsaid that the fact that certain religious groups condemn the behavior ofsodomy gives the State no licence to impose their moral judgment on theentire citizenry of the United States. Ending with John Stuart Mill typeof analysis, the dissent stated:-

G“44. This case involves no real interference with the rights ofothers, for the mere knowledge that other individuals do notadhere to one’s value system cannot be legally cognizableinterest, cf. Diamond v. Charles, 476 U.S. 54, 65-66, 106 S. Ct.1697, 1705, 90 L.Ed.2d 48 (1986), let alone an interest that canjustify invading the houses, hearts, and minds of citizens whoHchoose to live their lives differently.”

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34. Justice Stevens, also in powerfully worded dissent,specifically stated that the protection of privacy extends to intimatechoices made by unmarried as well as married persons.

35. It took the United States 17 years to set aside this view of thelaw and to accept the dissenting judgments in Bowers (supra).

36. In Lawrence v. Texas, 539 U.S. 558 (2003), by majority of6:3, Justice Anthony Kennedy, speaking for the majority, set aside thejudgment in Bowers (supra), accepting that the dissenting judgments inthat case were correct. In tilt at the history analysis of the majorityjudgment in Bowers (supra), the Court found that earlier sodomy lawswere not directed at homosexuals at large, but instead sought to prohibitnon-procreative sexual activity more generally, and were not enforcedagainst consenting adults acting in private. After citing from PlannedParenthood of Southeastern Pa. v. Casey (“Casey”), 505 U.S. 833(1992), the majority held – “our obligation is to define the liberty of all,not to mandate our own moral code.” The majority judgment then referredto Model Penal Code that the American Law Institute took out in1955, making it clear that it did not provide for criminal penalties forconsensual same-sex relationships conducted in private. The judgmentthen went on to refer to the Wolfenden Committee Report and the SexualOffences Act,1967 in the United Kingdom and referred to the EuropeanCourt’s decision in Dudgeon v. United Kingdom, 45 Eur. Ct. H. R.(1981). It then referred to Romer v. Evans (“Romer”), 517 U.S. 620(1996), where the Court struck down class-based legislation whichdeprived homosexuals of State anti-discrimination laws as violation ofthe Equal Protection Clause. The majority then found that the 1986decision of Bowers (supra), had “sustained serious erosion” throughtheir recent decisions in Casey (supra) and Romer (supra), and had,therefore, to be revisited.[5 ]Justice O’Connor concurred in the judgmentbut side-stepped rather than overruled Bowers (supra). Justice Scalia,

5 The majority’s decision echoes what had happened earlier in what is referred to as thecelebrated flag salute case, namely, West Virginia State Board of Education v.Barnette, 319 U.S. 624 (1943). The U.S. Supreme Court had overruled its recentjudgment in Minersville School District v. Gobitis, 310 U.S. 586 (1940). JusticeJackson speaking for the majority of the Court found:-

“The freedom asserted by these appellees does not bring them into collisionwith rights asserted by any other individual. It is such conflicts which mostfrequently require intervention of the State to determine where the rights of oneend and those of another begin. But the refusal of these persons to participate

Awith whom the Chief Justice and Justice Thomas joined, found no reasonto undo the Bowers (supra) verdict stating that stare decisis shouldcarry the day. An interesting passage in Justice Scalia’s judgment readsas follows:-

“Let me be clear that I have nothing against homosexuals, orBany other group, promoting their agenda through normaldemocratic means. Social perceptions of sexual and othermorality change over time, and every group has the right topersuade its fellow citizens that its view of such matters is thebest. That homosexuals have achieved some success in thatenterprise is attested to by the fact that Texas is one of the fewCremaining States that criminalize private, consensual homosexualacts. But persuading one’s fellow citizens is one thing, andimposing one’s views in absence of democratic majority will issomething else. I would no more require State to criminalizehomosexual acts—or, for that matter, display any moralDdisapprobation of them—than I would forbid it to do so. What

Texas has chosen to do is well within the range of traditionaldemocratic action, and its hand should not be stayed through theinvention of brand-new “constitutional right” by Court that isimpatient of democratic change. It is indeed true that “latergenerations can see that laws once thought necessary and properEin fact serve only to oppress,” [ante, at 579]; and when thathappens, later generations can repeal those laws. But it is thepremise of our system that those judgments are to be made bythe people, and not imposed by governing caste that knowsbest.”Fin the ceremony does not interfere with or deny rights of others to do so. Noris there any question in this case that their behavior is peaceable and orderly.”The learned Judge then went on to find:

“The very purpose of Bill of Rights was to withdraw certain subjects fromthe vicissitudes of political controversy, to place them beyond the reach ofmajorities and officials and to establish them as legal principles to be appliedby the courts. One’s right to life, liberty, and property, to free speech, freeGpress, freedom of worship and assembly, and other fundamental rights maynot be submitted to vote; they depend on the outcome of no elections.”

And finally, it was held:-

“If there is any fixed star in our constitutional constellation, it is that noofficial, high or petty, can prescribe what shall be orthodox in politics,nationalism, religion, or other matters of opinion or force citizens to confessby word or act their faith therein. If there are any circumstances which permitHan exception, they do not now occur to us.”

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37. Before coming to our own judgments, we may quickly surveysome of the judgments of the courts of other democratic nations. TheEuropean Community decisions, beginning with Dudgeon v. UnitedKingdom (supra) and continuing with Norris v. Ireland, Applicationno. 10581/83, and Modinos v. Cyprus, 16 EHRR 485 (1993), have allfound provisions similar to Section 377 to be violative of Article 8 of theEuropean Human Rights Convention, 1948 in which everyone has theright to respect for his private and family life, his home and hiscorrespondence, and no interference can be made with these rights unlessthe law is necessary in democratic society inter alia for the preventionof disorder or crime, for the protection of health or morals, or for theprotection of the rights and freedoms of others.

38.In El-Al Israel Airlines Ltd. v. Jonathan Danielwitz, H.C.J.721/94, the Supreme Court of Israel, speaking through Barak, J.,recognized same-sex relationship so that male companion could betreated as being companion for the receipt of free or discountedaeroplane ticket. The Court held:-

“14.….The principle of equality demands that the existence of arule that treats people differently is justified by the nature andsubstance of the issue. The principle of equality thereforepresumes the existence of objective reasons that justify adifference (a distinction, dissimilarity). Discrimination — whichis the opposite of equality — exists therefore in those situationswhere different law for people who are (de facto) differentfrom one another is based on reasons that are insufficient tojustify distinction between them in free and democratic society.In Justice Or’s words, discrimination is ‘different treatmentwithout an objective justification’ (Hoppert v. ‘Yad VaShem’Holocaust Martyrs and Heroes Memorial Authority [12], at p.360). President Agranat discussed this and pointed out:

‘The principle of equality, which is merely the opposite ofdiscrimination and which, for reasons of justice and fairness,the law of every democratic country aspires to achieve, meansthat people must be treated equally for particular purpose,when no real differences that are relevant to this purpose existbetween them. If they are not treated equally, we have caseof discrimination. However, if the difference or differencesbetween different people are relevant for the purpose under

discussion, it is permitted distinction to treat them differentlyfor that purpose, provided that those differences justify this. Inthis context, the concept of “equality” therefore means “relevantequality”, and it requires, with regard to the purpose underdiscussion, “equality of treatment” for those persons in thisstate. By contrast, it will be permitted distinction if thedifferent treatment of different persons derives from their beingfor the purpose of the treatment, in state of relevant inequality,just as it will be discrimination if it derives from their being in astate of inequality that is not relevant to the purpose of thetreatment’ (FH 10/69 Boronovski v. Chief Rabbis [16], at p. 35).

Therefore, particular law will create discrimination when twoindividuals, who are different from one another (factualinequality), are treated differently by the law, even though thefactual difference between them does not justify differenttreatment in the circumstances. Discrimination is therefore basedon the factors of arbitrariness, injustice and unreasonableness.

XXX

17. We have seen, therefore, that giving benefit to (permanent)employee for spouse or recognized companion of the oppositesex and not giving the same benefit for same-sex companionEamounts to violation of equality. What is the nature of thisdiscrimination? Indeed, all discrimination is prohibited, but amongthe different kinds of discrimination, there are varying degrees.The severity of the discrimination is determined by the severityof the violation of the principle of equality. Thus, for example,Fwe consider discrimination on the basis of race, religion, nationality,language, ethnic group and age to be particularly serious. In thisframework, the Israeli legal system attaches great importanceto the need to guarantee equality between the sexes and to preventdiscrimination on the basis of sex (see HCJ 153/87 Shakdiel v.Minister of Religious Affairs [19]; Poraz v. Mayor of Tel Aviv-GJaffa [6]).”

(Emphasis supplied)

39.An instructive recent judgment from Trinidad and Tobago inJason Jones v. Attorney General of Trinidad and Tobago, ClaimNo. CV 2017-00720, followed our judgment in Puttaswamy (supra) in

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order to strike down Section 13 of the Sexual Offences Act, 1986 on theground that the State cannot criminalise sexual relations of the same sexbetween consenting adults. The court concluded:-

“168. Having regard to the evidence and submissions beforethis court on all sides, there is no cogent evidence that thelegislative objective is sufficiently important to justify limiting theclaimant’s rights. Mr. Hosein’s stated objectives of:

168.1. Maintaining traditional family and values that representsociety;

168.2. Preserving the legislation as it is and clarifying the law;and

168.3. Extending the offence in section 16 to women and reduceit to serious indecency from gross indecency;

do not counterbalance the claimant’s limit of his fundamentalright of which he has given evidence. Instead, the court acceptsthe claimant’s position that the law as it stands is not sufficientlyimportant to justify limiting his fundamental rights and that hehas proven it on balance of probabilities.”

40. To similar effect is the judgment of the High Court of Fiji inDhirendra Nadan v. State, Case No. HAA0085 of 2005, where aSection similar to Section 377 was held to be inconsistent with theconstitutional right of privacy and invalid to the extent that the lawcriminalises acts constituting private consensual sexual conduct “againstthe course of nature” between adults.

41.The South African Supreme Court, by decision of 1999 inThe National Coalition for Gay and Lesbian Equality v. TheMinister of Home Affairs, Case CCT 10/99, after referring to variousjudgments of other courts, also found similar section to be inconsistentwith the fundamental rights under its Constitution.

42. Another important decision is that of the United Nations HumanRights Committee in Toonen v. Australia, Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994), dated 31.03.1994. TheCommittee was called upon to determine whether Mr. Nicholas Toonen,who resided in the state of Tasmania, had been the victim of arbitraryinterference with his privacy, and whether he had been discriminatedagainst on the basis of his sexual orientation of being homosexual. TheCommittee found:-

“8.2 Inasmuch as Article 17 is concerned, it is undisputed thatadult consensual sexual activity in private is covered by theconcept of “privacy”, and that Mr. Toonen is actually andcurrently affected by the continued existence of the Tasmanianlaws. The Committee considers that Sections 122 (a), (c) and123 of the Tasmanian Criminal Code “interfere” with the author’sprivacy, even if these provisions have not been enforced for adecade. In this context, it notes that the policy of the Departmentof Public Prosecutions not to initiate criminal proceedings inrespect of private homosexual conduct does not amount to aguarantee that no actions will be brought against homosexuals inthe future, particularly in the light of undisputed statements ofthe Director of Public Prosecutions of Tasmania in 1988 andthose of members of the Tasmanian Parliament. The continuedexistence of the challenged provisions therefore continuously anddirectly “interferes” with the author’s privacy.

8.3 The prohibition against private homosexual behaviour isprovided for by law, namely, Sections 122 and 123 of theTasmanian Criminal Code. As to whether it may be deemedarbitrary, the Committee recalls that pursuant to its GeneralComment 16 on article 17, the “introduction of the concept ofarbitrariness is intended to guarantee that even interferenceprovided for by the law should be in accordance with theprovisions, aims and objectives of the Covenant and should be,in any event, reasonable in the circumstances”.(4) TheCommittee interprets the requirement of reasonableness to implythat any interference with privacy must be proportional to theend sought and be necessary in the circumstances of any givencase.

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8.5 As far as the public health argument of the Tasmanianauthorities is concerned, the Committee notes that thecriminalization of homosexual practices cannot be considered areasonable means or proportionate measure to achieve the aimof preventing the spread of AIDS/HIV. The AustralianGovernment observes that statutes criminalizing homosexualactivity tend to impede public health programmes “by drivingunderground many of the people at the risk of infection”.

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Criminalization of homosexual activity thus would appear to runcounter to the implementation of effective education programmesin respect of the HIV/AIDS prevention. Secondly, the Committeenotes that no link has been shown between the continuedcriminalization of homosexual activity and the effective controlof the spread of the HIV/AIDS virus.

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8.7 The State party has sought the Committee’s guidance as towhether sexual orientation may be considered an “other status”for the purposes of article 26. The same issue could arise underarticle 2, paragraph 1, of the Covenant. The Committee confinesitself to noting, however, that in its view the reference to “sex”in articles 2, paragraph 1, and 26 is to be taken as includingsexual orientation.

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10. Under article 2(3)(a) of the Covenant, the author, victim of aviolation of articles 17, paragraph 1, juncto 2, paragraph 1, of theCovenant, is entitled to remedy. In the opinion of the Committee,an effective remedy would be the repeal of Sections 122(a), (c)and 123 of the Tasmanian Criminal Code.”

43.As result of these findings, the Australian Parliament, on19.12.1994, passed the Human Rights (Sexual Conduct) Act, 1994,Section 4 of which reads as under:-

“4. Arbitrary interferences with privacy

(1) Sexual conduct involving only consenting adults acting in privateis not to be subject, by or under any law of the Commonwealth,a State or Territory, to any arbitrary interference with privacywithin the meaning of Article 17 of the International Covenanton Civil and Political Rights.

(2) For the purposes of this section, an adult is person who is18 years old or more.”

Recent Judgments of this Court

44. Anuj Garg and Ors. v. Hotel Association of India andOrs., (2008) 3 SCC 1, is an important decision of this Court, which dealtwith the constitutional validity of another pre-constitution enactment,

Anamely, Section 30 of the Punjab Excise Act of 1914, which prohibitedemployment of any woman in any part of premises in which liquor isconsumed by the public. Sinha, J. adverted to the fact that when theoriginal Act was enacted, the concept of equality between the two sexeswas unknown. The Constitution changed all that when it enacted Articles14 and 15. What is of importance is that when discrimination is madeBbetween two sets of persons, the classification must be founded on somerational criteria having regard to the societal conditions as they existpresently, and not as they existed in the early 20[th] century or even earlier.This was felicitously stated by the learned Judge as follows:-

“7. The Act is pre-constitutional legislation. Although it is savedCin terms of Article 372 of the Constitution, challenge to its validityon the touchstone of Articles 14, 15 and 19 of the Constitution ofIndia, is permissible in law. While embarking on the questionsraised, it may be pertinent to know that statute although couldhave been held to be valid piece of legislation keeping in viewDthe societal condition of those times, but with the changesoccurring therein both in the domestic as also international arena,such law can also be declared invalid.

8. In John Vallamattom v. Union of India, (2003) 6 SCC 611,this Court, while referring to an amendment made in UK inErelation to provision which was in pari materia with Section118 of Indian Succession Act, observed (SCC p. 624, para 28):

“28…The constitutionality of provision, it is trite, will have tobe judged keeping in view the interpretative changes of thestatute affected by passage of time.”

FReferring to the changing legal scenario and having regard tothe Declaration on the Right to Development adopted by theWorld Conference on Human Rights as also Article 18 of theUnited Nations Covenant on Civil and Political Rights, 1966, itwas held (John Vallamattom case, SCC p. 625, para 33):

“33. It is trite that having regard to Article 13(1) of theConstitution, the constitutionality of the impugned legislation isrequired to be considered on the basis of laws existing on 26-1-1950, but while doing so the court is not precluded from takinginto consideration the subsequent events which have taken place

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thereafter. It is further trite that the law although may beconstitutional when enacted but with passage of time the samemay be held to be unconstitutional in view of the changedsituation.”

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26. When discrimination is sought to be made on the purportedground of classification, such classification must be founded ona rational criteria. The criteria which in absence of anyconstitutional provision and, it will bear repetition to state, havingregard to the societal conditions as they prevailed in early 20thcentury, may not be rational criteria in the 21st century. In theearly 20th century, the hospitality sector was not open to womenin general. In the last 60 years, women in India have gainedentry in all spheres of public life. They have also been representingpeople at grass root democracy. They are now employed asdrivers of heavy transport vehicles, conductors of servicecarriages, pilots, et. al. Women can be seen to be occupyingClass IV posts to the post of Chief Executive Officer of aMultinational Company. They are now widely accepted both inpolice as also army services.”

45. The Court went on to hold that “proportionality” should be astandard capable of being called reasonable in modern democraticsociety (See paragraph 36).

In significant paragraph, the learned Judge held:-

“43. Instead of prohibiting women employment in the barsaltogether the State should focus on factoring in ways throughwhich unequal consequences of sex differences can beeliminated. It is the State’s duty to ensure circumstances of safetywhich inspire confidence in women to discharge the duty freelyin accordance to the requirements of the profession they chooseto follow. Any other policy inference (such as the one embodiedunder Section 30) from societal conditions would be oppressiveon the women and against the privacy rights.”

46. The learned Judge then went on to further hold that thestandard of judicial scrutiny of legislations, which on their face effectdiscrimination, is as follows:-

A“46. It is to be borne in mind that legislations with pronounced“protective discrimination” aims, such as this one, potentially serveas double-edged swords. Strict scrutiny test should be employedwhile assessing the implications of this variety of legislations.Legislation should not be only assessed on its proposed aims butrather on the implications and the effects. The impugned legislationBsuffers from incurable fixations of stereotype morality andconception of sexual role. The perspective thus arrived at isoutmoded in content and stifling in means.

47. No law in its ultimate effect should end up perpetuating theoppression of women. Personal freedom is fundamental tenetCwhich cannot be compromised in the name of expediency untiland unless there is compelling State purpose. Heightenedlevel of scrutiny is the normative threshold for judicial review insuch cases.”

47. Finally, the Court held:-D

“50. The test to review such protective discrimination statutewould entail two-pronged scrutiny:

(a) the legislative interference (induced by sex discriminatorylegislation in the instant case) should be justified in principle,

E(b) the same should be proportionate in measure.

51. The Court’s task is to determine whether the measuresfurthered by the State in the form of legislative mandate, toaugment the legitimate aim of protecting the interests of womenare proportionate to the other bulk of well-settled gender normsFsuch as autonomy, equality of opportunity, right to privacy, et al.The bottomline in this behalf would be functioning moderndemocratic society which ensures freedom to pursue variedopportunities and options without discriminating on the basis ofsex, race, caste or any other like basis. In fine, there should be areasonable relationship of proportionality between the means usedGand the aim pursued.”48. The Section which had been struck down by the High Courtwas held to be arbitrary and unreasonable by this Court as well.

49. Close on the heels of this Court’s judgment in Suresh KumarHKoushal (supra) is this Court’s judgment in NALSA (supra). In this

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case, the Court had to grapple with the trauma, agony and pain of themembers of the transgender community. The Court referred to Section377 in the following words:

“19. Section 377 IPC found place in the Penal Code, 1860,prior to the enactment of the Criminal Tribes Act that criminalisedall penile non-vaginal sexual acts between persons, including analsex and oral sex, at time when transgender persons were alsotypically associated with the proscribed sexual practices.Reference may be made to the judgment of the Allahabad HighCourt in Queen Empress v. Khairati, ILR (1884) 6 All 204,wherein transgender person was arrested and prosecuted underSection 377 on the suspicion that he was “habitual sodomite”and was later acquitted on appeal. In that case, while acquittinghim, the Sessions Judge stated as follows: (ILR pp. 204-05)

“… ‘This case relates to person named Khairati, over whomthe police seem to have exercised some sort of supervision,whether strictly regular or not, as eunuch. The man is not aeunuch in the literal sense, but he was called for by the policewhen on visit to his village, and was found singing dressed asa woman among the women of certain family. Having beensubjected to examination by the Civil Surgeon (and asubordinate medical man), he is shown to have the characteristicmark of habitual catamite—the distortion of the orifice ofthe anus into the shape of trumpet—and also to be affectedwith syphilis in the same region in manner which distinctlypoints to unnatural intercourse within the last few months.’”

Even though, he was acquitted on appeal, this case woulddemonstrate that Section 377, though associated with specificsexual acts, highlighted certain identities, including hijras andwas used as an instrument of harassment and physical abuseagainst hijras and transgender persons.”

50.The Court went on to explain the concepts of gender identityand sexual orientation, and relied heavily upon Yogyakarta Principleson the Application of International Human Rights Law in Relationto Sexual Orientation and Gender Identity. The Court then went onto hold:

A“60. The principles discussed hereinbefore on TGs and theinternational conventions, including Yogyakarta Principles,which we have found not inconsistent with the various fundamentalrights guaranteed under the Indian Constitution, must berecognised and followed, which has sufficient legal and historicaljustification in our country.”B

51. Insofar as Articles 15 and 16 of the Constitution wereconcerned, the Court held:

“66. Articles 15 and 16 sought to prohibit discrimination on thebasis of sex, recognising that sex discrimination is historicalCfact and needs to be addressed. The Constitution-makers, it canbe gathered, gave emphasis to the fundamental right against sexdiscrimination so as to prevent the direct or indirect attitude totreat people differently, for the reason of not being in conformitywith stereotypical generalisations of binary genders. Both genderand biological attributes constitute distinct components of sex.DThe biological characteristics, of course, include genitals,chromosomes and secondary sexual features, but genderattributes include one’s self-image, the deep psychological oremotional sense of sexual identity and character. Thediscrimination on the ground of “sex” under Articles 15 and 16,Etherefore, includes discrimination on the ground of gender identity.The expression “sex” used in Articles 15 and 16 is not just limitedto biological sex of male or female, but intended to include peoplewho consider themselves to be neither male nor female.”52. Insofar as Article 19(1)(a) of the Constitution and transgendersFwere concerned, the Court held:

“72. Gender identity, therefore, lies at the core of one’s personalidentity, gender expression and presentation and, therefore, itwill have to be protected under Article 19(1)(a) of the Constitutionof India. transgender’s personality could be expressed by theGtransgender’s behaviour and presentation. State cannot prohibit,restrict or interfere with transgender’s expression of suchpersonality, which reflects that inherent personality. Often theState and its authorities either due to ignorance or otherwise failto digest the innate character and identity of such persons. We,therefore, hold that values of privacy, self-identity, autonomy andHpersonal integrity are fundamental rights guaranteed to members

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of the transgender community under Article 19(1)(a) of theConstitution of India and the State is bound to protect andrecognise those rights.”

53. In significant paragraph relating to the personal autonomyof an individual, this Court held:

“75. Article 21, as already indicated, guarantees the protectionof “personal autonomy” of an individual. In Anuj Garg v. HotelAssn. of India [(2008) 3 SCC 1] (SCC p. 15, paras 34-35), thisCourt held that personal autonomy includes both the negativeright of not to be subject to interference by others and the positiveright of individuals to make decisions about their life, to expressthemselves and to choose which activities to take part in. Self-determination of gender is an integral part of personal autonomyand self-expression and falls within the realm of personal libertyguaranteed under Article 21 of the Constitution of India.”

54. The conclusion therefore was:-

“83. We, therefore, conclude that discrimination on the basis ofsexual orientation or gender identity includes any discrimination,exclusion, restriction or preference, which has the effect ofnullifying or transposing equality by the law or the equal protectionof laws guaranteed under our Constitution, and hence we areinclined to give various directions to safeguard the constitutionalrights of the members of the TG community.”

55. Dr. A.K. Sikri, J., in separate concurring judgment, spoke ofthe fundamental and universal principle of the right of choice given toevery individual, which is an inseparable part of human rights. He thenwent on to hold:-

“116.1. Though in the past TGs in India were treated with greatrespect, that does not remain the scenario any longer. Attrition intheir status was triggered with the passing of the Criminal TribesAct, 1871 which deemed the entire community of hijra personsas innately “criminal” and “adapted to the systematic commissionof non-bailable offences”. This dogmatism and indoctrination ofthe Indian people with aforesaid presumption, was totallycapricious and nefarious. There could not have been more harmcaused to this community with the passing of the aforesaid brutallegislation during the British Regime with the vicious and savage

mind-set. To add insult to the irreparable injury caused, Section377 of the Penal Code was misused and abused as there was atendency, in the British period, to arrest and prosecute TG personsunder Section 377 merely on suspicion. To undergo this sordidhistorical harm caused to TGs of India, there is need forincessant efforts with effervescence.”

56. And in paragraphs 125 and 129, he outlined the role of ourCourt as follows:-

“125. The role of the Court is to understand the central purposeand theme of the Constitution for the welfare of the society. OurConstitution, like the law of the society, is living organism. It isbased on factual and social reality that is constantly changing.Sometimes change in the law precedes societal change and iseven intended to stimulate it. Sometimes, change in the law isthe result in the social reality. When we discuss about the rightsof TGs in the constitutional context, we find that in order to bringabout complete paradigm shift, the law has to play morepredominant role. As TGs in India, are neither male nor female,treating them as belonging to either of the aforesaid categories,is the denial of these constitutional rights. It is the denial of socialjustice which in turn has the effect of denying political andeconomic justice.

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129. As we have pointed out above, our Constitution inheresliberal and substantive democracy with the rule of law as animportant and fundamental pillar. It has its own internal moralityFbased on dignity and equality of all human beings. The rule oflaw demands protection of individual human rights. Such rightsare to be guaranteed to each and every human being. TheseTGs, even though insignificant in numbers, are still human beingsand therefore they have every right to enjoy their human rights.”

G57. In an unusual final order, the Court declared:-

“135. We, therefore, declare:

135.1. Hijras, eunuchs, apart from binary genders, be treated as“third gender” for the purpose of safeguarding their rights underPart III of our Constitution and the laws made by Parliament

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and the State Legislature.

135.2. Transgender persons’ right to decide their self-identifiedgender is also upheld and the Centre and State Governments aredirected to grant legal recognition of their gender identity suchas male, female or as third gender.

135.3. We direct the Centre and the State Governments to takesteps to treat them as Socially and Educationally BackwardClasses of citizens and extend all kinds of reservation in casesof admission in educational institutions and for publicappointments.

135.4. The Centre and State Governments are directed tooperate separate HIV serosurveillance centres since hijras/transgenders face several sexual health issues.

135.5. The Centre and State Governments should seriouslyaddress the problems being faced by hijras/transgenders suchas fear, shame, gender dysphoria, social pressure, depression,suicidal tendencies, social stigma, etc. and any insistence forSRS for declaring one’s gender is immoral and illegal.

135.6. The Centre and State Governments should take propermeasures to provide medical care to TGs in the hospitals andalso provide them separate public toilets and other facilities.

135.7. The Centre and State Governments should also take stepsfor framing various social welfare schemes for their betterment.

135.8. The Centre and State Governments should take steps tocreate public awareness so that TGs will feel that they are alsopart and parcel of the social life and be not treated as untouchables.

135.9. The Centre and the State Governments should also takemeasures to regain their respect and place in the society whichonce they enjoyed in our cultural and social life.”

58. Puttaswamy (supra) is the next important nail in the coffin ofsection 377 insofar as it pertains to consensual sex between same-sexadults. In this judgment, Chandrachud, J. referred approvingly to theNALSA (supra) judgment in paragraph 96 and went on to hold thatprivacy is intrinsic to freedom and liberty. In referring to Suresh KumarKoushal (supra), Chandrachud, J. referred to the judgment as “another

Adiscordant note” which directly bears upon the evolution of constitutionaljurisprudence on the right to privacy. Chandrachud, J. went on to castigatethe judgment in Suresh Kumar Koushal (supra), and held:-

“144. Neither of the above reasons can be regarded as validconstitutional basis for disregarding claim based on privacyBunder Article 21 of the Constitution. That “a miniscule fractionof the country’s population constitutes lesbians, gays, bisexualsor transgenders” (as observed in the judgment of this Court) isnot sustainable basis to deny the right to privacy. The purposeof elevating certain rights to the stature of guaranteedfundamental rights is to insulate their exercise from the disdainCof majorities, whether legislative or popular. The guarantee ofconstitutional rights does not depend upon their exercise beingfavourably regarded by majoritarian opinion. The test of popularacceptance does not furnish valid basis to disregard rights whichare conferred with the sanctity of constitutional protection.DDiscrete and insular minorities face grave dangers ofdiscrimination for the simple reason that their views, beliefs orway of life does not accord with the “mainstream”. Yet in ademocratic Constitution founded on the Rule of Law, their rightsare as sacred as those conferred on other citizens to protecttheir freedoms and liberties. Sexual orientation is an essential

attribute of privacy. Discrimination against an individual on thebasis of sexual orientation is deeply offensive to the dignity andself-worth of the individual. Equality demands that the sexualorientation of each individual in society must be protected on aneven platform. The right to privacy and the protection of sexualorientation lie at the core of the fundamental rights guaranteedby Articles 14, 15 and 21 of the Constitution.

145. The view in Koushal [Suresh Kumar Koushal v. NazFoundation, (2014) 1 SCC 1 : (2013) 4 SCC (Cri) 1] that theHigh Court had erroneously relied upon international precedents“in its anxiety to protect the so-called rights of LGBT persons”is similarly, in our view, unsustainable. The rights of the lesbian,gay, bisexual and transgender population cannot be construed tobe “so-called rights”. The expression “so-called” seems tosuggest the exercise of liberty in the garb of right which isillusory. This is an inappropriate construction of the privacy-based

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claims of the LGBT population. Their rights are not “so-called”but are real rights founded on sound constitutional doctrine. Theyinhere in the right to life. They dwell in privacy and dignity. Theyconstitute the essence of liberty and freedom. Sexual orientationis an essential component of identity. Equal protection demandsprotection of the identity of every individual without discrimination.

146. The decision in Koushal [Suresh Kumar Koushal v. NazFoundation, (2014) 1 SCC 1 : (2013) 4 SCC (Cri) 1] presents ade minimis rationale when it asserts that there have been onlytwo hundred prosecutions for violating Section 377. The deminimis hypothesis is misplaced because the invasion of afundamental right is not rendered tolerable when few, as opposedto large number of persons, are subjected to hostile treatment.The reason why such acts of hostile discrimination areconstitutionally impermissible is because of the chilling effectwhich they have on the exercise of the fundamental right in thefirst place. For instance, pre-publication restraints such ascensorship are vulnerable because they discourage people fromexercising their right to free speech because of the fear of arestraint coming into operation. The chilling effect on the exerciseof the right poses grave danger to the unhindered fulfilment ofone’s sexual orientation, as an element of privacy and dignity.The chilling effect is due to the danger of human being subjectedto social opprobrium or disapproval, as reflected in the punishmentof crime. Hence the Koushal [Suresh Kumar Koushal v. NazFoundation, (2014) 1 SCC 1 : (2013) 4 SCC (Cri) 1] rationalethat prosecution of few is not an index of violation is flawedand cannot be accepted. Consequently, we disagree with themanner in which Koushal [Suresh Kumar Koushal v. NazFoundation, (2014) 1 SCC 1 : (2013) 4 SCC (Cri) 1] has dealtwith the privacy-dignity based claims of LGBT persons on thisaspect.

147. Since the challenge to Section 377 is pending considerationbefore larger Bench of this Court, we would leave theconstitutional validity to be decided in an appropriate proceeding.”

59.In an important paragraph, the learned Judge finally held:

“323. Privacy includes at its core the preservation of personalintimacies, the sanctity of family life, marriage, procreation, the

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Ahome and sexual orientation. Privacy also connotes right to beleft alone. Privacy safeguards individual autonomy and recognisesthe ability of the individual to control vital aspects of his or herlife. Personal choices governing way of life are intrinsic toprivacy. Privacy protects heterogeneity and recognises theplurality and diversity of our culture. While the legitimateBexpectation of privacy may vary from the intimate zone to theprivate zone and from the private to the public arenas, it isimportant to underscore that privacy is not lost or surrenderedmerely because the individual is in public place. Privacy attachesto the person since it is an essential facet of the dignity of theChuman being.”

60. Nariman, J., in his judgment, which was concurred in by threeother learned Judges, recognized the privacy of choice which protectsan individual’s autonomy over fundamental personal choices as follows:-

“521. In the Indian context, fundamental right to privacy wouldDcover at least the following three aspects:

• Privacy that involves the person i.e. when there is some invasionby the State of person’s rights relatable to his physical body,such as the right to move freely;

• Informational privacy which does not deal with person’sbody but deals with person’s mind, and therefore recognisesthat an individual may have control over the dissemination ofmaterial that is personal to him. Unauthorised use of suchinformation may, therefore lead to infringement of this right; and

• The privacy of choice, which protects an individual’s autonomyFover fundamental personal choices.

For instance, we can ground physical privacy or privacy relatingto the body in Articles 19(1)(d) and (e) read with Article 21;ground personal information privacy under Article 21; and theprivacy of choice in Articles 19(1)(a) to (c), 20(3), 21 and 25.GThe argument based on “privacy” being vague and nebulousconcept need not, therefore, detain us.”

61. Kaul, J., in separate judgment, also joined Chandrachud, J.in castigating Suresh Kumar Koushal’s judgment as follows:

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“647. There are two aspects of the opinion of Dr D.Y.Chandrachud, J., one of which is common to the opinion ofRohinton F. Nariman, J., needing specific mention. Whileconsidering the evolution of constitutional jurisprudence on theright to privacy he has referred to the judgment in Suresh KumarKoushal v. Naz Foundation [Suresh Kumar Koushal v. NazFoundation, (2014) 1 SCC 1 : (2013) 4 SCC (Cri) 1]. In thechallenge laid to Section 377 of the Penal Code before the DelhiHigh Court, one of the grounds of challenge was that the saidprovision amounted to an infringement of the right to dignity andprivacy. The Delhi High Court, inter alia, observed [NazFoundation v. Govt. (NCT of Delhi), 2009 SCC OnLine Del 1762: 2010 Cri LJ 94] that the right to live with dignity and the right toprivacy both are recognised as dimensions of Article 21 of theConstitution of India. The view of the High Court, however didnot find favour with the Supreme Court and it was observed thatonly miniscule fraction of the country’s population constituteslesbians, gays, bisexuals or transgenders and thus, there cannotbe any basis for declaring the section ultra vires of provisions ofArticles 14, 15 and 21 of the Constitution. The matter did notrest at this, as the issue of privacy and dignity discussed by theHigh Court was also observed upon. The sexual orientation evenwithin the four walls of the house thus became an aspect ofdebate. I am in agreement with the view of Dr D.Y.Chandrachud, J., who in paras 144 to 146 of his judgment, statesthat the right to privacy cannot be denied, even if there is aminiscule fraction of the population which is affected. Themajoritarian concept does not apply to constitutional rights andthe courts are often called up on to take what may be categorisedas non-majoritarian view, in the check and balance of powerenvisaged under the Constitution of India. One’s sexualorientation is undoubtedly an attribute of privacy. The observationsmade in Mosley v. News Group Papers Ltd. [Mosley v. NewsGroup Papers Ltd., 2008 EWHC 1777 (QB)], in broader conceptmay be usefully referred to:

“130. … It is not simply matter of personal privacy versusthe public interest. The modern perception is that there is apublic interest in respecting personal privacy. It is thus question

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of taking account of conflicting public interest considerationsand evaluating them according to increasingly well-recognisedcriteria.

131. When the courts identify an infringement of person’sArticle 8 rights, and in particular in the context of his freedomto conduct his sex life and personal relationships as he wishes,it is right to afford remedy and to vindicate that right. Theonly permitted exception is where there is countervailingpublic interest which in the particular circumstances is strongenough to outweigh it; that is to say, because one at least ofthe established “limiting principles” comes into play. Was itnecessary and proportionate for the intrusion to take place, forexample, in order to expose illegal activity or to prevent thepublic from being significantly misled by public claims hithertomade by the individual concerned (as with Naomi Campbell’spublic denials of drug-taking)? Or was it necessary becausethe information, in the words of the Strasbourg Court in Von

Hannover [Von Hannover v. Germany, (2004) 40 EHRR 1] atpp. 60 and 76, would make contribution to “a debate of generalinterest”? That is, of course, very high test, it is yet to bedetermined how far that doctrine will be taken in the courts ofthis jurisdiction in relation to photography in public places. If

taken literally, it would mean very significant change in whatis permitted. It would have profound effect on the tabloidand celebrity culture to which we have become accustomed inrecent years.”

62. Close upon the heels of these three judgments are three otherFimportant recent decisions. In Common Cause v. Union of India,2018 5 SCC 1, case dealing with euthanasia, Dipak Misra, C.J., statesas under:-

“166. The purpose of saying so is only to highlight that the lawmust take cognizance of the changing society and march inconsonance with the developing concepts. The need of thepresent has to be served with the interpretative process of law.However, it is to be seen how much strength and sanction canbe drawn from the Constitution to consummate the changingideology and convert it into reality. The immediate needs arerequired to be addressed through the process of interpretation

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by the Court unless the same totally falls outside the constitutionalframework or the constitutional interpretation fails to recognisesuch dynamism. The Constitution Bench in Gian Kaur [GianKaur v. State of Punjab, (1996) 2 SCC 648 : 1996 SCC (Cri)374], as stated earlier, distinguishes attempt to suicide andabetment of suicide from acceleration of the process of naturaldeath which has commenced. The authorities, we have notedfrom other jurisdictions, have observed the distinctions betweenthe administration of lethal injection or certain medicines to causepainless death and non-administration of certain treatment whichcan prolong the life in cases where the process of dying that hascommenced is not reversible or withdrawal of the treatment thathas been given to the patient because of the absolute absence ofpossibility of saving the life. To explicate, the first part relates toan overt act whereas the second one would come within thesphere of informed consent and authorised omission. The omissionof such nature will not invite any criminal liability if such actionis guided by certain safeguards. The concept is based on non-prolongation of life where there is no cure for the state the patientis in and he, under no circumstances, would have liked to havesuch degrading state. The words “no cure” have to beunderstood to convey that the patient remains in the same stateof pain and suffering or the dying process is delayed by meansof taking recourse to modern medical technology. It is statewhere the treating physicians and the family members knowfully well that the treatment is administered only to procrastinatethe continuum of breath of the individual and the patient is noteven aware that he is breathing. Life is measured by artificialheartbeats and the patient has to go through this undignified statewhich is imposed on him. The dignity of life is denied to him asthere is no other choice but to suffer an avoidable protractedtreatment thereby thus indubitably casting cloud and creating adent in his right to live with dignity and face death with dignity,which is preserved concept of bodily autonomy and right toprivacy. In such stage, he has no old memories or any futurehopes but he is in state of misery which nobody ever desires tohave. Some may also silently think that death, the inevitable factumof life, cannot be invited. To meet such situations, the Court hasa duty to interpret Article 21 in further dynamic manner and it

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has to be stated without any trace of doubt that the right to lifewith dignity has to include the smoothening of the process ofdying when the person is in vegetative state or is livingexclusively by the administration of artificial aid that prolongsthe life by arresting the dignified and inevitable process of dying.Here, the issue of choice also comes in. Thus analysed, we aredisposed to think that such right would come within the ambitof Article 21 of the Constitution.

L. Right of self-determination and individual autonomy

167. Having dealt with the right to acceleration of the processof dying natural death which is arrested with the aid of moderninnovative technology as part of Article 21 of the Constitution,it is necessary to address the issues of right of self-determinationand individual autonomy.

168. John Rawls says that the liberal concept of autonomyfocuses on choice and likewise, self-determination is understoodas exercised through the process of choosing [Rawls, John,Political Liberalism, 32, 33 (New York: Columbia UniversityPress, 1993)]. The respect for an individual human being and inparticular for his right to choose how he should live his own lifeis individual autonomy or the right of self-determination. It is theright against non-interference by others, which gives competentperson who has come of age the right to make decisionsconcerning his or her own life and body without any control orinterference of others. Lord Hoffman, in Reeves v. Commr. ofPolice of the Metropolis [Reeves v. Commr. of Police of theMetropolis, (2000) 1 AC 360 : (1993) 3 WLR 363 (HL)] hasstated: (AC p. 369 B)

“… Autonomy means that every individual is sovereign overhimself and cannot be denied the right to certain kinds ofbehaviour, even if intended to cause his own death.”

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202.8. An inquiry into Common Law jurisdictions reveals thatall adults with capacity to consent have the right of self-determination and autonomy. The said rights pave the way forthe right to refuse medical treatment which has acclaimeduniversal recognition. competent person who has come of age

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has the right to refuse specific treatment or all treatment or optfor an alternative treatment, even if such decision entails riskof death. The “Emergency Principle” or the “Principle ofNecessity” has to be given effect to only when it is not practicableto obtain the patient’s consent for treatment and his/her life is indanger. But where patient has already made valid AdvanceDirective which is free from reasonable doubt and specifyingthat he/she does not wish to be treated, then such directive hasto be given effect to.”

63. In the same case, Chandrachud J. went on to hold:

“437. Under our Constitution, the inherent value which sanctifieslife is the dignity of existence. Recognising human dignity isintrinsic to preserving the sanctity of life. Life is truly sanctifiedwhen it is lived with dignity. There exists close relationshipbetween dignity and the quality of life. For, it is only when lifecan be lived with true sense of quality that the dignity of humanexistence is fully realised. Hence, there should be no antagonismbetween the sanctity of human life on the one hand and thedignity and quality of life on the other hand. Quality of life ensuresdignity of living and dignity is but process in realising the sanctityof life.

438. Human dignity is an essential element of meaningfulexistence. life of dignity comprehends all stages of livingincluding the final stage which leads to the end of life. Libertyand autonomy are essential attributes of life of substance. It isliberty which enables an individual to decide upon those matterswhich are central to the pursuit of meaningful existence. Theexpectation that the individual should not be deprived of his orher dignity in the final stage of life gives expression to the centralexpectation of fading life: control over pain and suffering andthe ability to determine the treatment which the individual shouldreceive. When society assures to each individual protectionagainst being subjected to degrading treatment in the process ofdying, it seeks to assure basic human dignity. Dignity ensuresthe sanctity of life. The recognition afforded to the autonomy ofthe individual in matters relating to end-of-life decisions isultimately step towards ensuring that life does not despair ofdignity as it ebbs away.

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441. The protective mantle of privacy covers certain decisionsthat fundamentally affect the human life cycle. [Richard Delgado,“Euthanasia Reconsidered—The Choice of Death as an Aspectof the Right of Privacy”, Arizona Law Review (1975), Vol. 17,at p. 474.] It protects the most personal and intimate decisionsof individuals that affect their life and development. [Ibid.] Thus,choices and decisions on matters such as procreation,contraception and marriage have been held to be protected. Whiledeath is an inevitable end in the trajectory of the cycle of humanlife of individuals are often faced with choices and decisionsrelating to death. Decisions relating to death, like those relatingto birth, sex, and marriage, are protected by the Constitution byvirtue of the right of privacy. The right to privacy resides in theright to liberty and in the respect of autonomy. [T.L. Beauchamp,“The Right to Privacy and the Right to Die”, Social Philosophyand Policy (2000), Vol. 17, at p. 276.] The right to privacy protectsautonomy in making decisions related to the intimate domain ofdeath as well as bodily integrity. Few moments could be of asmuch importance as the intimate and private decisions that weare faced regarding death. [Ibid.] Continuing treatment againstthe wishes of patient is not only violation of the principle ofinformed consent, but also of bodily privacy and bodily integritythat have been recognised as facet of privacy by this Court.”

64. Similarly, in Shafin Jahan v. Asokan K.M., 2018 SCC Online343, this Court was concerned with the right of an adult citizen to makeher own marital choice. The learned Chief Justice referred to ArticlesF19 and 21 of the Constitution of India as follows:-

“28. Thus, the pivotal purpose of the said writ is to see that noone is deprived of his/her liberty without sanction of law. It is theprimary duty of the State to see that the said right is not sullied inany manner whatsoever and its sanctity is not affected by anykind of subterfuge. The role of the Court is to see that the detenueis produced before it, find out about his/her independent choiceand see to it that the person is released from illegal restraint.The issue will be different one when the detention is not illegal.What is seminal is to remember that the song of liberty is sungwith sincerity and the choice of an individual is appositely

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respected and conferred its esteemed status as the Constitutionguarantees. It is so as the expression of choice is fundamentalright under Articles 19 and 21 of the Constitution, if the saidchoice does not transgress any valid legal framework. Once thataspect is clear, the enquiry and determination have to come toan end.

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54. It is obligatory to state here that expression of choice inaccord with law is acceptance of individual identity. Curtailmentof that expression and the ultimate action emanating therefromon the conceptual structuralism of obeisance to the societal willdestroy the individualistic entity of person. The social valuesand morals have their space but they are not above theconstitutionally guaranteed freedom. The said freedom is both aconstitutional and human right. Deprivation of that freedomwhich is ingrained in choice on the plea of faith is impermissible.Faith of person is intrinsic to his/her meaningful existence. Tohave the freedom of faith is essential to his/her autonomy; and itstrengthens the core norms of the Constitution. Choosing faithis the substratum of individuality and sans it, the right of choicebecomes shadow. It has to be remembered that the realizationof right is more important than the conferment of the right.Such actualization indeed ostracises any kind of societal notorietyand keeps at bay the patriarchal supremacy. It is so because theindividualistic faith and expression of choice are fundamentalfor the fructification of the right. Thus, we would like to call itindispensable preliminary condition.”

65. In another recent judgment of three-Judge Bench, in ShaktiVahini v. Union of India, 2018 SCC Online SC 275, which dealt withhonour killings, this Court held:-

“44. Honour killing guillotines individual liberty, freedom of choiceand one’s own perception of choice. It has to be sublimely bornein mind that when two adults consensually choose each other aslife partners, it is manifestation of their choice which isrecognized under Articles 19 and 21 of the Constitution. Such aright has the sanction of the constitutional law and once that isrecognized, the said right needs to be protected and it cannotsuccumb to the conception of class honour or group thinking

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which is conceived of on some notion that remotely does nothave any legitimacy.

45. The concept of liberty has to be weighed and tested on thetouchstone of constitutional sensitivity, protection and the valuesit stands for. It is the obligation of the Constitutional Courts asthe sentinel on qui vive to zealously guard the right to liberty ofan individual as the dignified existence of an individual has aninseparable association with liberty. Without sustenance of liberty,subject to constitutionally valid provisions of law, the life of aperson is comparable to the living dead having to endure crueltyand torture without protest and tolerate imposition of thoughtsand ideas without voice to dissent or record disagreement.The fundamental feature of dignified existence is to assert fordignity that has the spark of divinity and the realization of choicewithin the parameters of law without any kind of subjugation.The purpose of laying stress on the concepts of individual dignityand choice within the framework of liberty is of paramountimportance. We may clearly and emphatically state that life andliberty sans dignity and choice is phenomenon that allowshollowness to enter into the constitutional recognition of identityof person.46. The choice of an individual is an inextricable part of dignity,for dignity cannot be thought of where there is erosion of choice.True it is, the same is bound by the principle of constitutionallimitation but in the absence of such limitation, none, we mean,no one shall be permitted to interfere in the fructification of thesaid choice. If the right to express one’s own choice is obstructed,it would be extremely difficult to think of dignity in its sanctifiedcompleteness. When two adults marry out of their volition, theychoose their path; they consummate their relationship; they feelthat it is their goal and they have the right to do so. And it canunequivocally be stated that they have the right and anyinfringement of the said right is constitutional violation. Themajority in the name of class or elevated honour of clan cannotcall for their presence or force their appearance as if they arethe monarchs of some indescribable era who have the power,authority and final say to impose any sentence and determinethe execution of the same in the way they desire possibly

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harbouring the notion that they are law unto themselves orthey are the ancestors of Caesar or, for that matter, Louis theXIV. The Constitution and the laws of this country do notcountenance such an act and, in fact, the whole activity is illegaland punishable as offence under the criminal law.”

Mental Healthcare Act, 2017

66.Parliament is also alive to privacy interests and the fact thatpersons of the same-sex who cohabit with each other are entitled toequal treatment.

67.A recent enactment, namely the Mental Healthcare Act, 2017,throws great deal of light on recent parliamentary legislativeunderstanding and acceptance of constitutional values as reflected bythis Court’s judgments. Section 2(s) of the Act defines mental illness,which reads as under:

“2(s) “mental illness” means substantial disorder of thinking,mood, perception, orientation or memory that grossly impairsjudgment, behaviour, capacity to recognise reality or ability tomeet the ordinary demands of life, mental conditions associatedwith the abuse of alcohol and drugs, but does not include mentalretardation which is condition of arrested or incompletedevelopment of mind of person, specially characterised bysubnormality of intelligence;”

68. This definition throws to the winds all earlier misconceptionsof mental illness including the fact that same-sex couples who indulge inanal sex are persons with mental illness. At one point of time, the thinkingin Victorian England and early on in America was that homosexualitywas to be considered as mental disorder. The amicus curiae brief ofthe American Psychiatric Association in support of the petitioners inLawrence v. Texas (supra) has put paid to this notion. This brief setout the research that has been done in this area as follows:

“D. The Recognition That Homosexuality Is Not “MentalDisorder”

The American mental health professions concluded more than aquarter-century ago that homosexuality is not mental disorder.That conclusion was reached after decades of study ofhomosexuality by independent researchers, as well as numerous

attempts by practitioners in the mental-health professions toeffectuate change in individuals’ sexual orientation. During thefirst half of the 20th century, many mental health professionalsregarded homosexuality as pathological condition, but thatperspective reflected untested assumptions supported largely byclinical impressions of patients seeking therapy and individualswhose conduct brought them into the criminal justice system.See J.C. Gonsiorek, The Empirical Basis for the Demise of theIllness Model of Homosexuality, in Homosexuality: ResearchImplications for Public Policy 115 (J.C. Gonsiorek & J.D.Weinrich eds., 1991). Those assumptions were not subjected torigorous scientific scrutiny with nonclinical, nonincarceratedsamples until the latter half of the century. Once the notion thathomosexuality is linked to mental illness was empirically tested,it proved to be based on untenable assumptions and valuejudgments.

In one of the first rigorous examinations of the mental healthstatus of homosexuality, Dr. Evelyn Hooker administered abattery of standard psychological tests to homosexual andheterosexual men who were matched for age, IQ, and education.See Evelyn Hooker, The Adjustment of the Male OvertHomosexual, 21 J. Projective Techniques 17-31 (1957). Noneof the men was in therapy at the time of the study. Based on theratings of expert judges who were kept unaware of the men’ssexual orientation, Hooker determined that homosexual andheterosexual men could not be distinguished from one anotheron the basis of the psychological testing, and that similar majority

of the two groups appeared to be free of psychopathology. Sheconcluded from her data that homosexuality is not inherentlyassociated with psychopathology and that “homosexuality as aclinical entity does not exist.” Id. at 18-19. Hooker’s findingswere followed over the next two decades by numerous studies,using variety of research techniques, which similarly concludedthat homosexuality is not related to psychopathology or socialmaladjustment.

In 1973, in recognition that scientific data do not indicate that ahomosexual orientation is inherently associated with

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psychopathology, amicus American Psychiatric Association’sBoard of Trustees voted to remove homosexuality from thePsychiatric Association’s Diagnostic and Statistical Manual ofMental Disorders. That resolution stated that “homosexuality perse implies no impairment in judgment, stability, reliability, or generalsocial or vocational capabilities.” Am. Psychiatric Ass’n, PositionStatement on Homosexuality and Civil Rights (Dec. 15, 1973),printed in 131 Am. J. Psychiatry 497 (1974). That decision wasupheld by vote of the Psychiatric Association’s membershipthe following year. After thorough review of the scientificevidence, amicus American Psychological Association adoptedthe same position in 1975, and urged all mental health professionalsto help dispel the stigma of mental illness that had long beenassociated with homosexual orientation. See Am. Psychol. Ass’n,Minutes of the Annual Meeting of the Council of Representatives,30 Am. Psychologist 620, 633 (1975). Amicus NationalAssociation of Social Workers (NASW) has adopted similarpolicy. See NASW, Policy Statement on Lesbian and Gay Issues(Aug. 1993) (approved by NASW Delegate Assembly), reprintedin NASW, Social Work Speaks: NASW Policy Statements 162(3d ed. 1994).Of course, as is the case for heterosexuals, some homosexualshave mental illnesses, psychological disturbances, or poor socialadjustment. Gay men, lesbians, and bisexuals also may be atsomewhat greater risk for some kinds of psychological problemsbecause of stresses associated with the experiences of socialstigma and prejudice (see pp. 23-27, infra). But researchconducted over four decades has established that “homosexualityin and of itself bears no necessary relationship to psychologicaladjustment.” The efforts to “cure” homosexuality that wereprevalent in earlier generations—which included hypnosis,administration of hormones, aversive conditioning with electricshock or nausea-inducing drugs, lobotomy, electroshock, andcastration—are now regarded by the mental-health professionsas regrettable.”

69.It also outlined the prejudice, discrimination and violence thathas been encountered by gay people, as follows:

“A. Discrimination, Prejudice, And Violence Encountered ByGay People

Lesbians and gay men in the United States encounter extensiveprejudice, discrimination, and violence because of their sexualorientation. Intense prejudice against gay men and lesbians waswidespread throughout much of the 20th century; public opinionstudies routinely showed that, among large segments of the public,gay people were the target of strong antipathy. Although shiftin public opinion concerning homosexuality occurred in the 1990s,hostility toward gay men and lesbians remains common incontemporary American society. Prejudice against bisexualsappears to exist at comparable levels. Discrimination against gaypeople in employment and housing also appears to remainwidespread.

The severity of this anti-gay prejudice is reflected in theconsistently high rate of anti-gay harassment and violence inAmerican society. Numerous surveys indicate that verbalharassment and abuse are nearly universal experiences of gaypeople. Although physical violence is less common, substantialnumbers of gay people report having experienced crimes againsttheir person or property because of their sexual orientation. In2001, the most recent year for which FBI statistics are available,there were 1,375 reported bias motivated incidents against gaymen, lesbians, and bisexuals. That figure likely represents only afraction of such crimes, because reporting of hate crimes by lawenforcement agencies is voluntary, the thoroughness of policestatistics differs widely among jurisdictions, and many victimsdo not report their experiences to police because they fear furtherharassment or lack confidence that the assailants will be caught.

Although homosexuality is not mental disorder, this societalprejudice against gay men and lesbians can cause them real andsubstantial psychological harm. Research indicates thatexperiencing rejection, discrimination, and violence is associatedwith heightened psychological distress among gay men andlesbians. These problems are exacerbated by the fact that,because of anti-gay stigma, gay men and lesbians have less accessto social support and other resources that assist heterosexuals incoping with stress. Although many gay men and lesbians learn

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to cope with the social stigma against homosexuality, efforts toavoid that social stigma through attempts to conceal or dissimulatesexual orientation can be seriously damaging to the psychologicalwell-being of gay people. Lesbians and gay men have been foundto manifest better mental health to the extent that they feelpositively about their sexual orientation and have integrated itinto their lives through “coming out” and participating in the gaycommunity. Being able to disclose one’s sexual orientation toothers also increases the availability of social support, which iscrucial to mental health.”70. Expressing its approval of the position taken by the AmericanPsychiatric Association, the Indian Psychiatric Society in its recentPosition Statement on Homosexuality dated 02.07.2018 has stated:-

“In the opinion of the Indian Psychiatric Society (IPS)homosexuality is not psychiatric disorder.

This is in line with the position of American PsychiatricAssociation and The International Classification of Diseases ofthe World health Organization which removed homosexuality fromthe list of psychiatric disorders in 1973 and 1992 respectively.

The I.P.S recognizes same-sex sexuality as normal variant ofhuman sexuality much like heterosexuality and bisexuality. Thereis no scientific evidence that sexual orientation can be altered byany treatment and that any such attempts may in fact lead tolow self-esteem and stigmatization of the person.

The Indian Psychiatric Society further supports de-criminalizationof homosexual behavior.”

71. The US Supreme Court, in its decision in Obergefell et al. v.Hodges, Director, Ohio Department of Health, et al., 576 US(2015), also took note of the enormous sufferings of homosexual personsin the time gap between Bowers (supra) and Lawrence v. Texas(supra), in the following words:-

“This is not the first time the Court has been asked to adopt acautious approach to recognizing and protecting fundamentalrights. In Bowers, bare majority upheld law criminalizingsame-sex intimacy. See 478 U.S., at 186, 190–195. That approachmight have been viewed as cautious endorsement of the

democratic process, which had only just begun to consider therights of gays and lesbians. Yet, in effect, Bowers upheld stateaction that denied gays and lesbians fundamental right andcaused them pain and humiliation. As evidenced by the dissentsin that case, the facts and principles necessary to correct holdingwere known to the Bowers Court. See id., at 199 (Blackmun, J.,joined by Brennan, Marshall, and Stevens, JJ., dissenting); id.,at 214 (Stevens, J., joined by Brennan and Marshall, JJ.,dissenting). That is why Lawrence held Bowers was “not correctwhen it was decided.” 539 U.S., at 578. Although Bowers waseventually repudiated in Lawrence, men and women wereharmed in the interim, and the substantial effects of these injuriesno doubt lingered long after Bowers was overruled. Dignitarywounds cannot always be healed with the stroke of pen.”

72. The present definition of mental illness in the 2017Parliamentary statute makes it clear that homosexuality is not consideredDto be mental illness. This is major advance in our law which has beenrecognized by the Parliament itself. Further, this is buttressed by Section3 of the Act which reads as follows:-

“3. Determination of Mental Illness. (1) Mental illness shallbe determined in accordance with such nationally orinternationally accepted medical standards (including the latestedition of the International Classification of Disease of the WorldHealth Organisation) as may be notified by the CentralGovernment.

(2) No person or authority shall classify person as personwith mental illness, except for purposes directly relating to thetreatment of the mental illness or in other matters as coveredunder this Act or any other law for the time being in force.

(3) Mental illness of person shall not be determined on thebasis of––

(a) political, economic or social status or membership of acultural, racial or religious group, or for any other reason notdirectly relevant to mental health status of the person;

(b) non-conformity with moral, social, cultural, work or politicalvalues or religious beliefs prevailing in person’s community.

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(4) Past treatment or hospitalisation in mental healthestablishment though relevant, shall not by itself justify anypresent or future determination of the person’s mental illness.

(5) The determination of person’s mental illness shall alonenot imply or be taken to mean that the person is of unsoundmind unless he has been declared as such by competentcourt.”

73. Mental illness in our statute has to keep pace with internationalnotions and accepted medical standards including the latest edition ofthe International Classification of Diseases of the World HealthOrganization under Section 3(1) of the Act. Under Section 3(3), mentalillness shall not be determined on the basis of social status or membershipof cultural group or for any other reason not directly relevant to themental health of the person. More importantly, mental illness shall not bedetermined on the basis of non-conformity with moral, social, cultural,work or political values or religious beliefs prevailing in person’scommunity. It is thus clear that Parliament has unequivocally declaredthat the earlier stigma attached to same-sex couples, as persons whoare regarded as mentally ill, has gone for good. This is another veryimportant step forward taken by the legislature itself which hasundermined one of the basic underpinnings of the judgment in SureshKumar Koushal (supra).

Section 21(1)(a) is important and set out hereinbelow:

“21. Right to equality and non-discrimination. (1) Everyperson with mental illness shall be treated as equal to personswith physical illness in the provision of all healthcare which shallinclude the following, namely:–

(a) there shall be no discrimination on any basis including gender,sex, sexual orientation, religion, culture, caste, social or politicalbeliefs, class or disability;”

74. This Section is parliamentary recognition of the fact that gaypersons together with other persons are liable to be affected with mentalillness, and shall be treated as equal to the other persons with such illnessas there is to be no discrimination on the basis of sexual orientation.Section 30 is extremely important and reads as under:

A“30. Creating awareness about mental health and illness andreducing stigma associated with mental illness.

The appropriate Government shall take all measures to ensurethat,—

(a) the provisions of this Act are given wide publicity throughBpublic media, including television, radio, print and online media atregular intervals;

(b) the programmes to reduce stigma associated with mentalillness are planned, designed, funded and implemented in aneffective manner;

(c) the appropriate Government officials including police officersand other officers of the appropriate Government are givenperiodic sensitisation and awareness training on the issues underthis Act.”

D75.Section 115 largely does away with one other outmoded Sectionof the Indian Penal Code, namely, Section 309. This Section reads asfollows.

“115. Presumption of severe stress in case of attempt tocommit suicide. (1) Notwithstanding anything contained insection 309 of the Indian Penal Code any person who attemptsEto commit suicide shall be presumed, unless proved otherwise,to have severe stress and shall not be tried and punished underthe said Code.

(2) The appropriate Government shall have duty to providecare, treatment and rehabilitation to person, having severe stressFand who attempted to commit suicide, to reduce the risk ofrecurrence of attempt to commit suicide.”

76. Instead of the inhumane Section 309 which has remained onthe statute book for over 150 years, Section 115 makes it clear thatSection 309 is rendered largely ineffective, and on the contrary, insteadGof committing criminal offence, any person who attempts to commitsuicide shall be presumed to have severe stress and shall not be triedand punished under Section 309 of the Indian Penal Code. Moreimportantly, the Government has an affirmative duty to provide care,treatment and rehabilitation to such person to reduce the risk ofHrecurrence of that person’s attempt to commit suicide. This parliamentary

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declaration under Section 115 again is in keeping with the presentconstitutional values, making it clear that humane measures are to betaken by the Government in respect of person who attempts to commitsuicide instead of prosecuting him for the offence of attempt to commitsuicide.

77.And finally, Section 120 of the Act reads as under:-

“120. Act to have overriding effect. The provisions of this Actshall have overriding effect notwithstanding anything inconsistenttherewith contained in any other law for the time being in forceor in any instrument having effect by virtue of any law otherthan this Act.”

78.The Latin maxim cessant ratione legis, cessat ipsa lex,meaning when the reason for law ceases, the law itself ceases, is arule of law which has been recognized by this Court in H.H. ShriSwamiji of Shri Amar Mutt v. Commissioner, Hindu Religiousand Charitable Endowments Dept, 1979 4 SCC 642 at paragraph 29,and State of Punjab v. Devans Modern Breweries Ltd., (2004) 11SCC 26 at paragraph 335. It must not be forgotten that Section 377 wasthe product of the Victorian era, with its attendant puritanical moral values.Victorian morality must give way to constitutional morality as has beenrecognized in many of our judgments. Constitutional morality is the soulof the Constitution, which is to be found in the Preamble of theConstitution, which declares its ideals and aspirations, and is also to befound in Part III of the Constitution, particularly with respect to thoseprovisions which assure the dignity of the individual. The rationale forSection 377, namely Victorian morality, has long gone and there is noreason to continue with - as Justice Holmes said in the lines quotedabove in this judgment - law merely for the sake of continuing with thelaw when the rationale of such law has long since disappeared.

79.Given our judgment in Puttaswamy (supra), in particular, theright of every citizen of India to live with dignity and the right to privacyincluding the right to make intimate choices regarding the manner inwhich such individual wishes to live being protected by Articles 14, 19and 21, it is clear that Section 377, insofar as it applies to same-sexconsenting adults, demeans them by having them prosecuted instead ofunderstanding their sexual orientation and attempting to correct centuriesof the stigma associated with such persons.

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A80.The Union of India, seeing the writing on the wall, has filed anaffidavit in which it has not opposed the Petitioners but left the matter tobe considered by the wisdom of this Court. Some of the intervenorshave argued in favour of the retention of Section 377 qua consentingadults on the grounds that homosexual acts are not by themselvesproscribed by Section 377. Unless there is penetration in the mannerBpointed out by the explanation to the Section, no offence takes place.They have also added that the Section needs to be retained given thefact that it is only parliamentary reflection of the prevailing social moresof today in large segments of society. According to them, this furthers acompelling state interest to reinforce morals in public life which is notCdisproportionate in nature. We are afraid that, given the march of eventsin constitutional law by this Court, and parliamentary recognition of theplight of such persons in certain provisions of the Mental HealthcareAct, 2017, it will not be open for constitutional court to substitute societalmorality with constitutional morality, as has been stated by us hereinabove.

Further, as stated in S. Khushboo v. Kanniammal and Anr., (2010) 5DSCC 600, at paragraphs 46 and 50, this Court made it clear that notionsof social morality are inherently subjective and the criminal law cannotbe used as means to unduly interfere with the domain of personalautonomy. Morality and criminality are not co-extensive - sin is notpunishable on earth by Courts set up by the State but elsewhere; crimeEalone is punishable on earth. To confuse the one with the other is whatcauses the death knell of Section 377, insofar as it applies to consentinghomosexual adults.

81.Another argument raised on behalf of the intervenors is thatchange in society, if any, can be reflected by amending laws by theFelected representatives of the people. Thus, it would be open to theParliament to carve out an exception from Section 377, but this Courtshould not indulge in taking upon itself the guardianship of changing societalmores. Such an argument must be emphatically rejected. The very purposeof the fundamental rights chapter in the Constitution of India is to withdraw

the subject of liberty and dignity of the individual and place such subjectGbeyond the reach of majoritarian governments so that constitutionalmorality can be applied by this Court to give effect to the rights, amongothers, of ‘discrete and insular’ minorities.[6] One such minority has

6 This phrase occurs in one of the most celebrated footnotes in the US Supreme Court’sconstitutional history – namely, Footnote 4 of United States v. Carolene ProductsHCo., 304 U.S. 144 (1938).

knocked on the doors of this Court as this Court is the custodian of thefundamental rights of citizens. These fundamental rights do not dependupon the outcome of elections. And, it is not left to majoritariangovernments to prescribe what shall be orthodox in matters concerningsocial morality. The fundamental rights chapter is like the north star inthe universe of constitutionalism in India.[7] Constitutional morality alwaystrumps any imposition of particular view of social morality by shiftingand different majoritarian regimes.82.Insofar as Article 14 is concerned, this Court in Shayara Banov. Union of India, (2017) 9 SCC 1, has stated, in paragraph 101, that astatutory provision can be struck down on the ground of manifestarbitrariness, when the provision is capricious, irrational and/or withoutadequate determining principle, as also if it is excessive or disproportionate.We find that Section 377, in penalizing consensual gay sex, is manifestlyarbitrary. Given modern psychiatric studies and legislation whichrecognizes that gay persons and transgenders are not persons sufferingfrom mental disorder and cannot therefore be penalized, the Sectionmust be held to be provision which is capricious and irrational. Also,roping in such persons with sentences going upto life imprisonment isclearly excessive and disproportionate, as result of which, when appliedto such persons, Articles 14 and 21 of the Constitution would clearly beviolated. The object sought to be achieved by the provision, namely toenforce Victorian mores upon the citizenry of India, would be out oftune with the march of constitutional events that has since taken place,rendering the said object itself discriminatory when it seeks to single outsame-sex couples and transgenders for punishment.

83.As has been stated in the judgment of Nariman, J. in ShreyaSinghal v. Union of India, (2015) 5 SCC 1, the chilling effect causedby such provision would also violate privacy right under Article19(1)(a), which can by no stretch of imagination be said to be reasonablerestriction in the interest of decency or morality (See paragraphs 87 to94).

7 In William Shakespeare’s Julius Caesar (Act III, Scene 1), Caesar tells Cassius-“I could be well moved, if I were as you;

If I could pray to move, prayers would move me:But I am constant as the Northern Star,Of whose true-fixed and resting qualityThere is no fellow in the firmament.”

84. We may hasten to add, that the Yogyakarta Principles onthe Application of International Human Rights Law in relation toSexual Orientation and Gender Identity discussed below, which werealso referred to by Radhakrishnan, J. in NALSA (supra), conform toour constitutional view of the fundamental rights of the citizens of Indiaand persons who come to this Court.

85.The International Commission of Jurists and the InternationalService for Human Rights, on behalf of coalition of human rightsorganisations, had undertaken project to develop set of internationallegal principles on the application of international law to human rightsviolations based on sexual orientation and gender identity to bring greaterCclarity and coherence to States’ human rights obligations.

86.A distinguished group of human rights experts drafted,developed, discussed and refined these Principles. Following an experts’meeting held at Gadjah Mada University in Yogyakarta, Indonesia from6[th] to 9[th] November, 2006, 29 distinguished experts from 25 countriesDwith diverse backgrounds and expertise relevant to issues of humanrights law unanimously adopted the Yogyakarta Principles on theApplication of International Human Rights Law in relation to SexualOrientation and Gender Identity.

87.A few relevant extracts from the Yogyakarta Principles andEits Preamble are as follows:-

“Preamble

WE, THE INTERNATIONAL PANEL OF EXPERTS IN INTERNATIONAL HUMANRIGHTS LAW AND ON SEXUAL ORIENTATION AND GENDER IDENTITY,

UNDERSTANDING ‘sexual orientation’ to refer to each person’scapacity for profound emotional, affectional and sexual attractionto, and intimate and sexual relations with, individuals of differentgender or the same gender or more than one gender;

GXX

FOLLOWING AN EXPERTS’ MEETING HELD IN YOGYAKARTA, INDONESIAFROM 6 TO 9 NOVEMBER 2006, HEREBY ADOPT THESE PRINCIPLES:

1. The right to the universal enjoyment of human rights.—All human beings are born free and equal in dignity and rights.Human beings of all sexual orientations and gender identities areentitled to the full enjoyment of all human rights.

States shall:

(a) embody the principles of the universality, interrelatedness,interdependence and indivisibility of all human rights in theirnational constitutions or other appropriate legislation and ensurethe practical realisation of the universal enjoyment of all humanrights;

(b) amend any legislation, including criminal law, to ensure itsconsistency with the universal enjoyment of all human rights;

(c) undertake programmes of education and awareness topromote and enhance the full enjoyment of all human rights byall persons, irrespective of sexual orientation or gender identity;

(d) integrate within State policy and decision making pluralisticapproach that recognises and affirms the interrelatedness andindivisibility of all aspects of human identity including sexualorientation and gender identity.

2. The rights to equality and non-discrimination.—Everyoneis entitled to enjoy all human rights without discrimination on thebasis of sexual orientation or gender identity. Everyone is entitledto equality before the law and the equal protection of the lawwithout any such discrimination whether or not the enjoyment ofanother human right is also affected. The law shall prohibit anysuch discrimination and guarantee to all persons equal andeffective protection against any such discrimination.

Discrimination on the basis of sexual orientation or gender identityincludes any distinction, exclusion, restriction or preference basedon sexual orientation or gender identity which has the purpose oreffect of nullifying or impairing equality before the law or theequal protection of the law, or the recognition, enjoyment orexercise, on an equal basis, of all human rights and fundamentalfreedoms. Discrimination based on sexual orientation or genderidentity may be, and commonly is, compounded by discrimination

on other grounds including gender, race, age, religion, disability,health and economic status.

States shall:

(a) embody the principles of equality and non-discrimination onthe basis of sexual orientation and gender identity in their nationalconstitutions or other appropriate legislation, if not yet incorporatedtherein, including by means of amendment and interpretation,and ensure the effective realisation of these principles;

(b) repeal criminal and other legal provisions that prohibit or are,in effect, employed to prohibit consensual sexual activity amongpeople of the same-sex who are over the age of consent, andensure that an equal age of consent applies to both same-sexand different-sex sexual activity;

(c) adopt appropriate legislative and other measures to prohibitand eliminate discrimination in the public and private spheres onthe basis of sexual orientation and gender identity;

(d) take appropriate measures to secure adequate advancementof persons of diverse sexual orientations and gender identities asmay be necessary to ensure such groups or individuals equalenjoyment or exercise of human rights. Such measures shall notbe deemed to be discriminatory;

(e) in all their responses to discrimination on the basis of sexualorientation or gender identity, take account of the manner in whichsuch discrimination may intersect with other forms ofdiscrimination;

(f) take all appropriate action, including programmes of educationand training, with view to achieving the elimination of prejudicialor discriminatory attitudes or behaviours which are related tothe idea of the inferiority or the superiority of any sexual orientationor gender identity or gender expression.

3. The right to recognition before the law.—Everyone has theright to recognition everywhere as person before the law.Persons of diverse sexual orientations and gender identities shallenjoy legal capacity in all aspects of life. Each person’s self-defined sexual orientation and gender identity is integral to theirpersonality and is one of the most basic aspects of self-

NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE[DIPAK MISRA, CJI ][R. F. NARIMAN, J.]

determination, dignity and freedom. No one shall be forced toundergo medical procedures, including sex reassignment surgery,sterilisation or hormonal therapy, as requirement for legalrecognition of their gender identity. No status, such as marriageor parenthood, may be invoked as such to prevent the legalrecognition of person’s gender identity. No one shall besubjected to pressure to conceal, suppress or deny their sexualorientation or gender identity.

States shall:

(a) ensure that all persons are accorded legal capacity in civilmatters, without discrimination on the basis of sexual orientationor gender identity, and the opportunity to exercise that capacity,including equal rights to conclude contracts, and to administer,own, acquire (including through inheritance), manage, enjoy anddispose of property;

(b) take all necessary legislative, administrative and othermeasures to fully respect and legally recognise each person’sself-defined gender identity;

(c) take all necessary legislative, administrative and othermeasures to ensure that procedures exist whereby all State-issuedidentity papers which indicate person’s gender/sex—includingbirth certificates, passports, electoral records and otherdocuments—reflect the person’s profound self-defined genderidentity;

(d) ensure that such procedures are efficient, fair and non-discriminatory, and respect the dignity and privacy of the personconcerned;

(e) ensure that changes to identity documents will be recognisedin all contexts where the identification or disaggregation of personsby gender is required by law or policy;

(f) undertake targeted programmes to provide social support forall persons experiencing gender transitioning or reassignment.XXX

4. The right to life.—Everyone has the right to life. No oneshall be arbitrarily deprived of life, including by reference to

considerations of sexual orientation or gender identity. The deathpenalty shall not be imposed on any person on the basis ofconsensual sexual activity among persons who are over the ageof consent or on the basis of sexual orientation or gender identity.

States shall:

(a) repeal all forms of crime that have the purpose or effect of-prohibiting consensual sexual activity among persons of the samesex who are over the age of consent and, until such provisionsare repealed, never impose the death penalty on any personconvicted under them;

(b) remit sentences of death and release all those currentlyawaiting execution for crimes relating to consensual sexual activityamong persons who are over the age of consent;

(c) cease any State-sponsored or State-condoned attacks on thelives of persons based on sexual orientation or gender identity,and ensure that all such attacks, whether by government officialsor by any individual or group, are vigorously investigated, andthat, where appropriate evidence is found, those responsible areprosecuted, tried and duly punished.

XXX

6. The right to privacy.—Everyone, regardless of sexualorientation or gender identity, is entitled to the enjoyment of privacywithout arbitrary or unlawful interference, including with regardto their family, home or correspondence as well as to protectionfrom unlawful attacks on their honour and reputation. The rightto privacy ordinarily includes the choice to disclose or not todisclose information relating to one’s sexual orientation or genderidentity, as well as decisions and choices regarding both one’sown body and consensual sexual and other relations with others.

States shall:

(a) take all necessary legislative, administrative and othermeasures to ensure the right of each person, regardless of sexualorientation or gender identity, to enjoy the private sphere, intimatedecisions, and human relations, including consensual sexualactivity among persons who are over the age of consent, withoutarbitrary interference;

NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE[DIPAK MISRA, CJI ][R. F. NARIMAN, J.]

(b) repeal all laws that criminalise consensual sexual activityamong persons of the same-sex who are over the age of consent,and ensure that an equal age of consent applies to both same-sex and different-sex sexual activity;

(c) ensure that criminal and other legal provisions of generalapplication are not applied de facto to criminalise consensualsexual activity among persons of the same-sex who are over theage of consent;

(d) repeal any law that prohibits or criminalises the expressionof gender identity, including through dress, speech or mannerisms,or that denies to individuals the opportunity to change their bodiesas means of expressing their gender identity;

(e) release all those held on remand or on the basis of criminalconviction, if their detention is related to consensual sexual activityamong persons who are over the age of consent, or is related togender identity;

(f) ensure the right of all persons ordinarily to choose when, towhom and how to disclose information pertaining to their sexualorientation or gender identity, and protect all persons fromarbitrary or unwanted disclosure, or threat of disclosure of suchinformation by others.

XXX

18. Protection from medical abuses.—No person may be forcedto undergo any form of medical or psychological treatment,procedure, testing, or be confined to medical facility, based onsexual orientation or gender identity. Notwithstanding anyclassifications to the contrary, person’s sexual orientation andgender identity are not, in and of themselves, medical conditionsand are not to be treated, cured or suppressed.

States shall:

(a) take all necessary legislative, administrative and othermeasures to ensure full protection against harmful medicalpractices based on sexual orientation or gender identity, includingon the basis of stereotypes, whether derived from culture orotherwise, regarding conduct, physical appearance or perceivedgender norms;

(b) take all necessary legislative, administrative and othermeasures to ensure that no child’s body is irreversibly altered bymedical procedures in an attempt to impose gender identitywithout the full, free and informed consent of the child inaccordance with the age and maturity of the child and guided bythe principle that in all actions concerning children, the best interestsof the child shall be primary consideration;

(c) establish child protection mechanisms whereby no child is atrisk of, or subjected to, medical abuse;

(d) ensure protection of persons of diverse sexual orientationsand gender identities against unethical or involuntary medicalprocedures or research, including in relation to vaccines, treatmentsor microbicides for HIV/AIDS or other diseases;

(e) review and amend any health funding provisions orprogrammes, including those of development-assistance nature,which may promote, facilitate or in any other way render possiblesuch abuses;

(f) ensure that any medical or psychological treatment orcounselling does not, explicitly or implicitly, treat sexual orientationand gender identity as medical conditions to be treated, cured orsuppressed.

19. The right to freedom of opinion and expression.—Everyone has the right to freedom of opinion and expression,regardless of sexual orientation or gender identity. This includesthe expression of identity or personhood through speech,deportment, dress, bodily characteristics, choice of name, or anyother means, as well as the freedom to seek, receive and impartinformation and ideas of all kinds, including with regard to humanrights, sexual orientation and gender identity, through any mediumand regardless of frontiers.

States shall:

(a) take all necessary legislative, administrative and othermeasures to ensure full enjoyment of freedom of opinion andexpression, while respecting the rights and freedoms of others,without discrimination on the basis of sexual orientation or genderidentity, including the receipt and imparting of information and

NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE[DIPAK MISRA, CJI ][R. F. NARIMAN, J.]

ideas concerning sexual orientation and gender identity, as wellas related advocacy for legal rights, publication of materials,broadcasting, organisation of or participation in conferences, anddissemination of and access to safer-sex information;

(b) ensure that the outputs and the organisation of media that isState-regulated is pluralistic and non-discriminatory in respectof issues of sexual orientation and gender identity and that thepersonnel recruitment and promotion policies of suchorganisations are non-discriminatory on the basis of sexualorientation or gender identity;

(c) take all necessary legislative, administrative and othermeasures to ensure the full enjoyment of the right to expressidentity or personhood, including through speech, deportment,dress, bodily characteristics, choice of name or any other means;

(d) ensure that notions of public order, public morality, publichealth and public security are not employed to restrict, in adiscriminatory manner, any exercise of freedom of opinion andexpression that affirms diverse sexual orientations or genderidentities;

(e) ensure that the exercise of freedom of opinion and expressiondoes not violate the rights and freedoms of persons of diversesexual orientations and gender identities;

(f) ensure that all persons, regardless of sexual orientation orgender identity, enjoy equal access to information and ideas, aswell as to participation in public debate.”

(Emphasis supplied)

88. These principles give further content to the fundamental rightscontained in Articles 14, 15, 19 and 21, and viewed in the light of theseprinciples also, Section 377 will have to be declared to be unconstitutional.

89. Given the aforesaid, it has now to be decided as to whetherthe judgment in Suresh Kumar Koushal (supra) is correct. SureshKumar Koushal’s judgment (supra) first begins with the presumptionof constitutionality attaching to pre-constitutional laws, such as the IndianPenal Code. The judgment goes on to state that pre-constitutional laws,which have been adopted by Parliament and used with or withoutamendment, being manifestations of the will of the people of India through

AParliament, are presumed to be constitutional. We are afraid that wecannot agree.

90. Article 372 of the Constitution of India continues laws in forcein the territory of India immediately before the commencement of theConstitution. That the Indian Penal Code is law in force in the territoryBof India immediately before the commencement of this Constitution isbeyond cavil. Under Article 372(2), the President may, by order, makesuch adaptations and modifications of an existing law as may be necessaryor expedient to bring such law in accord with the provisions of theConstitution. The fact that the President has not made any adaptation ormodification as mentioned in Article 372(2) does not take the matterCvery much further. The presumption of constitutionality of statute ispremised on the fact that Parliament understands the needs of the people,and that, as per the separation of powers doctrine, Parliament is awareof its limitations in enacting laws – it can only enact laws which do notfall within List II of Schedule VII of the Constitution of India, and cannotDtransgress the fundamental rights of the citizens and other constitutionalprovisions in doing so. Parliament is therefore deemed to be aware ofthe aforesaid constitutional limitations. Where, however, pre-constitutionlaw is made by either foreign legislature or body, none of theseparameters obtain. It is therefore clear that no such presumption attachesto pre-constitutional statute like the Indian Penal Code. In fact, in theEmajority judgment of B.P. Jeevan Reddy, J. in New Delhi MunicipalCouncil v. State of Punjab and Ors., (1997) 7 SCC 339, the PunjabMunicipal Act of 1911 was deemed to be post-constitutional lawinasmuch as it was extended to Delhi only in 1950, as result of whichthe presumption of constitutionality was raised. Ahmadi, C.J.’s dissenting

Fopinion correctly states that if pre-constitutional law is challenged, thepresumption of constitutional validity would not obtain. The relevantparagraph is extracted below:-

“119. Reddy, J. has taken the view that the Doctrine ofPresumption of Constitutionality of Legislations requires theGsaving of the taxes which these Acts impose upon the commercialactivities of State Governments. The Act is pre-constitutionalenactment. The basis of this doctrine is the assumed intention ofthe legislators not to transgress constitutional boundaries. It isdifficult to appreciate how that intention can be assumed when,at the time that the law was passed, there was no such barrier

NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE[DIPAK MISR[R. F. NARIMN, J.]A, CJI ]

and the limitation was brought in by Constitution long after theenactment of the law. (This Court has in Constitution Benchdecision, Gulabbhai Vallabbhai Desai v. Union of India [AIR1967 SC 1110 : (1967) 1 SCR 602] , (AIR at p. 1117 raiseddoubts along similar lines). The Framers obviously wanted thelaw under Article 289(2) to be of very high standard. Canthese laws, which are silent on the most important aspect requiredby Article 289(2), i.e., the specification of the trading activitiesof State Governments which would be liable to Union taxation,be said to meet with that standard?”

91. It is little difficult to subscribe to the view of the DivisionBench that the presumption of constitutionality of Section 377 wouldtherefore attach.

92. The fact that the legislature has chosen not to amend the law,despite the 172[nd] Law Commission Report specifically recommendingdeletion of Section 377, may indicate that Parliament has not thought itproper to delete the aforesaid provision, is one more reason for notinvalidating Section 377, according to Suresh Kumar Koushal (supra).This is little difficult to appreciate when the Union of India admittedlydid not challenge the Delhi High Court judgment striking down theprovision in part. Secondly, the fact that Parliament may or may nothave chosen to follow Law Commission Report does not guide theCourt’s understanding of its character, scope, ambit and import as hasbeen stated in Suresh Kumar Koushal (supra). It is neutral factwhich need not be taken into account at all. All that the Court has to seeis whether constitutional provisions have been transgressed and if so, asa natural corollary, the death knell of the challenged provision must follow.

93. It is little difficult to appreciate the Court stating that theambit of Section 377 IPC is only determined with reference to the sexualact itself and the circumstances in which it is executed. It is also littledifficult to appreciate that Section 377 regulates sexual conduct regardlessof gender identity and orientation.

94. After 2013, when Section 375 was amended so as to includeanal and certain other kinds of sexual intercourse between man and awoman, which would not be criminalized as rape if it was betweenconsenting adults, it is clear that if Section 377 continues to penalizesuch sexual intercourse, an anomalous position would result. man

Aindulging in such sexual intercourse would not be liable to be prosecutedfor rape but would be liable to be prosecuted under Section 377. Further,a woman who could, at no point of time, have been prosecuted for rapewould, despite her consent, be prosecuted for indulging in anal or suchother sexual intercourse with man in private under Section 377. Thiswould render Section 377, as applied to such consenting adults, asBmanifestly arbitrary as it would be wholly excessive and disproportionateto prosecute such persons under Section 377 when the legislature hasamended one portion of the law in 2013, making it clear that consensualsex, as described in the amended provision, between two consentingadults, one man and one woman, would not be liable for prosecution.CIf, by having regard to what has been said above, Section 377 has to beread down as not applying to anal and such other sex by male-femalecouple, then the Section will continue to apply only to homosexual sex. Ifthis be the case, the Section will offend Article 14 as it will discriminatebetween heterosexual and homosexual adults which is distinction whichhas no rational relation to the object sought to be achieved by the Section -Dnamely, the criminalization of allcarnal sex between homosexual and/orheterosexual adults as being against the order of nature.[8 ] Viewed eitherway, the Section falls foul of Article 14.

95.The fact that only minuscule fraction of the country’spopulation constitutes lesbians and gays or transgenders, and that in theElast 150 years less than 200 persons have been prosecuted for committingthe offence under Section 377, is neither here nor there. When it isfound that privacy interests come in and the State has no compellingreason to continue an existing law which penalizes same-sex coupleswho cause no harm to others, on an application of the recent judgments

Fdelivered by this Court after Suresh Kumar Koushal (supra), it isclear that Articles 14, 15, 19 and 21 have all been transgressed withoutany legitimate state rationale to uphold such provision.

96.For all these reasons therefore, we are of the view that, SureshKumar Koushal (supra) needs to be, and is hereby, overruled.

8 An argument was made by the Petitioners that Section 377, being vague andunintelligible, should be struck down on this ground as it is not clear as to what is meantby “against the order of nature”. Since Section 377 applies down the line to carnal sexbetween human beings and animals as well, which is not the subject matter of challengehere, it is unnecessary to go into this ground as the Petitioners have succeeded on otherHgrounds raised by them.

[DIPAK MISRA, CJI ]

97. We may conclude by stating that persons who are homosexualhave fundamental right to live with dignity, which, in the largerframework of the Preamble of India, will assure the cardinal constitutionalvalue of fraternity that has been discussed in some of our judgments(See (1) Nandini Sundar v. State of Chhattisgarh, (2011) 7 SCC 547at paragraphs 16, 25 and 52; and (2) Subramaniam Swamy v. Union ofIndia (2016) 7 SCC 221 at paragraphs 153 to 156). We further declarethat such groups are entitled to the protection of equal laws, and areentitled to be treated in society as human beings without any stigmabeing attached to any of them. We further declare that Section 377insofar as it criminalises homosexual sex and transgender sex betweenconsenting adults is unconstitutional.

98.We are also of the view that the Union of India shall take allmeasures to ensure that this judgment is given wide publicity through thepublic media, which includes television, radio, print and online media atregular intervals, and initiate programs to reduce and finally eliminatethe stigma associated with such persons. Above all, all governmentofficials, including and in particular police officials, and other officers ofthe Union of India and the States, be given periodic sensitization andawareness training of the plight of such persons in the light of theobservations contained in this judgment.

DR. D. Y. CHANDRACHUD, J.

Index to the judgment

AFrom denial to freedom

B“To the wisdom of the Court”CFrom “The Ashes of the Gay”

C.I“Arc of the moral universe”

DAn equal love

EBeyond physicality: sex, identity and stereotypesE.I Facial neutrality: through the looking glass

E.2 Deconstructing the polarities of binary genders

FConfronting the closet

F.I Sexual privacy and autonomy- deconstructing theheteronormative framework

AF.2 right to intimacy- celebration of sexual agency

GSection 377 and the right to health

G.I Section 377 and HIV prevention efforts

G.2 Mental health

HJudicial reviewB

IIndia’s commitments at International Law

JTranscending borders - comparative law

KCrime, morality and the Constitution

LConstitutional morality

CMIn summation : transformative constitutionalism

AFrom denial to freedom

“What makes life meaningful is love. The right that makes ushuman is the right to love. To criminalize the expression of thatDright is profoundly cruel and inhumane. To acquiesce in suchcriminalization, or worse, to recriminalize it, is to display the veryopposite of compassion. To show exaggerated deference to amajoritarian Parliament when the matter is one of fundamentalrights is to display judicial pusillanimity, for there is no doubt, thatEin the constitutional scheme, it is the judiciary that is the ultimateinterpreter.”[1]

1. The lethargy of the law is manifest yet again.

2. hundred and fifty eight years ago, colonial legislature madeit criminal, even for consenting adults of the same gender, to findFfulfillment in love. The law deprived them of the simple right as humanbeings to live, love and partner as nature made them. The human instinctto love was caged by constraining the physical manifestation of theirsexuality. Gays and lesbians[2] were made subordinate to the authority ofa coercive state. charter of morality made their relationships hateful.

1 Justice Leila Seth, “A mother and judge speaks out on Section 377”, The Timesof India, 26 January, 2014.2 These terms as well as terms such as “LGBT” and “LGBTIQ” used in the judgementare to be construed in an inclusive sense to include members of all gender and sexualminorities, whose sexual activity is criminalized by the application of Section 377Hof the Indian Penal Code, 1860.

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The criminal law became willing instrument of repression. To engagein ‘carnal intercourse’ against ‘the order of nature’ risked being tuckedaway for ten years in jail. The offence would be investigated bysearching the most intimate of spaces to find tell-tale signs of intercourse.Civilisation has been brutal.

3. Eighty seven years after the law was made, India gained herliberation from colonial past. But Macaulay’s legacy - the offenceunder Section 377 of the Penal Code - has continued to exist for nearlysixty eight years after we gave ourselves liberal Constitution. Gaysand lesbians, transgenders and bisexuals continue to be denied trulyequal citizenship seven decades after Independence. The law has imposedupon them morality which is an anachronism. Their entitlement shouldbe as equal participants in society governed by the morality of theConstitution. That in essence is what Section 377 denies to them. Theshadows of receding past confront their quest for fulfillment.

4. Section 377 exacts conformity backed by the fear of penalreprisal. There is an unbridgeable divide between the moral values onwhich it is based and the values of the Constitution. What separatesthem is liberty and dignity. We must, as society, ask searching questionsto the forms and symbols of injustice. Unless we do that, we risk becomingthe cause and not just the inheritors of an unjust society. Does theConstitution allow quiver of fear to become the quilt around the bodiesof her citizens, in the intimacies which define their identities? If there isonly one answer to this question, as I believe there is, the tragedy andanguish which Section 377 inflicts must be remedied.

5. The Constitution brought about transfer of political power.But it reflects above all, vision of society governed by justice. Individualliberty is its soul. The constitutional vision of justice accommodatesdifferences of culture, ideology and orientation. The stability of itsfoundation lies in its effort to protect diversity in all its facets: in thebeliefs, ideas and ways of living of her citizens. Democratic as it is, ourConstitution does not demand conformity. Nor does it contemplate themainstreaming of culture. It nurtures dissent as the safety valve forsocietal conflict. Our ability to recognise others who are different is asign of our own evolution. We miss the symbols of compassionate andhumane society only at our peril.

Section 377 provides for rule by the law instead of the rule of law. Therule of law requires just law which facilitates equality, liberty and dignity

Ain all its facets. Rule by the law provides legitimacy to arbitrary statebehaviour.

6. Section 377 has consigned group of citizens to the margins.It has been destructive of their identities. By imposing the sanctions ofthe law on consenting adults involved in sexual relationship, it has lentBthe authority of the state to perpetuate social stereotypes and encouragediscrimination. Gays, lesbians, bisexuals and transgenders have beenrelegated to the anguish of closeted identities. Sexual orientation hasbecome target for exploitation, if not blackmail, in networked anddigital age. The impact of Section 377 has travelled far beyond thepunishment of an offence. It has been destructive of an identity which isCcrucial to dignified existence.

7. It is difficult to right the wrongs of history. But we can certainlyset the course for the future. That we can do by saying, as I propose tosay in this case, that lesbians, gays, bisexuals and transgenders have aconstitutional right to equal citizenship in all its manifestations. SexualDorientation is recognised and protected by the Constitution. Section 377of the Penal Code is unconstitutional in so far as it penalises consensualrelationship between adults of the same gender. The constitutional valuesof liberty and dignity can accept nothing less.

B“To the wisdom of the Court”E

Union Government before the Court

8. After the hearing commenced, the Additional Solicitor Generaltendered an affidavit. The Union government states that it leaves adecision on the validity of Section 377 ‘to the wisdom of this Court’.Implicit in this is that the government has no view of its own on theFsubject and rests content to abide by the decision of this Court. Duringthe parleys in Court, the ASG however submitted that the court shouldconfine itself to the reference by ruling upon the correctness of SureshKumar Koushal v. Naz Foundation[3] (“Koushal”).

9. We would have appreciated categorical statement of positionGby the government, setting out its views on the validity of Section 377and on the correctness of Koushal. The ambivalence of the governmentdoes not obviate the necessity for judgment on the issues raised. Thechallenge to the constitutional validity of Section 377 must squarely be

H3 (2014) 1 SCC 1

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addressed in this proceeding. That is plainly the duty of the Court.Constitutional issues are not decided on concession. The statement ofthe Union government does not concede to the contention of thepetitioners that the statutory provision is invalid. Even if concessionwere to be made, that would not conclude the matter for this Court. Allthat the stand of the government indicates is that it is to the ‘wisdom’ ofthis Court that the matter is left. In reflecting upon this appeal to ourwisdom, it is just as well that we as judges remind ourselves of truthwhich can unwittingly be forgotten: flattery is graveyard for the gullible.

10. Bereft of submission on behalf of the Union government ona matter of constitutional principle these proceedings must be dealt within the only manner known to the constitutional court: through anadjudication which fulfills constitutional values and principles.

11. The ASG made fair submission when he urged that the courtshould deal with the matter in reference. The submission, to its credit,would have the court follow path of prudence. Prudence requires,after all, that the Court should address itself to the controversy in thereference without pursuing an uncharted course beyond it. Whileaccepting the wisdom of the approach suggested by the ASG, it isnonetheless necessary to make some prefatory observations on the scopeof the reference.

12. The correctness of the decision in Koushal is in question.Koushal [as indeed the decision of the Delhi High Court in NazFoundation v. Government of NCT of Delhi[4 ](“Naz”)]dealt with thevalidity of Section 377 which criminalizes even consensual relationshipbetween adults of the same gender who engage in sexual conduct(‘carnal intercourse against the order of nature’). In dealing with thevalidity of the provision, it is necessary to understand the nature of theconstitutional right which LGBT individuals claim. According to them,the right to be in relationship with consenting adult of the samegender emanates from the right to life, as protected value under theConstitution. They ground their right on the basis of an identity resting intheir sexual orientation. According to them, their liberty and dignity requireboth an acknowledgement as well as protection under the law, of theirsexual orientation. Representing their identity, based on sexual orientation,to the world at large and asserting it in their relationship with thecommunity and the state is stated to be intrinsic to the free exercise of4 (2010) Cri LJ 94

Aspeech and expression guaranteed by the Constitution. Sexual orientationis claimed to be intrinsic to the guarantee against discrimination on theground of sex. The statutory provision, it has been asserted, also violatesthe fundamental guarantee against arbitrariness because it unequallytargets gay men whose sexual expression falls in the area prohibited bySection 377.B

13. In answering the dispute in regard to the validity of Section377, the court must of necessity understand and explain in constitutionalperspective, the nature of the right which is claimed. The challenge toSection 377 has to be understood from the perspective of rightsdiscourse. While doing so, it becomes necessary to understand theCconstitutional source from which the claim emerges. When right isclaimed to be constitutionally protected, it is but necessary for the courtto analyze the basis of that assertion. Hence, in answering the reference,it is crucial for the court to place the entitlement of the LGBT populationin constitutional framework. We have approached the matter thus farDfrom the perspective of constitutional analysis. But there is more simpleline of reasoning as well, grounded as we believe, in common-sense.Sexual acts between consenting adults of the same gender constituteone facet – albeit an important aspect – of the right asserted by gay mento lead fulfilling lives. Gay and lesbian relationships are sustained andnurtured in every aspect which makes for meaningful life. InEunderstanding the true nature of those relationships and the protectionwhich the Constitution affords to them, it is necessary to adopt aperspective which leads to their acceptance as equal members of ahumane and compassionate society. Forming holistic perspectiverequires the court to dwell on, but not confine itself, to sexuality. SexualForientation creates an identity on which there is constitutional claim tothe entitlement of dignified life. It is from that broad perspective thatthe constitutional right needs to be adjudicated.

From “The Ashes of the Gay”

“Democracy

It’s coming through hole in the air,

It’s coming from the feelthat this ain’t exactly real,or it’s real, but it ain’t exactly there.

NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE[DR. D. Y. CHANDRAHUD, J.][DIPAK MISRA, CJI ]

From the wars against disorder,

from the sirens night and day,

from the fires of the homeless,

from the ashes of the gay:

Democracy is coming…”[5]

14.Section 377 of the Indian Penal Code, 1860 (“IPC”) has made‘carnal intercourse against the order of nature’ an offence. This provision,understood as prohibiting non-peno vaginal intercourse, reflects theimposition of particular set of morals by colonial power at particularpoint in history. supposedly alien law,[6] Section 377 has managed tosurvive for over 158 years, impervious to both the anticolonial struggleas well as the formation of democratic India, which guaranteesfundamental rights to all its citizens. An inquiry into the colonial originsof Section 377 and its postulations about sexuality is useful in assessingthe relevance of the provision in contemporary times.[7]

15. Lord Thomas Babington Macaulay, Chairman of the First LawCommission of India and principal architect of the IPC, cited two mainsources from which he drew in drafting the Code: the French(Napoleonic) Penal Code, 1810 and Edward Livingston’s Louisiana Code.[8]Lord Macaulay also drew inspiration from the English common law andthe British Royal Commission’s 1843 Draft Code.[9] Tracing that origin,English jurist Fitzjames Stephen observes:

5 Lyrics from Leonard Cohen’s song “Democracy” (1992).

6 See Same-Sex Love in India: Literary History (Ruth Vanita and Saleem Kidwai,eds.), Penguin India (2008) for writings spanning over more than 2,000 years of Indianliterature which demonstrate that same-sex love has flourished, evolved and beenembraced in various forms since ancient times.

7 Law like Love: Queer Perspectives on Law (Arvind Narrain and Alok Gupta, eds.),Yoda Press (2011).

8 K. N. Chandrasekharan Pillai and Shabistan Aquil, “Historical Introduction to theIndian Penal Code”, in Essays on the Indian Penal Code, New Delhi, Indian LawInstitute (2005); Siyuan Chen, “Codification, Macaulay and the Indian Penal Code[Book Review], Singapore Journal of Legal Studies, National University of Singapore,Faculty of Law (2011), at pages 581-584.

9 Douglas E. Sanders, “377 and the Unnatural Afterlife of British Colonialism in Asia”,Asian Journal of Comparative Law, Vol. 4 (2009), at page 11 (“Douglas”); David Skuy,“Macaulay and the Indian Penal Code of 1862: The Myth of the Inherent Superiorityand Modernity of the English Legal System Compared to India’s Legal System in theNineteenth Century”, Modern Asian Studies, Vol. 32 (1998), at pages 513-557.

A“The Indian Penal Code may be described as the criminal law ofEngland freed from all technicalities and superfluities,systematically arranged and modified in some few particulars (theyare surprisingly few) to suit the circumstances of British India.”[10]

In order to understand the colonial origins of Section 377, it is necessaryBto go further back to modern English law’s conception of anal and oralintercourse, which was firmly rooted in Judeo-Christian morality andcondemned non-procreative sex.[11] Though Jesus himself does notreference homosexuality or homosexual sex,[12] the “Holiness Code”[13]found in Leviticus provides thus:

“You shall not lie with male as with woman. It is an abomination.C[18:22]

If man also lie with mankind, as he lieth with woman, both ofthem have committed an abomination: they shall surely be put todeath; their blood shall be upon them. [19:13]

DIf man lies with male as with woman, both of them havecommitted an abomination; they shall be put to death, their bloodis upon them. [20:13]”

Another Judeo-Christian religious interpretation refers to “sodomy”, aterm used for anal intercourse that is derived from an interpretation ofGenesis 18:20 of the Old Testament,[14] known as the story of Sodom andEGomorrah. Briefly, when two angels took refuge in the home of Lot, themen of the town of Sodom surrounded the house and demanded that theangels be sent out so that the men may “know” them (in this interpretation,with sexual connotations). When Lot offered them his two virgin daughtersinstead, the men of Sodom responded by threatening Lot. The angelsFthen blinded the “Sodomites.”[15] The use of the term “sodomites” todescribe those who engaged in anal intercourse emerged in the 13[th]Century, and the term “sodomy” was used as euphemism for numberof sexual ‘sins’ two centuries earlier.[16]

10Barry Wright, “Macaulay’s Indian Penal Code: Historical Context and OriginatingPrinciples”, Carleton University (2011).G11Michael Kirby, “The Sodomy Offence: England’s Least Lovely Law Export?” Journalof Commonwealth Criminal Law, Inaugural Issue (2011).12Douglas, supra note 9, at page 4.

13Ibid at page 2.

14Douglas, supra note 9, at page 4.

15Jessica Cecil, “The Destruction of Sodom and Gomorrah”, British BroadcastingCompany, 11 February 2017.

16Douglas, supra note 9, at page 4; KSN Murthy’s Criminal Law: Indian Penal Code (KVSHSarma ed), Lexis Nexis (2016).

NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE[DR. D. Y. CHANDRAHUD, J.][DIPAK MISRA, CJI ]

16.The preservation of the Judeo-Christian condemnation ofhomosexuality is also attributed to the Jewish theologian, Philo ofAlexandria, who is regarded as the father of the Church Fathers andwho reviled homosexuals and called for their execution.[17] Thecondemnation of homosexuality can also be traced to Roman law.Emperor Justinian’s Code of 529, for instance, stated that persons whoengaged in homosexual sex were to be executed.[18] From Rome, thecondemnation of homosexuality spread across Europe, where itmanifested itself in ecclesiastical law.[19] During the ProtestantReformation, these laws shifted from the ecclesiastical to the criminaldomain, beginning with Germany in 1532.[20]

While ecclesiastical laws against homosexual intercourse were wellestablished in England by the 1500s,[21] England’s first criminal (non-ecclesiastical) law was the Buggery Act of 1533, which condemned“the detestable and abominable vice of buggeri committed with mankindor beest.”[22] “Buggery” is derived from the old French word for heretic,“bougre”, and was taken to mean anal intercourse.[23]

17. The Buggery Act, 1533, which was enacted by Henry VIII,made the offence of buggery punishable by death, and continued to existfor nearly 300 years before it was repealed and replaced by the Offencesagainst the Person Act, 1828. Buggery, however, remained capitaloffence in England until 1861, one year after the enactment of the IPC.The language of Section 377 has antecedents in the definition of buggeryfound in Sir Edward Coke’s late 17[th] Century compilation of Englishlaw:[24]

“...Committed by carnal knowledge against the ordinance of theCreator, and order of nature, by mankind with mankind, or withbrute beast, or by womankind with brute beast.”[25]

1 7Philo, translated by F.H. Colson and G.H. Whitaker, 10 Volumes, (Cambridge:Harvard University Press, 1929-1962).

1 8David F. Greenberg and Marcia H. Bystryn, “Christian Intolerance ofHomosexuality”, American Journal of Sociology, Vol. 88 (1982), at pages 515-548.1 9Douglas, supra note 9, at pages 5 and 8.

2 0Ibid at page 5.2 1Ibid at page 2.

2 2The Buggery Act, 1533.

2 3Douglas, supra note 9, at page 2.

2 4Ibid at 7.

2 5Human Rights Watch. This Alien Legacy: The Origins of “Sodomy” Laws in BritishColonialism (2008).

A18.The Criminal Law Amendment Act, 1885 made “grossindecency” crime in the United Kingdom, and was used to prosecutehomosexuals where sodomy could not be proven. In 1895, Oscar Wildewas arrested under the Act for ‘committing acts of gross indecencywith male persons’.[26] During Wilde’s trial, the Prosecutor, referring tohomosexual love, asked him, “What is ‘the love that dare not speak itsBname’?” Wilde responded:

“The love that dare not speak its name” in this century is such agreat affection of an elder for younger man as there wasbetween David and Jonathan, such as Plato made the very basisof his philosophy, and such as you find in the sonnets ofCMichelangelo and Shakespeare. It is that deep spiritual affectionthat is as pure as it is perfect. It dictates and pervades greatworks of art, like those of Shakespeare and Michelangelo, andthose two letters of mine, such as they are. It is in this centurymisunderstood, so much misunderstood that it may be describedDas “the love that dare not speak its name,” and on that accountof it I am placed where I am now. It is beautiful, it is fine, it is thenoblest form of affection. There is nothing unnatural about it. Itis intellectual, and it repeatedly exists between an older and ayounger man, when the older man has intellect, and the youngerman has all the joy, hope and glamour of life before him. That itEshould be so, the world does not understand. The world mocksat it, and sometimes puts one in the pillory for it.”[27]Wilde was held guilty and was sentenced to two years’ hard labour andsubsequently incarcerated.

Following World War II, arrests and prosecutions of homosexualsFincreased. Alan Turing, the renowned mathematician and cryptographerwho was responsible for breaking the Nazi Enigma code during WorldWar II, was convicted of ‘gross indecency’ in 1952. In order to avoid aprison sentence, Turing was forced to agree to chemical castration. Hewas injected with synthetic female hormones. Less than two years afterGhe began the hormone treatment, Turing committed suicide. TheAmendment Act (also known as the Labouchere Amendment) remainedin English law until 1967. Turing was posthumously pardoned in 2013,and in 2017, the UK introduced the Policing and Crime Bill, also called

26 Douglas, supra note 9, at page 15.27 H. Montgomery Hyde, John O’Connor, and Merlin Holland, The Trials of OscarHWilde (2014), at page 201.

NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE[DR. D. Y. CHANDRAHUD, J.][DIPAK MISRA, CJI ]

the “Turing Law,” posthumously pardoning 50,000 homosexual men andproviding pardons for the living.

In the wake of several court cases in which homosexuality had beenfeatured, the British Parliament in 1954 set up the Wolfenden Committee,headed by John Wolfenden, to “consider…the law and practice relatingto homosexual offenses and the treatment of persons convicted of suchoffenses by the courts”, as well as the laws relevant to prostitution andsolicitation. The Wolfenden Report of 1957, which was supported by theChurch of England,[28] proposed that there ‘must remain realm of privatemorality and immorality which is, in brief and crude terms, not the law’sbusiness’ and recommended that homosexual acts between twoconsenting adults should no longer be criminal offence.[29]19. The success of the report led England and Wales to enactThe Sexual Offences Act, 1967,which decriminalized private homosexualsex between two men over the age of twenty-one. Britain continued tointroduce and amend laws governing same-sex intercourse to make themmore equal, including the lowering of the age of consent for gay/bisexualmen to sixteen in 2001.[30] In May 2007, in statement to the UN HumanRights Council, the UK, which imposed criminal prohibitions against same-sex intercourse in its former colonies across the world, committed itselfto the cause of worldwide decriminalization of homosexuality.[31] Today,India continues to enforce law imposed by an erstwhile colonialgovernment, law that has been long done away with by the samegovernment in its own jurisdiction.

C.I“Arc of the moral universe”

20. Lord Macaulay was greatly influenced by English philosopherand jurist Jeremy Bentham, who coined the term codification and arguedfor replacing existing laws with clear, concise, and understandableprovisions that could be universally applied across the Empire.[32] Ironically,in 1785 essay, Bentham himself wrote one of the earliest knowndefences of homosexuality in the English language, arguing against thecriminalization of homosexuality. However, this essay was only discovered200 years after his death.[33]

28Ibid at 25.

29Report of the Departmental Committee on Homosexual Offences and Prostitution(1957) (“Wolfenden Report”).

30Sexual Offences (Amendment) Act 2000, Parliament of the United Kingdom.

31Douglas, supra note 9, at page 29.

32Douglas, supra note 9, at page 9.

33Ibid.

A21.The Law Commission’s 1837 draft of the Penal Code (preparedby Lord Macaulay) contained two sections (Clauses 361 and 362), whichare considered the immediate precursors to Section 377:

“OF UNNATURAL OFFENCES

361. Whoever, intending to gratify unnatural lust, touches, forBthat purpose, any person, or any animal, or is by his own consenttouched by any person, for the purpose of gratifying unnaturallust, shall be punished with imprisonment of either descriptionfor term which may extend to fourteen years and must not beless than two years, and shall also be liable to fine.C362. Whoever, intending to gratify unnatural lust, touches forthat purpose any person without that person’s free and intelligentconsent, shall be punished with imprisonment of either descriptionfor term which may extend to life and must not be less thanseven years, and shall also be liable to fine.”

DBoth the draft clauses are vague in their description of the acts theyseek to criminalize. Lord Macaulay also omitted an explanation to theClauses. In note presented with the 1837 draft, Lord Macaulayelaborated:

“Clauses 361 and 362 relate to an odious class of offencesErespecting which it is desirable that as little as possible besaid. We leave without comment to the judgment of his Lordshipin Council the two Clauses which we have provided for theseoffences. We are unwilling to insert, either in the text, orin the notes, anything which could give rise to publicdiscussion on this revolting subject; as we are decidedlyFof opinion that the injury which would be done to the moralsof the community by such discussion would far more thancompensate for any benefits which might be derived fromlegislative measures framed with the greatest precision.”[34](Emphasis supplied)GSo abominable did Macaulay consider these offences that he banishedthe thought of providing rationale for their being made culpable. Theprospect of public discussion was revolting.

34 Enze Han, Joseph O’Mahoney, “British Colonialism and the Criminalization ofHHomosexuality: Queens, Crime and Empire”, Routledge (2018).

NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE[DR. D. Y. CHANDRAHUD, J.][DIPAK MISRA, CJI ]

After twenty-five years of revision, the IPC entered into force on 1January 1862, two years after Lord Macaulay’s death. The IPC wasthe first codified criminal code in the British Empire. Section 377 of therevised code read as follows:

“Of Unnatural Offences

377. Unnatural Offences.- Whoever voluntarily has carnalintercourse against the order of nature with any man, woman oranimal, shall be punished with [imprisonment for life][35], or withimprisonment of either description for term which may extendto ten years, and shall also be liable to fine.

Explanation.- Penetration is sufficient to constitute the carnalintercourse necessary to the offence described in this section.”

22. The Explanation is unique in that it requires proof ofpenetration – something that British Law did not. The two clauses in theDraft Code fell somewhere in between, requiring proof of “touch”.[36]

By the time India gained independence in 1947, Britain had introducedPenal Codes similar to the IPC in other former colonies, including Zanzibar(Tanzania) in 1867, Singapore, Malaysia, and Brunei in 1871, Ceylon(Sri Lanka) in 1885, Burma (Myanmar) in 1886,[37] East AfricaProtectorate (Kenya) in 1897, Sudan in 1889, Uganda in 1902, andTanganyika (Tanzania) in 1920.[38] Under Article 372(1) of the IndianConstitution, which provides that all laws in force prior to thecommencement of the Constitution shall continue to be in force untilaltered or repealed, the IPC and many other pre-Independence lawswere “saved” and allowed to operate in Independent India.

23. While Section 377 has been used to prosecute non-consensualsexual acts, it has also been used to prosecute consensual sexual acts.In (Meharban) Nowshirwan Irani v. Emperor[39], for instance, policeofficer observed Nowshirwan, young shopkeeper, engaged inhomosexual acts with young man, Ratansi, through keyhole in

3 5Changed from “transportation for life” by Act 26 of 1955.

3 6Douglas, supra note 9, at page 16.

3 7Nang Yin Kham, “An Introduction to the Law and Judicial System of Myanmar”,Centre for Asia Legal Studies Faculty of Law, National University of Singapore,Working Paper 14/02, (2014).

3 8Supra note 34.

3 9AIR 1934 Sind. 206.

ANowshirwan’s house. The Prosecution argued that the acts were non-consensual, but could not prove coercion.[40]The High Court of Sindhultimately set aside the conviction based on insufficient evidence.Nevertheless, what should have been an intimate act between twoconsenting parties in their bedroom became public scandal and thesubject of judicial scrutiny.[41]

In P Minwalla v. Emperor[42], Minawalla and Tajmahomed,were seen having anal intercourse in lorry and were arrested, charged,and found guilty under Section 377. Tajmahomed was sentenced to fourmonths rigorous imprisonment, and Minawalla, who was charged withabetment, was sentenced to fine of Rs 100 and imprisonment until theCrising of the Bench. Minawalla appealed the decision on the groundsthat he was not consenting partner, and submitted himself to medicalexam. The judge was unconvinced, however, and Minawalla’s originalsentence was upheld. The Court, convinced that the acts wereconsensual, found the men guilty under Section 377.[43]

In Ratan Mia v. State of Assam[44], the Court convicted two men(one aged fifteen and half, the other twenty) under Section 377 andtreated them as equally culpable, as he was unable to cast one of themas the perpetrator and the other as the victim or abettor. Both men wereoriginally sentenced to imprisonment for six months and fine of RsE100. After Nur had spent six years in prison and appealed three times,[45]both men’s sentences were reduced to seven days rigorous imprisonment,in view of the fact that they were first time offenders under the age oftwenty-one.[46]

40 Arvind Narrain, “‘That Despicable Specimen of Humanity’: Policing ofHomosexuality in India”, in Challenging the Rule(s) of Law: Colonialism,Criminology and Human Rights in India (Kalpana Kannabiran and Ranbir Singheds.), Sage (2008).

41 Arvind Narrain, “A New Language of Morality: From the Trial of Nowshirwan tothe Judgement in Naz Foundation”, The Indian Journal of Constitutional Law, Vol.4 (2010).G4 2

4 2AIR 1935 Sind. 78.

4 3Supra note 40.

4 4(1988) Cr.L.J. 980.

4 5Suparna Bhaskaran, “The Politics of Penetration: Section 377 of the Indian PenalCode” in Queering India: Same-Sex Love and Eroticism in Indian Culture and Society(Ruth Vanita ed.), Routledge (2002).

H4 6Ibid.

NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE[DR. D. Y. CHANDRACHUD, J.][DIPAK MISRA, CJI ]

Even though the government is not proactively enforcing law thatgoverns private activities, the psychological impact for homosexuals whoare, for all practical purposes, felons in waiting, is damaging in its own right:

“...The true impact of Section 377 on queer lives is felt outsidethe courtroom and must not be measured in terms of legal cases.Numerous studies, including both documented and anecdotalevidence, tell us that Section 377 is the basis for routine andcontinuous violence against sexual minorities by the police, themedical establishment, and the state. There are innumerablestories that can be cited – from the everyday violence faced byhijras [a distinct transgender category] and kothis [effeminatemales] on the streets of Indian cities to the refusal of the NationalHuman Rights Commission to hear the case of young manwho had been given electro-shock therapy for nearly two years.A recent report by the People’s Union for Civil Liberties(Karnataka), showed that Section 377 was used by the police tojustify practices such as illegal detention, sexual abuse andharassment, extortion and outing of queer people to theirfamilies.”[47]

Before the end of the 19[th] century, gay rights movements were few andfar between. Indeed, when Alfred Douglas, Oscar Wilde’s lover, wrotein his 1890s poem entitled “Two Loves” of “the love that dare not speakits name”, he was alluding to society’s moral disapprobation ofhomosexuality.[48] The 20[th] century, however, saw the LGBTIQ communityemerge from the shadows worldwide, poised to agitate and demandequal civil rights. LGBTIQ movements focused on issues ofintersectionality, the interplay of oppressions arising from being both queerand lower class, coloured, disabled, and so on. Despite the movementmaking numerous strides forward in the fight for equal rights, incidentsof homosexual arrests were nevertheless extant at the turn of the 21[st]century.

In many cases of unfulfilled civil rights, there is tendency to operateunder the philosophy articulated by Dr. Martin Luther King, that “thearc of the moral universe is long, but it bends towards justice.” It is likely

4 7Douglas, supra note 9, at page 21; “Introduction” to Because I Have Voice: QueerPolitics in India, (Gautam Bhan and Arvind Narrain eds), Yoda Press (2005) atpages 7, 8.

4 8Melba Cuddy-Keane, Adam Hammond and Alexandra Peat, “Q” in Modernism:Keywords, Wiley-Blackwell (2014).

Athat those who subscribe to this philosophy believe that homosexualsshould practice the virtue of patience, and wait for society to understandand accept their way of life. What those who purport this philosophy failto recognize is that Dr King himself argued against the doctrine of “wait”:

“For years now I have heard the word “wait.” It rings in the earBof every Negro with piercing familiarity. This “wait” has almostalways meant “never.” It has been tranquilizing thalidomide,relieving the emotional stress for moment, only to give birth toan ill-formed infant of frustration. We must come to see with thedistinguished jurist of yesterday that “justice too long delayed isjustice denied.” We have waited for more than three hundredCand forty years for our God-given and constitutional rights . . .when you are harried by day and haunted by night by the factthat you are Negro, living constantly at tiptoe stance, neverknowing what to expect next, and plagued with inner fears andouter resentments; when you are forever fighting degeneratingDsense of “nobodyness” — then you will understand why we findit difficult to wait. There comes time when the cup of enduranceruns over and men are no longer willing to be plunged into anabyss of injustice where they experience the bleakness ofcorroding despair. I hope, sirs, you can understand our legitimateand unavoidable impatience.” (Letter from Birmingham Jail)[49]E24. Indian citizens belonging to sexual minorities have waited.They have waited and watched as their fellow citizens were freed fromthe British yoke while their fundamental freedoms remained restrainedunder an antiquated and anachronistic colonial-era law – forcing themto live in hiding, in fear, and as second-class citizens. In seeking an

Fadjudication of the validity of Section 377, these citizens urge that theacts which the provision makes culpable should be decriminalised. Butthis case involves much more than merely decriminalising certain conductwhich has been proscribed by colonial law. The case is about anaspiration to realise constitutional rights. It is about right which every

human being has, to live with dignity. It is about enabling these citizens toGrealise the worth of equal citizenship. Above all, our decision will speakto the transformative power of the Constitution. For it is in thetransformation of society that the Constitution seeks to assure the valuesof just, humane and compassionate existence to all her citizens.

49 Martin Luther King Jr., “Letter from Birmingham Jail” (1963).H

NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE[DR. D. Y. CHANDRACHUD, J.][DIPAK MISRA, CJI ]

DAn equal love

“Through Love’s Great Power

Through love’s great power to be made whole

In mind and body, heart and soul –

Through freedom to find joy, or be

By dint of joy itself set freeIn love and in companionhood:

This is the true and natural good.

To undo justice, and to seek

To quash the rights that guard the weak -

To sneer at love, and wrench apartThe bonds of body, mind and heartWith specious reason and no rhyme:This is the true unnatural crime.”[50]

Article 14 is our fundamental charter of equality:

“The State shall not deny to any person equality before thelawor the equal protection of the lawswithin the territoryof India.” (Emphasis supplied)

25. In Naz,the Delhi High Court held that Section 377 violatesArticle 14 of the Constitution since the classification on which it is baseddoes not bear any nexus to the object which the provision seeks toachieve.[51] In Koushal, this Courtrejected the Naz formulation on theground that “those who indulge in carnal intercourse in the ordinary courseand those who ... [do so] against the order of nature constitute differentclasses.”[52 ]Koushal held on that logic that Section 377 does not sufferfrom arbitrariness or from an irrational classification.

26. litany of our decisions – to refer to them individually wouldbe parade of the familiar – indicates that to be reasonable classificationunder Article 14 of the Constitution, two criteria must be met: (i) theclassification must be founded on an intelligible differentia; and (ii) thedifferentia must have rational nexus to the objective sought to beachieved by the legislation.[53] There must, in other words, be causalconnection between the basis of classification and the object of the statute.

5 0Vikram Seth wrote this poem the morning after the Supreme Court refused toreview its decision in Koushal.

5 1Naz Foundation, at para 91.

5 2Koushal, at para 65.

5 3State of West Bengal v. Anwar Ali Sarkar, AIR (1952) SC 75.

AIf the object of the classification is illogical, unfair and unjust, theclassification will be unreasonable.[54]

27. Equating the content of equality with the reasonableness of aclassification on which law is based advances the cause of legalformalism. The problem with the classification test is that what constitutesBa reasonable classification is reduced to mere formula: the quest foran intelligible differentia and the rational nexus to the object sought to beachieved. In doing so, the test of classification risks elevating form oversubstance. The danger inherent in legal formalism lies in its inability tolay threadbare the values which guide the process of judging constitutionalrights. Legal formalism buries the life-giving forces of the ConstitutionCunder mere mantra. What it ignores is that Article 14 contains apowerful statement of values – of the substance of equality before thelaw and the equal protection of laws. To reduce it to formal exerciseof classification may miss the true value of equality as safeguard againstarbitrariness in state action. As our constitutional jurisprudence hasDevolved towards recognizing the substantive content of liberty andequality, the core of Article 14 has emerged out of the shadows ofclassification. Article 14 has substantive content on which, togetherwith liberty and dignity, the edifice of the Constitution is built. Simplyput, in that avatar, it reflects the quest for ensuring fair treatment of theindividual in every aspect of human endeavor and in every facet of humanEexistence.

In P Royappa v. State of Tamil Nadu[55], the validity of state actionwas made subject to the test of arbitrariness:

“Equality is dynamic concept with many aspects and dimensionsand it cannot be “cribbed cabined and confined” within traditionalFand doctrinaire limits. From positivistic point of view, equalityis antithetic to arbitrariness. In fact equality and arbitrarinessare sworn enemies; one belongs to the rule of law in republicwhile the other, to the whim and caprice of an absolute monarch.Where an act is arbitrary it is implicit in it that it is unequal bothGaccording to political logic and constitutional law and is thereforeviolative of Art.14…”5 4Deepak Sibal v. Punjab University, (1989) 2 SCC 145.

5 5(1974) 4 SCC 3H

NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE[DR. D. Y. CHANDRAHUD, J.][DIPAK MISRA, CJI ]

Four decades later, the test has been refined in Shayara Bano v. Unionof India[56]:

“The expression ‘arbitrarily’ means: in an unreasonable manner,as fixed or done capriciously or at pleasure, without adequatedetermining principle, not founded in the nature of things, non-rational, not done or acting according to reason or judgment,depending on the will alone.”

28. The wording of Section 377 does not precisely map on to adistinction between homosexuals and heterosexuals but preciseinterpretation would mean that it penalizes some forms of sexualexpression among heterosexuals while necessarily criminalizing everyform of sexual expression and intimacy between homosexuals.[57] ForSection 377 to withstand the scrutiny of Article 14, it was necessary forthe Court in Koushal to establish the difference between ‘ordinaryintercourse’ and ‘intercourse against the order of nature’, the legitimateobjective being pursued and the rational nexus between the goal and theclassification. However, the Koushal approach has been criticised onthe ground that while dealing with Article 14, it fell “short of the minimumstandards of judicial reasoning that may be expected from the SupremeCourt.”[58] On review of the prosecutions under Section 377, Koushalconceded that “no uniform test [could] be culled out to classify acts as‘carnal intercourse against the order of nature.”[59] Yet Koushal upheldthe classification of sexual acts in Section 377 without explaining thedifference between the classes, or the justification for treating the classesdifferently.

This lack of reasoning and analysis by the Court has been critiqued inscholarly research on the subject. The following extract sums up thecriticism with telling effect:

“The Court says – without an iota of evidence – that there aretwo classes of persons – those who engage in sexual intercoursein the “ordinary course”, and those who don’t. What is ordinary

5 6(2017) 9 SCC 1

5 7Gautam Bhatia, “Equal moral membership: Naz Foundation and the refashioning ofequality under transformative constitution”, Indian Law Review, Vol. 1 (2017),at pages 115-144.

5 8Shubhankar Dam, “Suresh Kumar Koushal and Another v. NAZ Foundation andOthers (Civil Appeal No. 10972 of 2013)” Public Law, International Survey Section(2014).

5 9Koushal, at para 60.

Acourse? Presumably, heterosexuality. Why is this ordinary course?Perhaps because there are more heterosexuals than homosexualsaround, although the Court gives no evidence for that. Well, thereare also more black-haired people in India than brown-hairedpeople. Is sex with brown-haired person against the order ofnature because it happens less often?... Where is the rationalBnexus? What is the legitimate governmental objective? Evenif we accept that there is an intelligible differentia here, on whatbasis do you criminalize – and thus deny equal protectionof laws – to one class of persons? The Court gives noanswer.Alternatively, “ordinary sex” is penal-vaginal, and every otherCkind of sex is “against the ordinary course of nature”. Again, noevidence to back that claim up apart from the say-so of thejudge.”[60]

At the very outset, we must understand the problem with the usage ofthe term ‘order of nature’. What is ‘natural’ and what is ‘unnatural’?

DAnd who decides the categorization into these two ostensibly distinctand water-tight compartments? Do we allow the state to draw theboundaries between permissible and impermissible intimacies betweenconsenting adults? Homosexuality has been documented in almost 1500species, who “unfortunately are not blessed with rational capabilities(and the propensity to ‘nurture’ same sex thoughts) as are found inEmankind.”[61] An interesting article in this regard notes that, “no specieshas been found in which homosexual behaviour has not been shown toexist, with the exception of species that never have sex at all, such assea urchins and aphis.”[62]

29. In an incisive article,[63] Ambrosino discusses the shift fromFreproductive instinct to erotic desire and how crucial this shift is tounderstanding modern notions of sexuality. He analyses how the linesbetween homosexuality and heterosexuality are blurred, and perhapseven an outdated myth or invention when we understand the fluidity ofsexual identities today:[64]

G60Gautam Bhatia, “The Unbearable Wrongness of Koushal vs Naz Foundation”, IndianConstitutional Law and Philosophy (2013).

61Shamnad Basheer, Sroyon Mukherjee and Karthy Nair, “Section 377 and the ‘Order of

Nature’: Nurturing ‘Indeterminacy’ in the Law”, NUJS Law Review, Vol, 2 (2009).62Bruce Bagemihl, Biological Exuberance: Animal Homosexuality and Natural Diversity,Stonewall Inn Editions (2000).

63Brandon Ambrosino, “The Invention of Heterosexuality”, British BroadcastingCompany, 26March, 2017.H64Ibid.

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“”No one knows exactly why heterosexuals and homosexuals oughtto be different,” wrote Wendell Ricketts, author of the 1984 studyBiological Research on Homosexuality. The best answer we’ve gotis something of tautology: “heterosexuals and homosexuals areconsidered different because they can be divided into two groups onthe basis of the belief that they can be divided into two groups.”

Though the hetero/homo divide seems like an eternal, indestructiblefact of nature, it simply isn’t. It’s merely one recent grammar humanshave invented to talk about what sex means to us.”

He questions the elevated status of ‘normalcy’ in the following words:

“Normal” is loaded word, of course, and it has been misusedthroughout history. Hierarchical ordering leading to slavery was atone time accepted as normal, as was geocentric cosmology. Itwas only by questioning the foundations of the consensus view that

“normal” phenomena were dethroned from their privileged positions.”There are obvious shortcomings of the human element in the judgment ofnatural and unnatural:

“Why judge what is natural and ethical to human being by his orher animal nature? Many of the things human beings value, such asmedicine and art, are egregiously unnatural. At the same time,humans detest many things that actually are eminently natural, likedisease and death. If we consider some naturally occurringphenomena ethical and others unethical, that means our minds (thethings looking) are determining what to make of nature (the thingsbeing looked at). Nature doesn’t exist somewhere “out there,”independently of us – we’re always already interpreting it from theinside.”

It has been argued that “the ‘naturalness’ and omnipresence ofheterosexuality is manufactured by an elimination of historical specificitiesabout the organisation, regulation and deployment of sexuality acrosstime and space.”[65] It is thus this “closeting of history” that produces the“hegemonic heterosexual” - the ideological construction of particularalignment of sex, gender and desire that posits itself as natural, inevitableand eternal.[66] Heterosexuality becomes the site where the male sexedmasculine man’s desire for the female sexed feminine woman is privileged6 5Zaid Al Baset, “Section 377 and the Myth of Heterosexuality”, Jindal Global Law

Review, Vol. 4 (2012).

6 6Ibid.

Aover all other forms of sexual desire and becomes pervasive norm thatstructures all societal structures.[67]

The expression ‘carnal’ is susceptible to wide range of meanings.Among them are:

“sexual, sensual, erotic, lustful, lascivious, libidinous, lecherous, licentious,Blewd, prurient, salacious, coarse, gross, lubricious, venereal.”

That’s not all. The word incorporates meanings such as: ”physical,bodily, corporeal and of the flesh.” The late Middle English origin of‘carnal’ derives from Christian Latin ‘carnalis’, from caro, carn – ‘flesh’.At one end of the spectrum ‘carnal’ embodies something which relatesCto the physical feelings and desires of the body. In another sense, theword implies ‘a relation to the body or flesh as the state of basic physicalappetites’. In pejorative sense, it conveys grossness or lewdness. Thesimple question which we need to ask ourselves is whether liberty andequality can be made to depend on such vagueness of expression andindeterminacy of content. Section 377 is based on moral notion thatDintercourse which is lustful is to be frowned upon. It finds the solepurpose of intercourse in procreation. In doing so, it imposes criminalsanctions upon basic human urges, by targeting some of them as againstthe order of nature. It does so, on the basis of social hypocrisy whichthe law embraces as its own. It would have human beings lead sanitizedElives, in which physical relationships are conditioned by moral notion ofwhat nature does or does not ordain. It would have human beings accepta way of life in which sexual contact without procreation is an aberrationand worse still, penal. It would ask of section of our citizens that whilelove, they may, the physical manifestation of their love is criminal. Thisis manifest arbitrariness writ large.F

If it is difficult to locate any intelligible differentia betweenindeterminate terms such as ‘natural’ and ‘unnatural’, then it is evenmore problematic to say that classification between individuals whosupposedly engage in ‘natural’ intercourse and those who engage in‘carnal intercourse against the order of nature’ can be legally valid.GIn addition to the problem regarding the indeterminacy of the terms,

In addition to the problem regarding the indeterminacy of the terms,there is logical fallacy in ascribing legality or illegality to the ostensiblyuniversal meanings of ‘natural’ and ‘unnatural’ as is pointed out in ascholarly article.[68] Basheer, et al make this point effectively:

67 Ibid.H68 Supra note 61.

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“From the fact that something occurs naturally, it does notnecessarily follow that it is socially desirable. Similarly, acts thatare commonly perceived to be ‘unnatural’ may not necessarilydeserve legal sanction. Illustratively, consider person who walkson his hands all the time. Although this may be unnatural, it iscertainly not deserving of legal censure.

…In fact, several activities that might be seen to contravene theorder of nature (heart transplants, for example) are beneficialand desirable. Even if an unnatural act is harmful to the extentthat it justifies criminal sanctions being imposed against it, thereason for proscribing such an act would be that the act is harmful,and not that it is unnatural.”

Indeed, there is no cogent reasoning to support the idea that behaviourthat may be uncommon on the basis of mere statistical probability isnecessarily abnormal and must be deemed ethically or morally wrong.[69]Even behaviour that may be considered wrong or unnatural cannot becriminalised without sufficient justification given the penal consequencesthat follow. Section 377 becomes blanket offence that coverssupposedly all types of non-procreative ‘natural’ sexual activity withoutany consideration given to the notions of consent and harm.30. The meaning of ‘natural’ as understood in cases such asKhanu v. Emperor[70], which interpreted natural sex to mean only sexthat would lead to procreation, would lead to absurd consequences. Someof the consequences have been pointed out thus:

“The position of the court was thus that ‘natural’ sexualintercourse is restricted not only to heterosexual coitus, but furtheronly to acts that might possibly result in conception. Such aformulation of the concept of ‘natural’ sex excludes not only the useof contraception, which is likely to have fallen outside the hegemonicview of normative sexuality at the time, but also heterosexual coituswhere one or both partners are infertile, or during the ‘safe’period of woman’s menstrual cycle. It is perhaps unnecessaryto state that the formulation also excludes oral sex betweenheterosexual partners and any homosexual act whatsoever.”[71]

6 9Sex, Morality and the Law, (Lori Gruen and George Panichas eds.), Routledge(1996).

7 0AIR (1925) Sind. 286

7 1Andrew Davis, “The Framing of Sex: Evaluating Judicial Discourse on the‘Unnatural Offences’”, Alternative Law Journal, Vol. 5 (2006).

AThe indeterminacy and vagueness of the terms ‘carnal intercourse’ and‘order of nature’ renders Section 377 constitutionally infirm as violatingthe equality clause in Article 14.

While it is evident that the classification is invalid, it is useful to understandits purported goal by looking at the legislative history of Section 377. InBMacaulay’s first draft of the Penal Code, the predecessor to presentday Section 377 was Clause 361[72] which provided severe punishmentfor touching another for the purpose of ‘unnatural’ lust. Macaulayabhorred the idea of any debate or discussion on this ‘heinous crime’.India’s anti-sodomy law was conceived, legislated and enforced by theBritish without any kind of public discussion.[73] So abhorrent wasChomosexuality to the moral notions which he espoused, that Macaulaybelieved that the idea of discussion was repulsive. Section 377 revealsonly the hatred, revulsion and disgust of the draftsmen towards certainintimate choices of fellow human beings. The criminalization of acts inSection 377 is not based on legally valid distinction, “but on broad

Dmoral proclamations that certain kinds of people, singled out by theirprivate choices, are less than citizens – or less than human.”[74]

31.The Naz judgement has been criticised on the ground that eventhough it removed private acts between consenting adults from thepurview of Section 377, it still retained the section along with itsEproblematic terminology regarding the ‘order of nature’:[75]

“…even though the acts would not be criminal, they would stillbe categorized as “unnatural” in the law. This is not an idleterminological issue. As Durkheim noted over hundred yearsago, the law also works as tool that expresses social relations.[76]FHence, this expression itself is problematic from dignitarianstandpoint, otherwise so eloquently referred to by the judgement.”

7 2Clause 361 stated “Whoever, intending to gratify unnatural lust, touches, for thatpurpose, any person, or any animal, or is by his own consent touched by anyperson, for the purpose of gratifying unnatural lust, shall be punished withimprisonment of either description for term which may extend to fourteen yearsGand must not be less than two years, and shall also be liable to fine.”

7 3Alok Gupta, “Section 377 and the Dignity of Indian Homosexuals” The Economicand Political Weekly, Vol. 41 (2006).7 4Supra note 25.

7 5John Sebastian, “The opposite of unnatural intercourse: understanding Section 377through Section 375, Indian Law Review, Vol. 1 (2018).7 6Emile Durkheim, The Division of Labour in Society, Macmillan (1984).H

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At this point, we look at some of the legislative changes that have takenplace in India’s criminal law since the enactment of the Penal Code.The Criminal Law (Amendment) Act 2013 imported certainunderstandings of the concept of sexual intercourse into its expansivedefinition of rape in Section 375 of the Indian Penal Code, which nowgoes beyond penile–vaginal penetrative intercourse.[77] It has been arguedthat if ‘sexual intercourse’ now includes many acts which were coveredunder Section 377, those acts are clearly not ‘against the order of nature’anymore. They are, in fact, part of the changed meaning of sexualintercourse itself. This means that much of Section 377 has not onlybeen rendered redundant but that the very word ‘unnatural’ cannot havethe meaning that was attributed to it before the 2013 amendment.[78]Section 375 defines the expression rape in an expansive sense, to includeany one of several acts committed by man in relation to woman. Theoffence of rape is established if those acts are committed against her

7 7375. man is said to commit “rape” if he- (a) penetrates his penis, to any extent,into the vagina, mouth, urethra or anus of woman or makes her to do so with himor any other person; or (b) inserts, to any extent, any object or part of the body,not being the penis, into the vagina, the urethra or anus of woman or makes her todo so with him or any other person; or (c) manipulates any part of the body of awoman so as to cause penetration into the vagina, urethra, anus or any part of bodyof such woman or makes her to do so with him or any other person; or (d) applieshis mouth to the vagina, anus, urethra of woman or makes her to do so with himor any other person, under the circumstances falling under any of the followingseven descriptions:— First.—Against her will. Secondly.—Without her consent.Thirdly.—With her consent, when her consent has been obtained by putting her orany person in whom she is interested, in fear of death or of hurt. Fourthly.—Withher consent, when the man knows that he is not her husband and that her consentis given because she believes that he is another man to whom she is or believesherself to be lawfully married. Fifthly.—With her consent when, at the time ofgiving such consent, by reason of unsoundness of mind or intoxication or theadministration by him personally or through another of any stupefying orunwholesome substance, she is unable to understand the nature and consequencesof that to which she gives consent Sixthly.—With or without her consent, when sheis under eighteen years of age. Seventhly.—When she is unable to communicateconsent. Explanation 1.—For the purposes of this section, “vagina” shall alsoinclude labia majora. Explanation 2.—Consent means an unequivocal voluntaryagreement when the woman by words, gestures or any form of verbal or non-verbalcommunication, communicates willingness to participate in the specific sexual act:Provided that woman who does not physically resist to the act of penetrationshall not by the reason only of that fact, be regarded as consenting to the sexualactivity. Exception 1.—A medical procedure or intervention shall not constituterape. Exception 2.—Sexual intercourse or sexual acts by man with his own wife,the wife not being under fifteen years of age, is not rape.7 8Supra note 75, at pages 232-249.

Awill or without the free consent of the woman. Section 375 is clearindicator that in heterosexual context, certain physical acts between aman and woman are excluded from the operation of penal law if theyare consenting adults. Many of these acts which would have been withinthe purview of Section 377, stand excluded from criminal liability whenthey take place in the course of consensual heterosexual contact.BParliament has ruled against them being regarded against the ‘order ofnature’, in the context of Section 375. Yet those acts continue to besubject to criminal liability, if two adult men or women were to engage inconsensual sexual contact. This is violation of Article 14.

Nivedita Menon opposes the idea that ‘normal’ sexuality springs fromCnature and argues that this idea of ‘normal’ sexuality is cultural andsocial construct:[79]

“Consider the possibility that rules of sexual conduct are asarbitrary as traffic rules, created by human societies to maintaina certain sort of order, and which could differ from place toDplace — for example, you drive on the left in India and on theright in the USA. Further, let us say you question the sort ofsocial order that traffic rules keep in place. Say you believe thattraffic rules in Delhi are the product of model of urban planningthat privileges the rich and penalizes the poor, that this orderEencourages petrol-consuming private vehicles and discouragesforms of transport that are energy-saving — cycles, publictransport, pedestrians. You would then question that model ofthe city that forces large numbers of inhabitants to travel longdistances every day simply to get to school andwork. You coulddebate the merits of traffic rules and urban planning on the groundsFof convenience, equity and sustainability of natural resources —at least, nobody could seriously argue that any set of traffic rulesis natural.”

32. The struggle of citizens belonging to sexual minorities is locatedwithin the larger history of the struggles against various forms of socialGsubordination in India. The order of nature that Section 377 speaks of isnot just about non-procreative sex but is about forms of intimacy whichthe social order finds “disturbing”.[80] This includes various forms of

7 9Nivedita Menon, “How Natural is Normal? Feminism and CompulsoryHeterosexuality”, In Because I have Voice, Queer Politics in India, (Narrain andBhan eds.) Yoda Press (2005).H8 0Supra note 7.

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transgression such as inter-caste and inter-community relationships whichare sought to be curbed by society. What links LGBT individuals tocouples who love across caste and community lines is the fact that bothare exercising their right to love at enormous personal risk and in theprocess disrupting existing lines of social authority.[81] Thus, re-imaginationof the order of nature as being not only about the prohibition of non-procreative sex but instead about the limits imposed by structures suchas gender, caste, class, religion and community makes the right to lovenot just separate battle for LGBT individuals, but battle for all.[82]

Beyond physicality: sex, identity and stereotypes

“Only in the most technical sense is this case about who maypenetrate whom where. At practical and symbolical level it isabout the status, moral citizenship and sense of self-worth of asignificant section of the community. At more general andconceptual level, it concerns the nature of the open, democraticand pluralistic society contemplated by the Constitution.”[83]

33. The Petitioners contend that (i) Section 377 discriminates onthe basis of sex and violates Articles 15 and 16; and (ii) Discriminationon the ground of sexual orientation is in fact, discrimination on the groundof sex. The intervenors argue that (i) Section 377 criminalizes acts andnot people; (ii) It is not discriminatory because the prohibition on analand oral sex applies equally to both heterosexual and homosexual couples;and (iii) Article 15 prohibits discrimination on the ground of ‘sex’ whichcannot be interpreted so broadly as to include ‘sexual orientation’.

34. When the constitutionality of law is challenged on the groundthat it violates the guarantees in Part III of the Constitution, what isdeterminative is its effect on the infringement of fundamental rights.[84]This affords the guaranteed freedoms their true potential against claimby the state that the infringement of the right was not the object of theprovision. It is not the object of the law which impairs the rights of thecitizens. Nor is the form of the action taken determinative of the protection

8 1Ibid.

8 2Supra note 7.

8 3The National Coalition for Gay and Lesbian Equality v. The Minister of Justice,1999 (1) SA 6 (CC), Sachs J., concurring.

8 4Re. the Kerala Education Bill, AIR 1958 SC 956 at para 26; Sakal Papers v Unionof India, AIR 1962 SC 305 at para 42; R.C. Cooper v Union of India, (1970) 1 SCC

248 at paras 43, 49; Bennett Coleman v. Union of India, AIR (1972) 2 SCC 788 atpara 39; Maneka Gandhi v Union of India, (1978) 1 SCC 248 at para 19.

Athat can be claimed. It is the effect of the law upon the fundamentalright which calls the courts to step in and remedy the violation. Theindividual is aggrieved because the law hurts. The hurt to the individualis measured by the violation of protected right. Hence, while assessingwhether law infringes fundamental right, it is not the intention of thelawmaker that is determinative, but whether the effect or operation ofBthe law infringes fundamental rights.

Article 15 of the Constitution reads thus:

“15. (1) The State shall not discriminateagainst any citizen ongrounds onlyof religion, race, caste, sex, place of birth or any ofCthem.” (Emphasis supplied)

Article 15 prohibits the State from discriminating on grounds only of sex.Early judicial pronouncements adjudged whether discrimination aimedonly at sex is covered by Article 15 or whether the guarantee is attractedeven to discrimination on the basis of sex and some other groundsD(‘Sex plus’). The argument was that since Article 15 prohibiteddiscrimination on only specified grounds, discrimination resulting from aspecified ground coupled with other considerations is not prohibited. Theview was that if the discrimination is justified on the grounds of sex andanother factor, it would not be covered by the prohibition in Article 15.

E35.One of the earliest cases decided in 1951 was by the CalcuttaHigh Court in Sri SriMahadev Jiew v. Dr. Sen[85]. Under OrderXXV, R. 1 of the Code of Civil Procedure, men could be made liable forpaying security cost if they did not possess sufficient movable propertyin India only if they were residing outside India. However, women wereresponsible for paying such security, regardless of whether or not theyFwere residing in India. In other words, the law drew distinction betweenresident males who did not have sufficient immovable property, andresident females who did not have sufficient immovable property.Upholding the provision, the Calcutta High Court held:“31. Article 15(1) of the Constitution pro-vides, inter alia, — TheGState shall not discriminate against any citizen on grounds onlyof sex. The word ‘only’ in this Article is of great importance andsignificance which should not be missed. The impugned law mustbe shown to discriminate because of sex alone. If other factorsin addition to sex come into play in making the

H85 AIR (1951) Cal. 563.

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discriminatory law, then such discrimination does not, inmy judgment, come within the provision of Article 15(1)of the Constitution.” (Emphasis supplied)

This interpretation was upheld by this Court in Air India v. NergeshMeerza (“Nergesh Meerza”).[86 ]Regulations 46 and 47of the Air IndiaEmployees’ Service Regulations were challenged for causing disparitybetween the pay and promotional opportunities of men and women in-flight cabin crew. Under Regulation 46, while the retirement age formale Flight Pursers was fifty eight, Air Hostesses were required to retireat thirty five, or on marriage (if they married within four years of joiningservice), or on their first pregnancy, whichever occurred earlier. Thisperiod could be extended in the absolute discretion of the ManagingDirector. Even though the two cadres were constituted on the groundsof sex, the Court upheld the Regulations in part and opined:

“68. Even otherwise, what Articles 15(1) and 16(2) prohibitis that discrimination should not be made only and only onthe ground of sex. These Articles of the Constitution donot prohibit the State from making discrimination on theground of sex coupled with other considerations.”(Emphasis supplied)

36. This formalistic interpretation of Article 15 would render theconstitutional guarantee against discrimination meaningless. For it wouldallow the State to claim that the discrimination was based on sex andanother ground (‘Sex plus’) and hence outside the ambit of Article 15.Latent in the argument of the discrimination, are stereotypical notions ofthe differences between men and women which are then used to justifythe discrimination. This narrow view of Article 15 strips the prohibitionon discrimination of its essential content. This fails to take into accountthe intersectional nature of sex discrimination, which cannot be said tooperate in isolation of other identities, especially from the socio-politicaland economic context. For example, rule that people over six feetwould not be employed in the army would be able to stand an attack onits disproportionate impact on women if it was maintained that thediscrimination is on the basis of sex and height. Such formalistic viewof the prohibition in Article 15, rejects the true operation of discrimination,which intersects varied identities and characteristics.

A37. divergent note was struck by this Court in Anuj Garg v.Hotel Association of India[87].Section 30 of the Punjab Excise Act,1914 prohibited the employment of women (and men under 25 years)in premises where liquor or other intoxicating drugs were consumedby the public. Striking down the law as suffering from “incurablefixations of stereotype morality and conception of sexual role”, theBCourt held:

“42… one issue of immediate relevance in such cases is theeffect of the traditional cultural norms as also the state ofgeneral ambience in the society which women have to facewhile opting for an employment which is otherwise completelyCinnocuous for the male counterpart...”

“43…It is state’s duty to ensure circumstances of safety whichinspire confidence in women to discharge the duty freely inaccordance to the requirements of the profession they chooseto follow. Any other policy inference (such as the one embodiedunder section 30) from societal conditions would be oppressiveDon the women and against the privacy rights.” (Emphasis supplied)

The Court recognized that traditional cultural norms stereotype genderroles. These stereotypes are premised on assumptions about socially

ascribed roles of gender which discriminate against women. The CourtEheld that “insofar as governmental policy is based on the aforesaid culturalnorms, it is constitutionally invalid.” In the same line, the Court also citedwith approval, the judgments of the US Supreme Court in Frontiero v.Richardson[88],and United States v. Virginia[89],and Justice Marshall’sdissent in Dothard v. Rawlinson[90],The Court grounded the anti-Fstereotyping principle as firmly rooted in the prohibition under Article 15.

87(2008) 3 SCC 1

88411 U.S. 677 (1973). The case concerned statute that allowed service-members toclaim additional benefits if their spouse was dependent on them. male claimant wouldautomatically be entitled to such benefits while female claimant would have to provethat her spouse was dependent on her for more than half his support. The Court struckdown this statute stating that the legislation violated the equal protection clause of theG89American Constitution.

89518 U.S. 515 (1996). The case concerned the Virginia Military Institute (VMI), whichhad stated objected of producing “citizen-soldiers.” However, it did not admit women.The Court held that such provision was unconstitutional and that there were no“fixed notions concerning the roles and abilities of males and females.”90433 U.S. 321 (1977).The case concerned an effective bar on females for the positionof guards or correctional counsellors in the Alabama State Penitentiary system. JusticeMarshall’s dissent held that prohibition of women in ‘contact positions’ violated theHTitle VII guarantee.

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In National Legal Services Authority v. Union of India (“NALSA”)[91],while dealing with the rights of transgender persons under the Constitution,this Court opined:

“66. Articles 15 and 16 sought to prohibit discrimination onthe basis of sex, recognizing that sex discrimination is ahistorical fact and needs to be addressed. Constitutionmakers, it can be gathered, gave emphasis to thefundamental right against sex discrimination so as to preventthe direct or indirect attitude to treat people differently, forthe reason of not being in conformity with stereotypicalgeneralizations of binary genders. Both gender andbiological attributes constitute distinct components of sex.Biological characteristics, of course, include genitals,chromosomes and secondary sexual features, but genderattributes include one’s self image, the deep psychologicalor emotional sense of sexual identity and character. Thediscrimination on the ground of ‘sex’ Under Articles 15 and16, therefore, includes discrimination on the ground ofgender identity.” (Emphasis supplied)

This approach, in my view, is correct.

In Nergesh Meerza, this Court held that where persons of particularclass, in view of the “special attributes, qualities” are treated differentlyin ‘public interest’, such classification would not be discriminatory.The Court opined that since the modes of recruitment, promotionalavenues and other matters were different for Air Hostesses, theyconstituted class separate from male Flight Pursers. This, despite notingthat “a perusal of the job functions which have been detailed in theaffidavit, clearly shows that the functions of the two, though obviouslydifferent overlap on some points but the difference, if any, is one ofdegree rather than of kind.”38. The Court did not embark on the preliminary enquiry as towhether the initial classification between the two cadres, being groundedin sex, was violative of the constitutional guarantee against discrimination.Referring specifically to the three significant disabilities that theRegulations imposed on Air Hostesses, the Court held that “there can beno doubt that these peculiar conditions do form part of the Regulations

Agoverning Air Hostesses but once we have held that Air Hostesses forma separate category with different and separate incidents thecircumstances pointed out by the petitioners cannot amount todiscrimination so as to violate Article 14 of the Constitution on thisground.”

B39. The basis of the classification was that only men could becomemale Flight Pursers and only women could become Air Hostesses. Thevery constitution of the cadre was based on sex. What this meant was,that to pass the non-discrimination test found in Article 15, the Statemerely had to create two separate classes based on sex and constitutetwo separate cadres. That would not be discriminatory.C

The Court went step ahead and opined:

“80…Thus, the Regulation permits an AH to marry at the age of23 if she has joined the service at the age of 19 which is by allstandards very sound and salutary provision. Apart fromDimproving the health of the employee, it helps good inthe promotion and boosting up of our family planningprogramme. Secondly, if woman marries near about theage of 20 to 23 years, she becomes fully mature and thereis every chance of such marriage proving success, allthings being equal. Thirdly, it has been rightly pointed outEto us by the Corporation that if the bar of marriage withinfour years of service is removed then the Corporation willhave to incur huge expenditure in recruiting additionalAHs either on temporary or on ad hoc basis to replacethe working AHs if they conceive and any period short ofFfour years would be too little time for the Corporation tophase out such an ambitious plan.” (Emphasis supplied)

40. strong stereotype underlines the judgment. The Court didnot recognize that men were not subject to the same standards withrespect to marriage. It holds that the burdens of health and family planningGrest solely on women. This perpetuates the notion that the obligations ofraising family are those solely of the woman. In dealing with the provisionfor termination of service on the first pregnancy, the Court opined that asubstituted provision for termination on the third pregnancy would be inthe “larger interest of the health of the Air Hostesses concerned as alsofor the good upbringing of the children.” Here again, the Court’s viewH

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rested on stereotype. The patronizing attitude towards the role ofwomen compounds the difficulty in accepting the logic of NergeshMeerza. This approach, in my view, is patently incorrect.

41. discriminatory act will be tested against constitutional values.A discrimination will not survive constitutional scrutiny when it is groundedin and perpetuates stereotypes about class constituted by the groundsprohibited in Article 15(1). If any ground of discrimination, whether director indirect is founded on stereotypical understanding of the role of thesex, it would not be distinguishable from the discrimination which isprohibited by Article 15 on the grounds only of sex. If certaincharacteristics grounded in stereotypes, are to be associated with entireclasses of people constituted as groups by any of the grounds prohibitedin Article 15(1), that cannot establish permissible reason to discriminate.Such discrimination will be in violation of the constitutional guaranteeagainst discrimination in Article 15(1). That such discrimination is aresult of grounds rooted in sex and other considerations, can no longerbe held to be position supported by the intersectional understanding ofhow discrimination operates. This infuses Article 15 with true rigour togive it complete constitutional dimension in prohibiting discrimination.

The approach adopted the Court in Nergesh Meerza, is incorrect.

provision challenged as being ultra vires the prohibition of discriminationon the grounds only of sex under Article 15(1) is to be assessed not bythe objects of the state in enacting it, but by the effect that the provisionhas on affected individuals and on their fundamental rights. Any groundof discrimination, direct or indirect, which is founded on particularunderstanding of the role of the sex, would not be distinguishable fromthe discrimination which is prohibited by Article 15 on the grounds onlyof sex.

E.IFacial neutrality: through the looking glass

42. The moral belief which underlies Section 377 is that sexualactivities which do not result in procreation are against the ‘order ofnature’ and ought to be criminalized under Section 377. The intervenorssubmit that Section 377, criminalizes anal and oral sex by heterosexualcouples as well. Hence, it is urged that Section 377 applies equally to allconduct against the ‘order of nature’, irrespective of sexual orientation.This submission is incorrect. In NALSA this Court held that Section377, though associated with specific sexual acts, highlights certain

Aidentities. In Naz, the Delhi High Court demonstrated effectively howSection 377 though facially neutral in its application to certain acts, targetsspecific communities in terms of its impact:

“Section 377 IPC is facially neutral and it apparently targetsnot identities but acts, but in its operation it does end upBunfairly targeting particular community.The fact is thatthese sexual acts which are criminalised are associatedmore closely with one class of persons, namely, thehomosexuals as class. Section 377 IPC has the effect ofviewing all gay men as criminals. When everything associatedwith homosexuality is treated as bent, queer, repugnant, the wholeCgay and lesbian community is marked with deviance andperversity. They are subject to extensive prejudice becausewhat they are or what they are perceived to be, not becauseof what they do. The result is that significant group ofthe population is, because of its sexual nonconformity,Dpersecuted, marginalised and turned in on itself.”[ 92](Emphasis supplied)To this end, it chronicled the experiences of the victims of Section 377,relying on the extensive records and affidavits submitted by thePetitioners that brought to fore instances of custodial rape and torture,Esocial boycott, degrading and inhuman treatment and incarceration. Thecourt concluded that while Section 377 criminalized conduct, it created asystemic pattern of disadvantage, exclusion and indignity for the LGBTcommunity, and for individuals who indulge in non-heterosexual conduct.

43. Jurisprudence across national frontiers supports the principlethat facially neutral action by the State may have disproportionateFimpact upon particular class. In Europe, Directive 2006/54/EC ofthe European Parliament and of the Council of 5 July 2006 defines‘indirect discrimination’ as: “where an apparently neutral provision,criterion or practice would put persons of one sex at particulardisadvantage compared with persons of the other sex, unless thatGprovision, criterion or practice is objectively justified by legitimate aim,and the means of achieving that aim are appropriate and necessary.”

In Griggs v Duke Power Co.[93], the US Supreme Court, whilstrecognizing that African-Americans received sub-standard education due

92 Naz, at para 94.H93 401 U.S. 424 (1971)

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to segregated schools, opined that the requirement of an aptitude/intelligence test disproportionately affected African-Americancandidates. The Court held that “The Civil Rights Act” proscribes notonly overt discrimination but also practices that are fair in form, butdiscriminatory in operation.”

In Bilka-Kaufhaus GmbH v. Karin Weber von Hartz[94], the EuropeanCourt of Justice held that denying pensions to part-time employees ismore likely to affect women, as women were more likely to take uppart-time jobs. The Court noted:

“Article 119 of the EEC Treaty is infringed by department storecompany which excludes part-time employees from itsoccupational pension scheme, where that exclusion affects afar greater number of women than men, unless theundertaking shows that the exclusion is based on objectivelyjustified factors unrelated to any discrimination on grounds ofsex.” (Emphasis supplied)

The Canadian Supreme Court endorsed the notion of disparate impactwhere an action has disproportionate impact on class of persons. InAndrews v. Law Society of British Columbia[95], the Court noted:

“Discrimination is distinction which, whether intentional or notbut based on grounds relating to personal characteristics of theindividual or group, has an effect which imposes disadvantagesnot imposed upon others or which withholds or limits access toadvantages available to other members of society. Distinctionsbased on personal characteristics attributed to anindividual solely on the basis of association with groupwill rarely escape the charge of discrimination, while thosebased on an individual’s merits and capacities will rarely be soclassed.” (Emphasis supplied)

Thus, when an action has “the effect of imposing burdens, obligations,or disadvantages on such individual or group not imposed upon others, orwhich withholds or limits access to opportunities, benefits, and advantagesavailable to other members of society”,[96] it would be suspect.

94 (1986) ECR 1607

95 (1989) 1 SCR 143

96 Ibid.

AIn City Council of Pretoria v. Walker[97], the Constitutional Court ofSouth Africa observed:

“The concept of indirect discrimination, … was developedprecisely to deal with situations where discrimination lay disguisedbehind apparently neutral criteria or where persons alreadyBadversely hit by patterns of historic subordination had theirdisadvantage entrenched or intensified by the impact of measuresnot overtly intended to prejudice them.

In many cases, particularly those in which indirect discriminationis alleged, the protective purpose would be defeated if the personsCcomplaining of discrimination had to prove not only that theywere unfairly discriminated against but also that the unfairdiscrimination was intentional. This problem would be particularlyacute in cases of indirect discrimination where there is almostalways some purpose other than discriminatory purposeinvolved in the conduct or action to which objection is taken.”D(Emphasis supplied)

E.2Deconstructing the polarities of binary genders

44. Section 377 criminalizes behaviour that does not conform tothe heterosexual expectations of society. In doing so it perpetuates aEsymbiotic relationship between anti-homosexual legislation and traditionalgender roles. The notion that the nature of relationships is fixed andwithin the ‘order of nature’ is perpetuated by gender roles, thus excludinghomosexuality from the narrative. The effect is described as follows:

“Cultural homophobia thus discourages social behavior thatappears to threaten the stability of heterosexual gender roles.FThese dual normative standards of social and sexual behaviorconstruct the image of gay man as abnormal because hedeviates from the masculine gender role by subjecting himself inthe sexual act to another man.”[98]

If individuals as well as society hold strong beliefs about gender roles –Gthat men (to be characteristically reductive) are unemotional, sociallydominant, breadwinners that are attracted to women and women areemotional, socially submissive, caretakers that are attracted to men – it

9 7(1998) 3 BCLR 2579 8Elvia R. Arriola, “Gendered Inequality: Lesbians, Gays, and Feminist Legal Theory”,HBerkeley Women’s Law Journal, Vol. 9 (1994), at pages 103-143.

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is unlikely that such persons or society at large will accept that the ideathat two men or two women could maintain relationship. If such adenial is further grounded in law, such as Article 377 the effect is toentrench the belief that homosexuality is an aberration that falls outsidethe ‘normal way of life.’

45. An instructive article by Zachary A. Kramer,[99 ]notes that aheterosexist society both expects and requires men and women to engagein only opposite-sex sexual relationships. The existence of same-sexrelationships is, therefore, repugnant to heterosexist societalexpectations.Kramer argues that:

“Discrimination against gays and lesbians reinforces traditionalsex roles.The primary thrust of such discrimination is the gender-based stigmatization of gays and lesbians, deriving from the ideathat homosexuality departs from traditional gender roles and that“real” men and women should not be attracted to member ofthe same sex. This portrayal relies heavily on what Bennett Caperscalls the “binary gender system.”[100]

46. Bennett Capers defines the binary gender system as based in“heterosexism,” which he defines as the “institutionalized valorization ofheterosexual activity.” Capers, in fact suggests that:

“The sanctioning of discrimination based on sexual orientationperpetuates the subordination not only of lesbians and gays butof women as well.

Heterosexism, then, in its reliance on bipolar system of sexand gender, reinforces sexism in two ways. First, by penalizingpersons who do not conform to bipolar gender system andrewarding men and women who do, the heterosexist hegemonyperpetuates schema that valorizes passive, dependent women,thus contributing to sexism. Second, heterosexism reinforcessexism because it subordinates the female sex through itshierarchical polarity. Because heterosexism perpetuates sexism,the extension of substantial rights to lesbians and gays, who bydefinition challenge heterosexism and the concept of binary

9 9Zachary A. Kramer, “The Ultimate Gender Stereotype: Equalizing Gender-Conforming and Gender-Nonconforming Homosexuals under Title VII”, Universityof Illinois Law Review (2004), at page 490.100 Ibid.

Agender system, would result in challenge to sexism and to malepower.” [101]

In other words, one cannot simply separate discrimination based on sexualorientation and discrimination based on sex because discrimination basedon sexual orientation inherently promulgates ideas about stereotypicalBnotions of sex and gender roles. Taking this further, Andrew Koppelmanargues that:

“Similarly, sodomy laws discriminate on the basis of sex-forexample, permitting men, but not women, to have sex withwomen-in order to impose traditional sex roles. The Court hasCdeemed this purpose impermissible in other contexts because itperpetuates the subordination of women. The same concernapplies with special force to the sodomy laws, because theirfunction is to maintain the polarities of gender on which thesubordination of women depends.”[102]

DKoppelman thus suggests that the taboo against homosexuals “policesthe boundaries that separate the dominant from the dominated in socialhierarchy.”[103] He expands on this idea, using the analogy ofmiscegenation, or the interbreeding of races:

“Do statutes that outlaw homosexual sex impose traditional sexEroles? One possible answer is that of McLaughlin [McLaughlinv. Florida]: The crime is by definition one of engaging in activityinappropriate to one’s sex. But these statutes’ inconsistency withthe Constitution’s command of equality is deeper. Like themiscegenation statutes, the sodomy statutes reflect and reinforcethe morality of hierarchy based on birth. Just as the prohibitionFof miscegenation preserved the polarities of race on which whitesupremacy rested, so the prohibition of sodomy preserves thepolarities of gender on which rests the subordination ofwomen.”[104]

G101 Bennett Capers, “Note, Sexual Orientation and Title VII”, Columbia Law Review(1991), at pages 1159, 1160, 1163.

102 Andrew Koppelman, “The Miscegenation Analogy: Sodomy Law as SexDiscrimination”, Yale Law Journal, Vol. 98 (1988), at page 147.

103 Andrew Koppelman, “Why Discrimination against Lesbians and Gay Men is SexDiscrimination”, New York University Law Review, Vol. 69 (1994).104 Supra note 102, at page 148.H

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Statutes like Section 377 give people ammunition to say “this is what aman is” by giving them law which says “this is what man is not.”Thus, laws that affect non-heterosexuals rest upon normativestereotype: “the bald conviction that certain behavior-for example, sexwith women-is appropriate for members of one sex, but not for membersof the other sex.”[105]

What this shows us is that LGBT individuals as well as those who do notconform to societal expectations of sexual behaviour defy genderstereotypes.

“The construction of gender stereotypes ultimately rests on theassumption that there are two opposite and mutually exclusivebiological sexes. The assumption of heterosexuality is central tothis gender binary. In patriarchal context, some of the mostserious transgressors are thus: woman who renounces mansexual partner or an individual assigned female at birth whorenounces womanhood, thereby rejecting the patriarchal systemand all other forms of male supervision and control, and anindividual assigned male at birth who embraces womanhood,thereby abandoning privilege in favor of that which is deemedsubservient, femininity.”[106]

Prohibition of sex discrimination is meant to change traditional practiceswhich legally, and often socially and economically, disadvantage personson the basis of gender. The case for gay rights undoubtedly seeks justicefor gays. But it goes well beyond the concern for the gay community.The effort to end discrimination against gays should be understood as anecessary part of the larger effort to end the inequality of the sexes.

“To be lesbian is to be perceived (labelled) as someone whohas stepped out of line, who has moved out of sexual/economicdependence on male, who is woman-identified. lesbian isperceived as someone who can live without man, and who istherefore (however illogically) against men. lesbian is perceivedas being outside the acceptable, routinized order of things. She isseen as someone who has no societal institutions to protect her

105 Ibid.

106 The Relationship between Homophobia, Transphobia, and Women’s Access toJustice for the Forthcoming CEDAW General Recommendation on Women’s Accessto Justice. Submitted to the United Nations Committee for the Elimination of AllForms of Discrimination against Women (2013).

Aand who is not privileged to the protection of individual males. Alesbian is perceived as threat to the nuclear family, to maledominance and control, to the very heart of sexism.”[107]

Commenting on its link with the essence of Article 15, Tarunabh Khaitanwrites:

“But the salience of case on discrimination against politicallydisempowered minority, based purely on the prejudices of amajority, goes beyond the issue of LGBTQ rights. Indianconstitutional democracy is at crossroads…Inclusiveness andpluralism lie at the heart of Article 15, which can be our surestCvehicle for the Court to lend its institutional authority to thesalience of these ideas in our constitutional identity.”[108]

47. Relationships that tend to undermine the male/female divideare inherently required for the maintenance of socially imposed genderinequality. Relationships which question the divide are picked up for targetDand abuse. Section 377 allows this. By attacking these gender roles,members of the affected community, in their move to build communitiesand relationships premised on care and reciprocity, lay challenge to theidea that relationships, and by extension society, must be divided alonghierarchical sexual roles in order to function. For members of thecommunity, hostility and exclusion aimed at them, drive them into hiding,Eaway from public expression and view. It is this discrimination faced bythe members of the community, which results in silence, and consequentlyinvisibility, creating barriers, systemic and deliberate, that effect theirparticipation in the work force and thus undermines substantive equality.In the sense that the prohibition of miscegenation was aimed to preserveFand perpetuate the polarities of race to protect white supremacy, theprohibition of homosexuality serves to ensure larger system of socialcontrol based on gender and sex.

48. report prepared by the International Commission of Jurists[109]has documented the persecution faced by the affected community due

107Suzanne Pharr, Homophobia: weapon of Sexism, Chardon Press (1988), atpage18.

108Tarunabh Khaitan, “Inclusive Pluralism or Majoritarian Nationalism: Article 15,Section 377 and Who We Really Are”, Indian Constitutional Law and Philosophy(2018).

109International Commission of Jurists, “Unnatural Offences” Obstacles to Justice inHIndia Based on Sexual Orientation and Gender Identity (2017).

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to the operation of Section 377. The report documents numerous violationsinflicted on people under the authority of Section 377. According to theNational Crime Records Bureau, 1279 persons in 2014 and 1491 in 2015were arrested under Section 377.[110]

The report documents instances of abuse from law enforcement agenciesand how the possibility of persecution under Section 377 preventsredress.[111] Even though acts such as blackmail, assault, and bodily crimesare punishable under penal laws, such methods of seeking redressal arenot accessed by those communities given the fear of retaliation orprosecution.

49. The petitioners in the present batch of cases have real lifenarrations of suffering discrimination, prejudice and hate. In AnweshPokkuluri v. UOI[112], with which this case is connected, the Petitionersare group of persons belonging to the LGBTQ community, each ofwhom has excelled in their fields but suffer immensely due to the operationof Section 377. To cope with the growing isolation among the community,these Petitioners, all alumni of Indian Institutes of Technology acrossthe country, created closed group called “Pravritti”. The group consistsof persons from the LGBTQ community. They are faculty members,students, alumni and anyone who has ever stayed on the campus of anyIIT in the country. The group was formed in 2012 to help members copewith loneliness and difficulties faced while accepting their identity alongwith holding open discussions on awareness.

50. Out of twenty Petitioners, sixteen are gay, two are bisexualwomen and one is bisexual man. One among the Petitioners is atranswoman. Three of the Petitioners explain that they suffered immensemental agony due to which they were on the verge of committing suicide.Another two stated that speaking about their sexual identity has beendifficult, especially since they did not have the support of their families,who, upon learning of their sexual orientation, took them for psychiatrictreatment to cure the so-called “disease.” The families of three Petitionersignored their sexual identity. One of them qualified to become an IndianAdministrative Services officer in an examination which more than4,00,000 people write each year. But he chose to forgo his dream becauseof the fear that he would be discriminated against on the ground of his

110 Ibid, at page 16.

111 Ibid, at pages 16 – 18.

112 Writ Petition (Criminal) No. 121 of 2018.

CDE

Asexuality. Some of them have experienced depression; others facedproblems focusing on their studies while growing up; one among themwas forced to drop out of high school as she was residing in girl’shostel where the authorities questioned her identity. The parents of oneof them brushed his sexuality under the carpet and suggested that hemarry woman. Some doubted whether or not they should continueBtheir relationships given the atmosphere created by Section 377. Severalwork in organisations that have policies protecting the LGBT communityin place. Having faced so much pain in their personal lives, the Petitionerssubmit that with the continued operation of Section 377, such treatmentwill be unabated.C51. In Navtej Johar v. Union of India[113], with which this caseis concerned, the Petitioners have set out multiple instances ofdiscrimination and expulsion. The following is realistic account:“While society, friends and family are accepting of my sexuality,I cannot be fully open about my identity and my relationshipsDbecause I constantly fear arrest and violence by thepolice…Without the existence of this section, the social prejudiceand shame that I have faced would have been considerablylessened…the fact that gay people, like me, are recognized onlyas criminals is deeply upsetting and denies me the dignity andErespect that I feel I deserve.[114]

Apart from the visible social manifestations of Section 377, the retentionof the provision perpetuates certain culture. The stereotypes fosteredby section 377 have an impact on how other individuals and non-stateinstitutions treat the community. While this behaviour is not sanctionedFby Section 377, the existence of the provision nonetheless facilitates itby perpetuating homophobic attitudes and making it almost impossiblefor victims of abuse to access justice. Thus, the social effects of such aprovision, even when it is enforced with zeal, is to sanction verbalharassment, familial fear, restricted access to public spaces and the lackof safe spaces. This results in denial of the self. Identities are obliterated,Gdenying the entitlement to equal participation and dignity under theConstitution. Section 377 deprives them of an equal citizenship. Referringto the effect of Foucault’s panopticon in inducing “a state of conscious

113Writ Petition (Criminal) No. 76 of 2016.

114Written Submission on Behalf of the Voices Against 377, in W.P. (CRL.) No. 76/H2016 at page 18.

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and permanent visibility that assures the automatic functioning ofpower”,[115] Ryan Goodman writes:

“The state’s relationship to lesbian and gay individuals under aregime of sodomy laws constructs similar, yet dispersed,structure of observation and surveillance. The public issensitive to the visibility of lesbians and gays as sociallyand legally constructed miscreants. Admittedly certainindividuals, namely those who are certified with variouslevels of state authority, are more directly linked to theextension of law’s power. Yet the social effects of sodomylaws are not tied to these specialized agents alone. Onthe ground level, private individuals also perform roles ofpolicing and controlling lesbian and gay lives in mimeticrelation to the modes of justice itself.”[116 ](Emphasis supplied)

The effect of Section 377, thus, is not merely to criminalize an act, but tocriminalize specific set of identities. Though facially neutral, the effectof the provision is to efface specific identities. These identities are thesoul of the LGBT community.

52. The Constitution envisaged transformation in the order ofrelations not just between the state and the individual, but also betweenindividuals: in constitutionalorder characterized by the Rule of Law,the constitutional commitment to egalitarianism and an anti-discriminatoryethos permeates and infuses these relations. In K S Puttaswamy v.Union of India (“Puttaswamy”)[117], this Court affirmed the individualas the bearer of the constitutional guarantee of rights. Such rights aredevoid of their guarantee when despite legal recognition, the social,economic and political context enables an atmosphere of continueddiscrimination.The Constitution enjoins upon every individual acommitment to constitutional democracy characterized by the principlesof equality and inclusion. In constitutional democracy committed to theprotection of individual dignity and autonomy, the state and every individualhas duty to act in manner that advances and promotes the constitutionalorder of values.

115 Michel Foucault, Discipline And Punish: the Birth of the Prison, Pantheon Books

(1977) at page 201.

116 Ryan Goodman, “Beyond the Enforcement Principle: Sodomy Laws, Social Norms,and Social Panoptics”, California Law Review, Vol. 89 (2001), at page 688.117 (2017) 10 SCC 1

DEF

ABy criminalizing consensual sexual conduct between two homosexualadults, Section 377 has become the basis not just of prosecutions but ofthe persecution of members of the affected community. Section 377leads to the perpetuation of culture of silence and stigmatization. Section377 perpetuates notions of morality which prohibit certain relationshipsas being against the ‘order of nature.’ criminal provision has sanctionedBdiscrimination grounded on stereotypes imposed on an entire class ofpersons on grounds prohibited by Article 15(1). This constitutesdiscrimination on the grounds only of sex and violates the guarantee ofnon-discrimination in Article 15(1)

53. History has been witness to systematic stigmatization andCexclusion of those who do not conform to societal standards of what isexpected of them. Section 377 rests on deep rooted gender stereotypes.In the quest to assert their liberties, people criminalized by the operationof the provision, challenge not only its existence, but also gamut ofbeliefs that are strongly rooted in majoritarian standards of what isD‘normal’. In this quest, the attack on the validity of Section 377 is achallenge to long history of societal discrimination and persecution ofpeople based on their identities. They have been subjugated to cultureof silence and into leading their lives in closeted invisibility. There mustcome time when the constitutional guarantee of equality and inclusionwill end the decades of discrimination practiced, based on majoritarianEimpulse of ascribed gender roles. That time is now.

Confronting the closet

54. The right to privacy is intrinsic to liberty, central to humandignity and the core of autonomy. These values are integral to the rightFto life under Article 21 of the Constitution. meaningful life is life offreedom and self-respect and nurtured in the ability to decide the courseof living. In the nine judge Bench decision in Puttaswamy, this Courtconceived of the right to privacy as natural and inalienable. The judgmentdelivered on behalf of four judges holds:

“Privacy is concomitant of the right of the individual to exerciseGcontrol over his or her personality. It finds an origin in the notionthat there are certain rights which are natural to or inherent in ahuman being. Natural rights are inalienable because they areinseparable from the human personality. The human element in lifeis impossible to conceive without the existence of natural rights”[118]

H118 Puttaswamy, at para 42.

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Justice Bobde, in his exposition on the form of the ‘right to privacy’ heldthus:

“Privacy, with which we are here concerned, eminently qualifiesas an inalienable natural right, intimately connected to two valueswhose protection is matter of universal moral agreement: theinnate dignity and autonomy of man.”[119]

Justice Nariman has written about the inalienable nature of the right toprivacy:

“…Fundamental rights, on the other hand, are contained in theConstitution so that there would be rights that the citizens of thiscountry may enjoy despite the governments that they may elect.This is all the more so when particular fundamental right likeprivacy of the individual is an “inalienable” right which inheres inthe individual because he is human being. The recognition ofsuch right in the fundamental rights chapter of the Constitution isonly recognition that such right exists notwithstanding the shiftingsands of majority governments…”[120]

Justice Sapre, in his opinion, has also sanctified ‘privacy’ as naturalright:

“In my considered opinion, “right to privacy of any individual” isessentially natural right, which inheresin every human being bybirth... It isindeed inseparable and inalienable…it is born withthe human being…”[121]

These opinions establish that the right to privacy is natural right. Thejudgment of four judges in Puttaswamy held that the right to sexualorientation is an intrinsic part of the right to privacy. To define the scopeof the right, it is useful to examine the discussion on the right to sexualorientation in judicial precedents of this Court.

55. Speaking for two judge Bench in NALSA, Justice K SRadhakrishnan elucidated upon the term ‘sexual orientation’ asdifferentiable from an individual’s ‘gender identity’, noting that:

“Sexual orientation refers to an individual’s enduring physical,romantic and/or emotional attraction to another person. Sexual

119 Puttaswamy, at para 392.

120 Puttaswamy, at para 490.

121 Puttaswamy at para 557.

Aorientation includes transgender and gender-variant people withheavy sexual orientation and their sexual orientation may or maynot change during or after gender transmission, which alsoincludes homo-sexuals, bysexuals, heterosexuals, asexual etc.Gender identity and sexual orientation, as already indicated, aredifferent concepts. Each person’s self-defined sexual orientationBand gender identity is integral to their personality and is one ofthe most basic aspects of self-determination, dignity andfreedom…”[122]

Puttaswamy rejected the “test of popular acceptance” employed bythis Court in Koushal and affirmed thatsexual orientation is aCconstitutionally guaranteed freedom:

“…The guarantee of constitutional rights does not depend upontheir exercise being favourably regarded by majoritarian opinion.The test of popular acceptance does not furnish valid basis todisregard rights which are conferred with the sanctity ofDconstitutional protection. Discrete and insular minorities facegrave dangers of discrimination for the simple reason that theirviews, beliefs or way of life do not accord with the ‘mainstream’.Yet in democratic Constitution founded on the rule of law, theirrights are as sacred as those conferred on other citizens to protectEtheir freedoms and liberties. Sexual orientation is an essentialattribute of privacy. Discrimination against an individual on thebasis of sexual orientation is deeply offensive to the dignity andself-worth of the individual. Equality demands that the sexualorientation of each individual in society must be protected on aneven platform. The right to privacy and the protection of sexualForientation lie at the core of the fundamental rights guaranteedby Articles 14, 15 and 21 of the Constitution.”[123]

Rejecting the notion that the rights of the LGBT community can beconstrued as illusory, the court held that the right to privacy claimed bysexual minorities is constitutionally entrenched right:G

“…The rights of the lesbian, gay, bisexual and transgenderpopulation cannot be construed to be “so-called rights”. Theexpression “so-called” seems to suggest the exercise of liberty

122 NALSA, at para 22.H123 Puttaswamy, at para 144.

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in the garb of right which is illusory. This is an inappropriateconstruction of the privacy based claims of the LGBT population.Their rights are not “so-called” but are real rights founded onsound constitutional doctrine. They inhere in the right to life.They dwell in privacy and dignity. They constitute the essenceof liberty and freedom. Sexual orientation is an essentialcomponent of identity. Equal protection demands protection ofthe identity of every individual without discrimination.”[124]

Justice Kaul, concurring with the recognition of sexual orientation as anaspect of privacy, noted that:

“…The sexual orientation even within the four walls of the housethus became an aspect of debate. I am in agreement with theview of Dr. D.Y. Chandrachud, J., who in paragraphs 144 to 146of his judgment, states that the right of privacy cannot be denied,even if there is miniscule fraction of the population which isaffected. The majoritarian concept does not apply to Constitutionalrights and the Courts are often called up on to take what may becategorized as non-majoritarian view, in the check and balanceof power envisaged under the Constitution of India. One’s sexualorientation is undoubtedly an attribute of privacy…”[125]

With these observations by five of the nine judges in Puttaswamy,thebasis on which Koushal upheld the validity of Section 377 stands erodedand even disapproved.

56.We must now consider the impact of Section 377 on theexercise of the right to privacy by sexual minorities. Legislation does notexist in vacuum. The social ramifications of Section 377 are enormous.While facially Section 377 only criminalizes certain “acts”, and notrelationships, it alters the prism through which member of the LGBTQis viewed. Conduct and identity are conflated.[126] The impact ofcriminalising non-conforming sexual relations is that individuals who falloutside the spectrum of heteronormative[127] sexual identity are perceivedas criminals.[128]

124 Puttaswamy, at para 145.

125 Puttaswamy, at para 647.

126 Supra note 116, at page 689.

127 The expression heteronormative is used to denote or relate to world view thatpromotes heterosexuality as the normal or preferred sexual orientation.

128 Supra note 116, at page 689.

A57. World over, sexual minorities have struggled to find acceptancein the heteronormative structure that is imposed by society. In her booktitled ‘Epistemology of the Closet’,[129] Eve Sedgwick states that “thecloset is the defining structure for gay oppression in this century.” Thecloset is symbolic of the exclusion faced by them:

B“Closets exist and they hide social information. They hide certainsocially proscribed sexual desires, certain unnamable sexual actsdeemed ‘unnatural‘ by the cultural context and law, certainidentities which dare not speak their name and certain forms ofbehaviour which can make an individual susceptible to stigmaand oppression. The closet does not simply hide this susceptibility;Cit hides stigma and oppression itself. It marks the silencing ofdifferent voices, silence which is achieved by gross violationof lives that inhabit the closet, through both violence and paininflicted by significant others both within and without the closetand instances of self-inflicted pain and violence. The closet alsoDhides pleasure, myriad sexual expressions and furtive encountersthat gratify the self. The closet also conceals the possibility ofdisease and death.”[130]

The existing heteronormative framework – which recognises only sexualrelations that conform to social norms – is legitimized by the taint ofE‘unnaturalness’ that Section 377 lends to sexual relations outside thisframework. The notion of ‘unnatural acts’, viewed in myopic terms of a“fixed procreational model of sexual functioning”, is improperly appliedto sexual relations between consenting adults.[131] Sexual activity betweenadults and based on consent must be viewed as “natural expression”of human sexual competences and sensitivities.[132] The refusal to acceptFthese acts amounts to denial of the distinctive human capacities forsensual experience outside of the realm of procreative sex.[133]

58. To deny the members of the LGBT community the fullexpression of the right to sexual orientation is to deprive them of their

G129 Eve Kosofsky Sedgwick, Epistemology of the Closet, University of CaliforniaPress (1990).

130 Supra note 65, at page 102.

131 David A. J. Richards, “Sexual Autonomy and the Constitutional Right to Privacy:A Case Study in Human Rights and the Unwritten Constitution”, Hastings LawJournal, Vol. 30, at page 786.132 Ibid.H133 Ibid.

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entitlement to full citizenship under the Constitution. The denial of theright to sexual orientation is also denial of the right to privacy. Theapplication of Section 377 causes deprivation of the fundamental rightto privacy which inheres in every citizen. This Court is entrusted withthe duty to act as safeguard against such violations of human rights.Justice Chelameswar, in his judgement in Puttaswamy, held that:

“To sanctify an argument that whatever is not found in the textof the Constitution cannot become part of the Constitution wouldbe too primitive an understanding of the Constitution and contraryto settled cannons of constitutional interpretation. Such anapproach regarding the rights and liberties of citizens would bean affront to the collective wisdom of our people and the wisdomof the members of the Constituent Assembly...”[134]

59. The exercise of the natural and inalienable right to privacyentails allowing an individual the right to self-determined sexualorientation. Thus, it is imperative to widen the scope of the right to privacyto incorporate right to ‘sexual privacy’ to protect the rights of sexualminorities. Emanating from the inalienable right to privacy, the right tosexual privacy must be granted the sanctity of natural right, and beprotected under the Constitution as fundamental to liberty and as asoulmate of dignity.

60. Citizens of democracy cannot be compelled to have theirlives pushed into obscurity by an oppressive colonial legislation. In orderto ensure to sexual and gender minorities the fulfilment of theirfundamental rights, it is imperative to ‘confront the closet’ and, as anecessary consequence, confront ‘compulsory heterosexuality.’[135]Confronting the closet would entail “reclaiming markers of all desires,identities and acts which challenge it.”[136] It would also entail ensuringthat individuals belonging to sexual minorities, have the freedom to fullyparticipate in public life, breaking the invisible barrier that heterosexualityimposes upon them. The choice of sexuality is at the core of privacy.But equally, our constitutional jurisprudence must recognise that the publicassertion of identity founded in sexual orientation is crucial to the exerciseof freedoms.

134 Puttaswamy, at Para 350.

135 Supra note 65, at page 103.

136 Ibid.

A61.In conceptualising right to sexual privacy, it is important toconsider how the delineation of ‘public’ and ‘private’ spaces affects thelives of the LGBTIQ community. Members of the community have arguedthat to base their claims on right to privacy is of no utility to individualswho do not possess the privilege of private space.[137] In fact, even forindividuals who have access to private spaces the conflation of ‘private’Bwith home and family may be misplaced.[138] The home is often reducedto public space as heteronormativity within the family can force theindividual to remain inside the closet.[139] Thus, even the conception of aprivate space for certain individuals is utopian.[140]

62. Privacy creates “tiers of ‘reputable’ and ‘disreputable’ sex”,Conly granting protection to acts behind closed doors.[141] Thus, it isimperative that the protection granted for consensual acts in private mustalso be available in situations where sexual minorities are vulnerable inpublic spaces on account of their sexuality and appearance.[142] If oneaccepts the proposition that public places are heteronormative, and same-

Dsex sexual acts partially closeted, relegating ‘homosexual‘ acts into theprivate sphere, would in effect reiterate the “ambient heterosexism ofthe public space.”[143] It must be acknowledged that members belongingto sexual minorities are often subjected to harassment in public spaces.[144]The right to sexual privacy, founded on the right to autonomy of freeindividual, must capture the right of persons of the community to navigateEpublic places on their own terms, free from state interference.

F.ISexual privacy and autonomy- deconstructing theheteronormative framework

63. In the absence of protected zone of privacy, individuals areFforced to conform to societal stereotypes. Puttaswamy has characterisedthe right to privacy as shield against forced homogeneity and as anessential attribute to achieve personhood:

137Danish Sheikh, “Queer Rights and the Puttaswamy Judgement”, Economic andPolitical Weekly, Vol. 52 (2017), at page 51.

G138Supra note 65, at page 101.139Ibid.140Ibid.

141Supra note 137, at page 51.

142Saptarshi Mandal, “‘Right To Privacy’ In Naz Foundation: Counter-Heteronormative Critique”, NUJS Law Review, Vol. 2 (2009), at page 533.

143Supra note 65, at page 100.

H144Supra note 137, at page 53.

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“…Recognizing zone of privacy is but an acknowledgmentthat each individual must be entitled to chart and pursue the courseof development of personality. Hence privacy is postulate ofhuman dignity itself. Thoughts and behavioural patterns whichare intimate to an individual are entitled to zone of privacywhere one is free of social expectations. In that zone of privacy,an individual is not judged by others. Privacy enables eachindividual to take crucial decisions which find expression in thehuman personality. It enables individuals to preserve their beliefs,thoughts, expressions, ideas, ideologies, preferences and choicesagainst societal demands of homogeneity. Privacy is an intrinsicrecognition of heterogeneity, of the right of the individual to bedifferent and to stand against the tide of conformity in creating azone of solitude. Privacy protects the individual from the searchingglare of publicity in matters which are personal to his or her life.Privacy attaches to the person and not to the place where it isassociated.”[145]

This Court has recognized the right of an individual to break free fromthe demands of society and the need to foster plural and inclusiveculture. The judgment of four judges in Puttaswamy, for instance, heldthat:

“Privacy constitutes the foundation of all liberty because it is inprivacy that the individual can decide how liberty is best exercised.Individual dignity and privacy are inextricably linked in patternwoven out of thread of diversity into the fabric of pluralculture.”[146]

64. In Santosh Singh v Union of India[147], two-judge Benchof this Court dismissed petition under Article 32 seeking direction tothe Central Board of Secondary Education to include moral science as acompulsory subject in the school syllabus in order to inculcate moralvalues. One of us (Chandrachud J) underscored the importance ofaccepting plurality of ideas and tolerance of radically different views:

“Morality is one and, however important it may sound to some, itstill is only one element in the composition of values that justsociety must pursue. There are other equally significant values

145 Puttaswamy, at para 297.

146 Puttaswamy, at para 297.

147 (2016) 8 SCC 253

Awhich democratic society may wish for education to impart toits young. Among those is the acceptance of plurality anddiversity of ideas, images and faiths which unfortunately facesglobal threats. Then again, equally important is the need to fostertolerance of those who hold radically differing views, empathyfor those whom the economic and social milieu has cast away toBthe margins, sense of compassion and realisation of the innatehumanity which dwells in each human being. Value basededucation must enable our young to be aware of the horribleconsequences of prejudice, hate and discrimination that continueto threaten people and societies the world over…”[148]

CThe right to privacy enables an individual to exercise his or her autonomy,away from the glare of societal expectations. The realisation of the humanpersonality is dependent on the autonomy of an individual. In liberaldemocracy, recognition of the individual as an autonomous person is anacknowledgment of the State’s respect for the capacity of the individualDto make independent choices. The right to privacy may be construed tosignify that not only are certain acts no longer immoral, but that therealso exists an affirmative moral right to do them.[149] As noted by Richards,this moral right emerges from the autonomy to which the individual is entitled:

“Autonomy, in the sense fundamental to the theory of humanErights, is an empirical assumption that persons as suchhave arange of capacities that enables them to develop, and act uponplans of action that take as their object one’s life and the way itis lived. The consequence of these capacities of autonomy isthat humans can make independent decisions regarding whattheir life shall be, self-critically reflecting, as separate being,Fwhich of one’s first-order desires will be developed and whichdisowned, which capacities cultivated and which left barren, withwhom one will or will not identify, or what one will define andpursue as needs and aspirations. In brief, autonomy gives topersons the capacity to call their life their own. The developmentof these capacities for separation and individuation is, from birth,Gthe central developmental task of becoming person.”[150]

148Ibid at para 22.

149Supra note 131, at pages 1000-1001.

150Supra note 131, at pages 964-965; M. Mahler, “The Psychological Birth of TheHuman Infant: Symbiosis And Individuation” (1975); L. Kaplan, Oneness AndHSeparateness: From Infant To Individual (1978).

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65. In Common Cause (A Registered Society)v. Union ofIndia (“Common Cause”)[151],a Constitution Bench of this Courtheldthat the right to die with dignity is integral to the right to life recognisedby the Constitution and an individual possessing competent mental facultiesis entitled to express his or her autonomy by the issuance of an advancemedical directive:

“The protective mantle of privacy covers certain decisions thatfundamentally affect the human life cycle. It protects the mostpersonal and intimate decisions of individuals that affect theirlife and development. Thus, choices and decisions on matterssuch as procreation, contraception and marriage have been heldto be protected. While death is an inevitable end in the trajectoryof the cycle of human life individuals are often faced with choicesand decisions relating to death. Decisions relating to death, likethose relating to birth, sex, and marriage, are protected by theConstitution by virtue of the right of privacy…”[152]

Autonomy and privacy are inextricably linked. Each requires the other forits full realization. Their interrelationship has been recognised in Puttaswamy:

“…Privacy postulates the reservation of private space for theindividual, described as the right to be left alone. The concept isfounded on the autonomy of the individual. The ability of anindividual to make choices lies at the core of the human personality.The notion of privacy enables the individual to assert and controlthe human element which is inseparable from the personality ofthe individual. The inviolable nature of the human personality ismanifested in the ability to make decisions on matters intimate tohuman life. The autonomy of the individual is associated overmatters which can be kept private. These are concerns overwhich there is legitimate expectation of privacy...”[153]

In order to understand how sexual choices are an essential attribute ofautonomy, it is useful to refer to John Rawls’ theory on social contract.Rawls’ conception of the ‘Original Position’ serves as constructivemodel to illustrate the notion of choice behind “partial veil ofignorance.”[154] Persons behind the veil are assumed to be rational and

151 (2018) 5 SCC 1

152 Ibid, at para 441.

153 Puttaswamy, at para 297.

154 Thomas M. Jr. Scanlon, Rawls’ Theory of Justice, University of PennsylvaniaLaw Review (1973) at 1022.

Amutually disinterested individuals, unaware of their positions in society.[155]The strategy employed by Rawls is to focus on category of goodswhich an individual would desire irrespective of what individuals’conception of ‘good’ might be.[156] These neutrally desirable goods aredescribed by Rawls as ‘primary social goods’ and may be listed as rights,liberties, powers, opportunities, income, wealth, and the constituents ofBself-respect.[157] Rawls’s conception of self-respect, as primary humangood, is intimately connected to the idea of autonomy.[158] Self-respect isfounded on an individual’s ability to exercise her native capacities in acompetent manner.[159]

66. An individual’s sexuality cannot be put into boxes orCcompartmentalized; it should rather be viewed as fluid, granting theindividual the freedom to ascertain her own desires and proclivities. Theself-determination of sexual orientation is an exercise of autonomy.Accepting the role of human sexuality as an independent force in thedevelopment of personhood is an acknowledgement of the crucial roleDof sexual autonomy in the idea of free individual.[160] Such aninterpretation of autonomy has implications for the widening applicationof human rights to sexuality.[161] Sexuality cannot be construed as somethingthat the State has the prerogative to legitimize only in the form of rigid,marital procreational sex.[162] Sexuality must be construed as fundamentalexperience through which individuals define the meaning of their lives.[163]EHuman sexuality cannot be reduced to binary formulation. Nor can itbe defined narrowly in terms of its function as means to procreation.To confine it to closed categories would result in denuding human libertyof its full content as constitutional right. The Constitution protects thefluidities of sexual experience. It leaves it to consenting adults to findFfulfilment in their relationships, in diversity of cultures, among pluralways of life and in infinite shades of love and longing.

155 Ibid at 1023.G156 Ibid at 1023.

157 Ibid at 1023.

158 Supra note 131, at page 971.

159 Ibid at page 972.

160 Supra note 131, at page 1003.

161 Ibid.

162 Ibid.H163 Ibid.

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F.2A right to intimacy- celebration of sexual agency

67. By criminalising consensual acts between individuals who wishto exercise their constitutionally-protected right to sexual orientation, theState is denying its citizens the right to intimacy. The right to intimacyemanates from an individual’s prerogative to engage in sexual relationson their own terms. It is an exercise of the individual’s sexual agency,and includes the individual’s right to the choice of partner as well as thefreedom to decide on the nature of the relationship that the individualwishes to pursue.

In Shakti Vahini v. Union of India[164], three judge Bench of thisCourt issued directives to prevent honour killings at the behest of KhapPanchayats and protect persons who enter into marriages that do nothave the approval of the Panchayats. The Court recognised the right tochoose life partner as fundamental right under Articles 19 and 21 ofthe Constitution. The learned Chief Justice held:

“…when two adults consensually choose each other as lifepartners, it is manifestation of their choice which is recognizedunder Articles 19 and 21 of the Constitution. Such right has thesanction of the constitutional law and once that is recognized,the said right needs to be protected and it cannot succumb to theconception of class honour or group thinking which is conceivedof on some notion that remotely does not have any legitimacy.”[165]

In Shafin Jahan v. Asokan[166], this Court set aside Kerala High Courtjudgement which annulled the marriage of twenty-four year old womanwith man of her choice in habeas corpus petition instituted by herfather. The Court upheld her right to choose of life partner as well asher autonomy in the sphere of “intimate personal decisions.” The ChiefJustice held thus:

“…expression of choice in accord with law is acceptance ofindividual identity. Curtailment of that expression and the ultimateaction emanating therefrom on the conceptual structuralism ofobeisance to the societal will destroy the individualistic entity ofa person. The social values and morals have their space butthey are not above the constitutionally guaranteed freedom ..”[167]

(Emphasis supplied)

164 (2018) SCC OnLine SC 275

165 Ibid, at para 44.

166 (2018) SCC OnLine SC 343

167 Ibid, at para 54.

AOne of us (Chandrachud J) recognised the right to choose partner asan important facet of autonomy:

“…The choice of partner whether within or outside marriagelies within the exclusive domain of each individual. Intimacies ofmarriage lie within core zone of privacy, which is inviolable.BThe absolute right of an individual to choose life partner is notin the least affected by matters of faith...Social approval forintimate personal decisions is not the basis for recognisingthem...”[168] (Emphasis supplied)

The judgement in Shafin Jahan delineates space where an individualCenjoys the autonomy of making intimate personal decisions:

“The strength of the Constitution, therefore, lies in the guaranteewhich it affords that each individual will have protectedentitlement in determining choice of partner to share intimacieswithin or outside marriage.”[169]

DIn furtherance of the Rawlsian notion of self-respect as primary good,individuals must not be denied the freedom to form relationships basedon sexual intimacy. Consensual sexual relationships between adults, basedon the human propensity to experience desire must be treated withrespect. In addition to respect for relationships based on consent, it isEimportant to foster society where individuals find the ability forunhindered expression of the love that they experience towards theirpartner. This “institutionalized expression to love” must be consideredan important element in the full actualisation of the ideal of self-respect.[170]Social institutions must be arranged in such manner that individualshave the freedom to enter into relationships untrammelled by binary ofFsex and gender and receive the requisite institutional recognition to perfecttheir relationships.[171] The law provides the legitimacy for socialinstitutions. In democratic framework governed by the rule of law, thelaw must be consistent with the constitutional values of liberty, dignityand autonomy. It cannot be allowed to become yoke on the full expressionGof the human personality. By penalising sexual conduct betweenconsenting adults, Section 377 imposes moral notions which are

168 Ibid, at para 88.

169 Ibid, at para 93.

170 David A. J. Richards, “Unnatural Acts and the Constitutional Right to Privacy: AMoral Theory”, Fordham Law Review, Vol. 45 (1977), at pages 1130-1311.H171 Ibid at 1311.

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anachronistic to constitutional order. While ostensibly penalising ‘acts’,it impacts upon the identity of the LGBT community and denies themthe benefits of full and equal citizenship. Section 377 is based on astereotype about sex. Our Constitution which protects sexual orientationmust outlaw any law which lends the authority of the state to obstructingits fulfilment.

Section 377 and the right to health

“Should medicine ever fulfil its great ends, it must enter into thelarger political and social life of our time; it must indicate thebarriers which obstruct the normal completion of the life cycleand remove them.”

- Virchow Rudolf

68. In the evolution of its jurisprudence on the constitutional rightto life under Article 21, this Court has consistently held that the right tolife is meaningless unless accompanied by the guarantee of certainconcomitant rights including, but not limited to, the right to health.[172 ] Theright to health is understood to be indispensable to life of dignity andwell-being, and includes, for instance, the right to emergency medicalcare and the right to the maintenance and improvement of public health.[173]

It would be useful to refer to judgments of this Court which haverecognised the right to health.

In Bandhua Mukti Morcha v. Union of India[174], three-judge Benchidentified the right to health within the right to life and dignity. In doingso, this Court drew on the Directive Principles of State Policy:

“It is the fundamental right of every one in this country … to livewith human dignity, free from exploitation. This right to livewith human dignity enshrined in Article 21 derives its lifebreath from the Directive Principles of State Policy and

172 Dipika Jain and Kimberly Rhoten, “The Heteronormative State and the Right toHealth in India”, NUJS Law Review, Vol. 6 (2013).

173 C.E.S.C. Limited v. Subhash Chandra Bose, (1992) 1 SCC 441; Consumer Educationand Research Centre v. UOI, (1995) 3 SCC 42; Paschim Banga Khet MazdoorSamity v. State of West Bengal, (1996) 4 SCC 37; Society for Unaided PrivateSchools of Rajasthan v. Union of India, (2012) 6 SCC 1; Devika Biswas v. Union ofIndia & Ors., (2016) 10 SCC 726; Common Cause v. Union of India & Ors., (2018)5 SCC 1.174 (1984) 3 SCC 161

Aparticularly Clauses (e) and (f) of Article 39 and Articles41 and 42 and at the least, therefore, it must includeprotection of the health and strength of workers men andwomen, and of the tender age of children against abuse,opportunities and facilities for children to develop in ahealthy manner and in conditions of freedom and dignity,Beducational facilities, just and humane conditions of workand maternity relief. These are the minimum requirementswhich must exist in order to enable person to live with humandignity and no State neither the Central Government nor anyState Government-has the right to take any action which willCdeprive person of the enjoyment of these basic essentials.”

(Emphasis supplied)

In Consumer Education & Research Centre v. Union of India(“CERC”)[175], Bench of three judges dealt with the right to health ofworkers in asbestos industries. While laying down mandatory guidelinesDto be followed for the well-being of workers, the Court held that:

“The right to health to worker is an integral facet of meaningfulright to life to have not only meaningful existence but alsorobust health and vigour without which worker would lead life ofmisery. Lack of health denudes his livelihood...Therefore, itEmust be held that the right to health and medical care is afundamental right under Article 21 read with Articles 39(c),41 and 43 of the Constitutionand makes the life of theworkman meaningful and purposeful with dignity of person.Right to life includes protection of the health and strength of theFworker and is minimum requirement to enable person to livewith human dignity.” (Emphasis supplied)

In dissenting judgment in C.E.S.C. Limited v. Subhash ChandraBose[176], K Ramaswamy J observed that:G“

“Health is thus state of complete physical, mental andsocial well-being and not merely the absence of diseaseor infirmity. In the light of Articles. 22 to 25 of the UniversalDeclaration of Human Rights, International Convention

175 (1995) 3 SCC 42H176 (1992) 1 SCC 441

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on Economic, Social and Cultural Rights, and in the lightof socio-economic justice assured in our constitution, rightto health is fundamental human right to workmen. Themaintenance of health is most imperative constitutional goalwhose realisation requires interaction by many social andeconomic factors” (Emphasis supplied)

In Kirloskar Brothers Ltd. V. Employees’ State InsuranceCorporation[177],a three-judge Bench of this Court considered theapplicability of the Employees’ State Insurance Act, 1948 to the regionaloffices of the Appellant, observing that:

“Health is thus state of complete physical, mental and socialwell-being. Right to health, therefore, is fundamental and humanright to the workmen. The maintenance of health is the mostimperative constitutional goal whose realisation requiresinteraction of many social and economic factors.”

In State of Punjab v. Ram Lubhaya Bagga[178], three-judge Bench ofthis Court considered challenge to the State of Punjab’s medicalreimbursement policy. A.P. Mishra J, speaking for the Bench, observedthat:

“Pith and substance of life is the health, which is the nucleus ofall activities of life including that of an employee or other viz. thephysical, social, spiritual or any conceivable human activities. Ifthis is denied, it is said everything crumbles.

This Court has time and again emphasised to the Governmentand other authorities for focussing and giving priority and otherauthorities for focussing and giving priority to the health of its,citizen, which not only makes one’s life meaningful, improvesone’s efficiency, but in turn gives optimum out put.”

In SmtM Vijaya v. The Chairman and Managing Director SingareniCollieries Co. Ltd.[179], five judge Bench of the Andhra Pradesh HighCourt considered case where girl was infected with HIV due to thenegligence of hospital authorities. The Court observed that:

“Article 21 of the Constitution of India provides that no personshall be deprived of his life or personal liberty except according177 (1996) 2 SCC 682178 (1998) 4 SCC 117179 (2001) 5 ALD 522

Ato procedure established by law. By reason of numerousjudgments of the Apex Court the horizons of Article 21 of theConstitution have been expanded recognising various rights ofthe citizens i.e...right to health...

It is well settled that right to life guaranteed under Article 21 isBnot mere animal existence. It is right to enjoy all faculties oflife. As necessary corollary, right to life includes right to healthylife.”

In Devika Biswas v. Union of India[180], while hearing public interestpetition concerning several deaths that had taken place due to unsanitaryconditions in sterilization camps across the country, two judge BenchCof this Court held that:

“It is well established that the right to life under Article 21 of theConstitution includes the right to lead dignified and meaningfullife and the right to health is an integral facet of this right...Thatthe right to health is an integral part of the right to life does notDneed any repetition.”

In his concurring judgment in Common Cause v. Union of India, SikriJ, noted the inextricable link between the right to health and dignity:

“There is related, but interesting, aspect of this dignity whichneeds to be emphasised. Right to health is part of ArticleE21 of the Constitution. At the same time, it is also harshreality that everybody is not able to enjoy that right because ofpoverty etc. The State is not in position to translate into realitythis right to health for all citizens. Thus, when citizens are notguaranteed the right to health, can they be denied right to die inFdignity?” (Emphasis supplied)In addition to the constitutional recognition granted to the right to health,the right to health is also recognised in international treaties, covenants,and agreements which India has ratified, including the InternationalCovenant on Economic, Social and Cultural Rights, 1966 (“ICESCR”)and the Universal Declaration of Human Rights, 1948 (“UDHR”). ArticleG25 of the UDHR recognizes the right to health:

“Everyone has the right to standard of living adequate for thehealth and well-being of himself and of his family, including food,clothing, housing and medical care and necessary social services.”

H180 (2016) 10 SCC 726

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69. Article 12 of the International Covenant on Economic, Socialand Cultural Rights (“ICESCR”) recognizes the right of all persons tothe enjoyment of the highest attainable standard of physical and mentalhealth:

“The States Parties to the present Covenant recognize the rightof everyone to the enjoyment of the highest attainable standardof physical and mental health.”

Article 12.2 requires States Parties to take specific steps to improve thehealth of their citizens, including creating conditions to ensure equal andtimely access to medical services. In its General Comment No. 14,[181]the UN Economic and Social Council stated that States must takemeasures to respect, protect and fulfil the health of all persons. Statesare obliged to ensure the availability and accessibility of health-relatedinformation, education, facilities, goods and services, withoutdiscrimination, especially for vulnerable and marginalized populations.

Pursuant to General Comment No. 14, India is required to providemarginalized populations, including members of the LGBTIQ community,goods and services that are available (in sufficient quantity), accessible(physically, geographically, economically and in non-discriminatorymanner), acceptable (respectful of culture and medical ethics) and ofquality (scientifically and medically appropriate and of good quality).

70. As early as 1948, the World Health Organization (“WHO”)defined the term ‘health’ broadly to mean “a state of complete physical,mental and social well-being and not merely the absence of disease orinfirmity.”[182 ]Even today, for significant number of Indian citizens thisstandard of health remains an elusive aspiration. Of relevance to thepresent case, particular class of citizens is denied the benefits of thisconstitutional enunciation of the right to health because of their mostintimate sexual choices.

71. Sexuality is natural and precious aspect of life, an essentialand fundamental part of our humanity.[183] Sexual rights are entitlementsrelated to sexuality and emanate from the rights to freedom, equality,privacy, autonomy, and dignity of all people.[184] For people to attain the

181 UN Economic and Social Council (ECOSOC), Committee on Economic, Social andCultural Rights, General Comment No. 14: The Right to the Highest AttainableStandard of Health, UN Doc. E/C.12/2004 (2000).

182 Definition contained in the Preamble to the WHO Constitution (1948).

183 Sexual Rights, International Planned Parenthood Federation (2008).

184 Ibid.

DEF

Ahighest standard of health, they must also have the right to exercisechoice in their sexual lives and feel safe in expressing their sexual identity.However, for some citizens, discrimination, stigma, fear and violenceprevent them from attaining basic sexual rights and health.

72. Individuals belonging to sexual and gender minoritiesBexperience discrimination, stigmatization, and, in some cases, denial ofcare on account of their sexual orientation and gender identity.[185]However, it is important to note that ‘sexual and gender minorities’ donot constitute homogenous group, and experiences of social exclusion,marginalization, and discrimination, as well as specific health needs, varyconsiderably.[186] Nevertheless, these individuals are united by one factorC- that their exclusion, discrimination and marginalization is rooted in societalheteronormativity and society’s pervasive bias towards gender binaryand opposite-gender relationships, which marginalizes and excludes allnon-heteronormative sexual and gender identities.[187] This, in turn, hasimportant implications for individuals’ health-seeking behaviour, howDhealth services are provided, and the extent to which sexual health canbe achieved.[188]73. The term ‘sexual health’ was first defined in 1975 WHOTechnical Report series as “the integration of the somatic, emotional,intellectual and social aspects of sexual being, in ways that are positivelyEenriching and that enhance personality, communication and love.”[189 ]TheWHO’s current working definition of sexual health is as follows:

“…a state of physical, emotional, mental and social well-being inrelation to sexuality; it is not merely the absence of disease,dysfunction or infirmity. Sexual health requires positive andFrespectful approach to sexuality and sexual relationships, as wellas the possibility of having pleasurable and safe sexualexperiences, free of coercion, discrimination and violence. For

185 Alexandra Muller,”Health for All? Sexual Orientation, Gender Identity, and theImplementation of the Right to Access to Health Care in South Africa”, Health andHuman Rights(2016) at pages 195–208.G186 Institute of Medicine,”The Health of Lesbian, Gay, Bisexual, and TransgenderPeople: Building Foundation for Better Understanding”, National AcademiesPress (2011).

187 Supra note 185, at pages 195–208.

188 Ibid.

189 World Health Organization, “Gender and human rights: Defining sexual health”,H(2002).

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sexual health to be attained and maintained, the sexual rights ofall persons must be respected, protected and fulfilled.”

The WHO further states that “sexual health cannot be defined,understood or made operational without broad consideration of sexuality,which underlies important behaviours and outcomes related to sexualhealth.” It defines sexuality thus:

“…a central aspect of being human throughout life encompassessex, gender identities and roles, sexual orientation, eroticism,pleasure, intimacy and reproduction. Sexuality is experiencedand expressed in thoughts, fantasies, desires, beliefs, attitudes,values, behaviours, practices, roles and relationships. Whilesexuality can include all of these dimensions, not all of them arealways experienced or expressed. Sexuality is influenced by theinteraction of biological, psychological, social, economic, political,cultural, legal, historical, religious and spiritual factors.”74. report entitled “Sexual Health, Human Rights and theLaw”,[190] published by the WHO in 2015 explores the relationship betweenthese concepts. The report notes that “human sexuality includes manydifferent forms of behaviour and expression, and that the recognition ofthe diversity of sexual behaviour and expression contributes to people’soverall sense of health and well-being.”[191] It emphasizes the importanceof sexual health by stating that not only is it essential to the physical andemotional well-being of individuals, couples and families, but it is alsofundamental to the social and economic development of communitiesand countries.[192] The ability of individuals to progress towards sexualhealth and well-being depends on various factors, including “access tocomprehensive information about sexuality, knowledge about the risksthey face and their vulnerability to the adverse consequences of sexualactivity; access to good quality sexual health care, and an environmentthat affirms and promotes sexual health.”

75. The International Women’s Health Coalition has located theright to sexual health within ‘sexual rights’, defined as follows:[193]

“Sexual rights embrace certain human rights that are alreadyrecognized in national laws, international human rights documents,

190 World Health Organisation, “Sexual Health, Human Rights and the Law” (2015).191 Ibid.

192 Ibid.

193 International Women’s Health Coalition, “Sexual Rights are Human Rights” (2014).

Aand other consensus documents. They rest on the recognitionthat all individuals have the right—free of coercion, violence,and discrimination of any kind—to the highest attainable standardof sexual health; to pursue satisfying, safe, and pleasurablesexual life; to have control over and decide freely, and with dueregard for the rights of others, on matters related to their sexuality,Breproduction, sexual orientation, bodily integrity, choice of partner,and gender identity; and to the services, education, andinformation, including comprehensive sexuality education,necessary to do so.”

The discussion of ‘sexual rights’ (as they pertain to sexuality and sexualCorientation) within the framework of the right to health is relativelynew phenomenon:[194]

“..Before the 1993 World Conference on Human Rights in Vienna,and the subsequent 1994 International Conference on Populationand Development in Cairo, sexuality, sexual rights, and sexualDdiversity had not formed part of the international health andhuman rights discourse. These newly emerged “sexualrights” were founded on the principles of bodily integrity,personhood, equality, and diversity.”[195](Emphasis supplied)

76. The operation of Section 377 denies consenting adults the fullErealization of their right to health, as well as their sexual rights. It forcesconsensual sex between adults into realm of fear and shame, as personswho engage in anal and oral intercourse risk criminal sanctions if theyseek health advice. This lowers the standard of health enjoyed by themand particularly by members of sexual and gender minorities, in relationFto the rest of society.

77. The right to health is not simply the right not to be unwell, butrather the right to be well. It encompasses not just the absence of diseaseor infirmity, but “complete physical, mental and social well being”,[196]and includes both freedoms such as the right to control one’s health andGbody and to be free from interference (for instance, from non-consensualmedical treatment and experimentation), and entitlements such as theright to system of healthcare that gives everyone an equal opportunityto enjoy the highest attainable level of health.

194 Supra note 185, at pages 195–208.

195 Supra note 185, at pages 195–208.

196 Preamble to the Constitution of the World Health Organisation.

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78. The jurisprudence of this Court, in recognizing the right tohealth and access to medical care, demonstrates the crucial distinctionbetween negative and positive obligations. Article 21 does not imposeupon the State only negative obligations not to act in such way as tointerfere with the right to health. This Court also has the power to imposepositive obligations upon the State to take measures to provide adequateresources or access to treatment facilities to secure effective enjoymentof the right to health.[197]

79. study of sexuality and its relationship to the right to health inSouth Africa points to several other studies that suggest negativecorrelation between sexual orientation-based discrimination and the rightto health:

“For example, in Canadian study, Brotman and colleagues foundthat being open about their sexual orientation in health caresettings contributed to experiences of discrimination for lesbian,gay, and bisexual people.”[198]

“Lane and colleagues interviewed men who have sex with menin Soweto, and revealed that all men who disclosed their sexualorientation at public health facilities had experienced some formof discrimination. Such discrimination [‘ranging from verbal abuseto denial of care’[199]], and also the anticipation thereof, leads todelays when seeking sexual health services such as HIVcounseling and testing.”[200]

80. Alexandra Muller describes the story of two individuals whoexperienced such discrimination. T, gay man, broke both his arms whilefleeing from group of people that attacked him because of his sexuality.At the hospital, the staff learned about T’s sexual orientation, andpejoratively discussed it in his presence. He also had to endure “a localprayer group that visited the ward daily to provide spiritual support topatients” which “prayed at his bedside to rectify his “devious” sexuality.When he requested that they leave, or that he be transferred to anotherward, the nurses did not intervene, and the prayer group visited regularlyto continue to recite their homophobic prayers. T did not file an official

197 Jayna Kothari, “Social Rights and the Indian Constitution”, Law, Social Justice andGlobal Development Journal (2004).

198 Supra note 185, at pages 195–208.

199 Ibid.

200 Ibid.

Acomplaint, fearing future ramifications in accessing care. Following hisdischarge, he decided not to return for follow up appointments and hadhis casts removed at another facility.[201]

Another woman, P, who had been with her female partner for threeyears, wanted to get tested for HIV. The nurse at the hospital askedBcertain questions to discern potential risk behaviours. When asked whyshe did not use condoms or contraception, P revealed that she did notneed to on account of her sexuality. The nurse immediately exclaimedthat P was not at risk for HIV, and that she should “go home and notwaste her time any longer.” P has not attempted to have another HIVtest since.[202]CThese examples are illustrative of wider issue: individuals across theworld are denied access to equal healthcare on the basis of their sexualorientation. That people are intimidated or blatantly denied healthcareaccess on discriminatory basis around the world proves that this issueis not simply an ideological tussle playing out in classrooms andDcourtrooms, but an issue detrimentally affecting individuals on the groundlevel and violating their rights including the right to health.

81.The right to health is one of the major rights at stake in thestruggle for equality amongst gender and sexual minorities:[203]

E“The right to physical and mental health is at conflict withdiscriminatory policies and practices, some physicians’homophobia, the lack of adequate training for health carepersonnel regarding sexual orientation issues or the generalassumption that patients are heterosexuals.”[204]

While the enumeration of the right to equal healthcare is crucial, anFindividual’s sexual health is also equally significant to holistic well-being.A healthy sex life is integral to an individual’s physical and mental health,regardless of whom an individual is attracted to. Criminalising certainsexual acts, thereby shunning them from the mainstream discourse, wouldinvariably lead to situations of unsafe sex, coercion, and lack of soundGmedical advice and sexual education, if any at all.

201 Ibid.

202 Ibid.

203 Study Guide: Sexual Orientation and Human Rights, University of Minnesota

Human RIghts Library (2003).H204 Ibid.

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82. report by the Francois-Xavier Bagnoud Center for Healthand Human Rights at Harvard School of Public Health defines the term‘sexual health’ as follows:

“A state of physical, emotional, mental, and social well-being inrelation to sexuality. Like health generally, it is not merely theabsence of disease, but encompasses positive and complexexperiences of sexuality as well as freedom to determine sexualrelationships, as well as the possibility of having pleasurable sexualexperiences, free of coercion, discrimination and violence.”[205]

83. Laws that criminalize same-sex intercourse create socialbarriers to accessing healthcare, and curb the effective prevention andtreatment of HIV/AIDS.[206] Criminal laws are the strongest expressionof the State’s power to punish certain acts and behaviour, and it is thereforeincumbent upon the State to ensure full protection for all persons, includingthe specific needs of sexual minorities. The equal protection of lawmandates the state to fulfill this constitutional obligation. Indeed, the stateis duty bound to revisit its laws and executive decisions to ensure thatthey do not deny equality before the law and the equal protection oflaws. That the law must not discriminate is one aspect of equality. Butthere is more. The law must take affirmative steps to achieve equalprotection of law to all its citizens, irrespective of sexual orientation.

In regard to sexuality and health, it is important to distinguish betweenbehaviour that is harmful to others, such as rape and coerced sex, andthat which is not, such as consensual same-sex conduct between adults,conduct related to gender-expression such as cross-dressing, as well asseeking or providing sexual and reproductive health information andservices. The use of criminal laws in relation to an expanding range ofotherwise consensual sexual conduct has been found to be discriminatoryby international and domestic courts, often together with violations ofother human rights, such as the rights to privacy, self-determination, humandignity and health.[207]

205 Center for Health and Human Rights and Open Society Foundations. “Health andHuman Rights Resource Guide(2013).

206 Supra note 172.

207 Eszter Kismodi, Jane Cottingham, Sofia Gruskin & Alice M. Miller,”Advancingsexual health through human rights: The role of the law”, Taylor and Francis,(2015), at pages 252-267.

DEF

AG.ISection 377 and HIV prevention efforts

84. Section 377 has significant detrimental impact on the rightto health of those persons who are susceptible to contracting HIV –men who have sex with men (“MSM”)[208] and transgender persons.[209]The Global Commission on HIV and the Law has noted the impact ofBSection 377 on the right of health of persons afflicted with or vulnerableto contracting HIV:

“The law and its institutions can protect the dignity of all peopleliving with HIV, and in so doing fortify those most vulnerable toHIV, so-called “key populations”, such as sex workers, MSM,transgender people, prisoners and migrants. The law can openCthe doors to justice when these people’s rights are trampled….But the law can also do grave harm to the bodies and spirits ofpeople living with HIV. It can perpetuate discrimination and isolatethe people most vulnerable to HIV from the programmes thatwould help them to avoid or cope with the virus. By dividingDpeople into criminals and victims or sinful and innocent, the legal

environment can destroy the social, political, and economicsolidarity that is necessary to overcome this global epidemic.”[210]

85. Mr Anand Grover, learned Senior Counsel in his submissions,highlighted the vulnerability of MSM and transgender persons. Accordingto study published by the Global Commission on HIV and the Law,EMSM were found to be 19 times more susceptible to be infected withHIV than other adult men.[211]

208 The term “men who have sex with men” (MSM) denotes all men who have sex withmen, regardless of their sexual identity, sexual orientation and whether or not theyalso have sex with females. MSM is an epidemiological term which focuses onFsexual behaviours for the purpose of HIV and STI surveillance. The assumption isthat behaviour, not sexual identity, places people at risk for HIV. See RegionalOffice for South-East Asia, World Health Organization, “HIV/AIDS among menwho have sex with men and transgender populations in South-East Asia: the currentsituation and national responses” (2010).

209 Transgender people continue to be included under the umbrella term “MSM”.However, it has increasingly been recognized that Transgender people have uniqueGneeds and concerns, and it would be more useful to view them as separate group.See Regional Office for South-East Asia, World Health Organization, “HIV/AIDSamong men who have sex with men and transgender populations in South-EastAsia: the current situation and national responses” (2010).

210 United Nations Development Programme, “Global Commission on HIV and theLaw: Risks, Rights and Health” (2012), at pages 11-12.

211 Ibid at page 45; HIV prevalence amongst MSM is 4.3% and amongst transgenderHpersons it is 7.5% as opposed to the overall adult HIV prevalence of 0.26%.

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86. The UN Human Rights Committee has recognized the impactof the criminalization of homosexuality on the spread of HIV/AIDS. InToonen v Australia[212], homosexual man from Tasmania, wherehomosexual sex was criminalized, argued that criminalization of same-sex activities between consenting adults was an infringement of his rightto privacy under Article 17 of the International Covenant on Civil andPolitical Rights (“ICCPR”). The Committee rejected the argument ofthe Tasmanian authorities that the law was justified on grounds of publichealth and morality as it was enacted to prevent the spread of HIV/AIDS in Tasmania. The Committee observed that:“... the criminalization of homosexual practices cannot beconsidered reasonable means or proportionate measure toachieve the aim of preventing the spread of AIDS/HIV …Criminalization of homosexual activity thus would appear to runcounter to the implementation of effective education programmesin respect of the HIV/AIDS prevention. Secondly, the Committeenotes that no link has been shown between the continuedcriminalization of homosexual activity and the effective controlof the spread of the HIV/AIDS virus.”

In response to the Committee’s decision, law was enacted to overcomethe Tasmanian law criminalizing homosexual sex.

87. Section 377 has had far-reaching consequences for this “keypopulation”, pushing them out of the public health system. MSM andtransgender persons may not approach State health care providers forfear of being prosecuted for engaging in criminalized intercourse. Studiesshow that it is the stigma attached to these individuals that contributes toincreased sexual risk behaviour and/or decreased use of HIV preventionservices.[213]

88. The silence and secrecy that accompanies institutionaldiscrimination may foster conditions which encourage escalation of theincidence of HIV/AIDS.[214] The key population is stigmatized by health

212 Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994), decisiondated 31/03/1994.

213 Beena Thomas, Matthew J. Mimiaga, Senthil Kumar, Soumya Swaminathan, StevenA. Safren, and Kenneth H. Mayer, “HIV in Indian MSM: Reasons for concentratedepidemic & strategies for prevention”, Indian Journal Medical Research (2011), atpages 920–929.

214 Ibid.

Aproviders, employers and other service providers.[215] As result, thereexist serious obstacles to effective HIV prevention and treatment asdiscrimination and harassment can hinder access to HIV and sexualhealth services and prevention programmes.[216]

89.An incisive article, based on extensive empirical researchBcarried out in various countries, has concluded that there is demonstrablerelationship between “laws which criminalize same-sex conduct andadverse health effects on HIV-AIDs rates as well as other healthindicators for the MSM community” due to poor access to key HIVprevention tools and outreach programmes.[217] According to reportpublished by the Joint United Nations Programme on HIV/AIDSC(“UNAIDS”), in Caribbean countries where same-sex relations arecriminalised, almost one in four MSMs is infected with HIV.[218] In theabsence of such criminal provisions, the prevalence of HIV is one infifteen among MSMs.[219]

90.Closer to home, the UNAIDS project found that in the fourDyears following the judgement in Naz, there had been an increase ofmore than 50% in the number of healthcare centers providing HIVservices to MSM and transgender persons in India.[220 ]If same-sexrelations remain criminalised, it is likely that HIV interventions for MSMswill continue to be inadequate, MSMs will continue to be marginalisedEfrom health services, and the prevalence of HIV will exacerbate.[221]

91. To safeguard the health of persons who are at the greatestrisk of HIV infection, it is imperative that access is granted to effectiveHIV prevention and treatment services and commodities such as cleanneedles, syringes, condoms and lubricants.[222] needle or condom canFonly be considered concrete representation of the entitlements ofvulnerable groups: the fundamental human rights of dignity, autonomyand freedom from ill- treatment, along with the right to the highest

215 Ibid.

216 Ibid.

217 Supra note 172, at page 636.G218 Supra note 210, at page 45.

219 Ibid.

220 UNAIDS, “UNAIDS Calls on India and All Countries to Repeal Laws ThatCriminalize Adult Consensual Same Sex Sexual Conduct”(2013).

221 UNAIDS, “Judging the Epidemic: Judicial Handbook on HIV, Human Rights andthe Law”(2013) at page 165.

H222 Supra note 210, at page 26.

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attainable standard of physical and mental health, without regard tosexuality or legal status.[223 ]This is the mandate of the Directive Principlescontained in Part IV of the Constitution.

92. In 2017, Parliament enacted the HIV (Prevention and Control)Act, to provide for the prevention and control of the spread of HIV/AIDS and for the protection of the human rights of persons affected.Parliament recognized the importance of prevention interventions forvulnerable groups including MSMs. Section 22 of this Act provides forprotection against criminal sanctions as well as any civil liability arisingout of promoting actions or practices or “any strategy or mechanism ortechnique” undertaken for reducing the risk of HIV transmission.Illustrations (a) and (b) to Section 22 read as follows:

“(a) supplies condoms to who is sex worker or to C, whois client of B. Neither nor nor can be held criminally orcivilly liable for such actions or be prohibited, impeded, restrictedor prevented from implementing or using the strategy.

(b) M carries on an intervention project on HIV or AIDS andsexual health information, education and counselling for men,who have sex with men, provides safer sex information, materialand condoms to N, who has sex with other men. Neither M norN can be held criminally or civilly liable for such actions or beprohibited, impeded, restricted or prevented from implementingor using the intervention.”

Persons who engage in anal or oral intercourse face significant sexualhealth risks due to the operation of Section 377. Prevalence rates ofHIV are high, particularly among men who have sex with men.Discrimination, stigma and lack of knowledge on the part of manyhealthcare providers means that these individuals often cannot and donot access the health care they need. In order to promote sexual healthand reduce HIV transmission among LGBT individuals, it is imperativethat the availability, effectiveness, and quality of health services to theLGBT community be significantly improved.

Under our constitutional scheme, no minority group must sufferdeprivation of constitutional right because they do not adhere to themajoritarian way of life. By the application of Section 377 of the Indian

223 Ibid, at page 26.

APenal Code, MSM and transgender persons are excluded from accessto healthcare due to the societal stigma attached to their sexual identity.Being particularly vulnerable to contraction of HIV, this deprivation canonly be described as cruel and debilitating. The indignity suffered by thesexual minority cannot, by any means, stand the test of constitutionalvalidity.B

G.2Mental health

93. The treatment of homosexuality as disorder has seriousconsequences on the mental health and well-being of LGBT persons.The mental health of citizens “growing up in culture that devalues andCsilences same-sex desire” is severely impacted.[224] Global psychiatricexpert Dinesh Bhugra has emphasised that radical solutions are neededto combat the high levels of mental illness among the LGBT populationstating there is “clear correlation between political and socialenvironments” and how persecutory laws against LGBT individuals areleading to greater levels of depression, anxiety, self-harm, and suicide.DEven in Britain, gay people are at greater risk of range of mentalhealth problems, and, it is believed, are more likely to take their ownlives.“A number of studies this year have highlighted thedisproportionate levels of mental illness among LGBT people. InEBritain, one of the world’s most legally equal countries for thiscommunity, research in the last few months has revealed thatLGBT people are nearlytwice as likelyto have attempted suicideor harmed themselves, gay men are more than twice as likelyto have mental illness than heterosexual men, and 4 in 5Ftransgender peoplehave suffered depression in the last fiveyears.”[225]

(Emphasis supplied)

He discusses studies from various countries which indicate that incountries where laws continue to discriminate against LGBT individuals,Gthere are high rates of mental illness. Similarly he states that there have

224Ketki Ranade, “Process of Sexual Identity Development for Young People withSame Sex Desires: Experiences of Exclusion”, Psychological Foundations - TheJournal (2008).

225Dinesh Bhugra, globally renowned psychiatrist (article annexed in compilationHprovided by Mr. Chander Uday Singh, learned Senior Counsel).

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been series of studies showing that in America, rates of psychiatricdisorders have dropped when state policies have recognised the equalrights of LGBT individuals.

94. Mr Chander Uday Singh, learned Senior Counsel appearingon behalf of an intervenor, psychiatrist, has brought to our notice howeven the mental health sector has often reflected the societal prejudiceregarding homosexuality as pathological condition.

95. Medical and scientific authority has now established thatconsensual same sex conduct is not against the order of nature and thathomosexuality is natural and normal variant of sexuality. Parliamenthas provided legislative acknowledgment of this global consensus throughthe enactment of the Mental Healthcare Act, 2017.Section 3 of the Actmandates that mental illness is to be determined in accordance with‘nationally’ or ‘internationally’ accepted medical standards. TheInternational Classification of Diseases (ICD-10) by the World HealthOrganisation is listed as an internationally accepted medical standardand does not consider non-peno-vaginal sex between consenting adultseither mental disorder or an illness. The Act through Section 18(2)[226]and Section 21[227] provides for protection against discrimination on thegrounds of sexual orientation.

The repercussions of prejudice, stigma and discrimination continue toimpact the psychological well-being of individuals impacted bySection 377. Mental health professionals can take this change in thelaw as an opportunity to re-examine their own views of homosexuality.

96.Counselling practices will have to focus on providing supportto homosexual clients to become comfortable with who they are and get

226 Section 18. Right to access mental healthcare.—(1) Every person shall have aright to access mental healthcare and treatment from mental health services run orfunded by the appropriate Government. (2) The right to access mental healthcareand treatment shall mean mental health services of affordable cost, of good quality,available in sufficient quantity, accessible geographically, without discriminationon the basis of gender, sex, sexual orientation, religion, culture, caste, social orpolitical beliefs, class, disability or any other basis and provided in manner that isacceptable to persons with mental illness and their families and care-givers.

227 Section 21. Right to equality and non-discrimination.—(1) Every person withmental illness shall be treated as equal to persons with physical illness in theprovision of all healthcare which shall include the following, namely:— (a) thereshall be no discrimination on any basis including gender, sex, sexual orientation,religion, culture, caste, social or political beliefs, class or disability.

Aon with their lives, rather than motivating them for change. Instead oftrying to cure something that isn’t even disease or illness, the counsellorshave to adopt more progressive view that reflects the changed medicalposition and changing societal values. There is not only need for specialskills of counsellors but also heightened sensitivity and understanding ofLGBT lives. The medical practice must share the responsibility to helpBindividuals, families, workplaces and educational and other institutions tounderstand sexuality completely in order to facilitate the creation of asociety free from discrimination[228] where LGBT individuals like all othercitizens are treated with equal standards of respect and value for humanrights.CH. Judicial review

97.The Constitution entrusts the function of making laws toParliament and the State Legislatures under Articles 245 and 246 of theConstitution. Parliament and the State Legislatures are empowered tocreate offences against laws with respect to the heads of legislation,Dfalling within the purview of their legislative authority. (See Entry 93 ofList I and Entry 64 of List II of the Seventh Schedule). Criminal law isa subject which falls within the Concurrent List. Entry I of List IIIprovides thus:

“1. Criminal law, including all matters included in the Indian PenalECode at the commencement of this Constitution but excludingoffences against laws with respect to any of the matters specifiedin List I or List II and excluding the use of naval, military or airforces or any other armed forces of the Union in aid of the civilpower.”

FThe power to enact legislation in the field of criminal law has beenentrusted to Parliament and, subject to its authority, to the StateLegislatures. Both Parliament and the State Legislatures can enact lawsproviding for offences arising out of legislation falling within theirlegislative domains. The authority to enact law, however, is subject toGthe validity of the law being scrutinised on the touchstone of constitutionalsafeguards. citizen, or, as in the present case, community of citizens,having addressed challenge to the validity of law which creates anoffence, the authority to determine that question is entrusted to the judicialbranch in the exercise of the power of judicial review. The Court will

228 Vinay Chandran, “From judgement to practice: Section 377 and the medical sector”,HIndian Journal of Medical Ethics, Vol. 4 (2009).

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not, as it does not, in the exercise of judicial review, second guess avalue judgment made by the legislature on the need for or the efficacyof legislation. But where law creating an offence is found to be offensiveto fundamental rights, such law is not immune to challenge. Theconstitutional authority which is entrusted to the legislatures to createoffences is subject to the mandate of written Constitution. Where thevalidity of the law is called into question, judicial review will extend toscrutinising whether the law is manifestly arbitrary in its encroachmenton fundamental liberties. If law discriminates against group or acommunity of citizens by denying them full and equal participation ascitizens, in the rights and liberties granted by the Constitution, it would befor the Court to adjudicate upon validity of such law.

I. India’s commitments at International Law

98. International human rights treaties and jurisprudence imposeobligations upon States to protect all individuals from violations of theirhuman rights, including on the basis of their sexual orientation.[229]Nevertheless, laws criminalizing same-sex relations between consentingadults remain on the statute books in more than seventy countries. Manyof them, including so-called “sodomy laws”, are vestiges of colonial-eralegislation that prohibits either certain types of sexual activity or anyintimacy or sexual activity between persons of the same sex.[230] In somecases, the language used refers to vague and indeterminate concepts,such as ‘crimes against the order of nature’, ‘morality’, or‘debauchery’.[231] There is familiar ring to it in India, both in terms ofhistory and text.

99. International law today has evolved towards establishing thatthe criminalization of consensual sexual acts between same-sex adultsin private contravenes the rights to equality, privacy, and freedom fromdiscrimination. These rights are recognised in international treaties,covenants, and agreements which India has ratified, including the UDHR,ICCPR, and the ICESCR. India has constitutional duty to honour theseinternationally recognized rules and principles.[232] Article 51 of the

229Dominic McGoldrick, “The Development and Status of Sexual OrientationDiscrimination under International Human Rights Law”, Human Rights Law Review,Vol. 16 (2016).

230UN Human Rights Council, “Discriminatory laws and practices and acts of violenceagainst individuals based on their sexual orientation and gender identity” (2011).231UN Human Rights Council, “Promotion and Protection of all Human Rights, Civil,Political, Economic, Social and Cultural Rights, including the Right to Development” (2008).232Vishaka v State of Rajasthan, (1997) 6 SCC 241.

AConstitution, which forms part of the Directive Principles of State Policy,requires the State to endeavour to “foster respect for international lawand treaty obligations in the dealings of organised peoples with oneanother.”

100. The human rights treaties that India has ratified require StatesBParties to guarantee the rights to equality before the law, equal protectionof the law and freedom from discrimination. For example, Article 2 ofthe ICESCR requires states to ensure that:

“The rights enunciated in the present Covenant will be exercisedwithout discrimination of any kind as to race, colour, sex,Clanguage, religion, political or other opinion, national or socialorigin, property, birth or other status.”

101. The Committee on Economic, Social and Cultural Rights -the body mandated by the ICESCR to monitor States Parties’implementation of the treaty – has stated that “other status” in article 2D(2) includes sexual orientation, and reaffirmed that “gender identity isrecognized as among the prohibited grounds of discrimination”, as“persons who are transgender, transsexual or intersex often face serioushuman rights violations.”[233]

102. The prohibition against discrimination in the ICCPR is containedEin Article 26, which guarantees equality before the law:

“All persons are equal before the law and are entitled withoutany discrimination to the equal protection of the law. In thisrespect, the law shall prohibit any discrimination and guaranteeto all persons equal and effective protection against discriminationon any ground such as race, colour, sex, language, religion, politicalFor other opinion, national or social origin, property, birth or otherstatus.”

India is also required to protect the right to privacy, which includes withinits ambit the right to engage in consensual same-sex sexual relations.[234]Article 12 of the UDHR recognises the right to privacy:G

“Article 12: No one shall be subjected to arbitrary interferencewith his privacy, family, home or correspondence, nor to attacks

233 Committee on Economic, Social and Cultural Rights, “General Comment 20: Non-discrimination in economic, social and cultural rights” (2009), at para 32.H234 Toonen.

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upon his honour and reputation. Everyone has the right to theprotection of the law against such interference or attacks.”

Similarly, Article 17 of the ICCPR, which India ratified on 11 December1977, provides that:

“The obligations imposed by this article require the State to adoptlegislative and other measures to give effect to the prohibitionagainst such interferences and attacks as well as to the protectionof the right.”

In its General Comment No. 16, the Human Rights Committee confirmedthat any interference with privacy, even if provided for by law, “shouldbe in accordance with the provisions, aims and objectives of the Covenantand should be, in any event, reasonable in the particularcircumstances.”[235]

In their general comments, concluding observations and views oncommunications, human rights treaty bodies have affirmed that Statesare obliged to protect individuals from discrimination on grounds of sexualorientation and/or gender identity, as these factors do not limit anindividual’s entitlement to enjoy the full range of human rights to whichthey are entitled.[236]

103. In NALSA, while dealing with the rights of transgenderpersons, this Court recognized the ‘Yogyakarta Principles on theApplication of International Law in Relation to Issues of SexualOrientation and Gender Identity’ – which outline the rights that sexualminorities enjoy as human persons under the protection of internationallaw – and held that they should be applied as part of Indian law.Principle 33 provides thus:

“Everyone has the right to be free from criminalisation and anyform of sanction arising directly or indirectly from that person’sactual or perceived sexual orientation, gender identity, genderexpression or sex characteristics.”

While the Yogyakarta Principles are not legally binding, NALSAnevertheless signifies an affirmation of the right to non-discrimination onthe grounds of gender identity, as well as the relevance of internationalhuman rights norms in addressing violations of these rights.

235 Supra note 230, at page 6.

236 Ibid.

A104. There is contradiction between India’s internationalobligations and Section 377 of the Indian Penal Code, insofar as itcriminalizes consensual sexual acts between same-sex adults in private.In adjudicating the validity of this provision, the Indian Penal Code mustbe brought into conformity with both the Indian Constitution and therules and principles of international law that India has recognized. BothBmake crucial contribution towards recognizing the human rights ofsexual and gender minorities.

J Transcending borders - comparative law

105. Over the past several decades, international and domesticCcourts have developed strong body of jurisprudence againstdiscrimination based on sexual orientation. This section analyses theevolution of the perspective of the law towards sexual orientation froma comparative law perspective, and looks at how sodomy laws havebeen construed in various jurisdictions based on their histories.

D106. In 1967, England and Wales decriminalized same-sexintercourse between consenting adult males in private, and in 1980,Scotland followed suit. The law in Northern Ireland only changed in1982 with the decision of the ECtHR in Dudgeon v The UnitedKingdom (“Dudgeon”).[237] The Petitioners challenged the Offencesagainst the Person Act, 1861, the Criminal Law Amendment Act, 1885Eand sodomy law that made buggery and “gross indecency” criminaloffense, irrespective of consent. Although the law did not specificallydefine these terms, the Court interpreted ‘buggery’ to mean analintercourse by man with man or woman and gross indecency tomean any act “involving sexual indecency between male persons.”FRegarding acts prohibited by these provisions, the ECtHR observed that:“Although it is not homosexuality itself which is prohibited butthe particular acts of gross indecency between males and buggery,there can be no doubt but that male homosexual practices whoseprohibition is the subject of the applicant’s complaints come withinGthe scope of the offences punishable under the impugnedlegislation.”

The ECtHR concluded that Dudgeon had suffered and continued tosuffer an unjustified interference with his right to respect for his private

237 App No 7525/76, (1981) ECHR 5.H

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life. Hence, the Court struck down the laws under challenge as violativeof Article 8 of the European Convention on Human Rights, in so far asthey criminalised “private homosexual relations between adult malescapable of valid consent.” In observing that these laws were notproportionate to their purported need, the Court observed:

“On the issue of proportionality, the Court considers that suchjustifications as there are for retaining the law in force unamendedare outweighed by the detrimental effects which the veryexistence of the legislative provisions in question can have onthe life of person of homosexual orientation like the applicant.Although members of the public who regard homosexuality asimmoral may be shocked, offended or disturbed by thecommission by others of private homosexual acts, this cannot onits own warrant the application of penal sanctions when it isconsenting adults alone who are involved.”[238]

The ECtHR thus concluded:

“To sum up, the restriction imposed on Mr. Dudgeon underNorthern Ireland law, by reason of its breadth and absolutecharacter, is, quite apart from the severity of the possible penaltiesprovided for, disproportionate to the aims sought to beachieved.”[239]

Later, in Norris v Ireland[240], the Applicant challenged Ireland’scriminalization of certain homosexual acts between consenting adult menas being violative of Article 8 of the European Convention on HumanRights, which protected the right to respect for private and family life.The ECtHR held that the law violated Article 8, regardless of whether itwas actively enforced:

“A law which remains on the statute books even though it is notenforced in particular class of cases for considerable time,may be applied again in such cases at any time, if for example,there is change of policy. The applicant can therefore be saidto ‘run the risk of being directly affected’ by the legislation inquestion.”

238Ibid, at para 60.

239Ibid, at para 61.

240Application No. 10581/83, (1988) ECHR 22.

AThis decision was affirmed in Modinos v Cyprus[241], where the CriminalCode of Cyprus, which penalized homosexual conduct, was alleged toconstitute an unjustified interference with the Applicant’s private life.

107. Five years after Dudgeon, the United States Supreme Court,in Bowers v. Hardwick (“Bowers”)[242], held that “sodomy” laws hadBbeen significant part of American history and did not violate theConstitution. The Supreme Court’s reasoning in Bowers is cleardeparture from that of the ECtHR in Dudgeon. In Bowers, the SupremeCourt declined to accept that the question concerned the right to privacy.Instead, it stated that the issue was about “a fundamental right uponhomosexuals to engage in sodomy”,[243] which was held not to be protectedCby the US Constitution.

Seventeen years later, the United States Supreme Court laid theconstitutional foundation for LGBT rights in the country with its judgmentin Lawrence v Texas (“Lawrence”).[244] In Lawrence, the Petitionerhad been arrested under Texas statute, which prohibited same-sexDpersons from engaging in sexual conduct, regardless of consent. Thevalidity of the statute was considered.

Relying on Dudgeon, the U S Supreme Court struck down the statuteas violative of the Due Process Clause of the Fourteenth Amendment tothe U.S. Constitution. Overruling the judgment in Bowers, JusticeEKennedy, writing for the majority, upheld Justice Stevens’ dissent inBowers – who was also part of the majority in Lawrence – to note that:

“Our prior cases make two propositions abundantly clear. First,the fact that the governing majority in State has traditionallyviewed particular practice as immoral is not sufficient reasonfor upholding law prohibiting the practice; neither history norFtradition could save law prohibiting miscegenation fromconstitutional attack. Second, individual decisions by marriedpersons, concerning the intimacies of their physical relationship,even when not intended to produce offspring, are form of“liberty” protected by the Due Process Clause of the FourteenthGAmendment. Moreover, this protection extends to intimatechoices by unmarried as well as married persons.”[245]

241Application No. 15070/89,16 EHRR 485.

242478 U.S. 186 (1986).243Bowers, at para 190.

244539 U.S. 558 (2003).H245Bowers, at para 216.

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He also noted that the case concerned the private, personal relationshipsof consenting adults, and that the laws challenged did not further anylegitimate state interest:

“The present case does not involve minors. It does not involvepersons who might be injured or coerced or who are situated inrelationships where consent might not easily be refused. It doesnot involve public conduct or prostitution. It does not involvewhether the government must give formal recognition to anyrelationship that homosexual persons seek to enter [eg, right tomarry or to register ‘civil union’]. The case does involve twoadults who, with full and mutual consent from each other, engagedin sexual practices common to homosexual lifestyle. Thepetitioners are entitled to respect for their private lives. The Statecannot demean their existence or control their destiny by makingtheir private sexual conduct crime. Their right to liberty underthe Due Process Clause gives them the full right to engage intheir conduct without intervention of the government. ... TheTexas statute furthers no legitimate state interest which can justifyits intrusion into the personal and private life of the individual....”108. Justice Kennedy also identified the harm caused by theoperation of the criminal law:

“When homosexual conduct is made criminal by the law of theState, that declaration in and of itself is an invitation to subjecthomosexual persons to discrimination both in the public and inthe private spheres.”

The Court thus struck down the Texas law banning “deviate sexualintercourse” between persons of the same sex (and similar laws in 13other US states and Puerto Rico), holding that:

“The laws involved in Bowers and here are, to be sure, statutesthat purport to do no more than prohibit particular sexual act.Their penalties and purposes, though, have more far-reaching consequences, touching upon the most privatehuman conduct, sexual behavior, and in the most privateof places, the home.The statutes do seek to control personalrelationship that, whether or not entitled to formal recognition inthe law, is within the liberty of persons to choose without beingpunished as criminals.” (Emphasis supplied)

A109. In Toonen,the UN Human Rights Committee held that lawsused to criminalize private, adult, consensual same-sex sexual relationsviolate the right to privacy and the right to non-discrimination. Mr. Toonen– member of the Tasmanian Gay Law Reform Group – had complainedto the Committee about Tasmanian law that criminalized ‘unnaturalsexual intercourse’, ‘intercourse against nature’ and ‘indecent practiceBbetween male persons’. The law allowed police officers to investigateintimate aspects of his private life and to detain him if they had reason tobelieve that he was involved in sexual activities with his long-term partnerin the privacy of their home. Mr Toonen challenged these laws as violativeof Article 2(1)[246], Article 17[247] and Article 26[248] of the ICCPR, on theCground that:

“[The provisions] have created the conditions for discriminationin employment, constant stigmatization, vilification, threats ofphysical violence and the violation of basic democratic rights.”[249]

The Committee rejected the argument that criminalization may be justifiedDas “reasonable” on grounds of protection of public health or morals,noting that the use of criminal law in such circumstances is neithernecessary nor proportionate:[250]

“As far as the public health argument of the Tasmanian authoritiesis concerned, the Committee notes that the criminalization ofEhomosexual practices cannot be considered reasonable meansor proportionate measure to achieve the aim of preventing thespread of AIDS/HIV.”

246 Article 2(1): Each State Party to the present Covenant undertakes to respect and toensure to all individuals within its territory and subject to its jurisdiction the rightsFrecognized in the present Covenant, without distinction of any kind, such as race,colour, sex, language, religion, political or other opinion, national or social origin,property, birth or other status.

247 Article 17: No one shall be subjected to arbitrary or unlawful interference with hisprivacy, family, home or correspondence, nor to unlawful attacks on his honourand reputation.248 Article 26: All persons are equal before the law and are entitled without anyGdiscrimination to the equal protection of the law. In this respect, the law shallprohibit any discrimination and guarantee to all persons equal and effectiveprotection against discrimination on any ground such as race, colour, sex, language,religion, political or other opinion, national or social origin, property, birth or otherstatus.

249 Toonen, at para 2.4.H250 Toonen, at para. 8.5.

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The Court concluded that the legislation was violative of Article 7 of theICCPR, holding that:

“… It is undisputed that adult consensual sexual activity in privateis covered by the concept of “privacy”, and that Mr. Toonen isactually and currently affected by the continued existence of theTasmanian laws.”[251]

110. In X v. Colombia[252], the Committee clarified that there isno “Global South exception” to Toonen.[253] The Egyptian and Tunisianmembers of the Committee, who dissented from the majority’s decisionrequiring equal treatment of unmarried same-sex and different-sexcouples, concurred with the principle laid down in Toonen:

“[T]here is no doubt that [A]rticle 17…is violated by discriminationon grounds of sexual orientation. The Committee…has rightlyand repeatedly found that protection against arbitrary or unlawfulinterference with privacy precludes prosecution and punishmentfor homosexual relations between consenting adults.”

111. The Constitutional Tribunal of Ecuador was the firstConstitutional Court in the Global South to decriminalise sodomy laws.[254]The constitutionality of Article 516 of the Penal Code, which penalised“cases of homosexualism, that do not constitute rape”, was challengedbefore the Tribunal. The Tribunal’s reasoning was that “this abnormalbehaviour should be the object of medical treatment ... imprisonment injails, creates suitable environment for the development of thisdysfunction.” The Tribunal’s line of reasoning – referring to homosexualactivity as ‘abnormal behaviour’, requiring medical treatment – is seriouslyproblematic.[255] That assumption is unfounded in fact and is an incorrectdoctrine for constitutional court which protects liberty and dignity.However ultimately, the Tribunal struck down the first paragraph ofArticle 516 of the Penal Code, holding that:

251 Toonen, at para 8.2.

252 Communication No. 1361/2005.

253 Robert Wintemute, “Same-Sex Love and Indian Penal Code §377: An ImportantHuman Rights Issue for India” National University of Juridical Sciences Law Review,(2011).

254 Case No. 111-97-TC (27 November 1997).

255 The Tribunal’s decision was criticized by LGBT rights activists for its descriptionof homosexuality as “abnormal conduct.” However, year after this decision,Ecuador became the third country in the world to include sexual orientation as aconstitutionally protected category against discrimination.

A“Homosexuals are above all holders of all the rights of the humanperson and therefore, have the right to exercise them in conditionsof full equality ... that is to say that their rights enjoy legalprotection, as long as in the exteriorisation of their behaviourthey do not harm the rights of others, as is the case with all otherpersons.”B

112. The adverse impact of sodomy laws on the lives ofhomosexual adults was also considered by the Constitutional Court ofSouth Africa in National Coalition for Gay and Lesbian Equality v.Minister of Justice (“National Coalition”)[256], in which theconstitutionality of the common law offenceof sodomy and otherClegislations which penalised unnatural sexual acts between men was atissue. The Constitutional Court unanimously found that the sodomy laws,all of which purported to proscribe sexual intimacy between homosexualadult men, violated their right to equality and discriminated against themon the basis of their sexual orientation.

DJustice Ackerman, concurring with the ECtHR’s observation in Norris,noted that:

“The discriminatory prohibitions on sex between men reinforcesalready existing societal prejudices and severely increases thenegative effects of such prejudices on their lives.”[257]EJustice Ackerman quoted from Edwin Cameron’s “Sexual Orientationand the Constitution: Test Case for Human Rights”[258]:

“Even when these provisions are not enforced, they reduce gaymen… to what one author has referred to as ‘unapprehendedfelons’, thus entrenching stigma and encouragingFdiscrimination in employment and insurance and in judicialdecisions about custody and other matters bearing onorientation.”[259] (Emphasis supplied)

Commenting on the violation of individuals’ rights to privacy and dignity,the Court held that:G

“Gay people are vulnerable minority group in our society.Sodomy laws criminalise their most intimate relationships. This

2561999 (1) SA 6 (CC).

257National Coalition, at para 23.258(1993) 110 SALJ 450.H259National Coalition, at para 23.

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devalues and degrades gay men and therefore constitutes aviolation of their fundamental right to dignity. Furthermore, theoffences criminalise private conduct between consenting adultswhich causes no harm to anyone else. This intrusion on theinnermost sphere of human life violates the constitutional right toprivacy. The fact that the offences, which lie at the heart of thediscrimination, also violate the rights to privacy and dignitystrengthens the conclusion that the discrimination against gaymen is unfair.”

In its conclusion, the Court held that all persons have right to “sphereof private intimacy and autonomy that allows [them] to establish andnurture human relationships without interference from the outsidecommunity.”[260]

113. In 2005, the High Court of Fiji, in Dhirendra Nadan ThomasMcCoskar v. State[261], struck down provisions of the Fijian Penal Code,which punished any person who permits male person to have “carnalknowledge” of him, as well as acts of “gross indecency” between malepersons. The High Court read down the provisions to the extent thatthey were inconsistent with the Constitution of Fiji, drawing cleardistinction between consensual and non-consensual sexual behavior:

“What the constitution requires is that the Law acknowledgesdifference, affirms dignity and allows equal respect to everycitizen as they are. The acceptance of difference celebratesdiversity. The affirmation of individual dignity offers respect tothe whole of society. The promotion of equality can be sourceof interactive vitality…A country so founded will put sexualexpression in private relationships into its properperspective and allow citizens to define their own goodmoral sensibilities leaving the law to its necessary dutiesof keeping sexual expression in check by protecting thevulnerable and penalizing the predator.” (Emphasis supplied)

In recent years, the Caribbean States of Belize and Trinidad and Tobagohave also decriminalized consensual sexual acts between adults in private.In Caleb Orozco v. The Attorney General of Belize (“CalebOrozco”)[262], provisions of the Belize Criminal Code which penalized

260 National Coalition, at para 32.

261 [2005] FJHC 500.

262 Claim No. 668 of 2010.

A“every person who has intercourse against the order of nature with anyperson…” were challenged before the Supreme Court. Commenting onthe concept of dignity, Justice Benjamin borrowed from the CanadianSupreme Court’s observations and noted that:[263]

“Human dignity means that an individual or group feels self-Brespect and self-worth. It is concerned with physical andpsychological integrity and empowerment. Human dignity isharmed by unfair treatment premised upon personal traitsor circumstances which do not relate to the individualneeds, capacities or merits. It is enhanced by laws which aresensitive to the needs, capacities and merits of different individuals,Ctaking into account the context underlying the differences.”(Emphasis supplied)

Relying on the judgments in Dudgeons,National Coalition, McCoskar,Toonen,andLawrence, the Supreme Court struck down the provisionas violative of the claimant’s constitutional rights to privacy, dignity, andDequality. Justice Benjamin held thus:

“However, from the perspective of legal principle, the Courtcannot act upon prevailing majority views or what is popularlyaccepted as moral…There must be demonstrated that some harmwill be caused should the proscribed conduct be renderedEunregulated. No evidence has been presented as to the reallikelihood of such harm. The duty of the Court is to apply theprovisions of the Constitution.”[264]

114. In Jason Jones v. The Attorney General of Trinidadand Tobago (“Jones”)[265], an expatriate gay rights activist living in theFUnited Kingdom challenged the provisions of Trinidad and Tobago’sSexual Offences Act, which criminalized ‘buggery’ and ‘seriousindecency’ before the High Court of Justice at Trinidad and Tobago.The central issue before the Court was whether the provisions were‘saved’ under Section 6 of the Constitution, which protects laws thatGwere in existence before the Constitution came into force and were onlymarginally changed since, from being struck down for breach offundamental rights.

263 Law v Canada (Minister of Employment and Immigration) [1999] 1 S.C.R. 497.

264 Caleb Orozco, at para 81.

265 Claim no. CV2017-00720.H

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The High Court struck down the provisions as unconstitutional, observingthat the right to choose partner and to have family is intrinsic to anindividual’s personal autonomy and dignity:

“To this court, human dignity is basic and inalienable rightrecognized worldwide in all democratic societies. Attached tothat right is the concept of autonomy and the right of an individualto make decisions for herself/himself without any unreasonableintervention by the State. In case such as this, she/he must beable to make decisions as to who she/he loves, incorporates inhis/her life, who she/he wishes to live with and with who to makea family.”[266]

The High Court also held that the existence of such laws deliberatelyundermined the lives of homosexuals:

“A citizen should not have to live under the constant threat, theproverbial “Sword of Damocles,” that at any moment she/hemay be persecuted or prosecuted. That is the threat that existsat present. It is threat that is sanctioned by the State and thatsanction is an important sanction because it justifies in the mindof others in society who are differently minded, that the verylifestyle, life and existence of person who chooses to live in theway that the claimant does is criminal and is deemed to be of alesser value than anyone else…The Parliament has taken thedeliberate decision to criminalise the lifestyle of persons like theclaimant whose ultimate expression of love and affection iscrystallised in an act which is statutorily unlawful, whether ornot enforced.”[267] (Emphasis supplied)

The High Court compared the impugned provisions to racial segregation,the Holocaust, and apartheid, observing that:

“To now deny perceived minority their right to humanity andhuman dignity would be to continue this type of thinking, thistype of perceived superiority, based on the genuinely held beliefsof some.”[268]

115. In Leung TC William Roy v. Secretary for Justice[269],the High Court of Hong Kong considered the constitutional validity of

266 Jones, at para 91.267 Ibid.268 Jones, at para 171.269 Civil Appeal No. 317 of 2005.

Aprovisions that prescribed different ages of consent for buggery andregular sexual intercourse. The court held that these provisions violatedthe petitioner’s rights to privacy and equality:

“Denying persons of minority class the right to sexual expressionin the only way available to them, even if that way is denied toBall, remains discriminatory when persons of majority class arepermitted the right to sexual expression in way natural to them. During the course of submissions, it was described as ‘disguiseddiscrimination’. It is, I think, an apt description. It is disguiseddiscrimination founded on single base: sexual orientation.”[270]

CThe Court concluded that the difference in the ages of consent wasunjustifiable, noting that:

“No evidence has been placed before us to explain why theminimum age requirement for buggery is 21 whereas as far assexual intercourse between man and woman is concerned,Dthe age of consent is only 16. There is, for example, no medicalreason for this and none was suggested in the course ofargument.”[271]

Courts around the world have not stopped at decriminalizing sodomylaws; they have gone step further and developed catena of broaderErights and protections for homosexuals. These rights go beyond the merefreedom to engage in consensual sexual activity in private, and includethe right to full citizenship, the right to form unions and the right to familylife.

116. Israel was one of the first countries to recognize the rightsof homosexuals against discrimination in matters of employment. In El-FAl Israel Airlines Ltd v. Jonathan Danielwitz (“El-Al IsraelAirlines”)[272], the Supreme Court of Israel considered an airline company’spolicy of giving discounted tickets to their employees and ‘companionrecognized as the husband/wife of the employee’. This benefit was alsogiven to partner with whom the employee was living together likeGhusband and wife, but not married. However, the airline refused to givethe discounted tickets to the Respondent and his male partner.

270 Ibid, at para 48.271 Ibid, at para 51.272 HCJ 721/94.H

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The Supreme Court of Israel observed thus:

“The principle of equality demands that the existence of rulethat treats people differently is justified by the nature andsubstance of the issue…therefore, particular law will creatediscrimination when two individuals who are different from oneanother (factual inequality), are treated differently by the law,even though the factual difference between them does notjustify different treatment in the circumstances.”[273]

(Emphasis supplied)

The Supreme Court held that giving benefit to an employee who has aspouse of the opposite sex and denying the same benefit to an employeewhose spouse is of the same sex amounts to discrimination based onsexual orientation. This violated the Petitioner’s right to equality andcreated an unjustifiable distinction in the context of employee benefits.

117. In Vriend v Alberta[274], the appellant, homosexual collegeemployee, was terminated from his job. He alleged that his employerhad discriminated against him because of his sexual orientation, but thathe could not make complaint under Canada’s anti-discrimination statute– the Individual’s Rights Protection Act (“IRPA”) – because it did notinclude sexual orientation as protected ground. The Supreme Court ofCanada held that the omission of protection against discrimination on thebasis of sexual orientation was an unjustified violation of the right toequality under the Canadian Charter of Rights and Freedoms.

118. The Supreme Court held that the State had failed to providea rational justification for the omission of sexual orientation as protectedground under the IRPA. Commenting on the domino effect that suchdiscriminatory measures have on the lives of homosexuals, the SupremeCourt noted thus:

“Perhaps most important is the psychological harm which mayensue from this state of affairs. Fear of discrimination will logicallylead to concealment of true identity and this must be harmful topersonal confidence and self-esteem. Compounding that effectis the implicit message conveyed by the exclusion, that gays andlesbians, unlike other individuals, are not worthy of protection.

273 El-A Israel Airlines, at para 14.

274 (1998) 1 S.C.R. 493.

DEF

AThis is clearly an example of distinction which demeans theindividual and strengthens and perpetrates [sic] the view thatgays and lesbians are less worthy of protection as individuals inCanada’s society. The potential harm to the dignity and perceivedworth of gay and lesbian individuals constitutes particularlycruel form of discrimination.”

The next breakthrough for LGBTQ rights came from the Supreme Courtof Nepal, in Sunil Babu Pant v. Nepal Government[275]. Sunil Pant –the first openly gay Asian national leader – filed PIL before the SupremeCourt of Nepal praying for the recognition of the rights of lesbians, gays,and third gender persons. The Supreme Court located the rights ofCLGBTQ persons to their sexuality within the right to privacy, holding

that:

“The right to privacy is fundamental right of any individual.The issue of sexual activity falls under the definition of privacy.No one has the right to question how do two adults perform theDsexual intercourse and whether this intercourse is natural orunnatural.”

The Court held that all individuals have an inherent right to marriage,regardless of their sexual orientation:

E“Looking at the issue of same sex marriage, we hold that it is aninherent right of an adult to have marital relation with anotheradult with his/her free consent and according to her/his will.”

In concluding, the Court directed the Nepalese government to enactnew legislation or amend existing legislation to ensure that persons of allsexual orientations and gender identities could enjoy equal rights.F

119. In 2015, in Oliari v Italy (“Oliari”)[276], the Applicants beforethe ECtHR argued that the absence of legislation in Italy permittingsame-sex marriage or any other type of civil union constituteddiscrimination on the basis of sexual orientation, in violation of Articles 8,12, and 14 of the European Convention on Human Rights. In line with itsGprevious case law, the Court affirmed that same-sex couples “are inneed of legal recognition and protection of their relationship.”[277] TheECtHR concluded that gay couples are equally capable of entering into

275 Writ Petition No. 917 of 2007.

276 [2015] ECHR 716

H277 Oliari, at para 165.

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stable and committed relationships in the same way as heterosexualcouples.[278]

120. The ECtHR examined the domestic context in Italy, and noteda clear gap between the “social reality of the applicants”,[279] who openlylive their relationship, and the law, which fails to formally recognize same-sex partnerships. The Court held that in the absence of any evidence ofa prevailing community interest in preventing legal recognition of same-sex partnerships, Italian authorities “have overstepped their margin ofappreciation and failed to fulfil their positive obligation to ensure that theapplicants have available specific legal framework providing for therecognition and protection of their same-sex unions.”[280]

121. In 2013, in United States v. Windsor[281], US Supreme Courtconsidered the constitutionality of the Defense of Marriage Act(“DOMA”) which states that, for the purposes of federal law, the words‘marriage’ and ‘spouse’ refer to legal unions between one man and onewoman. Windsor, who had inherited the estate of her same-sex partner,was barred from claiming the federal estate tax exemption for survivingspouses since her marriage was not recognized by federal law.[282 ]JusticeKennedy writing for the majority, held that restricting the federalinterpretation of ‘marriage’ and ‘spouse’ to apply only to opposite-sexunions was unconstitutional under the Due Process Clause of the FifthAmendment:

“Its [the DOMA’s] unusual deviation from the tradition ofrecognizing and accepting state definitions of marriage operatesto deprive same-sex couples of the benefits and responsibilitiesthat come with federal recognition of their marriages. This isstrong evidence of law having the purpose and effect ofdisapproval of class recognized and protected by state law.DOMA’s avowed purpose and practical effect are to impose adisadvantage, separate status, and so stigma upon all whoenter into same-sex marriages made lawful by the unquestionedauthority of the States.”

278 Ibid.

279 Oliari, at para. 173.

280 Oliari, at para 185.

281 570 U.S. 744 (2013).

282 Section 3, Defense of Marriage Act.

ATwo years later, in Obergefell v. Hodges (“Obergefell”),[283] whileanalysing precedent and decisions of other US courts recognizing same-sex marriage, Justice Kennedy observed that:

“A first premise of the Court’s relevant precedents is that theright to personal choice regarding marriage is inherent in theBconcept of individual autonomy… Like choices concerningcontraception, family relationships, procreation, and childrearing,all of which are protected by the Constitution, decisionsconcerning marriage are among the most intimate that anindividual can make.”[284]

C122. Justice Kennedy expressed the need to go beyond the narrowholding in Lawrence, towards more expansive view of the rights ofhomosexuals:

“Lawrence invalidated laws that made same- sex intimacy acriminal act... But while Lawrence confirmed dimensionDof freedom that allows individuals to engage in intimateassociation without criminal liability, it does not follow thatfreedom stops there. Outlaw to outcast may be stepforward, but it does not achieve the full promise of liberty.”(Emphasis supplied)

EBy 5-4 majority, the US Supreme Court ruled that the fundamentalright to marry is guaranteed to same-sex couples by the Due ProcessClause and the Equal Protection Clause of the Fourteenth Amendmentto the US Constitution. Commenting on the right to marriage, JusticeKennedy noted:

“No union is more profound than marriage, for it embodies theFhighest ideals of love, fidelity, devotion, sacrifice, and family. …It would misunderstand these men and women to say theydisrespect the idea of marriage. Their plea is that they do respectit, respect it so deeply that they seek to find its fulfilment forthemselves. Their hope is not to be condemned to live in loneliness,Gexcluded from one of civilization’s oldest institutions. They askfor equal dignity in the eyes of the law. The Constitution grantsthem that right.”

283 576 U.S. ___ (2015).284 Obergefell, at page 12.H

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123. The recent case ofMasterpiece Cakeshop v. ColoradoCivil Rights Commission (“Masterpiece Cakeshop”)[285] concerned aChristian baker who was accused of violating an anti-discriminationordinance for refusing to make wedding cake for same-sex couplebased on his religious beliefs. The Colorado Civil Rights Commission(“CCRC”) decided against the baker, and, on appeal, the Supreme Courtruled 7-2 that the CCRC violated the baker’s rights under the FirstAmendment, which guarantees freedom of expression.

Writing for the majority, Justice Kennedy said the CCRC showed“hostility” to the baker’s religious beliefs:

“It must be concluded that the State’s interest could have beenweighed against Phillips’ sincere religious objections in wayconsistent with the requisite religious neutrality that must be strictlyobserved. The official expressions of hostility to religion in someof the commissioners’ comments—comments that were notdisavowed at the Commission or by the State at any point in theproceedings that led to affirmance of the order—wereinconsistent with what the Free Exercise Clause requires. TheCommission’s disparate consideration of Phillips’ case comparedto the cases of the other bakers suggests the same. For thesereasons, the order must be set aside.”

The majority held that while the Constitution allows gay persons toexercise their civil rights, “religious and philosophical objections to gaymarriage are protected views and in some instances protected forms ofexpression.” The Supreme Court found merit in the baker’s FirstAmendment claim, noting that his dilemma was understandable, especiallygiven that the cause of action arose in 2012, before the enactment ofColorado’s anti-discrimination law and the Obergefell judgment thatlegalised same-sex marriage.

The court buttressed its position by noting that in several other cases,bakers had declined to decorate cakes with messages that werederogatory towards gay persons and the State Civil Rights Division hadheld that the bakers were within their rights to have done so. Accordingto the majority in Masterpiece Cakeshop, the owner was similarlyentitled to decline the order, and his case should have been treated nodifferently.

A124. Justice Ginsburg’s dissenting opinion, which was supportedby Justice Sotomayor, distinguished the baker in MasterpieceCakeshop from the other three bakers. Justice Ginsburg noted thatwhile the other bakers would have refused the said cake decorations toall customers, Phillips refused to bake wedding cake (which he bakedfor other customers), specifically for the couple. She observed that:B

“Phillips declined to make cake he found offensive where theoffensiveness of the product was determined solely by theidentity of the customer requesting it. The three otherbakeries declined to make cakes where their objection to theproduct was due to the demeaning message the requestedCproduct would literally display.”

(Emphasis supplied)

“When couple contacts bakery for wedding cake, theproduct they are seeking is cake celebrating their wedding—Dnot cake celebrating heterosexual weddings or same-sexweddings—and that is the service Craig and Mullins weredenied.”

Justice Ginsburg concluded that proper application of the ColoradoAnti-Discrimination Act would require upholding the lower courts’ rulings.E125. Masterpiece Cakeshop is also distinguishable from

E125. Masterpiece Cakeshop is also distinguishable from asimilar case, Lee v. Ashers Bakery Co. Ltd.[286], which is currently onappeal to the United Kingdom Supreme Court. In that case, bakery inNorthern Ireland offered service whereby customers could providemessages, pictures or graphics that would be iced on cake. Lee – amember of an LGBT organisation – ordered cake with the wordsF“support gay marriage” on it. The Christian owners refused, stating thatpreparing such an order would conflict with their religious beliefs. Leeclaimed that in refusing his order, the bakery discriminated against himon grounds of sexual orientation. Both the County Court and the Courtof Appeal ruled in favour of Lee, on the ground that the respondent’sGrefusal on the ground of his religious beliefs was contrary to the provisionsof the Equality Act (Sexual Orientation) Regulations (Northern Ireland)2006 and the Fair Employment and Treatment Order 1998.

286 [2015] NICty 2.

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From an analysis of comparative jurisprudence from across the world,the following principles emerge:

1.Sexual orientation is an intrinsic element of liberty, dignity,privacy, individual autonomy and equality;

2.Intimacy between consenting adults of the same-sex is beyondthe legitimate interests of the state;

3.Sodomy laws violate equality by targeting segment of thepopulation for their sexual orientation;

4.Such law perpetrates stereotypes, lends authority of the stateto societal stereotypes and has chilling effect on the exerciseof freedom;

5.The right to love and to partner, to find fulfillment in same-sex relationship is essential to society which believes infreedom under constitutional order based on rights;

6.Sexual orientation implicates negative and positive obligationson the state. It not only requires the state not to discriminate,but also calls for the state to recognise rights which bring truefulfillment to same-sex relationships; and

7.The constitutional principles which have led to decriminalizationmust continuously engage in rights discourse to ensure thatsame-sex relationships find true fulfillment in every facet oflife. The law cannot discriminate against same-sex relationships.It must also take positive steps to achieve equal protection.

The past two decades have witnessed several decisions by constitutionaland international courts, recognizing both the decriminalization of same-sex intercourse in private, as well as broader rights recognizing sexualorientation equality. In 1996, South Africa became the first country inthe world to constitutionally prohibit discrimination based on sexualorientation.[287] As on the date of this judgment, ten countries constitutionallyprohibit discrimination on grounds of sexual orientation.[288] The United

287 Amy Raub, “Protections Of Equal Rights Across Sexual Orientation And GenderIdentity: An Analysis Of 193 National Constitutions”, Yale Journal of Law andFeminism, Vol. 28 (2017).

288 Ibid. Of these, three are in the Americas (Bolivia, Ecuador, and Mexico), four are inEurope and Central Asia (Malta, Portugal, Sweden, and the United Kingdom), twoare in East Asia and the Pacific (Fiji and New Zealand), and one is in Sub-SaharanAfrica (South Africa).

AKingdom, Bolivia, Ecuador, Fiji, and Malta specifically prohibitdiscrimination on the basis of gender identity, either constitutionally orthrough enacted laws.[289] According the International Lesbian, Gay,Bisexual, Trans and Intersex Association, 74 countries (including India)criminalize same-sex sexual conduct, as of 2017.[290] Most of thesecountries lie in the Sub-Saharan and Middle East region. Some of themBprescribe death penalty for homosexuality.[291]

126. We are aware that socio-historical contexts differ from onejurisdiction to another and that we must therefore look at comparativelaw-making allowances for them. However, the overwhelming weightof international opinion and the dramatic increase in the pace ofCrecognition of fundamental rights for same-sex couples reflects growingconsensus towards sexual orientation equality. We feel inclined to concurwith the accumulated wisdom reflected in these judgments, not todetermine the meaning of the guarantees contained within the IndianConstitution, but to provide sound and appreciable confirmation of ourDconclusions about those guarantees.

This evolution has enabled societies governed by liberal constitutionalvalues – such as liberty, dignity, privacy, equality and individual autonomy– to move beyond decriminalisation of offences involving consensualsame-sex relationships. Decriminalisation is of course necessary to burythe ghosts of morality which flourished in radically different age andEtime. But decriminalisation is first step. The constitutional principles onwhich it is based have application to broader range of entitlements.The Indian Constitution is based on an abiding faith in those constitutionalvalues. In the march of civilizations across the spectrum of acompassionate global order, India cannot be left behind.

FK Crime, morality and the Constitution

127. The question of what qualifies as punishable offence underthe law has played central role in legal theory. Attempts have beenmade by legal scholars and jurists alike, to define crime. Halsbury’sLaws of England defines crime as “an unlawful act or default whichGis an offence against the public and renders the person guilty of the actor default liable to legal punishment.”[292] As Glanville Williams observes:

289 Ibid.

290 The International Lesbian, Gay, Bisexual, Trans And Intersex Association, “SexualOrientation Laws of the World”, (2017).

291 Ibid.H292 Halsbury’s Laws of England. 3rd edition, Vol. 3, Butterworths (1953) at page. 271.

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“A crime is an act capable of being followed by criminalproceedings, having criminal outcome…criminal law is thatbranch of law which deals with conduct…by prosecution in thecriminal courts.”[293]

Henry Hart, in his essay titled “The Aims of Criminal Law”,[294] commentson the difficulty of definition in this branch of law. crime is crimebecause it is called crime:

“If one were to judge from the notions apparently underlyingmany judicial opinions, and the overt language even of some ofthem, the solution of the puzzle is simply that crime is anythingwhich is called crime, and criminal penalty is simply thepenalty provided for doing anything which has been given thatname.”[295]

However, Hart confesses that such simplistic definition would be “abetrayal of intellectual bankruptcy.”[296] Roscoe Pound articulates thedilemma in defining what constitutes an offence:

“A final answer to the question ‘what is crime?’, is impossible,because law is living, changing thing, which may at one timebe uniform, and at another time give much room for judicialdiscretion, which may at one time be more specific in itsprescription and at another time much more general.”[297]

Early philosophers sought to define crime by distinguishing it from civilwrong. In his study of rhetoric, Aristotle observed that:

“Justice in relation to the person is defined in two ways. For it isdefined either in relation to the community or to one of its memberswhat one should or should not do. Accordingly, it is possible toperform just and unjust acts in two ways, either towards definedindividual or towards the community.”[298]

293 Glanville Williams, ‘The Definition of Crime’, Current Legal Problems, Vol. 8(1955).

294 Henry M. Hart, “The Aims of the Criminal Law”, Law and Contemporary Problems,Vol. 23 (1958), at pages 401–441.

295 Ibid.

296 Ibid.

297 Roscoe Pound, Interpretation of Legal History, Harvard University Press (1946).

298 H.C. Lawson-Tancred, The Art of Rhetoric/ Aristotle, Penguin (2004).

AKant, in the Metaphysics of Morals,[299] observed that:

“A transgression of public law that makes someone who commitsit unfit to be citizen is called crime simply (crimen) but is alsocalled public crime (crimen publicum); so the first (privatecrime) is brought before civil court, the latter before criminalBcourt.”[300]

Another method of defining crime is from the nature of injury caused,“of being public, as opposed to private, wrongs.”[301] This distinction wasbrought out by Blackstone and later by Duff, in their theories on criminallaw. Blackstone, in his “Commentaries on the Laws of England” putCforth the idea that only actions which constitute ‘public wrong’ will beclassified as crime.[302] He characterised public wrongs as “a breachand violation of the public rights and duties, due to the whole community,considered as community, in its social aggregate capacity.”[303] Duffadds to the idea of public wrong by arguing that “[w]e should interpreta ‘public’ wrong, not as wrong that injures the public, but as one thatDproperly concerns the public, i.e. the polity as whole.”[304]

Nozick and Becker also support the theory that crime is conduct thatharms the public. Nozick argues that the harm caused by crime, unlikeother private law wrongs, extends beyond the immediate victim to allthose who view themselves as potential victims of the crime.[305] WhenEsuch an act is done on purpose, it spreads fear in the general community,and it is due to this additional harm to the community [of causing fearand insecurity], that such actions are classified as crimes and pursuedby the state.[306] Becker preferred to describe crime as something whichdisrupts social stability and has “the potential for destructive disturbanceof fundamental social structures.”[307]F

299 Immanuel Kant: The Metaphysics of Morals (Mary Gregor ed.), CambridgeUniversity Press (1996).

300 Ibid, at pages 353, 331.

301 Grant Lamond, “What is Crime?”, Oxford Journal of Legal Studies, Vol.27 (2007).

302 Sir William Blackstone, Commentaries on the Laws of England, Book IV, Ch. 1 & 2.G303 Ibid.

304 Antony Duff and Sandra Marshall, “Criminalization and Sharing Wrongs”, CanadianJournal of Law and Jurisprudence, Vol. 11, (1998) at pages 7-22.

305 Robert Nozick, Anarchy, State and Utopia, Basic Books (1974) ,at page 65.

306 Supra note 301.

307 Lawrence C. Becker, “Criminal Attempts and the Theory of the Law of Crimes”,HPhilosophy & Public Affairs, Vol 3 (1974), at page 273.

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However, Hart questioned the theory of simply defining crime as publicwrong, for all wrongs affect society in some way or the other:

“Can crimes be distinguished from civil wrongs on the groundthat they constitute injuries to society generally which society isinterested in preventing? The difficulty is that society is interestedalso in the due fulfilment of contracts and the avoidance of trafficaccidents and most of the other stuff of civil litigation.”[308]

128. Hart preferred to define crime in terms of the methodologyof criminal law and the characteristics of this method. He describedcriminal law as possessing the following features:

“1. The method operates by means of series of directions, orcommands, formulated in general terms, telling people what theymust or must not do…

2. The commands are taken as valid and binding upon all thosewho fall within their terms when the time comes for complyingwith them, whether or not they have been formulated in advancein single authoritative set of words…

3. The commands are subject to one or more sanctions fordisobedience which the community is prepared to enforce…

4. What distinguishes criminal from civil sanction andall that distinguishes it, it is ventured, is the judgment ofcommunity condemnation which accompanies and justifiesits imposition.”[309] (Numbering and emphasis supplied)

According to Hart, the first three characteristics above are common toboth civil and criminal law.[310] However, the key differentiating factorbetween criminal and civil law, he observed, is the “communitycondemnation.”[311] Thus, he attempted to define crime as:

“Conduct which, if duly shown to have taken place, will incur aformal and solemn pronouncement of the moral condemnationof the community.”[312]

308 Supra note 294.

309 Ibid.

310 Ibid.

311 Ibid.

312 Ibid.

DEF

APerhaps it is difficult to carve out single definition of crime due to themulti-dimensional nature of criminal law. The process of deconstructingthe criminalisation of consensual sexual acts by adults will be facilitatedby examining some criminal theories and their interplay with Section 377.

Criminal Law TheoriesBBentham’s Utilitarian Theory

129. Utilitarianism has provided some of the most powerfulcritiques of existing laws. Bentham was one of the earliest supportersfor reform in sodomy laws. In his essay, “Offences Against One’s Self”,[313]Bentham rebutted all the justifications given by the state for enactingClaws on sodomy.[314] According to Bentham, homosexuality, if viewedoutside the realms of morality and religion, is neutral behaviour whichgives the participants pleasure and does not cause pain to anyone else.[315]Therefore, he concluded that such an act cannot constitute an offence,and there is “no reason for punishing it at all.”[316]

130. Bentham tested sodomy laws on three main principles: (i)whether they produce any primary mischief, i.e., direct harm to anotherperson; (ii) whether they produce any secondary mischief, i.e., harm tothe stability and security of society; and (iii) whether they cause anydanger to society.[317] He argued that sodomy laws do not satisfy any ofEthe above tests, and hence, should be repealed. On the first principle ofprimary mischief, Bentham said:

“As to any primary mischief, it is evident that it produces no painin anyone. On the contrary it produces pleasure, and that apleasure which, by their perverted taste, is by this suppositionpreferred to that pleasure which is in general reputed the greatest.FThe partners are both willing. If either of them be unwilling, theact is not that which we have here in view: it is an offence totallydifferent in its nature of effects: it is personal injury; it is kindof rape.”[318]

G313 Jeremy Bentham, “Offences Against One’s Self” (Louis Crompton Ed.), ColumbiaUniversity.314 Ibid.315 Ibid.316 Ibid.317 Ibid.318 Ibid.

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Thus, Bentham argued that consensual homosexual acts do not harmanyone else. Instead, they are source of pleasure to adults who chooseto engage in them. Bentham was clear about the distinction between‘willing’ partners and ‘unwilling’ partners, and the latter according tohim, would not fall under his defence.

Bentham’s second argument was that there was no secondary mischief,which he described as something which may “produce any alarm in thecommunity.” On this, Bentham argued:

“As to any secondary mischief, it produces not any pain ofapprehension. For what is there in it for any body to be afraidof? By the supposition, those only are the objects of it who chooseto be so, who find pleasure, for so it seems they do, in beingso.”[319]

Bentham’s explanation was that only those adults who choose will bethe objects of homosexual sexual acts. It does not involve any activitywhich will create anxiety among the rest of the society. Therefore,homosexuality does not cause secondary harm either.

Lastly, Bentham tested sodomy laws on whether they cause danger tosociety. The only danger that Bentham could apprehend was the supposeddanger of encouraging others to engage in homosexual practices.However, Bentham argues that since homosexual activities in themselvesdo not cause any harm, there is no danger even if they have dominoeffect on other individuals:

“As to any danger exclusive of pain, the danger, if any, mustconsist in the tendency of the example. But what is the tendencyof this example? To dispose others to engage in the samepractises: but this practise for anything that has yet appearedproduces not pain of any kind to anyone.”[320]

Thus, according to Bentham, sodomy laws fail on all three grounds- theyneither cause primary mischief, nor secondary mischief, nor any dangerto society.

Bentham also critiqued criminal laws by analysing the utility of thepunishment prescribed by them. He succinctly described the objectiveof law through the principles of utility- “The general object which alllaws have, or ought to have…is to augment the total happiness of the

319 Ibid.320 Ibid.

Acommunity; [and] to exclude…everything that tends to subtract fromthat happiness.”[321] According to Bentham, “all punishment in itself isevil”[322] because it reduces the level of happiness in society, and shouldbe prescribed only if it “excludes some greater evil.”[323] Bentham stipulatedfour kinds of situations where it is not utilitarian to inflict punishment:

B“1. Where it is groundless: where there is no mischief for it toprevent; the act not being mischievous upon the whole.

2. Where it must be inefficacious: where it cannot act so as toprevent the mischief.

3. Where it is unprofitable, or too expensive: where the mischiefCit would produce would be greater than what it prevented.

4. Where it is needless: where the mischief may be prevented,or cease of itself, without it: that is, at cheaper rate.”[324]

The Harm Principle

131. John Stuart Mill, in his treatise “On Liberty,” makes aDpowerful case to preclude governments from interfering in those areasof an individual’s life which are private. Mill’s theory, which came to becalled the “harm principle”, suggests that the state can intrude into privatelife by way of sanction only if harm is caused to others or if the conductis “other-affecting.”[325] In Mill’s words:

“The only purpose for which power can be rightfully exercisedEover any member of civilised community, against his will, is toprevent harm to others. His own good, either physical or moral, isnot sufficient warrant. He cannot rightfully be compelled to door forbear because it will be better for him to do so, because it willmake him happier, because, in the opinions of others, to do soFwould be wise, or even right… The only part of the conduct ofany one, for which he is amenable to society, is that which concernsothers. In the part which merely concerns himself, hisindependence is, of right, absolute. Over himself, over his ownbody and mind, the individual is sovereign.”[326 ](Emphasissupplied)

321Ibid.322Ibid.323Ibid.

324Jeremy Bentham, An Introduction to the Principles of Morals and Legislation,The Library of Economics and Liberty (1823).

325John Stuart Mill, On Liberty, (Elizabeth Rapaport ed), Hackett Publishing Co, IncH(1978).326Ibid.

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Mill created dichotomy between “self-regarding” actions (those whichaffect the individual himself and have no significant effect on society atlarge) and “other-regarding” actions (those which affect the society).[327]He was aware that in way, all actions of an individual are likely toaffect “those nearly connected with him and, in minor degree, societyat large.”[328] However, he argued that as long as an action does not“violate distinct and assignable obligation to any other person or persons”,it may not be taken out of the self-regarding class of actions.[329] Thus,Mill proposed that “all that portion of person’s life and conduct whichaffects only himself, or, if it also affects others, only with their free,voluntary, and undeceived consent and participation” should be free fromstate interference.[330] He further added that the state and society are notjustified in interfering in the self-regarding sphere, merely because theybelieve certain conduct to be “foolish, perverse, or wrong.”[331]

Essentially, Mill created taxonomy on types of conduct – (a) self-regarding actions should not be the subject of sanctions either from thestate or society; (b) actions which may hurt others but do not violate anylegal rights may only be the subject of public condemnation but not statesanction; (c) only action which violate the legal rights of others shouldbe the subject of legal sanction (and public condemnation).[332] The harmprinciple thus, operated as negative or limiting principle, with the mainobjective of restricting criminal law from penalising conduct merely onthe basis of its perceived immorality or unacceptability when the same isnot harmful.[333]

While Mill’s theory was not propounded in relation to LGBTQ rights, hisunderstanding of criminal law is well-suited to argue that sodomy lawscriminalise ‘self-regarding’ actions which fall under the first category ofconduct, and should not be subjected to sanctions either by the state orthe society.

327 Ibid.

328 Ibid.

329 Ibid.

330 Ibid.

331 Ibid.332 Mark Strasser, “Lawrence, Mill, and Same Sex Relationships: On Values, Valuingand the Constitution”, Southern California Interdisciplinary Law Journal, Vol. 15(2006).

333 Joseph Raz, ‘Autonomy, Toleration and the Harm Principle’, in Issues inContemporary Legal Philosophy: The Influence of HLA Hart (R. Gavison ed.),Oxford University Press (1987).

A132. jurisprudential debate on the interplay between criminallaw and morality was set off when Lord Devlin delivered the 1959Maccabean Lecture, titled “The Enforcement of Morals.”[334] LordDevlin’s lecture was an attack against the Report of the WolfendenCommittee on Homosexual Offences and Prostitution (“WolfendenReport”), which had recommended the decriminalisation of sodomy lawsBin England.[335] The Wolfenden Committee, headed by Sir John Wolfenden,Vice-Chancellor of Reading University, was set up in 1954 to considerthe criminalisation of homosexuality and prostitution, in the wake ofincreased arrests and convictions in the UK for homosexuality betweenmen.[336] Among those prosecuted for ‘gross indecency’ under the BuggeryCAct of 1553 and Sexual Offences Act of 1967 were eminent personslike Oscar Wilde, Alan Turing and Lord Montagu of Beaulieu.[337] Afterconducting three-year long inquiry, carrying out empirical research,and interviewing three gay men, the Wolfenden Committee released itsReport in 1957.[338] The Wolfenden Report recommended that:

D“Homosexual behaviour between consenting adults should nolonger be criminal offence... Unless deliberate attempt is tobe made by society, acting through the agency of the law, toequate the sphere of crime with that of sin, there must remain arealm of private morality and immorality which is, in brief andcrude terms, not the law’s business.”[339]EThe Wolfenden Report stated that “it is not the purpose of law to intervenein the private lives of citizens, or to seek to enforce any particular patternof behaviour…”[340] The Wolfenden Report acknowledged that the lawand public opinion have close relationship with each other – the lawought to “follow behind public opinion” so that it garners the communityFsupport, while at the same time, the law must also fortify and lead publicopinion.[341] However, it made out strong case for divorcing moralityfrom criminal law and stated that - “moral conviction or instinctive feeling,however strong, is not valid basis for overriding the individual’s privacy

334 Graham Hughes, “Morals and the Criminal Law”, The Yale Law Journal, Vol.71G(1962).335 Supra note 29.336 Ibid.337 Ibid.338 Ibid.

339 Supra note 29, at paras 61 and 62.340 Ibid, at para 14.H341 Ibid, at para 16.

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and for bringing within the ambit of the criminal law private sexualbehaviour of this kind.”[342] Stating that homosexuality is not mentalillness, the Wolfenden Report clarified that homosexuality is “a sexualpropensity for persons of one’s own sex…[it] is state or condition, andas such does not, and cannot, come within the purview of criminal law.”[343]

133. Lord Devlin, perturbed by the Wolfenden Report’s line ofreasoning, framed questions on the issue of criminal law and morality:

“1. Has society the right to pass judgments on all matters ofmorals?

2. If society has the right to pass judgment, has it also the right touse the weapon of the law to enforce it?”[344]

Devlin believed that society depends upon common morality for itsstability and existence.[345] On the basis of this belief, Devlin answeredthe above questions in the affirmative, stating that – society has the rightto pass judgments on all matters of morality and also the right to use lawto enforce such morality.[346] Devlin reasoned that society woulddisintegrate if common morality was not observed. Therefore, societyis justified in taking steps to preserve its morality as much as it preservesthe government.[347] Devlin proposed that the common morality or“collective judgment of the society” should be ascertained taking intoconsideration the “reasonable man.”[348] According to him, reasonableman is an ordinary man whose judgment “may largely be matter offeeling.”[349] He added that if the reasonable man believed practice tobe immoral, and held this belief honestly and dispassionately, then for thepurpose of law such practice should be considered immoral.[350]

134. Countering Devlin’s theory, Hart argued that society is notheld together by common morality, for, after all, it is not hive mind ora monolith, governed by singular set of morals and principles.[351] Hart

342 Ibid, at para 54.

343 Ibid, at para 18.

344 Sir Patrick Arthur Devlin, “The Enforcement Of Morals” Oxford University Press

(1959) at page 9.

345 Supra note 334, at page 662.

346 Animesh Sharma, “Section 377: No Jurisprudential Basis.” Economic and PoliticalWeekly, Vol. 43 (2008) at pages 12-14.

347 Supra note 344.

348 Ibid.

349 Ibid.

350 Ibid.

351 Supra note 346, at pages 12-14.

Arebutted Devlin’s argument in the following way:

“…apart from one vague reference to ‘history’ showing the ‘theloosening of moral bonds is often the first stage of disintegration,’no evidence is produced to show that deviation from acceptedsexual morality, even by adults in private is something which,Blike treason, threatens the existence of society. No reputablehistorian has maintained this thesis, and there is indeed muchevidence against it…Lord Devlin’s belief in it [that homosexualityis cause of societal disintegration], and his apparent indifferenceto the question of evidence, are at points traceable to anundiscussed assumption. This is that all morality – sexual moralityCtogether with the morality that forbids acts injurious to otherssuch as killing, stealing, and dishonesty — forms single seamlessweb, so that those who deviate from any part are likely to perhapsbound to deviate from the whole. It is of course clear (and oneof the oldest insights of political theory) that society could notDexist without morality which mirrored and supplemented thelaw’s proscription of conduct injurious to others. But there isagain no evidence to support, and much to refute, the theory thatthose who deviate from conventional sexual morality are in otherways hostile to society.”[352]

EDespite countering Devlin, Hart was not completely opposed to arelationship between law and morality, and in fact, he emphasised thatthe two are closely related:

“The law of every modem state shows at thousand points theinfluence of both the accepted social morality and wider moralFideals. These influences enter into law either abruptly andavowedly through legislation, or silently and piecemeal throughthe judicial process…The further ways in which law mirrorsmorality are myriad, and still insufficiently studied: statutes maybe mere legal shell and demand by their express terms to befilled out with the aid of moral principles; the range of enforceableGcontracts may be limited by reference to conceptions of moralityand fair- ness; liability for both civil and criminal wrongs may beadjusted to prevailing views of moral responsibility.”[353]

352 Hart, H. L. A, “The Changing Sense of Morality” In Political Thought (MichaelRosen and Jonathan Wolff eds.), Oxford University Press (1999) at pages 140-141.353 H.L.A. Hart, Law, Liberty And Morality (1979).H

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However, unlike Devlin, Hart did not propose that morality is necessarycondition for the validity of law.[354 ]Hart argued, in summary, that “law ismorally relevant,” but “not morally conclusive.”[355 ]Hart vehementlydisagreed with Devlin’s view that if laws are not based on some collectivemorality and enacted to buttress that morality, society will disintegrate.[356]Hart draws this distinction by conceding that certain sexual acts (includinghomosexual acts) were considered ‘immoral’ by mainstream Westernsociety but adding that private sexual acts are an issue of “private morality”over which society has no interest and the law, no control.[357]

Hart further expounded his warning about the imposition of majoritarianmorals, propounding that “[l]t is fatally easy to confuse the democraticprinciple that power should be in the hands of the majority with theutterly different claim that the majority, with power in their hands, needrespect no limits”[358]:

“Whatever other arguments there may be for the enforcementof morality, no one should think even when popular morality issupported by an “overwhelming majority” or marked bywidespread “intolerance, indignation, and disgust” that loyalty todemocratic principles requires him to admit that its imposition ona minority is justified.”[359]

In this way, Hart avoided the specious generalization that the law mustbe severely quarantined from morality but still made it clear that lawslike Section 377, which impose majoritarian view of right and wrongupon minority in order to protect societal cohesion, are jurisprudentiallyand democratically impermissible.

Bentham had different view on morality and weighed morality againstutilitarian principles. Bentham argued that if the punishment is not utilitarian(i.e. does not serve as deterrent, is unprofitable, or unnecessary), the‘immoral’ action would have to go unpunished.[360] He opined thatlegislators should not be overly swayed by the society’s morality:

354 William Starr, “Law and Morality in H.L.A. Hart’s Legal Philosophy”, MarquetteLaw Review, Vol. 67 (1984).

355 Ibid.

356 Supra note 352.

357 Peter August Bittlinger, “Government enforcement of morality: critical analysisof the Devlin-Hart controversy”, Doctoral Dissertations 1896-February 2014 (1975)at pages 69-70.

358 Ibid at page 91.

359 Ibid at page 93.

360 Supra note 334.

A“The strength of their prejudice is the measure of the indulgencewhich should be granted to it…The legislator ought to yield tothe violence of current which carries away everything thatobstructs it.

But ought the legislator to be slave to the fancies of thoseBwhom he governs? No. Between an imprudent opposition and aservile compliance, there is middle path, honourable andsafe.”[361]

In other words, it appears that Bentham argued that the morality of thepeople ought not be ignored in creating laws but also must not becometheir unchecked fount.And if prejudicial moralities arise from the people,Cthey should not be unthinkingly and permanently cemented into the law,but rather addressed and conquered.

John Stuart Mill also made strong argument against popular moralitybeing codified into laws. He argued that ‘disgust’ cannot be classified asharm, and those “who consider as an injury to themselves any conductDwhich they have distaste for”, cannot dictate the actions of othersmerely because such actions contradict their own beliefs or views.[362]Mill believed that society is not the right judge when dealing with thequestion of when to interfere in conduct that is purely personal, and thatwhen society does interfere, “the odds are that it interferes wrongly andEin the wrong place.”[363]

135. Christopher R Leslie points out the dangers of letting moralitycreep into law:

“Current generations enshrine their morality by passing laws andperpetuate their prejudices by handing these laws down to theirFchildren. Soon, statutes take on lives of their own, and their veryexistence justifies their premises and consequent implications.The underlying premises of ancient laws are rarely discussed,let alone scrutinized.”[364]

Leslie further adds that “sodomy laws do not merely express societalGdisapproval; they go much further by creating criminal class”[365]:361 Ibid.

362 Supra note 325.

363 Ibid.

364 Christopher. R. Leslie, “Creating criminals: The Injuries Inflicted by “Unenforced”Sodomy Laws”, Harvard Civil Rights and Civil Liberties Law Review, Vol. 35(2000).H365 Ibid, at pages 103-181.

NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE[DIPAK MISRA, CJI ][DR. D. Y. CHANDRACHUD, J.]

“Sodomy laws are kept on the books, even though stategovernments do not intend to actively enforce them, becausethe laws send message to society that homosexuality isunacceptable. Even without actual criminal prosecution, the lawscarry meaning… In short, the primary importance of sodomylaws today is the government’s message to diminish the societalstatus of gay men and lesbians.”[366]

136. broad analysis of criminal theory points to the generalconclusion that criminologists and legal philosophers have long been inagreement about one basic characteristic of crime: that it should injure athird person or the society. An element of larger public interest emergesas the crux of crime. The conduct which Section 377 criminalisesvoluntary ‘carnal intercourse against the order of nature’ with man orwoman, inter alia – pertains solely to acts between consenting adults.Such conduct is purely private, or as Mill would call it, “self-regarding,”and is neither capable of causing injury to someone else nor does it posea threat to the stability and security of society. Once the factor of consentis established, the question of such conduct causing any injury, does notarise.

Although Section 377 prima facie appears to criminalise certain acts orconduct, it creates class of criminals, consisting of individuals whoengage in consensual sexual activity. It typecasts LGBTQ individuals assex-offenders, categorising their consensual conduct on par with sexualoffences like rape and child molestation. Section 377 not only criminalisesacts (consensual sexual conduct between adults) which should notconstitute crime, but also stigmatises and condemns LGBTQ individualsin society.

137. We are aware of the perils of allowing morality to dictatethe terms of criminal law. If single, homogenous morality is carved outfor society, it will undoubtedly have the effect of hegemonizing or‘othering’ the morality of minorities. The LGBTQ community has beena victim of the pre-dominant (Victorian) morality which prevailed at thetime when the Indian Penal Code was drafted and enacted. Therefore,we are inclined to observe that it is constitutional morality, and notmainstream views about sexual morality, which should be the drivingfactor in determining the validity of Section 377.

AL Constitutional morality

138. With the attainment of independence on 15 August 1947,Indians were finally free to shape their own destiny.[367] The destiny wasto be shaped through written Constitution. Constitutions are scripts inwhich people inscribe the text of their professed collective destiny. TheyBwrite down who they think they are, what they want to be, and theprinciples that will guide their interacting along that path in the future.[368]The Constitution of India was burdened with the challenge of “drawinga curtain on the past”[369] of social inequality and prejudices. Those wholed India to freedom established into the Constitution the ideals and visionof vibrant equitable society. The framing of India’s Constitution was aCmedium of liberating the society by initiating the process of establishingand promoting the shared values of liberty, equality and fraternity.Throughout history, socio-cultural revolts, anti-discrimination assertions,movements, literature and leaders have worked at socializing peopleaway from supremacist thought and towards an egalitarian existence.DThe Indian Constitution is an expression of these assertions. It was anattempt to reverse the socializing of prejudice, discrimination, and powerhegemony in disjointed society. All citizens were to be free fromcoercion or restriction by the state, or by society privately.[370] Libertywas no longer to remain the privilege of the few. The judgment inPuttaswamy highlights the commitment of the constitution makers, thus:E“The vision of the founding fathers was enriched by the historiesof suffering of those who suffered oppression and violation ofdignity both here and elsewhere.”

139. Understanding the vision of India at time when there waslittle else older than that vision, is of paramount importance for the reasonFthat though the people may not have played any role in the actual framingof the Constitution, the Preamble professes that the Constitution hasbeen adopted by the people themselves. Constitutional historian GranvilleAustin has said that the Indian Constitution is essentially socialdocument.[371] The Indian Constitution does not provide merely aG367Jawaharlal Nehru, “Tryst with Destiny”, address to the Constituent Assembly ofIndia, delivered on 14-15 August 1947.

368Uday S. Mehta, “Constitutionalism”, In The Oxford Companion to Politics in India(Niraja Gopal Jayal and Pratap Bhanu Mehta eds.), Oxford University Press (2010), atpage 15.369Ibid, at page 16.

370Granville Austin, The Indian Constitution: Cornerstone of Nation, Oxford UniversityH371Press (1966), at page 65.Ibid, at page 63.

NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE[DR. D. Y. CHANDRACHUD, J.][DIPAK MISRA, CJI ]

framework of governance. It embodies vision. It is goal-oriented andits purpose is to bring about social transformation in the country. Itrepresents the aspirations of its framers. The democratic Constitution ofIndia embodies provisions which are value-based.

140 During the framing of the Constitution, it was realized by themembers of the Constituent Assembly that there was wide gap betweenconstitutional precept and reality. The draftspersons were clear that theimbibing of new constitutional values by the population at large wouldtake some time. Society was not going to change overnight. Dr Ambedkarremarked in the Constituent Assembly:

“Democracy in India is only top-dressing on an Indian soil,which is essentially undemocratic.”

141. The values of democracy require years of practice, effort,and experience to make the society work with those values. Similar isthe position of non-discrimination, equality, fraternity and secularism.While the Constitution guarantees equality before the law and equalprotection of the law, it was felt that the realization of the constitutionalvision requires the existence of commitment to that vision. Dr Ambedkardescribed this commitment to be the presence of constitutional moralityamong the members of the society. The conception of constitutionalmorality is different from that of public or societal morality. Under aregime of public morality, the conduct of society is determined by popularperceptions existent in society. The continuance of certain symbols, labels,names or body shapes determine the notions, sentiments and mentalattitudes of the people towards individuals and things.[372] Constitutionalmorality determines the mental attitude towards individuals and issuesby the text and spirit of the Constitution. It requires that the rights of anindividual ought not to be prejudiced by popular notions of society. Itassumes that citizens would respect the vision of the framers of theConstitution and would conduct themselves in way which furthers thatvision. Constitutional morality reflects that the ideal of justice is anoverriding factor in the struggle for existence over any other notion ofsocial acceptance. It builds and protects the foundations of democracy,without which any nation will crack under its fissures. For this reason,constitutional morality has to be imbibed by the citizens consistently and

372 Babasaheb.R. Ambedkar, Annihilation of Caste, Navayana Publishing (2014); Seealso Martha C. Nussbaum, “Disgust or Equality? Sexual Orientation and IndianLaw”, Journal of Indian Law and Society, Vol. 6 (2010).

Acontinuously. Society must always bear in mind what Dr Ambedkarobserved before the Constituent Assembly:

“Constitutional morality is not natural sentiment. It has to becultivated. We must realize that our people have yet to learn it.”

142. In the decision in Government of NCT of Delhi v.BUnion of India[373], the Constitution Bench of this Court dealt with theconstitutive elements of constitutional morality which govern the workingof democratic system and representative form of government.Constitutional morality was described as founded on “constitutionalculture”, which requires the “existence of sentiments and dedication forCrealizing social transformation which the Indian Constitution seeks toattain.” This Court held thus:

“If the moral values of our .Constitution were not upheld at everystage, the text of the Constitution may not be enough to protectits democratic values.”

DThis Court held that constitutional morality acts check against the“tyranny of the majority” and as “threshold against an upsurge in mobrule.” It was held to be balance against popular public morality.

143. Constitutional morality requires in democracy the assuranceof certain minimum rights, which are essential for free existence to everyEmember of society. The Preamble to the Constitution recognises theserights as “Liberty of thought, expression, belief, faith and worship” and“Equality of status and of opportunity.” Constitutional morality is theguarantee which seeks that all inequality is eliminated from the socialstructure and each individual is assured of the means for the enforcementof the rights guaranteed. Constitutional morality leans towards makingFIndian democracy vibrant by infusing spirit of brotherhood amongst aheterogeneous population, belonging to different classes, races, religions,cultures, castes and sections. Constitutional morality cannot, however,be nurtured unless, as recognised by the Preamble, there exists fraternity,which assures and maintains the dignity of each individual. In his famous,Gyet undelivered speech titled “Annihilation of Caste” (which has beenlater published as book), Dr Ambedkar described ‘fraternity’ as“primarily mode of associated living, of conjoint communicatedexperience” and “essentially an attitude of respect and reverence towardsfellow men.”[374] He remarked:

373 2018 (8) SCALE 72H374 Supra note 372, at para 14.2.

NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE[DR. D. Y. CHANDRACHUD, J.][DIPAK MISRA, CJI ]

“An ideal society should be mobile, should be full of channels forconveying change taking place in one part to other parts. In anideal society there should be many interests consciouslycommunicated and shared. There should be varied and free pointsof contact with other modes of association. In other words theremust be social endosmosis. This is fraternity, which is only anothername for democracy.”

In his last address to the Constituent Assembly, he defined fraternity as“a sense of common brotherhood of all Indians.” As on the social andeconomic plane, Indian society was based on graded inequality, DrAmbedkar had warned in clear terms:

“Without fraternity, liberty [and] equality could not become anatural course of things. It would require constable to enforcethem… Without fraternity equality and liberty will be no deeperthan coats of paint.”[375]

144. Constitutional morality requires that all the citizens need tohave closer look at, understand and imbibe the broad values of theConstitution, which are based on liberty, equality and fraternity.Constitutional morality is thus the guiding spirit to achieve thetransformation which, above all, the Constitution seeks to achieve. Thisacknowledgement carries necessary implication: the process throughwhich society matures and imbibes constitutional morality is gradual,perhaps interminably so. Hence, constitutional courts are entrusted withthe duty to act as external facilitators and to be vigilant safeguardagainst excesses of state power and democratic concentration of power.This Court, being the highest constitutional court, has the responsibilityto monitor the preservation of constitutional morality as an incident offostering conditions for human dignity and liberty to flourish. Popularpublic morality cannot affect the decisions of this Court. Lord Neuberger(of the UK Supreme Court) has aptly observed:

“[W]e must always remember that Parliament has democraticlegitimacy – but that has disadvantages as well as advantages.The need to offer oneself for re-election sometimes makes ithard to make unpopular, but correct, decisions. At times it can

be an advantage to have an independent body of people who do

not have to worry about short term popularity.”[376]

375 Constituent Assembly Debates (25 November 1949).

376 Lord Neuberger, “UK Supreme Court decisions on private and commercial law: Therole of public policy and public interest”, Centre for Commercial Law Studies Conference (2015).

AThe flourishing of constitutional order requires not only the institutionalleadership of constitutional courts, but also the responsive participationof the citizenry.[377] Constitutional morality is pursuit of this responsiveparticipation. The Supreme Court cannot afford to denude itself of itsleadership as an institution in expounding constitutional values. Any lossof its authority will imperil democracy itself.B

145. The question of morality has been central to the concernsaround homosexuality and the rights of LGBT individuals. Opponents –including those of the intervenors who launched diatribe in the courseof hearing – claim that homosexuality is against popular culture and isthus unacceptable in Indian society. While dealing with theCconstitutionality of Section 377 of the Indian Penal Code, the Delhi HighCourt in Naz Foundation had held:

“Thus popular morality or public disapproval of certain acts isnot valid justification for restriction of the fundamental rightsunder Article 21. Popular morality, as distinct from constitutionalDmorality derived from constitutional values, is based on shiftingand subjecting notions of right and wrong. If there is any type of“morality” that can pass the test of compelling state interest, itmust be “constitutional” morality and not public morality… Inour scheme of things, constitutional morality must outweigh theEargument of public morality, even if it be the majoritarian view.”

The invocation of constitutional morality must be seen as an extensionof Dr Ambedkar’s formulation of social reform and constitutionaltransformation. Highlighting the significance of individual rights in socialtransformation, he had observed:F“The assertion by the individual of his own opinions and beliefs,his own independence and interest—over and against groupstandards, group authority, and group interests—is the beginningof all reform. But whether the reform will continue depends uponwhat scope the group affords for such individual assertion.”[378]

GAfter the enactment of the Constitution, every individual assertion ofrights is to be governed by the principles of the Constitution, by its text

377 Marc Galanter, “Fifty Years on”, in BN Kirpal et al, Supreme but Not Infallible:Essays in Honour of the Supreme Court of India, Oxford University Press (2000),at page 57.H378 Supra note 373, at para 12.1.

NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE[DR. D. Y. CHANDRACHUD, J.][DIPAK MISRA, CJI ]

and spirit. The Constitution assures to every individual the right to lead adignified life. It prohibits discrimination within society. It is for this reasonthat constitutional morality requires this court to issue declaration -which we now do - that LGBT individuals are equal citizens of India,that they cannot be discriminated against and that they have right toexpress themselves through their intimate choices. In upholdingconstitutional morality, we affirm that the protection of the rights ofLGBT individuals are not only about guaranteeing minority their rightfulplace in the constitutional scheme, but that we equally speak of the visionof the kind of country we want to live in and of what it means for themajority.[379] The nine-judge Bench of this Court in Puttaswamy had heldin clear terms that discrimination against an individual on the basis ofsexual orientation is deeply offensive to the dignity and self-worth of theindividual. The Bench held:“The purpose of elevating certain rights to the stature ofguaranteed fundamental rights is to insulate their exercise fromthe disdain of majorities, whether legislative or popular. Theguarantee of constitutional rights does not depend upon theirexercise being favourably regarded by majoritarian opinion. Thetest of popular acceptance does not furnish valid basis todisregard rights which are conferred with the sanctity ofconstitutional protection. Discrete and insular minorities facegrave dangers of discrimination for the simple reason that theirviews, beliefs or way of life does not accord with the‘mainstream’. Yet in democratic Constitution founded on therule of law, their rights are as sacred as those conferred on othercitizens to protect their freedoms and liberties.”

Constitutional morality will impact upon any law which deprives the LGBTindividuals of their entitlement to full and equal citizenship. After theConstitution came into force, no law can be divorced from constitutionalmorality. Society cannot dictate the expression of sexuality betweenconsenting adults. That is private affair. Constitutional morality willsupersede any culture or tradition.

The interpretation of right in matter of decriminalisation and beyondmust be determined by the norms of the Constitution.

146. LGBT individuals living under the threats of conformitygrounded in cultural morality have been denied basic human existence.

379 Supra note 41.

AThey have been stereotyped and prejudiced. Constitutional moralityrequires this Court not to turn blind eye to their right to an equalparticipation of citizenship and an equal enjoyment of living. Constitutionalmorality requires that this Court must act as counter majoritarianinstitution which discharges the responsibility of protecting constitutionallyentrenched rights, regardless of what the majority may believe.[380]BConstitutional morality must turn into habit of citizens. By respectingthe dignity of LGBT individuals, this Court is only fulfilling the foundationalpromises of our Constitution.

M In summation : transformative constitutionalism

C147. This case has required decision on whether Section 377 ofthe Penal Code fulfills constitutional standards in penalising consensualsexual conduct between adults of the same sex. We hold and declarethat in penalising such sexual conduct, the statutory provision violatesthe constitutional guarantees of liberty and equality. It denudes membersof the LGBT communities of their constitutional right to lead fulfillingDlives. In its application to adults of the same sex engaged in consensualsexual behaviour, it violates the constitutional guarantee of the right tolife and to the equal protection of law.

148. Sexual orientation is integral to the identity of the membersof the LGBT communities. It is intrinsic to their dignity, inseparable fromEtheir autonomy and at the heart of their privacy. Section 377 is foundedon moral notions which are an anathema to constitutional order inwhich liberty must trump over stereotypes and prevail over themainstreaming of culture. Our Constitution, above all, is an essay in theacceptance of diversity. It is founded on vision of an inclusive societyFwhich accommodates plural ways of life.

149. The impact of Section 377 has travelled far beyondcriminalising certain acts. The presence of the provision on the statutebook has reinforced stereotypes about sexual orientation. It has lent theauthority of the state to the suppression of identities. The fear ofGpersecution has led to the closeting of same sex relationships. penalprovision has reinforced societal disdain.

150. Sexual and gender based minorities cannot live in fear, if theConstitution has to have meaning for them on even terms. In its questfor equality and the equal protection of the law, the Constitution guaranteesH380 Ibid.

to them an equal citizenship. In de-criminalising such conduct, the valuesof the Constitution assure to the LGBT community the ability to lead alife of freedom from fear and to find fulfilment in intimate choices.

151. The choice of partner, the desire for personal intimacy andthe yearning to find love and fulfilment in human relationships have auniversal appeal, straddling age and time. In protecting consensualintimacies, the Constitution adopts simple principle: the state has nobusiness to intrude into these personal matters. Nor can societal notionsof heteronormativity regulate constitutional liberties based on sexualorientation.

152. This reference to the Constitution Bench is about the validityof Section 377 in its application to consensual sexual conduct betweenadults of the same sex. The constitutional principles which we haveinvoked to determine the outcome address the origins of the rights claimedand the source of their protection. In their range and content, thoseprinciples address issues broader than the acts which the statute penalises.Resilient and universal as they are, these constitutional values must enurewith mark of permanence.

153. Above all, this case has had great deal to say on the dialogueabout the transformative power of the Constitution. In addressing LGBTrights, the Constitution speaks – as well – to the rest of society. Inrecognising the rights of the LGBT community, the Constitution assertsitself as text for governance which promotes true equality. It does soby questioning prevailing notions about the dominance of sexes andgenders. In its transformational role, the Constitution directs our attentionto resolving the polarities of sex and binarities of gender. In dealing withthese issues we confront much that polarises our society. Our ability tosurvive as free society will depend upon whether constitutional valuescan prevail over the impulses of the time.

154. hundred and fifty eight years is too long period for theLGBT community to suffer the indignities of denial. That it has takensixty eight years even after the advent of the Constitution is soberingreminder of the unfinished task which lies ahead. It is also time toinvoke the transformative power of the Constitution.

155. The ability of society to acknowledge the injustices whichit has perpetuated is mark of its evolution. In the process of remedyingwrongs under regime of constitutional remedies, recrimination gives

CDE

Away to restitution, diatribes pave the way for dialogue and healing replacesthe hate of community. For those who have been oppressed, justiceunder regime committed to human freedom, has the power to transformlives. In addressing the causes of oppression and injustice, societytransforms itself. The Constitution has within it the ability to produce asocial catharsis. The importance of this case lies in telling us thatBreverberations of how we address social conflict in our times will travelfar beyond the narrow alleys in which they are explored.

156. We hold and declare that:

(i)Section 377 of the Penal Code, in so far as it criminalisesCconsensual sexual conduct between adults of the same sex,is unconstitutional;

(ii)Members of the LGBT community are entitled, as all othercitizens, to the full range of constitutional rights includingthe liberties protected by the Constitution;

(iii) The choice of whom to partner, the ability to find fulfilmentin sexual intimacies and the right not to be subjected todiscriminatory behaviour are intrinsic to the constitutionalprotection of sexual orientation;

(iv) Members of the LGBT community are entitled to the benefitEof an equal citizenship, without discrimination, and to theequal protection of law; and

(v)The decision in Koushal stands overruled.

Acknowledgment

FBefore concluding, I acknowledge the efforts of counsel for the petitionersand intervenors who appeared in this case – Mr Mukul Rohatgi, MrArvind Datar, Mr Ashok Desai, Mr Anand Grover, Mr Shyam Divan,Mr CU Singh and Mr Krishnan Venugopal, Senior Counsel; and MrSaurabh Kirpal, Dr Menaka Guruswamy and Ms Arundhati Katju, andMs Jayna Kothari, learned Counsel. Their erudition has enabled us toGabsorb, as we reflected and wrote. Mr Tushar Mehta, learned AdditionalSolicitor General appeared for the Union of India. We acknowledge theassistance rendered by the counsel for the intervenors who opposed thepetitioners.

[DIPAK MISRA, CJI ]

INDU MALHOTRA, J. 1. I have had the advantage of readingthe opinions prepared by the Hon’ble Chief Justice, and my brother JudgesJustice Nariman and Justice Chandrachud. The Judgments have dealtin-depth with the various issues that are required to be examined by this

Bench, to answer the reference.

2. The present batch of Writ Petitions have been filed to challengethe constitutional validity of Section 377 of the Indian Penal Code, 1860(“IPC”) on the specific ground that it criminalises consensual sexualintercourse between adult persons belonging to the same sex in private.

3. The issue as to whether the decision in Suresh KumarKoushal& Anr. v. Naz Foundation & Ors.[1] requires re-considerationwas referred to the Constitution Bench vide Order dated 8[th] January,2018.

4. The Petitioners have inter alia submitted that sexual expressionand intimacy between consenting adults of the same sex in private oughtto receive protection under Part III of the Constitution, as sexuality liesat the core of human being’s innate identity. Section 377 inasmuch asit criminalises consensual relationships between same sex couples isviolative of the fundamental rights guaranteed by Articles 21, 19 and 14,in Part III of the Constitution.

The principal contentions raised by the Petitioners during the course ofhearing are:

I.Fundamental rights are available to LGBT personsregardless of the fact that they constitute minority.

ii.Section 377 is violative of Article 14 being wholly arbitrary,vague, and has an unlawful objective.F

iii.Section 377 penalises person on the basis of their sexualorientation, and is hence discriminatory under Article 15.

iv.Section 377 violates the right to life and liberty guaranteedby Article 21 which encompasses all aspects of the right toGlive with dignity, the right to privacy, and the right to autonomyand self-determination with respect to the most intimatedecisions of human being.

5. During the course of hearing, the Union of India tendered anAffidavit dated 11[th] July, 2018 wherein it was submitted that with respectto the Constitutional validity of Section 377 insofar as it applies toconsensual acts of adults in private, the Union of India would leave thesaid question to the wisdom of this Hon’ble Court.

BHowever, if the Court is to decide and examine any issue otherthan the Constitutional validity of Section 377, or construe any otherright in favour of the LGBT community, the Union of India would like tofile detailed Affidavit as that would have far-reaching and wideramifications, not contemplated by the reference.

C6. LEGISLATIVE BACKGROUND

6.1. The legal treatises Fleta and Britton, which date back to 1290and 1300 respectively, documented prevailing laws in England atthe time. These treatises made references to sodomy as crime.[2]

6.2. The Buggery Act, 1533 was re-enacted in 1563 during the regimeDof Queen Elizabeth I, which penalized acts of sodomy by hanging.

In 1861, death penalty for buggery was abolished in England andWales. However, it remained crime “not to be mentioned byChristians”.

6.3. The 1861 Act became the charter for enactments framed in theEcolonies of Great Britain.

6.4. The Marginal Note of Section 377, refers to “UnnaturalOffences”. Section 377 reads as under:

“377. Unnatural offences.— Whoever voluntarily hasFcarnal inter-course against the order of nature with anyman, woman or animal,shall be punished withimprisonment for life, or with impris-onment of eitherdescription for term which may extend to ten years,and shall also be liable to fine.

Explanation.—Penetration is sufficient to constitute theGcarnal intercourse necessary to the offence describedin this section.”

(emphasis supplied)

2John Boswell, Christianity, Social Tolerance, and Homosexuality: Gay People inWestern Europe from the Beginning of the Christian Era to the Fourteenth CenturyH(University of Chicago Press, 1980), at p. 292

NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE[INDU MALHOTRA, J. ][DIPAK MISRA, CJI ]

6.5. Section 377 does not define “carnal intercourse against the orderof nature”. Even though the provision is facially neutral, thePetitioners submit that the thrust of this provision has been totarget the LGBT community in light of the colonial history ofanti-sodomy laws, and penalise what was perceived to be‘deviant’ or ‘perverse’ sexual behaviour.

7. In the early 20[th] century, there were many psychiatric theories

which regarded homosexuality as form of psychopathology ordevelopmental arrest.[3] It was believed that normal development resultedin child growing up to be heterosexual adult, and that homosexualitywas but state of arrested development.[4] Homosexuality was treatedas disorder or mental illness, which was meted out with social ostracismand revulsion.

8. Towards the end of the 20[th] century, this notion began to change,and the earlier theories gave way to more enlightened perspective thatcharacterized homosexuality as normal and natural variant of humanDsexuality. Scientific studies indicated that human sexuality is complexand inherent.[5]

Kurt Hiller in his speech delivered at the Second InternationalCongress for Sexual Reform held at Copenhagen in 1928[6], stated:

“Same-sex love is not mockery of nature, but rather natureat play…As Nietzsche expressed it in Daybreak, Procreationis frequently occurring accidental result of one way ofsatisfying the sexual drive – it is neither its goal nor itsnecessary consequence. The theory which would makeprocreation the goal of sexuality is exposed as hasty,simplistic and false by the phenomenon of same-sex lovealone. Nature’s laws, unlike the laws formulated by the humanmind, cannot be violated.The assertion that specificphenomenon of nature could somehow be “contrary tonature” amounts to pure absurdity…To belong, not to the

3Report of the Committee on Homosexual Offences and Prostitution, 1957, at para30.

4Benjamin J. Sadock et al., Kaplan and Sadock’s Comprehensive Textbook ofPsychiatry (9[th] ed., 2009), at pp. 2060-895 Id

6Great Speeches on Gay Rights (James Daley ed.; Dover Publications, 2010), at pp.24-30

Arule, not to the norm, but rather to the exception, to theminority, to the variety, is neither symptom of degenerationnor of pathology.”

(emphasis supplied)

9. In 1957, the United Kingdom published the WolfendenBCommittee Report (supra) which recognised how the anti-sodomy lawshad created an atmosphere for blackmail, harassment and violence againsthomosexuals. An extract of the findings of this Committee reads asunder:

“We have found it hard to decide whether the blackmailer’sCprimary weapon is the threat of disclosure to the police, withattendant legal consequences, or the threat of disclosure tothe victim’s relatives, employers or friends, with attendantsocial consequences. It may well be that the latter is the moreeffective weapon, but it may yet be true that it would loseDmuch of its edge if the social consequences were notassociated with the present legal position.”

Pursuant to this Report, the House of Lords initiated legislation tode-criminalise homosexual acts done in private by consenting parties.The Sexual Offences Act, 1967 came to be passed in England whichEde-criminalised homosexual acts done in private, provided the partieshad consented to it, and were above the age of 21.

10. The trend of decriminalizing anti-sodomy laws world over hasgained currency during the past few decades since such laws have beenrecognised to be violative of human rights. In 2017, the InternationalLesbian, Gay, Bisexual, Trans and Intersex Association noted in its AnnualFState Sponsored Homophobia Report[7] that 124 countries no longerpenalise homosexuality. The change in laws in these countries was giveneffect to, either through legislative amendments to the statutoryenactments, or by way of court judgments.

Relationships between same-sex couples have been increasinglyGaccorded protection by States across the world. As per the aforesaidReport, total of 24 countries now allow same-sex couples to marry,while 28 countries legally recognise partnerships between same-sex

7 Aengus Carroll And Lucas Ramón Mendos, Ilga Annual State Sponsored HomophobiaReport 2017: World Survey Of Sexual Orientation Laws: Criminalisation, ProtectionHAnd Recognition (12[th] Edition, 2017), at pp. 26-36

NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE[INDU MALHOTRA, J. ][DIPAK MISRA, CJI ]

couples. Several countries have enacted enabling legislations whichprotect LGBT persons from discrimination, and allow them to adoptchildren.[8] For instance, the United Kingdom now outlaws discriminationin employment, education, social protection and housing on the groundof sexual orientation. Marriage between same-sex couples have beenrecognised in England and Wales.

The British Prime Minister Theresa May in her speech at theCommonwealth Joint Forum on April 17, 2018 urged CommonwealthNations to overhaul “outdated” anti-gay laws, and expressed regretregarding Britain’s role in introducing such laws.[9] The relevant excerptof her speech is extracted hereinbelow:

“Across the world, discriminatory laws made many years agocontinue to affect the lives of many people, criminalisingsame-sex relations and failing to protect women and girls.

I am all too aware that these laws were often put in place bymy own country. They were wrong then, and they are wrongnow. As the UK’s Prime Minister, I deeply regret both thefact that such laws were introduced, and the legacy ofdiscrimination, violence and even death that persists today.”

11. Section 377 has, however, remained in its original form in theIPC to date.

12.JUDICIAL INTERPRETATION

12.1.The essential ingredient required to constitute an offence underSection 377 is “carnal intercourse against the order of nature”,which is punishable with life imprisonment, or imprisonment ofeither description up to ten years. Section 377 applies irrespectiveof gender, age, or consent.

12.2.The expression ‘carnal intercourse’ used in Section 377 is distinctfrom ‘sexual intercourse’ which appears in Sections 375 and497 of the IPC. The phrase “carnal intercourse against the orderof nature” is not defined by Section 377, or in the Code.

9 Theresa May’s Speech at the Commonwealth Joint Forum Plenary available athttps://www.gov.uk/government/speeches/pm-speaks-at-the-commonwealth-joint-forum-plenary-17-april-2018

A12.3.The term ‘carnal’ has been the subject matter of judicialinterpretation in various decisions. According to the NewInternational Webster’s Comprehensive Dictionary of the EnglishLanguage[10], ‘carnal’ means:

“1.Pertaining to the fleshly nature or to bodily appetites.

B2. Sensual ; sexual.

3.Pertaining to the flesh or to the body; not spiritual;”hence worldly.

12.4.The courts had earlier interpreted the term “carnal” to refer toacts which fall outside penile-vaginal intercourse, and were notCfor the purposes of procreation.

In Khanu v. Emperor[11], the Sindh High Court was dealing with acase where the accused was found guilty of having committed Gomorrahcoitus per os with little child, andwasconvicted under Section 377.The Court held that the act of carnal intercourse was clearly against theDorder of nature, because the natural object of carnal intercourse is thatthere should be the possibility of conception of human beings, which inthe case of coitusper os is impossible.

The Lahore High Court in Khandu v. Emperor[12] was dealing witha case wherein the accused had penetrated the nostril of bullock withEhis penis. The Court, while relying on the decision of the Sindh HighCourt in Khanu v. Emperor (supra) held that the acts of the accusedconstituted coitus per os, were punishable under Section 377.

In Lohana Vasantlal Devchand & Ors v. State[13] the GujaratHigh Court convicted two accused under Section 377 read with SectionF511 of the IPC, on account of having carnal intercourse per anus, andinserting the penis in the mouth of young boy. It was held that:

“…words used (in Section 377) are quite comprehensive andin my opinion, an act like the present act (oral sex), whichwas an imitative act of sexual intercourse for the purpose ofGhis satisfying the sexual appetite, would be an act punishable

under Section 377 of the Indian Penal Code.”

1 0 The New International Webster’s Comprehensive Dictionary of the English Language(Deluxe Encyclopedic Edition, 1996)

1 1 AIR 1925 Sind 286

1 2 AIR 1934 Lah 261 : 1934 Cri LJ 1096

H1 3 AIR 1968 Guj 252

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Later this Court in Fazal Rab Choudhary v. State of Bihar[14 ]whilereducing the sentence of the appellant who was convicted for havingcommitted an offence on young boy under Section 377 IPC, held that:

“…The offence is one under Section 377 I.P.C., which impliessexual perversity. No force appears to have been used.Neither the notions of permissive society nor the fact that insome countries homosexuality has ceased to be an offencehas influenced our thinking.”

(emphasis supplied)

The test for attracting penal provisions under Section 377 changed overthe years from non-procreative sexual acts in Khanu v. Emperor(supra),to imitative sexual intercourse like oral sex in Lohana VasantlalDevchand & Ors. v. State (supra), to sexual perversity in Fazal Rab v.State of Bihar (supra). These cases referred to non-consensual sexualintercourse by coercion.

13. HOMOSEXUALITY – NOT AN ABERRATION BUT VARIATION OF SEXUALITY

13.1.Whilst great deal of scientific research has examined possiblegenetic, hormonal, developmental, psychological, social and culturalinfluences on sexual orientation, no findings have conclusivelylinked sexual orientation to any one particular factor or factors.It is believed that one’s sexuality is the result of complexinterplay between nature and nurture.

Sexual orientation is an innate attribute of one’s identity, andcannot be altered. Sexual orientation is not matter of choice. Itmanifests in early adolescence. Homosexuality is natural variantof human sexuality.

The U.S. Supreme Court in Lawrence et al. v. Texas[15 ]reliedupon the Brief of the Amici Curiae[16] which stated:

“Heterosexual and homosexual behavior are bothnormal aspects of human sexuality. Both have been

1 4 (1982) 3 SCC 9

1 5 539 U.S. 558 (2003)

1 6 Brief for the Amici Curiae American Psychological Association, American PsychiatricAssociation, National Association of Social Workers, and Texas Chapter of the NationalAssociation of Social Workers in Lawrence et al. v. Texas 539 U.S. 558(2003), availableat http://www.apa.org/about/offices/ogc/amicus/lawrence.pdf

Adocumented in many different human cultures andhistorical eras, and in wide variety of animal species.There is no consensus among scientists about the exactreasons why an individual develops heterosexual,bisexual, or homosexual orientation.According tocurrent scientific and professional understanding,Bhowever, the core feelings and attractions that form thebasis for adult sexual orientation typically emergebetween middle childhood and early adolescence.Moreover, these patterns of sexual attraction generallyarise without any prior sexual experience. Most or manyCgay men and lesbians experience little or no choice”about their sexual orientation.

(emphasis supplied)

13.2.An article by K.K. Gulia and H.N. Mallick titled “Homosexuality:A Dilemma in Discourse”[17] states:D

“In general, homosexuality as sexual orientation refersto an enduring pattern or disposition to experiencesexual, affectional, or romantic attractions primarily topeople of the same sex. It also refers to an individual’ssense of personal and social identity based on thoseEattractions, behaviours, expressing them, andmembership in community of others who share them.It is condition in which one is attracted and drawn tohis/her own gender, which is evidenced by the eroticand emotional involvement with members of his/her ownFsex…

…In the course of the 20[th] century, homosexualitybecame subject of considerable study and debate inwestern societies. It was predominantly viewed as adisorder or mental illness. At that time, emerged twomajor pioneering studies on homosexuality carried outby Alfred Charles Kinsey (1930) and Evelyn Hooker(1957)…This empirical study of sexual behavior amongAmerican adults revealed that significant number of

1 7KK Gulia and HN Mallick, Homosexuality: dilemma in discourse, 54 IndianJournal of Physiology and Pharmacology (2010), at pp. 5, 6 and 8H

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participants were homosexuals. In this study whenApeople were asked directly if they had engaged inhomosexual relations, the percentage of positiveresponses nearly doubled. The result of this studybecame the widely popularized Kinsey Scale ofSexuality. This scales rates all individuals on spectrumBof sexuality, ranging from 100% heterosexual to 100%homosexual…”

(emphasis supplied)

13.3.The American Psychiatric Association in December 1973removed ‘homosexuality’ from the Diagnostic and StatisticalManual of Psychological Disorders, and opined that themanifestation of sexual attraction towards persons of the oppositesex, or same sex, is natural condition.[18]

13.4.The World Health Organization removed homosexuality fromthe list of diseases in the International Classification of Diseasesin the publication of ICD-10 in 1992.[[19]]

Din the publication of ICD-10 in 1992.[[19]]13.5.In India, the Indian Psychiatric Society has also opined that sexualorientation is not psychiatric disorder.[20] It was noted that:“…there is no scientific evidence that sexual orientationcan be altered by any treatment and that any suchEattempts may in fact lead to low self-esteem andstigmatization of the person.”

13.6.It is relevant to note that under Section 3 of the Mental HealthcareAct, 2017, determination of what constitutes “mental illness”has to be done in accordance with nationally and internationallyaccepted medical standards, including the latest edition of theInternational Classification of Disease of the World HealthOrganisation.

1 8Jack Drescher, Out of DSM: Depathologizing Homosexuality, 5(4) BehavioralSciences (2015), at p. 565

1 9The ICD-10 classification of mental and behavioural disorders: clinical descriptionsand diagnostic guidelines, World Health Organization, Geneva (1992) availableathttp://www.who.int/classifications/icd/en/bluebook.pdf

2 0Indian Psychiatry Society: “Position statement on Homosexuality” IPS/Statement/02/07/2018 available athttp://www.indianpsychiatricsociety.org/upload_images/imp_download_files/1531125054_1.pdf

A14. SECTION 377 IF APPLIED TO CONSENTING ADULTS IS VIOLATIVE OF ARTICLE 14

14.1.One of the main contentions raised by the Petitioners to challengethe Constitutional validity of Section 377 is founded on Article 14of the Constitution. Article 14 enshrines the principle of equalityas fundamental right, and mandates that the State shall notBdeny to any person equality before the law, or the equal protectionof the laws within the territory of India. It recognizes andguarantees the right of equal treatment to all persons in thiscountry.

It is contended that Section 377 discriminates against adults of theCsame gender, from having consensual sexual relationship in private, bytreating it as penal offence, and hence is violative of Article 14.

14.2. The twin-test of classification under Article 14 provides that:

(i)there should be reasonable classification based onintelligible differentia; and,

(ii)this classification should have rational nexus with theobjective sought to be achieved.

14.3.Section 377 operates in vastly different manner for two classesof persons based on their “sexual orientation” i.e. the LGBTpersons and heterosexual persons. Section 377 penalises all formsEof non penile-vaginal intercourse. In effect, voluntary consensualrelationships between LGBT persons are criminalised in totality.

The import and effect of Section 377 is that while consensualheterosexual relationship is permissible, consensual relationshipbetween LGBT persons is considered to be ‘carnal’, and againstFthe order of nature.

Section 377 creates an artificial dichotomy. The natural or innatesexual orientation of person cannot be ground fordiscrimination. Where legislation discriminates on the basis ofan intrinsic and core trait of an individual, it cannot form aGreasonable classification based on an intelligible differentia.

14.4.In National Legal Services Authority v. Union of India &Ors.[21] this Court granted equal protection of laws to transgender

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persons. There is therefore no justification to deny the same toLGBT persons.

14.5.A person’s sexual orientation is intrinsic to their being. It isconnected with their individuality, and identity. classificationwhich discriminates between persons based on their innatenature, would be violative of their fundamental rights, and cannotwithstand the test of constitutional morality.

14.6.In contemporary civilised jurisprudence, with States increasinglyrecognising the status of same-sex relationships, it would beretrograde to describe such relationships as being ‘perverse’,‘deviant’, or ‘unnatural’.

14.7.Section 375 defines the offence of rape. It provides for penetrativeacts which if performed by man against woman without herconsent, or by obtaining her consent under duress, would amountto rape. Penetrative acts (after the 2013 Amendment) includeanal and oral sex.

The necessary implication which can be drawn from theamended provision is that if such penetrative acts are done withthe consent of the woman they are not punishable under Section375.

While Section 375 permits consensual penetrative acts (thedefinition of ‘penetration’ includes oral and anal sex), Section377 makes the same acts of penetration punishable irrespectiveof consent. This creates dichotomy in the law.

14.8.The proscription of consensual sexual relationship under Section377 is not founded on any known or rational criteria. Sexualexpression and intimacy of consensual nature, between adultsin private, cannot be treated as “carnal intercourse against theorder of nature”.

14.9.Emphasising on the second part of Article 14 which enjoins theState to provide equal protection of laws to all persons, Nariman,J. in his concurring opinion in Shayara Bano v. Union of India& Ors.[22] elucidated on the doctrine of manifest arbitrariness asa facet of Article 14. Apart from the conventional twin-tests of

classification discussed in the preceding paragraphs, legislation,or part thereof, can also be struck down under Article 14 on theground that it is manifestly arbitrary. It would be instructive torefer to the following passage from the judgment of this Court inShayara Bano v. Union of India & Ors. (supra):

“101…Manifest arbitrariness, therefore, must be somethingdone by the legislature capriciously, irrationally and/orwithout adequate determining principle. Also, whensomething is done which is excessive and disproportionate,such legislation would be manifestly arbitrary.”

Section 377 insofar as it criminalises consensual sexual actsbetween adults in private, is not based on any sound or rationalprinciple, since the basis of criminalisation is the “sexualorientation” of person, over which one has “little or no choice”.

Further, the phrase “carnal intercourse against the order ofDnature” in Section 377 as determining principle in penalprovision, is too open-ended, giving way to the scope for misuseagainst members of the LGBT community.

Thus, apart from not satisfying the twin-test under Article14, Section 377 is also manifestly arbitrary, and hence violativeof Article 14 of the Constitution.

15. SECTION 377 IS VIOLATIVE OF ARTICLE 15

Article 15 prohibits the State from discrimination againstany citizen on the grounds of religion, race, caste, sex, or placeof birth. The object of this provision was to guarantee protectionFto those citizens who had suffered historical disadvantage,whether it be of political, social, or economic nature.

15.1.The term ‘sex’, as it occurs in Article 15 has been given anexpansive interpretation by this Court in National Legal ServicesAuthority v. Union of India & Ors. (supra) to include sexualGidentity. Paragraph 66 of the judgment reads thus:

“66…Both gender and biological attributes constitutedistinct components of sex. The biological characteristics,of course, include genitals, chromosomes and secondary’-sexual features, but gender attributes includes ones self

NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE[INDU MALHOTRA, J. ][DIPAK MISRA, CJI ]

image, the deep psychological or emotional sense of sexualidentity and character.The discrimination on the groundof sex under Article 15 and 16, therefore includesdiscrimination on the ground of gender identity. Theexpression sex used in Articles 15 and 16 is not just limitedto biological sex of male and female, but intended toinclude people who consider themselves neither male norfemale.”

(emphasis supplied and internal quotations omitted)

Sex as it occurs in Article 15, is not merely restricted to thebiological attributes of an individual, but also includes their “sexualidentity and character”.

The J. S. Verma Committee[23] had recommended that ‘sex’under Article 15 must include ‘sexual orientation’:

“65. We must also recognize that our society has the needto recognize different sexual orientations human reality.In addition to homosexuality, bisexuality, and lesbianism,there also exists the transgender community. In view of thelack of scientific understanding of the different variationsof orientation, even advanced societies have had to firstdeclassify ‘homosexuality’ from being mental disorderand now it is understood as triangular developmentoccasioned by evolution, partial conditioning andneurological underpinnings owing to genetic reasons.Further, we are clear that Article 15(c) of the constitutionof India uses the word “sex” as including sexualorientation.”

The prohibition against discrimination under Article 15 on theground of ‘sex’ should therefore encompass instances wheresuch discrimination takes place on the basis of one’s sexualorientation.

In this regard, the view taken by the Human Rights Committeeof the United Nations in Nicholas Toonen v. Australia[24] isrelevant to cite, wherein the Committee noted that the referenceto ‘sex’ in Article 2, Paragraph 1 and Article 26 of the

2 3 Report of the Committee on Amendments to Criminal Law (2013)

2 4 Communication No. 488/1992, U.N. Doc.CCPR/C/50/D/488/1992 (1994)

DEF

AInternational Covenant on Civil and Political Rights would include‘sexual orientation’.

15.2.In an article titled “Reading Swaraj into Article 15: NewDeal For All Minorities”[25], Tarunabh Khaitan notes that theunderlying commonality between the grounds specified in ArticleB15 is based on the ideas of ‘immutable status’ and ‘fundamentalchoice’. He refers to the following quote by John Gardener toprovide context to the aforesaid commonality:

“Discrimination on the basis of our immutable status tendsto deny us [an autonomous] life.Its result is that our furtherCchoices are constrainednot mainly by our own choices,but by the choices of others.Because these choices ofothers are based on our immutable status, our own choicescan make no difference to them. .... And discrimination onthe ground of fundamental choices can be wrongful by thesame token. To lead an autonomous life we need anDadequate range of valuable options throughout that life....there are some particular valuable options that each of usshould have irrespective of our other choices. Where aparticular choice is choice between valuable optionswhich ought to be available to people whatever else theyEmay choose, it is fundamental choice. Where there isdiscrimination against people based on their fundamentalchoices it tends to skew those choices by making one ormore of the valuable options from which they must choosemore painful or burdensome than others.”[26]

(emphasis supplied)

Race, caste, sex, and place of birth are aspects over whicha person has no control, ergo they are immutable. On the otherhand, religion is fundamental choice of person.[27]Discrimination based on any of these grounds would underminean individual’s personal autonomy.

25 Tarunabh Khaitan, Reading Swaraj into Article 15: New Deal For All Minorities,

2 NUJS Law Review (2009), at p. 419

26 John Gardner, On the Ground of Her Sex (uality), 18(2) Oxford Journal of LegalStudies (1998), at p. 167H27 Supra note 25

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The Supreme Court of Canada in its decisions in the casesof Egan v. Canada[28], and Vriend v. Alberta[29], interpretedSection 15(1)[30] of the Canadian Charter of Rights andFreedomswhich is pari materia to Article 15 of the IndianConstitution.

Section 15(1), of the Canadian Charter like Article 15 ofour Constitution, does not include “sexual orientation” as aprohibited ground of discrimination. Notwithstanding that, theCanadian Supreme Court in the aforesaid decisions has held thatsexual orientation is “ground analogous” to the other groundsspecified under Section 15(1). Discrimination based on any ofthese grounds has adverse impact on an individual’s personalautonomy, and is undermining of his personality.

similar conclusion can be reached in the Indian contextas well in light of the underlying aspects of immutability andfundamental choice.

The LGBT community is sexual minority which has sufferedfrom unjustified and unwarranted hostile discrimination, and isequally entitled to the protection afforded by Article 15.

16. SECTION 377 VIOLATES THE RIGHT TO LIFE AND LIBERTY GUARANTEEDBY ARTICLE 21

Article 21 provides that no person shall be deprived of his life orpersonal liberty except according to the procedure establishedby law. Such procedure established by law must be fair, just andreasonable.[31]

The right to life and liberty affords protection to every citizen ornon-citizen, irrespective of their identity or orientation, withoutdiscrimination.

28[1995] SCC 98

29[1998] SCC 816

30“15. Equality before and under law and equal protection and benefit of law(1) Every individual is equal before and under the law and has the right to the equalprotection and equal benefit of the law without discrimination and, in particular,without discrimination based on race, national or ethnic origin, colour, religion,sex, age or mental or physical disability…”Article 15(1), Canadian Charter of Rights and Freedoms.

31Maneka Gandhi v. Union of India & Anr., (1978) 1 SCC 248, at paragraph 48

A16.1.RIGHT TO LIVE WITH DIGNITY

This Court has expansively interpreted the terms “life” and“personal liberty” to recognise panoply of rights under Article21 of the Constitution, so as to comprehend the true scope andcontours of the right to life under Article 21.Article 21 is “theBmost precious human right and forms the ark of all otherrights” as held in Francis Coralie Mullin v. Administrator,Union Territory of Delhi & Ors.,[32] wherein it was noted thatthe right to life could not be restricted to mere animal existence,and provided for much more than only physical survival.[33]Bhagwati J. observed as under:C“8…We think that the right to life includes the right to livewith human dignity and all that goes along with it, namelythe bare necessaries of life such as adequate nutrition,clothing and shelter and facilities for reading, writing andexpressing oneself in diverse forms, freely moving aboutDand mixing and commingling with fellow human beings…itmust in any view of the matter, include the right to the basicnecessities of life and also the right to carry on suchfunctions and activities as constitute the bare minimumexpression of the human-self. Every act which offendsagainst or impairs human dignity would constituteEdeprivation pro tanto of this right to live and it would haveto be in accordance with reasonable, fair and justprocedure established by law which stands the test of otherfundamental rights.”

(emphasis supplied)

FThis was re-affirmed by the Constitution bench decision in K.S.Puttaswamy & Anr. v. Union of India & Ors.[34] and CommonCause (A Registered Society) v. Union of India & Anr.[35]

Although dignity is an amorphous concept which is incapableof being defined, it is core intrinsic value of every human being.GDignity is considered essential for meaningful existence.[36]

3 2 (1981) 1 SCC 608

3 3 (1981) 1 SCC 608 at paragraph 7

3 4 (2017) 10 SCC 1

3 5 (2018) 5 SCC 1 at paragraphs 156, 437, 438, 488 & 516

3 6 Common Cause (A Registered Society) v. Union of India and Anr., (2018) 5 SCC 1, atHparagraphs 437 and 438

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In National Legal Services Authority v. Union of India& Ors. (supra),this Court recognised the right of transgenderpersons to decide their self-identified gender. In the context ofthe legal rights of transgender persons, this Court held that sexualorientation and gender identity is an integral part of theirpersonality.

The relevant excerpt from Radhakrishnan, J.’s view isextracted hereinbelow:

“22. …Each person’s self-defined sexual orientation andgender identity is integral to their personality and is one-of the most basic aspects of selfdetermination, dignity and”freedom…

(emphasis supplied)

Sexual orientation is innate to human being. It is animportant attribute of one’s personality and identity.Homosexuality and bisexuality are natural variants of humansexuality. LGBT persons have little or no choice over their sexualorientation. LGBT persons, like other heterosexual persons, areentitled to their privacy, and the right to lead dignified existence,without fear of persecution. They are entitled to completeautonomy over the most intimate decisions relating to theirpersonal life, including the choice of their partners. Such choicesmust be protected under Article 21. The right to life and libertywould encompass the right to sexual autonomy, and freedom ofexpression.

The following excerpt from the decision of the ConstitutionalCourt of South Africa in National Coalition for Gay andLesbian Equality and Anr. v. Minister of Justice and Ors.[37] isalso instructive in this regard:

“While recognising the unique worth of each person, theConstitution does not presuppose that holder of rights isan isolated, lonely and abstract figure possessing adisembodied and socially disconnected self. Itacknowledges that people live in their bodies, theircommunities, their cultures, their places and their times.

CDE

The expression of sexuality requires partner, real orimagined. It is not for the state to choose or arrange thechoice of partner, but for the partners to choosethemselves.”

(emphasis supplied)

Section 377 insofar as it curtails the personal liberty of LGBTpersons to engage in voluntary consensual sexual relationshipswith partner of their choice, in safe and dignified environment,is violative of Article 21. It inhibits them from entering andnurturing enduring relationships. As result, LGBT individualsare forced to either lead life of solitary existence without acompanion, or lead closeted life as “unapprehended felons”.[38]

Section 377 criminalises the entire class of LGBT personssince sexual intercourse between such persons, is considered tobe carnal and “against the order of nature”. Section 377 prohibitsLGBT persons from engaging in intimate sexual relations inDprivate.

The social ostracism against LGBT persons prevents them frompartaking in all activities as full citizens, and in turn impedes themfrom realising their fullest potential as human beings.

On the issue of criminalisation of homosexuality, theEdissenting opinion of Blackmun J. of the U.S. Supreme Court inBowers v. Hardwick[39 ]is instructive, which cites previousdecision in Paris Adult Theatre I v. Slaton[40] and noted as follows:

“Only the most wilful blindness could obscure the fact thatsexual intimacy is sensitive, key relationship of humanFexistence, central to family life, community welfare, and”the development of human personality.

(emphasis supplied)

The U.S. Supreme Court over-ruled Bowers v. Hardwick(supra) in Lawrence et al. v. Texas. (supra) and declared that

3 8According to Professor Edwin Cameron, LGBT persons are reduced to the statusof “unapprehended felons” owing to the ever-so-present threat of prosecution.Edwin Cameron, Sexual Orientation and the Constitution: Test Case for HumanRights, 110 South African Law Journal (1993), at p. 4503 9478 U.S. 186 (1986)

H4 0413 U.S. 49 (1973)

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statute proscribing homosexuals from engaging in intimate sexualconduct as invalidon the ground that it violated the right to privacy,and dignity of homosexual persons. Kennedy, J. in his majorityopinion observed as under:

“To say that the issue in Bowers was simply the right toengage in certain sexual conduct demeans the claim theindividual put forward, just as it would demean marriedcouple were it to be said marriage is simply about the rightto have sexual intercourse…

…It suffices for us to acknowledge that adults may chooseto enter upon this relationship in the confines of their homesand their own private lives and still retain their dignity asfree persons. When sexuality finds overt expression inintimate conduct with another person, the conduct can bebut one element in personal bond that is more enduring.The liberty protected by the Constitution allows homosexualpersons the right to make this choice…This stigma thiscriminal statute imposes, moreover, is not trivial. Theoffence, to be sure, is but class misdemeanour, minoroffence in the Texas legal system. Still, it remains criminaloffence with all that imports for the dignity of the personscharged. The petitioners will bear on their record thehistory of criminal convictions...

…The present case does not involve minors. It does notinvolve persons who might be injured or coerced or whoare situated in relationships where consent might not easilybe refused. It does not involve public conduct orprostitution. It does not involve whether the governmentmust give formal recognition to any relationship thathomosexuals persons seek to enter. The case does involvetwo adults who, with full and mutual consent from eachother, engage in sexual practices, common to homosexuallifestyle. The Petitioners are entitled to respect for theirprivate lives. The State cannot demean their existence orcontrol their destiny by making their private sexual conducta crime. The right to liberty under the Due Process Clausegives them the full right to engage in their conduct withoutintervention of the government. It is promise of the

Constitution that there is realm of personal liberty whichthe government may not enter.Casey, supra at 847. TheTexas statute furthers no legitimate state interest which canjustify its intrusion into the personal and private life ofthe individual.”

(emphasis supplied)

Thus, Section 377 prevents LGBT persons from leading adignified life as guaranteed by Article 21.

16.2. RIGHT TO PRIVACY

The right to privacy has now been recognised to be anintrinsic part of the right to life and personal liberty under Article21.[41]

Sexual orientation is an innate part of the identity of LGBTpersons. Sexual orientation of person is an essential attributeDof privacy. Its protection lies at the core of Fundamental Rightsguaranteed by Articles 14, 15, and 21.[42]

The right to privacy is broad-based and pervasive underour Constitutional scheme, and encompasses decisional autonomy,to cover intimate/personal decisions and preserves the sanctityof the private sphere of an individual.[43]

The right to privacy is not simply the “right to be let alone”,and has travelled far beyond that initial concept. It nowincorporates the ideas of spatial privacy, and decisional privacyor privacy of choice.[44] It extends to the right to make fundamentalpersonal choices, including those relating to intimate sexualFconduct, without unwarranted State interference.

Section 377 affects the private sphere of the lives of LGBTpersons. It takes away the decisional autonomy of LGBT personsto make choices consistent with their sexual orientation, whichwould further dignified existence and meaningful life as full

4 1K.S. Puttaswamy & Anr. v. Union of India & Ors., (2017) 10 SCC 1

4 2K.S. Puttaswamy & Anr. v. Union of India & Ors., (2017) 10 SCC 1, at paragraphs144, 145, 479 and 647

K.S. Puttaswamy & Anr. v. Union of India & Ors., (2017) 10 SCC 1, at paragraph248, 250, 371 and 403

4 4K.S. Puttaswamy & Anr. v. Union of India & Ors., (2017) 10 SCC 1, at paragraphsH248, 249, 371 and 521

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person. Section 377 prohibits LGBT persons from expressingtheir sexual orientation and engaging in sexual conduct in private,a decision which inheres in the most intimate spaces of one’sexistence.

The Constitutional Court of South Africa in NationalCoalition for Gay and Lesbian Equality & Anr. v. Ministerof Justice & Ors. (supra) noted as under:

“Privacy recognises that we all have right to sphere ofprivate intimacy and autonomy which allows us to establishand nurture human relationships without interference fromthe outside community. The way in which we give expressionto our sexuality is at the core of this area of privateintimacy. If, in expressing our sexuality, we actconsensually and without harming one another, invasionof that precinct will be breach of our privacy.”

Just like other fundamental rights, the right to privacy is not anabsolute right and is subject to reasonable restrictions. Anyrestriction on the right to privacy must adhere to the requirementsof legality, existence of legitimate state interest, andproportionality.[45]

subjective notion of public or societal morality whichdiscriminates against LGBT persons, and subjects them to criminalsanction, simply on the basis of an innate characteristic runscounter to the concept of Constitutional morality, and cannot formthe basis of legitimate State interest.

The theme of inclusiveness permeates through Part III of theConstitution. Apart from the equality code of the Constitutioncomprised in Articles 14, 15(1), 16, and other provisions in theform of Article 17 (Abolition of Untouchability), Article 21A(Right to Education), Article 25 (Freedom of Conscience andFree Profession, Practice and Propagation of Religion), Article26 (Freedom to Manage Religious Affairs), Article 29 (Protectionof Interest of Minorities), Article 30 (Right of Minorities toEstablish and Administer Educational Institutions) are aimed atcreating an inclusive society where rights are guaranteed to all,regardless of their status as minority.

4 5K.S. Puttaswamy & Anr. v. Union of India & Ors., (2017) 10 SCC 1, at paragraphs325, 638 and 645

A16.3. RIGHT TO HEALTH

The right to health, and access to healthcare are also crucialfacets of the right to life guaranteed under Article 21 of theConstitution.[46]

LGBT persons being sexual minority have been subjectedBto societal prejudice, discrimination and violence on account oftheir sexual orientation. Since Section 377 criminalises “carnalintercourse against the order of nature” it compels LGBT personsto lead closeted lives. As consequence, LGBT persons areseriously disadvantaged and prejudiced when it comes to accessCto health-care facilities. This results in serious health issues,including depression and suicidal tendencies amongst membersof this community.[47]LGBT persons, and more specifically the MSM, andtransgender persons are at higher risk of contracting HIV asDthey lack safe spaces to engage in safe-sex practices. They areinhibited from seeking medical help for testing, treatment andsupportive care on account of the threat of being ‘exposed’ andthe resultant prosecution.[48] Higher rates of prevalence of HIV-AIDS in MSM, who are in turn married to other people of theopposite sex, coupled with the difficulty in detection and treatment,Emakes them highly susceptible to contraction and furthertransmission of the virus.

It is instructive to refer to the findings of the Human RightsCommittee of the United Nations in Nicholas Toonen v.Australia (supra):F

4 6Common Cause (A Registered Society) v. Union of India & Anr., (2018) 5 SCC 1, atparagraph 304; C.E.S.C. Limited & Ors. v. Subhash Chandra Bose & Ors., (1992)

1 SCC 441, at paragraph 32; Union of India v. Mool Chand Khairati Ram Trust,(2018) SCC OnLine SC 675, at paragraph 66; and, Centre for Public Interest Litigationv. Union of India & Ors., (2013) 16 SCC 279, at paragraph 25

4 7M. V. Lee Badgett, The Economic Cost of Stigma and the Exclusion of LGBTGPeople: Case Study of India, World Bank Group (2014) available athttp://documents.worldbank.org/curated/en/527261468035379692/The-economic-cost-of-stigma-and-the-exclusion-of-LGBT-people-a-case-study-of-India (Last accessed onAugust 11, 2018)

4 8Govindasamy Agoramoorthy and Minna J Hsu, India’s homosexual discriminationand health consequences, 41(4) Rev Saude Publica (2007), at pp. 567-660 availableHathttp://www.scielo.br/pdf/rsp/v41n4/6380.pdf

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“8.5 As far as the public health argument of the Tasmanianauthorities is concerned, the Committee notes that thecriminalization of homosexual practices cannot beconsidered reasonable means or proportionate measureto achieve the aim of preventing the spread of AIDS/HIV.The Australian Government observes that statutescriminalizing homosexual activity tend to impede publichealth programmes by driving underground many of thepeople at the risk of infection. Criminalization ofhomosexual activity thus would appear to run counter tothe implementation of effective education programmes inrespect of the HIV/AIDS prevention.Secondly, theCommittee notes that no link has been shown between thecontinued criminalization of homosexual activity and the”effective control of the spread of the HIV/AIDS virus.

(emphasis supplied and internal footnotes omitted)

The American Psychological Association, AmericanPsychiatric Association, National Association of Social Workersand the Texas Chapter of the National Association of SocialWorkers in their Amicus Brief in Lawrence et al. v. Texas (supra)stated as follows:

“III. Texas Penal Code S. 21.06 reinforces prejudice,discrimination, and violence against gay men andlesbians…Although many gay men and lesbians learn tocope with the social stigma against homosexuality, thispattern of prejudice can cause gay people seriouspsychological distress, especially if they attempt to conceal”[49]or deny their sexual orientation….

(emphasis supplied)

It is pertinent to mention that in India the Mental HealthcareAct, 2017 came into force on July 7, 2018. Sections 18(1) and(2) read with 21(1)(a) of the Mental Healthcare Act, 2017 providefor the right to access mental healthcare and equal treatment ofpeople with physical and mental illnesses without discrimination,inter alia, on the basis of “sexual orientation”.

AThis gives rise to paradoxical situation since Section 377criminalises LGBT persons, which inhibits them from accessinghealth-care facilities, while the Mental Healthcare Act, 2017provides right to access mental healthcare withoutdiscrimination, even on the ground of ‘sexual orientation’.

B17. SECTION 377 VIOLATES THE RIGHT TO FREEDOM OF EXPRESSION OF LGBTPERSONS

17.1.Article 19(1)(a) guarantees freedom of expression to all citizens.However, reasonable restrictions can be imposed on the exerciseof this right on the grounds specified in Article 19(2).C

LGBT persons express their sexual orientation in myriadways. One such way is engagement in intimate sexual acts likethose proscribed under Section 377.[50] Owing to the fear ofharassment from law enforcement agencies and prosecution,LGBT persons tend to stay ‘in the closet’. They are forced notDto disclose central aspect of their personal identity i.e. theirsexual orientation, both in their personal and professional spheresto avoid persecution in society and the opprobrium attached tohomosexuality. Unlike heterosexual persons, they are inhibitedfrom openly forming and nurturing fulfilling relationships, therebyrestricting rights of full personhood and dignified existence. ItEalso has an impact on their mental well-being.

17.2.In National Legal Services Authority v. Union of India &Ors. (supra), this Court noted that gender identity is an importantaspect of personal identity and is inherent to person. It washeld that transgender persons have the right to express theirFself-identified gender by way of speech, mannerism, behaviour,presentation and clothing, etc.[51]

The Court also noted that like gender identity, sexualorientation is integral to one’s personality, and is basic aspectof self-determination, dignity and freedom.[52] The proposition thatGsexual orientation is integral to one’s personality and identity was

50 Lawrence et al. v. Texas, 539 U.S. 558 (2003); and, National Coalition for Gay andLesbian Equality & Anr. v. Minister of Justice & Ors., [1998] ZACC 155 1(2014) 5 SCC 438, at paragraphs 69-72

5 2(2014) 5 SCC 438, at paragraph 22

NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE[INDU MALHOTRA, J. ][DIPAK MISRA, CJI ]

affirmed by the Constitution Bench in K.S. Puttaswamy & Anr.v. Union of India & Ors.[53]

In this regard, it is instructive to refer to the decision of thisCourt in S. Khushboo v. Kanniammal & Anr.[54] wherein thefollowing observation was made in the context of the phrase“decency and morality” as it occurs in Article 19(2):

“45. Even though the constitutional freedom of speech andexpression is not absolute and can be subjected toreasonable restrictions on grounds such as “decency andmorality” among others, we must lay stress on the need totolerate unpopular views in the sociocultural space. TheFramers of our Constitution recognised the importance ofsafeguarding this right since the free flow of opinions andideas is essential to sustain the collective life of the citizenry.While an informed citizenry is precondition formeaningful governance in the political sense, we must alsopromote culture of open dialogue when it comes to societalattitudes.

46…Notions of social morality are inherently subjectiveand the criminal law cannot be used as means to undulyinterfere with the domain of personal autonomy. Moralityand criminality are not coextensive.”

(emphasis supplied)

Therefore, Section 377 cannot be justified as reasonablerestriction under Article 19(2) on the basis of public or societalmorality, since it is inherently subjective.

18. SURESH KUMAR KOUSHAL OVERRULED

The two-Judge bench of this Court in Suresh Kumar Koushal& Anr. v. Naz Foundation & Ors. (supra) over-ruled the decisionof the Delhi High Court in Naz Foundation v. Government ofNCT of Delhi & Ors.[55] which had declared Section 377 insofaras it criminalised consensual sexual acts of adults in private tobe violative of Articles 14, 15 and 21 of the Constitution.

5 3 (2017) 10 SCC 1, at paragraphs 144, 145, 647

5 4 (2010) 5 SCC 600

5 5 (2009) 111 DRJ 1 (DB)

CDE

AThe grounds on which the two-judge bench of this Court over-ruled the judgment in Naz Foundation v. Government of NCTof Delhi & Ors. (supra) were that:

i.Section 377 does not criminalise particular people or identity ororientation. It merely identifies certain acts which if committedBwould constitute an offence. Such prohibition regulates sexualconduct, regardless of gender identity and orientation.

Those who indulge in carnal intercourse in the ordinary course,and those who indulge in carnal intercourse against the order ofnature, constitute different classes. Persons falling in the latterCcategory cannot claim that Section 377 suffers from the vice ofarbitrariness and irrational classification. Section 377 merelydefines particular offence, and prescribes punishment forthe same.

ii.LGBT persons constitute “miniscule fraction” of the country’sDpopulation, and there have been very few prosecutions underthis Section. Hence, it could not have been made sound basisfor declaring Section 377 to be ultra-vires Articles 14, 15, and21.

iii.It was held that merely because Section 377, IPC has been usedEto perpetrate harassment, blackmail and torture to personsbelonging to the LGBT community, cannot be ground forchallenging the vires of the Section.

iv.After noting that Section 377 was intra vires, this Court observedthat the legislature was free to repeal or amend Section 377.F19. The fallacy in the Judgment of Suresh Kumar Koushal &Anr. v. Naz Foundation & Ors. (supra) is that:

i.The offence of “carnal intercourse against the order of nature”has not been defined in Section 377. It is too wide, and open-ended, and would take within its sweep, and criminalise evenGsexual acts of consenting adults in private.

In this context, it would be instructive to refer to the decisionof Constitution Bench of this Court in A.K. Roy v. Union ofIndia[56 ]wherein it was held that:

5 6 (1982) 1 SCC 271H

NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE[INDU MALHOTRA, J. ][DIPAK MISRA, CJI ]

“ 62. The requirement that crimes must be defined withappropriate definiteness is regarded as fundamentalconcept in criminal law and must now be regarded as apervading theme of our Constitutionsince the decision inManeka Gandhi. The underlying principle is that everyperson is entitled to be informed as to what the Statecommands or forbids and that the life and liberty of aperson cannot be put in peril on an ambiguity. However,even in the domain of criminal law, the processes of whichcan result in the taking away of life itself, no more than areasonable degree of certainty has to be accepted as afact.Neither the criminal law nor the Constitution requiresthe application of impossible standards and therefore, whatis expected is that the language of the law must contain anadequate warning of the conduct which may fall withinthe proscribed area, when measured by commonunderstanding….”

(emphasis supplied)

The Judgment does not advert to the distinction betweenconsenting adults engaging in sexual intercourse, and sexual actswhich are without the will, or consent of the other party. Adistinction has to be made between consensual relationships ofadults in private, whether they are heterosexual or homosexualin nature.

Furthermore, consensual relationships between adultscannot be classified along with offences of bestiality, sodomyand non-consensual relationships.

Sexual orientation is immutable, since it is an innate featureof one’s identity, and cannot be changed at will. The choice ofLGBT persons to enter into intimate sexual relations with personsof the same sex is an exercise of their personal choice, and anexpression of their autonomy and self-determination.

Section 377 insofar as it criminalises voluntary sexualrelations between LGBT persons of the same sex in private,discriminates against them on the basis of their “sexual orientation”which is violative of their fundamental rights guaranteed byArticles 14, 19, and 21 of the Constitution.

Aii.The mere fact that the LGBT persons constitute “minisculefraction” of the country’s population cannot be ground todeprive them of their Fundamental Rights guaranteed by PartIII of the Constitution. Even though the LGBT constitute sexualminority, members of the LGBT community are citizens of thiscountry who are equally entitled to the enforcement of theirBFundamental Rights guaranteed by Articles 14, 15, 19, and 21.

Fundamental Rights are guaranteed to all citizens alike,irrespective of whether they are numerical minority. Moderndemocracies are based on the twin principles of majority rule,and protection of fundamental rights guaranteed under Part IIICof the Constitution. Under the Constitutional scheme, while themajority is entitled to govern; the minorities like all other citizensare protected by the solemn guarantees of rights and freedomsunder Part III.

The J.S. Verma Committee, in this regard, in paragraph 77Dof its Report (supra) states that:

“77. We need to remember that the founding fathers of ourConstitution never thought that the Constitution is ‘mirrorof perverse social discrimination’. On the contrary, itpromised the mirror in which equality will be reflectedEbrightly. Thus, all the sexual identities, including sexualminorities, including transgender communities areentitledto be totally protected. The Constitution enables changeof beliefs, greater understanding and is also an equallyguaranteed instrument to secure the rights of sexuallyFdespised minorities.“

(emphasis supplied)

iii.Even though Section 377 is facially neutral, it has been misusedby subjecting members of the LGBT community to hostilediscrimination, making them vulnerable and living in fear of theGever-present threat of prosecution on account of their sexualorientation.

The criminalisation of “carnal intercourse against the orderof nature” has the effect of criminalising the entire class ofLGBT persons since any kind of sexual intercourse in the case

NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE[INDU MALHOTRA, J. ][DIPAK MISRA, CJI ]

of such persons would be considered to be against the “order ofnature”, as per the existing interpretation.

iv.The conclusion in case of Suresh Kumar Koushal & Anr. v.Naz Foundation & Ors. (supra) to await legislative amendmentsto this provision may not be necessary. Once it is brought to thenotice of the Court of any violation of the Fundamental Rights ofa citizen, or group of citizens the Court will not remain mutespectator, and wait for majoritarian government to bring aboutsuch change.

Given the role of this Court as the sentinel on the qui vive, it isthe Constitutional duty of this Court to review the provisions ofthe impugned Section, and read it down to the extent of itsinconsistency with the Constitution.

In the present case, reading down Section 377 is necessary toexclude consensual sexual relationships between adults, whetherof the same sex or otherwise, in private, so as to remove thevagueness of the provision to the extent it is inconsistent withPart III of the Constitution.

20. History owes an apology to the members of this communityand their families, for the delay in providing redressal for the ignominyand ostracism that they have suffered through the centuries. The membersof this community were compelled to live life full of fear of reprisaland persecution. This was on account of the ignorance of the majority torecognise that homosexuality is completely natural condition, part of arange of human sexuality. The mis-application of this provision deniedthem the Fundamental Right to equality guaranteed by Article 14. Itinfringed the Fundamental Right to non-discrimination under Article 15,and the Fundamental Right to live life of dignity and privacy guaranteedby Article 21. The LGBT persons deserve to live life unshackled fromthe shadow of being ‘unapprehended felons’.

21. CONCLUSION

i.In view of the aforesaid findings, it is declared that insofar asSection 377 criminalises consensual sexual acts of adults (i.e.persons above the age of 18 years who are competent to consent)in private, is violative of Articles 14, 15, 19, and 21 of theConstitution.

746SUPREME COURT REPORTS

AIt is, however, clarified that such consent must be free consent,which is completely voluntary in nature, and devoid of any duressor coercion.

ii.The declaration of the aforesaid reading down of Section 377shall not, however, lead to the re-opening of any concludedBprosecutions, but can certainly be relied upon in all pending matterswhether they are at the trial, appellate, or revisional stages.

iii.The provisions of Section 377 will continue to govern non-consensual sexual acts against adults, all acts of carnal intercouseagainst minors, and acts of beastiality.

iv.The judgment in Suresh Kumar Koushal & Anr. v. NazFoundation & Ors.[57] is hereby overruled for the reasons statedin paragraph 19.

The Reference is answered accordingly.

DIn view of the above findings, the Writ Petitions are allowed.

Devika Gujral Petitions disposed of.