{"id":9518,"date":"2018-09-06T16:31:45","date_gmt":"2018-09-06T11:01:45","guid":{"rendered":"http:\/\/mynation.net\/docs\/?p=9518"},"modified":"2021-09-25T10:37:19","modified_gmt":"2021-09-25T05:07:19","slug":"121-2018","status":"publish","type":"post","link":"https:\/\/mynation.net\/docs\/121-2018\/","title":{"rendered":"Section 377\u00a0IPC – Gay Sex Not Unnatural, Says SC"},"content":{"rendered":"

IN THE SUPREME COURT OF INDIA<\/strong><\/p>\n

CRIMINAL ORIGINAL JURISDICTION
\nWRIT PETITION (CRIMINAL) NO. 76 OF 2016<\/p>\n

NAVTEJ SINGH JOHAR & ORS. \u2026Petitioner(s)
\nVERSUS
\nUNION OF INDIA
\nTHR. SECRETARY
\nMINISTRY OF LAW AND JUSTICE \u2026Respondent(s)
\nWITH
\nWRIT PETITION (CIVIL) NO. 572 OF 2016
\nWRIT PETITION (CRIMINAL) NO. 88 OF 2018
\nWRIT PETITION (CRIMINAL) NO. 100 OF 2018
\nWRIT PETITION (CRIMINAL) NO. 101 OF 2018
\nWRIT PETITION (CRIMINAL) NO. 121 OF 2018<\/p>\n

J U D G M E N T
\nDipak Misra, CJI (for himself and A.M. Khanwilkar, J.)<\/p>\n

C O N T E N T S
\nS. No(s). Heading Page No(s)
\nA. Introduction\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026 3-11
\nB. The Reference\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026 11-15
\nC. Submissions on behalf of the petitioners\u2026\u2026 15-30
\nD. Submissions on behalf of the respondents\u00a0and other intervenors.\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026.\u2026 31-44
\nE. Decisions in Naz Foundation and Suresh Koushal\u2026\u2026\u2026\u2026\u2026\u2026..\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026.. 45-48
\nF. Other judicial pronouncements on Section 377\u00a0IPC \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026.\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026.. 48-57
\nG. The Constitution \u2013 an organic charter of\u00a0progressive rights\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026 57-64
\nH. Transformative constitutionalism and the\u00a0rights of LGBT community\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026. 65-74
\nI. Constitutional morality and Section 377 IPC\u2026. 74-81
\nJ. Perspective of human dignity\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026 81-89
\nK. Sexual orientation\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026. 89-96
\nL. Privacy and its concomitant aspects\u2026\u2026\u2026\u2026… 96-111
\nM. Doctrine of progressive realization of\u00a0rights\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026. 111-118
\nN. International perspective\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026. 118
\n(i) United States\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026 118-122
\n(ii) Canada\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026.. 123-125
\n(iii) South Africa\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026. 125
\n(iv) United Kingdom\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026. 126-127
\n(v) Other Courts\/Jurisdictions\u2026\u2026\u2026\u2026\u2026.. 127-129
\nO. Comparative analysis of Section 375 and\u00a0Section 377 IPC\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026.\u2026 129-140
\nP.
\nQ.
\nThe litmus test for survival of Section 377\u00a0IPC\u2026\u2026.\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026
\nConclusions\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026
\n140-156
\n156-166<\/p>\n

A. Introduction<\/p>\n

Not for nothing, the great German thinker, Johann Wolfgang von Goethe, had said, ?I am what I am, so take me as I am? and similarly, Arthur Schopenhauer had pronounced, ?No one can escape from their individuality?. In this regard, it is profitable to quote a few lines from John Stuart Mill:-<\/p>\n

?But society has now fairly got the better of individuality; and the danger which threatens human nature is not the excess, but the deficiency of personal impulses and preferences.?<\/p>\n

The emphasis on the unique being of an individual is the salt of his\/her life. Denial of self-expression is inviting death. Irreplaceability of individuality and identity is grant of respect to self. This realization is one\u2018s signature and self-determined design. One defines oneself. That is the glorious form of individuality. In the present case, our deliberation and focus on the said concept shall be from various spectrums.<\/p>\n

2. Shakespeare through one of his characters in a play says ?What\u2018s in a name? That which we call a rose by any other name would smell as sweet?. The said phrase, in its basic sense, conveys that what really matters is the essential qualities of the substance and the fundamental characteristics of an entity but not the name by which it or a person is called. Getting further deeper into the meaning, it is understood that the name may be a convenient concept for identification but the essence behind the same is the core of identity. Sans identity, the name only remains a denotative term. Therefore, the identity is pivotal to one\u2018s being. Life bestows honour on it and freedom of living, as a facet of life, expresses genuine desire to have it. The said desire, one is inclined to think, is satisfied by the conception of constitutional recognition, and hence, emphasis is laid on the identity of an individual which is conceived under the Constitution. And the sustenance of identity is the filament of life. It is equivalent to authoring one\u2018s own life script where freedom broadens everyday. Identity is equivalent to divinity.<\/p>\n

3. The overarching ideals of individual autonomy and liberty, equality for all sans discrimination of any kind, recognition of identity with dignity and privacy of human beings constitute the cardinal four corners of our monumental Constitution forming the concrete substratum of our fundamental rights that has eluded certain sections of our society who are still living in the bondage of dogmatic social norms, prejudiced notions, rigid stereotypes, parochial mindset and bigoted perceptions. Social exclusion, identity seclusion and isolation from the social mainstream are still the stark realities faced by individuals today and it is only when each and every individual is liberated from the shackles of such bondage and is able to work towards full development of his\/her personality that we can call ourselves a truly free society. The first step on the long path to acceptance of the diversity and variegated hues that nature has created has to be taken now by vanquishing the enemies of prejudice and injustice and undoing the wrongs done so as to make way for a progressive and inclusive realisation of social and economic rights embracing all and to begin a dialogue for ensuring equal rights and opportunities for the ?less than equal? sections of the society. We have to bid adieu to the perceptions, stereotypes and prejudices deeply ingrained in the societal mindset so as to usher in inclusivity in all spheres and empower all citizens alike without any kind of alienation and discrimination.<\/p>\n

4. The natural identity of an individual should be treated to be absolutely essential to his being. What nature gives is natural. That is called nature within. Thus, that part of the personality of a person has to be respected and not despised or looked down upon. The said inherent nature and the associated natural impulses in that regard are to be accepted. Non-acceptance of it by any societal norm or notion and punishment by law on some obsolete idea and idealism affects the kernel of the identity of an individual. Destruction of individual identity would tantamount to crushing of intrinsic dignity that cumulatively encapsulates the values of privacy, choice, freedom of speech and other expressions. It can be viewed from another angle. An individual in exercise of his choice may feel that he\/she should be left alone but no one, and we mean, no one, should impose solitude on him\/her.<\/p>\n

5. The eminence of identity has been luculently stated in National Legal Services Authority v. Union of India and others known as NALSA case, wherein the Court was dwelling upon the status of identity of the transgenders. Radhakrishnan, J., after referring to catena of judgments and certain International Covenants, opined that gender identity is one of the most fundamental aspects of life which refers to a person\u2018s intrinsic sense of being male, female or transgender or transsexual person. A person\u2018s sex is usually assigned at birth, but a relatively small group of persons may be born with bodies which incorporate both or certain aspects of both male and female physiology. The learned Judge further observed that at times, genital anatomy problems may arise in certain persons in the sense that their innate perception of themselves is not in conformity with the sex assigned to them at birth and may include pre-and postoperative transsexual persons and also persons who do not choose to undergo or do not have access to operation and also include persons who cannot undergo successful operation. Elaborating further, he said:-<\/p>\n

?Gender identity refers to each person\u2018s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body which may involve a freely chosen, modification of bodily appearance or functions by medical, surgical or other means and other expressions of gender, including dress, speech and mannerisms. Gender identity, therefore, refers to an individual\u2018s self-identification as a man, woman, transgender or other identified category.?<\/p>\n

6. Adverting to the concept of discrimination, he stated:- ?The discrimination on the ground of ?sex? under Articles 15 and 16, therefore, includes discrimination on the ground of gender identity. The expression ?sex? used in Articles 15 and 16 is not just limited to biological sex of male or female, but intended to include people who consider themselves to be neither male nor female.?<\/p>\n

7. Dealing with the legality of transgender identity, Radhakrishnan, J. ruled:-<\/p>\n

?The self-identified gender can be either male or female or a third gender. Hijras are identified as persons of third gender and are not identified either as male or female. Gender identity, as already indicated, refers to a person\u2018s internal sense of being male, female or a transgender, for example hijras do not identify as female because of their lack of female genitalia or lack of reproductive capability. This distinction makes them separate from both male and female genders and they consider themselves neither man nor woman, but a ?third gender?.?<\/p>\n

8. Sikri, J., in his concurring opinion, dwelling upon the rights of transgenders, laid down that gender identification is an essential component which is required for enjoying civil rights by the community. It is only with this recognition that many rights attached to the sexual recognition as ?third gender? would be available to the said community more meaningfully viz. the right to vote, the right to own property, the right to marry, the right to claim a formal identity through a passport and a ration card, a driver\u2018s licence, the right to education, employment, health and so on. Emphasising on the aspect of human rights, he observed:-<\/p>\n

?\u2026there seems to be no reason why a transgender must be denied of basic human rights which includes right to life and liberty with dignity, right to privacy and freedom of expression, right to education and empowerment, right against violence, right against exploitation and right against discrimination. The Constitution has fulfilled its duty of providing rights to transgenders. Now it is time for us to recognise this and to extend and interpret the Constitution in such a manner to ensure a dignified life for transgender people. All this can be achieved if the beginning is made with the recognition of TG as third gender.?<\/p>\n

The aforesaid judgment, as is manifest, lays focus on inalienable ?gender identity? and correctly connects with human rights and the constitutionally guaranteed right to life and liberty with dignity. It lays stress on the judicial recognition of such rights as an inextricable component of Article 21 of the Constitution and decries any discrimination as that would offend Article 14, the ?fon juris? of our Constitution.<\/p>\n

9. It has to be borne in mind that search for identity as a basic human ideal has reigned the mind of every individual in many a sphere like success, fame, economic prowess, political assertion, celebrity status and social superiority, etc. But search for identity, in order to have apposite space in law, sans stigmas and sans fear has to have the freedom of expression about his\/her being which is keenly associated with the constitutional concept of ?identity with dignity?. When we talk about identity from the constitutional spectrum, it cannot be pigeon-holed singularly to one\u2018s orientation that may be associated with his\/her birth and the feelings he\/she develops when he\/she grows up. Such a narrow perception may initially sound to subserve the purpose of justice but on a studied scrutiny, it is soon realized that the limited recognition keeps the individual choice at bay. The question that is required to be posed here is whether sexual orientation alone is to be protected or both orientation and choice are to be accepted as long as the exercise of these rights by an individual do not affect another\u2018s choice or, to put it succinctly, has the consent of the other where dignity of both is maintained and privacy, as a seminal facet of Article 21, is not dented. At the core of the concept of identity lies self-determination, realization of one\u2018s own abilities visualizing the opportunities and rejection of external views with a clear conscience that is in accord with constitutional norms and values or principles that are, to put in a capsule, ?constitutionally permissible?. As long as it is lawful, one is entitled to determine and follow his\/her pattern of life. And that is where the distinction between constitutional morality and social morality or ethicality assumes a distinguished podium, a different objective. Non-recognition in the fullest sense and denial of expression of choice by a statutory penal provision and giving of stamp of approval by a two-Judge Bench of this Court to the said penal provision, that is, Section 377 of the Indian Penal Code, in Suresh Kumar Koushal and another v. Naz Foundation and others<\/p>\n

overturning the judgment of the Delhi High Court in Naz Foundation v. Government of NCT of Delhi and others, is the central issue involved in the present controversy.<\/p>\n

B. The Reference<\/p>\n

10. Writ Petition (Criminal) No. 76 of 2016 was filed for declaring ?right to sexuality?, ?right to sexual autonomy? and ?right to choice of a sexual partner? to be part of the right to life guaranteed under Article 21 of the Constitution of India and further to declare Section 377 of the Indian Penal Code (for short, ?IPC?) to be unconstitutional. When the said Writ Petition was listed before a three-Judge Bench on 08.01.2018, the Court referred to a two-Judge Bench decision rendered in Suresh Koushal (supra) wherein this Court had overturned the decision rendered by the Division Bench of the Delhi High Court in Naz Foundation (supra). It was submitted by Mr. Arvind Datar, learned senior counsel appearing for the writ petitioners, on the said occasion that the two-Judge Bench in Suresh Koushal (supra) had been guided by social morality leaning on majoritarian perception whereas the issue, in actuality, needed to be debated upon in the backdrop of constitutional morality. A contention was also advanced that the interpretation placed in Suresh Kumar (supra) upon Article 21 of the Constitution is extremely narrow and, in fact, the Court has been basically guided by Article 14 of the Constitution. Reliance was placed on the pronouncement in NALSA case wherein this Court had emphasized on ?gender identity and sexual orientation?. Attention of this Court was also invited to a nineJudge Bench decision in K.S. Puttaswamy and another v. Union of India and others 4 wherein the majority, speaking through Chandrachud, J., has opined that sexual orientation is an essential component of rights guaranteed under the Constitution which are not formulated on majoritarian favour or acceptance. Kaul, J, in his concurring opinion, referred to the decision in Mosley v. News Group Newspapers Ltd. to highlight that the emphasis for individual\u2018s freedom to conduct his sex life and personal relationships as he wishes, subject to the permitted exceptions, countervails public interest.<\/p>\n

11. The further submission that was advanced by Mr. Datar was that privacy of the individual having been put on such a high pedestal and sexual orientation having been emphasized in the NALSA case, Section 377 IPC cannot be construed as a reasonable restriction as that would have the potentiality to destroy the individual autonomy and sexual orientation. It is an accepted principle of interpretation of statutes that a provision does not become unconstitutional merely because there can be abuse of the same. Similarly, though a provision on the statute book is not invoked on many occasions, yet it does not fall into the sphere of the doctrine of desuetude. However, Suresh Koushal’s case has been guided by the aforesaid doctrine of desuetude.<\/p>\n

12. Appreciating the said submissions, the three-Judge Bench stated that:- ?Certain other aspects need to be noted. Section 377 IPC uses the phraseology ?carnal intercourse against the order of nature?. The determination of order of nature is not a constant phenomenon. Social morality also changes from age to age. The law copes with life and accordingly change takes place. The morality that public perceives, the Constitution may not conceive of. The individual autonomy and also individual orientation cannot be atrophied unless the restriction is regarded as reasonable to yield to the morality of the Constitution. What is natural to one may not be natural to the other but the said natural orientation and choice cannot be allowed to cross the boundaries of law and as the confines of law cannot tamper or curtail the inherent right embedded in an individual under Article 21 of the Constitution. A section of people or individuals who exercise their choice should never remain in a state of fear. When we say so, we may not be understood to have stated that there should not be fear of law because fear of law builds civilised society. But that law must have the acceptability of the Constitutional parameters. That is the litmus test. It is necessary to note, in the course of hearing on a query being made and Mr. Datar very fairly stated that he does not intend to challenge that part of Section 377 which relates to carnal intercourse with animals and that apart, he confines to consenting acts between two adults. As far as the first aspect is concerned, that is absolutely beyond debate. As far as the second aspect is concerned, that needs to be debated. The consent between two adults has to be the primary pre-condition. Otherwise the children would become prey, and protection of the children in all spheres has to be guarded and protected. Taking all the apsects in a cumulative manner, we are of the view, the decision in Suresh Kumar Koushal’s case (supra) requires re-consideration.?<\/p>\n

The three-Judge Bench expressed the opinion that the issues raised should be answered by a larger Bench and, accordingly, referred the matter to the larger Bench. That is how the matter has been placed before us.<\/p>\n

C. Submissions on behalf of the petitioners<\/p>\n

13. We have heard Mr. Mukul Rohatgi, learned senior counsel assisted by Mr. Saurabh Kirpal, learned counsel appearing for the petitioners 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 Writ Petition (Criminal) No. 88 of 2018, Mr. Anand Grover, learned senior counsel for the petitioners in Writ Petition (Criminal) Nos. 100 of 2018 and 101 of 2018 and Dr. Menaka Guruswamy, learned counsel for the petitioner in Writ Petition (Criminal) No. 121 of 2018. We have also heard Mr. Ashok Desai, Mr. Chander Uday Singh, Mr. Shyam Divan and Mr. Krishnan Venugopal, learned senior counsel appearing for various intervenors in the matter. A compilation of written submissions has been filed by the petitioners as well as the intervenors.<\/p>\n

14. We have heard Mr. Tushar Mehta, learned Additional Solicitor General for the Union of India, Mr. K. Radhakrishnan, learned senior counsel appearing in Interlocutory Application No. 94284 of 2018 in Writ Petition (Criminal) No. 76 of 2016, Mr. Mahesh Jethmalani, learned senior counsel appearing in Interlocutory Application No. 91147 in Writ Petition (Criminal) No. 76 of 2016, Mr. Soumya Chakraborty, learned senior counsel appearing in Interlocutory Application No. 94348 of 2018 in Writ Petition (Criminal) No. 76 of 2016, Mr. Manoj V. George, learned counsel appearing for Apostolic Alliance of Churches & Utkal Christian Council and Dr. Harshvir Pratap Sharma, learned counsel appearing in Interlocutory Application No. 93411 of 2018 in Writ Petition (Criminal) No. 76 of 2016.<\/p>\n

15. It is submitted on behalf of the petitioners and the intervenors that homosexuality, bisexuality and other sexual orientations are equally natural and reflective of expression of choice and inclination founded on consent of two persons who are eligible in law to express such consent and it is neither a physical nor a mental illness, rather they are natural variations of expression and free thinking process and to make it a criminal offence is offensive of the well established principles pertaining to individual dignity and decisional autonomy inherent in the personality of a person, a great discomfort to gender identity, destruction of the right to privacy which is a pivotal facet of Article 21 of the Constitution, unpalatable to the highly cherished idea of freedom and a trauma to the conception of expression of biological desire which revolves around the pattern of mosaic of true manifestation of identity. That apart, the phrase ?order of nature? is limited to the procreative concept that may have been conceived as natural by a systemic conservative approach and such limitations do not really take note of inborn traits or developed orientations or, for that matter, consensual acts which relate to responses to series of free exercise of assertions of one\u2018s bodily autonomy. It is further argued that their growth of personality, relation building endeavour to enter into a live-in relationship or to form an association with a sense of commonality have become a mirage and the essential desires are crippled which violates Article 19(1)(a) of the Constitution. It is urged that the American Psychological Association has opined that sexual orientation is a natural condition and attraction towards the same sex or opposite sex are both naturally equal, the only difference being that the same sex attraction arises in far lesser numbers.<\/p>\n

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, for sexual orientation is an integral and innate facet of every individual\u2018s identity. A person belonging to the said community does not become an alien to the concept of individual and his individualism cannot be viewed with a stigma. The impact of sexual orientation on an individual\u2018s life is not limited to their intimate lives but also impacts their family, professional, social and educational life. As per the petitioners, such individuals (sexual minorities in societies) need protection more than the heterosexuals so as to enable them to achieve their full potential and to live freely without fear, apprehension or trepidation in such a manner that they are not discriminated against by the society openly or insidiously or by the State in multifarious ways in matters such as employment, choice of partner, testamentary rights, insurability, medical treatment in hospitals and other similar rights arising from live-in relationships which, after the decision in Indra Sarma v. V.K.V. Sarma 6 , is recognized even by the ?Protection of Women from Domestic Violence Act, 2005? for various kinds of live-in relationships. The same protection, as per the petitioners, must be accorded to same sex relationships.<\/p>\n

17. It is urged by the learned counsel for the petitioners that individuals belonging to the LGBT group suffer discrimination and abuse throughout their lives due to the existence of Section 377 IPC which is nothing but a manifestation of a mindset of societal values prevalent during the Victorian era where sexual activities were considered mainly for procreation. The said community remains in a constant state of fear which is not conducive for their growth. It is contended that they suffer at the hands of law and are also deprived of the citizenry rights which are protected under the Constitution. The law should have treated them as natural victims and sensitized the society towards their plight and laid stress on such victimisation, however, the reverse is being done due to which a sense of estrangement and alienation has developed and continues to prevail amongst the members belonging to the LGBT group. Compulsory alienation due to stigma and threat is contrary to the fundamental principle of liberty.<\/p>\n

18. The petitioners have referred to the decision of this Court in NALSA case wherein transgenders have been recognized as a third gender apart from male and female and have been given certain rights. Yet, in view of the existence of Section 377 in the IPC, consensual activities amongst transgenders would continue to constitute an offence. Drawing inspiration from the NALSA case, the petitioners submit that the rights of the LGBT group are not fully realized and they remain incomplete citizens because their expression as regards sexuality is not allowed to be pronounced owing to the criminality attached to the sexual acts between these persons which deserves to be given a burial and, therefore, the rights of the LGBT community also need equal, if not more, constitutional protection. Accordingly, the petitioners are of the view that Section 377 of the IPC be read down qua the LGBT community so as to confine it only to the offence of bestiality and non-consensual acts in view of the fact that with the coming into force of the Criminal Law (Amendment) Act, 2013 and the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), the scope of sexual assault has been widened to include non peno-vaginal sexual assault and also criminalize non-consensual sexual acts between children thereby plugging important gaps in the law governing sexual violence in India.<\/p>\n

19. The petitioners have also submitted that Section 377, despite being a pre-constitutional law, was retained post the Constitution coming into effect by virtue of Article 372 of the Constitution, but it must be noted that the presumption of constitutionality is merely an evidentiary burden initially on the person seeking to challenge the vires of a statute and once any violation of fundamental rights or suspect classification is prima facie shown, then such presumption has no role. In the case at hand, the petitioners face a violation of their fundamental rights to an extent which is manifestly clear and it is a violation which strikes at the very root or substratum of their existence. The discrimination suffered at the hands of the majority, the onslaught to their dignity and invasion on the right to privacy is demonstrably visible and permeates every nook and corner of the society.<\/p>\n

20. It is the argument of the petitioners that Section 377, if retained in its present form, would involve the violation of, not one but, several fundamental rights of the LGBTs, namely, right to privacy, right to dignity, equality, liberty and right to freedom of expression. The petitioners contend that sexual orientation which is a natural corollary of gender identity is protected under Article 21 of the Constitution and any discrimination meted out to the LGBT community on the basis of sexual orientation would run counter to the mandate provided under the Constitution and the said view has also gained approval of this Court in the NALSA case.<\/p>\n

21. The petitioners have also relied upon the view in K.S. Puttaswamy (supra) to advance their argument that sexual orientation is also an essential attribute of privacy. Therefore, protection of both sexual orientation and right to privacy of an individual is extremely important, for without the enjoyment of these basic and fundamental rights, individual identity may lose significance, a sense of trepidation may take over and their existence would be reduced to mere survival. It is further urged that sexual orientation and privacy lie at the core of the fundamental rights which are guaranteed under Articles 14, 19 and 21 of the Constitution and in the light of the decision in Puttaswamy (supra), it has become imperative that Section 377 be struck down. It is contended that the right to privacy has to take within its ambit and sweep the right of every individual, including LGBTs, to make decisions as per their choice without the fear that they may be subjected to humiliation or shunned by the society merely because of a certain choice or manner of living.<\/p>\n

22. Having canvassed with vehemence that sexual orientation is an important facet of the right to privacy which has been raised to the pedestal of a cherished right, the learned counsel for the petitioners have vigorously propounded that sexual autonomy and the right to choose a partner of one\u2018s choice is an inherent aspect of the right to life and right to autonomy. In furtherance of the said view, they have relied upon the authorities in Shakti Vahini v. Union of India and others and Shafin Jahan v. Asokan K.M.8 wherein it has been clearly recognized that an individual\u2018s exercise of choice in choosing a partner is a feature of dignity and, therefore, it is protected under Articles 19 and 21 of the Constitution.<\/p>\n

23. According to the petitioners, there is no difference between persons who defy social conventions to enter into inter-religious and inter-caste marriages and those who choose a same sex partner in the sense that the society may disapprove of inter-caste or interreligious marriages but this Court is for enforcing constitutional rights. Similarly, as per the petitioners, even if there is disapproval by the majority of the sexual orientation or exercise of choice by the LGBT persons, the Court as the final arbiter of the constitutional rights, should disregard social morality and uphold and protect constitutional morality which has been adverted to by this Court in several cases, including Manoj Narula v. Union of India , for that is the governing rule. It is argued that the Delhi High Court in Naz Foundation (supra) has referred to and analysed the concept of constitutional morality and ultimately struck down Section 377 IPC clearly stating that carnal intercourse between homosexuals and heterosexuals with consent cannot be an offence.<\/p>\n

24. The LGBT persons cannot, according to the petitioners, be penalized simply for choosing a same sex partner, for the constitutional guarantee of choice of partner extends to the LGBT persons as well. Learned counsel for the petitioners and the supporting intervenors have submitted that sexual orientation, being an innate facet of individual identity, is protected under the right to dignity. To bolster the said argument, reliance has been placed upon Francis Coralie Mullin v. Administrator, Union Territory of Delhi and others10 and Common Cause (A Registered Society) v. Union of India and another11 wherein it was held that the right to life and liberty, as envisaged under Article 21, is meaningless unless it encompasses within its sphere individual dignity and right to dignity includes the right to carry such functions and activities as would constitute the meaningful expression of the human self.<\/p>\n

25. It is submitted that Section 377 is an anathema to the concept of fraternity as enshrined in the Preamble to our Constitution and the Indian Constitution mandates that we must promote fraternity amongst the citizens sans which unity shall remain a distant dream.<\/p>\n

26. The petitioners have further contended that Section 377 is violative of Article 14 of the Constitution as the said Section is vague in the sense that carnal intercourse against the order of nature is neither defined in the Section nor in the IPC or, for that matter, any other law. There is, as per the petitioners, no intelligible differentia or reasonable classification between natural and unnatural sex as long as it is consensual in view of the decision of this Court in Anuj Garg and others v. Hotel Association of India and others12 which lays down the principle that classification which may have been treated as valid at the time of its adoption may cease to be so on account of changing social norms.<\/p>\n

27. Section 377, as argued by the petitioners, is manifestly arbitrary and over-broad and for the said purpose, immense inspiration has been drawn from the principles stated in Shayara Bano v. Union of India and others13 , for making consensual relationship a crime on the ground that it is against the order of nature suffers from manifest arbitrariness at the fulcrum.<\/p>\n

28. It is the case of the petitioners that Section 377 violates Article 15 of the Constitution since there is discrimination inherent in it based on the sex of a person\u2018s sexual partner as under Section 376(c) to (e), a person can be prosecuted for acts done with an opposite sex partner without her consent, whereas the same acts if done with a same-sex partner are criminalized even if the partner consents. The petitioners have drawn the attention of this Court to the Justice J.S Verma Committee on Amendments to Criminal Law which had observed that =sex\u2018 occurring in Article 15 includes sexual orientation and, thus, as per the petitioners, Section 377 is also violative of Article 15 of the Constitution on this count.<\/p>\n

29. It is argued with astuteness that Section 377 has a chilling effect on Article 19(1)(a) of the Constitution which protects the fundamental right of freedom of expression including that of LGBT persons 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 Section 377 constitutes an unreasonable exception and is thereby not covered under Article 19(2) of the Constitution. To buttress the said stance, reliance is placed upon the decision in S. Khushboo v. Kanniammal and another14 wherein it has been held that law should not be used in such a manner that it has a chilling effect on the freedom of speech and expression. Additionally, the view in NALSA case has also been strongly pressed into service to emphasize that the said decision clearly spells out that the right under Article 19(1)(a) includes one\u2018s right to expression of his\/her selfidentified gender which can be expressed through words, action, behaviour or any other form.<\/p>\n

30. The petitioners have also contended that Section 377 violates the rights of LGBT persons under Article 19(1)(c) and denies them the right to form associations. Similarly, such persons are hesitant to register companies to provide benefits to sexual minorities due to the fear of state action and social stigma. Further, a conviction under Section 377 IPC renders such persons ineligible for appointment as a director of a company.<\/p>\n

31. It is averred that Section 377 IPC, by creating a taint of criminality, deprives the LGBT persons of their right to reputation which is a facet of the right to life and liberty of a citizen under Article 21 of the Constitution as observed by this Court in Kishore Samrite v. State of U.P. and others15 and Umesh Kumar v. State of Andhra Pradesh and another16 to the effect that reputation is an element of personal security and protected by the Constitution with the right to enjoyment of life and liberty. This right, as per the petitioners, is being denied to the LGBT persons because of Section 377 IPC as it makes them apprehensive to speak openly about their sexual orientation and makes them vulnerable to extortion, blackmail and denial of State machinery for either protection or for enjoyment of other rights and amenities and on certain occasions, the other concomitant rights are affected.<\/p>\n

32. The petitioners have advanced their argument that Section 377 IPC impedes the ability of the LGBTs to realize the constitutionally guaranteed right to shelter. To illustrate the same, the petitioners have drawn the attention of the Court to the fact that LGBTs seek assistance of private resources such as Gay Housing Assistance Resources (GHAR) in order to access safe and suitable shelter and this is an indication that the members of this community are in need of immediate care and protection of the State.<\/p>\n

33. The decision in Suresh Koushal (supra), as per the petitioners, is per incuriam as the view observed therein has failed to take into account the amendment to Section 375 IPC which has rendered sexual =carnal intercourse against the order of nature\u2018 between man and woman as permissible. Section 377, on the other hand, has continued to render same sex carnal intercourse as an offence, even if it is consensual. Further, the petitioners have assailed the decision of this Court in Suresh Koushal\u2019s case on the ground that the view in the said decision on classification is contrary to the =impact or effect test\u2018, for the result, in ultimate eventuality, leads to discrimination. Thus, the petitioners have contended that after Puttaswamy (supra), the view in Suresh Koushal (supra) needs to be overruled and the proper test would be whether Section 377 IPC can be enacted by the Parliament today after the decisions of this Court in NALSA (supra) and Puttaswamy (supra) and other authorities laying immense emphasis on individual choice.<\/p>\n

34. It is further contended that LGBT persons are deprived of their rights due to the presence of Section 377 as they fear prosecution and persecution upon revealing their sexual identities and, therefore, this class of persons never approached this Court as petitioners, rather they have always relied upon their teachers, parents, mental health professionals and other organizations such as NGOs to speak on their behalf. It is urged that the appellants in Suresh Koushal (supra) led this Court to assume that LGBT persons constitute only a minuscule fraction whereas 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 of percentage of populace but on a real scrutiny of the existence of right and denial of the same. It is the stand of the petitioners that majority perception or view cannot be the guiding factor for sustaining the constitutionality of a provision or to declare a provision as unconstitutional.<\/p>\n

D. Submissions on behalf of the respondents and other intervenors<\/p>\n

35. The respondent, Union of India, has, vide affidavit dated 11th July, 2018, submitted that the matter at hand was referred to a Constitution Bench 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 is the question of the constitutional validity of criminalizing ‘consensual acts of adults in private’ falling under Section 377 IPC.<\/p>\n

36. Further, the Union has submitted that so far as the constitutional validity of Section 377 IPC, to the extent it applies to ‘consensual acts of adults in private’, is concerned, the respondent leaves the same to the wisdom of this Court.<\/p>\n

37. The respondent has also contended that in the event Section 377 IPC so far as ‘consensual acts of adults in private’ is declared unconstitutional, other ancillary issues or rights which have not been referred to this Bench for adjudication may not be dealt with by this Bench as in that case, the Union of India expresses the wish to file detailed affidavit in reply, for consideration of other issues and rights would have far reaching and wide ramifications under various other laws and will also have consequences which are neither contemplated in the reference nor required to be answered by this Hon\u2018ble Bench.<\/p>\n

38. The respondent has submitted that allowing any other issue (other than the constitutional validity of Section 377 IPC) to be argued and adjudicating the same without giving an opportunity to the Union of India to file a counter affidavit may not be in the interest of justice and would be violative of the principles of natural justice.<\/p>\n

39. Another set of written submissions has been filed by Shri K. Radhakrishnan, senior counsel, on behalf of intervenor-NGO, Trust God Ministries. The said intervenor has submitted that the observations of this Court in Puttaswamy (supra), particularly in Para 146, virtually pre-empt and forestall the aforesaid NGO from raising substantial contentions to the effect that there is no uncanalised and unbridled right to privacy and the said right cannot be abused. Further, the intervenor has contended that there is no personal liberty to abuse one\u2018s organs and that the offensive acts proscribed by Section 377 IPC are committed by abusing the organs. Such acts, as per the intervenor, are undignified and derogatory to the constitutional concept of dignity and if any infraction is caused to the concept of dignity, then it would amount to constitutional wrong and constitutional immorality.<\/p>\n

40. It is also the case of the intervenor that issues pertaining to the constitutional and other legal rights of the transgender community, their gender identity and sexual orientation have been exhaustively considered 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 to them and the prayers made by them is only to abuse privacy and personal liberty by transgressing the concepts of dignity and public morality.<\/p>\n

41. As per the intervenor, Section 377 rightly makes the acts stated therein punishable as Section 377 has been incorporated after taking note of the legal systems and principles which prevailed in ancient India and now in 2018, the said Section is more relevant legally, medically, morally and constitutionally.<\/p>\n

42. To illustrate this, the intervenor has drawn the attention of this Court to W. Friedmann from ‘Law in a Changing Society’ wherein he has observed that to prohibit a type of conduct which a particular society considers worthy of condemnation by criminal sanctions is deeply influenced by the values governing that society and it, therefore, varies from one country to another and one period of history to another.<\/p>\n

43. Further, it has been contended by the intervenor that persons indulging in unnatural sexual acts which have been made punishable under Section 377 IPC are more susceptible and vulnerable to contracting HIV\/AIDS and the percentage of prevalence of AIDS in homosexuals is much greater than heterosexuals and that the right to privacy may not be extended in order to enable people to indulge in unnatural offences and thereby contact AIDS.<\/p>\n

44. It is also the case of the intervenor that if Section 377 is declared unconstitutional, then the family system which is the bulwark of social culture will be in shambles, the institution of marriage will be detrimentally affected and rampant homosexual activities for money would tempt and corrupt young Indians into this trade.<\/p>\n

45. Written submissions have also been filed on behalf of Mr. Suresh Kumar Koushal, intervenor, submitting therein that the argument of the petitioners that consensual acts of adults in private have been decriminalized in many parts of the world and, therefore, it deserves to be decriminalized in India as well does not hold good for several reasons inasmuch as the political, economic and cultural heritage of those countries are very different from India which is a multicultural and multi-linguistic country.<\/p>\n

46. The intervenor has contended that since fundamental rights are not absolute, there is no unreasonableness in Section 377 IPC and decriminalizing the same would run foul to all religions practised in the country, and, while deciding the ambit and scope of constitutional morality, Article 25 also deserves to be given due consideration.<\/p>\n

47. Another application for intervention, being I.A No. 91250 of 2018, was filed and the same was allowed. It has been contended by the said intervenor that in the attempt that Section 377 is struck down, it would render the victims complaining of forced acts covered under the existing Section 377 IPC remediless as the said Section not only impinges on carnal intercourse against the order of nature between two consenting adults but also applies to forced penile non- vaginal sexual intercourse between adults. This, as per the intervenor, would be contrary to the decision of this Court in Iqbal Singh Marwah and another v. Meenakshi Marwah and another<\/p>\n

48. The applicant has also submitted that in the event consenting acts between two same sex adults are excluded from the ambit of Section 377 IPC, then a married woman would be rendered remediless under the IPC against her bi-sexual husband and his consenting male partner indulging in any sexual acts.<\/p>\n

49. The intervenor has suggested that the alleged misuse of Section 377 IPC as highlighted by the petitioners can be curbed by adding an explanation to Section 377 IPC defining ‘aggrieved person’ which shall include only non-consenting partner or aggrieved person or wife or husband or any person on their behalf on the lines of Section 198(1) of Code of Criminal Procedure, 1973. This, as per the applicant, would curb any mala fide complaint lodged by authorities and vindictive or mischievous persons when the act complained of is ‘consenting act’ between two persons. Further, the applicant has submitted that this Court may be pleased to identify that the courts shall take cognizance of an offence under Section 377 IPC only on a complaint made by an aggrieved person. Such an approach, as per the applicant, inherently respects consent and also protects from interference and safeguards the privacy and dignity of an individual under Article 21 of the Constitution.<\/p>\n

50. The applicant has also contended that the constitutionality of any legislation is always to be presumed and if there is any vagueness in the definition of any section, the courts have to give such a definition which advances the purpose of the legislation and that the courts must make every effort to uphold the constitutional validity of a statute if that requires giving a stretched construction in view of the decisions of this Court in K.A. Abbas v. Union of India and another18 and Rt. Rev. Msgr. Mark Netto v. State of Kerala and others.<\/p>\n

51. The applicant, through his learned counsel Mr. Harvinder Chowdhury, submits that if the right to privacy as recognized in Puttaswamy (supra) is allowed its full scope and swing, then that itself would rule out prosecution in all cases of consensual unnatural sex between all couples, whether heterosexual or homosexual, and without having to engage in reading down, much less striking down of, the provisions of Section 377 IPC in its present form. This is so because the State cannot compel individuals engaging in consensual sexual acts from testifying against one another as it involves a breach of privacy unless the consent itself is under challenge and one cannot be a consenting victim of a crime so long as the consent is legally valid.<\/p>\n

52. Submissions have also been advanced on behalf of Raza Academy, intervenor, through its learned counsel Mr. R.R Kishore, who has contended that homosexuality is against the order of nature and Section 377 rightly forbids it. Prohibition against carnal intercourse involving penetration into non-sexual parts of the body does not constitute discrimination as laws based on biological reality can never be unconstitutional, for if a male is treated as a male, a female as a female and a transgender as a transgender, it does not amount to discrimination.<\/p>\n

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

54. Another application for intervention, being I.A No. 9341 of 2011, was filed and allowed. The applicant, in his written submissions, after delineating the concept of immorality, has submitted that the doctrine of manifest arbitrariness is of no application to the present case as the law is not manifestly or otherwise arbitrary, for Section 377 criminalizes an act irrespective of gender or sexual orientation of the persons involved. The universal application of the said provision without any gender bias is the touchstone of Part III of the Constitution and is not arbitrary as there is no intentional or unreasonable discrimination in the provision.<\/p>\n

55. The applicant has drawn the attention of this Court to the case of Fazal Rab Choudhary v. State of Bihar20 wherein this Court held that the offence under Section 377 IPC implies sexual perversity. Further, it is the case of the applicant that there should not be identical transplantation of Western ideology in our country which has also been a matter of concern for this Court in Jagmohan Singh v. State of U.P.21<\/p>\n

56. The applicant, after citing the case of State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat and others22 , has stressed upon the fact that the interest of a citizen or a section of the society, howsoever important, is secondary to the interest of the country or community as a whole and while judging the reasonability of restrictions imposed on fundamental rights, due consideration must also be given to the Directive Principles stated in Part IV. In view of these aforesaid submissions, the applicant has submitted that fundamental rights may not be overstretched and the Directive Principles of State Policy which are fundamental in the governance of the country cannot be neglected, for they are not less significant than what is fundamental in the life of an individual as held in Kesavananda Bharati v. Union of India.<\/p>\n

57. Another application for intervention, being I.A. No. 76790 of 2018, has been filed by Apostolic Alliance of Churches and the Utkal Christian Council. The applicants have submitted that the Court, while interpreting Section 377 IPC, has to keep in mind that there can be situations where consent is obtained by putting a person in fear of death or hurt or consent can also be obtained under some misconception or due to unsoundness of mind, intoxication or inability to understand the nature and the consequences of the acts prohibited by Section 377 IPC.<\/p>\n

58. The applicant has also advanced the argument that Section 377 IPC in its present form does not violate Article 14 of the Constitution as it merely defines a particular offence and its punishment and it is well within the power of the State to determine who should be regarded as a class for the purpose of a legislation and this, as per the applicant, is reasonable classification in the context of Section 377 IPC.<\/p>\n

59. Further, the applicant has contended that Section 377 IPC is not violative of Article 15 of the Constitution as the said Article prohibits discrimination on the grounds of only religion, race, caste, sex, place of birth or any of them but not sexual orientation. The word =sexual orientation\u2018, as per the applicant, is alien to our Constitution and the same cannot be imported within it for testing the constitutional validity of a provision or legislation. As per the applicant, if the word ‘sex’ has to be replaced by ‘sexual orientation’, it would require a constitutional amendment.<\/p>\n

60. It is also the case of the applicant that the Yogyakarta principles which have been heavily relied upon by the petitioners to bolster their stand have limited sanctity inasmuch as they do not amount to an international treaty binding on the State parties and there are no inter-governmentally negotiated international instruments or agreed human rights treaties on the issue of LGBTs.<\/p>\n

61. Further, the applicant has submitted that there is no requirement to reconsider the decision of this Court in Suresh Koushal (supra) wherein it was held that there is a presumption of constitutionality of a legislation and the Court must adopt selfrestraint and thereby refrain from giving birth to judicial legislation. In the applicant’s view, the legislative wisdom of the Parliament must be respected and it must be left to the Parliament to amend Section 377 IPC, if so desired.<\/p>\n

62. The applicant has contended that if the prayers of the petitioners herein are allowed, it would amount to judicial legislation, for the Courts cannot add or delete words into a statute. It is stated that the words ‘consent’ and\/or ‘without consent’ are not mentioned in Section 377 IPC and, therefore, the Courts cannot make such an artificial distinction. To buttress this stand, the applicant has relied upon the decision of this Court in Sakshi v. Union of India and others24 wherein it was observed that the attention of the Court should be on what has been said and also on what has not been said while interpreting the statute and that it would be wrong and dangerous for the Court to proceed by substituting some other words in a statute since it is well settled that a statute enacting an offence or imposing a penalty has to be strictly construed.<\/p>\n

63. The applicant has also drawn the attention of this Court to the decision in Union of India and another v. Deoki Nandan Aggarwal25 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 legislate since the power to legislate has not been conferred upon the Court and, therefore, the Courts cannot add words to a statute or read words into it which are not there. The Courts are to decide what the law is and not what it should be.<\/p>\n

64. It is also the case of the applicant that the decriminalization of Section 377 IPC will open a floodgate of social issues which the legislative domain is not capable of accommodating as same sex marriages would become social experiments with unpredictable outcome.<\/p>\n

65. Further, it is the contention of the applicant that decriminalization of Section 377 IPC will have cascading effect on existing laws such as Section 32(d) of the Parsi Marriage and Divorce Act, 1936; Section 27(7)(1A) A of the Special Marriage Act, 1954 which permits a wife to present a petition for divorce to the district court on the ground,\u2014(i) that her husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; Section 10(2) of the Indian Divorce Act, 1869 and Section 13(2) of the Hindu Marriage Act, 1955.<\/p>\n

E. Decisions in Naz Foundation and Suresh Koushal<\/p>\n

66. We shall now advert to what had been stated by the Delhi High Court in Naz Foundation and thereafter advert to the legal base of the decision in Suresh Koushal\u2019s case. The Delhi High Court had taken the view that Article 15 of the Constitution prohibits discrimination on several enumerated grounds including sex. The High Court preferred an expansive interpretation of ‘sex’ so as to include prohibition of discrimination 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 sexual orientation is grounded in stereotypical judgments and generalization about the conduct of either sex.<\/p>\n

67. Another facet of the Indian Constitution that the High Court delineated was that of inclusiveness as the Indian Constitution reflects this value of inclusiveness deeply ingrained in the Indian society and nurtured over several generations. The High Court categorically said that those who are perceived by the majority as deviants or different are not to be, on that score, excluded or ostracised. In the High Court’s view, where a society displays inclusiveness and understanding, the LGBT persons can be assured of a life of dignity and non-discrimination.<\/p>\n

68. It has been further opined by the High Court that the Constitution does not permit any statutory criminal law to be held captive of the popular misconceptions of who the LGBTs are, as it cannot be forgotten that discrimination is the antithesis of equality and recognition of 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 to succumb to the concept of constitutional morality.<\/p>\n

69. On the basis of the aforesaid reasons, the High Court declared Section 377 IPC violative of Articles 14, 15 and 21 of the Constitution in so far as it criminalises consensual sexual acts of adults in private, whereas for non-consensual penile non-vaginal sex and penile nonvaginal sex involving minors, the High Court ruled that Section 377 IPC was valid.<\/p>\n

70. The Delhi High Court judgment was challenged in Suresh Koushal (supra) wherein this Court opined that acts which fall within the ambit of Section 377 IPC can only be determined with reference to the act itself and to the circumstances in which it is executed. While so opining, the Court held that Section 377 IPC would apply irrespective of age and consent, for Section 377 IPC does not criminalize a particular people or identity or orientation and only identifies certain acts which, when committed, would constitute an offence. Such a prohibition, in the Court’s view in Suresh Koushal (supra), regulates sexual conduct regardless of gender identity and orientation.<\/p>\n

71. The Court further observed that those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute different classes and the people falling in the latter category cannot claim that Section 377 IPC suffers from the vice of arbitrariness and irrational classification. The Court further observed that while reading down Section 377 of the Indian Penal Code, it cannot be overlooked that only a minuscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders and in last more than 150 years, less than 200 persons have been prosecuted under Section 377 of the Indian Penal Code which cannot, therefore, be made a sound basis for declaring Section 377 IPC ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.<\/p>\n

72. The submission advanced by the respondents therein to the effect that the provision had become a pernicious tool for perpetrating harassment, blackmail and torture on those belonging to the LGBT community was repelled by stating that such treatment is neither mandated by the Section nor condoned by it and the mere fact that the Section is misused by police authorities and others is not a reflection of the vires of the Section, though it might be a relevant factor for the Legislature to consider while judging the desirability of amending Section 377 of the Indian Penal Code. F. Other judicial pronouncements on Section 377 IPC<\/p>\n

73. Presently, we may refer to some of the judgments and the views taken therein by this Court as well as by the High Courts on Section 377 IPC so as to have a holistic perspective.<\/p>\n

74. While interpreting the said provision, the Courts have held that the provision stipulates certain acts, which when committed, would constitute a criminal offence. In Childline India Foundation and another v. Allan John Waters and others26, the Court was dealing with carnal intercourse against the order of nature when the material on record showed that the accused Nos. 2 and 3 used to have sex and fellatio with PWs 1 and 4. The Court opined that the ingredients of Section 377 IPC were proved and, accordingly, restored the conviction and sentence of 6 years\u2018 rigorous imprisonment and confirmed the imposition of fine. In Fazal Rab Choudhary (supra), although the Court convicted the accused under Section 377 IPC, yet it took note of the absence of any force in the commission of the act. The Court also took into account the prevalent notions of permissive society and the fact that homosexuality has been legalized in some countries. In view of the same, the Court reduced the sentence of 3 years imposed on the accused to 6 months opining that the aforesaid aspects must also be kept in view as they have a bearing on the question of offence and quantum of sentence.<\/p>\n

75. A reference may be made to Khanu v. Emperor27 which was also alluded to in Suresh Koushal\u2018s case. We deem it appropriate to reproduce a part of Khanu\u2018s decision to understand how the courts in India had understood the word ?carnal intercourse against the order of nature?. The said passage reads thus:- ?The principal point in this case is: whether the accused (who is clearly guilty of having committed the sin of Gomorrah coitus per os) with a certain little child, the innocent accomplice of his abomination, has thereby committed an offence under Section 377 of the Penal Code.<\/p>\n

Section 377 punishes certain persons who have carnal intercourse against the order of nature with inter alia human beings. Is the act here committed one of carnal intercourse? If so, it is clearly against the order of nature, because the natural object of carnal intercourse is that there should be the possibility of conception of human beings which in the case of coitus per os is impossible. Intercourse may be defined as mutual frequent action by members of independent organisation. Commercial intercourse [is thereafter referred to; emphasis is made on the reciprocity]. By a metaphor the word intercourse like the word commerce is applied to the relations of the sexes. Here also there is the temporary visitation of one organism by a member of other organisation, for certain clearly defined and limited objects. The primary object of the visiting organisation is to obtain euphoria by means of a detent of the nerves consequent on the sexual crisis. But there is no intercourse unless the visiting member is enveloped at least partially by the visited organism, for intercourse connotes reciprocity. Looking at the question in this way it would seem that sin of Gomorrah is no less carnal intercourse than the sin of sodomy. \u2026<\/p>\n

It is to be remembered that the Penal Code does not, except in Section 377, render abnormal sexual vice punishable at all. In England indecent assaults are punishable very severely. It is possible that under the Penal Code, some cases might be met by prosecuting the offender for simple assault, but that is a compoundable offence and in any case the patient could in no way be punished. It is to be supposed that the legislature intended that a Tigellinus should carry on his nefarious profession perhaps vitiating and depraving hundreds of children with perfect immunity? I doubt not, therefore, that coitus per os is punishable under Section 377 of the Penal Code.?<\/p>\n

76. In Suresh Koushal\u2018s case, there has also been a reference to the decision of the Gujarat High Court in Lohana Vasantlal Devchand v. State28 wherein the issue presented before the High Court was whether an offence under Section 377 read with Section 511 IPC had been committed on account of the convict putting his male organ in the mouth of the victim, if the act was done voluntarily by him. A contention was raised that there was no penetration and, therefore, there could not have been any carnal intercourse. The High Court referred to a passage from the book =Pyschology of Sex\u2018 29 authored by Mr. Havelock Ellis which reads thus:- “While the kiss may be regarded as the typical and normal erogenic method of contrectation for the end of attaining tumescene, there are others only less important. Any orifical contact ‘between persons of opposite sex’ is sometimes almost equally as effective as the kiss in stimulating tumescene; all such contacts, indeed, belong to the group of which the kiss is the type, Cunnilinctus (often incorrectly termed cunnilingus) and fellatio cannot be regarded as unnatural for they have their prototypic forms among animals, and they are found among various savage races. As forms of contrecttion and aides to tumescene they are thus natural and are sometimes regarded by both sexes as quintessential forms of sexual pleasure, though they may not be considered aesthetic. They become deviations, however, and this liable to be termed “perversions”, when they replace the desire of coitus”?<\/p>\n

77. After referring to the definition of sodomy, the pronouncement in Khanu (supra), Stroud\u2018s Judicial Dictionary, 3rd Edition and Webster\u2018s New 20th Century Dictionary, unabridged, 2nd Edition, the Gujarat High Court opined thus:-<\/p>\n

?In the instant case, there was an entry of a male penis in the orifice of the mouth of the victim. There was the enveloping of a visiting member by the visited organism. There was thus reciprocity; intercourse connotes reciprocity. It could, therefore, be said without any doubt in my mind that the act in question will amount to an offence, punishable under Section 337 of the Indian Penal Code.?<\/p>\n

78. The decision in State of Kerala v. Kundumkara Govindan and another30 has also been reproduced in Suresh Koushal\u2018s case. The High Court of Kerala held thus:-<\/p>\n

?18. Even if I am to hold that there was no penetration into the vagina and the sexual acts were committed only between the thighs, I do not think that the respondents can escape conviction under Section 377 of the Penal Code. The counsel of the respondents contends (in this argument the Public Prosecutor also supports him) that sexual act between the thighs is not intercourse. The argument is that for intercourse there must be encirclement of the male organ by the organ visited; and that in the case of sexual act between the thighs, there is no possibility of penetration.<\/p>\n

19. The word =intercourse\u2018 means =sexual connection\u2018 (Concise Oxford Dictionary). In Khanu v. Emperor the meaning of the word =intercourse\u2018 has been considered: (AIR p. 286) =Intercourse may be defined as mutual frequent action by members of independent organisation.\u2018 Then commercial intercourse, social intercourse, etc. have been considered; and then appears: =By a metaphor the word intercourse, like the word commerce, is applied to the relations of the sexes. Here also there is the temporary visitation of one organism by a member of the other organisation, for certain clearly defined and limited objects. The primary object of the visiting organisation is to obtain euphoria by means of a detent of the nerves consequent on the sexual crisis. But there is no intercourse unless the visiting member is enveloped at least partially by the visited organism, for intercourse connotes reciprocity.\u2018 Therefore, to decide whether there is intercourse or not, what is to be considered is whether the visiting organ is enveloped at least partially by the visited organism. In intercourse between the thighs, the visiting male organ is enveloped at least partially by the organism visited, the thighs: the thighs are kept together and tight.<\/p>\n

20. Then about penetration. The word =penetrate\u2018 means in the Concise Oxford Dictionary =find access into or through, pass through.\u2018 When the male organ is inserted between the thighs kept together and tight, is there no penetration? The word =insert\u2018 means place, fit, thrust.\u2018 Therefore, if the male organ is =inserted\u2018 or =thrust\u2018 between the thighs, there is =penetration\u2018 to constitute unnatural offence.<\/p>\n

21. Unnatural offence is defined in Section 377 of the Penal Code; whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal commits unnatural offence. The act of committing intercourse between the thighs is carnal intercourse against the order of nature. Therefore committing intercourse by inserting the male organ between the thighs of another is an unnatural offence. In this connection, it may be noted that the act in Section 376 is =sexual intercourse\u2018 and the act in Section 377 is =carnal intercourse against the order of nature\u2018.<\/p>\n

22. The position in English law on this question has been brought to my notice. The old decision of R. v. Samuel Jacobs31 lays down that penetration through the mouth does not amount to the offence of sodomy under English law. The counsel therefore argues that sexual intercourse between the thighs cannot also be an offence under Section 377 of the Penal Code. In Sirkar v. Gula Mythien Pillai Chaithu Maho Mathu32 a Full Bench of the Travancore High Court held that having connection with a person in the mouth was an offence under Section 377 of the Penal Code. In a short judgment, the learned Judges held that it was unnecessary to refer to English Statute Law and English text books which proceeded upon an interpretation of the words sodomy, buggery and bestiality; and that the words used in the Penal Code were very simple and wide enough to include all acts against the order of nature. My view on the question is also that the words of Section 377 are simple and wide enough to include any carnal intercourse against the order of nature within its ambit. Committing intercourse between the thighs of another is carnal intercourse against the order of nature.?<\/p>\n

79. In Calvin Francis v. State of Orissa , the Orissa High Court had reproduced certain passages from Corpus Juris Secundum, Vol. 81, pp. 368-70. We may reproduce the same:- ?A statute providing that any person who shall commit any act or practice of sexual perversity, either with mankind or beast, on conviction shall be punished, is not limited to instances involving carnal copulation, but is restricted to cases involving the sex organ of at least one of the parties. The term =sexual perversity\u2018 does not refer to every physical contact by a male with the body of the female with intent to cause sexual satisfaction to the actor, but the condemnation of the statute is limited to unnatural conduct performed for the purpose of accomplishing abnormal sexual satisfaction for the actor. Under a statute providing that any person participating in the act or copulating the mouth of one person with the sexual organ of another is guilty of the offence a person is guilty of violating the statute when he has placed his mouth on the genital organ of another, and the offence may be committed by two persons of opposite sex.<\/p>\n

80. Referring to the said decision, the two-Judge Bench in Suresh Koushal\u2018s case has opined:-<\/p>\n

?60. However, from these cases no uniform test can be culled out to classify acts as ?carnal intercourse against the order of nature?. In our opinion the acts which fall within the ambit of Section 377 IPC can only be determined with reference to the act itself and the circumstances in which it is executed. All the aforementioned cases refer to non-consensual and markedly coercive situations and the keenness of the Court in bringing justice to the victims who were either women or children cannot be discounted while analysing the manner in which the section has been interpreted. We are apprehensive of whether the court would rule similarly in a case of proved consensual intercourse between adults. \u2026?<\/p>\n

81. From the aforesaid analysis, it is perceptible that the two-Judge Bench has drawn a distinction between the ?class? and the ?act? that has been treated as an offence. On a plain reading of the provision, it is noticeable that the ?act? covers all categories of persons if the offence is committed. Thus, the seminal issue that emerges for consideration, as has been understood by various High Courts and this Court, is whether the act can be treated as a criminal offence if it violates Articles 19(1)(a) and 21 of the Constitution. Therefore, the provision has to be tested on the anvil of the said constitutional provisions. Additionally, it is also to be tested on the touchstone of Article 14 especially under the scanner of its second limb, that is, manifest arbitrariness. For adjudging the aforesaid facets, certain fundamental concepts which are intrinsically and integrally associated with the expression of a person who enjoys certain inalienable natural rights which also have been recognized under the Constitution are required to be addressed. In this context, the individuality of a person and the acceptance of identity invite advertence to some necessary concepts which eventually recognize the constitutional status of an individual that resultantly brushes aside the ?act? and respects the dignity and choice of the individual.<\/p>\n

G. The Constitution \u2013 an organic charter of progressive rights<\/p>\n

82. A democratic Constitution like ours is an organic and breathing document with senses which are very much alive to its surroundings, for it has been created in such a manner that it can adapt to the needs and developments taking place in the society. It was highlighted by this Court in the case of Chief Justice of Andhra Pradesh and others v. L.V.A. Dixitulu and others 34 that the Constitution is a living, integrated organism having a soul and consciousness of its own and its pulse beats, emanating from the spinal cord of its basic framework, can be felt all over its body, even in the extremities of its limbs.<\/p>\n

83. In the case of Saurabh Chaudri and others v. Union of India and others , it was observed:-<\/p>\n

“Our Constitution is organic in nature, being a living organ, it is ongoing and with the passage of time, law must change. Horizons of constitutional law are expanding.”<\/p>\n

84. Thus, we are required to keep in view the dynamic concepts inherent in the Constitution that have the potential to enable and urge the constitutional courts to beam with expansionism that really grows to adapt to the ever-changing circumstances without losing the identity of the Constitution. The idea of identity of the individual and the constitutional legitimacy behind the same is of immense significance. Therefore, in this context, the duty of the constitutional courts gets accentuated. We emphasize on the role of the constitutional courts in realizing the evolving nature of this living instrument. Through its dynamic and purposive interpretative approach, the judiciary must strive to breathe life into the Constitution and not render the document a collection of mere dead letters. The following observations made in the case of Ashok Kumar Gupta and another v. State of U.P. and others36 further throws light on this role of the courts:-<\/p>\n

“Therefore, it is but the duty of the Court to supply vitality, blood and flesh, to balance the competing rights by interpreting the principles, to the language or the words contained in the living and organic Constitution, broadly and liberally.”<\/p>\n

85. The rights that are guaranteed as Fundamental Rights under our Constitution are the dynamic and timeless rights of ‘liberty’ and ‘equality’ and it would be against the principles of our Constitution to give them a static interpretation without recognizing their transformative and evolving nature. The argument does not lie in the fact that the concepts underlying these rights change with the changing times but the changing times illustrate and illuminate the concepts underlying the said rights. In this regard, the observations in Video Electronics Pvt. Ltd. and another v. State of Punjab and another37 are quite instructive:-<\/p>\n

“Constitution is a living organism and the latent meaning of the expressions used can be given effect to only if a particular situation arises. It is not that with changing times the meaning changes but changing times illustrate and illuminate the meaning of the expressions used. The connotation of the expressions used takes its shape and colour in evolving dynamic situations.”<\/p>\n

86. Our Constitution fosters and strengthens the spirit of equality and envisions a society where every person enjoys equal rights which enable him\/her to grow and realize his\/her potential as an individual. This guarantee of recognition of individuality runs through the entire length and breadth of this dynamic instrument. The Constitution has been conceived of and designed in a manner which acknowledges the fact that ‘change is inevitable’. It is the duty of the courts to realize the constitutional vision of equal rights in consonance with the current demands and situations and not to read and interpret the same as per the standards of equality that existed decades ago. The judiciary cannot remain oblivious to the fact that the society is constantly evolving and many a variation may emerge with the changing times. There is a constant need to transform the constitutional idealism into reality by fostering respect for human rights, promoting inclusion of pluralism, bringing harmony, that is, unity amongst diversity, abandoning the idea of alienation or some unacceptable social notions built on medieval egos and establishing the cult of egalitarian liberalism founded on reasonable principles that can withstand scrutiny.<\/p>\n

87. In Ashok Kumar Gupta (supra), the Court had observed that common sense has always served in the court’s ceaseless striving as a voice of reason to maintain the blend of change and continuity of order which are sine qua non for stability in the process of change in a parliamentary democracy. The Court ruled that it is not bound to accept an interpretation which retards the progress or impedes social integration. The Court further observed that it is required to adopt such interpretation which would give the ideals set out in the Preamble to the Constitution aided by Part III and Part IV a meaningful and living reality for all sections of the society. 88. It is through this armoury of expansive dynamism that the courts have been able to give an all-inclusive interpretation to the fundamental rights enshrined in Part III of our Constitution. This is borne testimony by the decisions of the constitutional courts which have evolved views for extending the protection of fundamental rights to those who have been deprived of the enjoyment of the same. If not for such an approach adopted by the courts, our Constitution and its progressive principles would have been rendered ineffective and the dynamic charter would be reduced to a mere ornate document without any purpose or object.<\/p>\n

89. The Court, as the final arbiter of the Constitution, has to keep in view the necessities of the needy and the weaker sections. The role of the Court assumes further importance when the class or community whose rights are in question are those who have been the object of humiliation, discrimination, separation and violence by not only the State and the society at large but also at the hands of their very own family members. The development of law cannot be a mute spectator to the struggle for the realisation and attainment of the rights of such members of the society.<\/p>\n

90. The authority in NALSA is one such recent illustration where the rights of transgenders as a third sex was recognized which had been long due in a democracy like ours. This Court ruled: – “It is now very well recognized that the Constitution is a living character; its interpretation must be dynamic. It must be understood in a way that intricate and advances modern realty. The judiciary is the guardian of the Constitution and by ensuring to grant legitimate right that is due to TGs, we are simply protecting the Constitution and the democracy inasmuch as judicial protection and democracy in general and of human rights in particular is a characteristic of our vibrant democracy.\u00ffAs we have pointed out above, our Constitution inheres liberal and substantive democracy with rule of law as an important and fundamental pillar. It has its own internal morality based on dignity and equality of all human beings. Rule of law demands protection of individual human rights. Such rights are to be guaranteed to each and every human being. These TGs, even though insignificant in numbers, are still human beings and therefore they have every right to enjoy their human rights.”<\/p>\n

The =living document\u2018 concept finds place in several international authorities as well. The courts in other jurisdictions have endorsed the view that the Constitution is forever evolving in nature and that a progressive approach is mandated by the principles inherent in the Constitution itself.<\/p>\n

91. The Supreme Court of Canada, while giving an expansive interpretation to marriage by including same-sex unions within its encompass, in Re: Same Sex Marriage , has observed:-<\/p>\n

“The “frozen concepts” reasoning runs contrary to one of the most fundamental principles of Canadian constitutional interpretation: that our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life.”<\/p>\n

92. As early as the 1920s, the Supreme Court of the United States in the case of State of Missouri v. Holland , while making a comparison between the =instrument in dispute’ and the ‘Constitution’, had made the following observations with regard to the nature of the Constitution:-<\/p>\n

“When we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation.”<\/p>\n

93. In one of his celebrated works, Judge Richard Posner made
\ncertain observations which would be relevant to be reproduced here:-
\n“A constitution that did not invalidate so offensive,
\noppressive, probably undemocratic, and sectarian law
\n[as the Connecticut law banning contraceptives] would
\nstand revealed as containing major gaps. Maybe that
\nis the nature of our, or perhaps any, written
\nConstitution; but yet, perhaps the courts are authorized
\nto plug at least the most glaring gaps. Does anyone
\nreally believe, in his heart of hearts, that the
\nConstitution should be interpreted so literally as to
\nauthorize every conceivable law that would not violate
\na specific constitutional clause? This would mean that
\na state could require everyone to marry, or to have
\nintercourse at least once a month, or it could take
\naway every couple’s second child and place it in a
\nfoster home…. We find it reassuring to think that the
\ncourts stand between us and legislative tyranny even if
\na particular form of tyranny was not foreseen and
\nexpressly forbidden by framers of the Constitution.”40
\n94. Thus, it is demonstrable that expansive growth of constitutional
\nidealism is embedded in the theory of progress, abandonment of
\nstatus quoist attitude, expansion of the concept of inclusiveness and
\nconstant remembrance of the principle of fitting into the norm of
\nchange with a constitutional philosophy.<\/p>\n

H. Transformative constitutionalism and the rights of LGBT
\ncommunity<\/p>\n

95. For understanding the need of having a constitutional
\ndemocracy and for solving the million dollar question as to why we
\nadopted the Constitution, we perhaps need to understand the
\nconcept of transformative constitutionalism with some degree of
\ndefiniteness. In this quest of ours, the ideals enshrined in the
\nPreamble to our Constitution would be a guiding laser beam. The
\nultimate goal of our magnificent Constitution is to make right the
\nupheaval which existed in the Indian society before the adopting of
\nthe Constitution. The Court in State of Kerala and another v. N.M.
\nThomas and others41 observed that the Indian Constitution is a
\ngreat social document, almost revolutionary in its aim of transforming
\na medieval, hierarchical society into a modern, egalitarian democracy
\nand its provisions can be comprehended only by a spacious, socialscience
\napproach, not by pedantic, traditional legalism. The whole
\nidea of having a Constitution is to guide the nation towards a
\nresplendent future. Therefore, the purpose of having a Constitution is
\nto transform the society for the better and this objective is the
\nfundamental pillar of transformative constitutionalism.<\/p>\n

96. The concept of transformative constitutionalism has at its kernel
\na pledge, promise and thirst to transform the Indian society so as to
\nembrace therein, in letter and spirit, the ideals of justice, liberty,
\nequality and fraternity as set out in the Preamble to our Constitution.
\nThe expression =transformative constitutionalism\u2018 can be best
\nunderstood by embracing a pragmatic lens which will help in
\nrecognizing the realities of the current day. Transformation as a
\nsingular term is diametrically opposed to something which is static
\nand stagnant, rather it signifies change, alteration and the ability to
\nmetamorphose. Thus, the concept of transformative constitutionalism,
\nwhich is an actuality with regard to all Constitutions and particularly
\nso with regard to the Indian Constitution, is, as a matter of fact, the
\nability of the Constitution to adapt and transform with the changing
\nneeds of the times.<\/p>\n

97. It is this ability of a Constitution to transform which gives it the
\ncharacter of a living and organic document. A Constitution
\ncontinuously shapes the lives of citizens in particular and societies in
\ngeneral. Its exposition and energetic appreciation by constitutional
\ncourts constitute the lifeblood of progressive societies. The
\nConstitution would become a stale and dead testament without
\ndynamic, vibrant and pragmatic interpretation. Constitutional
\nprovisions have to be construed and developed in such a manner that
\ntheir real intent and existence percolates to all segments of the
\nsociety. That is the raison d’etre for the Constitution.
\n98. The Supreme Court as well as other constitutional courts have
\ntime and again realized that in a society undergoing fast social and
\neconomic change, static judicial interpretation of the Constitution
\nwould stultify the spirit of the Constitution. Accordingly, the
\nconstitutional courts, while viewing the Constitution as a
\ntransformative document, have ardently fulfilled their obligation to act
\nas the sentinel on qui vive for guarding the rights of all individuals
\nirrespective of their sex, choice and sexual orientation.
\n99. The purpose of transformative constitutionalism has been aptly
\ndescribed in the case of Road Accident Fund and another v.
\nMdeyide42 wherein the Constitutional Court of South Africa, speaking
\nin the context of the transformative role of the Constitution of South
\nAfrica, had observed:-
\n?Our Constitution has often been described as
\n?transformative?. One of the most important purposes
\nof this transformation is to ensure that, by the
\nrealisation of fundamental socio-economic rights,
\npeople disadvantaged by their deprived social and
\neconomic circumstances become more capable of
\nenjoying a life of dignity, freedom and equality that lies
\nat the heart of our constitutional democracy.?
\n100. In Bato Star Fishing (Pty) Ltd v. Minister of Environmental
\nAffairs and Tourism and others43
\n, the Constitutional Court of South
\nAfrica opined:-
\n?The achievement of equality is one of the fundamental
\ngoals that we have fashioned for ourselves in the
\nConstitution. Our constitutional order is committed to
\nthe transformation of our society from a grossly
\nunequal society to one “in which there is equality
\nbetween men and women and people of all races”. In
\nthis fundamental way, our Constitution differs from
\nother constitutions which assume that all are equal and
\nin so doing simply entrench existing inequalities. Our
\nConstitution recognises that decades of systematic
\nracial discrimination entrenched by the apartheid legal
\norder cannot be eliminated without positive action
\nbeing taken to achieve that result. We are required to
\ndo more than that. The effects of discrimination may
\ncontinue indefinitely unless there is a commitment to
\nend it.”<\/p>\n

101. Davies44 understands transformation as follows:-
\n“Transformation which is based on the continuing
\nevaluation and modification of a complex material and
\nideological environment cannot be reduced to a
\nscientific theory of change, like those of evolution or
\nthe halflife of radioactive substances … practical
\nchange occurs within a climate of serious reflection,
\nand diversity of opinion is in my view absolutely
\nessential as a stimulus to theory.”<\/p>\n

102. A J Van der Walt 45 has metaphorically, by comparing
\n‘constitutional transformation’ to ‘dancing’, described the art of
\nconstitutional transformation to be continually progressive where one
\ndoes not stop from daring to imagine alternatives and that the society
\ncould be different and a better place where the rights of every
\nindividual are given due recognition:-
\n“However, even when we trade the static imagery of
\nposition, standing, for the more complex imagery of
\ndancing, we still have to resist the temptation to see
\ntransformation as linear movement or progress – from
\nauthoritarianism to justification, from one dancing code
\nto another, or from volkspele jurisprudence to toyitoyi
\njurisprudence… I suggest that we should not only
\nswitch to a more complex metaphorical code such as
\ndancing when discussing transformation, but that we
\nshould also deconstruct the codes we dance to; pause
\nto reflect upon the language in terms of which we think
\nand talk and reason about constitutionalism, about
\nrights, and about transformation, and recognize the
\nliberating and the captivating potential of the codes
\nshaping and shaped by that language.
\n103. Again, the Supreme Court of South Africa in President of the
\nRepublic of South Africa v. Hugo46 observed that the prohibition on
\nunfair discrimination in the interim Constitution seeks not only to<\/p>\n

45 Van der Walt, Dancing with codes – Protecting, developing and deconstructing property rights in
\na constitutional state, 118 (2) J. S. APR. L. 258 (2001)
\n46(1997) 6 B.C.L.R. 708 (CC)
\n70
\navoid discrimination against people who are members of
\ndisadvantaged groups but also that at the heart of the prohibition of
\nunfair discrimination lies a recognition that the purpose of our new
\nconstitutional and democratic order is the establishment of a society
\nin which all human beings will be accorded equal dignity and respect,
\nregardless of their membership of particular groups.
\n104. Equality does not only imply recognition of individual dignity but
\nalso includes within its sphere ensuring of equal opportunity to
\nadvance and develop their human potential and social, economic and
\nlegal interests of every individual and the process of transformative
\nconstitutionalism is dedicated to this purpose. It has been observed
\nby Albertyn & Goldblatt47:-
\n“The challenge of achieving equality within this
\ntransformation project involves the eradication of
\nsystemic forms of discrimination and material
\ndisadvantage based on race, gender, class and other
\nforms of inequality. It also entails the development of
\nopportunities which allow people to realise their full
\nhuman potential within positive social relationships.”
\n105. In Investigating Directorate: Serious Economic Offences
\nand others v. Hyundai Motor Distributors (Pty) Ltd and others: In<\/p>\n

47Albertyn & Goldblatt, Facing the challenge of transformation: Difficulties in the development of
\nan indigenous jurisprudence of equality, 14 S. AFR. J. HUM. RTS. 248 (1998)
\n71
\nRe Hyundai Motor Distributors (Pty) Ltd and others v. Smit NO
\nand others48
\n, the Constitutional Court of South Africa observed:-
\n“The Constitution is located in a history which involves
\na transition from a society based on division, injustice
\nand exclusion from the democratic process to one
\nwhich respects the dignity of all citizens and includes
\nall in the process of governance. As such, the process
\nof interpreting the Constitution must recognise the
\ncontext in which we find ourselves and the
\nConstitution’s goal of a society based on democratic
\nvalues, social justice and fundamental human rights.
\nThis spirit of transition and transformation
\ncharacterises the constitutional enterprise as a whole.
\n… The Constitution requires that judicial officers
\nread legislation, where possible, in ways which give
\neffect to its fundamental values. Consistently with
\nthis, when the constitutionality of legislation is in
\nissue, they are under a duty to examine the objects
\nand purport of an Act and to read the provisions of
\nthe legislation, so far as is possible, in conformity
\nwith the Constitution.”
\n106. The society has changed much now, not just from the year
\n1860 when the Indian Penal Code was brought into force but there
\nhas also been continuous progressive change. In many spheres, the
\nsexual minorities have been accepted. They have been given space
\nafter the NALSA judgment but the offence punishable under Section
\n377 IPC, as submitted, creates a chilling effect. The freedom that is
\nrequired to be attached to sexuality still remains in the pavilion with<\/p>\n

482001 (1) SA 545 (CC)
\n72
\nno nerves to move. The immobility due to fear corrodes the desire to
\nexpress one\u2018s own sexual orientation as a consequence of which the
\nbody with flesh and bones feels itself caged and a sense of fear
\ngradually converts itself into a skeleton sans spirit.
\n107. The question of freedom of choosing a partner is reflective from
\na catena of recent judgments of this Court such as Shafin Jahan
\n(supra) wherein the Court held that a person who has come of age
\nand has the capability to think on his\/her own has a right to choose
\nhis\/her life partner. It is apposite to reproduce some of the
\nobservations made by the Court which are to the following effect:-
\n?It is obligatory to state here that expression of choice
\nin accord with law is acceptance of individual identity.
\nCurtailment of that expression and the ultimate action
\nemanating therefrom on the conceptual structuralism
\nof obeisance to the societal will destroy the
\nindividualistic entity of a person. The social values and
\nmorals have their space but they are not above the
\nconstitutionally guaranteed freedom. The said freedom
\nis both a constitutional and a human right. Deprivation
\nof that freedom which is ingrained in choice on the plea
\nof faith is impermissible.?
\n108. Recently, in Shakti Vahini (supra), the Court has ruled that the
\nright to choose a life partner is a facet of individual liberty and the
\nCourt, for the protection of this right, issued preventive, remedial and
\n73
\npunitive measures to curb the menace of honour killings. The Court
\nobserved:-
\n?When the ability to choose is crushed in the name of
\nclass honour and the person\u2018s physical frame is
\ntreated with absolute indignity, a chilling effect
\ndominates over the brains and bones of the society at
\nlarge.?
\n109. An argument is sometimes advanced that what is permissible
\nbetween two adults engaged in acceptable sexual activity is different
\nin the case of two individuals of the same sex, be it homosexuals or
\nlesbians, and the ground of difference is supported by social
\nstandardization. Such an argument ignores the individual orientation,
\nwhich is naturally natural, and disrobes the individual of his\/her
\nidentity and the inherent dignity and choice attached to his\/her being.
\n110. The principle of transformative constitutionalism also places
\nupon the judicial arm of the State a duty to ensure and uphold the
\nsupremacy of the Constitution, while at the same time ensuring that a
\nsense of transformation is ushered constantly and endlessly in the
\nsociety by interpreting and enforcing the Constitution as well as other
\nprovisions of law in consonance with the avowed object. The idea is
\nto steer the country and its institutions in a democratic egalitarian
\ndirection where there is increased protection of fundamental rights
\n74
\nand other freedoms. It is in this way that transformative
\nconstitutionalism attains the status of an ideal model imbibing the
\nphilosophy and morals of constitutionalism and fostering greater
\nrespect for human rights. It ought to be remembered that the
\nConstitution is not a mere parchment; it derives its strength from the
\nideals and values enshrined in it. However, it is only when we adhere
\nto constitutionalism as the supreme creed and faith and develop a
\nconstitutional culture to protect the fundamental rights of an individual
\nthat we can preserve and strengthen the values of our
\ncompassionate Constitution.
\nI. Constitutional morality and Section 377 IPC
\n111. The concept of constitutional morality is not limited to the mere
\nobservance of the core principles of constitutionalism as the
\nmagnitude and sweep of constitutional morality is not confined to the
\nprovisions and literal text which a Constitution contains, rather it
\nembraces within itself virtues of a wide magnitude such as that of
\nushering a pluralistic and inclusive society, while at the same time
\nadhering to the other principles of constitutionalism. It is further the
\nresult of embodying constitutional morality that the values of
\nconstitutionalism trickle down and percolate through the apparatus of
\n75
\nthe State for the betterment of each and every individual citizen of the
\nState.
\n112. In one of the Constituent Assembly Debates, Dr. Ambedkar,
\nexplaining the concept of constitutional morality by quoting the Greek
\nhistorian, George Grote, said:-
\n“By constitutional morality, Grote meant… a paramount
\nreverence for the forms of the constitution, enforcing
\nobedience to authority and acting under and within
\nthese forms, yet combined with the habit of open
\nspeech, of action subject only to definite legal control,
\nand unrestrained censure of those very authorities as
\nto all their public acts combined, too with a perfect
\nconfidence in the bosom of every citizen amidst the
\nbitterness of party contest that the forms of constitution
\nwall not be less sacred in the eyes of his opponents
\nthan his own.”49
\n113. Our Constitution was visualized with the aim of securing to the
\ncitizens of our country inalienable rights which were essential for
\nfostering a spirit of growth and development and at the same time
\nensuring that the three organs of the State working under the aegis of
\nthe Constitution and deriving their authority from the supreme
\ndocument, that is, the Constitution, practise constitutional morality.
\nThe Executive, the Legislature and the Judiciary all have to stay alive
\nto the concept of constitutional morality.<\/p>\n

49 Constituent Assembly Debates, Vol. 7 (4th November 1948)
\n76
\n114. In the same speech50, Dr. Ambedkar had quoted George Grote
\nwho had observed:-
\n“The diffusion of ‘constitutional morality’, not merely
\namong the majority of any community, but throughout
\nthe whole is the indispensable condition of a
\ngovernment at once free and peaceable; since even
\nany powerful and obstinate minority may render the
\nworking of a free institution impracticable, without
\nbeing strong enough to conquer ascendance for
\nthemselves.”51
\nThis statement of Dr. Ambedkar underscores that constitutional
\nmorality is not a natural forte for our country for the simple reason
\nthat our country had attained freedom after a long period of colonial
\nrule and, therefore, constitutional morality at the time when the
\nConstituent Assembly was set up was an alien notion. However, the
\nstrengthening of constitutional morality in contemporary India remains
\na duty of the organs of the State including the Judiciary.
\n115. The society as a whole or even a minuscule part of the society
\nmay aspire and prefer different things for themselves. They are
\nperfectly competent to have such a freedom to be different, like
\ndifferent things, so on and so forth, provided that their different tastes
\nand liking remain within their legal framework and neither violates any
\nstatute nor results in the abridgement of fundamental rights of any<\/p>\n

50 Ibid
\n51 Grote, A History of Greece. Routledge, London, 2000, p. 93.
\n77
\nother citizen. The Preambular goals of our Constitution which contain
\nthe noble objectives of Justice, Liberty, Equality and Fraternity can
\nonly be achieved through the commitment and loyalty of the organs of
\nthe State to the principle of constitutional morality.
\n116. It is the concept of constitutional morality which strives and
\nurges the organs of the State to maintain such a heterogeneous fibre
\nin the society, not just in the limited sense, but also in multifarious
\nways. It is the responsibility of all the three organs of the State to curb
\nany propensity or proclivity of popular sentiment or majoritarianism.
\nAny attempt to push and shove a homogeneous, uniform, consistent
\nand a standardised philosophy throughout the society would violate
\nthe principle of constitutional morality. Devotion and fidelity to
\nconstitutional morality must not be equated with the popular
\nsentiment prevalent at a particular point of time.
\n117. Any asymmetrical attitude in the society, so long as it is within
\nthe legal and constitutional framework, must at least be provided an
\nenvironment in which it could be sustained, if not fostered. It is only
\nwhen such an approach is adopted that the freedom of expression
\nincluding that of choice would be allowed to prosper and flourish and
\n78
\nif that is achieved, freedom and liberty, which is the quintessence of
\nconstitutional morality, will be allowed to survive.
\n118. In Government of NCT of Delhi v. Union of India and
\nothers52
\n, one of us (Dipak Misra, CJI) observed:-
\n“Constitutional morality, appositely understood, means
\nthe morality that has inherent elements in the
\nconstitutional norms and the conscience of the
\nConstitution. Any act to garner justification must
\npossess the potentiality to be in harmony with the
\nconstitutional impulse. We may give an example.
\nWhen one is expressing an idea of generosity, he may
\nnot be meeting the standard of justness. There may be
\nan element of condescension. But when one shows
\njustness in action, there is no feeling of any grant or
\ngenerosity. That will come within the normative value.
\nThat is the test of constitutional justness which falls
\nwithin the sweep of constitutional morality. It advocates
\nthe principle of constitutional justness without
\nsubjective exposition of generosity.”
\n119. The duty of the constitutional courts is to adjudge the validity of
\nlaw on well-established principles, namely, legislative competence or
\nviolations of fundamental rights or of any other constitutional
\nprovisions. At the same time, it is expected from the courts as the
\nfinal arbiter of the Constitution to uphold the cherished principles of
\nthe Constitution and not to be remotely guided by majoritarian view or<\/p>\n

522018 (8) SCALE 72
\n79
\npopular perception. The Court has to be guided by the conception of
\nconstitutional morality and not by the societal morality.
\n120. We may hasten to add here that in the context of the issue at
\nhand, when a penal provision is challenged as being violative of the
\nfundamental rights of a section of the society, notwithstanding the fact
\nwhether the said section of the society is a minority or a majority, the
\nmagna cum laude and creditable principle of constitutional morality, in
\na constitutional democracy like ours where the rule of law prevails,
\nmust not be allowed to be trampled by obscure notions of social
\nmorality which have no legal tenability. The concept of constitutional
\nmorality would serve as an aid for the Court to arrive at a just
\ndecision which would be in consonance with the constitutional rights
\nof the citizens, howsoever small that fragment of the populace may
\nbe. The idea of number, in this context, is meaningless; like zero on
\nthe left side of any number.
\n121. In this regard, we have to telescopically analyse social morality
\nvis-\u00e0-vis constitutional morality. It needs no special emphasis to state
\nthat whenever the constitutional courts come across a situation of
\ntransgression or dereliction in the sphere of fundamental rights, which
\nare also the basic human rights of a section, howsoever small part of
\n80
\nthe society, then it is for the constitutional courts to ensure, with the
\naid of judicial engagement and creativity, that constitutional morality
\nprevails over social morality.
\n122. In the garb of social morality, the members of the LGBT
\ncommunity must not be outlawed or given a step-motherly treatment
\nof malefactor by the society. If this happens or if such a treatment to
\nthe LGBT community is allowed to persist, then the constitutional
\ncourts, which are under the obligation to protect the fundamental
\nrights, would be failing in the discharge of their duty. A failure to do so
\nwould reduce the citizenry rights to a cipher.
\n123. We must not forget that the founding fathers adopted an
\ninclusive Constitution with provisions that not only allowed the State,
\nbut also, at times, directed the State, to undertake affirmative action
\nto eradicate the systematic discrimination against the backward
\nsections of the society and the expulsion and censure of the
\nvulnerable communities by the so-called upper caste\/sections of the
\nsociety that existed on a massive scale prior to coming into existence
\nof the Constituent Assembly. These were nothing but facets of the
\nmajoritarian social morality which were sought to be rectified by
\nbringing into force the Constitution of India. Thus, the adoption of the
\n81
\nConstitution, was, in a way, an instrument or agency for achieving
\nconstitutional morality and means to discourage the prevalent social
\nmorality at that time. A country or a society which embraces
\nconstitutional morality has at its core the well-founded idea of
\ninclusiveness.
\n124. While testing the constitutional validity of impugned provision
\nof law, if a constitutional court is of the view that the impugned
\nprovision falls foul to the precept of constitutional morality, then the
\nsaid provision has to be declared as unconstitutional for the pure and
\nsimple reason that the constitutional courts exist to uphold the
\nConstitution.
\nJ. Perspective of human dignity
\n125. While discussing about the role of human dignity in gay rights
\nadjudication and legislation, Michele Finck53 observes:-
\n?As a concept devoid of a precise legal meaning, yet
\nwidely appealing at an intuitive level, dignity- can be
\neasily manipulated and transposed into a number of
\nlegal contexts. With regard to the rights of lesbian and
\ngay individuals, dignity captures what Nussbaum
\ndescribed as the transition from “disgust” to
\n“humanity.” Once looked at with disgust and
\nconsidered unworthy of some rights, there is<\/p>\n

53The role of human dignity in gay rights adjudication and legislation: A comparative perspective,
\nMichele Finck, International Journal of Constitutional Law, Volume 14, Jan 2016, page no.26 to 53
\n82
\nincreasing consensus that homosexuals should no
\nlonger be deprived of the benefits of citizenship that
\nare available to heterosexuals, such as the ability to
\ncontract marriage, on the sole ground of their sexual
\norientation. Homosexuals are increasingly considered
\nas “full humans” disposing of equal rights, and dignity
\nfunctions as the vocabulary that translates such sociocultural
\nchange into legal change?
\n126. The Universal Declaration of Human Rights, 1948 became the
\nMagna Carta of people all over the world. The first Article of the
\nUDHR was uncompromising in its generality of application: All
\nhuman beings are born free and equal in dignity and rights. Justice
\nKirby succinctly observed:-
\n?This language embraced every individual in our world.
\nIt did not apply only to citizens. It did not apply only to
\n‘white’ people. It did not apply only to good people.
\nPrisoners, murderers and even traitors were to be
\nentitled to the freedoms that were declared. There
\nwere no exceptions to the principles of equality.?
\n54
\n127. The fundamental idea of dignity is regarded as an inseparable
\nfacet of human personality. Dignity has been duly recognized as an
\nimportant aspect of the right to life under Article 21 of the Constitution.
\nIn the international sphere, the right to live with dignity had been
\nidentified as a human right way back in 1948 with the introduction of
\nthe Universal Declaration of Human Rights. The constitutional courts<\/p>\n

54Human Rights Gay Rights by Michael Kirby, Published in \u2018Humane Rights\u2019 in 2016 by Future Leaders
\n83
\nof our country have solemnly dealt with the task of assuring and
\npreserving the right to dignity of each and every individual whenever
\nthe occasion arises, for without the right to live with dignity, all other
\nfundamental rights may not realise their complete meaning.
\n128. To understand a person\u2018s dignity, one has to appreciate how
\nthe dignity of another is to be perceived. Alexis de Tocqueville tells
\nus55:-
\n?Whenever I find myself in the presence of another
\nhuman being, of whatever station, my dominant feeling
\nis not so much to serve him or please him as not to
\noffend his dignity.?
\n129. Every individual has many possessions which assume the
\nposition of his\/her definitive characteristics. There may not be any
\nobsession with them but he\/she may abhor to be denuded of them,
\nfor they are sacred to him\/her and so inseparably associated that
\nhe\/she may not conceive of any dissolution. He\/she would like others
\nto respect the said attributes with a singular acceptable condition that
\nthere is mutual respect. Mutual respect abandons outside
\ninterference and is averse to any kind of interdiction. It is based on
\nthe precept that the individuality of an individual is recognized,
\naccepted and respected. Such respect for the conception of dignity<\/p>\n

5556, New York State Bar Journal (No 3. April, 1984), p.50
\n84
\nhas become a fundamental right under Article 21 of the Constitution
\nand that ushers in the right of liberty of expression. Dignity and liberty
\nas a twin concept in a society that cares for both, apart from painting
\na grand picture of humanity, also smoothens the atmosphere by
\npromoting peaceful co-existence and thereby makes the
\nadministration of justice easy. In such a society, everyone becomes a
\npart of the social engineering process where rights as inviolable and
\nsacrosanct principles are adhered to; individual choice is not an
\nexception and each one gets his\/her space. Though no tower is built,
\nyet the tower of individual rights with peaceful co-existence is visible.
\n130. In Common Cause (A Regd. Society) (supra), one of us has
\nobserved that human dignity is beyond definition and it may, at times,
\ndefy description. To some, it may seem to be in the world of
\nabstraction and some may even perversely treat it as an attribute of
\negotism or accentuated eccentricity. This feeling may come from the
\nroots of absolute cynicism, but what really matters is that life without
\ndignity is like a sound that is not heard. Dignity speaks, it has its
\nsound, it is natural and human. It is a combination of thought and
\nfeeling.
\n85
\n131. In Maneka Gandhi v. Union of India and another56
\n, Krishna
\nIyer, J. observed that life is a terrestrial opportunity for unfolding
\npersonality and when any aspect of Article 21 is viewed in a truncated
\nmanner, several other freedoms fade out automatically. It has to be
\nborne in mind that dignity of all is a sacrosanct human right and sans
\ndignity, human life loses its substantial meaning.
\n132. Dignity is that component of one\u2018s being without which
\nsustenance of his\/her being to the fullest or completest is
\ninconceivable. In the theatre of life, without possession of the attribute
\nof identity with dignity, the entity may be allowed entry to the centre
\nstage but would be characterized as a spineless entity or, for that
\nmatter, projected as a ruling king without the sceptre. The purpose of
\nsaying so is that the identity of every individual attains the quality of
\nan ?individual being? only if he\/she has the dignity. Dignity while
\nexpressive of choice is averse to creation of any dent. When
\nbiological expression, be it an orientation or optional expression of
\nchoice, is faced with impediment, albeit through any imposition of law,
\nthe individual\u2018s natural and constitutional right is dented. Such a
\nsituation urges the conscience of the final constitutional arbiter to<\/p>\n

56 (1978) 1 SCC 248
\n86
\ndemolish the obstruction and remove the impediment so as to allow
\nthe full blossoming of the natural and constitutional rights of
\nindividuals. This is the essence of dignity and we say, without any
\ninhibition, that it is our constitutional duty to allow the individual to
\nbehave and conduct himself\/herself as he\/she desires and allow
\nhim\/her to express himself\/herself, of course, with the consent of the
\nother. That is the right to choose without fear. It has to be ingrained
\nas a necessary pre-requisite that consent is the real fulcrum of any
\nsexual relationship.
\n133. In this context, we may travel a little abroad. In Law v. Canada
\n(Minister of Employment and Immigration)57 capturing the essence
\nof dignity, the Supreme Court of Canada has made the following
\nobservations:-
\n“Human dignity means that an individual or group feels
\nself-respect and self-worth. It is concerned with
\nphysical and psychological integrity and empowerment.
\nHuman dignity is harmed by unfair treatment premised
\nupon personal traits or circumstances which do not
\nrelate to individual needs, capacities, or merits. It is
\nenhanced by laws which are sensitive to the needs,
\ncapacities, and merits of different individuals, taking
\ninto account the context underlying their differences.
\nHuman dignity is harmed when individuals and groups
\nare marginalized, ignored, or devalued, and is<\/p>\n

571999 1 S.C.R. 497
\n87
\nenhanced when laws recognise the full place of all
\nindividuals and groups within Canadian society.”
\n134. It is not only the duty of the State and the Judiciary to protect
\nthis basic right to dignity, but the collective at large also owes a
\nresponsibility to respect one another’s dignity, for showing respect for
\nthe dignity of another is a constitutional duty. It is an expression of the
\ncomponent of constitutional fraternity.
\n135. The concept of dignity gains importance in the present scenario,
\nfor a challenge has been raised to a provision of law which
\nencroaches upon this essential right of a severely deprived section of
\nour society. An individual’s choice to engage in certain acts within
\ntheir private sphere has been restricted by criminalising the same on
\naccount of the age old social perception. To harness such an
\nessential decision, which defines the individualism of a person, by
\ntainting it with criminality would violate the individual’s right to dignity
\nby reducing it to mere letters without any spirit.
\n136. The European Court of Justice in P v. S
\n58 in the context of
\nrights of individuals who intend to or have undergone sex
\nreassignment has observed that where a person is dismissed on the
\nground that he or she intends to undergo or has undergone gender<\/p>\n

58 Judgment of 30 April 1996. P v S and Cornwall County Council Case C-13\/94. paras. 21-22.
\n88
\nreassignment, he or she is treated unfavorably by comparison with
\npersons of the sex to which he or she was deemed to belong before
\nundergoing gender reassignment. To tolerate such discrimination
\nwould tantamount, as regards such a person, to a failure to respect
\nthe dignity and freedom to which he or she is entitled and which the
\nCourt has a duty to safeguard.
\n137. In Planned Parenthood of Southeastern Pa. v. Casey59
\n, the
\nUnited States Supreme Court had opined that such matters which
\ninvolve the most intimate and personal choices a person may make in
\na lifetime, choices central to personal dignity and autonomy, are
\ncentral to the liberty protected by the Fourteenth Amendment.
\n138. From the aforesaid pronouncements, some in different spheres
\nbut some also in the sphere of sexual orientation, the constitutional
\ncourts have laid emphasis on individual inclination, expression of both
\nemotional and physical behaviour and freedom of choice, of course,
\nsubject to the consent of the other. A biological engagement, in
\ncontradistinction to going to a restaurant or going to a theatre to see a
\nfilm or a play, is founded on company wherein both the parties have
\nconsented for the act. The inclination is an expression of choice that<\/p>\n

59505 U.S. 833 (1992)
\n89
\ndefines the personality to cumulatively build up the elevated paradigm
\nof dignity. Be it clarified that expression of choice, apart from being a
\nfacet of dignity, is also an essential component of liberty. Liberty as a
\nconcept has to be given its due place in the realm of dignity, for both
\nare connected with the life and living of a persona.
\nK. Sexual orientation
\n139. After stating about the value of dignity, we would have
\nproceeded to deal with the cherished idea of privacy which has
\nrecently received concrete clarity in Puttaswamy\u2018s case. Prior to that,
\nwe are advised to devote some space to sexual orientation and the
\ninstructive definition of LGBT by Michael Kirby, former Judge of the
\nHigh Court of Australia:-
\n?Homosexual: People of either gender who are attracted, sexually,
\nemotionally and in relationships, to persons of the same sex.
\nBisexual: Women who are attracted to both sexes; men who are
\nattracted to both sexes.
\nLesbian: Women who are attracted to women.
\nGay: Men who are attracted to men, although this term is sometimes
\nalso used generically for all same-sex attracted persons.
\n90
\nGender identity: A phenomenon distinct from sexual orientation
\nwhich refers to whether a person identifies as male or female. This
\nidentity’ may exist whether there is “conformity or non-conformity”
\nbetween their physical or biological or birth sex and their
\npsychological sex and the way they express it through physical
\ncharacteristics, appearance and conduct. It applies whether, in the
\nIndian sub-continent, they identify as hijra or kothi or by another
\nname.
\nIntersex: Persons who are born with a chromosomal pattern or
\nphysical characteristics that do not clearly fall on one side or the
\nother of a binary malefemale line.
\nLGBT or LGBTIQ: Lesbian, Gay, Bisexual, Transsexual, Intersex and
\nQueer minorities. The word ‘Queer’ is sometimes used generically,
\nusually by younger people, to include the members of all of the
\nsexual minorities. I usually avoid this expression because of its
\npejorative overtones within an audience unfamiliar with the
\nexpression. However, it is spreading and, amongst the young, is
\noften seen as an instance of taking possession of a pejorative word
\nin order to remove its sting.
\n91
\nMSM: Men who have sex with men. This expression is common in
\nUnited Nations circles. It refers solely to physical, sexual activity by
\nmen with men. The expression is used on the basis that in some
\ncountries – including India – some men may engage in sexual acts
\nwith their own sex although not identifying as homosexual or even
\naccepting a romantic or relationship emotion.?
\n60
\n140. Presently, we shall focus on the aspect of sexual orientation.
\nEvery human being has certain basic biological characteristics and
\nacquires or develops some facets under certain circumstances.
\nThe first can generally be termed as inherent orientation that is
\nnatural to his\/her being. The second can be described as a
\ndemonstration of his\/her choice which gradually becomes an
\ninseparable quality of his\/her being, for the individual also leans on
\na different expression because of the inclination to derive
\nsatisfaction. The third one has the proclivity which he\/she
\nmaintains and does not express any other inclination. The first one
\nis homosexuality, the second, bisexuality and third, heterosexuality.
\nThe third one is regarded as natural and the first one, by the same
\nstandard, is treated to be unnatural. When the second category<\/p>\n

60Sexual Orientation & Gender Identity \u2013 A New Province of Law for India, J. Michael D. Kirby, Tagore
\nLectures, 2013
\n92
\nexercises his\/her choice of homosexuality and involves in such an
\nact, the same is also not accepted. In sum, the =act\u2018 is treated
\neither in accord with nature or against the order of nature in terms
\nof societal perception.
\n141. The Yogyakarta Principles define the expression “sexual
\norientation? thus:-
\n“Sexual Orientation” is understood to refer to each
\nperson’s capacity for profound emotional, affectional
\nand sexual attraction to and intimate and sexual
\nrelations with, individuals of a different gender or the
\nsame gender or more than one gender.”
\n142. In its study, the American Psychological Association has
\nattempted to define ?sexual orientation? in the following manner:-
\n“Sexual orientation refers to an enduring pattern of
\nemotional, romantic and\/or sexual attractions to men.
\nwomen or both sexes. Sexual orientation also refers to
\na person’s sense of identity based on those attractions,
\nrelated behaviors, and membership in a community of
\nothers who share those attractions. Research over
\nseveral decades has demonstrated that sexual
\norientation ranges along a continuum, from exclusive
\nattraction to the other sex to exclusive attraction to the
\nsame sex.?
\n61
\n143. From the aforesaid, it has to be appreciated that homosexuality
\nis something that is based on sense of identity. It is the reflection of a<\/p>\n

61American Psychological Association, “Answers to Your Questions for a Better Understanding of
\nSexual Orientation & Homosexuality,” 2008<\/p>\n

93
\nsense of emotion and expression of eagerness to establish intimacy.
\nIt is just as much ingrained, inherent and innate as heterosexuality.
\nSexual orientation, as a concept, fundamentally implies a pattern of
\nsexual attraction. It is as natural a phenomenon as other natural
\nbiological phenomena. What the science of sexuality has led to is that
\nan individual has the tendency to feel sexually attracted towards the
\nsame sex, for the decision is one that is controlled by neurological
\nand biological factors. That is why it is his\/her natural orientation
\nwhich is innate and constitutes the core of his\/her being and identity.
\nThat apart, on occasions, due to a sense of mutuality of release of
\npassion, two adults may agree to express themselves in a different
\nsexual behaviour which may include both the genders. To this, one
\ncan attribute a bisexual orientation which does not follow the rigidity
\nbut allows room for flexibility.
\n144. The society cannot remain unmindful to the theory which
\nseveral researches, conducted both in the field of biological and
\npsychological science, have proven and reaffirmed time and again.
\nTo compel a person having a certain sexual orientation to proselytize
\nto another is like asking a body part to perform a function it was never
\ndesigned to perform in the first place. It is pure science, a certain
\n94
\nmanner in which the brain and genitals of an individual function and
\nreact. Whether one’s sexual orientation is determined by genetic,
\nhormonal, developmental, social and\/or cultural influences (or a
\ncombination thereof), most people experience little or no sense of
\nchoice about their sexual orientation.62
\n145. The statement of the American Psychological Association on
\nhomosexuality which was released in July 1994 reiterates this
\nposition in the following observations:-
\n“The research on homosexuality is very7
\nclear.
\nHomosexuality is neither mental illness nor moral
\ndepravity. It is simply the way a minority of our
\npopulation expresses human love and sexuality. Study
\nafter study documents the mental health of gay men
\nand lesbians. Studies of judgment, stability, reliability,
\nand social and vocational adaptiveness all show that
\ngay men and lesbians function every bit as well as
\nheterosexuals. Nor is homosexuality a matter of
\nindividual choice. Research suggests that the
\nhomosexual orientation is in place very early in the life
\ncycle, possibly even before birth. It is found in about
\nten percent of the population, a figure which is
\nsurprisingly constant across cultures, irrespective of
\nthe different moral values and standards of a particular
\nculture. Contrary to what some imply, the incidence of
\nhomosexuality in a population does not appear to
\nchange with new moral codes or social mores.
\nResearch findings suggest that efforts to repair
\nhomosexuals are nothing more than social prejudice
\ngarbed in psychological accouterments.”
\n(Emphasis is ours)<\/p>\n

62 UNHCR GUIDELINES ON INTERNATIONAL PROTECTION NO. 9: Claims to Refugee Status based on
\nSexual Orientation and\/or Gender Identity within the context of Article 1A(2) of the 1951
\nConvention and\/or its 1967 Protocol relating to the Status of Refugees
\n95
\n146. In the said context, the observations made by Leonard Sax to
\nthe following effect are relevant and are reproduced below:-
\n?Biologically, the difference between a gay man and a
\nstraight man is something like the difference between a
\nleft-handed person and a right-handed person. Being
\nleft- handed isn’t just a phase. A left-handed person
\nwon’t someday magically turn into a right-handed
\nperson…. Some children are destined at birth to be lefthanded,
\nand some boys are destined at birth to grow
\nup to be gay.?
\n147. The Supreme Court of Canada in the case of James Egan and
\nJohn Norris Nesbit v. Her Majesty The Queen in Right of Canada
\nand another63, while holding that sexual orientation is one of the
\ngrounds for claiming the benefit under Section 15(1) as it is
\nanalogous to the grounds already set out in the list in Section 15(1)
\nand the said list not being finite and exhaustive can be extended to
\nLGBTs on account of the historical, social, political and economic
\ndisadvantage suffered by LGBTs, has observed:-
\n“Sexual orientation is a deeply personal characteristic
\nthat is either unchangeable or changeable only at
\nunacceptable personal costs, and so falls within the
\nambit of s. 15 protection as being analogous to the
\nenumerated grounds.”
\n148. It is worth noting that scientific study has, by way of keen
\nanalysis, arrived at the conclusion as regards the individual\u2018s<\/p>\n

63[1995] 2 SCR 513
\n96
\ninherent orientation. Apart from orientation, as stated earlier, there
\ncan be situations which influence the emotional behaviour of an
\nindividual to seek intimacy in the same gender that may bring two
\npersons together in a biological pattern. It has to be treated as
\nconsensual activity and reflective of consensual choice.
\nL. Privacy and its concomitant aspects
\n149. While testing the constitutional validity of Section 377 IPC, due
\nregard must be given to the elevated right to privacy as has been
\nrecently proclaimed in Puttaswamy (supra). We shall not delve in
\ndetail upon the concept of the right to privacy as the same has been
\ndelineated at length in Puttaswamy (supra). In the case at hand, our
\nfocus is limited to dealing with the right to privacy vis-\u00e0-vis Section
\n377 IPC and other facets such as right to choice as part of the
\nfreedom of expression and sexual orientation. That apart, within the
\ncompartment of privacy, individual autonomy has a significant space.
\nAutonomy is individualistic. It is expressive of self-determination and
\nsuch self-determination includes sexual orientation and declaration of
\nsexual identity. Such an orientation or choice that reflects an
\nindividual\u2018s autonomy is innate to him\/her. It is an inalienable part of
\n97
\nhis\/her identity. The said identity under the constitutional scheme
\ndoes not accept any interference as long as its expression is not
\nagainst decency or morality. And the morality that is conceived of
\nunder the Constitution is constitutional morality. Under the autonomy
\nprinciple, the individual has sovereignty over his\/her body. He\/she
\ncan surrender his\/her autonomy wilfully to another individual and their
\nintimacy in privacy is a matter of their choice. Such concept of
\nidentity is not only sacred but is also in recognition of the
\nquintessential facet of humanity in a person\u2018s nature. The autonomy
\nestablishes identity and the said identity, in the ultimate eventuate,
\nbecomes a part of dignity in an individual. This dignity is special to the
\nman\/woman who has a right to enjoy his\/her life as per the
\nconstitutional norms and should not be allowed to wither and perish
\nlike a mushroom. It is a directional shift from conceptual macrocosm
\nto cognizable microcosm. When such culture grows, there is an
\naffirmative move towards a more inclusive and egalitarian society.
\nNon-acceptance of the same would tantamount to denial of human
\nrights to people and one cannot be oblivious of the saying of Nelson
\nMandela ? ?to deny people their human rights is to challenge their
\nvery humanity.?
\n98
\n150. Article 12 of the Universal Declaration of Human Rights, (1948)
\nmakes a reference to privacy by stating:-
\n“No one shall be subjected to arbitrary interference
\nwith his privacy, family, home or correspondence nor
\nto attacks upon his honour and reputation. Everyone
\nhas the right to the protection of the law against such
\ninterference or attacks.”
\n151. Similarly, Article 17 of the International Covenant of Civil and
\nPolitical Rights, to which India is a party, talks about privacy thus:-
\n“No one shall be subjected to arbitrary or unlawful
\ninterference with his privacy, family, home and
\ncorrespondence, nor to unlawful attacks on his honour
\nand reputation.”
\n152. The European Convention on Human Rights also seeks to
\nprotect the right to privacy by stating:-
\n“1. Everyone has the right to respect for his private and
\nfamily life, his home and his correspondence.
\n2. There shall be no interference by a public authority
\nexcept such as is in accordance with law and is
\nnecessary in a democratic society in the interests of
\nnational security, public safety or the economic well
\nbeing of the country, for the protection of health or
\nmorals or for the protection of the rights and freedoms
\nof others.”
\n153. In the case of Dudgeon v. United Kingdom64
\n, privacy has
\nbeen defined as under:-<\/p>\n

64 [1981] 4 EHRR 149
\n99
\n“Perhaps the best and most succinct legal definition of
\nprivacy is that given by Warren and Brandeis – it is “the
\nright to be let alone”.”
\n154. In R. Rajagopal v. State of Tamil Nadu and others65
\n, while
\ndiscussing the concept of right to privacy, it has been observed that
\nthe right to privacy is implicit in the right to life and liberty guaranteed
\nto the citizens of this country by Article 21 and it is a “right to be let
\nalone”, for a citizen has a right to safeguard the privacy of his\/her
\nown, his\/her family, marriage, procreation, motherhood, child-bearing
\nand education, among other matters.
\n155. The above authorities capture the essence of the right to
\nprivacy. There can be no doubt that an individual also has a right to a
\nunion under Article 21 of the Constitution. When we say union, we do
\nnot mean the union of marriage, though marriage is a union. As a
\nconcept, union also means companionship in every sense of the word,
\nbe it physical, mental, sexual or emotional. The LGBT community is
\nseeking realisation of its basic right to companionship, so long as
\nsuch a companionship is consensual, free from the vice of deceit,
\nforce, coercion and does not result in violation of the fundamental
\nrights of others.<\/p>\n

65 (1994) 6 SCC 632
\n100
\n156. Justice Blackmun, in his vigorous dissent, in the case of
\nBowers, Attorney General of Georgia v. Hardwick et al. 66
\n,
\nregarding the ?right to be let alone?, referred to Paris Adult Theatre I
\nv. Slaton67 wherein he observed that only the most willful blindness
\ncould obscure the fact that sexual intimacy is a sensitive, key
\nrelationship of human existence, central to family life, community
\nwelfare and the development of human personality. Justice
\nBlackmun went on to observe:-
\n?The fact that individuals define themselves in a
\nsignificant way through their intimate sexual
\nrelationships with others suggests, in a Nation as
\ndiverse as ours, that there may be many “right” ways
\nof conducting those relationships, and that much of the
\nrichness of a relationship will come from the freedom
\nan individual has to choose the form and nature of
\nthese intensely personal bonds. \u2026 In a variety of
\ncircumstances, we have recognized that a necessary
\ncorollary of giving individuals freedom to choose how
\nto conduct their lives is acceptance of the fact that
\ndifferent individuals will make different choices.?
\n157. In A.R. Coeriel and M.A.R. Aurik v. The Netherlands68
\n, the
\nHuman Rights Committee observed that the notion of privacy refers
\nto the sphere of a person’s life in which he or she can freely express
\nhis or her identity, be it by entering into relationships with others or<\/p>\n

66 Bowers v. Hardwick, 478 U.S. 186 (1986)
\n67 413 U.S. 49 (1973)
\n68 Communication No. 453\/1991, para. 10.2
\n101
\nalone. The Committee was of the view that a person’s surname
\nconstitutes an important component of one’s identity and that the
\nprotection against arbitrary or unlawful interference with one’s privacy
\nincludes the protection against arbitrary or unlawful interference with
\nthe right to choose and change one’s own name.
\n158. We may also usefully refer to the views of the Human Rights
\nCommittee in Toonen v. Australia69 to the effect that the introduction
\nof the concept of arbitrariness is intended to guarantee that every
\ninterference provided for by the law should be in accordance with the
\nprovisions, aims and objectives of the Covenant and should be, in
\nany event, reasonable in the circumstances. The requirement of
\nreasonableness implies that any interference with privacy must be
\nproportional to the end sought and be necessary in the circumstances
\nof any given case.
\n159. The South African Constitutional Court in National Coalition
\nfor Gay and Lesbian Equality and another v. Minister of Justice
\nand others70 has arrived at a theory of privacy in sexuality that
\nincludes both decisional and relational elements. It lays down that
\nprivacy recognises that we all have a right to a sphere of private<\/p>\n

69Communication No. 488\/1992, U.C. Doc CCPR\/C\/ 50\/D 488\/ 1992, March 31, 1994, para. 8.3
\n70 1998 (12) BCLR 1517 (CC)
\n102
\nintimacy and autonomy which allows us to establish and nurture
\nhuman relationships without interference from the outside community.
\nThe way in which we give expression to our sexuality is at the core of
\nthis area of private intimacy. If, in expressing our sexuality, we act
\nconsensually and without harming one another, invasion of that
\nprecinct will be a breach of our privacy. The Court admitted that the
\nsociety had a poor record of seeking to regulate the sexual
\nexpression of South Africans. It observed that in some cases, as in
\nthis one, the reason for the regulation was discriminatory; the law, for
\nexample, outlawed sexual relationships among people of different
\nraces. The fact that a law prohibiting forms of sexual conduct is
\ndiscriminatory does not, however, prevent it at the same time from
\nbeing an improper invasion of the intimate sphere of human life to
\nwhich protection is given by the Constitution in Section 14. The Court
\nemphasized that the importance of a right to privacy in the new
\nconstitutional order should not be denied even while acknowledging
\nthe importance of equality. In fact, emphasising the breach of both
\nthese rights in the present case highlights just how egregious the
\ninvasion of the constitutional rights of gay persons has been. The
\noffence which lies at the heart of the discrimination in this case
\n103
\nconstitutes, at the same time and independently, a breach of the
\nrights of privacy and dignity which, without doubt, strengthens the
\nconclusion that the discrimination is unfair.
\n160. At home, the view as to the right to privacy underwent a seachange
\nwhen a nine-Judge Bench of this Court in Puttaswamy
\n(supra) elevated the right to privacy to the stature of fundamental
\nright under Article 21 of the Constitution. One of us, Chandrachud, J.,
\nspeaking for the majority, regarded the judgment in Suresh Koushal
\nas a discordant note and opined that the reasons stated therein
\ncannot be regarded as a valid constitutional basis for disregarding a
\nclaim based on privacy under Article 21 of the Constitution. Further,
\nhe observed that the reasoning in Suresh Koushal\u2018s decision to the
\neffect that ?a minuscule fraction of the country’s population
\nconstitutes lesbians, gays, bisexuals or transgenders” is not a
\nsustainable basis to deny the right to privacy.
\n161. It was further observed that the purpose of elevating certain
\nrights to the stature of guaranteed fundamental rights is to insulate
\ntheir exercise from the disdain of majorities, whether legislative or
\npopular, and the guarantee of constitutional rights does not depend
\nupon their exercise being favourably regarded by majoritarian opinion.
\n104
\n162. The test of popular acceptance, in view of the majority opinion,
\nwas not at all a valid basis to disregard rights which have been
\nconferred with the sanctity of constitutional protection. The Court
\nnoted that the discrete and insular minorities face grave dangers of
\ndiscrimination for the simple reason that their views, beliefs or way of
\nlife does not accord with the ‘mainstream’, but in a democratic
\nConstitution founded on the Rule of Law, it does not mean that their
\nrights are any less sacred than those conferred on other citizens.
\n163. As far as the aspect of sexual orientation is concerned, the
\nCourt opined that it is an essential attribute of privacy and
\ndiscrimination against an individual on the basis of sexual orientation
\nis deeply offensive to the dignity and self-worth of the individual. The
\nCourt was of the view that equality demands that the sexual
\norientation of each individual in the society must be protected on an
\neven platform, for the right to privacy and the protection of sexual
\norientation lie at the core of the fundamental rights guaranteed by
\nArticles 14, 15 and 21 of the Constitution.
\n164. Regarding the view in Suresh Koushal\u2018s case to the effect that
\nthe Delhi High Court in Naz Foundation case had erroneously relied
\nupon international precedents in its anxiety to protect the so-called
\n105
\nrights of LGBT persons, the nine-Judge Bench was of the opinion that
\nthe aforesaid view in Suresh Koushal (supra) was unsustainable.
\nThe rights of the lesbian, gay, bisexual and transgender population,
\nas per the decision in Puttaswamy (supra), cannot be construed to
\nbe “so-called rights” as the expression “so-called” seems to suggest
\nthe exercise of liberty in the garb of a right which is illusory.
\n165. The Court regarded such a construction in Suresh Koushal\u2018s
\ncase as inappropriate of the privacy based claims of the LGBT
\npopulation, for their rights are not at all “so-called” but are real rights
\nfounded on sound constitutional doctrine. The Court went on to
\nobserve that the rights of the LGBT community inhere in the right to
\nlife, dwell in privacy and dignity and they constitute the essence of
\nliberty and freedom. Further, the Court observed that sexual
\norientation being an essential component of identity, equal protection
\ndemands equal protection of the identity of every individual without
\ndiscrimination.
\n166. Speaking in the same tone and tenor, Kaul, J., while concurring
\nwith the view of Chandrachud, J., observed that the right to privacy
\ncannot be denied even if there is a minuscule fraction of the
\npopulation which is affected. He was of the view that the majoritarian
\n106
\nconcept does not apply to constitutional rights and the Courts are
\noften called upon to take what may be categorized as a nonmajoritarian
\nview.
\n167. Kaul, J. went on to opine that one\u2018s sexual orientation is
\nundoubtedly an attribute of privacy and in support of this view, he
\nreferred to the observations made in Mosley (supra) which read
\nthus:-
\n“130… It is not simply a matter of personal privacy v.
\nthe public interest. The modern perception is that there
\nis a public interest in respecting personal privacy. It is
\nthus a question of taking account of conflicting public
\ninterest considerations and evaluating them according
\nto increasingly well recognized criteria.
\n131. When the courts identify an infringement of a
\nperson\u2018s Article 8 rights, and in particular in the context
\nof his freedom to conduct his sex life and personal
\nrelationships as he wishes, it is right to afford a remedy
\nand to vindicate that right. The only permitted
\nexception is where there is a countervailing public
\ninterest which in the particular circumstances is strong
\nenough to outweigh it; that is to say. because one at
\nleast of the established “limiting principles” comes into
\nplay. Was it necessary and proportionate for the
\nintrusion to take place, for example, in order to expose
\nillegal activity or to prevent the public from being
\nsignificantly misled by public claims hitherto made by
\nthe individual concerned (as with Naomi Campbell’s
\npublic denials of drug- taking)? Or was it necessary
\nbecause the information, in the words of the
\nStrasbourg court in Von Hannover at (60) and (76).
\nwould make a contribution to “a debate of general
\ninterest”? That is, of course, a very high test, it is yet to
\n107
\nbe determined how far that doctrine will be taken in the
\ncourts of this jurisdiction in relation to photography in
\npublic places. If taken literally, it would mean a very
\nsignificant change in what is permitted. It would have a
\nprofound effect on the tabloid and celebrity culture to
\nwhich we have become accustomed in recent years.””
\n168. After the nine-Judge bench decision in Puttaswamy (supra),
\nthe challenge to the vires of Section 377 IPC has been stronger than
\never. It needs to be underscored that in the said decision, the nineJudge
\nBench has held that sexual orientation is also a facet of a
\nperson’s privacy and that the right to privacy is a fundamental right
\nunder the Constitution of India.
\n169. The observation made in Suresh Koushal (supra) that gays,
\nlesbians, bisexuals and transgenders constitute a very minuscule part
\nof the population is perverse due to the very reason that such an
\napproach would be violative of the equality principle enshrined under
\nArticle 14 of the Constitution. The mere fact that the percentage of
\npopulation whose fundamental right to privacy is being abridged by
\nthe existence of Section 377 in its present form is low does not
\nimpose a limitation upon this Court from protecting the fundamental
\nrights of those who are so affected by the present Section 377 IPC.
\n170. The constitutional framers could have never intended that the
\nprotection of fundamental rights was only for the majority population.
\n108
\nIf such had been the intention, then all provisions in Part III of the
\nConstitution would have contained qualifying words such as ‘majority
\npersons’ or ‘majority citizens’. Instead, the provisions have employed
\nthe words ‘any person\u2018 and =any citizen’ making it manifest that the
\nconstitutional courts are under an obligation to protect the
\nfundamental rights of every single citizen without waiting for the
\ncatastrophic situation when the fundamental rights of the majority of
\ncitizens get violated.
\n171. Such a view is well supported on two counts, namely, one that
\nthe constitutional courts have to embody in their approach a
\ntelescopic vision wherein they inculcate the ability to be futuristic and
\ndo not procrastinate till the day when the number of citizens whose
\nfundamental rights are affected and violated grow in figures. In the
\ncase at hand, whatever be the percentage of gays, lesbians,
\nbisexuals and transgenders, this Court is not concerned with the
\nnumber of persons belonging to the LGBT community. What matters
\nis whether this community is entitled to certain fundamental rights
\nwhich they claim and whether such fundamental rights are being
\nviolated due to the presence of a law in the statute book. If the
\nanswer to both these questions is in the affirmative, then the
\n109
\nconstitutional courts must not display an iota of doubt and must not
\nhesitate in striking down such provision of law on the account of it
\nbeing violative of the fundamental rights of certain citizens, however
\nminuscule their percentage may be.
\n172. A second count on which the view in Suresh Koushal (supra)
\nbecomes highly unsustainable is that the language of both Articles 32
\nand 226 of the Constitution is not reflective of such an intention. A
\ncursory reading of both the Articles divulges that the right to move the
\nSupreme Court and the High Courts under Articles 32 and 226
\nrespectively is not limited to a situation when there is violation of the
\nfundamental rights of a large chunk of populace.
\n173. Such a view is also fortified by several landmark judgments of
\nthe Supreme Court such as D.K. Basu v. State of W.B.71 wherein the
\nCourt was concerned with the fundamental rights of only those
\npersons who were put under arrest and which again formed a
\nminuscule fraction of the total populace. Another recent case wherein
\nthe Supreme Court while discharging its constitutional duty did not
\nhesitate to protect the fundamental right to die with dignity is
\nCommon Cause (A Regd. Society) (supra) wherein the Supreme<\/p>\n

71(1997) 1 SCC 416
\n110
\nCourt stepped in to protect the said fundamental right of those who
\nmay have slipped into permanent vegetative state, who again form a
\nvery minuscule part of the society.
\n174. Such an approach reflects the idea as also mooted by Martin
\nLuther King Jr. who said, ?Injustice anywhere is a threat to justice
\neverywhere?. While propounding this view, we are absolutely
\nconscious of the concept of reasonable classification and the fact that
\neven single person legislation could be valid as held in Chiranjit Lal
\nChowdhury v. Union of India72, which regarded the classification to
\nbe reasonable from both procedural and substantive points of view.
\n175. We are aware that the legislature is fully competent to enact
\nlaws which are applicable only to a particular class or group. But, for
\nthe classification to be valid, it must be founded on an intelligible
\ndifferentia and the differentia must have a rational nexus with the
\nobject sought to be achieved by a particular provision of law.
\n176. That apart, since it is alleged that Section 377 IPC in its present
\nform violates a fundamental right protected by Article 21 of the
\nConstitution, that is, the right to personal liberty, it has to not only
\nstand the test of Article 21 but it must also stand the test of Article 19<\/p>\n

72[1950] 1 SCR 869
\n111
\nwhich is to say that the restriction imposed by it has to be reasonable
\nand also that of Article 14 which is to say that Section 377 must not
\nbe arbitrary.
\n177. Whether Section 377 stands the trinity test of Articles 14, 19
\nand 21 as propounded in the case of Maneka Gandhi (supra) will be
\nascertained and determined at a later stage of this judgment when we
\nget into the interpretative dissection of Section 377 IPC.
\nM. Doctrine of progressive realization of rights
\n178. When we talk about the rights guaranteed under the
\nConstitution and the protection of these rights, we observe and
\ncomprehend a manifest ascendance and triumphant march of such
\nrights which, in turn, paves the way for the doctrine of progressive
\nrealization of the rights under the Constitution. This doctrine
\ninvariably reminds us about the living and dynamic nature of a
\nConstitution. Edmund Burke, delineating upon the progressive and
\nthe perpetual growing nature of a Constitution, had said that a
\nConstitution is ever-growing and it is perpetually continuous as it
\nembodies the spirit of a nation. It is enriched at the present by the
\npast experiences and influences and makes the future richer than the
\npresent.
\n112
\n179. In N.M. Thomas (supra), Krishna Iyer, J., in his concurring
\nopinion, observed thus:-
\n“Law, including constitutional law, can no longer go it
\nalone’ but must be illumined in the interpretative
\nprocess by sociology and allied fields of knowledge.
\nIndeed, the term ‘constitutional law’ symbolizes an
\nintersection of law and politics, wherein issues of
\npolitical power are acted on by persons trained in the
\nlegal tradition, working in judicial institutions, following
\nthe procedures of law, thinking as lawyers think. So
\nmuch so, a wider perspective is needed to resolve
\nissues of constitutional law.”
\nAnd again:-
\n?An overview of the decided cases suggests the need
\nto re-interpret the dynamic import of the ‘equality
\nclauses’ and, to stress again, beyond reasonable
\ndoubt, that the paramount law. which is organic and
\nregulates our nation’s growing life, must take in its
\nsweep ethics, economics, politics and sociology’.?
\nThe learned Judge, expanding the horizon of his concern,
\nreproduced the lament of Friedman:-
\n“It would be tragic if the law were so petrified
\nas to be unable to respond to the unending
\nchallenge of evolutionary or revolutionary
\nchanges in society.”
\nThe main assumptions which Friedman makes are:
\n“first, the law is, in Holmes’ phrase, not a
\nbrooding omnipotence in the sky’, but a
\nflexible instrument of social order, dependent
\non the political values of the society which it
\npurports to regulate….”
\n113
\nNaturally surges the interrogation, what are the
\nchallenges of changing values to which the guarantee
\nof equality must respond and how??
\n180. Further, Krishna Iyer, J. referred to the classic statement made
\nby Chief Justice Marshall in McCulloch v. Maryland73 which was
\nalso followed by Justice Brennan in Kazenbach v. Morgan74. The
\nsaid observation reads thus:-
\n“Let the end be legitimate, let it be within the scope of
\nthe constitution, and all means which are appropriate,
\nwhich are plainly adapted to that end, which are not
\nprohibited, but consist with the letter and spirit of the
\nconstitution, are constitutional.”
\n181. In Manoj Narula (supra), the Court recognized the dynamic
\nnature of the Indian Constitution and observed that it is a living
\ndocument with capabilities of enormous dynamism. It is a Constitution
\nmade for a progressive society and the working of such a Constitution
\ndepends upon the prevalent atmosphere and conditions.
\n182. In Government of NCT of Delhi (supra), the Court, while
\ncontemplating on what is it that makes a Constitution a dynamic and
\na living document, observed that it is the philosophy of ‘constitutional
\nculture’ which, as a set of norms and practices, breathes life into the<\/p>\n

73 (1816) 17 US 316
\n74 (1966) 384 US 641
\n114
\nwords of the great document and it constantly enables the words to
\nkeep stride with the rapid and swift changes occurring in the society
\nand the responsibility of fostering a constitutional culture rests upon
\nthe shoulders of the State. Thereafter, the Court went on to observe:-
\n?The Constitutional Courts, while interpreting the
\nconstitutional provisions, have to take into account the
\nconstitutional culture, bearing in mind its flexible and
\nevolving nature, so that the provisions are given a
\nmeaning which reflect the object and purpose of the
\nConstitution.?
\nAnd again, it proceeded to reproduce the wise words of Justice
\nBrennan:-
\n“We current Justices read the Constitution in the only
\nway that we can: as Twentieth Century Americans. We
\nlook to the history of the time of framing and to the
\nintervening history of interpretation. But the ultimate
\nquestion must be, what do the words of the text mean
\nin our time? For the genius of the Constitution rests not
\nin any static meaning it might have had in a world that
\nis dead and gone, but in the adaptability of its great
\nprinciples to cope with current problems and current
\nneeds. What the constitutional fundamentals meant to
\nthe wisdom of other times cannot be their measure to
\nthe vision of our time. Similarly, what those
\nfundamentals mean for us, our descendants will learn,
\ncannot be the measure to the vision of their time.”
\n183. We have discussed, in brief, the dynamic and progressive
\nnature of the Constitution to accentuate that rights under the
\nConstitution are also dynamic and progressive, for they evolve with
\n115
\nthe evolution of a society and with the passage of time. The rationale
\nbehind the doctrine of progressive realization of rights is the dynamic
\nand ever growing nature of the Constitution under which the rights
\nhave been conferred to the citizenry.
\n184. The constitutional courts have to recognize that the
\nconstitutional rights would become a dead letter without their dynamic,
\nvibrant and pragmatic interpretation. Therefore, it is necessary for the
\nconstitutional courts to inculcate in their judicial interpretation and
\ndecision making a sense of engagement and a sense of constitutional
\nmorality so that they, with the aid of judicial creativity, are able to fulfill
\ntheir foremost constitutional obligation, that is, to protect the rights
\nbestowed upon the citizens of our country by the Constitution.
\n185. Here, it is also apposite to refer to the words of Lord Roskill in
\nhis presidential address to the Bentham Club at University College of
\nLondon on February 29, 1984 on the subject ‘Law Lords,
\nReactionaries or Reformers’75 which read as follows:-
\n“Legal policy now stands enthroned and will I hope
\nremain one of the foremost considerations governing
\nthe development by the House of Lords of the common
\nlaw. What direction should this development now take?
\nI can think of several occasions upon which we have
\nall said to ourselves:-<\/p>\n

75 Lord Roskill, \u201cLaw Lords, Reactionaries or Reformers\u201d, Current Legal Problems (1984)
\n116
\n“this case requires a policy decision what is
\nthe right policy decision?” The answer is, and
\nI hope will hereafter be, to follow that route
\nwhich is most consonant with the current
\nneeds of the society, and which will be seen to
\nbe sensible and will pragmatically thereafter
\nbe easy to apply. No doubt the Law Lords will
\ncontinue to be the targets for those academic
\nlawyers who will seek intellectual perfection
\nrather than imperfect pragmatism. But much
\nof the common law and virtually all criminal
\nlaw, distasteful as it may be to some to have
\nto acknowledge it. is a blunt instrument by
\nmeans of which human beings, whether they
\nlike it or not, are governed and subject to
\nwhich they are required to live, and blunt
\ninstruments are rarely perfect intellectually or
\notherwise. By definition they operate bluntly
\nand not sharply.”
\n[Emphasis supplied]
\n186. What the words of Lord Roskill suggest is that it is not only the
\ninterpretation of the Constitution which needs to be pragmatic, due to
\nthe dynamic nature of a Constitution, but also the legal policy of a
\nparticular epoch must be in consonance with the current and the
\npresent needs of the society, which are sensible in the prevalent
\ntimes and at the same time easy to apply.
\n187. This also gives birth to an equally important role of the State to
\nimplement the constitutional rights effectively. And of course, when
\nwe say State, it includes all the three organs, that is, the legislature,
\n117
\nthe executive as well as the judiciary. The State has to show
\nconcerned commitment which would result in concrete action. The
\nState has an obligation to take appropriate measures for the
\nprogressive realization of economic, social and cultural rights.
\n188. The doctrine of progressive realization of rights, as a natural
\ncorollary, gives birth to the doctrine of non-retrogression. As per this
\ndoctrine, there must not be any regression of rights. In a progressive
\nand an ever-improving society, there is no place for retreat. The
\nsociety has to march ahead.
\n189. The doctrine of non-retrogression sets forth that the State
\nshould not take measures or steps that deliberately lead to
\nretrogression on the enjoyment of rights either under the Constitution
\nor otherwise.
\n190. The aforesaid two doctrines lead us to the irresistible
\nconclusion that if we were to accept the law enunciated in Suresh
\nKoushal’s case, it would definitely tantamount to a retrograde step in
\nthe direction of the progressive interpretation of the Constitution and
\ndenial of progressive realization of rights. It is because Suresh
\nKoushal\u2019s view gets wrongly embedded with the minuscule facet and
\nassumes criminality on the bedrock being guided by a sense of social
\n118
\nmorality. It discusses about health which is no more a phobia and is
\nfurther moved by the popular morality while totally ignoring the
\nconcepts of privacy, individual choice and the orientation. Orientation,
\nin certain senses, does get the neuro-impulse to express while seeing
\nthe other gender. That apart, swayed by data, Suresh Koushal fails
\nto appreciate that the sustenance of fundamental rights does not
\nrequire majoritarian sanction. Thus, the ruling becomes sensitively
\nsusceptible.
\nN. International perspective
\n(i) United States
\n191. The Supreme Court of the United States in Obergefell, et al. v.
\nHodges, Director, Ohio Department of Health, et al.76
\n, highlighting
\nthe plight of homosexuals, observed that until the mid-20th century,
\nsame-sex intimacy had long been condemned as immoral by the
\nState itself in most Western nations and a belief was often embodied
\nin the criminal law and for this reason, homosexuals, among others,
\nwere not deemed to have dignity in their own distinct identity. The
\nCourt further noted that truthful declaration by same-sex couples of
\nwhat was in their hearts had to remain unspoken and even when a<\/p>\n

76576 US (2015)
\n119
\ngreater awareness of the humanity and integrity of homosexual
\npersons came in the period after World War II, the argument that
\ngays and lesbians had a just claim to dignity was in conflict with both
\nlaw and widespread social conventions. The Court also observed that
\nsame-sex intimacy remained a crime in many States and that gays
\nand lesbians were prohibited from most government employment,
\nbarred from military service, excluded under immigration laws,
\ntargeted by the police and burdened in their rights to associate.
\n192. The Court further observed that what the statutes in question
\nseek to control is a personal relationship, whether or not entitled to
\nformal recognition in the law, that is within the liberty of persons to
\nchoose without being punished as criminals. Further, the Court
\nacknowledged that adults may choose to enter upon a relationship in
\nthe confines of their homes and their own private lives and still retain
\ntheir dignity as free persons and that when sexuality finds overt
\nexpression in intimate conduct with another person, the conduct can
\nbe but one element in a personal bond that is more enduring. The
\nCourt held that such liberty protected by the Constitution allows
\nhomosexual persons the right to make this choice.
\n120
\n193. In the case of Price Waterhouse v. Hopkins77
\n, the Supreme
\nCourt of the United States, while evaluating the legal relevance of sex
\nstereotyping, observed thus:-
\n“…we are beyond the day when an employer could
\nevaluate employees by assuming or insisting that they
\nmatched the stereotype associated with their group, for,
\n“‘[i]n forbidding employers to discriminate against
\nindividuals because of their sex, Congress intended to
\nstrike at the entire spectrum of disparate treatment of
\nmen and women resulting from sex stereotypes.””
\n194. In the case of Kimberly Hively v. Ivy Tech Community
\nCollege of Indiana78
\n, while holding that discrimination amongst
\nemployees based on their sexual orientation amounts to
\ndiscrimination based on sex, the Court observed as under:-
\n“We would be remiss not to consider the EEOC’s recent
\ndecision in which it concluded that “sexual orientation is
\ninherently a ‘sex-based consideration,’ and an allegation
\nof discrimination based on sexual orientation is
\nnecessarily an allegation of sex discrimination under Title
\nVII.” Baldwin v. Foxx, EEOC Appeal No. 0120133080,
\n2015 WL 4397641, at *5, *10 (July 16, 2015). The EEOC,
\nthe body charged with enforcing Title VII, came to this
\nconclusion for three primary reasons. First, it concluded
\nthat “sexual orientation discrimination is sex
\ndiscrimination because it necessarily entails treating an
\nemployee less favorably because of the employee’s sex.”
\nId. at *5 (proffering the example of a woman who is
\nsuspended for placing a photo of her female spouse on
\nher desk, and a man who faces no consequences for the<\/p>\n

77490 U.S. 228 (1989)
\n78830 F.3d 698 (7th Cir. 2016)
\n121
\nsame act). Second, it explained that “sexual orientation
\ndiscrimination is also sex discrimination because it is
\nassociational discrimination on the basis of sex,” in which
\nan employer discriminates against lesbian, gay, or
\nbisexual employees based on who they date or marry. Id.
\nat *6-7. Finally, the EEOC described sexual orientation
\ndiscrimination as a form of discrimination based on
\ngender stereotypes in which employees are harassed or
\npunished for failing to live up to societal norms about
\nappropriate masculine and feminine behaviors,
\nmannerisms, and appearances. Id. In coming to these
\nconclusions, the EEOC noted critically that “courts have
\nattempted to distinguish discrimination based on sexual
\norientation from discrimination based on sex, even while
\nnoting that the “borders [between the two classes] are
\nimprecise.” Id. at *8 (quoting Simonton, 232 F.3d at 35).
\n[Underlining is ours]
\n195. In the case of Lawrence v. Texas79
\n, while dealing with the
\nissue of decriminalization of sexual conduct between homosexuals,
\nthe U.S. Supreme Court observed that the said issue neither involved
\nminors nor persons who might be injured or coerced or who are
\nsituated in relationships where consent might not easily be refused
\nnor did it involve public conduct or prostitution nor the question
\nwhether the government must give formal recognition to any
\nrelationship that homosexual persons seek to enter. The Court further
\nobserved that the issue related to two adults who, with full and mutual
\nconsent of each other, engaged in sexual practices common to a<\/p>\n

79 539 U.S. 558 (2003)
\n122
\nhomosexual lifestyle. The Court declared that the petitioners were
\nentitled to respect for their private lives and that the State could not
\ndemean their existence or control their destiny by making their private
\nsexual conduct a crime, for their right to liberty under the Due
\nProcess Clause gives them the full right to engage in their conduct
\nwithout the intervention of the State.
\n196. In Roberts v. United States Jaycees80
\n, the Supreme Court of
\nthe United States observed:-
\n“Our decisions have referred to constitutionally
\nprotected “freedom of association” in two distinct
\nsenses. In one line of decisions, the Court has
\nconcluded that choices to enter into and maintain
\ncertain intimate human relationships must be secured
\nagainst undue intrusion by the State because of the
\nrole of such relationships in safeguarding the individual
\nfreedom that is central to our constitutional scheme. In
\nthis respect, freedom of association receives protection
\nas a fundamental element of personal liberty. In
\nanother set of decisions, the Court has recognized a
\nright to associate for the purpose of engaging in those
\nactivities protected by the First Amendment ~ speech,
\nassembly, petition for the redress of grievances, and
\nthe exercise of religion. The Constitution guarantees
\nfreedom of association of this kind as an indispensable
\nmeans of preserving other individual liberties. The
\nintrinsic and instrumental features of constitutionally
\nprotected association may, of course, coincide.”
\n[Emphasis added]<\/p>\n

80468 U.S. 609 (1984)
\n123
\n(ii) Canada
\n197. The Supreme Court of Canada, in Delwin Vriend and others
\nv. Her Majesty the Queen in Right of Alberta and others81
\n, while
\ninterpreting a breach of Section 15(1) of the Canadian Charter of
\nRights and Freedoms, arrived at the conclusion that ‘sex’ includes
\nsexual orientation. Section 15(1) of the Charter reads thus:-
\n“Every individual is equal before and under the law and
\nhas the right to the equal protection and equal benefit
\nof the law without discrimination and, in particular,
\nwithout discrimination based on race, national or ethnic
\norigin, colour, religion, sex, age or physical disability.”
\n198. In Delwin Vriend, the Supreme Court of Canada, relying on the
\nreasoning adopted by it in Egan v. Canada (supra), applied its wellknown
\ntest of grounds analogous to those specified textually. The
\nEgan test is:-
\n“In Egan, it was said that there are two aspects which
\nare relevant in determining whether the distinction
\ncreated by the law constitutes discrimination. First,
\n“whether the equality right was denied on the basis of
\na personal characteristic which is either enumerated in
\ns. 15(1) or which is analogous to those enumerated”.
\nSecond “whether that distinction has the effect on the
\nclaimant of imposing a burden, obligation or
\ndisadvantage not imposed upon others or of
\nwithholding or limiting access to benefits or
\nadvantages which are available to others” (para. 131).<\/p>\n

81[1998] 1 SCR 493
\n124
\nA discriminatory distinction was also described as one
\nwhich is “capable of either promoting or perpetuating
\nthe view that the individual adversely affected by this
\ndistinction is less capable, or less worthy of recognition
\nor value as a human being or as a member of
\nCanadian society, equally deserving of concern,
\nrespect, and consideration” (Egan, at para. 56, per
\nL’Heureux – Dube J.). It may as well be appropriate to
\nconsider whether the unequal treatment is based on
\n“the stereotypical application of presumed group or
\npersonal characteristics” (Miron, at para. 128, per
\nMcLachlin J.)
\nIn Egan, it was held, on the basis of “historical social,
\npolitical and economic disadvantage suffered by
\nhomosexuals” and the emerging consensus among
\nlegislatures (at para. 176), as well as previous judicial
\ndecisions (at para. 177), that sexual orientation is a
\nground analogous to those listed in s. 15(1). Sexual
\norientation is “a deeply personal characteristic that is
\neither unchangeable or changeable only at
\nunacceptable personal costs” (para. 5). It is analogous
\nto the other personal characteristics enumerated in s.
\n15(1); and therefore this step of the test is satisfied.”
\n199. Thereafter, the Court in Delwin Vriend (supra) observed that
\nperhaps the most important outcome is the psychological harm which
\nmay ensue from the state of affairs as the fear of discrimination (by
\nLGBT) would logically lead them to concealment of true identity and
\nthis is harmful to their personal confidence and self-esteem. The
\nCourt held that this is a clear example of a distinction which demeans
\nthe individual and strengthens and perpetrates the view that gays and
\n125
\nlesbians are less worthy of protection as individuals in Canada\u2018s
\nsociety and the potential harm to the dignity and perceived worth of
\ngay and lesbian individuals constitutes a particularly cruel form of
\ndiscrimination.
\n(iii) South Africa
\n200. The Constitutional Court of South Africa in National Coalition
\nfor Gay & Lesbian Equality (supra) made the following relevant
\nobservations:-
\n“Its symbolic effect is to state that in the eyes of our
\nlegal system all gay men are criminals. The stigma
\nthus attached to a significant proportion of our
\npopulation is manifest. But the harm imposed by the
\ncriminal law is far more than symbolic. As a result of
\nthe criminal offence, gay men are at risk of arrest,
\nprosecution and conviction of the offence of sodomy
\nsimply because they seek to engage in sexual conduct
\nwhich is part of their experience of being human. Just
\nas apartheid legislation rendered the lives of couples of
\ndifferent racial groups perpetually at risk, the sodomy
\noffence builds insecurity and vulnerability into the daily
\nlives of gay men. There can be no doubt that the
\nexistence of a law which punishes a form of sexual
\nexpression for gay men degrades and devalues gay
\nmen in our broader society. As such it is a palpable
\ninvasion of their dignity and a breach of section 10 of
\nthe Constitution.”
\n126
\n(iv) United Kingdom
\n201. In Euan Sutherland v. United Kingdom82
\n, the issue before
\nthe European Commission of Human Rights was whether the
\ndifference in age limit for consent for sexual activities for
\nhomosexuals and heterosexuals, the age limit being 16 years in
\nthe case of heterosexuals and 18 years in the case of
\nhomosexuals, is justified. While considering the same, the
\nCommission observed that no objective and reasonable
\njustification exists for the maintenance of a higher minimum age of
\nconsent in case of male homosexuals as compared to
\nheterosexuals and that the application discloses discriminatory
\ntreatment in the exercise of the applicant’s right to respect for
\nprivate life under Article 8 of the Convention. The Commission
\nfurther observed that sexual orientation was usually established
\nbefore the age of puberty in both boys and girls and referred to
\nevidence that reducing the age of consent would unlikely affect the
\nmajority of men engaging in homosexual activity, either in general
\nor within specific age groups. The Council of the British Medical
\nAssociation (BMA) concluded in its Report that the age of consent<\/p>\n

822001 ECHR 234
\n127
\nfor homosexual men should be set at 16 since the then existing
\nlaw might inhibit efforts to improve the sexual health of young
\nhomosexual and bisexual men. An equal age of consent was also
\nsupported by the Royal College of Psychiatrists, the Health
\nEducation Authority and the National Association of Probation
\nOfficers as well as by other bodies and organizations concerned
\nwith health and social welfare. It is further noted that equality of
\ntreatment in respect of the age of consent is now recognized by
\nthe great majority of Member States of the Council of Europe.
\n(v) Other Courts\/Jurisdictions
\n202. In Ang Ladlad LGBT Party v. Commission of Elections83
\n, the
\nSupreme Court of the Republic of the Philippines observed:-
\n“Freedom of expression constitutes one of the
\nessential foundations of a democratic society, and this
\nfreedom applies not only to those that are favorably
\nreceived but also to those that offend, shock, or disturb.
\nAny restriction imposed in this sphere must be
\nproportionate to the legitimate aim pursued. Absent
\nany compelling state interest, it is not for the
\nCOMELEC or this Court to impose its views on the
\npopulace.?
\nElaborating further, the Court held:-
\n?It follows that both expressions concerning one’s
\nhomosexuality and the activity of forming a political<\/p>\n

83 G. R. No.190582, Supreme Court of Philippines (2010)
\n128
\nassociation that supports LGBT individuals are
\nprotected as well.?
\nThe Court navigated through European and United Nations
\nJudicial decisions and held:-
\n?In the area of freedom of expression, for instance,
\nUnited States courts have ruled that existing free
\nspeech doctrines protect gay and lesbian rights to
\nexpressive conduct. In order to justify the prohibition of
\na particular expression of opinion, public institutions
\nmust show that their actions were caused by
\n“something more than a mere desire to avoid the
\ndiscomfort and unpleasantness that always
\naccompany an unpopular viewpoint.”
\n203. Further, in Toonen\u2018s case, the Human Rights Committee made
\nthe following relevant observations:-
\n“I concur with this view, as the common denominator
\nfor the grounds “race, colour and sex” are biological or
\ngenetic factors. This being so, the criminalization of
\ncertain behaviour operating under Sections 122(a), (c)
\nand 123 of the Tasmanian Criminal Code must be
\nconsidered incompatible with article 26 of the
\nCovenant.
\nFirstly, these provisions of the Tasmanian
\nCriminal Code prohibit sexual intercourse between
\nmen and between women, thereby making a distinction
\nbetween heterosexuals and homosexuals. Secondly,
\nthey criminalize other sexual contacts between
\nconsenting men without at the same time criminalizing
\nsuch contacts between women. These provisions
\ntherefore set aside the principle of equality before the
\nlaw. It should be emphasized that it is the
\ncriminalization as such that constitutes discrimination
\nof which individuals may claim to be victims, and thus
\n129
\nviolates article 26, notwithstanding the fact that the law
\nhas not been enforced over a considerable period of
\ntime: the designated behaviour none the less remains
\na criminal offence.”
\n204. In Dudgeon (supra), the European Court of Human Rights
\nmade the following observations with respect to homosexuality:-
\n“It cannot be maintained in these circumstances that
\nthere is a “pressing social need” to make such acts
\ncriminal offences, there being no sufficient justification
\nprovided by the risk of harm to vulnerable sections of
\nsociety requiring protection or by the effects on the
\npublic. On the issue of proportionality, the Court
\nconsiders that such justifications as there are for
\nretaining the law in force unamended are outweighed
\nby the detrimental effects which the very existence of
\nthe legislative provisions in question can have on the
\nlife of a person of homosexual orientation like the
\napplicant. Although members of the public who regard
\nhomosexuality as immoral may be shocked, offended
\nor disturbed by the commission by others of private
\nhomosexual acts, this cannot on its own warrant the
\napplication of penal sanctions when it is consenting
\nadults alone who are involved.”
\n[Emphasis supplied]
\nO. Comparative analysis of Section 375 and Section 377 IPC
\n205. Let us, in the obtaining situation, conduct a comparative
\nanalysis of the offence of rape and unnatural offences as defined
\nunder Section 375 and Section 377 of the IPC respectively. Section
\n375 IPC defines the offence of rape and reads as under:-
\n130
\nSection 375. Rape-A man is said to commit “rape” if
\nhe \u2014
\n(a) penetrates his penis, to any extent, into the vagina,
\nmouth, urethra or anus of a woman or makes her to do
\nso with him or any other person; or
\n(b) inserts, to any extent, any object or a part of the
\nbody, not being the penis, into the vagina, the urethra
\nor anus of a woman or makes her to do so with him or
\nany other person; or
\n(c) manipulates any part of the body of a woman so as
\nto cause penetration into the vagina, urethra, anus or
\nany part of body of such woman or makes her to do so
\nwith him or any other person; or
\n(d) applies his mouth to the vagina, anus, urethra of a
\nwoman or makes her to do so with him or any other
\nperson, under the circumstances falling under any of
\nthe following seven descriptions: \u2014
\nFirst. \u2014Against her will.
\nSecondly. \u2014Without her consent.
\nThirdly. \u2014With her consent, when her consent has
\nbeen obtained by putting her or any person in whom
\nshe is interested, in fear of death or of hurt.
\nFourthly. \u2014With her consent, when the man knows
\nthat he is not her husband and that her consent is
\ngiven because she believes that he is another man to
\nwhom she is or believes herself to be lawfully married.
\nFifthly. \u2014With her consent when, at the time of giving
\nsuch consent, by reason of unsoundness of mind or
\nintoxication or the administration by him personally or
\nthrough another of any stupefying or unwholesome
\n131
\nsubstance, she is unable to understand the nature and
\nconsequences of that to which she gives consent.
\nSixthly. \u2014With or without her consent, when she is
\nunder eighteen years of age.
\nSeventhly. \u2014When she is unable to communicate
\nconsent.
\nExplanation I.\u2014For the purposes of this section,
\n“vagina” shall also include labia majora.
\nExplanation 2. \u2014 Consent means an unequivocal
\nvoluntary agreement when the woman by words,
\ngestures or any form of verbal or non-verbal
\ncommunication, communicates willingness to
\nparticipate in the specific sexual act:
\nProvided that a woman who does not physically resist
\nto the act of penetration shall not by the reason only of
\nthat fact, be regarded as consenting to the sexual
\nactivity.
\nException I.\u2014A medical procedure or intervention shall
\nnot constitute rape.
\nException 2. \u2014Sexual intercourse or sexual acts by a
\nman with his own wife, the wife not being under fifteen
\nyears of age, is not rape.’.
\n206. A cursory reading of Section 375 IPC divulges that it is a
\ngender specific provision for the protection of women as only a man
\ncan commit the offence of rape. The Section has been divided into
\ntwo parts. The former part, comprising of Clauses (a) to (d), simply
\n132
\ndescribes what acts committed by a man with a woman would
\namount to rape provided that the said acts are committed in the
\ncircumstances falling under any of the seven descriptions as
\nstipulated by the latter part of the Section.
\n207. It is in this way that the latter part of Section 375 IPC becomes
\nimportant as it lays down the circumstances, either of which must be
\npresent, for an act committed by a man with a woman to come within
\nthe sweep of the offence of rape. To put it differently, for completing
\nthe offence of rape, any of the circumstances described in the latter
\npart of Section 375 must be present. Let us now dissect each of the
\nseven descriptions appended to Section 375 IPC which specify the
\nabsence of a willful and informed consent for constituting the offence
\nof rape.
\n208. The first description provides that any of the acts described in
\nthe former part of Section 375 IPC would amount to rape if such acts
\nare committed against the will of the woman. The second description
\nstipulates that the acts described in the former part would amount to
\nrape if such acts are committed without the consent of the woman. As
\nper the third description, the acts would amount to rape even if the
\nwoman has given her consent but the said consent has been
\n133
\nobtained by putting her or any person in whom she is interested, in
\nfear of death or of hurt. As per the fourth description, the acts would
\namount to rape when the woman has given her consent but the same
\nwas given by her under the belief that she is or believes herself to be
\nlawfully married to the man committing the acts stated in the former
\npart of the Section. The fifth description provides that the acts
\ndescribed in the former part would amount to rape if the woman gives
\nher consent but at the time of giving such consent, she is unable to
\nunderstand the nature and consequences of the acts to which she
\nconsents due to the reason of unsoundness of mind or intoxication or
\nthe administration of any stupefying or unwholesome substance
\neither by the man who commits the acts or through another third
\nperson. The sixth description is plain and simple as it stipulates that
\nthe acts described in the former part of the Section would amount to
\nrape, irrespective of the fact whether the woman has given her
\nconsent or not, if, at the time when the acts were committed, the
\nwoman was below the age of eighteen years. Coming to the seventh
\nand the last description, it provides that the acts prescribed in the
\nformer part would amount to rape if the woman is unable to
\ncommunicate her consent.
\n134
\n209. Explanation 2 to Section 375 IPC gives the definition of consent
\nfor the purpose of Section 375 to the effect that consent means an
\nunequivocal voluntary agreement by the woman through words,
\ngestures or any form of verbal or non-verbal communication whereby
\nshe communicates her willingness to participate in any of the sexual
\nacts described in the former part of Section 375 IPC.
\n210. We have scrutinized the anatomy of the seven descriptions
\ncontained in the latter part of Section 375 IPC along with Explanation
\n2 to Section 375 IPC to emphasize and accentuate that the element
\nof absence of consent is firmly ingrained in all the descriptions
\ncontained in the latter part of Section 375 IPC and the absence of a
\nwillful and informed consent is sine qua non to designate the acts
\ncontained in the former part of Section 375 IPC as rape.
\n211. Presently, we proceed to scan the anatomy of Section 377 of
\nIPC and x-ray the provision to study its real nature and content. It
\nreads thus:-
\n?Section 377. Unnatural offences.\u2014Whoever
\nvoluntarily has carnal intercourse against the order of
\nnature with any man, woman or animal, shall be
\npunished with imprisonment for life, or with
\nimprisonment of either description for a term which
\nmay extend to ten years, and shall also be liable to
\nfine.
\n135
\nExplanation.\u2014Penetration is sufficient to constitute the
\ncarnal intercourse necessary to the offence described
\nin this section.?
\n212. Section 377 IPC, unlike Section 375, is a gender-neutral
\nprovision as it uses the word =whoever\u2018. The word =carnal\u2018, as per the
\nBlack\u2018s Law Dictionary84
\n, means of the body, relating to the body,
\nfleshy or sexual. =Sexual intercourse\u2018 has been defined in Black\u2018s Law
\nDictionary as a contact between a male and a female\u2018s organ.
\n213. Another expression which has been employed in Section 377 is
\n=against the order of nature\u2018. The phrase =against the order of nature\u2018
\nhas neither been defined in Section 377 IPC nor in any other
\nprovision of the IPC. The foundation on which Section 377 IPC
\nmakes carnal intercourse an offence is the precept that such carnal
\nintercourse is against the order of nature. This brings us to the
\nimportant question as to what is =against the order of nature\u2018?
\n214. In Khanu (supra), where the question before the Court was
\nwhether coitus per os (mouth contact with the male genitals) amounts
\nto carnal intercourse against the order of nature, the Court ruled in
\nthe affirmative observing that the natural object of intercourse is that
\nthere should be the possibility of conception of human beings which<\/p>\n

84 Black\u2019s Law Dictionary, 2nd edn.
\n136
\nin the case of coitus per os is impossible. Thus, the most common
\nargument against homosexuality and criminalization of carnal
\nintercourse even between consenting adults of opposite sex is that
\ntraditionally, the essential purpose of sex is to procreate.
\n215. With the passage of time and evolution of the society,
\nprocreation is not the only reason for which people choose to come
\ntogether, have live-in relationships, perform coitus or even marry.
\nThey do so for a whole lot of reasons including emotional
\ncompanionship. Homer Clark writes:-
\n?But the fact is that the most significant function of
\nmarriage today seems to be that it furnishes emotional
\nsatisfactions to be found in no other relationships. For
\nmany people it is the refuge from the coldness and
\nimpersonality of contemporary existence.?
\n216. In the contemporary world where even marriage is now not
\nequated to procreation of children, the question that would arise is
\nwhether homosexuality and carnal intercourse between consenting
\nadults of opposite sex can be tagged as =against the order of nature\u2018.
\nIt is the freedom of choice of two consenting adults to perform sex for
\nprocreation or otherwise and if their choice is that of the latter, it
\ncannot be said to be against the order of nature. Therefore, sex, if
\nperformed differently, as per the choice of the consenting adults,
\n137
\ndoes not per se make it against the order of nature.
\n217. Section 377 criminalises even voluntary carnal intercourse not
\nonly between homosexuals but also between heterosexuals. The
\nmajor difference between the language of Section 377 and Section
\n375 is that of the element of absence consent which has been
\nelaborately incorporated in the seven descriptions contained in the
\nlatter part of Section 375 IPC. It is the absence of willful and informed
\nconsent embodied in the seven descriptions to Section 375 which
\nmakes the offence of rape criminal.
\n218. On the other hand, Section 377 IPC contains no such
\ndescriptions\/exceptions embodying the absence of willful and
\ninformed consent and criminalises even voluntary carnal intercourse
\nboth between homosexuals as well as between heterosexuals. While
\nsaying so, we gain strength and support from the fact that the
\nlegislature, in its wisdom, while enacting Section 375 IPC in its
\namended form after the Criminal Law (Amendment) Act, 2013, has
\nnot employed the words ?subject to any other provision of the IPC?.
\nThe implication of the absence of these words simply indicates that
\nSection 375 IPC which does not criminalize consensual carnal
\nintercourse between heterosexuals is not subject to Section 377 IPC.
\n138
\n219. Section 377, so far as it criminalises carnal intercourse
\nbetween heterosexuals is legally unsustainable in its present form for
\nthe simple reason that Section 375 IPC clearly stipulates that carnal
\nintercourse between a man and a woman with the willful and
\ninformed consent of the woman does not amount to rape and is not
\npenal.
\n220. Despite the Criminal Law (Amendment) Act, 2013 coming into
\nforce, by virtue of which Section 375 was amended, whereby the
\nwords =sexual intercourse\u2018 in Section 375 were replaced by four
\nelaborate clauses from (a) to (d) giving a wide definition to the
\noffence of rape, Section 377 IPC still remains in the statute book in
\nthe same form. Such an anomaly, if allowed to persist, may result in a
\nsituation wherein a heterosexual couple who indulges in carnal
\nintercourse with the willful and informed consent of each other may
\nbe held liable for the offence of unnatural sex under Section 377 IPC,
\ndespite the fact that such an act would not be rape within the
\ndefinition as provided under Section 375 IPC.
\n221. Drawing an analogy, if consensual carnal intercourse between
\na heterosexual couple does not amount to rape, it definitely should
\nnot be labelled and designated as unnatural offence under Section
\n139
\n377 IPC. If any proclivity amongst the heterosexual population
\ntowards consensual carnal intercourse has been allowed due to the
\nCriminal Law (Amendment) Act, 2013, such kind of proclivity amongst
\nany two persons including LGBT community cannot be treated as
\nuntenable so long as it is consensual and it is confined within their
\nmost private and intimate spaces.
\n222. There is another aspect which needs to be discussed, which is
\nwhether criminalisation of carnal intercourse under Section 377
\nserves any useful purpose under the prevalent criminal law.
\nDelineating on this aspect, the European Commission of Human
\nRights in Dudgeon (supra) opined thus:-
\n?The 1967 Act, which was introduced into Parliament
\nas a Private Member\u2018s Bill, was passed to give effect
\nto the recommendations concerning homosexuality
\nmade in 1957 in the report of the Departmental
\nCommittee on Homosexual Offences and Prostitution
\nestablished under the chairman ship of Sir John
\nWolfenden (the ?Wolfenden Committee? and
\n?Wolfenden report?). The Wolfenden Committee
\nregarded the function of the criminal law in this field as:
\n?to preserve public order and decency, to
\nprotect the citizen from what is offensive or
\ninjurious, and to provide sufficient safeguards
\nagainst exploitation and corruption of others,
\nparticularly those who are specially vulnerable
\nbecause they are young, weak in body or
\nmind, inexperienced, or in a state of special
\nphysical, official, or economic dependence?,
\n140
\nbut not
\n?to intervene in the private lives of citizens, or
\nto seek to enforce any particular pattern of
\nbehaviour, further than is necessary to carry
\nout the purposes we have outlined?.
\nThe Wolfenden Committee concluded that homosexual
\nbehaviour between consenting adults in private was
\npart of the ?realm of private morality and immorality
\nwhich is, in brief and crude terms, not the law\u2018s
\nbusiness? and should no longer be criminal?
\n[Underlining is ours]
\n223. At the very least, it can be said that criminalisation of
\nconsensual carnal intercourse, be it amongst homosexuals,
\nheterosexuals, bi-sexuals or transgenders, hardly serves any
\nlegitimate public purpose or interest. Per contra, we are inclined to
\nbelieve that if Section 377 remains in its present form in the statute
\nbook, it will allow the harassment and exploitation of the LGBT
\ncommunity to prevail. We must make it clear that freedom of choice
\ncannot be scuttled or abridged on the threat of criminal prosecution
\nand made paraplegic on the mercurial stance of majoritarian
\nperception.
\nP. The litmus test for survival of Section 377 IPC
\n224. Having discussed the various principles and concepts and
\nbearing in mind the sacrosanctity of the fundamental rights which
\n141
\nguides the constitutional courts, we shall now proceed to deal with
\nthe constitutionality of Section 377 IPC on the bedrock of the
\nprinciples enunciated in Articles 14, 19 and 21 of the Constitution.
\n225. It is axiomatic that the expression =life or personal liberty\u2018 in
\nArticle 21 embodies within itself a variety of rights. In Maneka
\nGandhi (supra), Bhagwati, J. (as he then was) observed:-
\n?The expression ‘personal liberty’ in Article 21 is of the
\nwidest amplitude and it covers a variety of rights which
\ngo to constitute the personal liberty of man and some
\nof them have been raised to the status of distinct
\nfundamental rights and given additional protection
\nunder Article 19…?
\n226. In Anuj Garg (supra), while dealing with the constitutional
\nvalidity of Section 30 of the Punjab Excise Act, 1914 prohibiting
\nemployment of ?any man under the age of 25 years? or ?any woman?,
\nthe Court, holding it ultra vires, ruled thus:-
\n?31. \u2026 It is their life; subject to constitutional, statutory
\nand social interdicts\u2014a citizen of India should be
\nallowed to live her life on her own terms.?
\nAnd again:-
\n?35. Privacy rights prescribe autonomy to choose
\nprofession whereas security concerns texture
\nmethodology of delivery of this assurance. But it is a
\nreasonable proposition that the measures to safeguard
\nsuch a guarantee of autonomy should not be so strong
\n142
\nthat the essence of the guarantee is lost. State
\nprotection must not translate into censorship.?
\n227. In Common Cause (A Regd. Society) (supra), the Court, in
\nthe context of right to dignity, observed:-
\n?Right to life and liberty as envisaged under Article 21
\nis meaningless unless it encompasses within its
\nsphere individual dignity and right to dignity includes
\nthe right to carry such functions and activities as would
\nconstitute the meaningful expression of the human
\nself.?
\n228. In Puttaswamy (supra), the right to privacy has been declared
\nto be a fundamental right by this Court as being a facet of life and
\npersonal liberty protected under Article 21 of the Constitution.
\n229. In view of the above authorities, we have no hesitation to say
\nthat Section 377 IPC, in its present form, abridges both human dignity
\nas well as the fundamental right to privacy and choice of the citizenry,
\nhowsoever small. As sexual orientation is an essential and innate
\nfacet of privacy, the right to privacy takes within its sweep the right of
\nevery individual including that of the LGBT to express their choices in
\nterms of sexual inclination without the fear of persecution or criminal
\nprosecution.
\n230. The sexual autonomy of an individual to choose his\/her sexual
\npartner is an important pillar and an insegregable facet of individual
\n143
\nliberty. When the liberty of even a single person of the society is
\nsmothered under some vague and archival stipulation that it is
\nagainst the order of nature or under the perception that the majority
\npopulation is peeved when such an individual exercises his\/her liberty
\ndespite the fact that the exercise of such liberty is within the confines
\nof his\/her private space, then the signature of life melts and living
\nbecomes a bare subsistence and resultantly, the fundamental right of
\nliberty of such an individual is abridged.
\n231. While saying so, we are absolutely conscious of the fact that
\nthe citizenry may be deprived of their right to life and personal liberty
\nif the conditions laid down in Article 21 are fulfilled and if, at the same
\ntime, the procedure established by law as laid down in Maneka
\nGandhi (supra) is satisfied. Article 21 requires that for depriving a
\nperson of his right to life and personal liberty, there has to be a law
\nand the said law must prescribe a fair procedure. The seminal point
\nis to see whether Section 377 withstands the sanctity of dignity of an
\nindividual, expression of choice, paramount concept of life and
\nwhether it allows an individual to lead to a life that one\u2018s natural
\norientation commands. That apart, more importantly, the question is
\nwhether such a gender-neutral offence, with the efflux of time, should
\n144
\nbe allowed to remain in the statute book especially when there is
\nconsent and such consent elevates the status of bodily autonomy.
\nHence, the provision has to be tested on the principles evolved under
\nArticles 14, 19 and 21 of the Constitution.
\n232. In Sunil Batra v. Delhi Administration and others85
\n, Krishna
\nIyer, J. opined that what is punitively outrageous, scandalizingly
\nunusual or cruel and rehabilitatively counterproductive, is unarguably
\nunreasonable and arbitrary and is shot down by Article 14 and 19 and
\nif inflicted with procedural unfairness, falls foul of Article 21.
\n233. We, first, must test the validity of Section 377 IPC on the anvil
\nof Article 14 of the Constitution. What Article 14 propounds is that =all
\nlike should be treated alike\u2018. In other words, it implies equal treatment
\nfor all equals. Though the legislature is fully empowered to enact laws
\napplicable to a particular class, as in the case at hand in which
\nSection 377 applies to citizens who indulge in carnal intercourse, yet
\nthe classification, including the one made under Section 377 IPC, has
\nto satisfy the twin conditions to the effect that the classification must
\nbe founded on an intelligible differentia and the said differentia must<\/p>\n

85AIR 1978 SC 1675 : (1978) 4 SCC 494
\n145
\nhave a rational nexus with the object sought to be achieved by the
\nprovision, that is, Section 377 IPC.
\n234. In M. Nagaraj and others v. Union of India and others86, it
\nhas been held:-
\n?The gravamen of Article 14 is equality of treatment.
\nArticle 14 confers a personal right by enacting a
\nprohibition which is absolute. By judicial decisions, the
\ndoctrine of classification is read into Article 14. Equality
\nof treatment under Article 14 is an objective test. It is
\nnot the test of intention. Therefore, the basic principle
\nunderlying Article 14 is that the law must operate
\nequally on all persons under like circumstances.?
\n235. In E.P. Royappa v. State of Tamil Nadu and another87
\n, this
\nCourt observed that equality is a dynamic concept with many aspects
\nand dimensions and it cannot be “cribbed, cabined and confined”
\nwithin traditional and doctrinaire limits. It was further held that equality
\nis antithetic to arbitrariness, for equality and arbitrariness are sworn
\nenemies; one belongs to the rule of law in a republic while the other,
\nto the whim and caprice of an absolute monarch.
\n236. In Budhan Choudhry v. The State of Bihar 88 , while
\ndelineating on the concept of reasonable classification, the Court
\nobserved thus:-<\/p>\n

86AIR 2007 SC 71 : (2006) 8 SCC 212
\n87AIR 1974 SC 555 : (1974) 4 SCC 3
\n88 AIR 1955 SC 191
\n146
\n?It is now well-established that while article 14 forbids
\nclass legislation, it does not forbid reasonable
\nclassification for the purposes of legislation. In order,
\nhowever, to pass the test of permissible classification
\ntwo conditions must be fulfilled, namely, (i) that the
\nclassification must be founded on an intelligible
\ndifferentia which distinguishes persons or things that
\nare grouped together from others left out of the group
\nand (ii) that differentia must have a rational relation to
\nthe object sought to be achieved by the statute in
\nquestion. The classification may be founded on
\ndifferent bases; namely, geographical, or according to
\nobjects or occupations or the like. What is necessary is
\nthat there must be a nexus between the basis of
\nclassification and the object of the Act under
\nconsideration. It is also well established by the
\ndecisions of this Court that article 14 condemns
\ndiscrimination not only by a substantive law but also by
\na law of procedure.?
\n237. A perusal of Section 377 IPC reveals that it classifies and
\npenalizes persons who indulge in carnal intercourse with the object to
\nprotect women and children from being subjected to carnal
\nintercourse. That being so, now it is to be ascertained whether this
\nclassification has a reasonable nexus with the object sought to be
\nachieved. The answer is in the negative as the non-consensual acts
\nwhich have been criminalized by virtue of Section 377 IPC have
\nalready been designated as penal offences under Section 375 IPC
\nand under the POCSO Act. Per contra, the presence of this Section
\nin its present form has resulted in a distasteful and objectionable
\n147
\ncollateral effect whereby even =consensual acts\u2018, which are neither
\nharmful to children nor women and are performed by a certain class
\nof people (LGBTs) owning to some inherent characteristics defined
\nby their identity and individuality, have been woefully targeted. This
\ndiscrimination and unequal treatment meted out to the LGBT
\ncommunity as a separate class of citizens is unconstitutional for being
\nviolative of Article 14 of the Constitution.
\n238. In Shayara Bano (supra), the Court observed that manifest
\narbitrariness of a provision of law can also be a ground for declaring a
\nlaw as unconstitutional. Opining so, the Court observed thus:-
\n?The test of manifest arbitrariness, therefore, as laid
\ndown in the aforesaid judgments would apply to
\ninvalidate legislation as well as subordinate legislation
\nunder Article 14. Manifest arbitrariness, therefore, must
\nbe something done by the legislature capriciously,
\nirrationally and\/or without adequate determining
\nprinciple. Also, when something is done which is
\nexcessive and disproportionate, such legislation would
\nbe manifestly arbitrary. We are, therefore, of the view
\nthat arbitrariness in the sense of manifest arbitrariness
\nas pointed out by us above would apply to negate
\nlegislation as well under Article 14.?
\n239. In view of the law laid down in Shayara Bano (supra) and
\ngiven the fact that Section 377 criminalises even consensual sexual
\nacts between adults, it fails to make a distinction between
\nconsensual and non-consensual sexual acts between competent
\n148
\nadults. Further, Section 377 IPC fails to take into account that
\nconsensual sexual acts between adults in private space are neither
\nharmful nor contagious to the society. On the contrary, Section 377
\ntrenches a discordant note in respect of the liberty of persons
\nbelonging to the LGBT community by subjecting them to societal
\npariah and dereliction. Needless to say, the Section also interferes
\nwith consensual acts of competent adults in private space. Sexual
\nacts cannot be viewed from the lens of social morality or that of
\ntraditional precepts wherein sexual acts were considered only for the
\npurpose of procreation. This being the case, Section 377 IPC, so
\nlong as it criminalises consensual sexual acts of whatever nature
\nbetween competent adults, is manifestly arbitrary.
\n240. The LGBT community possess the same human, fundamental
\nand constitutional rights as other citizens do since these rights inhere
\nin individuals as natural and human rights. We must remember that
\nequality is the edifice on which the entire non-discrimination
\njurisprudence rests. Respect for individual choice is the very essence
\nof liberty under law and, thus, criminalizing carnal intercourse under
\nSection 377 IPC is irrational, indefensible and manifestly arbitrary. It
\nis true that the principle of choice can never be absolute under a
\n149
\nliberal Constitution and the law restricts one individual\u2018s choice to
\nprevent harm or injury to others. However, the organisation of
\nintimate relations is a matter of complete personal choice especially
\nbetween consenting adults. It is a vital personal right falling within the
\nprivate protective sphere and realm of individual choice and
\nautonomy. Such progressive proclivity is rooted in the constitutional
\nstructure and is an inextricable part of human nature.
\n241. In the adverting situation, we must also examine whether
\nSection 377, in its present form, stands the test of Article 19 of the
\nConstitution in the sense of whether it is unreasonable and, therefore,
\nviolative of Article 19. In Chintaman Rao v. State of Madhya
\nPradesh89
\n, this Court, in the context of reasonable restrictions under
\nArticle 19, opined thus:-
\n“The phrase “reasonable restriction” connotes that the
\nlimitation imposed on a person in enjoyment of the
\nright should not be arbitrary or of an excessive nature,
\nbeyond what is required in the interests of the public.
\nThe word “reasonable” implies intelligent care and
\ndeliberation, that is, the choice of a course which
\nreason dictates. Legislation which arbitrarily or
\nexcessively invades the right cannot be said to contain
\nthe quality of reasonableness and unless it strikes a
\nproper balance between the freedom guaranteed in
\narticle 19(1)(g) and the social control permitted by<\/p>\n

89AIR 1951 SC 118
\n150
\nclause (6) of article 19, it must be held to be wanting in
\nthat quality.”
\n242. In S. Rangarajan v. P. Jagjivan Ram and others90, the Court
\nobserved, though in a different context, thus:-
\n” … Our commitment of freedom of expression
\ndemands that it cannot be suppressed unless the
\nsituations created by allowing the freedom are
\npressing and the community interest is endangered.
\nThe anticipated danger should not be remote,
\nconjectural or far-fetched. It should have proximate
\nand direct nexus with the expression.?
\n243. In S. Khushboo (supra), this Court, while observing that
\n=morality and decency\u2018 on the basis of which reasonable restrictions
\ncan be imposed on the rights guaranteed under Article 19 should not
\nbe amplified beyond a rational and logical limit, ruled that even
\nthough the constitutional freedom of speech and expression is not
\nabsolute and can be subjected to reasonable restrictions on grounds
\nsuch as `decency and morality’ among others, yet it is necessary to
\ntolerate unpopular views in the socio-cultural space.
\n244. In the case of Shreya Singhal v. Union of India91
\n, this Court,
\nwhile striking down Section 66A of the Information Technology Act,
\n2000, had observed that when a provision is vague and overboard in<\/p>\n

90(1989) 2 SCC 574
\n91(2015) 5 SCC 1
\n151
\nthe sense that it criminalises protected speech and speech of
\ninnocent nature, resultantly, it has a chilling effect and is liable to be
\nstruck down. The Court opined:-
\n?We, therefore, hold that the Section is unconstitutional
\nalso on the ground that it takes within its sweep
\nprotected speech and speech that is innocent in nature
\nand is liable therefore to be used in such a way as to
\nhave a chilling effect on free speech and would,
\ntherefore, have to be struck down on the ground of
\noverbreadth.?
\n245. In the obtaining situation, we need to check whether public
\norder, decency and morality as grounds to limit the fundamental right
\nof expression including choice can be accepted as reasonable
\nrestrictions to uphold the validity of Section 377 IPC. We are of the
\nconscious view that Section 377 IPC takes within its fold private acts
\nof adults including the LGBT community which are not only
\nconsensual but are also innocent, as such acts neither cause
\ndisturbance to the public order nor are they injurious to public
\ndecency or morality. The law is et domus sua cuique est tutissimum
\nrefugium \u2013 A man\u2018s house is his castle. Sir Edward Coke92 said:-
\n?The house of everyone is to him as his castle and
\nfortress, as well for his defence against injury and
\nviolence as for his repose.?<\/p>\n

92Semayne\u2019s Case, 77 Eng. Rep. 194, 195; 5 Co. Rep. 91, 195 (K.B. 1604)
\n152
\n246. That apart, any display of affection amongst the members of
\nthe LGBT community towards their partners in the public so long as it
\ndoes not amount to indecency or has the potentiality to disturb public
\norder cannot be bogged down by majority perception. Section 377
\nIPC amounts to unreasonable restriction as it makes carnal
\nintercourse between consenting adults within their castle a criminal
\noffence which is manifestly not only overboard and vague but also
\nhas a chilling effect on an individual\u2018s freedom of choice.
\n247. In view of the test laid down in the aforesaid authorities, Section
\n377 IPC does not meet the criteria of proportionality and is violative of
\nthe fundamental right of freedom of expression including the right to
\nchoose a sexual partner. Section 377 IPC also assumes the
\ncharacteristic of unreasonableness, for it becomes a weapon in the
\nhands of the majority to seclude, exploit and harass the LGBT
\ncommunity. It shrouds the lives of the LGBT community in criminality
\nand constant fear mars their joy of life. They constantly face social
\nprejudice, disdain and are subjected to the shame of being their very
\nnatural selves. Thus, an archaic law which is incompatible with
\nconstitutional values cannot be allowed to be preserved.
\n248. Bigoted and homophobic attitudes dehumanize the
\n153
\ntransgenders by denying them their dignity, personhood and above
\nall, their basic human rights. It is important to realize that identity and
\nsexual orientation cannot be silenced by oppression. Liberty, as the
\nlinchpin of our constitutional values, enables individuals to define and
\nexpress their identity and individual identity has to be acknowledged
\nand respected.
\n249. The very existence of Section 377 IPC criminalising
\ntransgenders casts a great stigma on an already oppressed and
\ndiscriminated class of people. This stigma, oppression and prejudice
\nhas to be eradicated and the transgenders have to progress from
\ntheir narrow claustrophobic spaces of mere survival in hiding with
\ntheir isolation and fears to enjoying the richness of living out of the
\nshadows with full realization of their potential and equal opportunities
\nin all walks of life. The ideals and objectives enshrined in our
\nbenevolent Constitution can be achieved only when each and every
\nindividual is empowered and enabled to participate in the social
\nmainstream and in the journey towards achieving equality in all
\nspheres, equality of opportunities in all walks of life, equal freedoms
\nand rights and, above all, equitable justice. This can be achieved
\nonly by inclusion of all and exclusion of none from the mainstream.
\n154
\n250. We must realize that different hues and colours together make
\nthe painting of humanity beautiful and this beauty is the essence of
\nhumanity. We need to respect the strength of our diversity so as to
\nsustain our unity as a cohesive unit of free citizens by fostering
\ntolerance and respect for each others\u2018 rights thereby progressing
\ntowards harmonious and peaceful co-existence in the supreme bond
\nof humanity. Attitudes and mentality have to change to accept the
\ndistinct identity of individuals and respect them for who they are
\nrather than compelling them to =become\u2018 who they are not. All human
\nbeings possess the equal right to be themselves instead of
\ntransitioning or conditioning themselves as per the perceived
\ndogmatic notions of a group of people. To change the societal bias
\nand root out the weed, it is the foremost duty of each one of us to
\n?stand up and speak up? against the slightest form of discrimination
\nagainst transgenders that we come across. Let us move from
\ndarkness to light, from bigotry to tolerance and from the winter of
\nmere survival to the spring of life ? as the herald of a New India ? to
\na more inclusive society.
\n251. It is through times of grave disappointment, denunciation,
\nadversity, grief, injustice and despair that the transgenders have
\n155
\nstood firm with their formidable spirit, inspired commitment, strong
\ndetermination and infinite hope and belief that has made them look
\nfor the rainbow in every cloud and lead the way to a future that would
\nbe the harbinger of liberation and emancipation from a certain
\nbondage indescribable in words \u2013 towards the basic recognition of
\ndignity and humanity of all and towards leading a life without pretence
\neschewing duality and ambivalence. It is their momentous ?walk to
\nfreedom? and journey to a constitutional ethos of dignity, equality and
\nliberty and this freedom can only be fulfilled in its truest sense when
\neach of us realize that the LGBT community possess equal rights as
\nany other citizen in the country under the magnificent charter of rights
\n\u2013 our Constitution.
\n252. Thus analysed, Section 377 IPC, so far as it penalizes any
\nconsensual sexual activity between two adults, be it homosexuals
\n(man and a man), heterosexuals (man and a woman) and lesbians
\n(woman and a woman), cannot be regarded as constitutional.
\nHowever, if anyone, by which we mean both a man and a woman,
\nengages in any kind of sexual activity with an animal, the said aspect
\nof Section 377 IPC is constitutional and it shall remain a penal
\noffence under Section 377 IPC. Any act of the description covered
\n156
\nunder Section 377 IPC done between the individuals without the
\nconsent of any one of them would invite penal liability under Section
\n377 IPC.
\nQ. Conclusions
\n253. In view of the aforesaid analysis, we record our conclusions in
\nseriatim:-
\n(i) The eminence of identity which has been luculently stated in
\nthe NALSA case very aptly connects human rights and the
\nconstitutional guarantee of right to life and liberty with dignity.
\nWith the same spirit, we must recognize that the concept of
\nidentity which has a constitutional tenability cannot be
\npigeon-holed singularly to one\u2018s orientation as it may keep
\nthe individual choice at bay. At the core of the concept of
\nidentity lies self-determination, realization of one\u2018s own
\nabilities visualizing the opportunities and rejection of external
\nviews with a clear conscience that is in accord with
\nconstitutional norms and values or principles that are, to put
\nin a capsule, ?constitutionally permissible?.
\n(ii) In Suresh Koushal (supra), this Court overturned the
\ndecision of the Delhi High Court in Naz Foundation (supra)
\n157
\nthereby upholding the constitutionality of Section 377 IPC
\nand stating a ground that the LGBT community comprised
\nonly a minuscule fraction of the total population and that the
\nmere fact that the said Section was being misused is not a
\nreflection of the vires of the Section. Such a view is
\nconstitutionally impermissible.
\n(iii) Our Constitution is a living and organic document capable of
\nexpansion with the changing needs and demands of the
\nsociety. The Courts must commemorate that it is the
\nConstitution and its golden principles to which they bear their
\nforemost allegiance and they must robe themselves with the
\narmoury of progressive and pragmatic interpretation to
\ncombat the evils of inequality and injustice that try to creep
\ninto the society. The role of the Courts gains more
\nimportance when the rights which are affected belong to a
\nclass of persons or a minority group who have been
\ndeprived of even their basic rights since time immemorial.
\n(iv) The primary objective of having a constitutional democracy
\nis to transform the society progressively and inclusively. Our
\nConstitution has been perceived to be transformative in the
\n158
\nsense that the interpretation of its provisions should not be
\nlimited to the mere literal meaning of its words; instead they
\nought to be given a meaningful construction which is
\nreflective of their intent and purpose in consonance with the
\nchanging times. Transformative constitutionalism not only
\nincludes within its wide periphery the recognition of the rights
\nand dignity of individuals but also propagates the fostering
\nand development of an atmosphere wherein every individual
\nis bestowed with adequate opportunities to develop socially,
\neconomically and politically. Discrimination of any kind
\nstrikes at the very core of any democratic society. When
\nguided by transformative constitutionalism, the society is
\ndissuaded from indulging in any form of discrimination so
\nthat the nation is guided towards a resplendent future.
\n(v) Constitutional morality embraces within its sphere several
\nvirtues, foremost of them being the espousal of a pluralistic
\nand inclusive society. The concept of constitutional morality
\nurges the organs of the State, including the Judiciary, to
\npreserve the heterogeneous nature of the society and to
\ncurb any attempt by the majority to usurp the rights and
\n159
\nfreedoms of a smaller or minuscule section of the populace.
\nConstitutional morality cannot be martyred at the altar of
\nsocial morality and it is only constitutional morality that can
\nbe allowed to permeate into the Rule of Law. The veil of
\nsocial morality cannot be used to violate fundamental rights
\nof even a single individual, for the foundation of
\nconstitutional morality rests upon the recognition of diversity
\nthat pervades the society.
\n(vi) The right to live with dignity has been recognized as a
\nhuman right on the international front and by number of
\nprecedents of this Court and, therefore, the constitutional
\ncourts must strive to protect the dignity of every individual,
\nfor without the right to dignity, every other right would be
\nrendered meaningless. Dignity is an inseparable facet of
\nevery individual that invites reciprocative respect from others
\nto every aspect of an individual which he\/she perceives as
\nan essential attribute of his\/her individuality, be it an
\norientation or an optional expression of choice. The
\nConstitution has ladened the judiciary with the very important
\nduty to protect and ensure the right of every individual
\n160
\nincluding the right to express and choose without any
\nimpediments so as to enable an individual to fully realize
\nhis\/her fundamental right to live with dignity.
\n(vii) Sexual orientation is one of the many biological phenomena
\nwhich is natural and inherent in an individual and is
\ncontrolled by neurological and biological factors. The science
\nof sexuality has theorized that an individual exerts little or no
\ncontrol over who he\/she gets attracted to. Any discrimination
\non the basis of one\u2018s sexual orientation would entail a
\nviolation of the fundamental right of freedom of expression.
\n(viii) After the privacy judgment in Puttaswamy (supra), the right
\nto privacy has been raised to the pedestal of a fundamental
\nright. The reasoning in Suresh Koushal (supra), that only a
\nminuscule fraction of the total population comprises of LGBT
\ncommunity and that the existence of Section 377 IPC
\nabridges the fundamental rights of a very minuscule
\npercentage of the total populace, is found to be a discordant
\nnote. The said reasoning in Suresh Koushal (supra), in our
\nopinion, is fallacious, for the framers of our Constitution
\ncould have never intended that the fundamental rights shall
\n161
\nbe extended for the benefit of the majority only and that the
\nCourts ought to interfere only when the fundamental rights of
\na large percentage of the total populace is affected. In fact,
\nthe said view would be completely against the constitutional
\nethos, for the language employed in Part III of the
\nConstitution as well as the intention of the framers of our
\nConstitution mandates that the Courts must step in
\nwhenever there is a violation of the fundamental rights, even
\nif the right\/s of a single individual is\/are in peril.
\n(ix) There is a manifest ascendance of rights under the
\nConstitution which paves the way for the doctrine of
\nprogressive realization of rights as such rights evolve with
\nthe evolution of the society. This doctrine, as a natural
\ncorollary, gives birth to the doctrine of non-retrogression, as
\nper which there must not be atavism of constitutional rights.
\nIn the light of the same, if we were to accept the view in
\nSuresh Koushal (supra), it would tantamount to a
\nretrograde step in the direction of the progressive
\ninterpretation of the Constitution and denial of progressive
\nrealization of rights.
\n162
\n(x) Autonomy is individualistic. Under the autonomy principle,
\nthe individual has sovereignty over his\/her body. He\/she can
\nsurrender his\/her autonomy wilfully to another individual and
\ntheir intimacy in privacy is a matter of their choice. Such
\nconcept of identity is not only sacred but is also in
\nrecognition of the quintessential facet of humanity in a
\nperson\u2018s nature. The autonomy establishes identity and the
\nsaid identity, in the ultimate eventuate, becomes a part of
\ndignity in an individual.
\n(xi) A cursory reading of both Sections 375 IPC and 377 IPC
\nreveals that although the former Section gives due
\nrecognition to the absence of =wilful and informed consent\u2018
\nfor an act to be termed as rape, per contra, Section 377
\ndoes not contain any such qualification embodying in itself
\nthe absence of =wilful and informed consent\u2018 to criminalize
\ncarnal intercourse which consequently results in
\ncriminalizing even voluntary carnal intercourse between
\nhomosexuals, heterosexuals, bisexuals and transgenders.
\nSection 375 IPC, after the coming into force of the Criminal
\nLaw (Amendment) Act, 2013, has not used the words
\n163
\n=subject to any other provision of the IPC\u2018. This indicates that
\nSection 375 IPC is not subject to Section 377 IPC.
\n(xii) The expression =against the order of nature\u2018 has neither
\nbeen defined in Section 377 IPC nor in any other provision of
\nthe IPC. The connotation given to the expression by various
\njudicial pronouncements includes all sexual acts which are
\nnot intended for the purpose of procreation. Therefore, if
\ncoitus is not performed for procreation only, it does not per
\nse make it =against the order of nature\u2018.
\n(xiii) Section 377 IPC, in its present form, being violative of the
\nright to dignity and the right to privacy, has to be tested, both,
\non the pedestal of Articles 14 and 19 of the Constitution as
\nper the law laid down in Maneka Gandhi (supra) and other
\nlater authorities.
\n(xiv) An examination of Section 377 IPC on the anvil of Article 14
\nof the Constitution reveals that the classification adopted
\nunder the said Section has no reasonable nexus with its
\nobject as other penal provisions such as Section 375 IPC
\nand the POCSO Act already penalize non-consensual carnal
\nintercourse. Per contra, Section 377 IPC in its present form
\n164
\nhas resulted in an unwanted collateral effect whereby even
\n=consensual sexual acts\u2018, which are neither harmful to
\nchildren nor women, by the LGBTs have been woefully
\ntargeted thereby resulting in discrimination and unequal
\ntreatment to the LGBT community and is, thus, violative of
\nArticle 14 of the Constitution.
\n(xv) Section 377 IPC, so far as it criminalises even consensual
\nsexual acts between competent adults, fails to make a
\ndistinction between non-consensual and consensual sexual
\nacts of competent adults in private space which are neither
\nharmful nor contagious to the society. Section 377 IPC
\nsubjects the LGBT community to societal pariah and
\ndereliction and is, therefore, manifestly arbitrary, for it has
\nbecome an odious weapon for the harassment of the LGBT
\ncommunity by subjecting them to discrimination and unequal
\ntreatment. Therefore, in view of the law laid down in
\nShayara Bano (supra), Section 377 IPC is liable to be
\npartially struck down for being violative of Article 14 of the
\nConstitution.
\n165
\n(xvi) An examination of Section 377 IPC on the anvil of Article
\n19(1)(a) reveals that it amounts to an unreasonable
\nrestriction, for public decency and morality cannot be
\namplified beyond a rational or logical limit and cannot be
\naccepted as reasonable grounds for curbing the fundamental
\nrights of freedom of expression and choice of the LGBT
\ncommunity. Consensual carnal intercourse among adults, be
\nit homosexual or heterosexual, in private space, does not in
\nany way harm the public decency or morality. Therefore,
\nSection 377 IPC in its present form violates Article 19(1)(a)
\nof the Constitution.
\n(xvii) Ergo, Section 377 IPC, so far as it penalizes any consensual
\nsexual relationship between two adults, be it homosexuals
\n(man and a man), heterosexuals (man and a woman) or
\nlesbians (woman and a woman), cannot be regarded as
\nconstitutional. However, if anyone, by which we mean both
\na man and a woman, engages in any kind of sexual activity
\nwith an animal, the said aspect of Section 377 is
\nconstitutional and it shall remain a penal offence under
\nSection 377 IPC. Any act of the description covered under
\n166
\nSection 377 IPC done between two individuals without the
\nconsent of any one of them would invite penal liability under
\nSection 377 IPC.
\n(xviii) The decision in Suresh Koushal (supra), not being in
\nconsonance with what we have stated hereinabove, is
\noverruled.
\n254. The Writ Petitions are, accordingly, disposed of. There shall be
\nno order as to costs.
\n\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026.CJI
\n(Dipak Misra)
\n\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026.\u2026..J.
\n(A.M. Khanwilkar)
\nNew Delhi;
\nSeptember 6, 2018
\n1
\nREPORTABLE
\nIN THE SUPREME COURT OF INDIA
\nCRIMINAL\/CIVIL ORIGINAL JURISDICTION
\nWRIT PETITION (CRIMINAL) NO. 76 OF 2016
\nNAVTEJ SINGH JOHAR & ORS. \u2026PETITIONERS
\nVERSUS
\nUNION OF INDIA \u2026RESPONDENT
\nWITH
\nWRIT PETITION (CIVIL) NO.572 OF 2016
\nWITH
\nWRIT PETITION (CRIMINAL) NO.88 OF 2018
\nWITH
\nWRIT PETITION (CRIMINAL) NO.100 OF 2018
\nWITH
\nWRIT PETITION (CRIMINAL) NO.101 OF 2018
\nWITH
\nWRIT PETITION (CRIMINAL) NO.121 OF 2018
\n2
\nJ U D G M E N T
\nR.F. Nariman, J.
\n1. \u201cThe love that dare not speak its name\u201d is how the love
\nthat exists between same-sex couples was described by Lord
\nAlfred Douglas, the lover of Oscar Wilde, in his poem Two
\nLoves published in 1894 in Victorian England.
\n2. The word \u201chomosexual\u201d is not derived from \u201chomo\u201d
\nmeaning man, but from \u201chomo\u201d meaning same.
\n1 The word
\n\u201clesbian\u201d is derived from the name of the Greek island of
\nLesbos, where it was rumored that female same-sex couples
\nproliferated. What we have before us is a relook at the
\nconstitutional validity of Section 377 of the Indian Penal Code
\nwhich was enacted in the year 1860 (over 150 years ago)
\ninsofar as it criminalises consensual sex between adult samesex
\ncouples.
\n3. These cases have had a chequered history. Writ petitions
\nwere filed before the Delhi High Court challenging the<\/p>\n

1 Homo in Greek means \u2018same\u2019 \u2013 the Nicene creed that was accepted by the Catholic Church after the
\nCouncil at Nicaea, held by Emperor Constantine in 325 AD, was formulated with the word \u2018homo\u2019 at the
\nforefront. When coupled with \u2018sios\u2019 it means same substance, meaning thereby that Jesus Christ was
\ndivine as he was of the same substance as God.
\n3
\nconstitutional validity of Section 377 of the Penal Code insofar
\nas it criminalizes consensual sex between adult same-sex
\ncouples within the confines of their homes or other private
\nplaces. A Division Bench of the Delhi High Court in Naz
\nFoundation v. Government of NCT of Delhi (\u201cNaz
\nFoundation\u201d), 111 DRJ 1 (2009), after considering wideranging
\narguments on both sides, finally upheld the plea of the
\npetitioners in the following words:
\n\u201c132. We declare that Section 377 IPC, insofar it
\ncriminalises consensual sexual acts of adults in
\nprivate, is violative of Articles 21, 14 and 15 of the
\nConstitution. The provisions of Section 377 IPC will
\ncontinue to govern non-consensual penile nonvaginal
\nsex and penile non-vaginal sex involving
\nminors. By \u2018adult\u2019 we mean everyone who is 18
\nyears of age and above. A person below 18 would
\nbe presumed not to be able to consent to a sexual
\nact. This clarification will hold till, of course,
\nParliament chooses to amend the law to effectuate
\nthe recommendation of the Law Commission of
\nIndia in its 172nd Report which we believe removes
\na great deal of confusion. Secondly, we clarify that
\nour judgment will not result in the re-opening of
\ncriminal cases involving Section 377 IPC that have
\nalready attained finality.
\nWe allow the writ petition in the above terms.\u201d
\n4. Despite the fact that no appeal was filed by the Union of
\nIndia, in appeals filed by private individuals and groups, the
\n4
\nSupreme Court in Suresh Kumar Koushal and Anr. v. Naz
\nFoundation and Ors. (\u201cSuresh Kumar Koushal\u201d), (2014) 1
\nSCC 1, reversed the judgment of the High Court. Reviews that
\nwere filed against the aforesaid judgment, including by the
\nUnion of India, were dismissed by this Court.
\n5. Meanwhile, the Supreme Court delivered an important
\njudgment reported as National Legal Services Authority v.
\nUnion of India (\u201cNALSA\u201d), (2014) 5 SCC 438, which
\nconstrued Articles 15 and 21 of the Constitution of India as
\nincluding the right to gender identity and sexual orientation, and
\nheld that just like men and women, transgenders could enjoy all
\nthe fundamental rights that other citizens of India could enjoy.
\nThereafter, in Justice K.S. Puttaswamy (Retd.) and Anr. v.
\nUnion of India and Ors. (\u201cPuttaswamy\u201d), (2017) 10 SCC 1, a
\nnine-Judge Bench of this Court unanimously declared that there
\nis a fundamental right of privacy which enured in favour of all
\npersons, the concomitant of which was that the right to make
\nchoices that were fundamental to a person\u2019s way of living could
\nnot be interfered with by the State without compelling necessity
\nand\/or harm caused to other individuals.
\n5
\n6. The impetus of this decision is what led to a three-Judge
\nBench order of 08.01.2018, which referred to the judgment of
\nPuttaswamy (supra) and other arguments made by Shri Datar,
\nto refer the correctness of Suresh Kumar Koushal\u2019s case
\n(supra) to a larger Bench. This is how the matter has come to
\nus.
\nHistory of Section 377
\n7. In the western world, given the fact that both Judaism and
\nChristianity outlawed sexual intercourse by same-sex couples,
\noffences relating thereto were decided by ecclesiastical courts.
\nIt is only as a result of Henry VIII of England breaking with the
\nRoman Catholic Church that legislation in his reign, namely the
\nBuggery Act of 1533, prohibited \u201cthe detestable and
\nabominable offence\u201d of buggery committed with mankind or
\nbeast.
\n8. Between 1806, when reliable figures begin, and 1900,
\n8,921 men were indicted for sodomy, gross indecency or other
\n\u2018unnatural misdemeanours\u2019 in England and Wales. Ninety men
\nper year were, on average, indicted for homosexual offences in
\n6
\nthis period. About a third as many were arrested and their case
\nconsidered by magistrates. Most of the men convicted were
\nimprisoned, but between 1806 and 1861, when the death
\npenalty for sodomy was finally abolished, 404 men were
\nsentenced to death. Fifty-six were executed, and the remainder
\nwere either imprisoned or transported to Australia for life. Two
\nsuch men, James Pratt and John Smith, were the last to be
\nexecuted in Britain for sodomy on 27 November, 1835.
\n9. During the reign of the East India Company in India,
\nParliament established what was called the Indian Law
\nCommission. In 1833, Thomas Babington Macaulay was
\nappointed to chair the Commission.
\n2<\/p>\n

10. The Indian Law Commission, with Macaulay as its head,
\nsubmitted the Draft Penal Code to the Government of India on
\n14.10.1837. This draft consisted of 488 clauses. After the First
\nReport submitted on 23.07.1846, the Second Report of Her
\nMajesty\u2019s Commissioners for revising and consolidating the law
\nwas submitted by C.H. Cameron and D. Eliott on 24.06.1847.<\/p>\n

2 Thomas Babington Macaulay was a Whig liberal who was a precocious genius. Apart from having a
\nphotographic memory with which he astounded persons around him, one incident which took place when
\nMacaulay was only 5 years old told the world what was in store for it when Macaulay would reach
\nadulthood. A lady dropped some hot coffee on the five-year old child and expressed great sorrow for
\ndoing so. The child riposted, after letting out a scream, \u201cMadam, the agony has abated\u201d.
\n7
\nThese Commissioners concluded that the Draft Penal Code
\nwas sufficiently complete, and, with slight modifications, fit to be
\nacted upon. The revised edition of the Penal Code was then
\nforwarded to the Judges of the Supreme Court at Calcutta on
\n30.05.1851, and also to the Judges of the Sudder Court at
\nCalcutta.
\n11. The revised edition of the Penal Code as prepared by Mr.
\nBethune, the Legislative member of the Legislative Council of
\nIndia, together with the views of the Chief Justice and Mr.
\nJustice Buller of the Supreme Court at Calcutta, as well as
\nthose of Mr. Justice Colvile were sent to the Company in
\nLondon. The Court of Directors in London were anxious to see
\nthe Penal Code enacted as early as possible. They, therefore,
\nconstituted a Council in which Sir Barnes Peacock was made
\nthe fourth member.
\n12. This Council or Committee prepared a revised Penal
\nCode which was then referred to a Select Committee in 1857.
\nGiven the Indian Mutiny of 1857, the Code was passed soon
\nthereafter in October, 1860 and brought into force on
\n01.01.1862. Sir James Fitzjames Stephen proclaimed that:
\n8
\n\u201cThe Indian Penal Code is to the English criminal
\nlaw what a manufactured article ready for use is to
\nthe materials out of which it is made. It is to the
\nFrench Penal Code and, I may add, to the North
\nGermany Code of 1871, what a finished picture is to
\na sketch. It is far simpler, and much better
\nexpressed, than Livingston\u2019s Code for Louisiana;
\nand its practical success has been complete\u201d.
\n13. He further described the Penal Code as:-
\n\u201cthe criminal law of England freed from all
\ntechnicalities and superfluities, systematically
\narranged and modified in some few particulars (they
\nare surprisingly few), to suit circumstances of British
\nIndia.\u201d
\n14. According to Lord Macaulay, a good Code should have
\nthe qualities of precision and comprehensibility. In a letter to
\nLord Auckland, the Governor General of India in Council, which
\naccompanied his draft Penal Code, he stated:
\n\u201cThere are two things which a legislator should
\nalways have in view while he is framing laws: the
\none is that they should be as far as possible
\nprecise; the other that they should be easily
\nunderstood. That a law, and especially a penal law,
\nshould be drawn in words which convey no meaning
\nto the people who are to obey it, is an evil. On the
\nother hand, a loosely worded law is no law, and to
\nwhatever extent a legislature uses vague
\nexpressions, to that extent it abdicates its functions,
\nand resigns the power of making law to the Courts
\nof Justice.\u201d
\n9
\n15. Stung to the quick, when criticized as to the delay in
\nbringing out the Code, he observed in a Minute to Lord
\nAuckland as follows:
\n\u201c\u2026when I remember the slow progress of law
\nreforms at home and when I consider that our Code
\ndecides hundreds of questions\u2026 every one of which
\nif stirred in England would give occasion to
\nvoluminous controversy and to many animated
\ndebates, I must acknowledge that I am inclined to
\nfear that we have been guilty rather of precipitation
\nthan of delay.\u201d
\n16. Earlier, he had described the core objective of his project
\nin his 04.06.1835 Minute to the Council which could be
\nparaphrased as follows:-
\nIt should be more than a mere digest of existing
\nlaws, covering all contingencies, and \u2018nothing that is
\nnot in the Code ought to be law\u2019.
\nIt should suppress crime with the least infliction of
\nsuffering and allow for the ascertaining of the truth
\nat the smallest possible cost of time and money.
\nIts language should be clear, unequivocal and
\nconcise. Every criminal act should be separately
\ndefined, its language followed precisely in
\nindictment and conduct found to fall clearly within
\nthe definition.
\nUniformity was to be the chief end and special
\ndefinitions, procedures or other exceptions to
\naccount for different races or sects should not be
\nincluded without clear and strong reasons.
\n10
\n17. It is interesting to note that Lord Macaulay\u2019s Draft was
\nsubstantially different from what was enacted as Section 377.
\nMacaulay\u2019s original draft read:-
\n\u201c361. Whoever, intending to gratify unnatural lust,
\ntouches for that purpose any person, or any animal,
\nor is by his own consent touched by any person, for
\nthe purpose of gratifying unnatural lust, shall be
\npunished with imprisonment of either description for
\na term which may extend to fourteen years and
\nmust not be less than two years, and shall be liable
\nto fine.
\n362. Whoever, intending to gratify unnatural lust,
\ntouches for that purpose any person without that
\nperson\u2019s free and intelligent consent, shall be
\npunished with imprisonment of either description for
\na term which may extend to life and must not be
\nless than seven years, and shall also be liable to
\nfine.\u201d
\n18. What is remarkable for the time in which he lived is the
\nfact that Lord Macaulay would punish touching another person
\nfor the purpose of gratifying \u201cunnatural lust\u201d without their \u201cfree
\nand intelligent consent\u201d with a term of imprisonment extendable
\nto life (but not less than seven years) while the penalty for the
\nsame offence, when consensual, would be imprisonment for a
\nmaximum term of fourteen years (but not less than two years).
\nEven in this most prudish of all periods of English history, Lord
\n11
\nMacaulay recognized a lesser sentence for the crime of
\n\u201cunnatural lust\u201d, if performed with consent. Living in the era in
\nwhich he lived, he clearly eschewed public discussion on this
\nsubject, stating:-
\n\u201cClause 361 and 362 relate to an odious class of
\noffences respecting which it is desirable that as little
\nas possible should be said. We leave, without
\ncomment, to the judgment of his Lordship in Council
\nthe two clauses which we have provided for these
\noffences. We are unwilling to insert, either in the text
\nor in the notes, anything which could give rise to
\npublic discussion on this revolting subject; as we are
\ndecidedly of the opinion that the injury which would
\nbe done to the morals of the community by such
\ndiscussion would far more than compensate for any
\nbenefits which might be derived from legislative
\nmeasures framed with the greatest precision.\u201d
\n19. At what stage of the proceedings before the various
\npersons and committees after 1837, Section 377 finally took
\nshape, is not clear. What is clear is that it is the Committee of
\nSir Barnes Peacock which finally sent the draft equivalent of
\nSection 377 for enactment.
\n20. The Indian Penal Code, given its long life of over 150
\nyears, has had surprisingly few amendments made to it. The
\n42nd Law Commission Report, early in this country\u2019s history, did
\nnot recommend the amendment or deletion of Section 377. But
\n12
\nB. P. Jeevan Reddy, J.\u2019s Law Commission Report of the year
\n2000 (the 172nd Report) recommended its deletion consequent
\nto changes made in the preceding sections, which made it clear
\nthat anal sex between consenting adults, whether same-sex or
\notherwise, would not be penalized.
\nLaw in the United Kingdom
\n21. As has been mentioned earlier in this judgment, the first
\nenactment prohibiting same-sex intercourse was passed in the
\nyear 1533 in the reign of Henry VIII. The death penalty was
\nprescribed even for consenting adults who indulged in this
\n\u201cabomination\u201d. The trial of persons such as Oscar Wilde is
\nwhat led to law reform in the U.K., albeit 60 years later.
\n22. The Marquess of Queensberry\u2019s son, Lord Alfred
\nDouglas, was having an affair with Oscar Wilde, which the
\nMarquess discovered. At Oscar Wilde\u2019s club, the Marquess left
\na note describing Oscar Wilde as a \u201csomdomite\u201d which led to
\none of the most celebrated defamation actions in England. In
\nthe course of his cross-examination of Oscar Wilde, Sir Edward
\nCarson was able to draw from his famous witness the fact that
\n13
\nboys could be plain or ugly, which would have led to the truth of
\nestablishing the charge against Oscar Wilde. Rather than go on
\nwith the trial, Oscar Wilde hastily withdrew his action for
\ndefamation. But that was not the end. A prosecution under the
\nCriminal Law Amendment Act of 1885 followed, in which Oscar
\nWilde was convicted and sent to jail for a period of two years.
\nHe never quite recovered, for after his jail sentence was served
\nout, he died a broken and impoverished man in Paris at the
\nearly age of 46.3
\n23. The winds of change slowly blew over the British Isles
\nand finally, post the Second World War, what is known as the
\nWolfenden Committee was appointed on 24.08.1954, inter alia
\nto consider the law and practice relating to homosexual
\noffences and the treatment of persons convicted of such
\noffences by the courts. The Committee Report, even though it
\nis of a vintage of September 1957, makes interesting reading.
\nIn paragraphs 31 and 32 of the Report, the Committee opined:-<\/p>\n

3 Much more could have come from the pen of this genius. In fact, when crossing the U.S. Customs and
\nbeing asked whether he had anything to declare, his famous answer was said to have been, \u201cI have
\nnothing to declare except my genius.\u201d But even unjust jail sentences can produce remarkable things \u2013
\nThe Ballad of Reading Gaol is a masterpiece of English poetry which the world would never have
\nreceived had he not been incarcerated in Reading Gaol.
\n14
\n\u201c31. Even if it could be established that
\nhomosexuality were a disease, it is clear that many
\nindividuals, however their state is reached, present
\nsocial rather than medical problems and must be
\ndealt with by social, including penological, methods.
\nThis is especially relevant when the claim that
\nhomosexuality is an illness is taken to imply that its
\ntreatment should be a medical responsibility. Much
\nmore important than the academic question whether
\nhomosexuality is a disease is the practical question
\nwhether a doctor should carry out any part or all of
\nthe treatment. Psychiatrists deal regularly with
\nproblems of personality which are not regarded as
\ndiseases, and conversely the treatment of cases of
\nrecognized psychiatric illness may not be strictly
\nmedical but may best be carried out by non-medical
\nsupervision or environmental change. Examples
\nwould be certain cases of senile dementia or
\nchronic schizophrenia which can best be managed
\nat home. In fact, the treatment of behavior
\ndisorders, even when medically supervised, is rarely
\nconfined to psychotherapy or to treatment of a
\nstrictly medical kind. This is not to deny that expert
\nadvice should be sought in very many homosexual
\ncases. We shall have something more to say on
\nthese matters in connection with the treatment of
\noffenders.
\n32. The claim that homosexuality is an illness
\ncarries the further implication that the sufferer
\ncannot help it and therefore carries a diminished
\nresponsibility for his actions. Even if it were
\naccepted that homosexuality could properly be
\ndescribed as a \u201cdisease\u201d, we should not accept this
\ncorollary. There are no prima facie grounds for
\nsupposing that because a particular person\u2019s sexual
\npropensity happens to lie in the direction of persons
\nof his or her own sex it is any less controllable than
\nthat of those whose propensity is for persons of the
\nopposite sex. We are informed that patients in
\nmental hospitals, with few exceptions, show clearly
\n15
\nby their behavior that they can and do exercise a
\nhigh degree of responsibility and self-control; for
\nexample, only a small minority need to be kept in
\nlocked wards. The existence of varying degrees of
\nself-control is a matter of daily experience – the
\nextent to which coughing can be controlled is an
\nexample – and the capacity for self-control can vary
\nwith the personality structure or with temporary
\nphysical or emotional conditions. The question
\nwhich is important for us here is whether the
\nindividual suffers from a condition which causes
\ndiminished responsibility. This is a different question
\nfrom the question whether he was responsible in the
\npast for the causes or origins of his present
\ncondition. That is an interesting enquiry and may be
\nof relevance in other connections; but our concern is
\nwith the behavior which flows from the individual\u2019s
\npresent condition and with the extent to which he is
\nresponsible for that behavior, whatever may have
\nbeen the causes of the condition from which it
\nsprings. Just as expert opinion can give valuable
\nassistance in deciding on the appropriate ways of
\ndealing with a convicted person, so can it help in
\nassessing the additional factors that may affect his
\npresent responsibility?\u201d
\n24. It then went on to note in paragraph 36 that the evidence
\nbefore them showed that homosexuality existed in all levels of
\nsociety and was prevalent in all trades and professions. In
\nparagraph 53, the main arguments for retention of the existing
\nlaw were set out. Insofar as societal health was concerned, the
\nCommittee rejected this for lack of evidence. It went on to
\nstate:-
\n16
\n\u201c54. As regards the first of these arguments, it is
\nheld that conduct of this kind is a cause of the
\ndemoralization and decay of civilisations, and that
\ntherefore, unless we wish to see our nation
\ndegenerate and decay, such conduct must be
\nstopped, by every possible means. We have found
\nno evidence to support this view, and we cannot feel
\nit right to frame the laws which should govern this
\ncountry in the present age by reference to
\nhypothetical explanations of the history of other
\npeoples in ages distant in time and different in
\ncircumstances from our own. In so far as the basis
\nof this argument can be precisely formulated, it is
\noften no more than the expression of revulsion
\nagainst what is regarded as unnatural, sinful or
\ndisgusting. Many people feel this revulsion, for one
\nor more of these reasons. But moral conviction or
\ninstinctive feeling, however strong, is not a valid
\nbasis for overriding the individual\u2019s privacy and for
\nbringing within the ambit of the criminal law private
\nsexual behaviour of this kind. It is held also that if
\nsuch men are employed in certain professions or
\ncertain branches of the public service their private
\nhabits may render them liable to threats of blackmail
\nor to other pressures which may make them \u201cbad
\nsecurity risks.\u201d If this is true, it is true also of some
\nother categories of persons: for example, drunkards,
\ngamblers and those who become involved in
\ncompromising situations of a heterosexual kind; and
\nwhile it may be a valid ground for excluding from
\ncertain forms of employment men who indulge in
\nhomosexual behaviour, it does not, in our view,
\nconstitute a sufficient reason for making their private
\nsexual behaviour an offence in itself.\u201d
\n(Emphasis supplied)
\n17
\n25. Insofar as the damaging effects on family life were
\nconcerned, this was rejected by stating:-
\n\u201c55. The second contention, that homosexual
\nbehaviour between males has a damaging effect on
\nfamily life, may well be true. Indeed, we have had
\nevidence, that it often is; cases in which
\nhomosexual behaviour on the part of the husband
\nhas broken up a marriage are by no means rare,
\nand there are also cases in which a man in whom
\nthe homosexual component is relatively weak
\nnevertheless derives such satisfaction from
\nhomosexual outlets that he does not enter upon a
\nmarriage which might have been successfully and
\nhappily consummated. We deplore this damage to
\nwhat we regard as the basic unit of society; but
\ncases are also frequently encountered in which a
\nmarriage has been broken up by homosexual
\nbehaviour on the part of the wife, and no doubt
\nsome women, too, derive sufficient satisfaction from
\nhomosexual outlets to prevent their marrying. We
\nhave had no reasons shown to us which would lead
\nus to believe that homosexual behaviour between
\nmales inflicts any greater damage on family life than
\nadultery, fornication or lesbian behaviour. These
\npractices are all reprehensible from the point of view
\nof harm to the family, but it is difficult to see why on
\nthis ground male homosexual behaviour alone
\namong them should be a criminal offence. This
\nargument is not to be taken as saying that society
\nshould condone or approve male homosexual
\nbehaviour. But where adultery, fornication and
\nlesbian behaviour are not criminal offences there
\nseems to us to be no valid ground, on the basis of
\ndamage to the family, for so regarding homosexual
\nbehaviour between men. Moreover, it has to be
\nrecognized that the mere existence of the condition
\nof homosexuality in one of the partners can result in
\nan unsatisfactory marriage, so that for a
\n18
\nhomosexual to marry simply for the sake of
\nconformity with the accepted structure of society or
\nin the hope of curing his condition may result in
\ndisaster.\u201d
\n26. And in rejecting the allegation that men indulging in such
\npractices with other men may turn their attention to boys, the
\nCommittee said:-
\n\u201c56. We have given anxious consideration to the
\nthird argument, that an adult male who has sought
\nas his partner another adult male may turn from
\nsuch a relationship and seek as his partner a boy or
\nsuccession of boys. We should certainly not wish to
\ncountenance any proposal which might tend to
\nincrease offences against minors. Indeed, if we
\nthought that any recommendation for a change in
\nthe law would increase the danger to minors, we
\nshould not make it. But in this matter, we have been
\nmuch influenced by our expert witnesses. They are
\nin no doubt that whatever may be the origins of the
\nhomosexual condition, there are two recognisably
\ndifferent categories among adult male homosexuals.
\nThere are those who seek as partners other adult
\nmales, and there are paedophiliacs, that is to say
\nmen who seek as partners boys who have not
\nreached puberty.
\n57. We are authoritatively informed that a man who
\nhas homosexual relations with an adult partner
\nseldom turns to boys, and vice-versa, though it is
\napparent from the police reports we have seen and
\nfrom other evidence submitted to us that such cases
\ndo happen.\u201d
\n27. Finally, the Committee stated:
\n\u201c60. We recognise that a proposal to change a law
\nwhich has operated for many years so as to make
\n19
\nlegally permissible acts which were formerly
\nunlawful, is open to criticisms which might not be
\nmade in relation to a proposal to omit, from a code
\nof laws being formulated de novo, any provision
\nmaking these acts illegal. To reverse a longstanding
\ntradition is a serious matter and not to be
\nsuggested lightly. But the task entrusted to us, as
\nwe conceive it, is to state what we regard as a just
\nand equitable law. We therefore do not think it
\nappropriate that consideration of this question
\nshould be unduly influenced by a regard for the
\npresent law, much of which derives from traditions
\nwhose origins are obscure.
\n61. Further, we feel bound to say this. We have
\noutlined the arguments against a change in the law,
\nand we recognise their weight. We believe,
\nhowever, that they have been met by the counterarguments
\nwe have already advanced. There
\nremains one additional counter-argument which we
\nbelieve to be decisive, namely, the importance
\nwhich society and the law ought to give to individual
\nfreedom of choice and action in matters of private
\nmorality. Unless a deliberate attempt is to be made
\nby society, acting through the agency of the law, to
\nequate the sphere of crime with that of sin, there
\nmust remain a realm of private morality and
\nimmorality which is, in brief and crude terms, not the
\nlaw\u2019s business. To say this is not to condone or
\nencourage private immorality. On the contrary, to
\nemphasise the personal and private responsibility of
\nthe individual for his own actions, and that is a
\nresponsibility which a mature agent can properly be
\nexpected to carry for himself without the threat of
\npunishment from the law.
\n62. We accordingly recommend that homosexual
\nbehaviour between consenting adults in private
\nshould no longer be a criminal offence.\u201d
\n20
\n28. Change came slowly. It was only in 1967 that the
\nWolfenden Committee Report was acted upon by the British
\nParliament by enacting the Sexual Offences Act, 1967, which
\nabolished penal offences involving consenting same-sex adults.
\n29. In 2017, the United Kingdom passed the Policing and
\nCrimes Act which served as an amnesty law to pardon persons
\nwho were cautioned or convicted under legislations that
\noutlawed homosexual acts.4
\nThe Law in the United States
\n30. At the time that the United States achieved independence
\nin 1776, the law in all the States insofar as same-sex offences
\nwere concerned, was the English law. This state of affairs
\ncontinued until challenges were made in the last century to
\nstate statutes which criminalized sodomy. One such case,
\nnamely, Bowers v. Hardwick (\u201cBowers\u201d), 92 L. Ed. 2d 140
\n(1986), reached the United States Supreme Court in the year
\n1986. By a 5:4 decision, the United States Supreme Court
\nupheld a Georgia statute criminalizing sodomy and its<\/p>\n

4 The impetus for this law was the prosecution of Alan Turing in 1952. Alan Turing was instrumental in
\ncracking intercepted code messages that enabled the Allies to defeat Germany in many crucial
\nengagements in the War. Turing accepted chemical castration treatment as an alternative to prison upon
\nconviction, but committed suicide just before his 42nd birthday in 1954.
\n21
\napplicability to the commission of that act with another adult
\nmale in the bedroom of the respondent\u2019s home. Justice White,
\nwho spoke for the majority of the Court, did this on several
\ngrounds.
\n31. First and foremost, he stated that there was no right to
\nprivacy that extended to homosexual sodomy. No connection
\nbetween family, marriage, or procreation and homosexuality
\nhad been demonstrated to the court. The next ground for
\nupholding such law was that proscriptions against such conduct
\nhad ancient roots. Stanley v. Georgia (\u201cStanley\u201d), 22 L. Ed.
\n2d 542 (1969), where the Court held that the First Amendment
\nprohibits conviction for possessing and reading obscene
\nmaterial in the privacy of one\u2019s home, was brushed aside
\nstating that Stanley itself recognized that its holding offered no
\nprotection for possession of drugs, firearms or stolen goods in
\nthe home. Therefore, such a claimed fundamental right could
\nnot possibly exist when adultery, incest and other sexual crimes
\nare punished, even though they may be committed in the home.
\nAnother important rationale was that the Georgia law was
\nbased on a notion of morality, which is a choice that could
\n22
\nlegitimately be exercised by a State Legislature. Chief Justice
\nBurger, concurring, again relied heavily on \u2018ancient roots\u2019,
\nstating that throughout the history of western civilization,
\nhomosexual sodomy was outlawed in the Judeo-Christian
\ntradition, which the Georgia legislature could well follow.
\nJustice Powell, concurring with the majority, found that to
\nimprison a person upto 20 years for a single, private,
\nconsensual act of sodomy within the home would be a cruel
\nand unusual punishment within the meaning of the Eighth
\nAmendment. However, since no trial had taken place on the
\nfacts, and since the respondent did not raise any such Eighth
\nAmendment issue, Justice Powell concurred with the majority.
\n32. The dissenting opinion of four Justices makes interesting
\nreading. Justice Blackmun, who spoke for four dissenters,
\nbegan with the classical definition of the old privacy right which
\nis the \u201cright to be let alone\u201d, and quoted from Justice Holmes\u2019
\narticle The Path of the Law, stating:-
\n\u201c[i]t is revolting to have no better reason for a rule of
\nlaw than that so it was laid down in the time of
\nHenry IV. It is still more revolting if the grounds upon
\nwhich it was laid down have vanished long since,
\n23
\nand the rule simply persists from blind imitation of
\nthe past.\u201d
\n33. So much, then, for history and its \u201cancient roots\u201d. Justice
\nBlackmun\u2019s dissent then went on to consider the famous
\njudgment in Wisconsin v. Yoder, 32 L. Ed. 2d 15 (1972), in
\nwhich the Court had upheld the fundamental right of the Amish
\ncommunity not to send their children to schools, stating that a
\nway of life that is odd or even erratic but interferes with no
\nrights or interests of others is not to be condemned because it
\nis different. Referring to Judeo-Christian values, the Court said
\nthat the fact that certain religious groups condemn the behavior
\nof sodomy gives the State no licence to impose their moral
\njudgment on the entire citizenry of the United States. Ending
\nwith a John Stuart Mill type of analysis, the dissent stated:-
\n\u201c44. This case involves no real interference with the
\nrights of others, for the mere knowledge that other
\nindividuals do not adhere to one\u2019s value system
\ncannot be a legally cognizable interest, cf. Diamond
\nv. Charles, 476 U.S. 54, 65-66, 106 S. Ct. 1697,
\n1705, 90 L.Ed.2d 48 (1986), let alone an interest
\nthat can justify invading the houses, hearts, and
\nminds of citizens who choose to live their lives
\ndifferently.\u201d
\n24
\n34. Justice Stevens, also in a powerfully worded dissent,
\nspecifically stated that the protection of privacy extends to
\nintimate choices made by unmarried as well as married
\npersons.
\n35. It took the United States 17 years to set aside this view of
\nthe law and to accept the dissenting judgments in Bowers
\n(supra).
\n36. In Lawrence v. Texas, 539 U.S. 558 (2003), by a
\nmajority of 6:3, Justice Anthony Kennedy, speaking for the
\nmajority, set aside the judgment in Bowers (supra), accepting
\nthat the dissenting judgments in that case were correct. In a tilt
\nat the history analysis of the majority judgment in Bowers
\n(supra), the Court found that earlier sodomy laws were not
\ndirected at homosexuals at large, but instead sought to prohibit
\nnon-procreative sexual activity more generally, and were not
\nenforced against consenting adults acting in private. After citing
\nfrom Planned Parenthood of Southeastern Pa. v. Casey
\n(\u201cCasey\u201d), 505 U.S. 833 (1992), the majority held \u2013 \u201cour
\nobligation is to define the liberty of all, not to mandate our own
\nmoral code.\u201d The majority judgment then referred to a Model
\n25
\nPenal Code that the American Law Institute took out in 1955,
\nmaking it clear that it did not provide for criminal penalties for
\nconsensual same-sex relationships conducted in private. The
\njudgment then went on to refer to the Wolfenden Committee
\nReport and the Sexual Offences Act,1967 in the United
\nKingdom and referred to the European Court\u2019s decision in
\nDudgeon v. United Kingdom, 45 Eur. Ct. H. R. (1981). It then
\nreferred to Romer v. Evans (\u201cRomer\u201d), 517 U.S. 620 (1996),
\nwhere the Court struck down a class-based legislation which
\ndeprived homosexuals of State anti-discrimination laws as a
\nviolation of the Equal Protection Clause. The majority then
\nfound that the 1986 decision of Bowers (supra), had \u201csustained
\nserious erosion\u201d through their recent decisions in Casey (supra)
\nand Romer (supra), and had, therefore, to be revisited.
\n5 Justice<\/p>\n

5 The majority\u2019s decision echoes what had happened earlier in what is referred to as the celebrated flag
\nsalute case, namely, West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943). The
\nU.S. Supreme Court had overruled its recent judgment in Minersville School District v. Gobitis, 310
\nU.S. 586 (1940). Justice Jackson speaking for the majority of the Court found:-
\n\u201cThe freedom asserted by these appellees does not bring them into collision with rights
\nasserted by any other individual. It is such conflicts which most frequently require
\nintervention of the State to determine where the rights of one end and those of another
\nbegin. But the refusal of these persons to participate in the ceremony does not interfere
\nwith or deny rights of others to do so. Nor is there any question in this case that their
\nbehavior is peaceable and orderly.\u201d
\nThe learned Judge then went on to find:
\n\u201cThe very purpose of a Bill of Rights was to withdraw certain subjects from the
\nvicissitudes of political controversy, to place them beyond the reach of majorities and
\nofficials and to establish them as legal principles to be applied by the courts. One’s right
\nto life, liberty, and property, to free speech, a free press, freedom of worship and
\n26
\nO\u2019Connor concurred in the judgment but side-stepped rather
\nthan overruled Bowers (supra). Justice Scalia, with whom the
\nChief Justice and Justice Thomas joined, found no reason to
\nundo the Bowers (supra) verdict stating that stare decisis
\nshould carry the day. An interesting passage in Justice Scalia\u2019s
\njudgment reads as follows:-
\n\u201cLet me be clear that I have nothing against
\nhomosexuals, or any other group, promoting their
\nagenda through normal democratic means. Social
\nperceptions of sexual and other morality change
\nover time, and every group has the right to
\npersuade its fellow citizens that its view of such
\nmatters is the best. That homosexuals have
\nachieved some success in that enterprise is attested
\nto by the fact that Texas is one of the few remaining
\nStates that criminalize private, consensual
\nhomosexual acts. But persuading one\u2019s fellow
\ncitizens is one thing, and imposing one\u2019s views in
\nabsence of democratic majority will is something
\nelse. I would no more require a State to criminalize
\nhomosexual acts\u2014or, for that matter, display any
\nmoral disapprobation of them\u2014than I would forbid it
\nto do so. What Texas has chosen to do is well within
\nthe range of traditional democratic action, and its
\nhand should not be stayed through the invention of
\na brand-new \u201cconstitutional right\u201d by a Court that is
\nimpatient of democratic change. It is indeed true
\nthat \u201clater generations can see that laws once<\/p>\n

assembly, and other fundamental rights may not be submitted to vote; they depend on
\nthe outcome of no elections.\u201d
\nAnd finally, it was held:-
\n\u201cIf there is any fixed star in our constitutional constellation, it is that no official, high or
\npetty, can prescribe what shall be orthodox in politics, nationalism, religion, or other
\nmatters of opinion or force citizens to confess by word or act their faith therein. If there
\nare any circumstances which permit an exception, they do not now occur to us.\u201d
\n27
\nthought necessary and proper in fact serve only to
\noppress,\u201d [ante, at 579]; and when that happens,
\nlater generations can repeal those laws. But it is the
\npremise of our system that those judgments are to
\nbe made by the people, and not imposed by a
\ngoverning caste that knows best.\u201d
\n37. Before coming to our own judgments, we may quickly
\nsurvey some of the judgments of the courts of other democratic
\nnations. The European Community decisions, beginning with
\nDudgeon v. United Kingdom (supra) and continuing with
\nNorris v. Ireland, Application no. 10581\/83, and Modinos v.
\nCyprus, 16 EHRR 485 (1993), have all found provisions similar
\nto Section 377 to be violative of Article 8 of the European
\nHuman Rights Convention, 1948 in which everyone has the
\nright to respect for his private and family life, his home and his
\ncorrespondence, and no interference can be made with these
\nrights unless the law is necessary in a democratic society inter
\nalia for the prevention of disorder or crime, for the protection of
\nhealth or morals, or for the protection of the rights and
\nfreedoms of others.
\n38. In El-Al Israel Airlines Ltd. v. Jonathan Danielwitz,
\nH.C.J. 721\/94, the Supreme Court of Israel, speaking through
\n28
\nBarak, J., recognized a same-sex relationship so that a male
\ncompanion could be treated as being a companion for the
\nreceipt of a free or discounted aeroplane ticket. The Court
\nheld:-
\n\u201c14.\u2026.The principle of equality demands that the
\nexistence of a rule that treats people differently is
\njustified by the nature and substance of the issue.
\nThe principle of equality therefore presumes the
\nexistence of objective reasons that justify a
\ndifference (a distinction, dissimilarity). Discrimination
\n\u2014 which is the opposite of equality \u2014 exists
\ntherefore in those situations where a different law
\nfor people who are (de facto) different from one
\nanother is based on reasons that are insufficient to
\njustify a distinction between them in a free and
\ndemocratic society. In Justice Or\u2019s words,
\ndiscrimination is \u2018different treatment without an
\nobjective justification\u2019 (Hoppert v. \u2018Yad VaShem\u2019
\nHolocaust Martyrs and Heroes Memorial Authority
\n[12], at p. 360). President Agranat discussed this
\nand pointed out:
\n\u2018The principle of equality, which is merely
\nthe opposite of discrimination and which,
\nfor reasons of justice and fairness, the
\nlaw of every democratic country aspires
\nto achieve, means that people must be
\ntreated equally for a particular purpose,
\nwhen no real differences that are relevant
\nto this purpose exist between them. If
\nthey are not treated equally, we have a
\ncase of discrimination. However, if the
\ndifference or differences between
\ndifferent people are relevant for the
\npurpose under discussion, it is a
\npermitted distinction to treat them
\ndifferently for that purpose, provided that
\n29
\nthose differences justify this. In this
\ncontext, the concept of \u201cequality\u201d
\ntherefore means \u201crelevant equality\u201d, and it
\nrequires, with regard to the purpose
\nunder discussion, \u201cequality of treatment\u201d
\nfor those persons in this state. By
\ncontrast, it will be a permitted distinction if
\nthe different treatment of different
\npersons derives from their being for the
\npurpose of the treatment, in a state of
\nrelevant inequality, just as it will be
\ndiscrimination if it derives from their being
\nin a state of inequality that is not relevant
\nto the purpose of the treatment\u2019 (FH
\n10\/69 Boronovski v. Chief Rabbis [16], at
\np. 35).
\nTherefore, a particular law will create discrimination
\nwhen two individuals, who are different from one
\nanother (factual inequality), are treated differently by
\nthe law, even though the factual difference between
\nthem does not justify different treatment in the
\ncircumstances. Discrimination is therefore based on
\nthe factors of arbitrariness, injustice and
\nunreasonableness.
\nXXX
\n17. We have seen, therefore, that giving a benefit to
\na (permanent) employee for a spouse or recognized
\ncompanion of the opposite sex and not giving the
\nsame benefit for a same-sex companion amounts to
\na violation of equality. What is the nature of this
\ndiscrimination? Indeed, all discrimination is
\nprohibited, but among the different kinds of
\ndiscrimination, there are varying degrees. The
\nseverity of the discrimination is determined by the
\nseverity of the violation of the principle of equality.
\nThus, for example, we consider discrimination on
\nthe basis of race, religion, nationality, language,
\nethnic group and age to be particularly serious. In
\n30
\nthis framework, the Israeli legal system attaches
\ngreat importance to the need to guarantee equality
\nbetween the sexes and to prevent discrimination on
\nthe basis of sex (see HCJ 153\/87 Shakdiel v.
\nMinister of Religious Affairs [19]; Poraz v. Mayor of
\nTel Aviv-Jaffa [6]).\u201d
\n(Emphasis supplied)
\n39. An instructive recent judgment from Trinidad and Tobago
\nin Jason Jones v. Attorney General of Trinidad and Tobago,
\nClaim No. CV 2017-00720, followed our judgment in
\nPuttaswamy (supra) in order to strike down Section 13 of the
\nSexual Offences Act, 1986 on the ground that the State cannot
\ncriminalise sexual relations of the same sex between
\nconsenting adults. The court concluded:-
\n\u201c168. Having regard to the evidence and
\nsubmissions before this court on all sides, there is
\nno cogent evidence that the legislative objective is
\nsufficiently important to justify limiting the claimant\u2019s
\nrights. Mr. Hosein\u2019s stated objectives of:
\n168.1. Maintaining traditional family and values that
\nrepresent society;
\n168.2. Preserving the legislation as it is and
\nclarifying the law; and
\n168.3. Extending the offence in section 16 to women
\nand reduce it to serious indecency from gross
\nindecency;
\ndo not counterbalance the claimant\u2019s limit of his
\nfundamental right of which he has given evidence.
\n31
\nInstead, the court accepts the claimant\u2019s position
\nthat the law as it stands is not sufficiently important
\nto justify limiting his fundamental rights and that he
\nhas proven it on a balance of probabilities.\u201d
\n40. To similar effect is the judgment of the High Court of Fiji in
\nDhirendra Nadan v. State, Case No. HAA0085 of 2005, where
\na Section similar to Section 377 was held to be inconsistent
\nwith the constitutional right of privacy and invalid to the extent
\nthat the law criminalises acts constituting private consensual
\nsexual conduct \u201cagainst the course of nature\u201d between adults.
\n41. The South African Supreme Court, by a decision of 1999
\nin The National Coalition for Gay and Lesbian Equality v.
\nThe Minister of Home Affairs, Case CCT 10\/99, after referring
\nto various judgments of other courts, also found a similar
\nsection to be inconsistent with the fundamental rights under its
\nConstitution.
\n42. Another important decision is that of the United Nations
\nHuman Rights Committee in Toonen v. Australia,
\nCommunication No. 488\/1992, U.N. Doc
\nCCPR\/C\/50\/D\/488\/1992 (1994), dated 31.03.1994. The
\nCommittee was called upon to determine whether Mr. Nicholas
\n32
\nToonen, who resided in the state of Tasmania, had been the
\nvictim of arbitrary interference with his privacy, and whether he
\nhad been discriminated against on the basis of his sexual
\norientation of being a homosexual. The Committee found:-
\n\u201c8.2 Inasmuch as Article 17 is concerned, it is
\nundisputed that adult consensual sexual activity in
\nprivate is covered by the concept of \u201cprivacy\u201d, and
\nthat Mr. Toonen is actually and currently affected by
\nthe continued existence of the Tasmanian laws. The
\nCommittee considers that Sections 122 (a), (c) and
\n123 of the Tasmanian Criminal Code \u201cinterfere\u201d with
\nthe author’s privacy, even if these provisions have
\nnot been enforced for a decade. In this context, it
\nnotes that the policy of the Department of Public
\nProsecutions not to initiate criminal proceedings in
\nrespect of private homosexual conduct does not
\namount to a guarantee that no actions will be
\nbrought against homosexuals in the future,
\nparticularly in the light of undisputed statements of
\nthe Director of Public Prosecutions of Tasmania in
\n1988 and those of members of the Tasmanian
\nParliament. The continued existence of the
\nchallenged provisions therefore continuously and
\ndirectly \u201cinterferes\u201d with the author’s privacy.
\n8.3 The prohibition against private homosexual
\nbehaviour is provided for by law, namely, Sections
\n122 and 123 of the Tasmanian Criminal Code. As to
\nwhether it may be deemed arbitrary, the Committee
\nrecalls that pursuant to its General Comment 16 on
\narticle 17, the “introduction of the concept of
\narbitrariness is intended to guarantee that even
\ninterference provided for by the law should be in
\naccordance with the provisions, aims and objectives
\nof the Covenant and should be, in any event,
\nreasonable in the circumstances\u201d.(4) The
\n33
\nCommittee interprets the requirement of
\nreasonableness to imply that any interference with
\nprivacy must be proportional to the end sought and
\nbe necessary in the circumstances of any given
\ncase.
\nXXX
\n8.5 As far as the public health argument of the
\nTasmanian authorities is concerned, the Committee
\nnotes that the criminalization of homosexual
\npractices cannot be considered a reasonable means
\nor proportionate measure to achieve the aim of
\npreventing the spread of AIDS\/HIV. The Australian
\nGovernment observes that statutes criminalizing
\nhomosexual activity tend to impede public health
\nprogrammes \u201cby driving underground many of the
\npeople at the risk of infection\u201d. Criminalization of
\nhomosexual activity thus would appear to run
\ncounter to the implementation of effective education
\nprogrammes in respect of the HIV\/AIDS prevention.
\nSecondly, the Committee notes that no link has
\nbeen shown between the continued criminalization
\nof homosexual activity and the effective control of
\nthe spread of the HIV\/AIDS virus.
\nXXX
\n8.7 The State party has sought the Committee’s
\nguidance as to whether sexual orientation may be
\nconsidered an \u201cother status\u201d for the purposes of
\narticle 26. The same issue could arise under article
\n2, paragraph 1, of the Covenant. The Committee
\nconfines itself to noting, however, that in its view the
\nreference to “sex” in articles 2, paragraph 1, and 26
\nis to be taken as including sexual orientation.
\nXXX
\n10. Under article 2(3)(a) of the Covenant, the
\nauthor, victim of a violation of articles 17, paragraph
\n1, juncto 2, paragraph 1, of the Covenant, is entitled
\nto a remedy. In the opinion of the Committee, an
\n34
\neffective remedy would be the repeal of Sections
\n122(a), (c) and 123 of the Tasmanian Criminal
\nCode.\u201d
\n43. As a result of these findings, the Australian Parliament, on
\n19.12.1994, passed the Human Rights (Sexual Conduct) Act,
\n1994, Section 4 of which reads as under:-
\n\u201c4. Arbitrary interferences with privacy
\n(1) Sexual conduct involving only consenting
\nadults acting in private is not to be subject, by or
\nunder any law of the Commonwealth, a State or a
\nTerritory, to any arbitrary interference with privacy
\nwithin the meaning of Article 17 of the International
\nCovenant on Civil and Political Rights.
\n(2) For the purposes of this section, an adult is a
\nperson who is 18 years old or more.\u201d
\nRecent Judgments of this Court
\n44. Anuj Garg and Ors. v. Hotel Association of India and
\nOrs., (2008) 3 SCC 1, is an important decision of this Court,
\nwhich dealt with the constitutional validity of another preconstitution
\nenactment, namely, Section 30 of the Punjab
\nExcise Act of 1914, which prohibited employment of any
\nwoman in any part of premises in which liquor is consumed by
\nthe public. Sinha, J. adverted to the fact that when the original
\n35
\nAct was enacted, the concept of equality between the two
\nsexes was unknown. The Constitution changed all that when it
\nenacted Articles 14 and 15. What is of importance is that when
\ndiscrimination is made between two sets of persons, the
\nclassification must be founded on some rational criteria having
\nregard to the societal conditions as they exist presently, and not
\nas they existed in the early 20th century or even earlier. This
\nwas felicitously stated by the learned Judge as follows:-
\n\u201c7. The Act is a pre-constitutional legislation.
\nAlthough it is saved in terms of Article 372 of the
\nConstitution, challenge to its validity on the
\ntouchstone of Articles 14, 15 and 19 of the
\nConstitution of India, is permissible in law. While
\nembarking on the questions raised, it may be
\npertinent to know that a statute although could have
\nbeen held to be a valid piece of legislation keeping
\nin view the societal condition of those times, but
\nwith the changes occurring therein both in the
\ndomestic as also international arena, such a law
\ncan also be declared invalid.
\n8. In John Vallamattom v. Union of India, (2003) 6
\nSCC 611, this Court, while referring to an
\namendment made in UK in relation to a provision
\nwhich was in pari materia with Section 118 of Indian
\nSuccession Act, observed (SCC p. 624, para 28):
\n\u201c28\u2026The constitutionality of a provision, it
\nis trite, will have to be judged keeping in
\nview the interpretative changes of the
\nstatute affected by passage of time.\u201d
\n36
\nReferring to the changing legal scenario and having
\nregard to the Declaration on the Right to
\nDevelopment adopted by the World Conference on
\nHuman Rights as also Article 18 of the United
\nNations Covenant on Civil and Political Rights,
\n1966, it was held (John Vallamattom case, SCC p.
\n625, para 33):
\n\u201c33. It is trite that having regard to Article
\n13(1) of the Constitution, the
\nconstitutionality of the impugned
\nlegislation is required to be considered on
\nthe basis of laws existing on 26-1-1950,
\nbut while doing so the court is not
\nprecluded from taking into consideration
\nthe subsequent events which have taken
\nplace thereafter. It is further trite that the
\nlaw although may be constitutional when
\nenacted but with passage of time the
\nsame may be held to be unconstitutional
\nin view of the changed situation.\u201d
\nXXX
\n26. When a discrimination is sought to be made on
\nthe purported ground of classification, such
\nclassification must be founded on a rational criteria.
\nThe criteria which in absence of any constitutional
\nprovision and, it will bear repetition to state, having
\nregard to the societal conditions as they prevailed in
\nearly 20th century, may not be a rational criteria in
\nthe 21st century. In the early 20th century, the
\nhospitality sector was not open to women in
\ngeneral. In the last 60 years, women in India have
\ngained entry in all spheres of public life. They have
\nalso been representing people at grass root
\ndemocracy. They are now employed as drivers of
\nheavy transport vehicles, conductors of service
\ncarriages, pilots, et. al. Women can be seen to be
\noccupying Class IV posts to the post of a Chief
\nExecutive Officer of a Multinational Company. They
\n37
\nare now widely accepted both in police as also army
\nservices.\u201d
\n45. The Court went on to hold that \u201cproportionality\u201d should be
\na standard capable of being called reasonable in a modern
\ndemocratic society (See paragraph 36).
\nIn a significant paragraph, the learned Judge held:-
\n\u201c43. Instead of prohibiting women employment in
\nthe bars altogether the State should focus on
\nfactoring in ways through which unequal
\nconsequences of sex differences can be eliminated.
\nIt is the State\u2019s duty to ensure circumstances of
\nsafety which inspire confidence in women to
\ndischarge the duty freely in accordance to the
\nrequirements of the profession they choose to
\nfollow. Any other policy inference (such as the one
\nembodied under Section 30) from societal
\nconditions would be oppressive on the women and
\nagainst the privacy rights.\u201d
\n46. The learned Judge then went on to further hold that the
\nstandard of judicial scrutiny of legislations, which on their face
\neffect discrimination, is as follows:-
\n\u201c46. It is to be borne in mind that legislations with
\npronounced \u201cprotective discrimination\u201d aims, such
\nas this one, potentially serve as double-edged
\nswords. Strict scrutiny test should be employed
\nwhile assessing the implications of this variety of
\nlegislations. Legislation should not be only
\n38
\nassessed on its proposed aims but rather on the
\nimplications and the effects. The impugned
\nlegislation suffers from incurable fixations of
\nstereotype morality and conception of sexual role.
\nThe perspective thus arrived at is outmoded in
\ncontent and stifling in means.
\n47. No law in its ultimate effect should end up
\nperpetuating the oppression of women. Personal
\nfreedom is a fundamental tenet which cannot be
\ncompromised in the name of expediency until and
\nunless there is a compelling State purpose.
\nHeightened level of scrutiny is the normative
\nthreshold for judicial review in such cases.\u201d
\n47. Finally, the Court held:-
\n\u201c50. The test to review such a protective
\ndiscrimination statute would entail a two-pronged
\nscrutiny:
\n(a) the legislative interference (induced by
\nsex discriminatory legislation in the
\ninstant case) should be justified in
\nprinciple,
\n(b) the same should be proportionate in
\nmeasure.
\n51. The Court\u2019s task is to determine whether the
\nmeasures furthered by the State in the form of
\nlegislative mandate, to augment the legitimate aim
\nof protecting the interests of women are
\nproportionate to the other bulk of well-settled gender
\nnorms such as autonomy, equality of opportunity,
\nright to privacy, et al. The bottomline in this behalf
\nwould be a functioning modern democratic society
\nwhich ensures freedom to pursue varied
\nopportunities and options without discriminating on
\nthe basis of sex, race, caste or any other like basis.
\n39
\nIn fine, there should be a reasonable relationship of
\nproportionality between the means used and the
\naim pursued.\u201d
\n48. The Section which had been struck down by the High
\nCourt was held to be arbitrary and unreasonable by this Court
\nas well.
\n49. Close on the heels of this Court\u2019s judgment in Suresh
\nKumar Koushal (supra) is this Court\u2019s judgment in NALSA
\n(supra). In this case, the Court had to grapple with the trauma,
\nagony and pain of the members of the transgender community.
\nThe Court referred to Section 377 in the following words:
\n\u201c19. Section 377 IPC found a place in the Penal
\nCode, 1860, prior to the enactment of the Criminal
\nTribes Act that criminalised all penile non-vaginal
\nsexual acts between persons, including anal sex
\nand oral sex, at a time when transgender persons
\nwere also typically associated with the proscribed
\nsexual practices. Reference may be made to the
\njudgment of the Allahabad High Court in Queen
\nEmpress v. Khairati, ILR (1884) 6 All 204, wherein a
\ntransgender person was arrested and prosecuted
\nunder Section 377 on the suspicion that he was a
\n\u201chabitual sodomite\u201d and was later acquitted on
\nappeal. In that case, while acquitting him, the
\nSessions Judge stated as follows: (ILR pp. 204-05)
\n\u201c\u2026 \u2018This case relates to a person named
\nKhairati, over whom the police seem to
\nhave exercised some sort of supervision,
\nwhether strictly regular or not, as a
\n40
\neunuch. The man is not a eunuch in the
\nliteral sense, but he was called for by the
\npolice when on a visit to his village, and
\nwas found singing dressed as a woman
\namong the women of a certain family.
\nHaving been subjected to examination by
\nthe Civil Surgeon (and a subordinate
\nmedical man), he is shown to have the
\ncharacteristic mark of a habitual
\ncatamite\u2014the distortion of the orifice of
\nthe anus into the shape of a trumpet\u2014
\nand also to be affected with syphilis in the
\nsame region in a manner which distinctly
\npoints to unnatural intercourse within the
\nlast few months.\u2019\u201d
\nEven though, he was acquitted on appeal, this case
\nwould demonstrate that Section 377, though
\nassociated with specific sexual acts, highlighted
\ncertain identities, including hijras and was used as
\nan instrument of harassment and physical abuse
\nagainst hijras and transgender persons.\u201d
\n50. The Court went on to explain the concepts of gender
\nidentity and sexual orientation, and relied heavily upon
\nYogyakarta Principles on the Application of International
\nHuman Rights Law in Relation to Sexual Orientation and
\nGender Identity. The Court then went on to hold:
\n\u201c60. The principles discussed hereinbefore on TGs
\nand the international conventions, including
\nYogyakarta Principles, which we have found not
\ninconsistent with the various fundamental rights
\nguaranteed under the Indian Constitution, must be
\nrecognised and followed, which has sufficient legal
\nand historical justification in our country.\u201d
\n41
\n51. Insofar as Articles 15 and 16 of the Constitution were
\nconcerned, the Court held:
\n\u201c66. Articles 15 and 16 sought to prohibit
\ndiscrimination on the basis of sex, recognising that
\nsex discrimination is a historical fact and needs to
\nbe addressed. The Constitution-makers, it can be
\ngathered, gave emphasis to the fundamental right
\nagainst sex discrimination so as to prevent the
\ndirect or indirect attitude to treat people differently,
\nfor the reason of not being in conformity with
\nstereotypical generalisations of binary genders.
\nBoth gender and biological attributes constitute
\ndistinct components of sex. The biological
\ncharacteristics, of course, include genitals,
\nchromosomes and secondary sexual features, but
\ngender attributes include one’s self-image, the deep
\npsychological or emotional sense of sexual identity
\nand character. The discrimination on the ground of
\n\u201csex\u201d under Articles 15 and 16, therefore, includes
\ndiscrimination on the ground of gender identity. The
\nexpression \u201csex\u201d used in Articles 15 and 16 is not
\njust limited to biological sex of male or female, but
\nintended to include people who consider themselves
\nto be neither male nor female.\u201d
\n52. Insofar as Article 19(1)(a) of the Constitution and
\ntransgenders were concerned, the Court held:
\n\u201c72. Gender identity, therefore, lies at the core of
\none’s personal identity, gender expression and
\npresentation and, therefore, it will have to be
\nprotected under Article 19(1)(a) of the Constitution
\nof India. A transgender’s personality could be
\nexpressed by the transgender’s behaviour and
\npresentation. State cannot prohibit, restrict or
\n42
\ninterfere with a transgender’s expression of such
\npersonality, which reflects that inherent personality.
\nOften the State and its authorities either due to
\nignorance or otherwise fail to digest the innate
\ncharacter and identity of such persons. We,
\ntherefore, hold that values of privacy, self-identity,
\nautonomy and personal integrity are fundamental
\nrights guaranteed to members of the transgender
\ncommunity under Article 19(1)(a) of the Constitution
\nof India and the State is bound to protect and
\nrecognise those rights.\u201d
\n53. In a significant paragraph relating to the personal
\nautonomy of an individual, this Court held:
\n\u201c75. Article 21, as already indicated, guarantees the
\nprotection of \u201cpersonal autonomy\u201d of an individual.
\nIn Anuj Garg v. Hotel Assn. of India [(2008) 3 SCC
\n1] (SCC p. 15, paras 34-35), this Court held that
\npersonal autonomy includes both the negative right
\nof not to be subject to interference by others and the
\npositive right of individuals to make decisions about
\ntheir life, to express themselves and to choose
\nwhich activities to take part in. Self-determination of
\ngender is an integral part of personal autonomy and
\nself-expression and falls within the realm of
\npersonal liberty guaranteed under Article 21 of the
\nConstitution of India.\u201d
\n54. The conclusion therefore was:-
\n\u201c83. We, therefore, conclude that discrimination on
\nthe basis of sexual orientation or gender identity
\nincludes any discrimination, exclusion, restriction or
\npreference, which has the effect of nullifying or
\ntransposing equality by the law or the equal
\nprotection of laws guaranteed under our
\n43
\nConstitution, and hence we are inclined to give
\nvarious directions to safeguard the constitutional
\nrights of the members of the TG community.\u201d
\n55. Dr. A.K. Sikri, J., in a separate concurring judgment,
\nspoke of the fundamental and universal principle of the right of
\nchoice given to every individual, which is an inseparable part of
\nhuman rights. He then went on to hold:-
\n\u201c116.1. Though in the past TGs in India were treated
\nwith great respect, that does not remain the
\nscenario any longer. Attrition in their status was
\ntriggered with the passing of the Criminal Tribes Act,
\n1871 which deemed the entire community of hijra
\npersons as innately \u201ccriminal\u201d and \u201cadapted to the
\nsystematic commission of non-bailable offences\u201d.
\nThis dogmatism and indoctrination of the Indian
\npeople with aforesaid presumption, was totally
\ncapricious and nefarious. There could not have
\nbeen more harm caused to this community with the
\npassing of the aforesaid brutal legislation during the
\nBritish Regime with the vicious and savage mindset.
\nTo add insult to the irreparable injury caused,
\nSection 377 of the Penal Code was misused and
\nabused as there was a tendency, in the British
\nperiod, to arrest and prosecute TG persons under
\nSection 377 merely on suspicion. To undergo this
\nsordid historical harm caused to TGs of India, there
\nis a need for incessant efforts with effervescence.\u201d
\n56. And in paragraphs 125 and 129, he outlined the role of
\nour Court as follows:-
\n44
\n\u201c125. The role of the Court is to understand the
\ncentral purpose and theme of the Constitution for
\nthe welfare of the society. Our Constitution, like the
\nlaw of the society, is a living organism. It is based
\non a factual and social reality that is constantly
\nchanging. Sometimes a change in the law precedes
\nsocietal change and is even intended to stimulate it.
\nSometimes, a change in the law is the result in the
\nsocial reality. When we discuss about the rights of
\nTGs in the constitutional context, we find that in
\norder to bring about complete paradigm shift, the
\nlaw has to play more predominant role. As TGs in
\nIndia, are neither male nor female, treating them as
\nbelonging to either of the aforesaid categories, is
\nthe denial of these constitutional rights. It is the
\ndenial of social justice which in turn has the effect of
\ndenying political and economic justice.
\nXXX
\n129. As we have pointed out above, our Constitution
\ninheres liberal and substantive democracy with the
\nrule of law as an important and fundamental pillar. It
\nhas its own internal morality based on dignity and
\nequality of all human beings. The rule of law
\ndemands protection of individual human rights.
\nSuch rights are to be guaranteed to each and every
\nhuman being. These TGs, even though insignificant
\nin numbers, are still human beings and therefore
\nthey have every right to enjoy their human rights.\u201d
\n57. In an unusual final order, the Court declared:-
\n\u201c135. We, therefore, declare:
\n135.1. Hijras, eunuchs, apart from binary genders,
\nbe treated as \u201cthird gender\u201d for the purpose of
\nsafeguarding their rights under Part III of our
\nConstitution and the laws made by Parliament and
\nthe State Legislature.
\n45
\n135.2. Transgender persons’ right to decide their
\nself-identified gender is also upheld and the Centre
\nand State Governments are directed to grant legal
\nrecognition of their gender identity such as male,
\nfemale or as third gender.
\n135.3. We direct the Centre and the State
\nGovernments to take steps to treat them as Socially
\nand Educationally Backward Classes of citizens and
\nextend all kinds of reservation in cases of admission
\nin educational institutions and for public
\nappointments.
\n135.4. The Centre and State Governments are
\ndirected to operate separate HIV serosurveillance
\ncentres since hijras\/transgenders face several
\nsexual health issues.
\n135.5. The Centre and State Governments should
\nseriously address the problems being faced by
\nhijras\/transgenders such as fear, shame, gender
\ndysphoria, social pressure, depression, suicidal
\ntendencies, social stigma, etc. and any insistence
\nfor SRS for declaring one’s gender is immoral and
\nillegal.
\n135.6. The Centre and State Governments should
\ntake proper measures to provide medical care to
\nTGs in the hospitals and also provide them separate
\npublic toilets and other facilities.
\n135.7. The Centre and State Governments should
\nalso take steps for framing various social welfare
\nschemes for their betterment.
\n135.8. The Centre and State Governments should
\ntake steps to create public awareness so that TGs
\nwill feel that they are also part and parcel of the
\nsocial life and be not treated as untouchables.
\n135.9. The Centre and the State Governments
\nshould also take measures to regain their respect
\n46
\nand place in the society which once they enjoyed in
\nour cultural and social life.\u201d
\n58. Puttaswamy (supra) is the next important nail in the
\ncoffin of section 377 insofar as it pertains to consensual sex
\nbetween same-sex adults. In this judgment, Chandrachud, J.
\nreferred approvingly to the NALSA (supra) judgment in
\nparagraph 96 and went on to hold that privacy is intrinsic to
\nfreedom and liberty. In referring to Suresh Kumar Koushal
\n(supra), Chandrachud, J. referred to the judgment as \u201canother
\ndiscordant note\u201d which directly bears upon the evolution of
\nconstitutional jurisprudence on the right to privacy.
\nChandrachud, J. went on to castigate the judgment in Suresh
\nKumar Koushal (supra), and held:-
\n\u201c144. Neither of the above reasons can be regarded
\nas a valid constitutional basis for disregarding a
\nclaim based on privacy under Article 21 of the
\nConstitution. That \u201ca miniscule fraction of the
\ncountry’s population constitutes lesbians, gays,
\nbisexuals or transgenders\u201d (as observed in the
\njudgment of this Court) is not a sustainable basis to
\ndeny the right to privacy. The purpose of elevating
\ncertain rights to the stature of guaranteed
\nfundamental rights is to insulate their exercise from
\nthe disdain of majorities, whether legislative or
\npopular. The guarantee of constitutional rights does
\nnot depend upon their exercise being favourably
\nregarded by majoritarian opinion. The test of
\n47
\npopular acceptance does not furnish a valid basis to
\ndisregard rights which are conferred with the
\nsanctity of constitutional protection. Discrete and
\ninsular minorities face grave dangers of
\ndiscrimination for the simple reason that their views,
\nbeliefs or way of life does not accord with the
\n\u201cmainstream\u201d. Yet in a democratic Constitution
\nfounded on the Rule of Law, their rights are as
\nsacred as those conferred on other citizens to
\nprotect their freedoms and liberties. Sexual
\norientation is an essential attribute of privacy.
\nDiscrimination against an individual on the basis of
\nsexual orientation is deeply offensive to the dignity
\nand self-worth of the individual. Equality demands
\nthat the sexual orientation of each individual in
\nsociety must be protected on an even platform. The
\nright to privacy and the protection of sexual
\norientation lie at the core of the fundamental rights
\nguaranteed by Articles 14, 15 and 21 of the
\nConstitution.
\n145. The view in Koushal [Suresh Kumar Koushal v.
\nNaz Foundation, (2014) 1 SCC 1 : (2013) 4 SCC
\n(Cri) 1] that the High Court had erroneously relied
\nupon international precedents \u201cin its anxiety to
\nprotect the so-called rights of LGBT persons\u201d is
\nsimilarly, in our view, unsustainable. The rights of
\nthe lesbian, gay, bisexual and transgender
\npopulation cannot be construed to be \u201cso-called
\nrights\u201d. The expression \u201cso-called\u201d seems to
\nsuggest the exercise of a liberty in the garb of a
\nright which is illusory. This is an inappropriate
\nconstruction of the privacy-based claims of the
\nLGBT population. Their rights are not \u201cso-called\u201d but
\nare real rights founded on sound constitutional
\ndoctrine. They inhere in the right to life. They dwell
\nin privacy and dignity. They constitute the essence
\nof liberty and freedom. Sexual orientation is an
\nessential component of identity. Equal protection
\ndemands protection of the identity of every
\nindividual without discrimination.
\n48
\n146. The decision in Koushal [Suresh Kumar
\nKoushal v. Naz Foundation, (2014) 1 SCC 1 :
\n(2013) 4 SCC (Cri) 1] presents a de minimis
\nrationale when it asserts that there have been only
\ntwo hundred prosecutions for violating Section 377.
\nThe de minimis hypothesis is misplaced because
\nthe invasion of a fundamental right is not rendered
\ntolerable when a few, as opposed to a large number
\nof persons, are subjected to hostile treatment. The
\nreason why such acts of hostile discrimination are
\nconstitutionally impermissible is because of the
\nchilling effect which they have on the exercise of the
\nfundamental right in the first place. For instance,
\npre-publication restraints such as censorship are
\nvulnerable because they discourage people from
\nexercising their right to free speech because of the
\nfear of a restraint coming into operation. The chilling
\neffect on the exercise of the right poses a grave
\ndanger to the unhindered fulfilment of one’s sexual
\norientation, as an element of privacy and dignity.
\nThe chilling effect is due to the danger of a human
\nbeing subjected to social opprobrium or disapproval,
\nas reflected in the punishment of crime. Hence the
\nKoushal [Suresh Kumar Koushal v. Naz Foundation,
\n(2014) 1 SCC 1 : (2013) 4 SCC (Cri) 1] rationale
\nthat prosecution of a few is not an index of violation
\nis flawed and cannot be accepted. Consequently,
\nwe disagree with the manner in which Koushal
\n[Suresh Kumar Koushal v. Naz Foundation, (2014)
\n1 SCC 1 : (2013) 4 SCC (Cri) 1] has dealt with the
\nprivacy-dignity based claims of LGBT persons on
\nthis aspect.
\n147. Since the challenge to Section 377 is pending
\nconsideration before a larger Bench of this Court,
\nwe would leave the constitutional validity to be
\ndecided in an appropriate proceeding.\u201d
\n49
\n59. In an important paragraph, the learned Judge finally held:
\n\u201c323. Privacy includes at its core the preservation of
\npersonal intimacies, the sanctity of family life,
\nmarriage, procreation, the home and sexual
\norientation. Privacy also connotes a right to be left
\nalone. Privacy safeguards individual autonomy and
\nrecognises the ability of the individual to control vital
\naspects of his or her life. Personal choices
\ngoverning a way of life are intrinsic to privacy.
\nPrivacy protects heterogeneity and recognises the
\nplurality and diversity of our culture. While the
\nlegitimate expectation of privacy may vary from the
\nintimate zone to the private zone and from the
\nprivate to the public arenas, it is important to
\nunderscore that privacy is not lost or surrendered
\nmerely because the individual is in a public place.
\nPrivacy attaches to the person since it is an
\nessential facet of the dignity of the human being.\u201d
\n60. Nariman, J., in his judgment, which was concurred in by
\nthree other learned Judges, recognized the privacy of choice
\nwhich protects an individual\u2019s autonomy over fundamental
\npersonal choices as follows:-
\n\u201c521. In the Indian context, a fundamental right to
\nprivacy would cover at least the following three
\naspects:
\n\u2022 Privacy that involves the person i.e. when there is
\nsome invasion by the State of a person’s rights
\nrelatable to his physical body, such as the right to
\nmove freely;
\n\u2022 Informational privacy which does not deal with a
\nperson’s body but deals with a person’s mind, and
\ntherefore recognises that an individual may have
\n50
\ncontrol over the dissemination of material that is
\npersonal to him. Unauthorised use of such
\ninformation may, therefore lead to infringement of
\nthis right; and
\n\u2022 The privacy of choice, which protects an
\nindividual’s autonomy over fundamental personal
\nchoices.
\nFor instance, we can ground physical privacy or
\nprivacy relating to the body in Articles 19(1)(d) and
\n(e) read with Article 21; ground personal information
\nprivacy under Article 21; and the privacy of choice in
\nArticles 19(1)(a) to (c), 20(3), 21 and 25. The
\nargument based on \u201cprivacy\u201d being a vague and
\nnebulous concept need not, therefore, detain us.\u201d
\n61. Kaul, J., in a separate judgment, also joined
\nChandrachud, J. in castigating Suresh Kumar Koushal\u2019s
\njudgment as follows:
\n\u201c647. There are two aspects of the opinion of Dr
\nD.Y. Chandrachud, J., one of which is common to
\nthe opinion of Rohinton F. Nariman, J., needing
\nspecific mention. While considering the evolution of
\nconstitutional jurisprudence on the right to privacy
\nhe has referred to the judgment in Suresh Kumar
\nKoushal v. Naz Foundation [Suresh Kumar Koushal
\nv. Naz Foundation, (2014) 1 SCC 1 : (2013) 4 SCC
\n(Cri) 1]. In the challenge laid to Section 377 of the
\nPenal Code before the Delhi High Court, one of the
\ngrounds of challenge was that the said provision
\namounted to an infringement of the right to dignity
\nand privacy. The Delhi High Court, inter alia,
\nobserved [Naz Foundation v. Govt. (NCT of Delhi),
\n2009 SCC OnLine Del 1762 : 2010 Cri LJ 94] that
\nthe right to live with dignity and the right to privacy
\nboth are recognised as dimensions of Article 21 of
\n51
\nthe Constitution of India. The view of the High Court,
\nhowever did not find favour with the Supreme Court
\nand it was observed that only a miniscule fraction of
\nthe country’s population constitutes lesbians, gays,
\nbisexuals or transgenders and thus, there cannot be
\nany basis for declaring the section ultra vires of
\nprovisions of Articles 14, 15 and 21 of the
\nConstitution. The matter did not rest at this, as the
\nissue of privacy and dignity discussed by the High
\nCourt was also observed upon. The sexual
\norientation even within the four walls of the house
\nthus became an aspect of debate. I am in
\nagreement with the view of Dr D.Y. Chandrachud,
\nJ., who in paras 144 to 146 of his judgment, states
\nthat the right to privacy cannot be denied, even if
\nthere is a miniscule fraction of the population which
\nis affected. The majoritarian concept does not apply
\nto constitutional rights and the courts are often
\ncalled up on to take what may be categorised as a
\nnon-majoritarian view, in the check and balance of
\npower envisaged under the Constitution of India.
\nOne’s sexual orientation is undoubtedly an attribute
\nof privacy. The observations made in Mosley v.
\nNews Group Papers Ltd. [Mosley v. News Group
\nPapers Ltd., 2008 EWHC 1777 (QB)], in a broader
\nconcept may be usefully referred to:
\n\u201c130. \u2026 It is not simply a matter of
\npersonal privacy versus the public interest.
\nThe modern perception is that there is a
\npublic interest in respecting personal
\nprivacy. It is thus a question of taking
\naccount of conflicting public interest
\nconsiderations and evaluating them
\naccording to increasingly well-recognised
\ncriteria.
\n131. When the courts identify an
\ninfringement of a person’s Article 8 rights,
\nand in particular in the context of his
\nfreedom to conduct his sex life and
\n52
\npersonal relationships as he wishes, it is
\nright to afford a remedy and to vindicate
\nthat right. The only permitted exception is
\nwhere there is a countervailing public
\ninterest which in the particular
\ncircumstances is strong enough to
\noutweigh it; that is to say, because one at
\nleast of the established \u201climiting principles\u201d
\ncomes into play. Was it necessary and
\nproportionate for the intrusion to take
\nplace, for example, in order to expose
\nillegal activity or to prevent the public from
\nbeing significantly misled by public claims
\nhitherto made by the individual concerned
\n(as with Naomi Campbell’s public denials
\nof drug-taking)? Or was it necessary
\nbecause the information, in the words of
\nthe Strasbourg Court in Von Hannover
\n[Von Hannover v. Germany, (2004) 40
\nEHRR 1] at pp. 60 and 76, would make a
\ncontribution to \u201ca debate of general
\ninterest\u201d? That is, of course, a very high
\ntest, it is yet to be determined how far that
\ndoctrine will be taken in the courts of this
\njurisdiction in relation to photography in
\npublic places. If taken literally, it would
\nmean a very significant change in what is
\npermitted. It would have a profound effect
\non the tabloid and celebrity culture to which
\nwe have become accustomed in recent
\nyears.\u201d
\n62. Close upon the heels of these three judgments are three
\nother important recent decisions. In Common Cause v. Union
\nof India, 2018 5 SCC 1, a case dealing with euthanasia, Dipak
\nMisra, C.J., states as under:-
\n53
\n\u201c166. The purpose of saying so is only to highlight
\nthat the law must take cognizance of the changing
\nsociety and march in consonance with the
\ndeveloping concepts. The need of the present has
\nto be served with the interpretative process of law.
\nHowever, it is to be seen how much strength and
\nsanction can be drawn from the Constitution to
\nconsummate the changing ideology and convert it
\ninto a reality. The immediate needs are required to
\nbe addressed through the process of interpretation
\nby the Court unless the same totally falls outside the
\nconstitutional framework or the constitutional
\ninterpretation fails to recognise such dynamism. The
\nConstitution Bench in Gian Kaur [Gian Kaur v. State
\nof Punjab, (1996) 2 SCC 648 : 1996 SCC (Cri) 374],
\nas stated earlier, distinguishes attempt to suicide
\nand abetment of suicide from acceleration of the
\nprocess of natural death which has commenced.
\nThe authorities, we have noted from other
\njurisdictions, have observed the distinctions
\nbetween the administration of lethal injection or
\ncertain medicines to cause painless death and nonadministration
\nof certain treatment which can
\nprolong the life in cases where the process of dying
\nthat has commenced is not reversible or withdrawal
\nof the treatment that has been given to the patient
\nbecause of the absolute absence of possibility of
\nsaving the life. To explicate, the first part relates to
\nan overt act whereas the second one would come
\nwithin the sphere of informed consent and
\nauthorised omission. The omission of such a nature
\nwill not invite any criminal liability if such action is
\nguided by certain safeguards. The concept is based
\non non-prolongation of life where there is no cure for
\nthe state the patient is in and he, under no
\ncircumstances, would have liked to have such a
\ndegrading state. The words \u201cno cure\u201d have to be
\nunderstood to convey that the patient remains in the
\nsame state of pain and suffering or the dying
\nprocess is delayed by means of taking recourse to
\n54
\nmodern medical technology. It is a state where the
\ntreating physicians and the family members know
\nfully well that the treatment is administered only to
\nprocrastinate the continuum of breath of the
\nindividual and the patient is not even aware that he
\nis breathing. Life is measured by artificial heartbeats
\nand the patient has to go through this undignified
\nstate which is imposed on him. The dignity of life is
\ndenied to him as there is no other choice but to
\nsuffer an avoidable protracted treatment thereby
\nthus indubitably casting a cloud and creating a dent
\nin his right to live with dignity and face death with
\ndignity, which is a preserved concept of bodily
\nautonomy and right to privacy. In such a stage, he
\nhas no old memories or any future hopes but he is
\nin a state of misery which nobody ever desires to
\nhave. Some may also silently think that death, the
\ninevitable factum of life, cannot be invited. To meet
\nsuch situations, the Court has a duty to interpret
\nArticle 21 in a further dynamic manner and it has to
\nbe stated without any trace of doubt that the right to
\nlife with dignity has to include the smoothening of
\nthe process of dying when the person is in a
\nvegetative state or is living exclusively by the
\nadministration of artificial aid that prolongs the life
\nby arresting the dignified and inevitable process of
\ndying. Here, the issue of choice also comes in. Thus
\nanalysed, we are disposed to think that such a right
\nwould come within the ambit of Article 21 of the
\nConstitution.
\nL. Right of self-determination and individual
\nautonomy
\n167. Having dealt with the right to acceleration of
\nthe process of dying a natural death which is
\narrested with the aid of modern innovative
\ntechnology as a part of Article 21 of the Constitution,
\nit is necessary to address the issues of right of selfdetermination
\nand individual autonomy.
\n55
\n168. John Rawls says that the liberal concept of
\nautonomy focuses on choice and likewise, selfdetermination
\nis understood as exercised through
\nthe process of choosing [Rawls, John, Political
\nLiberalism, 32, 33 (New York: Columbia University
\nPress, 1993)]. The respect for an individual human
\nbeing and in particular for his right to choose how he
\nshould live his own life is individual autonomy or the
\nright of self-determination. It is the right against noninterference
\nby others, which gives a competent
\nperson who has come of age the right to make
\ndecisions concerning his or her own life and body
\nwithout any control or interference of others. Lord
\nHoffman, in Reeves v. Commr. of Police of the
\nMetropolis [Reeves v. Commr. of Police of the
\nMetropolis, (2000) 1 AC 360 : (1993) 3 WLR 363
\n(HL)] has stated: (AC p. 369 B)
\n\u201c\u2026 Autonomy means that every individual
\nis sovereign over himself and cannot be
\ndenied the right to certain kinds of
\nbehaviour, even if intended to cause his
\nown death.\u201d
\nXXX
\n202.8. An inquiry into Common Law jurisdictions
\nreveals that all adults with capacity to consent have
\nthe right of self-determination and autonomy. The
\nsaid rights pave the way for the right to refuse
\nmedical treatment which has acclaimed universal
\nrecognition. A competent person who has come of
\nage has the right to refuse specific treatment or all
\ntreatment or opt for an alternative treatment, even if
\nsuch decision entails a risk of death. The
\n\u201cEmergency Principle\u201d or the \u201cPrinciple of Necessity\u201d
\nhas to be given effect to only when it is not
\npracticable to obtain the patient’s consent for
\ntreatment and his\/her life is in danger. But where a
\npatient has already made a valid Advance Directive
\nwhich is free from reasonable doubt and specifying
\n56
\nthat he\/she does not wish to be treated, then such
\ndirective has to be given effect to.\u201d
\n63. In the same case, Chandrachud J. went on to hold:
\n\u201c437. Under our Constitution, the inherent value
\nwhich sanctifies life is the dignity of existence.
\nRecognising human dignity is intrinsic to preserving
\nthe sanctity of life. Life is truly sanctified when it is
\nlived with dignity. There exists a close relationship
\nbetween dignity and the quality of life. For, it is only
\nwhen life can be lived with a true sense of quality
\nthat the dignity of human existence is fully realised.
\nHence, there should be no antagonism between the
\nsanctity of human life on the one hand and the
\ndignity and quality of life on the other hand. Quality
\nof life ensures dignity of living and dignity is but a
\nprocess in realising the sanctity of life.
\n438. Human dignity is an essential element of a
\nmeaningful existence. A life of dignity comprehends
\nall stages of living including the final stage which
\nleads to the end of life. Liberty and autonomy are
\nessential attributes of a life of substance. It is liberty
\nwhich enables an individual to decide upon those
\nmatters which are central to the pursuit of a
\nmeaningful existence. The expectation that the
\nindividual should not be deprived of his or her
\ndignity in the final stage of life gives expression to
\nthe central expectation of a fading life: control over
\npain and suffering and the ability to determine the
\ntreatment which the individual should receive. When
\nsociety assures to each individual a protection
\nagainst being subjected to degrading treatment in
\nthe process of dying, it seeks to assure basic
\nhuman dignity. Dignity ensures the sanctity of life.
\nThe recognition afforded to the autonomy of the
\nindividual in matters relating to end-of-life decisions
\n57
\nis ultimately a step towards ensuring that life does
\nnot despair of dignity as it ebbs away.
\nXXX
\n441. The protective mantle of privacy covers certain
\ndecisions that fundamentally affect the human life
\ncycle. [Richard Delgado, \u201cEuthanasia
\nReconsidered\u2014The Choice of Death as an Aspect
\nof the Right of Privacy\u201d, Arizona Law Review (1975),
\nVol. 17, at p. 474.] It protects the most personal and
\nintimate decisions of individuals that affect their life
\nand development. [Ibid.] Thus, choices and
\ndecisions on matters such as procreation,
\ncontraception and marriage have been held to be
\nprotected. While death is an inevitable end in the
\ntrajectory of the cycle of human life of individuals
\nare often faced with choices and decisions relating
\nto death. Decisions relating to death, like those
\nrelating to birth, sex, and marriage, are protected by
\nthe Constitution by virtue of the right of privacy. The
\nright to privacy resides in the right to liberty and in
\nthe respect of autonomy. [T.L. Beauchamp, \u201cThe
\nRight to Privacy and the Right to Die\u201d, Social
\nPhilosophy and Policy (2000), Vol. 17, at p. 276.]
\nThe right to privacy protects autonomy in making
\ndecisions related to the intimate domain of death as
\nwell as bodily integrity. Few moments could be of as
\nmuch importance as the intimate and private
\ndecisions that we are faced regarding death. [Ibid.]
\nContinuing treatment against the wishes of a patient
\nis not only a violation of the principle of informed
\nconsent, but also of bodily privacy and bodily
\nintegrity that have been recognised as a facet of
\nprivacy by this Court.\u201d
\n64. Similarly, in Shafin Jahan v. Asokan K.M., 2018 SCC
\nOnline 343, this Court was concerned with the right of an adult
\n58
\ncitizen to make her own marital choice. The learned Chief
\nJustice referred to Articles 19 and 21 of the Constitution of India
\nas follows:-
\n\u201c28. Thus, the pivotal purpose of the said writ is to
\nsee that no one is deprived of his\/her liberty without
\nsanction of law. It is the primary duty of the State to
\nsee that the said right is not sullied in any manner
\nwhatsoever and its sanctity is not affected by any
\nkind of subterfuge. The role of the Court is to see
\nthat the detenue is produced before it, find out about
\nhis\/her independent choice and see to it that the
\nperson is released from illegal restraint. The issue
\nwill be a different one when the detention is not
\nillegal. What is seminal is to remember that the song
\nof liberty is sung with sincerity and the choice of an
\nindividual is appositely respected and conferred its
\nesteemed status as the Constitution guarantees. It
\nis so as the expression of choice is a fundamental
\nright under Articles 19 and 21 of the Constitution, if
\nthe said choice does not transgress any valid legal
\nframework. Once that aspect is clear, the enquiry
\nand determination have to come to an end.
\nXXX
\n54. It is obligatory to state here that expression of
\nchoice in accord with law is acceptance of individual
\nidentity. Curtailment of that expression and the
\nultimate action emanating therefrom on the
\nconceptual structuralism of obeisance to the societal
\nwill destroy the individualistic entity of a person. The
\nsocial values and morals have their space but they
\nare not above the constitutionally guaranteed
\nfreedom. The said freedom is both a constitutional
\nand a human right. Deprivation of that freedom
\nwhich is ingrained in choice on the plea of faith is
\nimpermissible. Faith of a person is intrinsic to
\n59
\nhis\/her meaningful existence. To have the freedom
\nof faith is essential to his\/her autonomy; and it
\nstrengthens the core norms of the Constitution.
\nChoosing a faith is the substratum of individuality
\nand sans it, the right of choice becomes a shadow.
\nIt has to be remembered that the realization of a
\nright is more important than the conferment of the
\nright. Such actualization indeed ostracises any kind
\nof societal notoriety and keeps at bay the patriarchal
\nsupremacy. It is so because the individualistic faith
\nand expression of choice are fundamental for the
\nfructification of the right. Thus, we would like to call
\nit indispensable preliminary condition.\u201d
\n65. In another recent judgment of a three-Judge Bench, in
\nShakti Vahini v. Union of India, 2018 SCC Online SC 275,
\nwhich dealt with honour killings, this Court held:-
\n\u201c44. Honour killing guillotines individual liberty,
\nfreedom of choice and one’s own perception of
\nchoice. It has to be sublimely borne in mind that
\nwhen two adults consensually choose each other as
\nlife partners, it is a manifestation of their choice
\nwhich is recognized under Articles 19 and 21 of the
\nConstitution. Such a right has the sanction of the
\nconstitutional law and once that is recognized, the
\nsaid right needs to be protected and it cannot
\nsuccumb to the conception of class honour or group
\nthinking which is conceived of on some notion that
\nremotely does not have any legitimacy.
\n45. The concept of liberty has to be weighed and
\ntested on the touchstone of constitutional sensitivity,
\nprotection and the values it stands for. It is the
\nobligation of the Constitutional Courts as the
\nsentinel on qui vive to zealously guard the right to
\nliberty of an individual as the dignified existence of
\n60
\nan individual has an inseparable association with
\nliberty. Without sustenance of liberty, subject to
\nconstitutionally valid provisions of law, the life of a
\nperson is comparable to the living dead having to
\nendure cruelty and torture without protest and
\ntolerate imposition of thoughts and ideas without a
\nvoice to dissent or record a disagreement. The
\nfundamental feature of dignified existence is to
\nassert for dignity that has the spark of divinity and
\nthe realization of choice within the parameters of
\nlaw without any kind of subjugation. The purpose of
\nlaying stress on the concepts of individual dignity
\nand choice within the framework of liberty is of
\nparamount importance. We may clearly and
\nemphatically state that life and liberty sans dignity
\nand choice is a phenomenon that allows hollowness
\nto enter into the constitutional recognition of identity
\nof a person.
\n46. The choice of an individual is an inextricable
\npart of dignity, for dignity cannot be thought of
\nwhere there is erosion of choice. True it is, the same
\nis bound by the principle of constitutional limitation
\nbut in the absence of such limitation, none, we
\nmean, no one shall be permitted to interfere in the
\nfructification of the said choice. If the right to
\nexpress one’s own choice is obstructed, it would be
\nextremely difficult to think of dignity in its sanctified
\ncompleteness. When two adults marry out of their
\nvolition, they choose their path; they consummate
\ntheir relationship; they feel that it is their goal and
\nthey have the right to do so. And it can
\nunequivocally be stated that they have the right and
\nany infringement of the said right is a constitutional
\nviolation. The majority in the name of class or
\nelevated honour of clan cannot call for their
\npresence or force their appearance as if they are
\nthe monarchs of some indescribable era who have
\nthe power, authority and final say to impose any
\nsentence and determine the execution of the same
\nin the way they desire possibly harbouring the
\n61
\nnotion that they are a law unto themselves or they
\nare the ancestors of Caesar or, for that matter,
\nLouis the XIV. The Constitution and the laws of this
\ncountry do not countenance such an act and, in fact,
\nthe whole activity is illegal and punishable as
\noffence under the criminal law.\u201d
\nMental Healthcare Act, 2017
\n66. Parliament is also alive to privacy interests and the fact
\nthat persons of the same-sex who cohabit with each other are
\nentitled to equal treatment.
\n67. A recent enactment, namely the Mental Healthcare Act,
\n2017, throws a great deal of light on recent parliamentary
\nlegislative understanding and acceptance of constitutional
\nvalues as reflected by this Court\u2019s judgments. Section 2(s) of
\nthe Act defines mental illness, which reads as under:
\n\u201c2(s) \u201cmental illness\u201d means a substantial disorder
\nof thinking, mood, perception, orientation or memory
\nthat grossly impairs judgment, behaviour, capacity
\nto recognise reality or ability to meet the ordinary
\ndemands of life, mental conditions associated with
\nthe abuse of alcohol and drugs, but does not include
\nmental retardation which is a condition of arrested
\nor incomplete development of mind of a person,
\nspecially characterised by subnormality of
\nintelligence;\u201d
\n62
\n68. This definition throws to the winds all earlier
\nmisconceptions of mental illness including the fact that samesex
\ncouples who indulge in anal sex are persons with mental
\nillness. At one point of time, the thinking in Victorian England
\nand early on in America was that homosexuality was to be
\nconsidered as a mental disorder. The amicus curiae brief of the
\nAmerican Psychiatric Association in support of the petitioners in
\nLawrence v. Texas (supra) has put paid to this notion. This
\nbrief set out the research that has been done in this area as
\nfollows:
\n\u201cD. The Recognition That Homosexuality Is Not
\nA \u201cMental Disorder\u201d
\nThe American mental health professions concluded
\nmore than a quarter-century ago that homosexuality
\nis not a mental disorder. That conclusion was
\nreached after decades of study of homosexuality by
\nindependent researchers, as well as numerous
\nattempts by practitioners in the mental-health
\nprofessions to effectuate a change in individuals\u2019
\nsexual orientation. During the first half of the 20th
\ncentury, many mental health professionals regarded
\nhomosexuality as a pathological condition, but that
\nperspective reflected untested assumptions
\nsupported largely by clinical impressions of patients
\nseeking therapy and individuals whose conduct
\nbrought them into the criminal justice system. See
\nJ.C. Gonsiorek, The Empirical Basis for the Demise
\nof the Illness Model of Homosexuality, in
\nHomosexuality: Research Implications for Public
\n63
\nPolicy 115 (J.C. Gonsiorek & J.D. Weinrich eds.,
\n1991). Those assumptions were not subjected to
\nrigorous scientific scrutiny with nonclinical,
\nnonincarcerated samples until the latter half of the
\ncentury. Once the notion that homosexuality is
\nlinked to mental illness was empirically tested, it
\nproved to be based on untenable assumptions and
\nvalue judgments.
\nIn one of the first rigorous examinations of the
\nmental health status of homosexuality, Dr. Evelyn
\nHooker administered a battery of standard
\npsychological tests to homosexual and heterosexual
\nmen who were matched for age, IQ, and education.
\nSee Evelyn Hooker, The Adjustment of the Male
\nOvert Homosexual, 21 J. Projective Techniques 17-
\n31 (1957). None of the men was in therapy at the
\ntime of the study. Based on the ratings of expert
\njudges who were kept unaware of the men\u2019s sexual
\norientation, Hooker determined that homosexual
\nand heterosexual men could not be distinguished
\nfrom one another on the basis of the psychological
\ntesting, and that a similar majority of the two groups
\nappeared to be free of psychopathology. She
\nconcluded from her data that homosexuality is not
\ninherently associated with psychopathology and that
\n\u201chomosexuality as a clinical entity does not exist.\u201d
\nId. at 18-19. Hooker\u2019s findings were followed over
\nthe next two decades by numerous studies, using a
\nvariety of research techniques, which similarly
\nconcluded that homosexuality is not related to
\npsychopathology or social maladjustment.
\nIn 1973, in recognition that scientific data do not
\nindicate that a homosexual orientation is inherently
\nassociated with psychopathology, amicus American
\nPsychiatric Association\u2019s Board of Trustees voted to
\nremove homosexuality from the Psychiatric
\nAssociation\u2019s Diagnostic and Statistical Manual of
\nMental Disorders. That resolution stated that
\n\u201chomosexuality per se implies no impairment in
\n64
\njudgment, stability, reliability, or general social or
\nvocational capabilities.\u201d Am. Psychiatric Ass\u2019n,
\nPosition Statement on Homosexuality and Civil
\nRights (Dec. 15, 1973), printed in 131 Am. J.
\nPsychiatry 497 (1974). That decision was upheld by
\na vote of the Psychiatric Association\u2019s membership
\nthe following year. After a thorough review of the
\nscientific evidence, amicus American Psychological
\nAssociation adopted the same position in 1975, and
\nurged all mental health professionals to help dispel
\nthe stigma of mental illness that had long been
\nassociated with homosexual orientation. See Am.
\nPsychol. Ass\u2019n, Minutes of the Annual Meeting of
\nthe Council of Representatives, 30 Am.
\nPsychologist 620, 633 (1975). Amicus National
\nAssociation of Social Workers (NASW) has adopted
\na similar policy. See NASW, Policy Statement on
\nLesbian and Gay Issues (Aug. 1993) (approved by
\nNASW Delegate Assembly), reprinted in NASW,
\nSocial Work Speaks: NASW Policy Statements 162
\n(3d ed. 1994).
\nOf course, as is the case for heterosexuals, some
\nhomosexuals have mental illnesses, psychological
\ndisturbances, or poor social adjustment. Gay men,
\nlesbians, and bisexuals also may be at somewhat
\ngreater risk for some kinds of psychological
\nproblems because of stresses associated with the
\nexperiences of social stigma and prejudice (see pp.
\n23-27, infra). But research conducted over four
\ndecades has established that \u201chomosexuality in and
\nof itself bears no necessary relationship to
\npsychological adjustment.\u201d The efforts to \u201ccure\u201d
\nhomosexuality that were prevalent in earlier
\ngenerations\u2014which included hypnosis,
\nadministration of hormones, aversive conditioning
\nwith electric shock or nausea-inducing drugs,
\nlobotomy, electroshock, and castration\u2014are now
\nregarded by the mental-health professions as
\nregrettable.\u201d
\n65
\n69. It also outlined the prejudice, discrimination and violence
\nthat has been encountered by gay people, as follows:
\n\u201cA. Discrimination, Prejudice, And Violence
\nEncountered By Gay People
\nLesbians and gay men in the United States
\nencounter extensive prejudice, discrimination, and
\nviolence because of their sexual orientation. Intense
\nprejudice against gay men and lesbians was
\nwidespread throughout much of the 20th century;
\npublic opinion studies routinely showed that, among
\nlarge segments of the public, gay people were the
\ntarget of strong antipathy. Although a shift in public
\nopinion concerning homosexuality occurred in the
\n1990s, hostility toward gay men and lesbians
\nremains common in contemporary American
\nsociety. Prejudice against bisexuals appears to exist
\nat comparable levels. Discrimination against gay
\npeople in employment and housing also appears to
\nremain widespread.
\nThe severity of this anti-gay prejudice is reflected in
\nthe consistently high rate of anti-gay harassment
\nand violence in American society. Numerous
\nsurveys indicate that verbal harassment and abuse
\nare nearly universal experiences of gay people.
\nAlthough physical violence is less common,
\nsubstantial numbers of gay people report having
\nexperienced crimes against their person or property
\nbecause of their sexual orientation. In 2001, the
\nmost recent year for which FBI statistics are
\navailable, there were 1,375 reported bias motivated
\nincidents against gay men, lesbians, and bisexuals.
\nThat figure likely represents only a fraction of such
\ncrimes, because reporting of hate crimes by law
\nenforcement agencies is voluntary, the
\nthoroughness of police statistics differs widely
\n66
\namong jurisdictions, and many victims do not report
\ntheir experiences to police because they fear further
\nharassment or lack confidence that the assailants
\nwill be caught.
\nAlthough homosexuality is not a mental disorder,
\nthis societal prejudice against gay men and lesbians
\ncan cause them real and substantial psychological
\nharm. Research indicates that experiencing
\nrejection, discrimination, and violence is associated
\nwith heightened psychological distress among gay
\nmen and lesbians. These problems are exacerbated
\nby the fact that, because of anti-gay stigma, gay
\nmen and lesbians have less access to social
\nsupport and other resources that assist
\nheterosexuals in coping with stress. Although many
\ngay men and lesbians learn to cope with the social
\nstigma against homosexuality, efforts to avoid that
\nsocial stigma through attempts to conceal or
\ndissimulate sexual orientation can be seriously
\ndamaging to the psychological well-being of gay
\npeople. Lesbians and gay men have been found to
\nmanifest better mental health to the extent that they
\nfeel positively about their sexual orientation and
\nhave integrated it into their lives through \u201ccoming
\nout\u201d and participating in the gay community. Being
\nable to disclose one\u2019s sexual orientation to others
\nalso increases the availability of social support,
\nwhich is crucial to mental health.\u201d
\n70. Expressing its approval of the position taken by the
\nAmerican Psychiatric Association, the Indian Psychiatric
\nSociety in its recent Position Statement on Homosexuality
\ndated 02.07.2018 has stated:-
\n67
\n\u201cIn the opinion of the Indian Psychiatric Society
\n(IPS) homosexuality is not a psychiatric disorder.
\nThis is in line with the position of American
\nPsychiatric Association and The International
\nClassification of Diseases of the World health
\nOrganization which removed homosexuality from
\nthe list of psychiatric disorders in 1973 and 1992
\nrespectively.
\nThe I.P.S recognizes same-sex sexuality as a
\nnormal variant of human sexuality much like
\nheterosexuality and bisexuality. There is no
\nscientific evidence that sexual orientation can be
\naltered by any treatment and that any such attempts
\nmay in fact lead to low self-esteem and
\nstigmatization of the person.
\nThe Indian Psychiatric Society further supports decriminalization
\nof homosexual behavior.\u201d
\n71. The US Supreme Court, in its decision in Obergefell et
\nal. v. Hodges, Director, Ohio Department of Health, et al.,
\n576 US (2015), also took note of the enormous sufferings of
\nhomosexual persons in the time gap between Bowers (supra)
\nand Lawrence v. Texas (supra), in the following words:-
\n\u201cThis is not the first time the Court has been asked
\nto adopt a cautious approach to recognizing and
\nprotecting fundamental rights. In Bowers, a bare
\nmajority upheld a law criminalizing same-sex
\nintimacy. See 478 U.S., at 186, 190\u2013195. That
\napproach might have been viewed as a cautious
\nendorsement of the democratic process, which had
\nonly just begun to consider the rights of gays and
\nlesbians. Yet, in effect, Bowers upheld state action
\n68
\nthat denied gays and lesbians a fundamental right
\nand caused them pain and humiliation. As
\nevidenced by the dissents in that case, the facts and
\nprinciples necessary to a correct holding were
\nknown to the Bowers Court. See id., at 199
\n(Blackmun, J., joined by Brennan, Marshall, and
\nStevens, JJ., dissenting); id., at 214 (Stevens, J.,
\njoined by Brennan and Marshall, JJ., dissenting).
\nThat is why Lawrence held Bowers was \u201cnot correct
\nwhen it was decided.\u201d 539 U.S., at 578. Although
\nBowers was eventually repudiated in Lawrence,
\nmen and women were harmed in the interim, and
\nthe substantial effects of these injuries no doubt
\nlingered long after Bowers was overruled. Dignitary
\nwounds cannot always be healed with the stroke of
\na pen.\u201d
\n72. The present definition of mental illness in the 2017
\nParliamentary statute makes it clear that homosexuality is not
\nconsidered to be a mental illness. This is a major advance in
\nour law which has been recognized by the Parliament itself.
\nFurther, this is buttressed by Section 3 of the Act which reads
\nas follows:-
\n\u201c3. Determination of Mental Illness. (1) Mental
\nillness shall be determined in accordance with such
\nnationally or internationally accepted medical
\nstandards (including the latest edition of the
\nInternational Classification of Disease of the World
\nHealth Organisation) as may be notified by the
\nCentral Government.
\n(2) No person or authority shall classify a person as
\na person with mental illness, except for purposes
\n69
\ndirectly relating to the treatment of the mental illness
\nor in other matters as covered under this Act or any
\nother law for the time being in force.
\n(3) Mental illness of a person shall not be
\ndetermined on the basis of\u2013\u2013
\n(a) political, economic or social status or
\nmembership of a cultural, racial or religious
\ngroup, or for any other reason not directly
\nrelevant to mental health status of the person;
\n(b) non-conformity with moral, social, cultural,
\nwork or political values or religious beliefs
\nprevailing in a person\u2019s community.
\n(4) Past treatment or hospitalisation in a mental
\nhealth establishment though relevant, shall not
\nby itself justify any present or future
\ndetermination of the person\u2019s mental illness.
\n(5) The determination of a person\u2019s mental
\nillness shall alone not imply or be taken to
\nmean that the person is of unsound mind
\nunless he has been declared as such by a
\ncompetent court.\u201d
\n73. Mental illness in our statute has to keep pace with
\ninternational notions and accepted medical standards including
\nthe latest edition of the International Classification of Diseases
\nof the World Health Organization under Section 3(1) of the Act.
\nUnder Section 3(3), mental illness shall not be determined on
\nthe basis of social status or membership of a cultural group or
\nfor any other reason not directly relevant to the mental health of
\n70
\nthe person. More importantly, mental illness shall not be
\ndetermined on the basis of non-conformity with moral, social,
\ncultural, work or political values or religious beliefs prevailing in
\na person\u2019s community. It is thus clear that Parliament has
\nunequivocally declared that the earlier stigma attached to
\nsame-sex couples, as persons who are regarded as mentally ill,
\nhas gone for good. This is another very important step forward
\ntaken by the legislature itself which has undermined one of the
\nbasic underpinnings of the judgment in Suresh Kumar
\nKoushal (supra).
\nSection 21(1)(a) is important and set out hereinbelow:
\n\u201c21. Right to equality and non-discrimination. (1)
\nEvery person with mental illness shall be treated as
\nequal to persons with physical illness in the
\nprovision of all healthcare which shall include the
\nfollowing, namely:\u2013
\n(a) there shall be no discrimination on any basis
\nincluding gender, sex, sexual orientation,
\nreligion, culture, caste, social or political
\nbeliefs, class or disability;\u201d
\n74. This Section is parliamentary recognition of the fact that
\ngay persons together with other persons are liable to be
\naffected with mental illness, and shall be treated as equal to the
\n71
\nother persons with such illness as there is to be no
\ndiscrimination on the basis of sexual orientation. Section 30 is
\nextremely important and reads as under:
\n\u201c30. Creating awareness about mental health
\nand illness and reducing stigma associated with
\nmental illness.
\nThe appropriate Government shall take all
\nmeasures to ensure that,\u2014
\n(a) the provisions of this Act are given wide publicity
\nthrough public media, including television, radio,
\nprint and online media at regular intervals;
\n(b) the programmes to reduce stigma associated
\nwith mental illness are planned, designed, funded
\nand implemented in an effective manner;
\n(c) the appropriate Government officials including
\npolice officers and other officers of the appropriate
\nGovernment are given periodic sensitisation and
\nawareness training on the issues under this Act.\u201d
\n75. Section 115 largely does away with one other outmoded
\nSection of the Indian Penal Code, namely, Section 309. This
\nSection reads as follows.
\n\u201c115. Presumption of severe stress in case of
\nattempt to commit suicide. (1) Notwithstanding
\nanything contained in section 309 of the Indian
\nPenal Code any person who attempts to commit
\nsuicide shall be presumed, unless proved otherwise,
\nto have severe stress and shall not be tried and
\npunished under the said Code.
\n(2) The appropriate Government shall have a duty
\nto provide care, treatment and rehabilitation to a
\nperson, having severe stress and who attempted to
\n72
\ncommit suicide, to reduce the risk of recurrence of
\nattempt to commit suicide.\u201d
\n76. Instead of the inhumane Section 309 which has remained
\non the statute book for over 150 years, Section 115 makes it
\nclear that Section 309 is rendered largely ineffective, and on the
\ncontrary, instead of committing a criminal offence, any person
\nwho attempts to commit suicide shall be presumed to have
\nsevere stress and shall not be tried and punished under Section
\n309 of the Indian Penal Code. More importantly, the
\nGovernment has an affirmative duty to provide care, treatment
\nand rehabilitation to such a person to reduce the risk of
\nrecurrence of that person\u2019s attempt to commit suicide. This
\nparliamentary declaration under Section 115 again is in keeping
\nwith the present constitutional values, making it clear that
\nhumane measures are to be taken by the Government in
\nrespect of a person who attempts to commit suicide instead of
\nprosecuting him for the offence of attempt to commit suicide.
\n77. And finally, Section 120 of the Act reads as under:-
\n\u201c120. Act to have overriding effect. The provisions
\nof this Act shall have overriding effect
\nnotwithstanding anything inconsistent therewith
\n73
\ncontained in any other law for the time being in force
\nor in any instrument having effect by virtue of any
\nlaw other than this Act.\u201d
\n78. The Latin maxim cessant ratione legis, cessat ipsa lex,
\nmeaning when the reason for a law ceases, the law itself
\nceases, is a rule of law which has been recognized by this
\nCourt in H.H. Shri Swamiji of Shri Amar Mutt v.
\nCommissioner, Hindu Religious and Charitable
\nEndowments Dept, 1979 4 SCC 642 at paragraph 29, and
\nState of Punjab v. Devans Modern Breweries Ltd., (2004) 11
\nSCC 26 at paragraph 335. It must not be forgotten that Section
\n377 was the product of the Victorian era, with its attendant
\npuritanical moral values. Victorian morality must give way to
\nconstitutional morality as has been recognized in many of our
\njudgments. Constitutional morality is the soul of the
\nConstitution, which is to be found in the Preamble of the
\nConstitution, which declares its ideals and aspirations, and is
\nalso to be found in Part III of the Constitution, particularly with
\nrespect to those provisions which assure the dignity of the
\nindividual. The rationale for Section 377, namely Victorian
\nmorality, has long gone and there is no reason to continue with
\n74
\n– as Justice Holmes said in the lines quoted above in this
\njudgment – a law merely for the sake of continuing with the law
\nwhen the rationale of such law has long since disappeared.
\n79. Given our judgment in Puttaswamy (supra), in particular,
\nthe right of every citizen of India to live with dignity and the right
\nto privacy including the right to make intimate choices regarding
\nthe manner in which such individual wishes to live being
\nprotected by Articles 14, 19 and 21, it is clear that Section 377,
\ninsofar as it applies to same-sex consenting adults, demeans
\nthem by having them prosecuted instead of understanding their
\nsexual orientation and attempting to correct centuries of the
\nstigma associated with such persons.
\n80. The Union of India, seeing the writing on the wall, has
\nfiled an affidavit in which it has not opposed the Petitioners but
\nleft the matter to be considered by the wisdom of this Court.
\nSome of the intervenors have argued in favour of the retention
\nof Section 377 qua consenting adults on the grounds that
\nhomosexual acts are not by themselves proscribed by Section
\n377. Unless there is penetration in the manner pointed out by
\nthe explanation to the Section, no offence takes place. They
\n75
\nhave also added that the Section needs to be retained given
\nthe fact that it is only a parliamentary reflection of the prevailing
\nsocial mores of today in large segments of society. According to
\nthem, this furthers a compelling state interest to reinforce
\nmorals in public life which is not disproportionate in nature. We
\nare afraid that, given the march of events in constitutional law
\nby this Court, and parliamentary recognition of the plight of
\nsuch persons in certain provisions of the Mental Healthcare Act,
\n2017, it will not be open for a constitutional court to substitute
\nsocietal morality with constitutional morality, as has been stated
\nby us hereinabove. Further, as stated in S. Khushboo v.
\nKanniammal and Anr., (2010) 5 SCC 600, at paragraphs 46
\nand 50, this Court made it clear that notions of social morality
\nare inherently subjective and the criminal law cannot be used
\nas a means to unduly interfere with the domain of personal
\nautonomy. Morality and criminality are not co-extensive – sin is
\nnot punishable on earth by Courts set up by the State but
\nelsewhere; crime alone is punishable on earth. To confuse the
\none with the other is what causes the death knell of Section
\n377, insofar as it applies to consenting homosexual adults.
\n76
\n81. Another argument raised on behalf of the intervenors is
\nthat change in society, if any, can be reflected by amending
\nlaws by the elected representatives of the people. Thus, it
\nwould be open to the Parliament to carve out an exception from
\nSection 377, but this Court should not indulge in taking upon
\nitself the guardianship of changing societal mores. Such an
\nargument must be emphatically rejected. The very purpose of
\nthe fundamental rights chapter in the Constitution of India is to
\nwithdraw the subject of liberty and dignity of the individual and
\nplace such subject beyond the reach of majoritarian
\ngovernments so that constitutional morality can be applied by
\nthis Court to give effect to the rights, among others, of \u2018discrete
\nand insular\u2019 minorities.6
\nOne such minority has knocked on the
\ndoors of this Court as this Court is the custodian of the
\nfundamental rights of citizens. These fundamental rights do not
\ndepend upon the outcome of elections. And, it is not left to
\nmajoritarian governments to prescribe what shall be orthodox in
\nmatters concerning social morality. The fundamental rights
\nchapter is like the north star in the universe of constitutionalism<\/p>\n

6 This phrase occurs in one of the most celebrated footnotes in the US Supreme Court\u2019s constitutional
\nhistory \u2013 namely, Footnote 4 of United States v. Carolene Products Co., 304 U.S. 144 (1938).
\n77
\nin India.7 Constitutional morality always trumps any imposition
\nof a particular view of social morality by shifting and different
\nmajoritarian regimes.
\n82. Insofar as Article 14 is concerned, this Court in Shayara
\nBano v. Union of India, (2017) 9 SCC 1, has stated, in
\nparagraph 101, that a statutory provision can be struck down on
\nthe ground of manifest arbitrariness, when the provision is
\ncapricious, irrational and\/or without adequate determining
\nprinciple, as also if it is excessive or disproportionate. We find
\nthat Section 377, in penalizing consensual gay sex, is
\nmanifestly arbitrary. Given modern psychiatric studies and
\nlegislation which recognizes that gay persons and transgenders
\nare not persons suffering from mental disorder and cannot
\ntherefore be penalized, the Section must be held to be a
\nprovision which is capricious and irrational. Also, roping in such
\npersons with sentences going upto life imprisonment is clearly
\nexcessive and disproportionate, as a result of which, when
\napplied to such persons, Articles 14 and 21 of the Constitution<\/p>\n

7
\nIn William Shakespeare\u2019s Julius Caesar (Act III, Scene 1), Caesar tells Cassius-
\n\u201cI could be well moved, if I were as you;
\nIf I could pray to move, prayers would move me:
\nBut I am constant as the Northern Star,
\nOf whose true-fixed and resting quality
\nThere is no fellow in the firmament.\u201d
\n78
\nwould clearly be violated. The object sought to be achieved by
\nthe provision, namely to enforce Victorian mores upon the
\ncitizenry of India, would be out of tune with the march of
\nconstitutional events that has since taken place, rendering the
\nsaid object itself discriminatory when it seeks to single out
\nsame-sex couples and transgenders for punishment.
\n83. As has been stated in the judgment of Nariman, J. in
\nShreya Singhal v. Union of India, (2015) 5 SCC 1, the chilling
\neffect caused by such a provision would also violate a privacy
\nright under Article 19(1)(a), which can by no stretch of
\nimagination be said to be a reasonable restriction in the interest
\nof decency or morality (See paragraphs 87 to 94).
\n84. We may hasten to add, that the Yogyakarta Principles on
\nthe Application of International Human Rights Law in relation to
\nSexual Orientation and Gender Identity discussed below, which
\nwere also referred to by Radhakrishnan, J. in NALSA (supra),
\nconform to our constitutional view of the fundamental rights of
\nthe citizens of India and persons who come to this Court.
\n79
\n85. The International Commission of Jurists and the
\nInternational Service for Human Rights, on behalf of a coalition
\nof human rights organisations, had undertaken a project to
\ndevelop a set of international legal principles on the application
\nof international law to human rights violations based on sexual
\norientation and gender identity to bring greater clarity and
\ncoherence to States\u2019 human rights obligations.
\n86. A distinguished group of human rights experts drafted,
\ndeveloped, discussed and refined these Principles. Following
\nan experts\u2019 meeting held at Gadjah Mada University in
\nYogyakarta, Indonesia from 6th to 9th November, 2006, 29
\ndistinguished experts from 25 countries with diverse
\nbackgrounds and expertise relevant to issues of human rights
\nlaw unanimously adopted the Yogyakarta Principles on the
\nApplication of International Human Rights Law in relation to
\nSexual Orientation and Gender Identity.
\n87. A few relevant extracts from the Yogyakarta Principles
\nand its Preamble are as follows:-
\n80
\n\u201cPreamble
\nWE, THE INTERNATIONAL PANEL OF EXPERTS IN
\nINTERNATIONAL HUMAN RIGHTS LAW AND ON SEXUAL
\nORIENTATION AND GENDER IDENTITY,
\nXX
\nXX
\nUNDERSTANDING \u2018sexual orientation\u2019 to refer to each
\nperson\u2019s capacity for profound emotional, affectional
\nand sexual attraction to, and intimate and sexual
\nrelations with, individuals of a different gender or the
\nsame gender or more than one gender;
\nXX
\nXX
\nFOLLOWING AN EXPERTS\u2019 MEETING HELD IN
\nYOGYAKARTA, INDONESIA FROM 6 TO 9 NOVEMBER
\n2006, HEREBY ADOPT THESE PRINCIPLES:
\n1. The right to the universal enjoyment of human
\nrights.\u2014All human beings are born free and equal
\nin dignity and rights. Human beings of all sexual
\norientations and gender identities are entitled to the
\nfull enjoyment of all human rights.
\nStates shall:
\n(a) embody the principles of the universality,
\ninterrelatedness, interdependence and indivisibility
\nof all human rights in their national constitutions or
\nother appropriate legislation and ensure the
\npractical realisation of the universal enjoyment of all
\nhuman rights;
\n(b) amend any legislation, including criminal law, to
\nensure its consistency with the universal enjoyment
\nof all human rights;
\n(c) undertake programmes of education and
\nawareness to promote and enhance the full
\n81
\nenjoyment of all human rights by all persons,
\nirrespective of sexual orientation or gender identity;
\n(d) integrate within State policy and decision making
\na pluralistic approach that recognises and affirms
\nthe interrelatedness and indivisibility of all aspects
\nof human identity including sexual orientation and
\ngender identity.
\n2. The rights to equality and nondiscrimination.\u2014Everyone
\nis entitled to enjoy all
\nhuman rights without discrimination on the basis of
\nsexual orientation or gender identity. Everyone is
\nentitled to equality before the law and the equal
\nprotection of the law without any such discrimination
\nwhether or not the enjoyment of another human
\nright is also affected. The law shall prohibit any such
\ndiscrimination and guarantee to all persons equal
\nand effective protection against any such
\ndiscrimination.
\nDiscrimination on the basis of sexual orientation or
\ngender identity includes any distinction, exclusion,
\nrestriction or preference based on sexual orientation
\nor gender identity which has the purpose or effect of
\nnullifying or impairing equality before the law or the
\nequal protection of the law, or the recognition,
\nenjoyment or exercise, on an equal basis, of all
\nhuman rights and fundamental freedoms.
\nDiscrimination based on sexual orientation or
\ngender identity may be, and commonly is,
\ncompounded by discrimination on other grounds
\nincluding gender, race, age, religion, disability,
\nhealth and economic status.
\nStates shall:
\n(a) embody the principles of equality and nondiscrimination
\non the basis of sexual orientation and
\ngender identity in their national constitutions or other
\nappropriate legislation, if not yet incorporated
\ntherein, including by means of amendment and
\n82
\ninterpretation, and ensure the effective realisation of
\nthese principles;
\n(b) repeal criminal and other legal provisions that
\nprohibit or are, in effect, employed to prohibit
\nconsensual sexual activity among people of the
\nsame-sex who are over the age of consent, and
\nensure that an equal age of consent applies to both
\nsame-sex and different-sex sexual activity;
\n(c) adopt appropriate legislative and other measures
\nto prohibit and eliminate discrimination in the public
\nand private spheres on the basis of sexual
\norientation and gender identity;
\n(d) take appropriate measures to secure adequate
\nadvancement of persons of diverse sexual
\norientations and gender identities as may be
\nnecessary to ensure such groups or individuals
\nequal enjoyment or exercise of human rights. Such
\nmeasures shall not be deemed to be discriminatory;
\n(e) in all their responses to discrimination on the
\nbasis of sexual orientation or gender identity, take
\naccount of the manner in which such discrimination
\nmay intersect with other forms of discrimination;
\n(f) take all appropriate action, including programmes
\nof education and training, with a view to achieving
\nthe elimination of prejudicial or discriminatory
\nattitudes or behaviours which are related to the idea
\nof the inferiority or the superiority of any sexual
\norientation or gender identity or gender expression.
\n3. The right to recognition before the law.\u2014
\nEveryone has the right to recognition everywhere as
\na person before the law. Persons of diverse sexual
\norientations and gender identities shall enjoy legal
\ncapacity in all aspects of life. Each person’s selfdefined
\nsexual orientation and gender identity is
\nintegral to their personality and is one of the most
\nbasic aspects of self-determination, dignity and
\nfreedom. No one shall be forced to undergo medical
\nprocedures, including sex reassignment surgery,
\n83
\nsterilisation or hormonal therapy, as a requirement
\nfor legal recognition of their gender identity. No
\nstatus, such as marriage or parenthood, may be
\ninvoked as such to prevent the legal recognition of a
\nperson’s gender identity. No one shall be subjected
\nto pressure to conceal, suppress or deny their
\nsexual orientation or gender identity.
\nStates shall:
\n(a) ensure that all persons are accorded legal
\ncapacity in civil matters, without discrimination on
\nthe basis of sexual orientation or gender identity,
\nand the opportunity to exercise that capacity,
\nincluding equal rights to conclude contracts, and to
\nadminister, own, acquire (including through
\ninheritance), manage, enjoy and dispose of
\nproperty;
\n(b) take all necessary legislative, administrative and
\nother measures to fully respect and legally
\nrecognise each person’s self-defined gender
\nidentity;
\n(c) take all necessary legislative, administrative and
\nother measures to ensure that procedures exist
\nwhereby all State-issued identity papers which
\nindicate a person’s gender\/sex\u2014including birth
\ncertificates, passports, electoral records and other
\ndocuments\u2014reflect the person’s profound selfdefined
\ngender identity;
\n(d) ensure that such procedures are efficient, fair
\nand non-discriminatory, and respect the dignity and
\nprivacy of the person concerned;
\n(e) ensure that changes to identity documents will
\nbe recognised in all contexts where the identification
\nor disaggregation of persons by gender is required
\nby law or policy;
\n(f) undertake targeted programmes to provide social
\nsupport for all persons experiencing gender
\ntransitioning or reassignment.
\n84
\nXXX
\n4. The right to life.\u2014Everyone has the right to life.
\nNo one shall be arbitrarily deprived of life, including
\nby reference to considerations of sexual orientation
\nor gender identity. The death penalty shall not be
\nimposed on any person on the basis of consensual
\nsexual activity among persons who are over the age
\nof consent or on the basis of sexual orientation or
\ngender identity.
\nStates shall:
\n(a) repeal all forms of crime that have the purpose
\nor effect of prohibiting consensual sexual activity
\namong persons of the same-sex who are over the
\nage of consent and, until such provisions are
\nrepealed, never impose the death penalty on any
\nperson convicted under them;
\n(b) remit sentences of death and release all those
\ncurrently awaiting execution for crimes relating to
\nconsensual sexual activity among persons who are
\nover the age of consent;
\n(c) cease any State-sponsored or State-condoned
\nattacks on the lives of persons based on sexual
\norientation or gender identity, and ensure that all
\nsuch attacks, whether by government officials or by
\nany individual or group, are vigorously investigated,
\nand that, where appropriate evidence is found,
\nthose responsible are prosecuted, tried and duly
\npunished.
\nXXX
\n6. The right to privacy.\u2014Everyone, regardless of
\nsexual orientation or gender identity, is entitled to
\nthe enjoyment of privacy without arbitrary or
\nunlawful interference, including with regard to their
\nfamily, home or correspondence as well as to
\nprotection from unlawful attacks on their honour and
\n85
\nreputation. The right to privacy ordinarily includes
\nthe choice to disclose or not to disclose information
\nrelating to one’s sexual orientation or gender
\nidentity, as well as decisions and choices regarding
\nboth one’s own body and consensual sexual and
\nother relations with others.
\nStates shall:
\n(a) take all necessary legislative, administrative and
\nother measures to ensure the right of each person,
\nregardless of sexual orientation or gender identity,
\nto enjoy the private sphere, intimate decisions, and
\nhuman relations, including consensual sexual
\nactivity among persons who are over the age of
\nconsent, without arbitrary interference;
\n(b) repeal all laws that criminalise consensual
\nsexual activity among persons of the same-sex who
\nare over the age of consent, and ensure that an
\nequal age of consent applies to both same-sex and
\ndifferent-sex sexual activity;
\n(c) ensure that criminal and other legal provisions of
\ngeneral application are not applied de facto to
\ncriminalise consensual sexual activity among
\npersons of the same-sex who are over the age of
\nconsent;
\n(d) repeal any law that prohibits or criminalises the
\nexpression of gender identity, including through
\ndress, speech or mannerisms, or that denies to
\nindividuals the opportunity to change their bodies as
\na means of expressing their gender identity;
\n(e) release all those held on remand or on the basis
\nof a criminal conviction, if their detention is related
\nto consensual sexual activity among persons who
\nare over the age of consent, or is related to gender
\nidentity;
\n(f) ensure the right of all persons ordinarily to
\nchoose when, to whom and how to disclose
\ninformation pertaining to their sexual orientation or
\ngender identity, and protect all persons from
\n86
\narbitrary or unwanted disclosure, or threat of
\ndisclosure of such information by others.
\nXXX
\n18. Protection from medical abuses.\u2014No person
\nmay be forced to undergo any form of medical or
\npsychological treatment, procedure, testing, or be
\nconfined to a medical facility, based on sexual
\norientation or gender identity. Notwithstanding any
\nclassifications to the contrary, a person’s sexual
\norientation and gender identity are not, in and of
\nthemselves, medical conditions and are not to be
\ntreated, cured or suppressed.
\nStates shall:
\n(a) take all necessary legislative, administrative and
\nother measures to ensure full protection against
\nharmful medical practices based on sexual
\norientation or gender identity, including on the basis
\nof stereotypes, whether derived from culture or
\notherwise, regarding conduct, physical appearance
\nor perceived gender norms;
\n(b) take all necessary legislative, administrative and
\nother measures to ensure that no child’s body is
\nirreversibly altered by medical procedures in an
\nattempt to impose a gender identity without the full,
\nfree and informed consent of the child in
\naccordance with the age and maturity of the child
\nand guided by the principle that in all actions
\nconcerning children, the best interests of the child
\nshall be a primary consideration;
\n(c) establish child protection mechanisms whereby
\nno child is at risk of, or subjected to, medical abuse;
\n(d) ensure protection of persons of diverse sexual
\norientations and gender identities against unethical
\nor involuntary medical procedures or research,
\nincluding in relation to vaccines, treatments or
\nmicrobicides for HIV\/AIDS or other diseases;
\n87
\n(e) review and amend any health funding provisions
\nor programmes, including those of a developmentassistance
\nnature, which may promote, facilitate or
\nin any other way render possible such abuses;
\n(f) ensure that any medical or psychological
\ntreatment or counselling does not, explicitly or
\nimplicitly, treat sexual orientation and gender
\nidentity as medical conditions to be treated, cured or
\nsuppressed.
\n19. The right to freedom of opinion and
\nexpression.\u2014 Everyone has the right to freedom of
\nopinion and expression, regardless of sexual
\norientation or gender identity. This includes the
\nexpression of identity or personhood through
\nspeech, deportment, dress, bodily characteristics,
\nchoice of name, or any other means, as well as the
\nfreedom to seek, receive and impart information and
\nideas of all kinds, including with regard to human
\nrights, sexual orientation and gender identity,
\nthrough any medium and regardless of frontiers.
\nStates shall:
\n(a) take all necessary legislative, administrative and
\nother measures to ensure full enjoyment of freedom
\nof opinion and expression, while respecting the
\nrights and freedoms of others, without discrimination
\non the basis of sexual orientation or gender identity,
\nincluding the receipt and imparting of information
\nand ideas concerning sexual orientation and gender
\nidentity, as well as related advocacy for legal rights,
\npublication of materials, broadcasting, organisation
\nof or participation in conferences, and dissemination
\nof and access to safer-sex information;
\n(b) ensure that the outputs and the organisation of
\nmedia that is State-regulated is pluralistic and nondiscriminatory
\nin respect of issues of sexual
\norientation and gender identity and that the
\npersonnel recruitment and promotion policies of
\n88
\nsuch organisations are non-discriminatory on the
\nbasis of sexual orientation or gender identity;
\n(c) take all necessary legislative, administrative and
\nother measures to ensure the full enjoyment of the
\nright to express identity or personhood, including
\nthrough speech, deportment, dress, bodily
\ncharacteristics, choice of name or any other means;
\n(d) ensure that notions of public order, public
\nmorality, public health and public security are not
\nemployed to restrict, in a discriminatory manner, any
\nexercise of freedom of opinion and expression that
\naffirms diverse sexual orientations or gender
\nidentities;
\n(e) ensure that the exercise of freedom of opinion
\nand expression does not violate the rights and
\nfreedoms of persons of diverse sexual orientations
\nand gender identities;
\n(f) ensure that all persons, regardless of sexual
\norientation or gender identity, enjoy equal access to
\ninformation and ideas, as well as to participation in
\npublic debate.\u201d
\n(Emphasis supplied)
\n88. These principles give further content to the fundamental
\nrights contained in Articles 14, 15, 19 and 21, and viewed in the
\nlight of these principles also, Section 377 will have to be
\ndeclared to be unconstitutional.
\n89. Given the aforesaid, it has now to be decided as to
\nwhether the judgment in Suresh Kumar Koushal (supra) is
\ncorrect. Suresh Kumar Koushal\u2019s judgment (supra) first
\nbegins with the presumption of constitutionality attaching to pre-
\n89
\nconstitutional laws, such as the Indian Penal Code. The
\njudgment goes on to state that pre-constitutional laws, which
\nhave been adopted by Parliament and used with or without
\namendment, being manifestations of the will of the people of
\nIndia through Parliament, are presumed to be constitutional.
\nWe are afraid that we cannot agree.
\n90. Article 372 of the Constitution of India continues laws in
\nforce in the territory of India immediately before the
\ncommencement of the Constitution. That the Indian Penal Code
\nis a law in force in the territory of India immediately before the
\ncommencement of this Constitution is beyond cavil. Under
\nArticle 372(2), the President may, by order, make such
\nadaptations and modifications of an existing law as may be
\nnecessary or expedient to bring such law in accord with the
\nprovisions of the Constitution. The fact that the President has
\nnot made any adaptation or modification as mentioned in Article
\n372(2) does not take the matter very much further. The
\npresumption of constitutionality of a statute is premised on the
\nfact that Parliament understands the needs of the people, and
\nthat, as per the separation of powers doctrine, Parliament is
\n90
\naware of its limitations in enacting laws \u2013 it can only enact laws
\nwhich do not fall within List II of Schedule VII of the Constitution
\nof India, and cannot transgress the fundamental rights of the
\ncitizens and other constitutional provisions in doing so.
\nParliament is therefore deemed to be aware of the aforesaid
\nconstitutional limitations. Where, however, a pre-constitution
\nlaw is made by either a foreign legislature or body, none of
\nthese parameters obtain. It is therefore clear that no such
\npresumption attaches to a pre-constitutional statute like the
\nIndian Penal Code. In fact, in the majority judgment of B.P.
\nJeevan Reddy, J. in New Delhi Municipal Council v. State of
\nPunjab and Ors., (1997) 7 SCC 339, the Punjab Municipal Act
\nof 1911 was deemed to be a post-constitutional law inasmuch
\nas it was extended to Delhi only in 1950, as a result of which
\nthe presumption of constitutionality was raised. Ahmadi, C.J.\u2019s
\ndissenting opinion correctly states that if a pre-constitutional law
\nis challenged, the presumption of constitutional validity would
\nnot obtain. The relevant paragraph is extracted below:-
\n\u201c119. Reddy, J. has taken the view that the Doctrine
\nof Presumption of Constitutionality of Legislations
\nrequires the saving of the taxes which these Acts
\nimpose upon the commercial activities of State
\n91
\nGovernments. The Act is a pre-constitutional
\nenactment. The basis of this doctrine is the
\nassumed intention of the legislators not to
\ntransgress constitutional boundaries. It is difficult to
\nappreciate how that intention can be assumed
\nwhen, at the time that the law was passed, there
\nwas no such barrier and the limitation was brought
\nin by a Constitution long after the enactment of the
\nlaw. (This Court has in a Constitution Bench
\ndecision, Gulabbhai Vallabbhai Desai v. Union of
\nIndia [AIR 1967 SC 1110 : (1967) 1 SCR 602] , (AIR
\nat p. 1117 raised doubts along similar lines). The
\nFramers obviously wanted the law under Article
\n289(2) to be of a very high standard. Can these
\nlaws, which are silent on the most important aspect
\nrequired by Article 289(2), i.e., the specification of
\nthe trading activities of State Governments which
\nwould be liable to Union taxation, be said to meet
\nwith that standard?\u201d
\n91. It is a little difficult to subscribe to the view of the Division
\nBench that the presumption of constitutionality of Section 377
\nwould therefore attach.
\n92. The fact that the legislature has chosen not to amend the
\nlaw, despite the 172nd Law Commission Report specifically
\nrecommending deletion of Section 377, may indicate that
\nParliament has not thought it proper to delete the aforesaid
\nprovision, is one more reason for not invalidating Section 377,
\naccording to Suresh Kumar Koushal (supra). This is a little
\ndifficult to appreciate when the Union of India admittedly did not
\n92
\nchallenge the Delhi High Court judgment striking down the
\nprovision in part. Secondly, the fact that Parliament may or
\nmay not have chosen to follow a Law Commission Report does
\nnot guide the Court\u2019s understanding of its character, scope,
\nambit and import as has been stated in Suresh Kumar
\nKoushal (supra). It is a neutral fact which need not be taken
\ninto account at all. All that the Court has to see is whether
\nconstitutional provisions have been transgressed and if so, as a
\nnatural corollary, the death knell of the challenged provision
\nmust follow.
\n93. It is a little difficult to appreciate the Court stating that the
\nambit of Section 377 IPC is only determined with reference to
\nthe sexual act itself and the circumstances in which it is
\nexecuted. It is also a little difficult to appreciate that Section 377
\nregulates sexual conduct regardless of gender identity and
\norientation.
\n94. After 2013, when Section 375 was amended so as to
\ninclude anal and certain other kinds of sexual intercourse
\nbetween a man and a woman, which would not be criminalized
\nas rape if it was between consenting adults, it is clear that if
\n93
\nSection 377 continues to penalize such sexual intercourse, an
\nanomalous position would result. A man indulging in such
\nsexual intercourse would not be liable to be prosecuted for rape
\nbut would be liable to be prosecuted under Section 377.
\nFurther, a woman who could, at no point of time, have been
\nprosecuted for rape would, despite her consent, be prosecuted
\nfor indulging in anal or such other sexual intercourse with a
\nman in private under Section 377. This would render Section
\n377, as applied to such consenting adults, as manifestly
\narbitrary as it would be wholly excessive and disproportionate
\nto prosecute such persons under Section 377 when the
\nlegislature has amended one portion of the law in 2013, making
\nit clear that consensual sex, as described in the amended
\nprovision, between two consenting adults, one a man and one a
\nwoman, would not be liable for prosecution. If, by having regard
\nto what has been said above, Section 377 has to be read down
\nas not applying to anal and such other sex by a male-female
\ncouple, then the Section will continue to apply only to
\nhomosexual sex. If this be the case, the Section will offend
\nArticle 14 as it will discriminate between heterosexual and
\n94
\nhomosexual adults which is a distinction which has no rational
\nrelation to the object sought to be achieved by the Section –
\nnamely, the criminalization of all carnal sex between
\nhomosexual and\/or heterosexual adults as being against the
\norder of nature.8 Viewed either way, the Section falls foul of
\nArticle 14.
\n95. The fact that only a minuscule fraction of the country\u2019s
\npopulation constitutes lesbians and gays or transgenders, and
\nthat in the last 150 years less than 200 persons have been
\nprosecuted for committing the offence under Section 377, is
\nneither here nor there. When it is found that privacy interests
\ncome in and the State has no compelling reason to continue an
\nexisting law which penalizes same-sex couples who cause no
\nharm to others, on an application of the recent judgments
\ndelivered by this Court after Suresh Kumar Koushal (supra), it
\nis clear that Articles 14, 15, 19 and 21 have all been
\ntransgressed without any legitimate state rationale to uphold
\nsuch provision.<\/p>\n

8 An argument was made by the Petitioners that Section 377, being vague and unintelligible, should be
\nstruck down on this ground as it is not clear as to what is meant by \u201cagainst the order of nature\u201d. Since
\nSection 377 applies down the line to carnal sex between human beings and animals as well, which is not
\nthe subject matter of challenge here, it is unnecessary to go into this ground as the Petitioners have
\nsucceeded on other grounds raised by them.
\n95
\n96. For all these reasons therefore, we are of the view that,
\nSuresh Kumar Koushal (supra) needs to be, and is hereby,
\noverruled.
\n97. We may conclude by stating that persons who are
\nhomosexual have a fundamental right to live with dignity, which,
\nin the larger framework of the Preamble of India, will assure the
\ncardinal constitutional value of fraternity that has been
\ndiscussed in some of our judgments (See (1) Nandini Sundar v.
\nState of Chhattisgarh, (2011) 7 SCC 547 at paragraphs 16, 25
\nand 52; and (2) Subramaniam Swamy v. Union of India (2016)
\n7 SCC 221 at paragraphs 153 to 156). We further declare that
\nsuch groups are entitled to the protection of equal laws, and are
\nentitled to be treated in society as human beings without any
\nstigma being attached to any of them. We further declare that
\nSection 377 insofar as it criminalises homosexual sex and
\ntransgender sex between consenting adults is unconstitutional.
\n98. We are also of the view that the Union of India shall take
\nall measures to ensure that this judgment is given wide publicity
\nthrough the public media, which includes television, radio, print
\nand online media at regular intervals, and initiate programs to
\n96
\nreduce and finally eliminate the stigma associated with such
\npersons. Above all, all government officials, including and in
\nparticular police officials, and other officers of the Union of India
\nand the States, be given periodic sensitization and awareness
\ntraining of the plight of such persons in the light of the
\nobservations contained in this judgment.
\n\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026..J.
\n(R.F. Nariman)
\nNew Delhi;
\nSeptember 06, 2018.
\n1<\/p>\n

IN THE SUPREME COURT OF INDIA
\nCRIMINAL\/CIVIL ORIGINAL JURISDICTION
\nWRIT PETITION (CRIMINAL) NO 76 OF 2016
\nNAVTEJ SINGH JOHAR & ORS. …Petitioner
\nVERSUS
\nUNION OF INDIA, THR. SECRETARY,
\nMINISTRY OF LAW AND JUSTICE \u2026Respondent
\nWITH
\nWRIT PETITION (CIVIL) NO 572 OF 2016
\nAKKAI PADMASHALI …Petitioner
\nVERSUS
\nUNION OF INDIA, THR.SECRETARY,
\nMINISTRY OF LAW AND JUSTICE …Respondent
\nREPORTABLE
\n2
\nWITH
\nWRIT PETITION (CRIMINAL) NO 88 OF 2018
\nKESHAV SURI …Petitioner
\nVERSUS
\nUNION OF INDIA …Respondent
\nWITH
\nWRIT PETITION (CRIMINAL) NO 100 OF 2018
\nARIF JAFAR …Petitioner
\nVERSUS
\nUNION OF INDIA AND ORS. …Respondents
\nWITH
\n3
\nWRIT PETITION (CRIMINAL) NO 101 OF 2018
\nASHOK ROW KAVI AND ORS. …Petitioners
\nVERSUS
\nUNION OF INDIA AND ORS. …Respondents
\nAND
\nWITH
\nWRIT PETITION (CRIMINAL) NO 121 OF 2018
\nANWESH POKKULURI AND ORS. …Petitioners
\nVERSUS
\nUNION OF INDIA …Respondent
\nJ U D G M E N T
\nIndex to the judgment
\nA From denial to freedom
\nB \u201cTo the wisdom of the Court\u201d
\n4
\nC From \u201cThe Ashes of the Gay\u201d
\nC.I \u201cArc of the moral universe\u201d
\nD An equal love
\nE Beyond physicality: sex, identity and stereotypes
\nE.I Facial neutrality: through the looking glass
\nE.2 Deconstructing the polarities of binary genders
\nF Confronting the closet
\nF.I Sexual privacy and autonomy- deconstructing the heteronormative
\nframework
\nF.2 A right to intimacy- celebration of sexual agency
\nG Section 377 and the right to health
\nG.I Section 377 and HIV prevention efforts
\nG.2 Mental health
\nH Judicial review
\nI India\u2019s commitments at International Law
\nJ Transcending borders – comparative law
\nK Crime, morality and the Constitution
\nL Constitutional morality
\nM In summation : transformative constitutionalism
\nPART A
\n5
\nDr Dhananjaya Y Chandrachud, J
\nA From denial to freedom
\n\u201cWhat makes life meaningful is love. The right that
\nmakes us human is the right to love. To criminalize the
\nexpression of that right is profoundly cruel and
\ninhumane. To acquiesce in such criminalization, or
\nworse, to recriminalize it, is to display the very
\nopposite of compassion. To show exaggerated
\ndeference to a majoritarian Parliament when the
\nmatter is one of fundamental rights is to display judicial
\npusillanimity, for there is no doubt, that in the
\nconstitutional scheme, it is the judiciary that is the
\nultimate interpreter.\u201d1
\n1 The lethargy of the law is manifest yet again.
\n2 A hundred and fifty eight years ago, a colonial legislature made it
\ncriminal, even for consenting adults of the same gender, to find fulfillment in
\nlove. The law deprived them of the simple right as human beings to live, love
\nand partner as nature made them. The human instinct to love was caged by
\nconstraining the physical manifestation of their sexuality. Gays and lesbians2
\nwere made subordinate to the authority of a coercive state. A charter of
\nmorality made their relationships hateful. The criminal law became a willing
\ninstrument of repression. To engage in \u2018carnal intercourse\u2019 against \u2018the order
\nof nature\u2019 risked being tucked away for ten years in a jail. The offence would<\/p>\n

1
\nJustice Leila Seth, \u201cA mother and a judge speaks out on Section 377\u201d, The Times of India, 26 January, 2014.
\n2
\nThese terms as well as terms such as \u201cLGBT\u201d and \u201cLGBTIQ\u201d used in the judgement are to be construed in an
\ninclusive sense to include members of all gender and sexual minorities, whose sexual activity is criminalized by
\nthe application of Section 377 of the Indian Penal Code, 1860.
\nPART A
\n6
\nbe investigated by searching the most intimate of spaces to find tell-tale signs
\nof intercourse. Civilisation has been brutal.
\n3 Eighty seven years after the law was made, India gained her liberation
\nfrom a colonial past. But Macaulay\u2019s legacy – the offence under Section 377 of
\nthe Penal Code – has continued to exist for nearly sixty eight years after we
\ngave ourselves a liberal Constitution. Gays and lesbians, transgenders and
\nbisexuals continue to be denied a truly equal citizenship seven decades after
\nIndependence. The law has imposed upon them a morality which is an
\nanachronism. Their entitlement should be as equal participants in a society
\ngoverned by the morality of the Constitution. That in essence is what Section
\n377 denies to them. The shadows of a receding past confront their quest for
\nfulfillment.
\n4 Section 377 exacts conformity backed by the fear of penal reprisal.
\nThere is an unbridgeable divide between the moral values on which it is based
\nand the values of the Constitution. What separates them is liberty and dignity.
\nWe must, as a society, ask searching questions to the forms and symbols of
\ninjustice. Unless we do that, we risk becoming the cause and not just the
\ninheritors of an unjust society. Does the Constitution allow a quiver of fear to
\nbecome the quilt around the bodies of her citizens, in the intimacies which
\nPART A
\n7
\ndefine their identities? If there is only one answer to this question, as I believe
\nthere is, the tragedy and anguish which Section 377 inflicts must be remedied.
\n5 The Constitution brought about a transfer of political power. But it
\nreflects above all, a vision of a society governed by justice. Individual liberty is
\nits soul. The constitutional vision of justice accommodates differences of
\nculture, ideology and orientation. The stability of its foundation lies in its effort
\nto protect diversity in all its facets: in the beliefs, ideas and ways of living of
\nher citizens. Democratic as it is, our Constitution does not demand conformity.
\nNor does it contemplate the mainstreaming of culture. It nurtures dissent as
\nthe safety valve for societal conflict. Our ability to recognise others who are
\ndifferent is a sign of our own evolution. We miss the symbols of a
\ncompassionate and humane society only at our peril.
\nSection 377 provides for rule by the law instead of the rule of law. The rule of
\nlaw requires a just law which facilitates equality, liberty and dignity in all its
\nfacets. Rule by the law provides legitimacy to arbitrary state behaviour.
\n6 Section 377 has consigned a group of citizens to the margins. It has
\nbeen destructive of their identities. By imposing the sanctions of the law on
\nconsenting adults involved in a sexual relationship, it has lent the authority of
\nPART B
\n8
\nthe state to perpetuate social stereotypes and encourage discrimination.
\nGays, lesbians, bisexuals and transgenders have been relegated to the
\nanguish of closeted identities. Sexual orientation has become a target for
\nexploitation, if not blackmail, in a networked and digital age. The impact of
\nSection 377 has travelled far beyond the punishment of an offence. It has
\nbeen destructive of an identity which is crucial to a dignified existence.
\n7 It is difficult to right the wrongs of history. But we can certainly set the
\ncourse for the future. That we can do by saying, as I propose to say in this
\ncase, that lesbians, gays, bisexuals and transgenders have a constitutional
\nright to equal citizenship in all its manifestations. Sexual orientation is
\nrecognised and protected by the Constitution. Section 377 of the Penal Code
\nis unconstitutional in so far as it penalises a consensual relationship between
\nadults of the same gender. The constitutional values of liberty and dignity can
\naccept nothing less.
\nB \u201cTo the wisdom of the Court\u201d
\nUnion Government before the Court
\n8 After the hearing commenced, the Additional Solicitor General tendered
\nan affidavit. The Union government states that it leaves a decision on the
\nPART B
\n9
\nvalidity of Section 377 \u2018to the wisdom of this Court\u2019. Implicit in this is that the
\ngovernment has no view of its own on the subject and rests content to abide
\nby the decision of this Court. During the parleys in Court, the ASG however
\nsubmitted that the court should confine itself to the reference by ruling upon
\nthe correctness of Suresh Kumar Koushal v. Naz Foundation3
\n(\u201cKoushal\u201d).
\n9 We would have appreciated a categorical statement of position by the
\ngovernment, setting out its views on the validity of Section 377 and on the
\ncorrectness of Koushal. The ambivalence of the government does not obviate
\nthe necessity for a judgment on the issues raised. The challenge to the
\nconstitutional validity of Section 377 must squarely be addressed in this
\nproceeding. That is plainly the duty of the Court. Constitutional issues are not
\ndecided on concession. The statement of the Union government does not
\nconcede to the contention of the petitioners that the statutory provision is
\ninvalid. Even if a concession were to be made, that would not conclude the
\nmatter for this Court. All that the stand of the government indicates is that it is
\nto the \u2018wisdom\u2019 of this Court that the matter is left. In reflecting upon this
\nappeal to our wisdom, it is just as well that we as judges remind ourselves of a
\ntruth which can unwittingly be forgotten: flattery is a graveyard for the gullible.<\/p>\n

3
\n(2014) 1 SCC 1
\nPART B
\n10
\n10 Bereft of a submission on behalf of the Union government on a matter of
\nconstitutional principle these proceedings must be dealt with in the only
\nmanner known to the constitutional court: through an adjudication which fulfills
\nconstitutional values and principles.
\n11 The ASG made a fair submission when he urged that the court should
\ndeal with the matter in reference. The submission, to its credit, would have the
\ncourt follow a path of prudence. Prudence requires, after all, that the Court
\nshould address itself to the controversy in the reference without pursuing an
\nuncharted course beyond it. While accepting the wisdom of the approach
\nsuggested by the ASG, it is nonetheless necessary to make some prefatory
\nobservations on the scope of the reference.
\n12 The correctness of the decision in Koushal is in question. Koushal [as
\nindeed the decision of the Delhi High Court in Naz Foundation v.
\nGovernment of NCT of Delhi4
\n(\u201cNaz\u201d)] dealt with the validity of Section 377
\nwhich criminalizes even a consensual relationship between adults of the same
\ngender who engage in sexual conduct (\u2018carnal intercourse against the order of
\nnature\u2019). In dealing with the validity of the provision, it is necessary to
\nunderstand the nature of the constitutional right which LGBT individuals claim.<\/p>\n

4
\n(2010) Cri LJ 94
\nPART B
\n11
\nAccording to them, the right to be in a relationship with a consenting adult of
\nthe same gender emanates from the right to life, as a protected value under
\nthe Constitution. They ground their right on the basis of an identity resting in
\ntheir sexual orientation. According to them, their liberty and dignity require
\nboth an acknowledgement as well as a protection under the law, of their
\nsexual orientation. Representing their identity, based on sexual orientation, to
\nthe world at large and asserting it in their relationship with the community and
\nthe state is stated to be intrinsic to the free exercise of speech and expression
\nguaranteed by the Constitution. Sexual orientation is claimed to be intrinsic to
\nthe guarantee against discrimination on the ground of sex. The statutory
\nprovision, it has been asserted, also violates the fundamental guarantee
\nagainst arbitrariness because it unequally targets gay men whose sexual
\nexpression falls in the area prohibited by Section 377.
\n13 In answering the dispute in regard to the validity of Section 377, the
\ncourt must of necessity understand and explain in a constitutional perspective,
\nthe nature of the right which is claimed. The challenge to Section 377 has to
\nbe understood from the perspective of a rights discourse. While doing so, it
\nbecomes necessary to understand the constitutional source from which the
\nclaim emerges. When a right is claimed to be constitutionally protected, it is
\nbut necessary for the court to analyze the basis of that assertion. Hence, in
\nPART C
\n12
\nanswering the reference, it is crucial for the court to place the entitlement of
\nthe LGBT population in a constitutional framework. We have approached the
\nmatter thus far from the perspective of constitutional analysis. But there is a
\nmore simple line of reasoning as well, grounded as we believe, in commonsense.
\nSexual acts between consenting adults of the same gender constitute
\none facet \u2013 albeit an important aspect \u2013 of the right asserted by gay men to
\nlead fulfilling lives. Gay and lesbian relationships are sustained and nurtured
\nin every aspect which makes for a meaningful life. In understanding the true
\nnature of those relationships and the protection which the Constitution affords
\nto them, it is necessary to adopt a perspective which leads to their acceptance
\nas equal members of a humane and compassionate society. Forming a
\nholistic perspective requires the court to dwell on, but not confine itself, to
\nsexuality. Sexual orientation creates an identity on which there is a
\nconstitutional claim to the entitlement of a dignified life. It is from that broad
\nperspective that the constitutional right needs to be adjudicated.
\nC From \u201cThe Ashes of the Gay\u201d
\n\u201cDemocracy
\nIt’s coming through a hole in the air,
\n\u2026
\nIt’s coming from the feel
\nthat this ain’t exactly real,
\nor it’s real, but it ain’t exactly there.
\nFrom the wars against disorder,
\nfrom the sirens night and day,
\nPART C
\n13
\nfrom the fires of the homeless,
\nfrom the ashes of the gay:
\nDemocracy is coming\u2026\u201d
\n5
\n14 Section 377 of the Indian Penal Code, 1860 (\u201cIPC\u201d) has made \u2018carnal
\nintercourse against the order of nature\u2019 an offence. This provision, understood
\nas prohibiting non-peno vaginal intercourse, reflects the imposition of a
\nparticular set of morals by a colonial power at a particular point in history. A
\nsupposedly alien law,6 Section 377 has managed to survive for over 158
\nyears, impervious to both the anticolonial struggle as well as the formation of
\na democratic India, which guarantees fundamental rights to all its citizens. An
\ninquiry into the colonial origins of Section 377 and its postulations about
\nsexuality is useful in assessing the relevance of the provision in contemporary
\ntimes.7
\n15 Lord Thomas Babington Macaulay, Chairman of the First Law
\nCommission of India and principal architect of the IPC, cited two main sources
\nfrom which he drew in drafting the Code: the French (Napoleonic) Penal
\nCode, 1810 and Edward Livingston\u2019s Louisiana Code.8 Lord Macaulay also<\/p>\n

5
\nLyrics from Leonard Cohen\u2019s song \u201cDemocracy\u201d (1992).
\n6
\nSee Same-Sex Love in India: A Literary History (Ruth Vanita and Saleem Kidwai, eds.), Penguin India (2008) for
\nwritings spanning over more than 2,000 years of Indian literature which demonstrate that same-sex love has
\nflourished, evolved and been embraced in various forms since ancient times.
\n7
\nLaw like Love: Queer Perspectives on Law (Arvind Narrain and Alok Gupta, eds.), Yoda Press (2011).
\n8
\nK. N. Chandrasekharan Pillai and Shabistan Aquil, \u201cHistorical Introduction to the Indian Penal Code\u201d, in Essays on
\nthe Indian Penal Code, New Delhi, Indian Law Institute (2005); Siyuan Chen, \u201cCodification, Macaulay and the
\nIndian Penal Code [Book Review], Singapore Journal of Legal Studies, National University of Singapore, Faculty
\nof Law (2011), at pages 581-584.
\nPART C
\n14
\ndrew inspiration from the English common law and the British Royal
\nCommission\u2019s 1843 Draft Code.9 Tracing that origin, English jurist Fitzjames
\nStephen observes:
\n\u201cThe Indian Penal Code may be described as the criminal law
\nof England freed from all technicalities and superfluities,
\nsystematically arranged and modified in some few particulars
\n(they are surprisingly few) to suit the circumstances of British
\nIndia.\u201d10
\nIn order to understand the colonial origins of Section 377, it is necessary to go
\nfurther back to modern English law\u2019s conception of anal and oral intercourse,
\nwhich was firmly rooted in Judeo-Christian morality and condemned nonprocreative
\nsex.11 Though Jesus himself does not reference homosexuality or
\nhomosexual sex,12 the \u201cHoliness Code\u201d13 found in Leviticus provides thus:
\n\u201cYou shall not lie with a male as with a woman. It is an
\nabomination. [18:22]
\nIf a man also lie with mankind, as he lieth with a woman, both
\nof them have committed an abomination: they shall surely be
\nput to death; their blood shall be upon them. [19:13]
\nIf a man lies with a male as with a woman, both of them have
\ncommitted an abomination; they shall be put to death, their
\nblood is upon them. [20:13]\u201d<\/p>\n

9
\nDouglas E. Sanders, \u201c377 and the Unnatural Afterlife of British Colonialism in Asia\u201d, Asian Journal of Comparative
\nLaw, Vol. 4 (2009), at page 11 (\u201cDouglas\u201d); David Skuy, \u201cMacaulay and the Indian Penal Code of 1862: The Myth
\nof the Inherent Superiority and Modernity of the English Legal System Compared to India\u2019s Legal System in the
\nNineteenth Century\u201d, Modern Asian Studies, Vol. 32 (1998), at pages 513-557.
\n10
\nBarry Wright, \u201cMacaulay\u2019s Indian Penal Code: Historical Context and Originating Principles\u201d, Carleton University
\n(2011).
\n11 Michael Kirby, \u201cThe Sodomy Offence: England’s Least Lovely Law Export?\u201d Journal of Commonwealth Criminal
\nLaw, Inaugural Issue (2011).
\n12
\nDouglas, supra note 9, at page 4.
\n13
\nIbid at page 2.
\nPART C
\n15
\nAnother Judeo-Christian religious interpretation refers to \u201csodomy\u201d, a term
\nused for anal intercourse that is derived from an interpretation of Genesis
\n18:20 of the Old Testament,14 known as the story of Sodom and Gomorrah.
\nBriefly, when two angels took refuge in the home of Lot, the men of the town
\nof Sodom surrounded the house and demanded that the angels be sent out so
\nthat the men may \u201cknow\u201d them (in this interpretation, with sexual
\nconnotations). When Lot offered them his two virgin daughters instead, the
\nmen of Sodom responded by threatening Lot. The angels then blinded the
\n\u201cSodomites.\u201d15 The use of the term \u201csodomites\u201d to describe those who
\nengaged in anal intercourse emerged in the 13th Century, and the term
\n\u201csodomy\u201d was used as a euphemism for a number of sexual \u2018sins\u2019 two
\ncenturies earlier.16
\n16 The preservation of the Judeo-Christian condemnation of homosexuality
\nis also attributed to the Jewish theologian, Philo of Alexandria, who is
\nregarded as the father of the Church Fathers and who reviled homosexuals
\nand called for their execution.17 The condemnation of homosexuality can also
\nbe traced to Roman law. Emperor Justinian\u2019s Code of 529, for instance, stated<\/p>\n

14
\nDouglas, supra note 9, at page 4.
\n15
\nJessica Cecil, \u201cThe Destruction of Sodom and Gomorrah\u201d, British Broadcasting Company, 11 February 2017.
\n16
\nDouglas, supra note 9, at page 4; KSN Murthy\u2019s Criminal Law: Indian Penal Code (KVS Sarma ed), Lexis Nexis
\n(2016).
\n17
\nPhilo, translated by F.H. Colson and G.H. Whitaker, 10 Volumes, (Cambridge: Harvard University Press, 1929-
\n1962).
\nPART C
\n16
\nthat persons who engaged in homosexual sex were to be executed.18 From
\nRome, the condemnation of homosexuality spread across Europe, where it
\nmanifested itself in ecclesiastical law.19 During the Protestant Reformation,
\nthese laws shifted from the ecclesiastical to the criminal domain, beginning
\nwith Germany in 1532.20
\nWhile ecclesiastical laws against homosexual intercourse were well
\nestablished in England by the 1500s,21 England\u2019s first criminal (nonecclesiastical)
\nlaw was the Buggery Act of 1533, which condemned \u201cthe
\ndetestable and abominable vice of buggeri committed with mankind or
\nbeest.\u201d22 \u201cBuggery\u201d is derived from the old French word for heretic, \u201cbougre\u201d,
\nand was taken to mean anal intercourse.23
\n17 The Buggery Act, 1533, which was enacted by Henry VIII, made the
\noffence of buggery punishable by death, and continued to exist for nearly 300
\nyears before it was repealed and replaced by the Offences against the Person
\nAct, 1828. Buggery, however, remained a capital offence in England until
\n1861, one year after the enactment of the IPC. The language of Section 377<\/p>\n

18 David F. Greenberg and Marcia H. Bystryn, \u201cChristian Intolerance of Homosexuality\u201d, American Journal of
\nSociology, Vol. 88 (1982), at pages 515-548.
\n19
\nDouglas, supra note 9, at pages 5 and 8.
\n20
\nIbid at page 5.
\n21
\nIbid at page 2.
\n22
\nThe Buggery Act, 1533.
\n23
\nDouglas, supra note 9, at page 2.
\nPART C
\n17
\nhas antecedents in the definition of buggery found in Sir Edward Coke\u2019s late
\n17th Century compilation of English law:24
\n\u201c…Committed by carnal knowledge against the ordinance of
\nthe Creator, and order of nature, by mankind with mankind, or
\nwith brute beast, or by womankind with brute beast.\u201d25
\n18 The Criminal Law Amendment Act, 1885 made \u201cgross indecency\u201d a
\ncrime in the United Kingdom, and was used to prosecute homosexuals where
\nsodomy could not be proven. In 1895, Oscar Wilde was arrested under the
\nAct for \u2018committing acts of gross indecency with male persons\u2019.26 During
\nWilde\u2019s trial, the Prosecutor, referring to homosexual love, asked him, \u201cWhat
\nis \u2018the love that dare not speak its name\u2019?\u201d Wilde responded:
\n\u201cThe love that dare not speak its name\u201d in this century is such
\na great affection of an elder for a younger man as there was
\nbetween David and Jonathan, such as Plato made the very
\nbasis of his philosophy, and such as you find in the sonnets of
\nMichelangelo and Shakespeare. It is that deep spiritual
\naffection that is as pure as it is perfect. It dictates and
\npervades great works of art, like those of Shakespeare and
\nMichelangelo, and those two letters of mine, such as they are.
\nIt is in this century misunderstood, so much misunderstood
\nthat it may be described as \u201cthe love that dare not speak its
\nname,\u201d and on that account of it I am placed where I am now.
\nIt is beautiful, it is fine, it is the noblest form of affection. There
\nis nothing unnatural about it. It is intellectual, and it repeatedly
\nexists between an older and a younger man, when the older
\nman has intellect, and the younger man has all the joy, hope
\nand glamour of life before him. That it should be so, the world<\/p>\n

24 Ibid at 7.
\n25 Human Rights Watch. This Alien Legacy: The Origins of \u201cSodomy\u201d Laws in British Colonialism (2008).
\n26 Douglas, supra note 9, at page 15.
\nPART C
\n18
\ndoes not understand. The world mocks at it, and sometimes
\nputs one in the pillory for it.\u201d27
\nWilde was held guilty and was sentenced to two years\u2019 hard labour and
\nsubsequently incarcerated.
\nFollowing World War II, arrests and prosecutions of homosexuals increased.
\nAlan Turing, the renowned mathematician and cryptographer who was
\nresponsible for breaking the Nazi Enigma code during World War II, was
\nconvicted of \u2018gross indecency\u2019 in 1952. In order to avoid a prison sentence,
\nTuring was forced to agree to chemical castration. He was injected with
\nsynthetic female hormones. Less than two years after he began the hormone
\ntreatment, Turing committed suicide. The Amendment Act (also known as the
\nLabouchere Amendment) remained in English law until 1967. Turing was
\nposthumously pardoned in 2013, and in 2017, the UK introduced the Policing
\nand Crime Bill, also called the \u201cTuring Law,\u201d posthumously pardoning 50,000
\nhomosexual men and providing pardons for the living.
\nIn the wake of several court cases in which homosexuality had been featured,
\nthe British Parliament in 1954 set up the Wolfenden Committee, headed by<\/p>\n

27 H. Montgomery Hyde, John O’Connor, and Merlin Holland, The Trials of Oscar Wilde (2014), at page 201.
\nPART C
\n19
\nJohn Wolfenden, to \u201cconsider\u2026the law and practice relating to homosexual
\noffenses and the treatment of persons convicted of such offenses by the
\ncourts\u201d, as well as the laws relevant to prostitution and solicitation. The
\nWolfenden Report of 1957, which was supported by the Church of England,28
\nproposed that there \u2018must remain a realm of private morality and immorality
\nwhich is, in brief and crude terms, not the law\u2019s business\u2019 and recommended
\nthat homosexual acts between two consenting adults should no longer be a
\ncriminal offence.29
\n19 The success of the report led England and Wales to enact The Sexual
\nOffences Act, 1967, which decriminalized private homosexual sex between
\ntwo men over the age of twenty-one. Britain continued to introduce and
\namend laws governing same-sex intercourse to make them more equal,
\nincluding the lowering of the age of consent for gay\/bisexual men to sixteen in
\n2001.30 In May 2007, in a statement to the UN Human Rights Council, the UK,
\nwhich imposed criminal prohibitions against same-sex intercourse in its former
\ncolonies across the world, committed itself to the cause of worldwide
\ndecriminalization of homosexuality.31 Today, India continues to enforce a law<\/p>\n

28 Ibid at 25.
\n29 Report of the Departmental Committee on Homosexual Offences and Prostitution (1957) (\u201cWolfenden Report\u201d).
\n30 Sexual Offences (Amendment) Act 2000, Parliament of the United Kingdom.
\n31 Douglas, supra note 9, at page 29.
\nPART C
\n20
\nimposed by an erstwhile colonial government, a law that has been long done
\naway with by the same government in its own jurisdiction.
\nC.I \u201cArc of the moral universe\u201d
\n20 Lord Macaulay was greatly influenced by English philosopher and jurist
\nJeremy Bentham, who coined the term codification and argued for replacing
\nexisting laws with clear, concise, and understandable provisions that could be
\nuniversally applied across the Empire.32 Ironically, in a 1785 essay, Bentham
\nhimself wrote one of the earliest known defences of homosexuality in the
\nEnglish language, arguing against the criminalization of homosexuality.
\nHowever, this essay was only discovered 200 years after his death.33
\n21 The Law Commission\u2019s 1837 draft of the Penal Code (prepared by Lord
\nMacaulay) contained two sections (Clauses 361 and 362), which are
\nconsidered the immediate precursors to Section 377:
\n\u201cOF UNNATURAL OFFENCES
\n361. Whoever, intending to gratify unnatural lust, touches, for
\nthat purpose, any person, or any animal, or is by his own
\nconsent touched by any person, for the purpose of gratifying
\nunnatural lust, shall be punished with imprisonment of either
\ndescription for a term which may extend to fourteen years and<\/p>\n

32 Douglas, supra note 9, at page 9.
\n33 Ibid.
\nPART C
\n21
\nmust not be less than two years, and shall also be liable to
\nfine.
\n362. Whoever, intending to gratify unnatural lust, touches for
\nthat purpose any person without that person’s free and
\nintelligent consent, shall be punished with imprisonment of
\neither description for a term which may extend to life and
\nmust not be less than seven years, and shall also be liable to
\nfine.\u201d
\nBoth the draft clauses are vague in their description of the acts they seek to
\ncriminalize. Lord Macaulay also omitted an explanation to the Clauses. In a
\nnote presented with the 1837 draft, Lord Macaulay elaborated:
\n\u201cClauses 361 and 362 relate to an odious class of offences
\nrespecting which it is desirable that as little as possible be
\nsaid. We leave without comment to the judgment of his
\nLordship in Council the two Clauses which we have provided
\nfor these offences. We are unwilling to insert, either in the
\ntext, or in the notes, anything which could give rise to
\npublic discussion on this revolting subject; as we are
\ndecidedly of opinion that the injury which would be done
\nto the morals of the community by such discussion would
\nfar more than compensate for any benefits which might be
\nderived from legislative measures framed with the greatest
\nprecision.\u201d
\n34
\n(Emphasis supplied)
\nSo abominable did Macaulay consider these offences that he banished the
\nthought of providing a rationale for their being made culpable. The prospect of
\na public discussion was revolting.<\/p>\n

34
\nEnze Han, Joseph O’Mahoney, \u201cBritish Colonialism and the Criminalization of Homosexuality: Queens, Crime and
\nEmpire\u201d, Routledge (2018).
\nPART C
\n22
\nAfter twenty-five years of revision, the IPC entered into force on 1 January
\n1862, two years after Lord Macaulay\u2019s death. The IPC was the first codified
\ncriminal code in the British Empire. Section 377 of the revised code read as
\nfollows:
\n\u201cOf Unnatural Offences
\n377. Unnatural Offences.- Whoever voluntarily has carnal
\nintercourse against the order of nature with any man, woman
\nor animal, shall be punished with [imprisonment for life]
\n35, or
\nwith imprisonment of either description for a term which may
\nextend to ten years, and shall also be liable to fine.
\nExplanation.- Penetration is sufficient to constitute the carnal
\nintercourse necessary to the offence described in this
\nsection.\u201d
\n22 The Explanation is unique in that it requires proof of penetration \u2013
\nsomething that British Law did not. The two clauses in the Draft Code fell
\nsomewhere in between, requiring proof of \u201ctouch\u201d.36
\nBy the time India gained independence in 1947, Britain had introduced Penal
\nCodes similar to the IPC in other former colonies, including Zanzibar
\n(Tanzania) in 1867, Singapore, Malaysia, and Brunei in 1871, Ceylon (Sri
\nLanka) in 1885, Burma (Myanmar) in 1886,37 East Africa Protectorate (Kenya)<\/p>\n

35
\nChanged from \u201ctransportation for life\u201d by Act 26 of 1955.
\n36
\nDouglas, supra note 9, at page 16.
\n37
\nNang Yin Kham, \u201cAn Introduction to the Law and Judicial System of Myanmar\u201d, Centre for Asia Legal Studies
\nFaculty of Law, National University of Singapore, Working Paper 14\/02, (2014).
\nPART C
\n23
\nin 1897, Sudan in 1889, Uganda in 1902, and Tanganyika (Tanzania) in
\n1920.38 Under Article 372(1) of the Indian Constitution, which provides that all
\nlaws in force prior to the commencement of the Constitution shall continue to
\nbe in force until altered or repealed, the IPC and many other preIndependence
\nlaws were \u201csaved\u201d and allowed to operate in Independent
\nIndia.
\n23 While Section 377 has been used to prosecute non-consensual sexual
\nacts, it has also been used to prosecute consensual sexual acts. In
\n(Meharban) Nowshirwan Irani v. Emperor39
\n, for instance, a police officer
\nobserved Nowshirwan, a young shopkeeper, engaged in homosexual acts
\nwith a young man, Ratansi, through a keyhole in Nowshirwan\u2019s house. The
\nProsecution argued that the acts were non-consensual, but could not prove
\ncoercion.40 The High Court of Sindh ultimately set aside the conviction based
\non insufficient evidence. Nevertheless, what should have been an intimate act
\nbetween two consenting parties in their bedroom became a public scandal
\nand the subject of judicial scrutiny.41<\/p>\n

38
\nSupra note 34.
\n39
\nAIR 1934 Sind. 206.
\n40
\nArvind Narrain, \u201c\u2018That Despicable Specimen of Humanity\u2019: Policing of Homosexuality in India\u201d, in Challenging the
\nRule(s) of Law: Colonialism, Criminology and Human Rights in India (Kalpana Kannabiran and Ranbir Singh
\neds.), Sage (2008).
\n41
\nArvind Narrain, \u201cA New Language of Morality: From the Trial of Nowshirwan to the Judgement in Naz Foundation\u201d,
\nThe Indian Journal of Constitutional Law, Vol. 4 (2010).
\nPART C
\n24
\nIn D P Minwalla v. Emperor42
\n, Minawalla and Tajmahomed, were seen
\nhaving anal intercourse in a lorry and were arrested, charged, and found guilty
\nunder Section 377. Tajmahomed was sentenced to four months rigorous
\nimprisonment, and Minawalla, who was charged with abetment, was
\nsentenced to a fine of Rs 100 and imprisonment until the rising of the Bench.
\nMinawalla appealed the decision on the grounds that he was not a consenting
\npartner, and submitted himself to a medical exam. The judge was
\nunconvinced, however, and Minawalla\u2019s original sentence was upheld. The
\nCourt, convinced that the acts were consensual, found the men guilty under
\nSection 377.43
\nIn Ratan Mia v. State of Assam44
\n, the Court convicted two men (one aged
\nfifteen and a half, the other twenty) under Section 377 and treated them as
\nequally culpable, as he was unable to cast one of them as the perpetrator and
\nthe other as the victim or abettor. Both men were originally sentenced to
\nimprisonment for six months and a fine of Rs 100. After Nur had spent six
\nyears in prison and appealed three times,45 both men’s sentences were<\/p>\n

42
\nAIR 1935 Sind. 78.
\n43
\nSupra note 40.
\n44
\n(1988) Cr.L.J. 980.
\n45
\nSuparna Bhaskaran, \u201cThe Politics of Penetration: Section 377 of the Indian Penal Code\u201d in Queering India: SameSex
\nLove and Eroticism in Indian Culture and Society (Ruth Vanita ed.), Routledge (2002).
\nPART C
\n25
\nreduced to seven days rigorous imprisonment, in view of the fact that they
\nwere first time offenders under the age of twenty-one.
\n46
\nEven though the government is not proactively enforcing a law that governs
\nprivate activities, the psychological impact for homosexuals who are, for all
\npractical purposes, felons in waiting, is damaging in its own right:
\n\u201c…The true impact of Section 377 on queer lives is felt outside
\nthe courtroom and must not be measured in terms of legal
\ncases. Numerous studies, including both documented and
\nanecdotal evidence, tell us that Section 377 is the basis for
\nroutine and continuous violence against sexual minorities by
\nthe police, the medical establishment, and the state. There
\nare innumerable stories that can be cited \u2013 from the everyday
\nviolence faced by hijras [a distinct transgender category] and
\nkothis [effeminate males] on the streets of Indian cities to the
\nrefusal of the National Human Rights Commission to hear the
\ncase of a young man who had been given electro-shock
\ntherapy for nearly two years. A recent report by the People\u2019s
\nUnion for Civil Liberties (Karnataka), showed that Section 377
\nwas used by the police to justify practices such as illegal
\ndetention, sexual abuse and harassment, extortion and outing
\nof queer people to their families.\u201d
\n47
\nBefore the end of the 19th century, gay rights movements were few and far
\nbetween. Indeed, when Alfred Douglas, Oscar Wilde\u2019s lover, wrote in his
\n1890s poem entitled \u201cTwo Loves\u201d of \u201cthe love that dare not speak its name\u201d,
\nhe was alluding to society\u2019s moral disapprobation of homosexuality.48 The 20th<\/p>\n

46
\nIbid.
\n47
\nDouglas, supra note 9, at page 21; \u201cIntroduction\u201d to Because I Have a Voice: Queer Politics in India, (Gautam
\nBhan and Arvind Narrain eds), Yoda Press (2005) at pages 7, 8.
\n48
\nMelba Cuddy-Keane, Adam Hammond and Alexandra Peat, \u201cQ\u201d in Modernism: Keywords, Wiley-Blackwell (2014).
\nPART C
\n26
\ncentury, however, saw the LGBTIQ community emerge from the shadows
\nworldwide, poised to agitate and demand equal civil rights. LGBTIQ
\nmovements focused on issues of intersectionality, the interplay of oppressions
\narising from being both queer and lower class, coloured, disabled, and so on.
\nDespite the movement making numerous strides forward in the fight for equal
\nrights, incidents of homosexual arrests were nevertheless extant at the turn of
\nthe 21st century.
\nIn many cases of unfulfilled civil rights, there is a tendency to operate under
\nthe philosophy articulated by Dr. Martin Luther King, that \u201cthe arc of the moral
\nuniverse is long, but it bends towards justice.\u201d It is likely that those who
\nsubscribe to this philosophy believe that homosexuals should practice the
\nvirtue of patience, and wait for society to understand and accept their way of
\nlife. What those who purport this philosophy fail to recognize is that Dr King
\nhimself argued against the doctrine of \u201cwait\u201d:
\n\u201cFor years now I have heard the word \u201cwait.\u201d It rings in the ear
\nof every Negro with a piercing familiarity. This \u201cwait\u201d has
\nalmost always meant \u201cnever.\u201d It has been a tranquilizing
\nthalidomide, relieving the emotional stress for a moment, only
\nto give birth to an ill-formed infant of frustration. We must
\ncome to see with the distinguished jurist of yesterday that
\n\u201cjustice too long delayed is justice denied.\u201d We have waited
\nfor more than three hundred and forty years for our God-given
\nand constitutional rights . . . when you are harried by day and
\nhaunted by night by the fact that you are a Negro, living
\nconstantly at tiptoe stance, never knowing what to expect
\nnext, and plagued with inner fears and outer resentments;
\nPART C
\n27
\nwhen you are forever fighting a degenerating sense of
\n\u201cnobodyness\u201d — then you will understand why we find it
\ndifficult to wait. There comes a time when the cup of
\nendurance runs over and men are no longer willing to be
\nplunged into an abyss of injustice where they experience the
\nbleakness of corroding despair. I hope, sirs, you can
\nunderstand our legitimate and unavoidable impatience.\u201d
\n(Letter from a Birmingham Jail)49
\n24 Indian citizens belonging to sexual minorities have waited. They have
\nwaited and watched as their fellow citizens were freed from the British yoke
\nwhile their fundamental freedoms remained restrained under an antiquated
\nand anachronistic colonial-era law \u2013 forcing them to live in hiding, in fear, and
\nas second-class citizens. In seeking an adjudication of the validity of Section
\n377, these citizens urge that the acts which the provision makes culpable
\nshould be decriminalised. But this case involves much more than merely
\ndecriminalising certain conduct which has been proscribed by a colonial law.
\nThe case is about an aspiration to realise constitutional rights. It is about a
\nright which every human being has, to live with dignity. It is about enabling
\nthese citizens to realise the worth of equal citizenship. Above all, our decision
\nwill speak to the transformative power of the Constitution. For it is in the
\ntransformation of society that the Constitution seeks to assure the values of a
\njust, humane and compassionate existence to all her citizens.<\/p>\n

49 Martin Luther King Jr., \u201cLetter from a Birmingham Jail\u201d (1963).
\nPART D
\n28
\nD An equal love
\n\u201cThrough Love’s Great Power
\nThrough love’s great power to be made whole
\nIn mind and body, heart and soul \u2013
\nThrough freedom to find joy, or be
\nBy dint of joy itself set free
\nIn love and in companionhood:
\nThis is the true and natural good.
\nTo undo justice, and to seek
\nTo quash the rights that guard the weak –
\nTo sneer at love, and wrench apart
\nThe bonds of body, mind and heart
\nWith specious reason and no rhyme:
\nThis is the true unnatural crime.\u201d
\n50
\nArticle 14 is our fundamental charter of equality:
\n\u201cThe State shall not deny to any person equality before the
\nlaw or the equal protection of the laws within the territory of
\nIndia.\u201d (Emphasis supplied)
\n25 In Naz, the Delhi High Court held that Section 377 violates Article 14 of
\nthe Constitution since the classification on which it is based does not bear any
\nnexus to the object which the provision seeks to achieve.
\n51 In Koushal, this
\nCourt rejected the Naz formulation on the ground that \u201cthose who indulge in
\ncarnal intercourse in the ordinary course and those who … [do so] against the
\norder of nature constitute different classes.\u201d52 Koushal held on that logic that<\/p>\n

50 Vikram Seth wrote this poem the morning after the Supreme Court refused to review its decision in Koushal.
\n51 Naz Foundation, at para 91.
\n52 Koushal, at para 65.
\nPART D
\n29
\nSection 377 does not suffer from arbitrariness or from an irrational
\nclassification.
\n26 A litany of our decisions \u2013 to refer to them individually would be a
\nparade of the familiar \u2013 indicates that to be a reasonable classification under
\nArticle 14 of the Constitution, two criteria must be met: (i) the classification
\nmust be founded on an intelligible differentia; and (ii) the differentia must have
\na rational nexus to the objective sought to be achieved by the legislation.
\n53
\nThere must, in other words, be a causal connection between the basis of
\nclassification and the object of the statute. If the object of the classification is
\nillogical, unfair and unjust, the classification will be unreasonable.54
\n27 Equating the content of equality with the reasonableness of a
\nclassification on which a law is based advances the cause of legal formalism.
\nThe problem with the classification test is that what constitutes a reasonable
\nclassification is reduced to a mere formula: the quest for an intelligible
\ndifferentia and the rational nexus to the object sought to be achieved. In doing
\nso, the test of classification risks elevating form over substance. The danger
\ninherent in legal formalism lies in its inability to lay threadbare the values
\nwhich guide the process of judging constitutional rights. Legal formalism<\/p>\n

53 State of West Bengal v. Anwar Ali Sarkar, AIR (1952) SC 75.
\n54 Deepak Sibal v. Punjab University, (1989) 2 SCC 145.
\nPART D
\n30
\nburies the life-giving forces of the Constitution under a mere mantra. What it
\nignores is that Article 14 contains a powerful statement of values \u2013 of the
\nsubstance of equality before the law and the equal protection of laws. To
\nreduce it to a formal exercise of classification may miss the true value of
\nequality as a safeguard against arbitrariness in state action. As our
\nconstitutional jurisprudence has evolved towards recognizing the substantive
\ncontent of liberty and equality, the core of Article 14 has emerged out of the
\nshadows of classification. Article 14 has a substantive content on which,
\ntogether with liberty and dignity, the edifice of the Constitution is built. Simply
\nput, in that avatar, it reflects the quest for ensuring fair treatment of the
\nindividual in every aspect of human endeavor and in every facet of human
\nexistence.
\nIn E P Royappa v. State of Tamil Nadu55
\n, the validity of state action was
\nmade subject to the test of arbitrariness:
\n\u201cEquality is a dynamic concept with many aspects and
\ndimensions and it cannot be \u201ccribbed cabined and confined\u201d
\nwithin traditional and doctrinaire limits. From a positivistic
\npoint of view, equality is antithetic to arbitrariness. In fact
\nequality and arbitrariness are sworn enemies; one belongs to
\nthe rule of law in a republic while the other, to the whim and
\ncaprice of an absolute monarch. Where an act is arbitrary it is
\nimplicit in it that it is unequal both according to political logic
\nand constitutional law and is therefore violative of Art.14\u2026\u201d<\/p>\n

55 (1974) 4 SCC 3
\nPART D
\n31
\nFour decades later, the test has been refined in Shayara Bano v. Union of
\nIndia56:
\n\u201cThe expression \u2018arbitrarily\u2019 means: in an unreasonable
\nmanner, as fixed or done capriciously or at pleasure, without
\nadequate determining principle, not founded in the nature of
\nthings, non-rational, not done or acting according to reason or
\njudgment, depending on the will alone.\u201d
\n28 The wording of Section 377 does not precisely map on to a distinction
\nbetween homosexuals and heterosexuals but a precise interpretation would
\nmean that it penalizes some forms of sexual expression among heterosexuals
\nwhile necessarily criminalizing every form of sexual expression and intimacy
\nbetween homosexuals.57 For Section 377 to withstand the scrutiny of Article
\n14, it was necessary for the Court in Koushal to establish the difference
\nbetween \u2018ordinary intercourse\u2019 and \u2018intercourse against the order of nature\u2019,
\nthe legitimate objective being pursued and the rational nexus between the
\ngoal and the classification. However, the Koushal approach has been
\ncriticised on the ground that while dealing with Article 14, it fell \u201cshort of the
\nminimum standards of judicial reasoning that may be expected from the
\nSupreme Court.\u201d58 On a review of the prosecutions under Section 377,
\nKoushal conceded that \u201cno uniform test [could] be culled out to classify acts<\/p>\n

56 (2017) 9 SCC 1
\n57 Gautam Bhatia, \u201cEqual moral membership: Naz Foundation and the refashioning of equality under a transformative
\nconstitution\u201d, Indian Law Review, Vol. 1 (2017), at pages 115-144.
\n58
\nShubhankar Dam, \u201cSuresh Kumar Koushal and Another v. NAZ Foundation and Others (Civil Appeal No. 10972 of
\n2013)\u201d Public Law, International Survey Section (2014).
\nPART D
\n32
\nas \u2018carnal intercourse against the order of nature.\u2019\u201d
\n59 Yet Koushal upheld the
\nclassification of sexual acts in Section 377 without explaining the difference
\nbetween the classes, or the justification for treating the classes differently.
\nThis lack of reasoning and analysis by the Court has been critiqued in
\nscholarly research on the subject. The following extract sums up the criticism
\nwith telling effect:
\n\u201cThe Court says \u2013 without an iota of evidence \u2013 that there are
\ntwo classes of persons \u2013 those who engage in sexual
\nintercourse in the \u201cordinary course\u201d, and those who don\u2019t.
\nWhat is ordinary course? Presumably, heterosexuality. Why
\nis this ordinary course? Perhaps because there are more
\nheterosexuals than homosexuals around, although the Court
\ngives no evidence for that. Well, there are also more blackhaired
\npeople in India than brown-haired people. Is sex with a
\nbrown-haired person against the order of nature because it
\nhappens less often?… Where is the rational nexus? What is
\nthe legitimate governmental objective? Even if we accept that
\nthere is an intelligible differentia here, on what basis do
\nyou criminalize \u2013 and thus deny equal protection of laws \u2013 to
\none class of persons? The Court gives no answer.
\nAlternatively, \u201cordinary sex\u201d is penal-vaginal, and every other
\nkind of sex is \u201cagainst the ordinary course of nature\u201d. Again,
\nno evidence to back that claim up apart from the say-so of the
\njudge.\u201d
\n60
\nAt the very outset, we must understand the problem with the usage of the
\nterm \u2018order of nature\u2019. What is \u2018natural\u2019 and what is \u2018unnatural\u2019? And who
\ndecides the categorization into these two ostensibly distinct and water-tight
\ncompartments? Do we allow the state to draw the boundaries between<\/p>\n

59
\nKoushal, at para 60.
\n60 Gautam Bhatia, \u201cThe Unbearable Wrongness of Koushal vs Naz Foundation\u201d, Indian Constitutional Law and
\nPhilosophy (2013).
\nPART D
\n33
\npermissible and impermissible intimacies between consenting adults?
\nHomosexuality has been documented in almost 1500 species, who
\n\u201cunfortunately are not blessed with rational capabilities (and the propensity to
\n\u2018nurture\u2019 same sex thoughts) as are found in mankind.\u201d61 An interesting article
\nin this regard notes that, \u201cno species has been found in which homosexual
\nbehaviour has not been shown to exist, with the exception of species that
\nnever have sex at all, such as sea urchins and aphis.\u201d62
\n29 In an incisive article,
\n63 Ambrosino discusses the shift from reproductive
\ninstinct to erotic desire and how crucial this shift is to understanding modern
\nnotions of sexuality. He analyses how the lines between homosexuality and
\nheterosexuality are blurred, and perhaps even an outdated myth or invention
\nwhen we understand the fluidity of sexual identities today:64
\n\u201c\u201cNo one knows exactly why heterosexuals and homosexuals
\nought to be different,\u201d wrote Wendell Ricketts, author of the
\n1984 study Biological Research on Homosexuality. The best
\nanswer we\u2019ve got is something of a tautology: \u201cheterosexuals
\nand homosexuals are considered different because they can
\nbe divided into two groups on the basis of the belief that they
\ncan be divided into two groups.\u201d
\nThough the hetero\/homo divide seems like an eternal,
\nindestructible fact of nature, it simply isn\u2019t. It\u2019s merely one
\nrecent grammar humans have invented to talk about what sex
\nmeans to us.\u201d<\/p>\n

61
\nShamnad Basheer, Sroyon Mukherjee and Karthy Nair, \u201cSection 377 and the \u2018Order of Nature\u2019: Nurturing
\n\u2018Indeterminacy\u2019 in the Law\u201d, NUJS Law Review, Vol, 2 (2009).
\n62
\nBruce Bagemihl, Biological Exuberance: Animal Homosexuality and Natural Diversity, Stonewall Inn Editions
\n(2000).
\n63
\nBrandon Ambrosino, \u201cThe Invention of Heterosexuality\u201d, British Broadcasting Company, 26 March, 2017.
\n64
\nIbid.
\nPART D
\n34
\nHe questions the elevated status of \u2018normalcy\u2019 in the following words:
\n\u201cNormal\u201d is a loaded word, of course, and it has been misused
\nthroughout history. Hierarchical ordering leading to slavery was
\nat one time accepted as normal, as was a geocentric
\ncosmology. It was only by questioning the foundations of the
\nconsensus view that \u201cnormal\u201d phenomena were dethroned
\nfrom their privileged positions.\u201d
\nThere are obvious shortcomings of the human element in the judgment of
\nnatural and unnatural:
\n\u201cWhy judge what is natural and ethical to a human being by his
\nor her animal nature? Many of the things human beings value,
\nsuch as medicine and art, are egregiously unnatural. At the
\nsame time, humans detest many things that actually are
\neminently natural, like disease and death. If we consider some
\nnaturally occurring phenomena ethical and others unethical,
\nthat means our minds (the things looking) are determining what
\nto make of nature (the things being looked at). Nature doesn\u2019t
\nexist somewhere \u201cout there,\u201d independently of us \u2013 we\u2019re
\nalways already interpreting it from the inside.\u201d
\nIt has been argued that \u201cthe \u2018naturalness\u2019 and omnipresence of
\nheterosexuality is manufactured by an elimination of historical specificities
\nabout the organisation, regulation and deployment of sexuality across time
\nand space.\u201d65 It is thus this \u201ccloseting of history\u201d that produces the \u201chegemonic
\nheterosexual\u201d – the ideological construction of a particular alignment of sex,
\ngender and desire that posits itself as natural, inevitable and eternal.66
\nHeterosexuality becomes the site where the male sexed masculine man\u2019s
\ndesire for the female sexed feminine woman is privileged over all other forms<\/p>\n

65 Zaid Al Baset, \u201cSection 377 and the Myth of Heterosexuality\u201d, Jindal Global Law Review, Vol. 4 (2012).
\n66 Ibid.
\nPART D
\n35
\nof sexual desire and becomes a pervasive norm that structures all societal
\nstructures.67
\nThe expression \u2018carnal\u2019 is susceptible to a wide range of meanings. Among
\nthem are:
\n\u201csexual, sensual, erotic, lustful, lascivious, libidinous, lecherous, licentious,
\nlewd, prurient, salacious, coarse, gross, lubricious, venereal.\u201d
\nThat\u2019s not all. The word incorporates meanings such as: \u201cphysical,
\nbodily, corporeal and of the flesh.\u201d The late Middle English origin of \u2018carnal\u2019
\nderives from Christian Latin \u2018carnalis\u2019, from caro, carn \u2013 \u2018flesh\u2019. At one end of
\nthe spectrum \u2018carnal\u2019 embodies something which relates to the physical
\nfeelings and desires of the body. In another sense, the word implies \u2018a
\nrelation to the body or flesh as the state of basic physical appetites\u2019. In a
\npejorative sense, it conveys grossness or lewdness. The simple question
\nwhich we need to ask ourselves is whether liberty and equality can be made
\nto depend on such vagueness of expression and indeterminacy of content.
\nSection 377 is based on a moral notion that intercourse which is lustful is to
\nbe frowned upon. It finds the sole purpose of intercourse in procreation. In
\ndoing so, it imposes criminal sanctions upon basic human urges, by targeting<\/p>\n

67 Ibid.
\nPART D
\n36
\nsome of them as against the order of nature. It does so, on the basis of a
\nsocial hypocrisy which the law embraces as its own. It would have human
\nbeings lead sanitized lives, in which physical relationships are conditioned by
\na moral notion of what nature does or does not ordain. It would have human
\nbeings accept a way of life in which sexual contact without procreation is an
\naberration and worse still, penal. It would ask of a section of our citizens that
\nwhile love, they may, the physical manifestation of their love is criminal. This
\nis manifest arbitrariness writ large.
\nIf it is difficult to locate any intelligible differentia between indeterminate terms
\nsuch as \u2018natural\u2019 and \u2018unnatural\u2019, then it is even more problematic to say that a
\nclassification between individuals who supposedly engage in \u2018natural\u2019
\nintercourse and those who engage in \u2018carnal intercourse against the order of
\nnature\u2019 can be legally valid.
\nIn addition to the problem regarding the indeterminacy of the terms, there is a
\nlogical fallacy in ascribing legality or illegality to the ostensibly universal
\nmeanings of \u2018natural\u2019 and \u2018unnatural\u2019 as is pointed out in a scholarly article.
\n68
\nBasheer, et al make this point effectively:
\n\u201cFrom the fact that something occurs naturally, it does not
\nnecessarily follow that it is socially desirable. Similarly, acts
\nthat are commonly perceived to be \u2018unnatural\u2019 may not
\nnecessarily deserve legal sanction. Illustratively, consider a<\/p>\n

68 Supra note 61.
\nPART D
\n37
\nperson who walks on his hands all the time. Although this
\nmay be unnatural, it is certainly not deserving of legal
\ncensure.
\n\u2026In fact, several activities that might be seen to contravene
\nthe order of nature (heart transplants, for example) are
\nbeneficial and desirable. Even if an unnatural act is harmful to
\nthe extent that it justifies criminal sanctions being imposed
\nagainst it, the reason for proscribing such an act would be
\nthat the act is harmful, and not that it is unnatural.\u201d
\nIndeed, there is no cogent reasoning to support the idea that behaviour that
\nmay be uncommon on the basis of mere statistical probability is necessarily
\nabnormal and must be deemed ethically or morally wrong.69 Even behaviour
\nthat may be considered wrong or unnatural cannot be criminalised without
\nsufficient justification given the penal consequences that follow. Section 377
\nbecomes a blanket offence that covers supposedly all types of nonprocreative
\n\u2018natural\u2019 sexual activity without any consideration given to the
\nnotions of consent and harm.
\n30 The meaning of \u2018natural\u2019 as understood in cases such as Khanu v.
\nEmperor70
\n, which interpreted natural sex to mean only sex that would lead to
\nprocreation, would lead to absurd consequences. Some of the consequences
\nhave been pointed out thus:
\n\u201cThe position of the court was thus that \u2018natural\u2019 sexual
\nintercourse is restricted not only to heterosexual coitus, but
\nfurther only to acts that might possibly result in conception.<\/p>\n

69 Sex, Morality and the Law, (Lori Gruen and George Panichas eds.), Routledge (1996).
\n70
\nAIR (1925) Sind. 286
\nPART D
\n38
\nSuch a formulation of the concept of \u2018natural\u2019 sex excludes
\nnot only the use of contraception, which is likely to have fallen
\noutside the hegemonic view of normative sexuality at the
\ntime, but also heterosexual coitus where one or both partners
\nare infertile, or during the \u2018safe\u2019 period of a woman\u2019s
\nmenstrual cycle. It is perhaps unnecessary to state that the
\nformulation also excludes oral sex between heterosexual
\npartners and any homosexual act whatsoever.\u201d71
\nThe indeterminacy and vagueness of the terms \u2018carnal intercourse\u2019 and \u2018order
\nof nature\u2019 renders Section 377 constitutionally infirm as violating the equality
\nclause in Article 14.
\nWhile it is evident that the classification is invalid, it is useful to understand its
\npurported goal by looking at the legislative history of Section 377. In
\nMacaulay\u2019s first draft of the Penal Code, the predecessor to present day
\nSection 377 was Clause 36172 which provided a severe punishment for
\ntouching another for the purpose of \u2018unnatural\u2019 lust. Macaulay abhorred the
\nidea of any debate or discussion on this \u2018heinous crime\u2019. India\u2019s anti-sodomy
\nlaw was conceived, legislated and enforced by the British without any kind of
\npublic discussion.73 So abhorrent was homosexuality to the moral notions
\nwhich he espoused, that Macaulay believed that the idea of a discussion was<\/p>\n

71
\nAndrew Davis, \u201cThe Framing of Sex: Evaluating Judicial Discourse on the ‘Unnatural Offences’\u201d, Alternative Law
\nJournal, Vol. 5 (2006).
\n72
\nClause 361 stated \u201cWhoever, intending to gratify unnatural lust, touches, for that purpose, any person, or any
\nanimal, or is by his own consent touched by any person, for the purpose of gratifying unnatural lust, shall be
\npunished with imprisonment of either description for a term which may extend to fourteen years and must not be
\nless than two years, and shall also be liable to fine.\u201d
\n73
\nAlok Gupta, \u201cSection 377 and the Dignity of Indian Homosexuals\u201d The Economic and Political Weekly, Vol. 41
\n(2006).
\nPART D
\n39
\nrepulsive. Section 377 reveals only the hatred, revulsion and disgust of the
\ndraftsmen towards certain intimate choices of fellow human beings. The
\ncriminalization of acts in Section 377 is not based on a legally valid distinction,
\n\u201cbut on broad moral proclamations that certain kinds of people, singled out by
\ntheir private choices, are less than citizens \u2013 or less than human.\u201d74
\n31 The Naz judgement has been criticised on the ground that even though
\nit removed private acts between consenting adults from the purview of Section
\n377, it still retained the section along with its problematic terminology
\nregarding the \u2018order of nature\u2019:75
\n\u201c\u2026even though the acts would not be criminal, they would still
\nbe categorized as \u201cunnatural\u201d in the law. This is not an idle
\nterminological issue. As Durkheim noted over a hundred
\nyears ago, the law also works as a tool that expresses social
\nrelations.76 Hence, this expression itself is problematic from a
\ndignitarian standpoint, otherwise so eloquently referred to by
\nthe judgement.\u201d
\nAt this point, we look at some of the legislative changes that have taken place
\nin India\u2019s criminal law since the enactment of the Penal Code. The Criminal
\nLaw (Amendment) Act 2013 imported certain understandings of the concept of
\nsexual intercourse into its expansive definition of rape in Section 375 of the
\nIndian Penal Code, which now goes beyond penile\u2013vaginal penetrative<\/p>\n

74
\nSupra note 25.
\n75
\nJohn Sebastian, \u201cThe opposite of unnatural intercourse: understanding Section 377 through Section 375, Indian
\nLaw Review, Vol. 1 (2018).
\n76
\nEmile Durkheim, The Division of Labour in Society, Macmillan (1984).
\nPART D
\n40
\nintercourse.77 It has been argued that if \u2018sexual intercourse\u2019 now includes
\nmany acts which were covered under Section 377, those acts are clearly not
\n\u2018against the order of nature\u2019 anymore. They are, in fact, part of the changed
\nmeaning of sexual intercourse itself. This means that much of Section 377 has
\nnot only been rendered redundant but that the very word \u2018unnatural\u2019 cannot
\nhave the meaning that was attributed to it before the 2013 amendment.78
\nSection 375 defines the expression rape in an expansive sense, to include
\nany one of several acts committed by a man in relation to a woman. The
\noffence of rape is established if those acts are committed against her will or
\nwithout the free consent of the woman. Section 375 is a clear indicator that in
\na heterosexual context, certain physical acts between a man and woman are
\nexcluded from the operation of penal law if they are consenting adults. Many
\nof these acts which would have been within the purview of Section 377, stand<\/p>\n

77
\n375. A man is said to commit \u201crape\u201d if he- (a) penetrates his penis, to any extent, into the vagina, mouth, urethra
\nor anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or
\na part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with
\nhim or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the
\nvagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
\n(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,
\nunder the circumstances falling under any of the following seven descriptions:\u2014 First.\u2014Against her will.
\nSecondly.\u2014Without her consent. Thirdly.\u2014With her consent, when her consent has been obtained by putting her
\nor any person in whom she is interested, in fear of death or of hurt. Fourthly.\u2014With her consent, when the man
\nknows that he is not her husband and that her consent is given because she believes that he is another man to
\nwhom she is or believes herself to be lawfully married. Fifthly.\u2014With her consent when, at the time of giving such
\nconsent, by reason of unsoundness of mind or intoxication or the administration by him personally or through
\nanother of any stupefying or unwholesome substance, she is unable to understand the nature and consequences
\nof that to which she gives consent Sixthly.\u2014With or without her consent, when she is under eighteen years of
\nage. Seventhly.\u2014When she is unable to communicate consent. Explanation 1.\u2014For the purposes of this section,
\n“vagina” shall also include labia majora. Explanation 2.\u2014Consent means an unequivocal voluntary agreement
\nwhen the woman by words, gestures or any form of verbal or non-verbal communication, communicates
\nwillingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the
\nact of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
\nException 1.\u2014A medical procedure or intervention shall not constitute rape. Exception 2.\u2014Sexual intercourse or
\nsexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.
\n78
\nSupra note 75, at pages 232-249.
\nPART D
\n41
\nexcluded from criminal liability when they take place in the course of
\nconsensual heterosexual contact. Parliament has ruled against them being
\nregarded against the \u2018order of nature\u2019, in the context of Section 375. Yet those
\nacts continue to be subject to criminal liability, if two adult men or women were
\nto engage in consensual sexual contact. This is a violation of Article 14.
\nNivedita Menon opposes the idea that \u2018normal\u2019 sexuality springs from nature
\nand argues that this idea of \u2018normal\u2019 sexuality is a cultural and social
\nconstruct:
\n79
\n\u201cConsider the possibility that rules of sexual conduct are as
\narbitrary as traffic rules, created by human societies to
\nmaintain a certain sort of order, and which could differ from
\nplace to place — for example, you drive on the left in India and
\non the right in the USA. Further, let us say you question the
\nsort of social order that traffic rules keep in place. Say you
\nbelieve that traffic rules in Delhi are the product of a model of
\nurban planning that privileges the rich and penalizes the poor,
\nthat this order encourages petrol-consuming private vehicles
\nand discourages forms of transport that are energy-saving —
\ncycles, public transport, pedestrians. You would then question
\nthat model of the city that forces large numbers of inhabitants
\nto travel long distances every day simply to get to school
\nandwork. You could debate the merits of traffic rules and
\nurban planning on the grounds of convenience, equity and
\nsustainability of natural resources — at least, nobody could
\nseriously argue that any set of traffic rules is natural.\u201d
\n32 The struggle of citizens belonging to sexual minorities is located within
\nthe larger history of the struggles against various forms of social subordination<\/p>\n

79
\nNivedita Menon, \u201cHow Natural is Normal? Feminism and Compulsory Heterosexuality\u201d, In Because I have a Voice,
\nQueer Politics in India, (Narrain and Bhan eds.) Yoda Press (2005).
\nPART E
\n42
\nin India. The order of nature that Section 377 speaks of is not just about nonprocreative
\nsex but is about forms of intimacy which the social order finds
\n\u201cdisturbing\u201d.
\n80 This includes various forms of transgression such as inter-caste
\nand inter-community relationships which are sought to be curbed by society.
\nWhat links LGBT individuals to couples who love across caste and community
\nlines is the fact that both are exercising their right to love at enormous
\npersonal risk and in the process disrupting existing lines of social authority.81
\nThus, a re-imagination of the order of nature as being not only about the
\nprohibition of non-procreative sex but instead about the limits imposed by
\nstructures such as gender, caste, class, religion and community makes the
\nright to love not just a separate battle for LGBT individuals, but a battle for
\nall.82
\nE Beyond physicality: sex, identity and stereotypes
\n\u201cOnly in the most technical sense is this a case about who
\nmay penetrate whom where. At a practical and symbolical
\nlevel it is about the status, moral citizenship and sense of selfworth
\nof a significant section of the community. At a more
\ngeneral and conceptual level, it concerns the nature of the
\nopen, democratic and pluralistic society contemplated by the
\nConstitution.\u201d83<\/p>\n

80
\nSupra note 7.
\n81
\nIbid.
\n82
\nSupra note 7.
\n83 The National Coalition for Gay and Lesbian Equality v. The Minister of Justice, 1999 (1) SA 6 (CC), Sachs J.,
\nconcurring.
\nPART E
\n43
\n33 The Petitioners contend that (i) Section 377 discriminates on the basis
\nof sex and violates Articles 15 and 16; and (ii) Discrimination on the ground of
\nsexual orientation is in fact, discrimination on the ground of sex. The
\nintervenors argue that (i) Section 377 criminalizes acts and not people; (ii) It is
\nnot discriminatory because the prohibition on anal and oral sex applies equally
\nto both heterosexual and homosexual couples; and (iii) Article 15 prohibits
\ndiscrimination on the ground of \u2018sex\u2019 which cannot be interpreted so broadly
\nas to include \u2018sexual orientation\u2019.
\n34 When the constitutionality of a law is challenged on the ground that it
\nviolates the guarantees in Part III of the Constitution, what is determinative is
\nits effect on the infringement of fundamental rights.84 This affords the
\nguaranteed freedoms their true potential against a claim by the state that the
\ninfringement of the right was not the object of the provision. It is not the object
\nof the law which impairs the rights of the citizens. Nor is the form of the action
\ntaken determinative of the protection that can be claimed. It is the effect of the
\nlaw upon the fundamental right which calls the courts to step in and remedy
\nthe violation. The individual is aggrieved because the law hurts. The hurt to
\nthe individual is measured by the violation of a protected right. Hence, while<\/p>\n

84
\nRe. the Kerala Education Bill, AIR 1958 SC 956 at para 26; Sakal Papers v Union of India, AIR 1962 SC 305 at
\npara 42; R.C. Cooper v Union of India, (1970) 1 SCC 248 at paras 43, 49; Bennett Coleman v. Union of India,
\nAIR (1972) 2 SCC 788 at para 39; Maneka Gandhi v Union of India, (1978) 1 SCC 248 at para 19.
\nPART E
\n44
\nassessing whether a law infringes a fundamental right, it is not the intention of
\nthe lawmaker that is determinative, but whether the effect or operation of the
\nlaw infringes fundamental rights.
\nArticle 15 of the Constitution reads thus:
\n\u201c15. (1) The State shall not discriminate against any citizen on
\ngrounds only of religion, race, caste, sex, place of birth or any
\nof them.\u201d (Emphasis supplied)
\nArticle 15 prohibits the State from discriminating on grounds only of sex. Early
\njudicial pronouncements adjudged whether discrimination aimed only at sex is
\ncovered by Article 15 or whether the guarantee is attracted even to a
\ndiscrimination on the basis of sex and some other grounds (\u2018Sex plus\u2019). The
\nargument was that since Article 15 prohibited discrimination on only specified
\ngrounds, discrimination resulting from a specified ground coupled with other
\nconsiderations is not prohibited. The view was that if the discrimination is
\njustified on the grounds of sex and another factor, it would not be covered by
\nthe prohibition in Article 15.
\n35 One of the earliest cases decided in 1951 was by the Calcutta High
\nCourt in Sri Sri Mahadev Jiew v. Dr. B B Sen85
\n. Under Order XXV, R. 1 of
\nthe Code of Civil Procedure, men could be made liable for paying a security<\/p>\n

85 AIR (1951) Cal. 563.
\nPART E
\n45
\ncost if they did not possess sufficient movable property in India only if they
\nwere residing outside India. However, women were responsible for paying
\nsuch security, regardless of whether or not they were residing in India. In
\nother words, the law drew a distinction between resident males who did not
\nhave sufficient immovable property, and resident females who did not have
\nsufficient immovable property. Upholding the provision, the Calcutta High
\nCourt held:
\n\u201c31. Article 15(1) of the Constitution pro-vides, inter alia, —
\nThe State shall not discriminate against any citizen on
\ngrounds only of sex. The word \u2018only\u2019 in this Article is of great
\nimportance and significance which should not be missed. The
\nimpugned law must be shown to discriminate because of sex
\nalone. If other factors in addition to sex come into play in
\nmaking the discriminatory law, then such discrimination
\ndoes not, in my judgment, come within the provision of
\nArticle 15(1) of the Constitution.\u201d (Emphasis supplied)
\nThis interpretation was upheld by this Court in Air India v. Nergesh Meerza
\n(\u201cNergesh Meerza\u201d).
\n86 Regulations 46 and 47 of the Air India Employees\u2019
\nService Regulations were challenged for causing a disparity between the pay
\nand promotional opportunities of men and women in-flight cabin crew. Under
\nRegulation 46, while the retirement age for male Flight Pursers was fifty eight,
\nAir Hostesses were required to retire at thirty five, or on marriage (if they
\nmarried within four years of joining service), or on their first
\npregnancy, whichever occurred earlier. This period could be extended in the<\/p>\n

86 (1981) 4 SCC 335
\nPART E
\n46
\nabsolute discretion of the Managing Director. Even though the two cadres
\nwere constituted on the grounds of sex, the Court upheld the Regulations in
\npart and opined:
\n\u201c68. Even otherwise, what Articles 15(1) and 16(2) prohibit
\nis that discrimination should not be made only and only
\non the ground of sex. These Articles of the Constitution
\ndo not prohibit the State from making discrimination on
\nthe ground of sex coupled with other considerations.\u201d
\n(Emphasis supplied)
\n36 This formalistic interpretation of Article 15 would render the
\nconstitutional guarantee against discrimination meaningless. For it would
\nallow the State to claim that the discrimination was based on sex and another
\nground (\u2018Sex plus\u2019) and hence outside the ambit of Article 15. Latent in the
\nargument of the discrimination, are stereotypical notions of the differences
\nbetween men and women which are then used to justify the discrimination.
\nThis narrow view of Article 15 strips the prohibition on discrimination of its
\nessential content. This fails to take into account the intersectional nature of
\nsex discrimination, which cannot be said to operate in isolation of other
\nidentities, especially from the socio-political and economic context. For
\nexample, a rule that people over six feet would not be employed in the army
\nwould be able to stand an attack on its disproportionate impact on women if it
\nwas maintained that the discrimination is on the basis of sex and height. Such
\nPART E
\n47
\na formalistic view of the prohibition in Article 15, rejects the true operation of
\ndiscrimination, which intersects varied identities and characteristics.
\n37 A divergent note was struck by this Court in Anuj Garg v. Hotel
\nAssociation of India87
\n. Section 30 of the Punjab Excise Act, 1914 prohibited
\nthe employment of women (and men under 25 years) in premises where liquor
\nor other intoxicating drugs were consumed by the public. Striking down the
\nlaw as suffering from \u201cincurable fixations of stereotype morality and
\nconception of sexual role\u201d, the Court held:
\n\u201c42\u2026 one issue of immediate relevance in such cases is
\nthe effect of the traditional cultural norms as also the
\nstate of general ambience in the society which women
\nhave to face while opting for an employment which is
\notherwise completely innocuous for the male
\ncounterpart…\u201d
\n\u201c43\u2026It is state\u2019s duty to ensure circumstances of safety
\nwhich inspire confidence in women to discharge the duty
\nfreely in accordance to the requirements of the profession
\nthey choose to follow. Any other policy inference (such as
\nthe one embodied under section 30) from societal
\nconditions would be oppressive on the women and
\nagainst the privacy rights.\u201d (Emphasis supplied)
\nThe Court recognized that traditional cultural norms stereotype gender roles.
\nThese stereotypes are premised on assumptions about socially ascribed roles
\nof gender which discriminate against women. The Court held that \u201cinsofar as
\ngovernmental policy is based on the aforesaid cultural norms, it is<\/p>\n

87(2008) 3 SCC 1
\nPART E
\n48
\nconstitutionally invalid.\u201d In the same line, the Court also cited with approval,
\nthe judgments of the US Supreme Court in Frontiero v. Richardson88
\n, and
\nUnited States v. Virginia89
\n, and Justice Marshall\u2019s dissent in Dothard v.
\nRawlinson90
\n, The Court grounded the anti-stereotyping principle as firmly
\nrooted in the prohibition under Article 15.
\nIn National Legal Services Authority v. Union of India (\u201cNALSA\u201d)91
\n, while
\ndealing with the rights of transgender persons under the Constitution, this
\nCourt opined:
\n\u201c66. Articles 15 and 16 sought to prohibit discrimination
\non the basis of sex, recognizing that sex discrimination
\nis a historical fact and needs to be addressed.
\nConstitution makers, it can be gathered, gave emphasis
\nto the fundamental right against sex discrimination so as
\nto prevent the direct or indirect attitude to treat people
\ndifferently, for the reason of not being in conformity with
\nstereotypical generalizations of binary genders. Both
\ngender and biological attributes constitute distinct
\ncomponents of sex. Biological characteristics, of course,
\ninclude genitals, chromosomes and secondary sexual
\nfeatures, but gender attributes include one\u2019s self image, the
\ndeep psychological or emotional sense of sexual identity and
\ncharacter. The discrimination on the ground of \u2018sex\u2019 Under<\/p>\n

88
\n411 U.S. 677 (1973). The case concerned a statute that allowed service-members to claim additional benefits if
\ntheir spouse was dependent on them. A male claimant would automatically be entitled to such benefits while a
\nfemale claimant would have to prove that her spouse was dependent on her for more than half his support. The
\nCourt struck down this statute stating that the legislation violated the equal protection clause of the American
\nConstitution.
\n89
\n518 U.S. 515 (1996). The case concerned the Virginia Military Institute (VMI), which had a stated objected of
\nproducing \u201ccitizen-soldiers.\u201d However, it did not admit women. The Court held that such a provision was
\nunconstitutional and that there were no \u201cfixed notions concerning the roles and abilities of males and females.\u201d
\n90
\n433 U.S. 321 (1977).The case concerned an effective bar on females for the position of guards or correctional
\ncounsellors in the Alabama State Penitentiary system. Justice Marshall\u2019s dissent held that prohibition of women in
\n\u2018contact positions\u2019 violated the Title VII guarantee.
\n91
\n(2014) 5 SCC 438
\nPART E
\n49
\nArticles 15 and 16, therefore, includes discrimination on the
\nground of gender identity.\u201d (Emphasis supplied)
\nThis approach, in my view, is correct.
\nIn Nergesh Meerza, this Court held that where persons of a particular class,
\nin view of the \u201cspecial attributes, qualities\u201d are treated differently in \u2018public
\ninterest\u2019, such a classification would not be discriminatory. The Court opined
\nthat since the modes of recruitment, promotional avenues and other matters
\nwere different for Air Hostesses, they constituted a class separate from male
\nFlight Pursers. This, despite noting that \u201ca perusal of the job functions which
\nhave been detailed in the affidavit, clearly shows that the functions of the two,
\nthough obviously different overlap on some points but the difference, if any, is
\none of degree rather than of kind.\u201d
\n38 The Court did not embark on the preliminary enquiry as to whether the
\ninitial classification between the two cadres, being grounded in sex, was
\nviolative of the constitutional guarantee against discrimination. Referring
\nspecifically to the three significant disabilities that the Regulations imposed on
\nAir Hostesses, the Court held that \u201cthere can be no doubt that these peculiar
\nconditions do form part of the Regulations governing Air Hostesses but once
\nwe have held that Air Hostesses form a separate category with different and
\nPART E
\n50
\nseparate incidents the circumstances pointed out by the petitioners cannot
\namount to discrimination so as to violate Article 14 of the Constitution on this
\nground.\u201d
\n39 The basis of the classification was that only men could become male
\nFlight Pursers and only women could become Air Hostesses. The very
\nconstitution of the cadre was based on sex. What this meant was, that to pass
\nthe non-discrimination test found in Article 15, the State merely had to create
\ntwo separate classes based on sex and constitute two separate cadres. That
\nwould not be discriminatory.
\nThe Court went a step ahead and opined:
\n\u201c80\u2026Thus, the Regulation permits an AH to marry at the age
\nof 23 if she has joined the service at the age of 19 which is by
\nall standards a very sound and salutary provision. Apart from
\nimproving the health of the employee, it helps a good in
\nthe promotion and boosting up of our family planning
\nprogramme. Secondly, if a woman marries near about the
\nage of 20 to 23 years, she becomes fully mature and
\nthere is every chance of such a marriage proving a
\nsuccess, all things being equal. Thirdly, it has been
\nrightly pointed out to us by the Corporation that if the bar
\nof marriage within four years of service is removed then
\nthe Corporation will have to incur huge expenditure in
\nrecruiting additional AHs either on a temporary or on ad
\nhoc basis to replace the working AHs if they conceive
\nand any period short of four years would be too little a
\ntime for the Corporation to phase out such an ambitious
\nplan.\u201d (Emphasis supplied)
\nPART E
\n51
\n40 A strong stereotype underlines the judgment. The Court did not
\nrecognize that men were not subject to the same standards with respect to
\nmarriage. It holds that the burdens of health and family planning rest solely on
\nwomen. This perpetuates the notion that the obligations of raising family are
\nthose solely of the woman. In dealing with the provision for termination of
\nservice on the first pregnancy, the Court opined that a substituted provision for
\ntermination on the third pregnancy would be in the \u201clarger interest of the
\nhealth of the Air Hostesses concerned as also for the good upbringing of the
\nchildren.\u201d Here again, the Court\u2019s view rested on a stereotype. The patronizing
\nattitude towards the role of women compounds the difficulty in accepting the
\nlogic of Nergesh Meerza. This approach, in my view, is patently incorrect.
\n41 A discriminatory act will be tested against constitutional values. A
\ndiscrimination will not survive constitutional scrutiny when it is grounded in
\nand perpetuates stereotypes about a class constituted by the grounds
\nprohibited in Article 15(1). If any ground of discrimination, whether direct or
\nindirect is founded on a stereotypical understanding of the role of the sex, it
\nwould not be distinguishable from the discrimination which is prohibited by
\nArticle 15 on the grounds only of sex. If certain characteristics grounded in
\nstereotypes, are to be associated with entire classes of people constituted as
\ngroups by any of the grounds prohibited in Article 15(1), that cannot establish
\nPART E
\n52
\na permissible reason to discriminate. Such a discrimination will be in violation
\nof the constitutional guarantee against discrimination in Article 15(1). That
\nsuch a discrimination is a result of grounds rooted in sex and other
\nconsiderations, can no longer be held to be a position supported by the
\nintersectional understanding of how discrimination operates. This infuses
\nArticle 15 with true rigour to give it a complete constitutional dimension in
\nprohibiting discrimination.
\nThe approach adopted the Court in Nergesh Meerza, is incorrect.
\nA provision challenged as being ultra vires the prohibition of discrimination on
\nthe grounds only of sex under Article 15(1) is to be assessed not by the
\nobjects of the state in enacting it, but by the effect that the provision has on
\naffected individuals and on their fundamental rights. Any ground of
\ndiscrimination, direct or indirect, which is founded on a particular
\nunderstanding of the role of the sex, would not be distinguishable from the
\ndiscrimination which is prohibited by Article 15 on the grounds only of sex.
\nE.I Facial neutrality: through the looking glass
\n42 The moral belief which underlies Section 377 is that sexual activities
\nwhich do not result in procreation are against the \u2018order of nature\u2019 and ought
\nPART E
\n53
\nto be criminalized under Section 377. The intervenors submit that Section
\n377, criminalizes anal and oral sex by heterosexual couples as well. Hence, it
\nis urged that Section 377 applies equally to all conduct against the \u2018order of
\nnature\u2019, irrespective of sexual orientation. This submission is incorrect. In
\nNALSA this Court held that Section 377, though associated with specific
\nsexual acts, highlights certain identities. In Naz, the Delhi High Court
\ndemonstrated effectively how Section 377 though facially neutral in its
\napplication to certain acts, targets specific communities in terms of its impact:
\n\u201cSection 377 IPC is facially neutral and it apparently
\ntargets not identities but acts, but in its operation it does
\nend up unfairly targeting a particular community. The fact
\nis that these sexual acts which are criminalised are
\nassociated more closely with one class of persons,
\nnamely, the homosexuals as a class. Section 377 IPC has
\nthe effect of viewing all gay men as criminals. When everything
\nassociated with homosexuality is treated as bent, queer,
\nrepugnant, the whole gay and lesbian community is marked
\nwith deviance and perversity. They are subject to extensive
\nprejudice because what they are or what they are
\nperceived to be, not because of what they do. The result is
\nthat a significant group of the population is, because of its
\nsexual nonconformity, persecuted, marginalised and
\nturned in on itself.\u201d92 (Emphasis supplied)
\nTo this end, it chronicled the experiences of the victims of Section 377, relying
\non the extensive records and affidavits submitted by the Petitioners that
\nbrought to fore instances of custodial rape and torture, social boycott,
\ndegrading and inhuman treatment and incarceration. The court concluded that
\nwhile Section 377 criminalized conduct, it created a systemic pattern of<\/p>\n

92 Naz, at para 94.
\nPART E
\n54
\ndisadvantage, exclusion and indignity for the LGBT community, and for
\nindividuals who indulge in non-heterosexual conduct.
\n43 Jurisprudence across national frontiers supports the principle that
\nfacially neutral action by the State may have a disproportionate impact upon a
\nparticular class. In Europe, Directive 2006\/54\/EC of the European
\nParliament and of the Council of 5 July 2006 defines \u2018indirect
\ndiscrimination\u2019 as: \u201cwhere an apparently neutral provision, criterion or practice
\nwould put persons of one sex at a particular disadvantage compared with
\npersons of the other sex, unless that provision, criterion or practice is
\nobjectively justified by a legitimate aim, and the means of achieving that aim
\nare appropriate and necessary.\u201d
\nIn Griggs v Duke Power Co.93
\n, the US Supreme Court, whilst recognizing
\nthat African-Americans received sub-standard education due to segregated
\nschools, opined that the requirement of an aptitude\/intelligence test
\ndisproportionately affected African-American candidates. The Court held that
\n\u201cThe Civil Rights Act\u201d proscribes not only overt discrimination but also
\npractices that are fair in form, but discriminatory in operation.\u201d<\/p>\n

93 401 U.S. 424 (1971)
\nPART E
\n55
\nIn Bilka-Kaufhaus GmbH v. Karin Weber von Hartz94
\n, the European Court
\nof Justice held that denying pensions to part-time employees is more likely to
\naffect women, as women were more likely to take up part-time jobs. The Court
\nnoted:
\n\u201cArticle 119 of the EEC Treaty is infringed by a department
\nstore company which excludes part-time employees from its
\noccupational pension scheme, where that exclusion affects
\na far greater number of women than men, unless the
\nundertaking shows that the exclusion is based on objectively
\njustified factors unrelated to any discrimination on grounds of
\nsex.\u201d (Emphasis supplied)
\nThe Canadian Supreme Court endorsed the notion of a disparate impact
\nwhere an action has a disproportionate impact on a class of persons. In
\nAndrews v. Law Society of British Columbia95
\n, the Court noted:
\n\u201cDiscrimination is a distinction which, whether intentional or
\nnot but based on grounds relating to personal characteristics
\nof the individual or group, has an effect which imposes
\ndisadvantages not imposed upon others or which withholds or
\nlimits access to advantages available to other members of
\nsociety. Distinctions based on personal characteristics
\nattributed to an individual solely on the basis of
\nassociation with a group will rarely escape the charge of
\ndiscrimination, while those based on an individual’s merits
\nand capacities will rarely be so classed.\u201d (Emphasis supplied)
\nThus, when an action has \u201cthe effect of imposing burdens, obligations, or
\ndisadvantages on such individual or group not imposed upon others, or which<\/p>\n

94 (1986) ECR 1607
\n95
\n(1989) 1 SCR 143
\nPART E
\n56
\nwithholds or limits access to opportunities, benefits, and advantages available
\nto other members of society\u201d,
\n96 it would be suspect.
\nIn City Council of Pretoria v. Walker97
\n, the Constitutional Court of South
\nAfrica observed:
\n\u201cThe concept of indirect discrimination, \u2026 was developed
\nprecisely to deal with situations where discrimination lay
\ndisguised behind apparently neutral criteria or where
\npersons already adversely hit by patterns of historic
\nsubordination had their disadvantage entrenched or
\nintensified by the impact of measures not overtly
\nintended to prejudice them.
\nIn many cases, particularly those in which indirect
\ndiscrimination is alleged, the protective purpose would
\nbe defeated if the persons complaining of discrimination
\nhad to prove not only that they were unfairly
\ndiscriminated against but also that the unfair
\ndiscrimination was intentional. This problem would be
\nparticularly acute in cases of indirect discrimination
\nwhere there is almost always some purpose other than
\na discriminatory purpose involved in the conduct or
\naction to which objection is taken.\u201d
\n(Emphasis supplied)
\nE.2 Deconstructing the polarities of binary genders
\n44 Section 377 criminalizes behaviour that does not conform to the
\nheterosexual expectations of society. In doing so it perpetuates a symbiotic
\nrelationship between anti-homosexual legislation and traditional gender roles.<\/p>\n

96 Ibid.
\n97 (1998) 3 BCLR 257
\nPART E
\n57
\nThe notion that the nature of relationships is fixed and within the \u2018order of
\nnature\u2019 is perpetuated by gender roles, thus excluding homosexuality from the
\nnarrative. The effect is described as follows:
\n\u201cCultural homophobia thus discourages social behavior that
\nappears to threaten the stability of heterosexual gender roles.
\nThese dual normative standards of social and sexual
\nbehavior construct the image of a gay man as abnormal
\nbecause he deviates from the masculine gender role by
\nsubjecting himself in the sexual act to another man.\u201d98
\nIf individuals as well as society hold strong beliefs about gender roles \u2013 that
\nmen (to be characteristically reductive) are unemotional, socially dominant,
\nbreadwinners that are attracted to women and women are emotional, socially
\nsubmissive, caretakers that are attracted to men \u2013 it is unlikely that such
\npersons or society at large will accept that the idea that two men or two
\nwomen could maintain a relationship. If such a denial is further grounded in a
\nlaw, such as Article 377 the effect is to entrench the belief that homosexuality
\nis an aberration that falls outside the \u2018normal way of life.\u2019
\n45 An instructive article by Zachary A. Kramer,99 notes that a heterosexist
\nsociety both expects and requires men and women to engage in only
\nopposite-sex sexual relationships. The existence of same-sex relationships is,<\/p>\n

98
\nElvia R. Arriola, \u201cGendered Inequality: Lesbians, Gays, and Feminist Legal Theory\u201d, Berkeley Women\u2019s Law
\nJournal, Vol. 9 (1994), at pages 103-143.
\n99 Zachary A. Kramer, \u201cThe Ultimate Gender Stereotype: Equalizing Gender-Conforming and Gender-Nonconforming
\nHomosexuals under Title VII\u201d, University of Illinois Law Review (2004), at page 490.
\nPART E
\n58
\ntherefore, repugnant to heterosexist societal expectations. Kramer argues
\nthat:
\n\u201cDiscrimination against gays and lesbians reinforces
\ntraditional sex roles. The primary thrust of such discrimination
\nis the gender-based stigmatization of gays and lesbians,
\nderiving from the idea that homosexuality departs from
\ntraditional gender roles and that \u201creal\u201d men and women
\nshould not be attracted to a member of the same sex. This
\nportrayal relies heavily on what Bennett Capers calls the
\n\u201cbinary gender system.\u201d100
\n46 Bennett Capers defines the binary gender system as based in
\n\u201cheterosexism,\u201d which he defines as the \u201cinstitutionalized valorization of
\nheterosexual activity.\u201d Capers, in fact suggests that:
\n\u201cThe sanctioning of discrimination based on sexual orientation
\nperpetuates the subordination not only of lesbians and gays
\nbut of women as well.
\nHeterosexism, then, in its reliance on a bipolar system of sex
\nand gender, reinforces sexism in two ways. First, by
\npenalizing persons who do not conform to a bipolar gender
\nsystem and rewarding men and women who do, the
\nheterosexist hegemony perpetuates a schema that valorizes
\npassive, dependent women, thus contributing to sexism.
\nSecond, heterosexism reinforces sexism because it
\nsubordinates the female sex through its hierarchical polarity.
\nBecause heterosexism perpetuates sexism, the extension of
\nsubstantial rights to lesbians and gays, who by definition
\nchallenge heterosexism and the concept of a binary gender
\nsystem, would result in a challenge to sexism and to male
\npower.\u201d 101<\/p>\n

100 Ibid.
\n101 Bennett Capers, \u201cNote, Sexual Orientation and Title VII\u201d, Columbia Law Review (1991), at pages 1159, 1160,
\n1163.
\nPART E
\n59
\nIn other words, one cannot simply separate discrimination based on sexual
\norientation and discrimination based on sex because discrimination based on
\nsexual orientation inherently promulgates ideas about stereotypical notions of
\nsex and gender roles. Taking this further, Andrew Koppelman argues that:
\n\u201cSimilarly, sodomy laws discriminate on the basis of sex-for
\nexample, permitting men, but not women, to have sex with
\nwomen-in order to impose traditional sex roles. The Court has
\ndeemed this purpose impermissible in other contexts because
\nit perpetuates the subordination of women. The same
\nconcern applies with special force to the sodomy laws,
\nbecause their function is to maintain the polarities of gender
\non which the subordination of women depends.\u201d102
\nKoppelman thus suggests that the taboo against homosexuals \u201cpolices the
\nboundaries that separate the dominant from the dominated in a social
\nhierarchy.\u201d103 He expands on this idea, using the analogy of miscegenation, or
\nthe interbreeding of races:
\n\u201cDo statutes that outlaw homosexual sex impose traditional
\nsex roles? One possible answer is that of McLaughlin
\n[McLaughlin v. Florida]: The crime is by definition one of
\nengaging in activity inappropriate to one’s sex. But these
\nstatutes’ inconsistency with the Constitution’s command of
\nequality is deeper. Like the miscegenation statutes, the
\nsodomy statutes reflect and reinforce the morality of a
\nhierarchy based on birth. Just as the prohibition of
\nmiscegenation preserved the polarities of race on which white
\nsupremacy rested, so the prohibition of sodomy preserves the
\npolarities of gender on which rests the subordination of
\nwomen.\u201d104<\/p>\n

102
\nAndrew Koppelman, \u201cThe Miscegenation Analogy: Sodomy Law as Sex Discrimination\u201d, Yale Law Journal, Vol.
\n98 (1988), at page 147.
\n103 Andrew Koppelman, \u201cWhy Discrimination against Lesbians and Gay Men is Sex Discrimination\u201d, New York
\nUniversity Law Review, Vol. 69 (1994).
\n104
\nSupra note 102, at page 148.
\nPART E
\n60
\nStatutes like Section 377 give people ammunition to say \u201cthis is what a man
\nis\u201d by giving them a law which says \u201cthis is what a man is not.\u201d Thus, laws that
\naffect non-heterosexuals rest upon a normative stereotype: \u201cthe bald
\nconviction that certain behavior-for example, sex with women-is appropriate
\nfor members of one sex, but not for members of the other sex.\u201d105
\nWhat this shows us is that LGBT individuals as well as those who do not
\nconform to societal expectations of sexual behaviour defy gender stereotypes.
\n\u201cThe construction of gender stereotypes ultimately rests on the
\nassumption that there are two opposite and mutually exclusive
\nbiological sexes. The assumption of heterosexuality is central
\nto this gender binary. In a patriarchal context, some of the
\nmost serious transgressors are thus: a woman who renounces
\na man sexual partner or an individual assigned female at birth
\nwho renounces womanhood, thereby rejecting the patriarchal
\nsystem and all other forms of male supervision and control,
\nand an individual assigned male at birth who embraces
\nwomanhood, thereby abandoning privilege in favor of that
\nwhich is deemed subservient, femininity.\u201d
\n106
\nProhibition of sex discrimination is meant to change traditional practices which
\nlegally, and often socially and economically, disadvantage persons on the
\nbasis of gender. The case for gay rights undoubtedly seeks justice for gays.
\nBut it goes well beyond the concern for the gay community. The effort to end<\/p>\n

105
\nIbid.
\n106 The Relationship between Homophobia, Transphobia, and Women\u2019s Access to Justice for the Forthcoming
\nCEDAW General Recommendation on Women\u2019s Access to Justice. Submitted to the United Nations Committee
\nfor the Elimination of All Forms of Discrimination against Women (2013).
\nPART E
\n61
\ndiscrimination against gays should be understood as a necessary part of the
\nlarger effort to end the inequality of the sexes.
\n\u201cTo be a lesbian is to be perceived (labelled) as someone
\nwho has stepped out of line, who has moved out of
\nsexual\/economic dependence on a male, who is womanidentified.
\nA lesbian is perceived as someone who can live
\nwithout a man, and who is therefore (however illogically)
\nagainst men. A lesbian is perceived as being outside the
\nacceptable, routinized order of things. She is seen as
\nsomeone who has no societal institutions to protect her and
\nwho is not privileged to the protection of individual males. A
\nlesbian is perceived as a threat to the nuclear family, to male
\ndominance and control, to the very heart of sexism.\u201d107
\nCommenting on its link with the essence of Article 15, Tarunabh Khaitan
\nwrites:
\n\u201cBut the salience of a case on discrimination against a
\npolitically disempowered minority, based purely on the
\nprejudices of a majority, goes beyond the issue of LGBTQ
\nrights. Indian constitutional democracy is at a
\ncrossroads\u2026Inclusiveness and pluralism lie at the heart of
\nArticle 15, which can be our surest vehicle for the Court to
\nlend its institutional authority to the salience of these ideas in
\nour constitutional identity.\u201d108
\n47 Relationships that tend to undermine the male\/female divide are
\ninherently required for the maintenance of a socially imposed gender
\ninequality. Relationships which question the divide are picked up for target
\nand abuse. Section 377 allows this. By attacking these gender roles,
\nmembers of the affected community, in their move to build communities and<\/p>\n

107 Suzanne Pharr, Homophobia: A weapon of Sexism, Chardon Press (1988), at page18.
\n108 Tarunabh Khaitan, \u201cInclusive Pluralism or Majoritarian Nationalism: Article 15, Section 377 and Who We Really
\nAre\u201d, Indian Constitutional Law and Philosophy (2018).
\nPART E
\n62
\nrelationships premised on care and reciprocity, lay challenge to the idea that
\nrelationships, and by extension society, must be divided along hierarchical
\nsexual roles in order to function. For members of the community, hostility and
\nexclusion aimed at them, drive them into hiding, away from public expression
\nand view. It is this discrimination faced by the members of the community,
\nwhich results in silence, and consequently invisibility, creating barriers,
\nsystemic and deliberate, that effect their participation in the work force and
\nthus undermines substantive equality. In the sense that the prohibition of
\nmiscegenation was aimed to preserve and perpetuate the polarities of race to
\nprotect white supremacy, the prohibition of homosexuality serves to ensure a
\nlarger system of social control based on gender and sex.
\n48 A report prepared by the International Commission of Jurists109 has
\ndocumented the persecution faced by the affected community due to the
\noperation of Section 377. The report documents numerous violations inflicted
\non people under the authority of Section 377. According to the National Crime
\nRecords Bureau, 1279 persons in 2014 and 1491 in 2015 were arrested under
\nSection 377.110<\/p>\n

109 International Commission of Jurists, \u201cUnnatural Offences\u201d Obstacles to Justice in India Based on Sexual
\nOrientation and Gender Identity (2017).
\n110
\nIbid, at page 16.
\nPART E
\n63
\nThe report documents instances of abuse from law enforcement agencies and
\nhow the possibility of persecution under Section 377 prevents redress.111
\nEven though acts such as blackmail, assault, and bodily crimes are
\npunishable under penal laws, such methods of seeking redressal are not
\naccessed by those communities given the fear of retaliation or prosecution.
\n49 The petitioners in the present batch of cases have real life narrations of
\nsuffering discrimination, prejudice and hate. In Anwesh Pokkuluri v. UOI112
\n,
\nwith which this case is connected, the Petitioners are a group of persons
\nbelonging to the LGBTQ community, each of whom has excelled in their fields
\nbut suffer immensely due to the operation of Section 377. To cope with the
\ngrowing isolation among the community, these Petitioners, all alumni of Indian
\nInstitutes of Technology across the country, created a closed group called
\n\u201cPravritti\u201d. The group consists of persons from the LGBTQ community. They
\nare faculty members, students, alumni and anyone who has ever stayed on
\nthe campus of any IIT in the country. The group was formed in 2012 to help
\nmembers cope with loneliness and difficulties faced while accepting their
\nidentity along with holding open discussions on awareness.<\/p>\n

111 Ibid, at pages 16 \u2013 18.
\n112 Writ Petition (Criminal) No. 121 of 2018.
\nPART E
\n64
\n50 Out of twenty Petitioners, sixteen are gay, two are bisexual women and
\none is a bisexual man. One among the Petitioners is a transwoman. Three of
\nthe Petitioners explain that they suffered immense mental agony due to which
\nthey were on the verge of committing suicide. Another two stated that
\nspeaking about their sexual identity has been difficult, especially since they
\ndid not have the support of their families, who, upon learning of their sexual
\norientation, took them for psychiatric treatment to cure the so-called \u201cdisease.\u201d
\nThe families of three Petitioners ignored their sexual identity. One of them
\nqualified to become an Indian Administrative Services officer in an
\nexamination which more than 4,00,000 people write each year. But he chose
\nto forgo his dream because of the fear that he would be discriminated against
\non the ground of his sexuality. Some of them have experienced depression;
\nothers faced problems focusing on their studies while growing up; one among
\nthem was forced to drop out of high school as she was residing in a girl\u2019s
\nhostel where the authorities questioned her identity. The parents of one of
\nthem brushed his sexuality under the carpet and suggested that he marry a
\nwoman. Some doubted whether or not they should continue their relationships
\ngiven the atmosphere created by Section 377. Several work in organisations
\nthat have policies protecting the LGBT community in place. Having faced so
\nmuch pain in their personal lives, the Petitioners submit that with the
\ncontinued operation of Section 377, such treatment will be unabated.
\nPART E
\n65
\n51 In Navtej Johar v. Union of India113
\n, with which this case is concerned,
\nthe Petitioners have set out multiple instances of discrimination and expulsion.
\nThe following is a realistic account:
\n\u201cWhile society, friends and family are accepting of my
\nsexuality, I cannot be fully open about my identity and my
\nrelationships because I constantly fear arrest and violence by
\nthe police\u2026Without the existence of this section, the social
\nprejudice and shame that I have faced would have been
\nconsiderably lessened\u2026the fact that gay people, like me, are
\nrecognized only as criminals is deeply upsetting and denies
\nme the dignity and respect that I feel I deserve.114
\nApart from the visible social manifestations of Section 377, the retention of the
\nprovision perpetuates a certain culture. The stereotypes fostered by section
\n377 have an impact on how other individuals and non-state institutions treat
\nthe community. While this behaviour is not sanctioned by Section 377, the
\nexistence of the provision nonetheless facilitates it by perpetuating
\nhomophobic attitudes and making it almost impossible for victims of abuse to
\naccess justice. Thus, the social effects of such a provision, even when it is
\nenforced with zeal, is to sanction verbal harassment, familial fear, restricted
\naccess to public spaces and the lack of safe spaces. This results in a denial of
\nthe self. Identities are obliterated, denying the entitlement to equal
\nparticipation and dignity under the Constitution. Section 377 deprives them of
\nan equal citizenship. Referring to the effect of Foucault\u2019s panopticon in<\/p>\n

113 Writ Petition (Criminal) No. 76 of 2016.
\n114 Written Submission on Behalf of the Voices Against 377, in W.P. (CRL.) No. 76\/2016 at page 18.
\nPART E
\n66
\ninducing \u201ca state of conscious and permanent visibility that assures the
\nautomatic functioning of power\u201d,115 Ryan Goodman writes:
\n\u201cThe state’s relationship to lesbian and gay individuals under
\na regime of sodomy laws constructs a similar, yet dispersed,
\nstructure of observation and surveillance. The public is
\nsensitive to the visibility of lesbians and gays as socially
\nand legally constructed miscreants. Admittedly certain
\nindividuals, namely those who are certified with various
\nlevels of state authority, are more directly linked to the
\nextension of law’s power. Yet the social effects of
\nsodomy laws are not tied to these specialized agents
\nalone. On the ground level, private individuals also
\nperform roles of policing and controlling lesbian and gay
\nlives in a mimetic relation to the modes of justice
\nitself.\u201d
\n116
\n(Emphasis supplied)
\nThe effect of Section 377, thus, is not merely to criminalize an act, but to
\ncriminalize a specific set of identities. Though facially neutral, the effect of the
\nprovision is to efface specific identities. These identities are the soul of the
\nLGBT community.
\n52 The Constitution envisaged a transformation in the order of relations not
\njust between the state and the individual, but also between individuals: in a
\nconstitutional order characterized by the Rule of Law, the constitutional
\ncommitment to egalitarianism and an anti-discriminatory ethos permeates and
\ninfuses these relations. In K S Puttaswamy v. Union of India<\/p>\n

115 Michel Foucault, Discipline And Punish: the Birth of the Prison, Pantheon Books (1977) at page 201.
\n116 Ryan Goodman, \u201cBeyond the Enforcement Principle: Sodomy Laws, Social Norms, and Social Panoptics\u201d,
\nCalifornia Law Review, Vol. 89 (2001), at page 688.
\nPART E
\n67
\n(\u201cPuttaswamy\u201d)117
\n, this Court affirmed the individual as the bearer of the
\nconstitutional guarantee of rights. Such rights are devoid of their guarantee
\nwhen despite legal recognition, the social, economic and political context
\nenables an atmosphere of continued discrimination. The Constitution enjoins
\nupon every individual a commitment to a constitutional democracy
\ncharacterized by the principles of equality and inclusion. In a constitutional
\ndemocracy committed to the protection of individual dignity and autonomy, the
\nstate and every individual has a duty to act in a manner that advances and
\npromotes the constitutional order of values.
\nBy criminalizing consensual sexual conduct between two homosexual adults,
\nSection 377 has become the basis not just of prosecutions but of the
\npersecution of members of the affected community. Section 377 leads to the
\nperpetuation of a culture of silence and stigmatization. Section 377
\nperpetuates notions of morality which prohibit certain relationships as being
\nagainst the \u2018order of nature.\u2019 A criminal provision has sanctioned
\ndiscrimination grounded on stereotypes imposed on an entire class of persons
\non grounds prohibited by Article 15(1). This constitutes discrimination on the
\ngrounds only of sex and violates the guarantee of non-discrimination in Article
\n15(1)<\/p>\n

117(2017) 10 SCC 1
\nPART F
\n68
\n53 History has been witness to a systematic stigmatization and exclusion of
\nthose who do not conform to societal standards of what is expected of them.
\nSection 377 rests on deep rooted gender stereotypes. In the quest to assert
\ntheir liberties, people criminalized by the operation of the provision, challenge
\nnot only its existence, but also a gamut of beliefs that are strongly rooted in
\nmajoritarian standards of what is \u2018normal\u2019. In this quest, the attack on the
\nvalidity of Section 377 is a challenge to a long history of societal discrimination
\nand persecution of people based on their identities. They have been
\nsubjugated to a culture of silence and into leading their lives in closeted
\ninvisibility. There must come a time when the constitutional guarantee of
\nequality and inclusion will end the decades of discrimination practiced, based
\non a majoritarian impulse of ascribed gender roles. That time is now.
\nF Confronting the closet
\n54 The right to privacy is intrinsic to liberty, central to human dignity and
\nthe core of autonomy. These values are integral to the right to life under
\nArticle 21 of the Constitution. A meaningful life is a life of freedom and selfrespect
\nand nurtured in the ability to decide the course of living. In the nine
\njudge Bench decision in Puttaswamy, this Court conceived of the right to
\nprivacy as natural and inalienable. The judgment delivered on behalf of four
\njudges holds:
\nPART F
\n69
\n\u201cPrivacy is a concomitant of the right of the individual to
\nexercise control over his or her personality. It finds an origin
\nin the notion that there are certain rights which are natural to
\nor inherent in a human being. Natural rights are inalienable
\nbecause they are inseparable from the human personality.
\nThe human element in life is impossible to conceive without
\nthe existence of natural rights\u2026\u201d118
\nJustice Bobde, in his exposition on the form of the \u2018right to privacy\u2019 held thus:
\n\u201cPrivacy, with which we are here concerned, eminently
\nqualifies as an inalienable natural right, intimately connected
\nto two values whose protection is a matter of universal moral
\nagreement: the innate dignity and autonomy of man.\u201d
\n119
\nJustice Nariman has written about the inalienable nature of the right to
\nprivacy:
\n\u201c\u2026Fundamental rights, on the other hand, are contained in
\nthe Constitution so that there would be rights that the citizens
\nof this country may enjoy despite the governments that they
\nmay elect. This is all the more so when a particular
\nfundamental right like privacy of the individual is an
\n\u201cinalienable\u201d right which inheres in the individual because he
\nis a human being. The recognition of such right in the
\nfundamental rights chapter of the Constitution is only a
\nrecognition that such right exists notwithstanding the shifting
\nsands of majority governments\u2026\u201d120
\nJustice Sapre, in his opinion, has also sanctified \u2018privacy\u2019 as a natural right:
\n\u201cIn my considered opinion, \u201cright to privacy of any individual\u201d
\nis essentially a natural right, which inheres in every human
\nbeing by birth… It is indeed inseparable and inalienable\u2026it is
\nborn with the human being\u2026\u201d121<\/p>\n

118 Puttaswamy, at para 42.
\n119 Puttaswamy, at para 392.
\n120 Puttaswamy, at para 490.
\n121 Puttaswamy at para 557.
\nPART F
\n70
\nThese opinions establish that the right to privacy is a natural right. The
\njudgment of four judges in Puttaswamy held that the right to sexual
\norientation is an intrinsic part of the right to privacy. To define the scope of the
\nright, it is useful to examine the discussion on the right to sexual orientation in
\njudicial precedents of this Court.
\n55 Speaking for a two judge Bench in NALSA, Justice K S Radhakrishnan
\nelucidated upon the term \u2018sexual orientation\u2019 as differentiable from an
\nindividual\u2019s \u2018gender identity\u2019, noting that:
\n\u201cSexual orientation refers to an individual\u2019s enduring physical,
\nromantic and\/or emotional attraction to another person.
\nSexual orientation includes transgender and gender-variant
\npeople with heavy sexual orientation and their sexual
\norientation may or may not change during or after gender
\ntransmission, which also includes homo-sexuals, bysexuals,
\nheterosexuals, asexual etc. Gender identity and sexual
\norientation, as already indicated, are different concepts. Each
\nperson\u2019s self-defined sexual orientation and gender identity is
\nintegral to their personality and is one of the most basic
\naspects of self-determination, dignity and freedom\u2026\u201d122
\nPuttaswamy rejected the \u201ctest of popular acceptance\u201d employed by this Court
\nin Koushal and affirmed that sexual orientation is a constitutionally
\nguaranteed freedom:
\n\u201c\u2026The guarantee of constitutional rights does not depend
\nupon their exercise being favourably regarded by majoritarian
\nopinion. The test of popular acceptance does not furnish a
\nvalid basis to disregard rights which are conferred with the
\nsanctity of constitutional protection. Discrete and insular<\/p>\n

122 NALSA, at para 22.
\nPART F
\n71
\nminorities face grave dangers of discrimination for the simple
\nreason that their views, beliefs or way of life do not accord
\nwith the \u2018mainstream\u2019. Yet in a democratic Constitution
\nfounded on the rule of law, their rights are as sacred as those
\nconferred on other citizens to protect their freedoms and
\nliberties. Sexual orientation is an essential attribute of privacy.
\nDiscrimination against an individual on the basis of sexual
\norientation is deeply offensive to the dignity and self-worth of
\nthe individual. Equality demands that the sexual orientation of
\neach individual in society must be protected on an even
\nplatform. The right to privacy and the protection of sexual
\norientation lie at the core of the fundamental rights
\nguaranteed by Articles 14, 15 and 21 of the Constitution.\u201d123
\nRejecting the notion that the rights of the LGBT community can be construed
\nas illusory, the court held that the right to privacy claimed by sexual minorities
\nis a constitutionally entrenched right:
\n\u201c\u2026The rights of the lesbian, gay, bisexual and transgender
\npopulation cannot be construed to be \u201cso-called rights\u201d. The
\nexpression \u201cso-called\u201d seems to suggest the exercise of a
\nliberty in the garb of a right which is illusory. This is an
\ninappropriate construction of the privacy based claims of the
\nLGBT population. Their rights are not \u201cso-called\u201d but are real
\nrights founded on sound constitutional doctrine. They inhere
\nin the right to life. They dwell in privacy and dignity. They
\nconstitute the essence of liberty and freedom. Sexual
\norientation is an essential component of identity. Equal
\nprotection demands protection of the identity of every
\nindividual without discrimination.\u201d124
\nJustice Kaul, concurring with the recognition of sexual orientation as an
\naspect of privacy, noted that:
\n\u201c\u2026The sexual orientation even within the four walls of the
\nhouse thus became an aspect of debate. I am in agreement
\nwith the view of Dr. D.Y. Chandrachud, J., who in paragraphs
\n144 to 146 of his judgment, states that the right of privacy<\/p>\n

123 Puttaswamy, at para 144.
\n124 Puttaswamy, at para 145.
\nPART F
\n72
\ncannot be denied, even if there is a miniscule fraction of the
\npopulation which is affected. The majoritarian concept does
\nnot apply to Constitutional rights and the Courts are often
\ncalled up on to take what may be categorized as a nonmajoritarian
\nview, in the check and balance of power
\nenvisaged under the Constitution of India. One\u2019s sexual
\norientation is undoubtedly an attribute of privacy\u2026\u201d125
\nWith these observations by five of the nine judges in Puttaswamy, the basis
\non which Koushal upheld the validity of Section 377 stands eroded and even
\ndisapproved.
\n56 We must now consider the impact of Section 377 on the exercise of the
\nright to privacy by sexual minorities. Legislation does not exist in a vacuum.
\nThe social ramifications of Section 377 are enormous. While facially Section
\n377 only criminalizes certain \u201cacts\u201d, and not relationships, it alters the prism
\nthrough which a member of the LGBTQ is viewed. Conduct and identity are
\nconflated.126 The impact of criminalising non-conforming sexual relations is
\nthat individuals who fall outside the spectrum of heteronormative127 sexual
\nidentity are perceived as criminals.128
\n57 World over, sexual minorities have struggled to find acceptance in the
\nheteronormative structure that is imposed by society. In her book titled<\/p>\n

125 Puttaswamy, at para 647.
\n126 Supra note 116, at page 689.
\n127 The expression heteronormative is used to denote or relate to a world view that promotes heterosexuality as the
\nnormal or preferred sexual orientation.
\n128 Supra note 116, at page 689.
\nPART F
\n73
\n\u2018Epistemology of the Closet\u2019,
\n129 Eve Sedgwick states that \u201cthe closet is the
\ndefining structure for gay oppression in this century.\u201d The closet is symbolic
\nof the exclusion faced by them:
\n\u201cClosets exist and they hide social information. They hide
\ncertain socially proscribed sexual desires, certain unnamable
\nsexual acts deemed \u2018unnatural\u2018 by the cultural context and
\nlaw, certain identities which dare not speak their name and
\ncertain forms of behaviour which can make an individual
\nsusceptible to stigma and oppression. The closet does not
\nsimply hide this susceptibility; it hides stigma and oppression
\nitself. It marks the silencing of different voices, a silence
\nwhich is achieved by a gross violation of lives that inhabit the
\ncloset, through both violence and pain inflicted by significant
\nothers both within and without the closet and instances of
\nself-inflicted pain and violence. The closet also hides
\npleasure, myriad sexual expressions and furtive encounters
\nthat gratify the self. The closet also conceals the possibility of
\ndisease and death.\u201d
\n130
\nThe existing heteronormative framework \u2013 which recognises only sexual
\nrelations that conform to social norms \u2013 is legitimized by the taint of
\n\u2018unnaturalness\u2019 that Section 377 lends to sexual relations outside this
\nframework. The notion of \u2018unnatural acts\u2019, viewed in myopic terms of a \u201cfixed
\nprocreational model of sexual functioning\u201d, is improperly applied to sexual
\nrelations between consenting adults.131 Sexual activity between adults and
\nbased on consent must be viewed as a \u201cnatural expression\u201d of human sexual
\ncompetences and sensitivities.132 The refusal to accept these acts amounts to<\/p>\n

129 Eve Kosofsky Sedgwick, Epistemology of the Closet, University of California Press (1990).
\n130 Supra note 65, at page 102.
\n131 David A. J. Richards, \u201cSexual Autonomy and the Constitutional Right to Privacy: A Case Study in Human Rights
\nand the Unwritten Constitution\u201d, Hastings Law Journal, Vol. 30, at page 786.
\n132
\nIbid.
\nPART F
\n74
\na denial of the distinctive human capacities for sensual experience outside of
\nthe realm of procreative sex.133
\n58 To deny the members of the LGBT community the full expression of the
\nright to sexual orientation is to deprive them of their entitlement to full
\ncitizenship under the Constitution. The denial of the right to sexual orientation
\nis also a denial of the right to privacy. The application of Section 377 causes a
\ndeprivation of the fundamental right to privacy which inheres in every citizen.
\nThis Court is entrusted with the duty to act as a safeguard against such
\nviolations of human rights. Justice Chelameswar, in his judgement in
\nPuttaswamy, held that:
\n\u201cTo sanctify an argument that whatever is not found in the text
\nof the Constitution cannot become a part of the Constitution
\nwould be too primitive an understanding of the Constitution
\nand contrary to settled cannons of constitutional
\ninterpretation. Such an approach regarding the rights and
\nliberties of citizens would be an affront to the collective
\nwisdom of our people and the wisdom of the members of the
\nConstituent Assembly…\u201d134
\n59 The exercise of the natural and inalienable right to privacy entails
\nallowing an individual the right to a self-determined sexual orientation. Thus, it
\nis imperative to widen the scope of the right to privacy to incorporate a right to
\n\u2018sexual privacy\u2019 to protect the rights of sexual minorities. Emanating from the<\/p>\n

133 Ibid.
\n134 Puttaswamy, at Para 350.
\nPART F
\n75
\ninalienable right to privacy, the right to sexual privacy must be granted the
\nsanctity of a natural right, and be protected under the Constitution as
\nfundamental to liberty and as a soulmate of dignity.
\n60 Citizens of a democracy cannot be compelled to have their lives pushed
\ninto obscurity by an oppressive colonial legislation. In order to ensure to
\nsexual and gender minorities the fulfilment of their fundamental rights, it is
\nimperative to \u2018confront the closet\u2019 and, as a necessary consequence, confront
\n\u2018compulsory heterosexuality.\u2019135 Confronting the closet would entail
\n\u201creclaiming markers of all desires, identities and acts which challenge it.\u201d
\n136 It
\nwould also entail ensuring that individuals belonging to sexual minorities,
\nhave the freedom to fully participate in public life, breaking the invisible barrier
\nthat heterosexuality imposes upon them. The choice of sexuality is at the core
\nof privacy. But equally, our constitutional jurisprudence must recognise that
\nthe public assertion of identity founded in sexual orientation is crucial to the
\nexercise of freedoms.
\n61 In conceptualising a right to sexual privacy, it is important to consider
\nhow the delineation of \u2018public\u2019 and \u2018private\u2019 spaces affects the lives of the
\nLGBTIQ community. Members of the community have argued that to base<\/p>\n

135 Supra note 65, at page 103.
\n136 Ibid.
\nPART F
\n76
\ntheir claims on a right to privacy is of no utility to individuals who do not
\npossess the privilege of a private space.137 In fact, even for individuals who
\nhave access to private spaces the conflation of \u2018private\u2019 with home and family
\nmay be misplaced.138 The home is often reduced to a public space as
\nheteronormativity within the family can force the individual to remain inside
\nthe closet.139 Thus, even the conception of a private space for certain
\nindividuals is utopian.140
\n62 Privacy creates \u201ctiers of \u2018reputable\u2019 and \u2018disreputable\u2019 sex\u201d, only
\ngranting protection to acts behind closed doors.141 Thus, it is imperative that
\nthe protection granted for consensual acts in private must also be available in
\nsituations where sexual minorities are vulnerable in public spaces on account
\nof their sexuality and appearance.142 If one accepts the proposition that public
\nplaces are heteronormative, and same-sex sexual acts partially closeted,
\nrelegating \u2018homosexual\u2018 acts into the private sphere, would in effect reiterate
\nthe \u201cambient heterosexism of the public space.\u201d
\n143 It must be acknowledged
\nthat members belonging to sexual minorities are often subjected to<\/p>\n

137 Danish Sheikh, \u201cQueer Rights and the Puttaswamy Judgement\u201d, Economic and Political Weekly, Vol. 52 (2017), at
\npage 51.
\n138 Supra note 65, at page 101.
\n139 Ibid.
\n140 Ibid.
\n141 Supra note 137, at page 51.
\n142 Saptarshi Mandal, \u201c\u2018Right To Privacy\u2019 In Naz Foundation: A Counter-Heteronormative Critique\u201d, NUJS Law
\nReview, Vol. 2 (2009), at page 533.
\n143 Supra note 65, at page 100.
\nPART F
\n77
\nharassment in public spaces.144 The right to sexual privacy, founded on the
\nright to autonomy of a free individual, must capture the right of persons of the
\ncommunity to navigate public places on their own terms, free from state
\ninterference.
\nF.I Sexual privacy and autonomy- deconstructing the heteronormative
\nframework
\n63 In the absence of a protected zone of privacy, individuals are forced to
\nconform to societal stereotypes. Puttaswamy has characterised the right to
\nprivacy as a shield against forced homogeneity and as an essential attribute
\nto achieve personhood:
\n\u201c\u2026Recognizing a zone of privacy is but an acknowledgment
\nthat each individual must be entitled to chart and pursue the
\ncourse of development of personality. Hence privacy is a
\npostulate of human dignity itself. Thoughts and behavioural
\npatterns which are intimate to an individual are entitled to a
\nzone of privacy where one is free of social expectations. In
\nthat zone of privacy, an individual is not judged by others.
\nPrivacy enables each individual to take crucial decisions
\nwhich find expression in the human personality. It enables
\nindividuals to preserve their beliefs, thoughts, expressions,
\nideas, ideologies, preferences and choices against societal
\ndemands of homogeneity. Privacy is an intrinsic recognition of
\nheterogeneity, of the right of the individual to be different and
\nto stand against the tide of conformity in creating a zone of
\nsolitude. Privacy protects the individual from the searching
\nglare of publicity in matters which are personal to his or her<\/p>\n

144 Supra note 137, at page 53.
\nPART F
\n78
\nlife. Privacy attaches to the person and not to the place where
\nit is associated.\u201d145
\nThis Court has recognized the right of an individual to break free from the
\ndemands of society and the need to foster a plural and inclusive culture. The
\njudgment of four judges in Puttaswamy, for instance, held that:
\n\u201cPrivacy constitutes the foundation of all liberty because it is
\nin privacy that the individual can decide how liberty is best
\nexercised. Individual dignity and privacy are inextricably
\nlinked in a pattern woven out of a thread of diversity into the
\nfabric of a plural culture.\u201d146
\n64 In Santosh Singh v Union of India147
\n, a two-judge Bench of this Court
\ndismissed a petition under Article 32 seeking a direction to the Central Board
\nof Secondary Education to include moral science as a compulsory subject in
\nthe school syllabus in order to inculcate moral values. One of us
\n(Chandrachud J) underscored the importance of accepting a plurality of ideas
\nand tolerance of radically different views:
\n\u201cMorality is one and, however important it may sound to
\nsome, it still is only one element in the composition of values
\nthat a just society must pursue. There are other equally
\nsignificant values which a democratic society may wish for
\neducation to impart to its young. Among those is the
\nacceptance of a plurality and diversity of ideas, images and
\nfaiths which unfortunately faces global threats. Then again,
\nequally important is the need to foster tolerance of those who
\nhold radically differing views, empathy for those whom the
\neconomic and social milieu has cast away to the margins, a<\/p>\n

145 Puttaswamy, at para 297.
\n146 Puttaswamy, at para 297.
\n147 (2016) 8 SCC 253
\nPART F
\n79
\nsense of compassion and a realisation of the innate humanity
\nwhich dwells in each human being. Value based education
\nmust enable our young to be aware of the horrible
\nconsequences of prejudice, hate and discrimination that
\ncontinue to threaten people and societies the world over\u2026\u201d148
\nThe right to privacy enables an individual to exercise his or her autonomy,
\naway from the glare of societal expectations. The realisation of the human
\npersonality is dependent on the autonomy of an individual. In a liberal
\ndemocracy, recognition of the individual as an autonomous person is an
\nacknowledgment of the State\u2019s respect for the capacity of the individual to
\nmake independent choices. The right to privacy may be construed to signify
\nthat not only are certain acts no longer immoral, but that there also exists an
\naffirmative moral right to do them.149
\nAs noted by Richards, this moral right
\nemerges from the autonomy to which the individual is entitled:
\n\u201cAutonomy, in the sense fundamental to the theory of human
\nrights, is an empirical assumption that persons as such have
\na range of capacities that enables them to develop, and act
\nupon plans of action that take as their object one’s life and the
\nway it is lived. The consequence of these capacities of
\nautonomy is that humans can make independent decisions
\nregarding what their life shall be, self-critically reflecting, as a
\nseparate being, which of one’s first-order desires will be
\ndeveloped and which disowned, which capacities cultivated
\nand which left barren, with whom one will or will not identify,
\nor what one will define and pursue as needs and aspirations.
\nIn brief, autonomy gives to persons the capacity to call their
\nlife their own. The development of these capacities for
\nseparation and individuation is, from birth, the central
\ndevelopmental task of becoming a person.\u201d150<\/p>\n

148 Ibid at para 22.
\n149 Supra note 131, at pages 1000-1001.
\n150 Supra note 131, at pages 964-965; M. Mahler, \u201cThe Psychological Birth of The Human Infant: Symbiosis And
\nIndividuation\u201d (1975); L. Kaplan, Oneness And Separateness: From Infant To Individual (1978).
\nPART F
\n80
\n65 In Common Cause (A Registered Society) v. Union of India
\n(\u201cCommon Cause\u201d)151
\n, a Constitution Bench of this Court held that the right
\nto die with dignity is integral to the right to life recognised by the Constitution
\nand an individual possessing competent mental faculties is entitled to express
\nhis or her autonomy by the issuance of an advance medical directive:
\n\u201cThe protective mantle of privacy covers certain decisions that
\nfundamentally affect the human life cycle. It protects the most
\npersonal and intimate decisions of individuals that affect their
\nlife and development. Thus, choices and decisions on matters
\nsuch as procreation, contraception and marriage have been
\nheld to be protected. While death is an inevitable end in the
\ntrajectory of the cycle of human life individuals are often faced
\nwith choices and decisions relating to death. Decisions
\nrelating to death, like those relating to birth, sex, and
\nmarriage, are protected by the Constitution by virtue of the
\nright of privacy\u2026\u201d152
\nAutonomy and privacy are inextricably linked. Each requires the other for its
\nfull realization. Their interrelationship has been recognised in Puttaswamy:
\n\u201c\u2026Privacy postulates the reservation of a private space for
\nthe individual, described as the right to be left alone. The
\nconcept is founded on the autonomy of the individual. The
\nability of an individual to make choices lies at the core of the
\nhuman personality. The notion of privacy enables the
\nindividual to assert and control the human element which is
\ninseparable from the personality of the individual. The
\ninviolable nature of the human personality is manifested in the
\nability to make decisions on matters intimate to human life.
\nThe autonomy of the individual is associated over matters
\nwhich can be kept private. These are concerns over which
\nthere is a legitimate expectation of privacy…\u201d153<\/p>\n

151 (2018) 5 SCC 1
\n152 Ibid, at para 441.
\n153 Puttaswamy, at para 297.
\nPART F
\n81
\nIn order to understand how sexual choices are an essential attribute of
\nautonomy, it is useful to refer to John Rawls\u2019 theory on social contract. Rawls\u2019
\nconception of the \u2018Original Position\u2019 serves as a constructive model to
\nillustrate the notion of choice behind a \u201cpartial veil of ignorance.\u201d
\n154 Persons
\nbehind the veil are assumed to be rational and mutually disinterested
\nindividuals, unaware of their positions in society.
\n155 The strategy employed by
\nRawls is to focus on a category of goods which an individual would desire
\nirrespective of what individuals\u2019 conception of \u2018good\u2019 might be.156 These
\nneutrally desirable goods are described by Rawls as \u2018primary social goods\u2019
\nand may be listed as rights, liberties, powers, opportunities, income, wealth,
\nand the constituents of self-respect.157 Rawls’s conception of self-respect, as
\na primary human good, is intimately connected to the idea of autonomy.158
\nSelf-respect is founded on an individual’s ability to exercise her native
\ncapacities in a competent manner.159
\n66 An individual\u2019s sexuality cannot be put into boxes or
\ncompartmentalized; it should rather be viewed as fluid, granting the individual
\nthe freedom to ascertain her own desires and proclivities. The self-<\/p>\n

154 Thomas M. Jr. Scanlon, Rawls\u2019 Theory of Justice, University of Pennsylvania Law Review (1973) at 1022.
\n155 Ibid at 1023.
\n156 Ibid at 1023.
\n157 Ibid at 1023.
\n158 Supra note 131, at page 971.
\n159 Ibid at page 972.
\nPART F
\n82
\ndetermination of sexual orientation is an exercise of autonomy. Accepting the
\nrole of human sexuality as an independent force in the development of
\npersonhood is an acknowledgement of the crucial role of sexual autonomy in
\nthe idea of a free individual.160 Such an interpretation of autonomy has
\nimplications for the widening application of human rights to sexuality.161
\nSexuality cannot be construed as something that the State has the
\nprerogative to legitimize only in the form of rigid, marital procreational sex.162
\nSexuality must be construed as a fundamental experience through which
\nindividuals define the meaning of their lives.163 Human sexuality cannot be
\nreduced to a binary formulation. Nor can it be defined narrowly in terms of its
\nfunction as a means to procreation. To confine it to closed categories would
\nresult in denuding human liberty of its full content as a constitutional right. The
\nConstitution protects the fluidities of sexual experience. It leaves it to
\nconsenting adults to find fulfilment in their relationships, in a diversity of
\ncultures, among plural ways of life and in infinite shades of love and longing.
\nF.2 A right to intimacy- celebration of sexual agency
\n67 By criminalising consensual acts between individuals who wish to
\nexercise their constitutionally-protected right to sexual orientation, the State is<\/p>\n

160 Supra note 131, at page 1003.
\n161 Ibid.
\n162 Ibid.
\n163 Ibid.
\nPART F
\n83
\ndenying its citizens the right to intimacy. The right to intimacy emanates from
\nan individual\u2019s prerogative to engage in sexual relations on their own terms. It
\nis an exercise of the individual\u2019s sexual agency, and includes the individual\u2019s
\nright to the choice of partner as well as the freedom to decide on the nature of
\nthe relationship that the individual wishes to pursue.
\nIn Shakti Vahini v. Union of India164
\n, a three judge Bench of this Court
\nissued directives to prevent honour killings at the behest of Khap Panchayats
\nand protect persons who enter into marriages that do not have the approval of
\nthe Panchayats. The Court recognised the right to choose a life partner as a
\nfundamental right under Articles 19 and 21 of the Constitution. The learned
\nChief Justice held:
\n\u201c\u2026when two adults consensually choose each other as life
\npartners, it is a manifestation of their choice which is
\nrecognized under Articles 19 and 21 of the Constitution. Such
\na right has the sanction of the constitutional law and once that
\nis recognized, the said right needs to be protected and it
\ncannot succumb to the conception of class honour or group
\nthinking which is conceived of on some notion that remotely
\ndoes not have any legitimacy.\u201d
\n165
\nIn Shafin Jahan v. Asokan166
\n, this Court set aside a Kerala High Court
\njudgement which annulled the marriage of a twenty-four year old woman with
\na man of her choice in a habeas corpus petition instituted by her father. The<\/p>\n

164 (2018) SCC OnLine SC 275
\n165 Ibid, at para 44.
\n166 (2018) SCC OnLine SC 343
\nPART F
\n84
\nCourt upheld her right to choose of a life partner as well as her autonomy in
\nthe sphere of \u201cintimate personal decisions.\u201d The Chief Justice held thus:
\n\u201c\u2026expression of choice in accord with law is acceptance of
\nindividual identity. Curtailment of that expression and the
\nultimate action emanating therefrom on the conceptual
\nstructuralism of obeisance to the societal will destroy the
\nindividualistic entity of a person. The social values and
\nmorals have their space but they are not above the
\nconstitutionally guaranteed freedom \u2026\u201d167
\n(Emphasis supplied)
\nOne of us (Chandrachud J) recognised the right to choose a partner as an
\nimportant facet of autonomy:
\n\u201c\u2026The choice of a partner whether within or outside
\nmarriage lies within the exclusive domain of each individual.
\nIntimacies of marriage lie within a core zone of privacy, which
\nis inviolable. The absolute right of an individual to choose a
\nlife partner is not in the least affected by matters of
\nfaith…Social approval for intimate personal decisions is not
\nthe basis for recognising them…\u201d168
\n(Emphasis supplied)
\nThe judgement in Shafin Jahan delineates a space where an individual
\nenjoys the autonomy of making intimate personal decisions:
\n\u201cThe strength of the Constitution, therefore, lies in the
\nguarantee which it affords that each individual will have a
\nprotected entitlement in determining a choice of partner to
\nshare intimacies within or outside marriage.\u201d169
\nIn furtherance of the Rawlsian notion of self-respect as a primary good,
\nindividuals must not be denied the freedom to form relationships based on
\nsexual intimacy. Consensual sexual relationships between adults, based on<\/p>\n

167 Ibid, at para 54.
\n168 Ibid, at para 88.
\n169 Ibid, at para 93.
\nPART F
\n85
\nthe human propensity to experience desire must be treated with respect. In
\naddition to respect for relationships based on consent, it is important to foster
\na society where individuals find the ability for unhindered expression of the
\nlove that they experience towards their partner. This \u201cinstitutionalized
\nexpression to love\u201d must be considered an important element in the full
\nactualisation of the ideal of self-respect.170 Social institutions must be
\narranged in such a manner that individuals have the freedom to enter into
\nrelationships untrammelled by binary of sex and gender and receive the
\nrequisite institutional recognition to perfect their relationships.171 The law
\nprovides the legitimacy for social institutions. In a democratic framework
\ngoverned by the rule of law, the law must be consistent with the constitutional
\nvalues of liberty, dignity and autonomy. It cannot be allowed to become a
\nyoke on the full expression of the human personality. By penalising sexual
\nconduct between consenting adults, Section 377 imposes moral notions
\nwhich are anachronistic to a constitutional order. While ostensibly penalising
\n\u2018acts\u2019, it impacts upon the identity of the LGBT community and denies them
\nthe benefits of a full and equal citizenship. Section 377 is based on a
\nstereotype about sex. Our Constitution which protects sexual orientation must<\/p>\n

170 David A. J. Richards, \u201cUnnatural Acts and the Constitutional Right to Privacy: A Moral Theory\u201d, Fordham Law
\nReview, Vol. 45 (1977), at pages 1130-1311.
\n171 Ibid at 1311.
\nPART G
\n86
\noutlaw any law which lends the authority of the state to obstructing its
\nfulfilment.
\nG Section 377 and the right to health
\n\u201cShould medicine ever fulfil its great ends, it must enter into
\nthe larger political and social life of our time; it must indicate
\nthe barriers which obstruct the normal completion of the life
\ncycle and remove them.\u201d
\n– Virchow Rudolf
\n68 In the evolution of its jurisprudence on the constitutional right to life
\nunder Article 21, this Court has consistently held that the right to life is
\nmeaningless unless accompanied by the guarantee of certain concomitant
\nrights including, but not limited to, the right to health.172 The right to health is
\nunderstood to be indispensable to a life of dignity and well-being, and
\nincludes, for instance, the right to emergency medical care and the right to the
\nmaintenance and improvement of public health.173
\nIt would be useful to refer to judgments of this Court which have recognised
\nthe right to health.<\/p>\n

172 Dipika Jain and Kimberly Rhoten, \u201cThe Heteronormative State and the Right to Health in India\u201d, NUJS Law
\nReview, Vol. 6 (2013).
\n173 C.E.S.C. Limited v. Subhash Chandra Bose, (1992) 1 SCC 441; Consumer Education and Research Centre v.
\nUOI, (1995) 3 SCC 42; Paschim Banga Khet Mazdoor Samity v. State of West Bengal, (1996) 4 SCC 37; Society
\nfor Unaided Private Schools of Rajasthan v. Union of India, (2012) 6 SCC 1; Devika Biswas v. Union of India &
\nOrs., (2016) 10 SCC 726; Common Cause v. Union of India & Ors., (2018) 5 SCC 1.
\nPART G
\n87
\nIn Bandhua Mukti Morcha v. Union of India174
\n, a three-judge Bench
\nidentified the right to health within the right to life and dignity. In doing so, this
\nCourt drew on the Directive Principles of State Policy:
\n\u201cIt is the fundamental right of every one in this country \u2026 to
\nlive with human dignity, free from exploitation. This right to
\nlive with human dignity enshrined in Article 21 derives
\nits life breath from the Directive Principles of State
\nPolicy and particularly Clauses (e) and (f) of Article 39
\nand Articles 41 and 42 and at the least, therefore, it
\nmust include protection of the health and strength of
\nworkers men and women, and of the tender age of
\nchildren against abuse, opportunities and facilities for
\nchildren to develop in a healthy manner and in
\nconditions of freedom and dignity, educational
\nfacilities, just and humane conditions of work and
\nmaternity relief. These are the minimum requirements
\nwhich must exist in order to enable a person to live with
\nhuman dignity and no State neither the Central Government
\nnor any State Government-has the right to take any action
\nwhich will deprive a person of the enjoyment of these basic
\nessentials.\u201d (Emphasis supplied)
\nIn Consumer Education & Research Centre v. Union of India (\u201cCERC\u201d)175
\n,
\na Bench of three judges dealt with the right to health of workers in asbestos
\nindustries. While laying down mandatory guidelines to be followed for the wellbeing
\nof workers, the Court held that:
\n\u201cThe right to health to a worker is an integral facet of
\nmeaningful right to life to have not only a meaningful
\nexistence but also robust health and vigour without which
\nworker would lead life of misery. Lack of health denudes his
\nlivelihood…Therefore, it must be held that the right to
\nhealth and medical care is a fundamental right under<\/p>\n

174 (1984) 3 SCC 161
\n175 (1995) 3 SCC 42
\nPART G
\n88
\nArticle 21 read with Articles 39(c), 41 and 43 of the
\nConstitution and makes the life of the workman
\nmeaningful and purposeful with dignity of person. Right
\nto life includes protection of the health and strength of the
\nworker and is a minimum requirement to enable a person to
\nlive with human dignity.\u201d (Emphasis supplied)
\nIn a dissenting judgment in C.E.S.C. Limited v. Subhash Chandra Bose176
\n,
\nK Ramaswamy J observed that:
\n\u201cHealth is thus a state of complete physical, mental and
\nsocial well-being and not merely the absence of disease
\nor infirmity. In the light of Articles. 22 to 25 of the
\nUniversal Declaration of Human Rights, International
\nConvention on Economic, Social and Cultural Rights, and
\nin the light of socio-economic justice assured in our
\nconstitution, right to health is a fundamental human right
\nto workmen. The maintenance of health is a most imperative
\nconstitutional goal whose realisation requires interaction by
\nmany social and economic factors\u201d (Emphasis supplied)
\nIn Kirloskar Brothers Ltd. V. Employees’ State Insurance Corporation177
\n,
\na three-judge Bench of this Court considered the applicability of the
\nEmployees’ State Insurance Act, 1948 to the regional offices of the Appellant,
\nobserving that:
\n\u201cHealth is thus a state of complete physical, mental and social
\nwell-being. Right to health, therefore, is a fundamental and
\nhuman right to the workmen. The maintenance of health is
\nthe most imperative constitutional goal whose realisation
\nrequires interaction of many social and economic factors.\u201d<\/p>\n

176 (1992) 1 SCC 441
\n177 (1996) 2 SCC 682
\nPART G
\n89
\nIn State of Punjab v. Ram Lubhaya Bagga178
\n, a three-judge Bench of this
\nCourt considered a challenge to the State of Punjab\u2019s medical reimbursement
\npolicy. A.P. Mishra J, speaking for the Bench, observed that:
\n\u201cPith and substance of life is the health, which is the nucleus
\nof all activities of life including that of an employee or other
\nviz. the physical, social, spiritual or any conceivable human
\nactivities. If this is denied, it is said everything crumbles.
\nThis Court has time and again emphasised to the
\nGovernment and other authorities for focussing and giving
\npriority and other authorities for focussing and giving priority
\nto the health of its, citizen, which not only makes one’s life
\nmeaningful, improves one’s efficiency, but in turn gives
\noptimum out put.\u201d
\nIn Smt M Vijaya v. The Chairman and Managing Director Singareni
\nCollieries Co. Ltd.179
\n, a five judge Bench of the Andhra Pradesh High Court
\nconsidered a case where a girl was infected with HIV due to the negligence of
\nhospital authorities. The Court observed that:
\n\u201cArticle 21 of the Constitution of India provides that no person
\nshall be deprived of his life or personal liberty except
\naccording to procedure established by law. By reason of
\nnumerous judgments of the Apex Court the horizons of Article
\n21 of the Constitution have been expanded recognising
\nvarious rights of the citizens i.e…right to health…
\nIt is well settled that right to life guaranteed under Article 21 is
\nnot mere animal existence. It is a right to enjoy all faculties of
\nlife. As a necessary corollary, right to life includes right to
\nhealthy life.\u201d<\/p>\n

178 (1998) 4 SCC 117
\n179 (2001) 5 ALD 522
\nPART G
\n90
\nIn Devika Biswas v. Union of India180
\n, while hearing a public interest petition
\nconcerning several deaths that had taken place due to unsanitary conditions
\nin sterilization camps across the country, a two judge Bench of this Court held
\nthat:
\n\u201cIt is well established that the right to life under Article 21 of
\nthe Constitution includes the right to lead a dignified and
\nmeaningful life and the right to health is an integral facet of
\nthis right…That the right to health is an integral part of the
\nright to life does not need any repetition.\u201d
\nIn his concurring judgment in Common Cause v. Union of India, Sikri J,
\nnoted the inextricable link between the right to health and dignity:
\n\u201cThere is a related, but interesting, aspect of this dignity which
\nneeds to be emphasised. Right to health is a part of Article
\n21 of the Constitution. At the same time, it is also a harsh
\nreality that everybody is not able to enjoy that right because
\nof poverty etc. The State is not in a position to translate into
\nreality this right to health for all citizens. Thus, when citizens
\nare not guaranteed the right to health, can they be denied
\nright to die in dignity?\u201d (Emphasis supplied)
\nIn addition to the constitutional recognition granted to the right to health, the
\nright to health is also recognised in international treaties, covenants, and
\nagreements which India has ratified, including the International Covenant on
\nEconomic, Social and Cultural Rights, 1966 (\u201cICESCR\u201d) and the Universal<\/p>\n

180 (2016) 10 SCC 726
\nPART G
\n91
\nDeclaration of Human Rights, 1948 (\u201cUDHR\u201d). Article 25 of the UDHR
\nrecognizes the right to health:
\n“Everyone has the right to a standard of living adequate for
\nthe health and well-being of himself and of his family,
\nincluding food, clothing, housing and medical care and
\nnecessary social services.”
\n69 Article 12 of the International Covenant on Economic, Social and
\nCultural Rights (\u201cICESCR\u201d) recognizes the right of all persons to the
\nenjoyment of the highest attainable standard of physical and mental health:
\n\u201cThe States Parties to the present Covenant recognize the
\nright of everyone to the enjoyment of the highest attainable
\nstandard of physical and mental health.\u201d
\nArticle 12.2 requires States Parties to take specific steps to improve the health
\nof their citizens, including creating conditions to ensure equal and timely
\naccess to medical services. In its General Comment No. 14,181 the UN
\nEconomic and Social Council stated that States must take measures to
\nrespect, protect and fulfil the health of all persons. States are obliged to
\nensure the availability and accessibility of health-related information,
\neducation, facilities, goods and services, without discrimination, especially for
\nvulnerable and marginalized populations.<\/p>\n

181 UN Economic and Social Council (ECOSOC), Committee on Economic, Social and Cultural Rights, General
\nComment No. 14: The Right to the Highest Attainable Standard of Health, UN Doc. E\/C.12\/2004 (2000).
\nPART G
\n92
\nPursuant to General Comment No. 14, India is required to provide
\nmarginalized populations, including members of the LGBTIQ community,
\ngoods and services that are available (in sufficient quantity), accessible
\n(physically, geographically, economically and in a non-discriminatory manner),
\nacceptable (respectful of culture and medical ethics) and of quality
\n(scientifically and medically appropriate and of good quality).
\n70 As early as 1948, the World Health Organization (\u201cWHO\u201d) defined the
\nterm \u2018health\u2019 broadly to mean \u201ca state of complete physical, mental and social
\nwell-being and not merely the absence of disease or infirmity.\u201d182 Even today,
\nfor a significant number of Indian citizens this standard of health remains an
\nelusive aspiration. Of relevance to the present case, a particular class of
\ncitizens is denied the benefits of this constitutional enunciation of the right to
\nhealth because of their most intimate sexual choices.
\n71 Sexuality is a natural and precious aspect of life, an essential and
\nfundamental part of our humanity.183 Sexual rights are entitlements related to
\nsexuality and emanate from the rights to freedom, equality, privacy,
\nautonomy, and dignity of all people.184 For people to attain the highest<\/p>\n

182Definition contained in the Preamble to the WHO Constitution (1948).
\n183 Sexual Rights, International Planned Parenthood Federation (2008).
\n184 Ibid.
\nPART G
\n93
\nstandard of health, they must also have the right to exercise choice in their
\nsexual lives and feel safe in expressing their sexual identity. However, for
\nsome citizens, discrimination, stigma, fear and violence prevent them from
\nattaining basic sexual rights and health.
\n72 Individuals belonging to sexual and gender minorities experience
\ndiscrimination, stigmatization, and, in some cases, denial of care on account
\nof their sexual orientation and gender identity.185 However, it is important to
\nnote that \u2018sexual and gender minorities\u2019 do not constitute a homogenous
\ngroup, and experiences of social exclusion, marginalization, and
\ndiscrimination, as well as specific health needs, vary considerably.186
\nNevertheless, these individuals are united by one factor – that their exclusion,
\ndiscrimination and marginalization is rooted in societal heteronormativity and
\nsociety\u2019s pervasive bias towards gender binary and opposite-gender
\nrelationships, which marginalizes and excludes all non-heteronormative
\nsexual and gender identities.187 This, in turn, has important implications for
\nindividuals\u2019 health-seeking behaviour, how health services are provided, and
\nthe extent to which sexual health can be achieved.188<\/p>\n

185 Alexandra Muller, \u201cHealth for All? Sexual Orientation, Gender Identity, and the Implementation of the Right to
\nAccess to Health Care in South Africa\u201d, Health and Human Rights (2016) at pages 195\u2013208.
\n186 Institute of Medicine, \u201cThe Health of Lesbian, Gay, Bisexual, and Transgender People: Building a Foundation for
\nBetter Understanding\u201d, National Academies Press (2011).
\n187 Supra note 185, at pages 195\u2013208.
\n188 Ibid.
\nPART G
\n94
\n73 The term \u2018sexual health\u2019 was first defined in a 1975 WHO Technical
\nReport series as \u201cthe integration of the somatic, emotional, intellectual and
\nsocial aspects of sexual being, in ways that are positively enriching and that
\nenhance personality, communication and love.\u201d189 The WHO\u2019s current working
\ndefinition of sexual health is as follows:
\n\u201c\u2026a state of physical, emotional, mental and social well-being
\nin relation to sexuality; it is not merely the absence of
\ndisease, dysfunction or infirmity. Sexual health requires a
\npositive and respectful approach to sexuality and sexual
\nrelationships, as well as the possibility of having pleasurable
\nand safe sexual experiences, free of coercion, discrimination
\nand violence. For sexual health to be attained and
\nmaintained, the sexual rights of all persons must be
\nrespected, protected and fulfilled.\u201d
\nThe WHO further states that \u201csexual health cannot be defined, understood or
\nmade operational without a broad consideration of sexuality, which underlies
\nimportant behaviours and outcomes related to sexual health.\u201d It defines
\nsexuality thus:
\n\u201c\u2026a central aspect of being human throughout life
\nencompasses sex, gender identities and roles, sexual
\norientation, eroticism, pleasure, intimacy and reproduction.
\nSexuality is experienced and expressed in thoughts,
\nfantasies, desires, beliefs, attitudes, values, behaviours,
\npractices, roles and relationships. While sexuality can include
\nall of these dimensions, not all of them are always
\nexperienced or expressed. Sexuality is influenced by the
\ninteraction of biological, psychological, social, economic,
\npolitical, cultural, legal, historical, religious and spiritual
\nfactors.\u201d<\/p>\n

189 World Health Organization, \u201cGender and human rights: Defining sexual health\u201d, (2002).
\nPART G
\n95
\n74 A report entitled \u201cSexual Health, Human Rights and the Law\u201d,
\n190
\npublished by the WHO in 2015 explores the relationship between these
\nconcepts. The report notes that \u201chuman sexuality includes many different
\nforms of behaviour and expression, and that the recognition of the diversity of
\nsexual behaviour and expression contributes to people\u2019s overall sense of
\nhealth and well-being.\u201d
\n191 It emphasizes the importance of sexual health by
\nstating that not only is it essential to the physical and emotional well-being of
\nindividuals, couples and families, but it is also fundamental to the social and
\neconomic development of communities and countries.192 The ability of
\nindividuals to progress towards sexual health and well-being depends on
\nvarious factors, including \u201caccess to comprehensive information about
\nsexuality, knowledge about the risks they face and their vulnerability to the
\nadverse consequences of sexual activity; access to good quality sexual health
\ncare, and an environment that affirms and promotes sexual health.\u201d
\n75 The International Women\u2019s Health Coalition has located the right to
\nsexual health within \u2018sexual rights\u2019, defined as follows:193
\n\u201cSexual rights embrace certain human rights that are already
\nrecognized in national laws, international human rights
\ndocuments, and other consensus documents. They rest on
\nthe recognition that all individuals have the right\u2014free of<\/p>\n

190 World Health Organisation, \u201cSexual Health, Human Rights and the Law\u201d (2015).
\n191 Ibid.
\n192 Ibid.
\n193 International Women\u2019s Health Coalition, \u201cSexual Rights are Human Rights\u201d (2014).
\nPART G
\n96
\ncoercion, violence, and discrimination of any kind\u2014to the
\nhighest attainable standard of sexual health; to pursue a
\nsatisfying, safe, and pleasurable sexual life; to have control
\nover and decide freely, and with due regard for the rights of
\nothers, on matters related to their sexuality, reproduction,
\nsexual orientation, bodily integrity, choice of partner, and
\ngender identity; and to the services, education, and
\ninformation, including comprehensive sexuality education,
\nnecessary to do so.\u201d
\nThe discussion of \u2018sexual rights\u2019 (as they pertain to sexuality and sexual
\norientation) within the framework of the right to health is a relatively new
\nphenomenon:194
\n\u201c..Before the 1993 World Conference on Human Rights in
\nVienna, and the subsequent 1994 International Conference
\non Population and Development in Cairo, sexuality, sexual
\nrights, and sexual diversity had not formed part of the
\ninternational health and human rights discourse. These
\nnewly emerged \u201csexual rights\u201d were founded on the
\nprinciples of bodily integrity, personhood, equality, and
\ndiversity.\u201d
\n195
\n(Emphasis supplied)
\n76 The operation of Section 377 denies consenting adults the full
\nrealization of their right to health, as well as their sexual rights. It forces
\nconsensual sex between adults into a realm of fear and shame, as persons
\nwho engage in anal and oral intercourse risk criminal sanctions if they seek
\nhealth advice. This lowers the standard of health enjoyed by them and
\nparticularly by members of sexual and gender minorities, in relation to the rest
\nof society.<\/p>\n

194 Supra note 185, at pages 195\u2013208.
\n195 Supra note 185, at pages 195\u2013208.
\nPART G
\n97
\n77 The right to health is not simply the right not to be unwell, but rather the
\nright to be well. It encompasses not just the absence of disease or infirmity,
\nbut \u201ccomplete physical, mental and social well being\u201d,
\n196 and includes both
\nfreedoms such as the right to control one\u2019s health and body and to be free
\nfrom interference (for instance, from non-consensual medical treatment and
\nexperimentation), and entitlements such as the right to a system of healthcare
\nthat gives everyone an equal opportunity to enjoy the highest attainable level
\nof health.
\n78 The jurisprudence of this Court, in recognizing the right to health and
\naccess to medical care, demonstrates the crucial distinction between negative
\nand positive obligations. Article 21 does not impose upon the State only
\nnegative obligations not to act in such a way as to interfere with the right to
\nhealth. This Court also has the power to impose positive obligations upon the
\nState to take measures to provide adequate resources or access to treatment
\nfacilities to secure effective enjoyment of the right to health.197
\n79 A study of sexuality and its relationship to the right to health in South
\nAfrica points to several other studies that suggest a negative correlation
\nbetween sexual orientation-based discrimination and the right to health:<\/p>\n

196 Preamble to the Constitution of the World Health Organisation.
\n197 Jayna Kothari, \u201cSocial Rights and the Indian Constitution\u201d, Law, Social Justice and Global Development Journal
\n(2004).
\nPART G
\n98
\n\u201cFor example, in a Canadian study, Brotman and colleagues
\nfound that being open about their sexual orientation in health
\ncare settings contributed to experiences of discrimination for
\nlesbian, gay, and bisexual people.\u201d
\n198
\n\u201cLane and colleagues interviewed men who have sex with
\nmen in Soweto, and revealed that all men who disclosed their
\nsexual orientation at public health facilities had experienced
\nsome form of discrimination. Such discrimination [\u2018ranging
\nfrom verbal abuse to denial of care\u2019199], and also the
\nanticipation thereof, leads to delays when seeking sexual
\nhealth services such as HIV counseling and testing.\u201d200
\n80 Alexandra Muller describes the story of two individuals who experienced
\nsuch discrimination. T, a gay man, broke both his arms while fleeing from a
\ngroup of people that attacked him because of his sexuality. At the hospital, the
\nstaff learned about T\u2019s sexual orientation, and pejoratively discussed it in his
\npresence. He also had to endure \u201ca local prayer group that visited the ward
\ndaily to provide spiritual support to patients\u201d which \u201cprayed at his bedside to
\nrectify his \u201cdevious\u201d sexuality. When he requested that they leave, or that he
\nbe transferred to another ward, the nurses did not intervene, and the prayer
\ngroup visited regularly to continue to recite their homophobic prayers. T did
\nnot file an official complaint, fearing future ramifications in accessing care.
\nFollowing his discharge, he decided not to return for follow up appointments
\nand had his casts removed at another facility.201<\/p>\n

198 Supra note 185, at pages 195\u2013208.
\n199 Ibid.
\n200 Ibid.
\n201 Ibid.
\nPART G
\n99
\nAnother woman, P, who had been with her female partner for three years,
\nwanted to get tested for HIV. The nurse at the hospital asked certain
\nquestions to discern potential risk behaviours. When asked why she did not
\nuse condoms or contraception, P revealed that she did not need to on account
\nof her sexuality. The nurse immediately exclaimed that P was not at risk for
\nHIV, and that she should \u201cgo home and not waste her time any longer.\u201d P has
\nnot attempted to have another HIV test since.202
\nThese examples are illustrative of a wider issue: individuals across the world
\nare denied access to equal healthcare on the basis of their sexual orientation.
\nThat people are intimidated or blatantly denied healthcare access on a
\ndiscriminatory basis around the world proves that this issue is not simply an
\nideological tussle playing out in classrooms and courtrooms, but an issue
\ndetrimentally affecting individuals on the ground level and violating their rights
\nincluding the right to health.
\n81 The right to health is one of the major rights at stake in the struggle for
\nequality amongst gender and sexual minorities:
\n203
\n\u201cThe right to physical and mental health is at conflict with
\ndiscriminatory policies and practices, some physicians’
\nhomophobia, the lack of adequate training for health care<\/p>\n

202 Ibid.
\n203 Study Guide: Sexual Orientation and Human Rights, University of Minnesota Human RIghts Library (2003).
\nPART G
\n100
\npersonnel regarding sexual orientation issues or the general
\nassumption that patients are heterosexuals.\u201d
\n204
\nWhile the enumeration of the right to equal healthcare is crucial, an
\nindividual\u2019s sexual health is also equally significant to holistic well-being. A
\nhealthy sex life is integral to an individual\u2019s physical and mental health,
\nregardless of whom an individual is attracted to. Criminalising certain sexual
\nacts, thereby shunning them from the mainstream discourse, would invariably
\nlead to situations of unsafe sex, coercion, and a lack of sound medical advice
\nand sexual education, if any at all.
\n82 A report by the Francois-Xavier Bagnoud Center for Health and Human
\nRights at Harvard School of Public Health defines the term \u2018sexual health\u2019 as
\nfollows:
\n\u201cA state of physical, emotional, mental, and social well-being
\nin relation to sexuality. Like health generally, it is not merely
\nthe absence of disease, but encompasses positive and
\ncomplex experiences of sexuality as well as freedom to
\ndetermine sexual relationships, as well as the possibility of
\nhaving pleasurable sexual experiences, free of coercion,
\ndiscrimination and violence.\u201d
\n205
\n83 Laws that criminalize same-sex intercourse create social barriers to
\naccessing healthcare, and curb the effective prevention and treatment of<\/p>\n

204 Ibid.
\n205 Center for Health and Human Rights and Open Society Foundations. \u201cHealth and Human Rights Resource Guide
\n(2013).
\nPART G
\n101
\nHIV\/AIDS.206 Criminal laws are the strongest expression of the State\u2019s power
\nto punish certain acts and behaviour, and it is therefore incumbent upon the
\nState to ensure full protection for all persons, including the specific needs of
\nsexual minorities. The equal protection of law mandates the state to fulfill this
\nconstitutional obligation. Indeed, the state is duty bound to revisit its laws and
\nexecutive decisions to ensure that they do not deny equality before the law
\nand the equal protection of laws. That the law must not discriminate is one
\naspect of equality. But there is more. The law must take affirmative steps to
\nachieve equal protection of law to all its citizens, irrespective of sexual
\norientation.
\nIn regard to sexuality and health, it is important to distinguish between
\nbehaviour that is harmful to others, such as rape and coerced sex, and that
\nwhich is not, such as consensual same-sex conduct between adults, conduct
\nrelated to gender-expression such as cross-dressing, as well as seeking or
\nproviding sexual and reproductive health information and services. The use of
\ncriminal laws in relation to an expanding range of otherwise consensual
\nsexual conduct has been found to be discriminatory by international and<\/p>\n

206 Supra note 172.
\nPART G
\n102
\ndomestic courts, often together with violations of other human rights, such as
\nthe rights to privacy, self-determination, human dignity and health.207
\nG.I Section 377 and HIV prevention efforts
\n84 Section 377 has a significant detrimental impact on the right to health of
\nthose persons who are susceptible to contracting HIV \u2013 men who have sex
\nwith men (\u201cMSM\u201d)208 and transgender persons.209 The Global Commission on
\nHIV and the Law has noted the impact of Section 377 on the right of health of
\npersons afflicted with or vulnerable to contracting HIV:
\n\u201cThe law and its institutions can protect the dignity of all
\npeople living with HIV, and in so doing fortify those most
\nvulnerable to HIV, so-called \u201ckey populations\u201d, such as sex
\nworkers, MSM, transgender people, prisoners and migrants.
\nThe law can open the doors to justice when these people\u2019s
\nrights are trampled\u2026. But the law can also do grave harm to
\nthe bodies and spirits of people living with HIV. It can
\nperpetuate discrimination and isolate the people most
\nvulnerable to HIV from the programmes that would help them
\nto avoid or cope with the virus. By dividing people into
\ncriminals and victims or sinful and innocent, the legal
\nenvironment can destroy the social, political, and economic<\/p>\n

207 Eszter Kismodi, Jane Cottingham, Sofia Gruskin & Alice M. Miller, \u201cAdvancing sexual health through human
\nrights: The role of the law\u201d, Taylor and Francis, (2015), at pages 252-267.
\n208 The term \u201cmen who have sex with men\u201d (MSM) denotes all men who have sex with men, regardless of their
\nsexual identity, sexual orientation and whether or not they also have sex with females. MSM is an epidemiological
\nterm which focuses on sexual behaviours for the purpose of HIV and STI surveillance. The assumption is that
\nbehaviour, not sexual identity, places people at risk for HIV. See Regional Office for South-East Asia, World
\nHealth Organization, \u201cHIV\/AIDS among men who have sex with men and transgender populations in South-East
\nAsia: the current situation and national responses\u201d (2010).
\n209 Transgender people continue to be included under the umbrella term \u201cMSM\u201d. However, it has increasingly been
\nrecognized that Transgender people have unique needs and concerns, and it would be more useful to view them
\nas a separate group. See Regional Office for South-East Asia, World Health Organization, \u201cHIV\/AIDS among men
\nwho have sex with men and transgender populations in South-East Asia: the current situation and national
\nresponses\u201d (2010).
\nPART G
\n103
\nsolidarity that is necessary to overcome this global
\nepidemic.\u201d
\n210
\n85 Mr Anand Grover, learned Senior Counsel in his submissions,
\nhighlighted the vulnerability of MSM and transgender persons. According to a
\nstudy published by the Global Commission on HIV and the Law, MSM were
\nfound to be 19 times more susceptible to be infected with HIV than other adult
\nmen.211
\n86 The UN Human Rights Committee has recognized the impact of the
\ncriminalization of homosexuality on the spread of HIV\/AIDS. In Toonen v
\nAustralia212
\n, a homosexual man from Tasmania, where homosexual sex was
\ncriminalized, argued that criminalization of same-sex activities between
\nconsenting adults was an infringement of his right to privacy under Article 17
\nof the International Covenant on Civil and Political Rights (\u201cICCPR\u201d). The
\nCommittee rejected the argument of the Tasmanian authorities that the law
\nwas justified on grounds of public health and morality as it was enacted to
\nprevent the spread of HIV\/AIDS in Tasmania. The Committee observed that:
\n\u201c… the criminalization of homosexual practices cannot be
\nconsidered a reasonable means or proportionate measure to
\nachieve the aim of preventing the spread of AIDS\/HIV \u2026<\/p>\n

210 United Nations Development Programme, \u201cGlobal Commission on HIV and the Law: Risks, Rights and Health\u201d
\n(2012), at pages 11-12.
\n211 Ibid at page 45; HIV prevalence amongst MSM is 4.3% and amongst transgender persons it is 7.5% as opposed
\nto the overall adult HIV prevalence of 0.26%.
\n212 Communication No. 488\/1992, U.N. Doc CCPR\/C\/50\/D\/488\/1992 (1994), decision dated 31\/03\/1994.
\nPART G
\n104
\nCriminalization of homosexual activity thus would appear to
\nrun counter to the implementation of effective education
\nprogrammes in respect of the HIV\/AIDS prevention.
\nSecondly, the Committee notes that no link has been shown
\nbetween the continued criminalization of homosexual activity
\nand the effective control of the spread of the HIV\/AIDS virus.\u201d
\nIn response to the Committee\u2019s decision, a law was enacted to overcome the
\nTasmanian law criminalizing homosexual sex.
\n87 Section 377 has had far-reaching consequences for this \u201ckey
\npopulation\u201d, pushing them out of the public health system. MSM and
\ntransgender persons may not approach State health care providers for fear of
\nbeing prosecuted for engaging in criminalized intercourse. Studies show that
\nit is the stigma attached to these individuals that contributes to increased
\nsexual risk behaviour and\/or decreased use of HIV prevention services.213
\n88 The silence and secrecy that accompanies institutional discrimination
\nmay foster conditions which encourage escalation of the incidence of
\nHIV\/AIDS.
\n214 The key population is stigmatized by health providers,
\nemployers and other service providers.215 As a result, there exist serious
\nobstacles to effective HIV prevention and treatment as discrimination and<\/p>\n

213 Beena Thomas, Matthew J. Mimiaga, Senthil Kumar, Soumya Swaminathan, Steven A. Safren, and Kenneth H.
\nMayer, \u201cHIV in Indian MSM: Reasons for a concentrated epidemic & strategies for prevention\u201d, Indian Journal
\nMedical Research (2011), at pages 920\u2013929.
\n214 Ibid.
\n215 Ibid.
\nPART G
\n105
\nharassment can hinder access to HIV and sexual health services and
\nprevention programmes.216
\n89 An incisive article, based on extensive empirical research carried out in
\nvarious countries, has concluded that there is a demonstrable relationship
\nbetween \u201claws which criminalize same-sex conduct and adverse health
\neffects on HIV-AIDs rates as well as other health indicators for the MSM
\ncommunity\u201d due to poor access to key HIV prevention tools and outreach
\nprogrammes.217 According to a report published by the Joint United Nations
\nProgramme on HIV\/AIDS (\u201cUNAIDS\u201d), in Caribbean countries where samesex
\nrelations are criminalised, almost one in four MSMs is infected with
\nHIV.218 In the absence of such criminal provisions, the prevalence of HIV is
\none in fifteen among MSMs.
\n219
\n90 Closer to home, the UNAIDS project found that in the four years
\nfollowing the judgement in Naz, there had been an increase of more than 50%
\nin the number of healthcare centers providing HIV services to MSM and
\ntransgender persons in India.220 If same-sex relations remain criminalised, it is<\/p>\n

216 Ibid.
\n217 Supra note 172, at page 636.
\n218 Supra note 210, at page 45.
\n219 Ibid.
\n220 UNAIDS, \u201cUNAIDS Calls on India and All Countries to Repeal Laws That Criminalize Adult Consensual Same Sex
\nSexual Conduct\u201d (2013).
\nPART G
\n106
\nlikely that HIV interventions for MSMs will continue to be inadequate, MSMs
\nwill continue to be marginalised from health services, and the prevalence of
\nHIV will exacerbate.221
\n91 To safeguard the health of persons who are at the greatest risk of HIV
\ninfection, it is imperative that access is granted to effective HIV prevention
\nand treatment services and commodities such as clean needles, syringes,
\ncondoms and lubricants.
\n222 A needle or a condom can only be considered a
\nconcrete representation of the entitlements of vulnerable groups: the
\nfundamental human rights of dignity, autonomy and freedom from illtreatment,
\nalong with the right to the highest attainable standard of physical
\nand mental health, without regard to sexuality or legal status.223 This is the
\nmandate of the Directive Principles contained in Part IV of the Constitution.
\n92 In 2017, Parliament enacted the HIV (Prevention and Control) Act, to
\nprovide for the prevention and control of the spread of HIV\/AIDS and for the
\nprotection of the human rights of persons affected. Parliament recognized the
\nimportance of prevention interventions for vulnerable groups including MSMs.
\nSection 22 of this Act provides for protection against criminal sanctions as
\nwell as any civil liability arising out of promoting actions or practices or \u201cany<\/p>\n

221 UNAIDS, \u201cJudging the Epidemic: A Judicial Handbook on HIV, Human Rights and the Law\u201d (2013) at page 165.
\n222 Supra note 210, at page 26.
\n223 Ibid, at page 26.
\nPART G
\n107
\nstrategy or mechanism or technique\u201d undertaken for reducing the risk of HIV
\ntransmission. Illustrations (a) and (b) to Section 22 read as follows:
\n\u201c(a) A supplies condoms to B who is a sex worker or to C,
\nwho is a client of B. Neither A nor B nor C can be held
\ncriminally or civilly liable for such actions or be prohibited,
\nimpeded, restricted or prevented from implementing or using
\nthe strategy.
\n(b) M carries on an intervention project on HIV or AIDS and
\nsexual health information, education and counselling for men,
\nwho have sex with men, provides safer sex information,
\nmaterial and condoms to N, who has sex with other men.
\nNeither M nor N can be held criminally or civilly liable for such
\nactions or be prohibited, impeded, restricted or prevented
\nfrom implementing or using the intervention.\u201d
\nPersons who engage in anal or oral intercourse face significant sexual health
\nrisks due to the operation of Section 377. Prevalence rates of HIV are high,
\nparticularly among men who have sex with men. Discrimination, stigma and a
\nlack of knowledge on the part of many healthcare providers means that these
\nindividuals often cannot and do not access the health care they need. In order
\nto promote sexual health and reduce HIV transmission among LGBT
\nindividuals, it is imperative that the availability, effectiveness, and quality of
\nhealth services to the LGBT community be significantly improved.
\nUnder our constitutional scheme, no minority group must suffer deprivation of
\na constitutional right because they do not adhere to the majoritarian way of
\nlife. By the application of Section 377 of the Indian Penal Code, MSM and
\ntransgender persons are excluded from access to healthcare due to the
\nPART G
\n108
\nsocietal stigma attached to their sexual identity. Being particularly vulnerable
\nto contraction of HIV, this deprivation can only be described as cruel and
\ndebilitating. The indignity suffered by the sexual minority cannot, by any
\nmeans, stand the test of constitutional validity.
\nG.2 Mental health
\n93 The treatment of homosexuality as a disorder has serious
\nconsequences on the mental health and well-being of LGBT persons. The
\nmental health of citizens \u201cgrowing up in a culture that devalues and silences
\nsame-sex desire\u201d is severely impacted.224 Global psychiatric expert Dinesh
\nBhugra has emphasised that radical solutions are needed to combat the high
\nlevels of mental illness among the LGBT population stating there is a \u201cclear
\ncorrelation between political and social environments\u201d and how persecutory
\nlaws against LGBT individuals are leading to greater levels of depression,
\nanxiety, self-harm, and suicide. Even in Britain, gay people are at greater risk
\nof a range of mental health problems, and, it is believed, are more likely to
\ntake their own lives.
\n\u201cA number of studies this year have highlighted the
\ndisproportionate levels of mental illness among LGBT people.
\nIn Britain, one of the world’s most legally equal countries for
\nthis community, research in the last few months has revealed
\nthat LGBT people are nearly twice as likely to have<\/p>\n

224 Ketki Ranade, \u201cProcess of Sexual Identity Development for Young People with Same Sex Desires: Experiences
\nof Exclusion\u201d, Psychological Foundations – The Journal (2008).
\nPART G
\n109
\nattempted suicide or harmed themselves, gay men are more
\nthan twice as likely to have a mental illness than
\nheterosexual men, and 4 in 5 transgender people have
\nsuffered depression in the last five years.\u201d
\n225<\/p>\n

(Emphasis supplied)
\nHe discusses studies from various countries which indicate that in countries
\nwhere laws continue to discriminate against LGBT individuals, there are high
\nrates of mental illness. Similarly he states that there have been a series of
\nstudies showing that in America, rates of psychiatric disorders have dropped
\nwhen state policies have recognised the equal rights of LGBT individuals.
\n94 Mr Chander Uday Singh, learned Senior Counsel appearing on behalf of
\nan intervenor, a psychiatrist, has brought to our notice how even the mental
\nhealth sector has often reflected the societal prejudice regarding
\nhomosexuality as a pathological condition.
\n95 Medical and scientific authority has now established that consensual
\nsame sex conduct is not against the order of nature and that homosexuality is
\nnatural and a normal variant of sexuality. Parliament has provided legislative
\nacknowledgment of this global consensus through the enactment of the
\nMental Healthcare Act, 2017. Section 3 of the Act mandates that mental
\nillness is to be determined in accordance with \u2018nationally\u2019 or \u2018internationally\u2019<\/p>\n

225 Dinesh Bhugra, globally renowned psychiatrist (article annexed in compilation provided by Mr. Chander Uday
\nSingh, learned Senior Counsel).
\nPART G
\n110
\naccepted medical standards. The International Classification of Diseases
\n(ICD-10) by the World Health Organisation is listed as an internationally
\naccepted medical standard and does not consider non-peno-vaginal sex
\nbetween consenting adults either a mental disorder or an illness. The Act
\nthrough Section 18(2)226 and Section 21227 provides for protection against
\ndiscrimination on the grounds of sexual orientation.
\nThe repercussions of prejudice, stigma and discrimination continue to impact
\nthe psychological well-being of individuals impacted by Section 377. Mental
\nhealth professionals can take this change in the law as an opportunity to reexamine
\ntheir own views of homosexuality.
\n96 Counselling practices will have to focus on providing support to
\nhomosexual clients to become comfortable with who they are and get on with
\ntheir lives, rather than motivating them for change. Instead of trying to cure
\nsomething that isn\u2019t even a disease or illness, the counsellors have to adopt a
\nmore progressive view that reflects the changed medical position and<\/p>\n

226 Section 18. Right to access mental healthcare.\u2014(1) Every person shall have a right to access mental
\nhealthcare and treatment from mental health services run or funded by the appropriate Government. (2) The right
\nto access mental healthcare and treatment shall mean mental health services of affordable cost, of good quality,
\navailable in sufficient quantity, accessible geographically, without discrimination on the basis of gender, sex,
\nsexual orientation, religion, culture, caste, social or political beliefs, class, disability or any other basis and
\nprovided in a manner that is acceptable to persons with mental illness and their families and care-givers.
\n227 Section 21. Right to equality and non-discrimination.\u2014(1) Every person with mental illness shall be treated as
\nequal to persons with physical illness in the provision of all healthcare which shall include the following, namely:\u2014
\n(a) there shall be no discrimination on any basis including gender, sex, sexual orientation, religion, culture, caste,
\nsocial or political beliefs, class or disability.
\nPART H
\n111
\nchanging societal values. There is not only a need for special skills of
\ncounsellors but also heightened sensitivity and understanding of LGBT lives.
\nThe medical practice must share the responsibility to help individuals, families,
\nworkplaces and educational and other institutions to understand sexuality
\ncompletely in order to facilitate the creation of a society free from
\ndiscrimination228 where LGBT individuals like all other citizens are treated with
\nequal standards of respect and value for human rights.
\nH Judicial review
\n97 The Constitution entrusts the function of making laws to Parliament and
\nthe State Legislatures under Articles 245 and 246 of the Constitution.
\nParliament and the State Legislatures are empowered to create offences
\nagainst laws with respect to the heads of legislation, falling within the purview
\nof their legislative authority. (See Entry 93 of List I and Entry 64 of List II of the
\nSeventh Schedule). Criminal law is a subject which falls within the Concurrent
\nList. Entry I of List III provides thus:
\n\u201c1. Criminal law, including all matters included in the Indian
\nPenal Code at the commencement of this Constitution but
\nexcluding offences against laws with respect to any of the
\nmatters specified in List I or List II and excluding the use of
\nnaval, military or air forces or any other armed forces of the
\nUnion in aid of the civil power.\u201d<\/p>\n

228 Vinay Chandran, \u201cFrom judgement to practice: Section 377 and the medical sector\u201d, Indian Journal of Medical
\nEthics, Vol. 4 (2009).
\nPART H
\n112
\nThe power to enact legislation in the field of criminal law has been entrusted
\nto Parliament and, subject to its authority, to the State Legislatures. Both
\nParliament and the State Legislatures can enact laws providing for offences
\narising out of legislation falling within their legislative domains. The authority
\nto enact law, however, is subject to the validity of the law being scrutinised on
\nthe touchstone of constitutional safeguards. A citizen, or, as in the present
\ncase, a community of citizens, having addressed a challenge to the validity of
\na law which creates an offence, the authority to determine that question is
\nentrusted to the judicial branch in the exercise of the power of judicial review.
\nThe Court will not, as it does not, in the exercise of judicial review, second
\nguess a value judgment made by the legislature on the need for or the
\nefficacy of legislation. But where a law creating an offence is found to be
\noffensive to fundamental rights, such a law is not immune to challenge. The
\nconstitutional authority which is entrusted to the legislatures to create offences
\nis subject to the mandate of a written Constitution. Where the validity of the
\nlaw is called into question, judicial review will extend to scrutinising whether
\nthe law is manifestly arbitrary in its encroachment on fundamental liberties. If
\na law discriminates against a group or a community of citizens by denying
\nthem full and equal participation as citizens, in the rights and liberties granted
\nby the Constitution, it would be for the Court to adjudicate upon validity of
\nsuch a law.
\nPART I
\n113
\nI India\u2019s commitments at International Law
\n98 International human rights treaties and jurisprudence impose obligations
\nupon States to protect all individuals from violations of their human rights,
\nincluding on the basis of their sexual orientation.229 Nevertheless, laws
\ncriminalizing same-sex relations between consenting adults remain on the
\nstatute books in more than seventy countries. Many of them, including socalled
\n\u201csodomy laws\u201d, are vestiges of colonial-era legislation that prohibits
\neither certain types of sexual activity or any intimacy or sexual activity
\nbetween persons of the same sex.230 In some cases, the language used
\nrefers to vague and indeterminate concepts, such as \u2018crimes against the order
\nof nature\u2019, \u2018morality\u2019, or \u2018debauchery\u2019.
\n231 There is a familiar ring to it in India,
\nboth in terms of history and text.
\n99 International law today has evolved towards establishing that the
\ncriminalization of consensual sexual acts between same-sex adults in private
\ncontravenes the rights to equality, privacy, and freedom from discrimination.
\nThese rights are recognised in international treaties, covenants, and<\/p>\n

229 Dominic McGoldrick, \u201cThe Development and Status of Sexual Orientation Discrimination under International
\nHuman Rights Law\u201d, Human Rights Law Review, Vol. 16 (2016).
\n230 UN Human Rights Council, \u201cDiscriminatory laws and practices and acts of violence against individuals based on
\ntheir sexual orientation and gender identity\u201d (2011).
\n231 UN Human Rights Council, \u201cPromotion and Protection of all Human Rights, Civil, Political, Economic, Social and
\nCultural Rights, including the Right to Development\u201d (2008).
\nPART I
\n114
\nagreements which India has ratified, including the UDHR, ICCPR, and the
\nICESCR. India has a constitutional duty to honour these internationally
\nrecognized rules and principles.232 Article 51 of the Constitution, which forms
\npart of the Directive Principles of State Policy, requires the State to endeavour
\nto \u201cfoster respect for international law and treaty obligations in the dealings of
\norganised peoples with one another.\u201d
\n100 The human rights treaties that India has ratified require States Parties to
\nguarantee the rights to equality before the law, equal protection of the law and
\nfreedom from discrimination. For example, Article 2 of the ICESCR requires
\nstates to ensure that:
\n\u201cThe rights enunciated in the present Covenant will be
\nexercised without discrimination of any kind as to race,
\ncolour, sex, language, religion, political or other opinion,
\nnational or social origin, property, birth or other status.\u201d
\n101 The Committee on Economic, Social and Cultural Rights – the body
\nmandated by the ICESCR to monitor States Parties\u2019 implementation of the
\ntreaty \u2013 has stated that \u201cother status\u201d in article 2 (2) includes sexual
\norientation, and reaffirmed that \u201cgender identity is recognized as among the<\/p>\n

232 Vishaka v State of Rajasthan, (1997) 6 SCC 241.
\nPART I
\n115
\nprohibited grounds of discrimination\u201d, as \u201cpersons who are transgender,
\ntranssexual or intersex often face serious human rights violations.\u201d
\n233
\n102 The prohibition against discrimination in the ICCPR is contained in
\nArticle 26, which guarantees equality before the law:
\n\u201cAll persons are equal before the law and are entitled without
\nany discrimination to the equal protection of the law. In this
\nrespect, the law shall prohibit any discrimination and
\nguarantee to all persons equal and effective protection
\nagainst discrimination on any ground such as race, colour,
\nsex, language, religion, political or other opinion, national or
\nsocial origin, property, birth or other status.\u201d
\nIndia is also required to protect the right to privacy, which includes within its
\nambit the right to engage in consensual same-sex sexual relations.234 Article
\n12 of the UDHR recognises the right to privacy:
\n\u201cArticle 12: No one shall be subjected to arbitrary interference
\nwith his privacy, family, home or correspondence, nor to
\nattacks upon his honour and reputation. Everyone has the
\nright to the protection of the law against such interference or
\nattacks.\u201d<\/p>\n

233 Committee on Economic, Social and Cultural Rights, \u201cGeneral Comment 20: Non-discrimination in economic,
\nsocial and cultural rights\u201d (2009), at para 32.
\n234 Toonen.
\nPART I
\n116
\nSimilarly, Article 17 of the ICCPR, which India ratified on 11 December 1977,
\nprovides that:
\n\u201cThe obligations imposed by this article require the State to
\nadopt legislative and other measures to give effect to the
\nprohibition against such interferences and attacks as well as
\nto the protection of the right.\u201d
\nIn its General Comment No. 16, the Human Rights Committee confirmed that
\nany interference with privacy, even if provided for by law, \u201cshould be in
\naccordance with the provisions, aims and objectives of the Covenant and
\nshould be, in any event, reasonable in the particular circumstances.\u201d
\n235
\nIn their general comments, concluding observations and views on
\ncommunications, human rights treaty bodies have affirmed that States are
\nobliged to protect individuals from discrimination on grounds of sexual
\norientation and\/or gender identity, as these factors do not limit an individual\u2019s
\nentitlement to enjoy the full range of human rights to which they are entitled.236
\n103 In NALSA, while dealing with the rights of transgender persons, this
\nCourt recognized the \u2018Yogyakarta Principles on the Application of International
\nLaw in Relation to Issues of Sexual Orientation and Gender Identity\u2019 \u2013 which<\/p>\n

235 Supra note 230, at page 6.
\n236 Ibid.
\nPART I
\n117
\noutline the rights that sexual minorities enjoy as human persons under the
\nprotection of international law \u2013 and held that they should be applied as a part
\nof Indian law. Principle 33 provides thus:
\n\u201cEveryone has the right to be free from criminalisation and
\nany form of sanction arising directly or indirectly from that
\nperson\u2019s actual or perceived sexual orientation, gender
\nidentity, gender expression or sex characteristics.\u201d
\nWhile the Yogyakarta Principles are not legally binding, NALSA nevertheless
\nsignifies an affirmation of the right to non-discrimination on the grounds of
\ngender identity, as well as the relevance of international human rights norms
\nin addressing violations of these rights.
\n104 There is a contradiction between India\u2019s international obligations and
\nSection 377 of the Indian Penal Code, insofar as it criminalizes consensual
\nsexual acts between same-sex adults in private. In adjudicating the validity of
\nthis provision, the Indian Penal Code must be brought into conformity with
\nboth the Indian Constitution and the rules and principles of international law
\nthat India has recognized. Both make a crucial contribution towards
\nrecognizing the human rights of sexual and gender minorities.
\nPART J
\n118
\nJ Transcending borders – comparative law
\n105 Over the past several decades, international and domestic courts have
\ndeveloped a strong body of jurisprudence against discrimination based on
\nsexual orientation. This section analyses the evolution of the perspective of
\nthe law towards sexual orientation from a comparative law perspective, and
\nlooks at how sodomy laws have been construed in various jurisdictions based
\non their histories.
\n106 In 1967, England and Wales decriminalized same-sex intercourse
\nbetween consenting adult males in private, and in 1980, Scotland followed
\nsuit. The law in Northern Ireland only changed in 1982 with the decision of the
\nECtHR in Dudgeon v The United Kingdom (\u201cDudgeon\u201d).237 The Petitioners
\nchallenged the Offences against the Person Act, 1861, the Criminal Law
\nAmendment Act, 1885 and a sodomy law that made buggery and \u201cgross
\nindecency\u201d a criminal offense, irrespective of consent. Although the law did
\nnot specifically define these terms, the Court interpreted \u2018buggery\u2019 to mean
\nanal intercourse by a man with a man or woman and gross indecency to mean
\nany act \u201cinvolving sexual indecency between male persons.\u201d Regarding acts
\nprohibited by these provisions, the ECtHR observed that:<\/p>\n

237 App No 7525\/76, (1981) ECHR 5.
\nPART J
\n119
\n\u201cAlthough it is not homosexuality itself which is prohibited but
\nthe particular acts of gross indecency between males and
\nbuggery, there can be no doubt but that male homosexual
\npractices whose prohibition is the subject of the applicant\u2019s
\ncomplaints come within the scope of the offences punishable
\nunder the impugned legislation.\u201d
\nThe ECtHR concluded that Dudgeon had suffered and continued to suffer an
\nunjustified interference with his right to respect for his private life. Hence, the
\nCourt struck down the laws under challenge as violative of Article 8 of the
\nEuropean Convention on Human Rights, in so far as they criminalised \u201cprivate
\nhomosexual relations between adult males capable of valid consent.\u201d In
\nobserving that these laws were not proportionate to their purported need, the
\nCourt observed:
\n\u201cOn the issue of proportionality, the Court considers that such
\njustifications as there are for retaining the law in force
\nunamended are outweighed by the detrimental effects which
\nthe very existence of the legislative provisions in question can
\nhave on the life of a person of homosexual orientation like the
\napplicant. Although members of the public who regard
\nhomosexuality as immoral may be shocked, offended or
\ndisturbed by the commission by others of private homosexual
\nacts, this cannot on its own warrant the application of penal
\nsanctions when it is consenting adults alone who are
\ninvolved.\u201d
\n238
\nThe ECtHR thus concluded:
\n\u201cTo sum up, the restriction imposed on Mr. Dudgeon under
\nNorthern Ireland law, by reason of its breadth and absolute
\ncharacter, is, quite apart from the severity of the possible<\/p>\n

238 Ibid, at para 60.
\nPART J
\n120
\npenalties provided for, disproportionate to the aims sought to
\nbe achieved.\u201d
\n239
\nLater, in Norris v Ireland240
\n, the Applicant challenged Ireland’s criminalization
\nof certain homosexual acts between consenting adult men as being violative
\nof Article 8 of the European Convention on Human Rights, which protected
\nthe right to respect for private and family life. The ECtHR held that the law
\nviolated Article 8, regardless of whether it was actively enforced:
\n\u201cA law which remains on the statute books even though it is
\nnot enforced in a particular class of cases for a considerable
\ntime, may be applied again in such cases at any time, if for
\nexample, there is a change of policy. The applicant can
\ntherefore be said to \u2018run the risk of being directly affected\u2019 by
\nthe legislation in question.\u201d
\nThis decision was affirmed in Modinos v Cyprus241, where the Criminal Code
\nof Cyprus, which penalized homosexual conduct, was alleged to constitute an
\nunjustified interference with the Applicant\u2019s private life.
\n107 Five years after Dudgeon, the United States Supreme Court, in
\nBowers v. Hardwick (\u201cBowers\u201d)242
\n, held that \u201csodomy\u201d laws had been a
\nsignificant part of American history and did not violate the Constitution. The
\nSupreme Court\u2019s reasoning in Bowers is a clear departure from that of the<\/p>\n

239 Ibid, at para 61.
\n240 Application No. 10581\/83, (1988) ECHR 22.
\n241 Application No. 15070\/89,16 EHRR 485.
\n242 478 U.S. 186 (1986).
\nPART J
\n121
\nECtHR in Dudgeon. In Bowers, the Supreme Court declined to accept that
\nthe question concerned the right to privacy. Instead, it stated that the issue
\nwas about “a fundamental right upon homosexuals to engage in sodomy\u201d,243
\nwhich was held not to be protected by the US Constitution.
\nSeventeen years later, the United States Supreme Court laid the constitutional
\nfoundation for LGBT rights in the country with its judgment in Lawrence v
\nTexas (\u201cLawrence\u201d).244 In Lawrence, the Petitioner had been arrested under
\na Texas statute, which prohibited same-sex persons from engaging in sexual
\nconduct, regardless of consent. The validity of the statute was considered.
\nRelying on Dudgeon, the U S Supreme Court struck down the statute as
\nviolative of the Due Process Clause of the Fourteenth Amendment to the U.S.
\nConstitution. Overruling the judgment in Bowers, Justice Kennedy, writing for
\nthe majority, upheld Justice Stevens\u2019 dissent in Bowers \u2013 who was also part
\nof the majority in Lawrence \u2013 to note that:
\n\u201cOur prior cases make two propositions abundantly clear.
\nFirst, the fact that the governing majority in a State has
\ntraditionally viewed a particular practice as immoral is not a
\nsufficient reason for upholding a law prohibiting the practice;
\nneither history nor tradition could save a law prohibiting
\nmiscegenation from constitutional attack. Second, individual<\/p>\n

243 Bowers, at para 190.
\n244 539 U.S. 558 (2003).
\nPART J
\n122
\ndecisions by married persons, concerning the intimacies of
\ntheir physical relationship, even when not intended to produce
\noffspring, are a form of \u201cliberty\u201d protected by the Due Process
\nClause of the Fourteenth Amendment. Moreover, this
\nprotection extends to intimate choices by unmarried as well
\nas married persons.\u201d
\n245
\nHe also noted that the case concerned the private, personal relationships of
\nconsenting adults, and that the laws challenged did not further any legitimate
\nstate interest:
\n\u201cThe present case does not involve minors. It does not
\ninvolve persons who might be injured or coerced or who are
\nsituated in relationships where consent might not easily be
\nrefused. It does not involve public conduct or prostitution. It
\ndoes not involve whether the government must give formal
\nrecognition to any relationship that homosexual persons seek
\nto enter [eg, a right to marry or to register a \u2018civil union\u2019]. The
\ncase does involve two adults who, with full and mutual
\nconsent from each other, engaged in sexual practices
\ncommon to a homosexual lifestyle. The petitioners are
\nentitled to respect for their private lives. The State cannot
\ndemean their existence or control their destiny by making
\ntheir private sexual conduct a crime. Their right to liberty
\nunder the Due Process Clause gives them the full right to
\nengage in their conduct without intervention of the
\ngovernment. … The Texas statute furthers no legitimate state
\ninterest which can justify its intrusion into the personal and
\nprivate life of the individual….\u201d
\n108 Justice Kennedy also identified the harm caused by the operation of the
\ncriminal law:
\n\u201cWhen homosexual conduct is made criminal by the law of
\nthe State, that declaration in and of itself is an invitation to<\/p>\n

245 Bowers, at para 216.
\nPART J
\n123
\nsubject homosexual persons to discrimination both in the
\npublic and in the private spheres.\u201d
\nThe Court thus struck down the Texas law banning \u201cdeviate sexual
\nintercourse\u201d between persons of the same sex (and similar laws in 13 other
\nUS states and Puerto Rico), holding that:
\n\u201cThe laws involved in Bowers and here are, to be sure,
\nstatutes that purport to do no more than prohibit a particular
\nsexual act. Their penalties and purposes, though, have
\nmore far-reaching consequences, touching upon the
\nmost private human conduct, sexual behavior, and in the
\nmost private of places, the home. The statutes do seek to
\ncontrol a personal relationship that, whether or not entitled to
\nformal recognition in the law, is within the liberty of persons to
\nchoose without being punished as criminals.\u201d
\n(Emphasis supplied)
\n109 In Toonen, the UN Human Rights Committee held that laws used to
\ncriminalize private, adult, consensual same-sex sexual relations violate the
\nright to privacy and the right to non-discrimination. Mr Toonen \u2013 a member of
\nthe Tasmanian Gay Law Reform Group \u2013 had complained to the Committee
\nabout a Tasmanian law that criminalized \u2018unnatural sexual intercourse\u2019,
\n\u2018intercourse against nature\u2019 and \u2018indecent practice between male persons\u2019.
\nThe law allowed police officers to investigate intimate aspects of his private
\nlife and to detain him if they had reason to believe that he was involved in
\nsexual activities with his long-term partner in the privacy of their home. Mr
\nPART J
\n124
\nToonen challenged these laws as violative of Article 2(1)246
\n, Article 17247 and
\nArticle 26248 of the ICCPR, on the ground that:
\n\u201c[The provisions] have created the conditions for
\ndiscrimination in employment, constant stigmatization,
\nvilification, threats of physical violence and the violation of
\nbasic democratic rights.\u201d
\n249
\nThe Committee rejected the argument that criminalization may be justified as
\n\u201creasonable\u201d on grounds of protection of public health or morals, noting that
\nthe use of criminal law in such circumstances is neither necessary nor
\nproportionate:250
\n\u201cAs far as the public health argument of the Tasmanian
\nauthorities is concerned, the Committee notes that the
\ncriminalization of homosexual practices cannot be considered
\na reasonable means or proportionate measure to achieve the
\naim of preventing the spread of AIDS\/HIV.\u201d<\/p>\n

246 Article 2(1): Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within
\nits territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any
\nkind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property,
\nbirth or other status.
\n247 Article 17: No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or
\ncorrespondence, nor to unlawful attacks on his honour and reputation.
\n248 Article 26: All persons are equal before the law and are entitled without any discrimination to the equal protection
\nof the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and
\neffective protection against discrimination on any ground such as race, colour, sex, language, religion, political or
\nother opinion, national or social origin, property, birth or other status.
\n249 Toonen, at para 2.4.
\n250 Toonen, at para. 8.5.
\nPART J
\n125
\nThe Court concluded that the legislation was violative of Article 7 of the
\nICCPR, holding that:
\n\u201c\u2026 It is undisputed that adult consensual sexual activity in
\nprivate is covered by the concept of \u201cprivacy\u201d, and that Mr.
\nToonen is actually and currently affected by the continued
\nexistence of the Tasmanian laws.\u201d251
\n110 In X v. Colombia252
\n, the Committee clarified that there is no \u201cGlobal
\nSouth exception\u201d to Toonen.
\n253 The Egyptian and Tunisian members of the
\nCommittee, who dissented from the majority\u2019s decision requiring equal
\ntreatment of unmarried same-sex and different-sex couples, concurred with
\nthe principle laid down in Toonen:
\n\u201c[T]here is no doubt that [A]rticle 17\u2026is violated by
\ndiscrimination on grounds of sexual orientation. The
\nCommittee\u2026has rightly and repeatedly found that protection
\nagainst arbitrary or unlawful interference with privacy
\nprecludes prosecution and punishment for homosexual
\nrelations between consenting adults.\u201d
\n111 The Constitutional Tribunal of Ecuador was the first Constitutional Court
\nin the Global South to decriminalise sodomy laws.254 The constitutionality of
\nArticle 516 of the Penal Code, which penalised \u201ccases of homosexualism, that
\ndo not constitute rape\u201d, was challenged before the Tribunal. The Tribunal\u2019s<\/p>\n

251 Toonen, at para 8.2.
\n252 Communication No. 1361\/2005.
\n253 Robert Wintemute, \u201cSame-Sex Love and Indian Penal Code \u00a7377: An Important Human Rights Issue for India\u201d
\nNational University of Juridical Sciences Law Review, (2011).
\n254 Case No. 111-97-TC (27 November 1997).
\nPART J
\n126
\nreasoning was that \u201cthis abnormal behaviour should be the object of medical
\ntreatment … imprisonment in jails, creates a suitable environment for the
\ndevelopment of this dysfunction.\u201d The Tribunal\u2019s line of reasoning \u2013 referring
\nto homosexual activity as \u2018abnormal behaviour\u2019, requiring medical treatment \u2013
\nis seriously problematic.255 That assumption is unfounded in fact and is an
\nincorrect doctrine for a constitutional court which protects liberty and dignity.
\nHowever ultimately, the Tribunal struck down the first paragraph of Article 516
\nof the Penal Code, holding that:
\n\u201cHomosexuals are above all holders of all the rights of the
\nhuman person and therefore, have the right to exercise them
\nin conditions of full equality … that is to say that their rights
\nenjoy legal protection, as long as in the exteriorisation of their
\nbehaviour they do not harm the rights of others, as is the case
\nwith all other persons.\u201d
\n112 The adverse impact of sodomy laws on the lives of homosexual adults
\nwas also considered by the Constitutional Court of South Africa in National
\nCoalition for Gay and Lesbian Equality v. Minister of Justice (\u201cNational
\nCoalition\u201d)256
\n, in which the constitutionality of the common law offence of
\nsodomy and other legislations which penalised unnatural sexual acts between
\nmen was at issue. The Constitutional Court unanimously found that the
\nsodomy laws, all of which purported to proscribe sexual intimacy between<\/p>\n

255 The Tribunal\u2019s decision was criticized by LGBT rights activists for its description of homosexuality as \u201cabnormal
\nconduct.\u201d However, a year after this decision, Ecuador became the third country in the world to include sexual
\norientation as a constitutionally protected category against discrimination.
\n256 1999 (1) SA 6 (CC).
\nPART J
\n127
\nhomosexual adult men, violated their right to equality and discriminated
\nagainst them on the basis of their sexual orientation.
\nJustice Ackerman, concurring with the ECtHR\u2019s observation in Norris, noted
\nthat:
\n\u201cThe discriminatory prohibitions on sex between men
\nreinforces already existing societal prejudices and severely
\nincreases the negative effects of such prejudices on their
\nlives.\u201d
\n257
\nJustice Ackerman quoted from Edwin Cameron\u2019s \u201cSexual Orientation and the
\nConstitution: A Test Case for Human Rights\u201d258:
\n\u201cEven when these provisions are not enforced, they reduce
\ngay men\u2026 to what one author has referred to as
\n\u2018unapprehended felons\u2019, thus entrenching stigma and
\nencouraging discrimination in employment and
\ninsurance and in judicial decisions about custody and
\nother matters bearing on orientation.\u201d259<\/p>\n

(Emphasis supplied)
\nCommenting on the violation of individuals\u2019 rights to privacy and dignity, the
\nCourt held that:
\n\u201cGay people are a vulnerable minority group in our society.
\nSodomy laws criminalise their most intimate relationships.
\nThis devalues and degrades gay men and therefore
\nconstitutes a violation of their fundamental right to dignity.
\nFurthermore, the offences criminalise private conduct<\/p>\n

257 National Coalition, at para 23.
\n258 (1993) 110 SALJ 450.
\n259 National Coalition, at para 23.
\nPART J
\n128
\nbetween consenting adults which causes no harm to anyone
\nelse. This intrusion on the innermost sphere of human life
\nviolates the constitutional right to privacy. The fact that the
\noffences, which lie at the heart of the discrimination, also
\nviolate the rights to privacy and dignity strengthens the
\nconclusion that the discrimination against gay men is unfair.\u201d
\nIn its conclusion, the Court held that all persons have a right to a \u201csphere of
\nprivate intimacy and autonomy that allows [them] to establish and nurture
\nhuman relationships without interference from the outside community.\u201d
\n260
\n113 In 2005, the High Court of Fiji, in Dhirendra Nadan Thomas McCoskar
\nv. State261
\n, struck down provisions of the Fijian Penal Code, which punished
\nany person who permits a male person to have \u201ccarnal knowledge\u201d of him, as
\nwell as acts of \u201cgross indecency\u201d between male persons. The High Court read
\ndown the provisions to the extent that they were inconsistent with the
\nConstitution of Fiji, drawing a clear distinction between consensual and nonconsensual
\nsexual behavior:
\n\u201cWhat the constitution requires is that the Law acknowledges
\ndifference, affirms dignity and allows equal respect to every
\ncitizen as they are. The acceptance of difference celebrates
\ndiversity. The affirmation of individual dignity offers respect to
\nthe whole of society. The promotion of equality can be a
\nsource of interactive vitality\u2026A country so founded will put
\nsexual expression in private relationships into its proper
\nperspective and allow citizens to define their own good
\nmoral sensibilities leaving the law to its necessary duties<\/p>\n

260 National Coalition, at para 32.
\n261 [2005] FJHC 500.
\nPART J
\n129
\nof keeping sexual expression in check by protecting the
\nvulnerable and penalizing the predator.\u201d
\n(Emphasis supplied)
\nIn recent years, the Caribbean States of Belize and Trinidad and Tobago have
\nalso decriminalized consensual sexual acts between adults in private. In
\nCaleb Orozco v. The Attorney General of Belize (\u201cCaleb Orozco\u201d)262
\n,
\nprovisions of the Belize Criminal Code which penalized \u201cevery person who
\nhas intercourse against the order of nature with any person\u2026\u201d were
\nchallenged before the Supreme Court. Commenting on the concept of dignity,
\nJustice Benjamin borrowed from the Canadian Supreme Court\u2019s observations
\nand noted that:263
\n\u201cHuman dignity means that an individual or group feels selfrespect
\nand self-worth. It is concerned with physical and
\npsychological integrity and empowerment. Human dignity is
\nharmed by unfair treatment premised upon personal
\ntraits or circumstances which do not relate to the
\nindividual needs, capacities or merits. It is enhanced by
\nlaws which are sensitive to the needs, capacities and merits
\nof different individuals, taking into account the context
\nunderlying the differences.\u201d (Emphasis supplied)
\nRelying on the judgments in Dudgeons, National Coalition, McCoskar,
\nToonen, and Lawrence, the Supreme Court struck down the provision as
\nviolative of the claimant\u2019s constitutional rights to privacy, dignity, and equality.
\nJustice Benjamin held thus:<\/p>\n

262 Claim No. 668 of 2010.
\n263 Law v Canada (Minister of Employment and Immigration) [1999] 1 S.C.R. 497.
\nPART J
\n130
\n\u201cHowever, from the perspective of legal principle, the Court
\ncannot act upon prevailing majority views or what is popularly
\naccepted as moral\u2026There must be demonstrated that some
\nharm will be caused should the proscribed conduct be
\nrendered unregulated. No evidence has been presented as to
\nthe real likelihood of such harm. The duty of the Court is to
\napply the provisions of the Constitution.\u201d264
\n114 In Jason Jones v. The Attorney General of Trinidad and Tobago
\n(\u201cJones\u201d)265
\n, an expatriate gay rights activist living in the United Kingdom
\nchallenged the provisions of Trinidad and Tobago\u2019s Sexual Offences Act,
\nwhich criminalized \u2018buggery\u2019 and \u2018serious indecency\u2019 before the High Court of
\nJustice at Trinidad and Tobago. The central issue before the Court was
\nwhether the provisions were \u2018saved\u2019 under Section 6 of the Constitution, which
\nprotects laws that were in existence before the Constitution came into force
\nand were only marginally changed since, from being struck down for breach of
\nfundamental rights.
\nThe High Court struck down the provisions as unconstitutional, observing that
\nthe right to choose a partner and to have a family is intrinsic to an individual\u2019s
\npersonal autonomy and dignity:
\n\u201cTo this court, human dignity is a basic and inalienable right
\nrecognized worldwide in all democratic societies. Attached to
\nthat right is the concept of autonomy and the right of an
\nindividual to make decisions for herself\/himself without any<\/p>\n

264 Caleb Orozco, at para 81.
\n265 Claim no. CV2017-00720.
\nPART J
\n131
\nunreasonable intervention by the State. In a case such as
\nthis, she\/he must be able to make decisions as to who she\/he
\nloves, incorporates in his\/her life, who she\/he wishes to live
\nwith and with who to make a family.\u201d
\n266
\nThe High Court also held that the existence of such laws deliberately
\nundermined the lives of homosexuals:
\n\u201cA citizen should not have to live under the constant threat,
\nthe proverbial \u201cSword of Damocles,\u201d that at any moment
\nshe\/he may be persecuted or prosecuted. That is the threat
\nthat exists at present. It is a threat that is sanctioned by the
\nState and that sanction is an important sanction because it
\njustifies in the mind of others in society who are differently
\nminded, that the very lifestyle, life and existence of a person
\nwho chooses to live in the way that the claimant does is
\ncriminal and is deemed to be of a lesser value than anyone
\nelse\u2026The Parliament has taken the deliberate decision to
\ncriminalise the lifestyle of persons like the claimant whose
\nultimate expression of love and affection is crystallised in an
\nact which is statutorily unlawful, whether or not enforced.\u201d
\n267
\n(Emphasis supplied)
\nThe High Court compared the impugned provisions to racial segregation, the
\nHolocaust, and apartheid, observing that:
\n\u201cTo now deny a perceived minority their right to humanity and
\nhuman dignity would be to continue this type of thinking, this
\ntype of perceived superiority, based on the genuinely held
\nbeliefs of some.\u201d
\n268<\/p>\n

266 Jones, at para 91.
\n267 Ibid.
\n268 Jones, at para 171.
\nPART J
\n132
\n115 In Leung TC William Roy v. Secretary for Justice269
\n, the High Court
\nof Hong Kong considered the constitutional validity of provisions that
\nprescribed different ages of consent for buggery and regular sexual
\nintercourse. The court held that these provisions violated the petitioner\u2019s rights
\nto privacy and equality:
\n\u201cDenying persons of a minority class the right to sexual
\nexpression in the only way available to them, even if that way
\nis denied to all, remains discriminatory when persons of a
\nmajority class are permitted the right to sexual expression in a
\nway natural to them. During the course of submissions, it
\nwas described as \u2018disguised discrimination\u2019. It is, I think, an
\napt description. It is disguised discrimination founded on a
\nsingle base: sexual orientation.\u201d
\n270
\nThe Court concluded that the difference in the ages of consent was
\nunjustifiable, noting that:
\n\u201cNo evidence has been placed before us to explain why the
\nminimum age requirement for buggery is 21 whereas as far
\nas sexual intercourse between a man and a woman is
\nconcerned, the age of consent is only 16. There is, for
\nexample, no medical reason for this and none was suggested
\nin the course of argument.\u201d
\n271
\nCourts around the world have not stopped at decriminalizing sodomy laws;
\nthey have gone a step further and developed a catena of broader rights and
\nprotections for homosexuals. These rights go beyond the mere freedom to<\/p>\n

269 Civil Appeal No. 317 of 2005.
\n270 Ibid, at para 48.
\n271 Ibid, at para 51.
\nPART J
\n133
\nengage in consensual sexual activity in private, and include the right to full
\ncitizenship, the right to form unions and the right to family life.
\n116 Israel was one of the first countries to recognize the rights of
\nhomosexuals against discrimination in matters of employment. In El-Al Israel
\nAirlines Ltd v. Jonathan Danielwitz (\u201cEl-Al Israel Airlines\u201d)272
\n, the Supreme
\nCourt of Israel considered an airline company\u2019s policy of giving discounted
\ntickets to their employees and a \u2018companion recognized as the husband\/wife
\nof the employee\u2019. This benefit was also given to a partner with whom the
\nemployee was living together like husband and wife, but not married.
\nHowever, the airline refused to give the discounted tickets to the Respondent
\nand his male partner.
\nThe Supreme Court of Israel observed thus:
\n\u201cThe principle of equality demands that the existence of a rule
\nthat treats people differently is justified by the nature and
\nsubstance of the issue\u2026therefore, a particular law will create
\ndiscrimination when two individuals who are different from
\none another (factual inequality), are treated differently by the
\nlaw, even though the factual difference between them
\ndoes not justify different treatment in the
\ncircumstances.\u201d
\n273
\n(Emphasis supplied)<\/p>\n

272 HCJ 721\/94.
\n273 El-A Israel Airlines, at para 14.
\nPART J
\n134
\nThe Supreme Court held that giving a benefit to an employee who has a
\nspouse of the opposite sex and denying the same benefit to an employee
\nwhose spouse is of the same sex amounts to discrimination based on sexual
\norientation. This violated the Petitioner\u2019s right to equality and created an
\nunjustifiable distinction in the context of employee benefits.
\n117 In Vriend v Alberta274
\n, the appellant, a homosexual college employee,
\nwas terminated from his job. He alleged that his employer had discriminated
\nagainst him because of his sexual orientation, but that he could not make a
\ncomplaint under Canada\u2019s anti-discrimination statute \u2013 the Individual\u2019s Rights
\nProtection Act (\u201cIRPA\u201d) \u2013 because it did not include sexual orientation as a
\nprotected ground. The Supreme Court of Canada held that the omission of
\nprotection against discrimination on the basis of sexual orientation was an
\nunjustified violation of the right to equality under the Canadian Charter of
\nRights and Freedoms.
\n118 The Supreme Court held that the State had failed to provide a rational
\njustification for the omission of sexual orientation as a protected ground under
\nthe IRPA. Commenting on the domino effect that such discriminatory
\nmeasures have on the lives of homosexuals, the Supreme Court noted thus:<\/p>\n

274 (1998) 1 S.C.R. 493.
\nPART J
\n135
\n\u201cPerhaps most important is the psychological harm which
\nmay ensue from this state of affairs. Fear of discrimination will
\nlogically lead to concealment of true identity and this must be
\nharmful to personal confidence and self-esteem.
\nCompounding that effect is the implicit message conveyed by
\nthe exclusion, that gays and lesbians, unlike other individuals,
\nare not worthy of protection. This is clearly an example of a
\ndistinction which demeans the individual and strengthens and
\nperpetrates [sic] the view that gays and lesbians are less
\nworthy of protection as individuals in Canada\u2019s society. The
\npotential harm to the dignity and perceived worth of gay and
\nlesbian individuals constitutes a particularly cruel form of
\ndiscrimination.\u201d
\nThe next breakthrough for LGBTQ rights came from the Supreme Court of
\nNepal, in Sunil Babu Pant v. Nepal Government275
\n. Sunil Pant \u2013 the first
\nopenly gay Asian national leader \u2013 filed a PIL before the Supreme Court of
\nNepal praying for the recognition of the rights of lesbians, gays, and third
\ngender persons. The Supreme Court located the rights of LGBTQ persons to
\ntheir sexuality within the right to privacy, holding that:
\n\u201cThe right to privacy is a fundamental right of any individual.
\nThe issue of sexual activity falls under the definition of
\nprivacy. No one has the right to question how do two adults
\nperform the sexual intercourse and whether this intercourse is
\nnatural or unnatural.\u201d
\nThe Court held that all individuals have an inherent right to marriage,
\nregardless of their sexual orientation:<\/p>\n

275 Writ Petition No. 917 of 2007.
\nPART J
\n136
\n\u201cLooking at the issue of same sex marriage, we hold that it is
\nan inherent right of an adult to have marital relation with
\nanother adult with his\/her free consent and according to
\nher\/his will.\u201d
\nIn concluding, the Court directed the Nepalese government to enact new
\nlegislation or amend existing legislation to ensure that persons of all sexual
\norientations and gender identities could enjoy equal rights.
\n119 In 2015, in Oliari v Italy (\u201cOliari\u201d)276
\n, the Applicants before the ECtHR
\nargued that the absence of legislation in Italy permitting same-sex marriage or
\nany other type of civil union constituted discrimination on the basis of sexual
\norientation, in violation of Articles 8, 12, and 14 of the European Convention
\non Human Rights. In line with its previous case law, the Court affirmed that
\nsame-sex couples \u201care in need of legal recognition and protection of their
\nrelationship.\u201d
\n277 The ECtHR concluded that gay couples are equally capable
\nof entering into stable and committed relationships in the same way as
\nheterosexual couples.278
\n120 The ECtHR examined the domestic context in Italy, and noted a clear
\ngap between the \u201csocial reality of the applicants\u201d,
\n279 who openly live their<\/p>\n

276 [2015] ECHR 716
\n277 Oliari, at para 165.
\n278 Ibid.
\n279 Oliari, at para. 173.
\nPART J
\n137
\nrelationship, and the law, which fails to formally recognize same-sex
\npartnerships. The Court held that in the absence of any evidence of a
\nprevailing community interest in preventing legal recognition of same-sex
\npartnerships, Italian authorities \u201chave overstepped their margin of appreciation
\nand failed to fulfil their positive obligation to ensure that the applicants have
\navailable a specific legal framework providing for the recognition and
\nprotection of their same-sex unions.\u201d
\n280
\n121 In 2013, in United States v. Windsor281
\n, US Supreme Court considered
\nthe constitutionality of the Defense of Marriage Act (\u201cDOMA\u201d) which states
\nthat, for the purposes of federal law, the words \u2018marriage\u2019 and \u2018spouse\u2019 refer to
\nlegal unions between one man and one woman. Windsor, who had inherited
\nthe estate of her same-sex partner, was barred from claiming the federal
\nestate tax exemption for surviving spouses since her marriage was not
\nrecognized by federal law.282 Justice Kennedy writing for the majority, held
\nthat restricting the federal interpretation of \u2018marriage\u2019 and \u2018spouse\u2019 to apply
\nonly to opposite-sex unions was unconstitutional under the Due Process
\nClause of the Fifth Amendment:
\n\u201cIts [the DOMA\u2019s] unusual deviation from the tradition of
\nrecognizing and accepting state definitions of marriage<\/p>\n

280 Oliari, at para 185.
\n281 570 U.S. 744 (2013).
\n282 Section 3, Defense of Marriage Act.
\nPART J
\n138
\noperates to deprive same-sex couples of the benefits and
\nresponsibilities that come with federal recognition of their
\nmarriages. This is strong evidence of a law having the
\npurpose and effect of disapproval of a class recognized and
\nprotected by state law. DOMA\u2019s avowed purpose and
\npractical effect are to impose a disadvantage, a separate
\nstatus, and so a stigma upon all who enter into same-sex
\nmarriages made lawful by the unquestioned authority of the
\nStates.\u201d
\nTwo years later, in Obergefell v. Hodges (\u201cObergefell\u201d),
\n283 while analysing
\nprecedent and decisions of other US courts recognizing same-sex marriage,
\nJustice Kennedy observed that:
\n\u201cA first premise of the Court\u2019s relevant precedents is that the
\nright to personal choice regarding marriage is inherent in the
\nconcept of individual autonomy\u2026 Like choices concerning
\ncontraception, family relationships, procreation, and
\nchildrearing, all of which are protected by the Constitution,
\ndecisions concerning marriage are among the most intimate
\nthat an individual can make.\u201d
\n284
\n122 Justice Kennedy expressed the need to go beyond the narrow holding
\nin Lawrence, towards a more expansive view of the rights of homosexuals:
\n\u201cLawrence invalidated laws that made same- sex intimacy a
\ncriminal act… But while Lawrence confirmed a dimension
\nof freedom that allows individuals to engage in intimate
\nassociation without criminal liability, it does not follow
\nthat freedom stops there. Outlaw to outcast may be a
\nstep forward, but it does not achieve the full promise of
\nliberty.\u201d (Emphasis supplied)<\/p>\n

283 576 U.S. ___ (2015).
\n284 Obergefell, at page 12.
\nPART J
\n139
\nBy a 5-4 majority, the US Supreme Court ruled that the fundamental right to
\nmarry is guaranteed to same-sex couples by the Due Process Clause and the
\nEqual Protection Clause of the Fourteenth Amendment to the US Constitution.
\nCommenting on the right to marriage, Justice Kennedy noted:
\n\u201cNo union is more profound than marriage, for it embodies the
\nhighest ideals of love, fidelity, devotion, sacrifice, and family.
\n\u2026 It would misunderstand these men and women to say they
\ndisrespect the idea of marriage. Their plea is that they do
\nrespect it, respect it so deeply that they seek to find its
\nfulfilment for themselves. Their hope is not to be condemned
\nto live in loneliness, excluded from one of civilization\u2019s oldest
\ninstitutions. They ask for equal dignity in the eyes of the law.
\nThe Constitution grants them that right.\u201d
\n123 The recent case of Masterpiece Cakeshop v. Colorado Civil Rights
\nCommission (\u201cMasterpiece Cakeshop\u201d)285 concerned a Christian baker who
\nwas accused of violating an anti-discrimination ordinance for refusing to make
\na wedding cake for a same-sex couple based on his religious beliefs. The
\nColorado Civil Rights Commission (\u201cCCRC\u201d) decided against the baker, and,
\non appeal, the Supreme Court ruled 7-2 that the CCRC violated the baker\u2019s
\nrights under the First Amendment, which guarantees freedom of expression.
\nWriting for the majority, Justice Kennedy said the CCRC showed \u201chostility\u201d to
\nthe baker\u2019s religious beliefs:<\/p>\n

285 584 U.S. ____ (2018).
\nPART J
\n140
\n\u201cIt must be concluded that the State\u2019s interest could have
\nbeen weighed against Phillips\u2019 sincere religious objections in
\na way consistent with the requisite religious neutrality that
\nmust be strictly observed. The official expressions of hostility
\nto religion in some of the commissioners\u2019 comments\u2014
\ncomments that were not disavowed at the Commission or by
\nthe State at any point in the proceedings that led to
\naffirmance of the order\u2014were inconsistent with what the Free
\nExercise Clause requires. The Commission\u2019s disparate
\nconsideration of Phillips\u2019 case compared to the cases of the
\nother bakers suggests the same. For these reasons, the order
\nmust be set aside.\u201d
\nThe majority held that while the Constitution allows gay persons to exercise
\ntheir civil rights, \u201creligious and philosophical objections to gay marriage are
\nprotected views and in some instances protected forms of expression.\u201d The
\nSupreme Court found merit in the baker\u2019s First Amendment claim, noting that
\nhis dilemma was understandable, especially given that the cause of action
\narose in 2012, before the enactment of Colorado\u2019s anti-discrimination law and
\nthe Obergefell judgment that legalised same-sex marriage.
\nThe court buttressed its position by noting that in several other cases, bakers
\nhad declined to decorate cakes with messages that were derogatory towards
\ngay persons and the State Civil Rights Division had held that the bakers were
\nwithin their rights to have done so. According to the majority in Masterpiece
\nCakeshop, the owner was similarly entitled to decline the order, and his case
\nshould have been treated no differently.
\nPART J
\n141
\n124 Justice Ginsburg\u2019s dissenting opinion, which was supported by Justice
\nSotomayor, distinguished the baker in Masterpiece Cakeshop from the other
\nthree bakers. Justice Ginsburg noted that while the other bakers would have
\nrefused the said cake decorations to all customers, Phillips refused to bake a
\nwedding cake (which he baked for other customers), specifically for the
\ncouple. She observed that:
\n\u201cPhillips declined to make a cake he found offensive where
\nthe offensiveness of the product was determined solely
\nby the identity of the customer requesting it. The three
\nother bakeries declined to make cakes where their objection
\nto the product was due to the demeaning message the
\nrequested product would literally display.\u201d (Emphasis
\nsupplied)
\n\u201cWhen a couple contacts a bakery for a wedding cake, the
\nproduct they are seeking is a cake celebrating their
\nwedding\u2014not a cake celebrating heterosexual weddings or
\nsame-sex weddings\u2014and that is the service Craig and
\nMullins were denied.\u201d
\nJustice Ginsburg concluded that a proper application of the Colorado AntiDiscrimination
\nAct would require upholding the lower courts\u2019 rulings.
\n125 Masterpiece Cakeshop is also distinguishable from a similar case, Lee
\nv. Ashers Bakery Co. Ltd.
\n286
\n, which is currently on appeal to the United
\nKingdom Supreme Court. In that case, a bakery in Northern Ireland offered a<\/p>\n

286 [2015] NICty 2.
\nPART J
\n142
\nservice whereby customers could provide messages, pictures or graphics that
\nwould be iced on a cake. Lee \u2013 a member of an LGBT organisation \u2013 ordered
\na cake with the words \u201csupport gay marriage\u201d on it. The Christian owners
\nrefused, stating that preparing such an order would conflict with their religious
\nbeliefs. Lee claimed that in refusing his order, the bakery discriminated
\nagainst him on grounds of sexual orientation. Both the County Court and the
\nCourt of Appeal ruled in favour of Lee, on the ground that the respondent\u2019s
\nrefusal on the ground of his religious beliefs was contrary to the provisions of
\nthe Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 and
\nthe Fair Employment and Treatment Order 1998.
\nFrom an analysis of comparative jurisprudence from across the world, the
\nfollowing principles emerge:
\n1. Sexual orientation is an intrinsic element of liberty, dignity, privacy,
\nindividual autonomy and equality;
\n2. Intimacy between consenting adults of the same-sex is beyond the
\nlegitimate interests of the state;
\n3. Sodomy laws violate equality by targeting a segment of the population for
\ntheir sexual orientation;
\nPART J
\n143
\n4. Such a law perpetrates stereotypes, lends authority of the state to societal
\nstereotypes and has a chilling effect on the exercise of freedom;
\n5. The right to love and to a partner, to find fulfillment in a same-sex
\nrelationship is essential to a society which believes in freedom under a
\nconstitutional order based on rights;
\n6. Sexual orientation implicates negative and positive obligations on the state.
\nIt not only requires the state not to discriminate, but also calls for the state
\nto recognise rights which bring true fulfillment to same-sex relationships;
\nand
\n7. The constitutional principles which have led to decriminalization must
\ncontinuously engage in a rights discourse to ensure that same-sex
\nrelationships find true fulfillment in every facet of life. The law cannot
\ndiscriminate against same-sex relationships. It must also take positive
\nsteps to achieve equal protection.
\nThe past two decades have witnessed several decisions by constitutional and
\ninternational courts, recognizing both the decriminalization of same-sex
\nintercourse in private, as well as broader rights recognizing sexual orientation
\nequality. In 1996, South Africa became the first country in the world to
\nPART J
\n144
\nconstitutionally prohibit discrimination based on sexual orientation.287 As on
\nthe date of this judgment, ten countries constitutionally prohibit discrimination
\non grounds of sexual orientation.288 The United Kingdom, Bolivia, Ecuador,
\nFiji, and Malta specifically prohibit discrimination on the basis of gender
\nidentity, either constitutionally or through enacted laws.289 According the
\nInternational Lesbian, Gay, Bisexual, Trans and Intersex Association, 74
\ncountries (including India) criminalize same-sex sexual conduct, as of 2017.290
\nMost of these countries lie in the Sub-Saharan and Middle East region. Some
\nof them prescribe death penalty for homosexuality.291
\n126 We are aware that socio-historical contexts differ from one jurisdiction to
\nanother and that we must therefore look at comparative law-making
\nallowances for them. However, the overwhelming weight of international
\nopinion and the dramatic increase in the pace of recognition of fundamental
\nrights for same-sex couples reflects a growing consensus towards sexual
\norientation equality. We feel inclined to concur with the accumulated wisdom
\nreflected in these judgments, not to determine the meaning of the guarantees<\/p>\n

287 Amy Raub, \u201cProtections Of Equal Rights Across Sexual Orientation And Gender Identity: An Analysis Of 193
\nNational Constitutions\u201d, Yale Journal of Law and Feminism, Vol. 28 (2017).
\n288 Ibid. Of these, three are in the Americas (Bolivia, Ecuador, and Mexico), four are in Europe and Central Asia
\n(Malta, Portugal, Sweden, and the United Kingdom), two are in East Asia and the Pacific (Fiji and New Zealand),
\nand one is in Sub-Saharan Africa (South Africa).
\n289 Ibid.
\n290 The International Lesbian, Gay, Bisexual, Trans And Intersex Association, \u201cSexual Orientation Laws of the World\u201d,
\n(2017).
\n291 Ibid.
\nPART K
\n145
\ncontained within the Indian Constitution, but to provide a sound and
\nappreciable confirmation of our conclusions about those guarantees.
\nThis evolution has enabled societies governed by liberal constitutional values
\n\u2013 such as liberty, dignity, privacy, equality and individual autonomy \u2013 to move
\nbeyond decriminalisation of offences involving consensual same-sex
\nrelationships. Decriminalisation is of course necessary to bury the ghosts of
\nmorality which flourished in a radically different age and time. But
\ndecriminalisation is a first step. The constitutional principles on which it is
\nbased have application to a broader range of entitlements. The Indian
\nConstitution is based on an abiding faith in those constitutional values. In the
\nmarch of civilizations across the spectrum of a compassionate global order,
\nIndia cannot be left behind.
\nK Crime, morality and the Constitution
\n127 The question of what qualifies as a punishable offence under the law
\nhas played a central role in legal theory. Attempts have been made by legal
\nscholars and jurists alike, to define a crime. Halsbury\u2019s Laws of England
\ndefines a crime as \u201can unlawful act or default which is an offence against the
\nPART K
\n146
\npublic and renders the person guilty of the act or default liable to legal
\npunishment.\u201d292 As Glanville Williams observes:
\n\u201cA crime is an act capable of being followed by criminal
\nproceedings, having a criminal outcome\u2026criminal law is that
\nbranch of law which deals with conduct\u2026by prosecution in
\nthe criminal courts.\u201d293
\nHenry Hart, in his essay titled \u201cThe Aims of Criminal Law\u201d,
\n294 comments on
\nthe difficulty of a definition in this branch of law. A crime is a crime because it
\nis called a crime:
\n\u201cIf one were to judge from the notions apparently underlying
\nmany judicial opinions, and the overt language even of some
\nof them, the solution of the puzzle is simply that a crime is
\nanything which is called a crime, and a criminal penalty is
\nsimply the penalty provided for doing anything which has
\nbeen given that name.\u201d295
\nHowever, Hart confesses that such a simplistic definition would be \u201ca betrayal
\nof intellectual bankruptcy.\u201d296 Roscoe Pound articulates the dilemma in
\ndefining what constitutes an offence:
\n\u201cA final answer to the question \u2018what is a crime?\u2019, is
\nimpossible, because law is a living, changing thing, which
\nmay at one time be uniform, and at another time give much
\nroom for judicial discretion, which may at one time be more<\/p>\n

292 Halsbury\u2019s Laws of England. 3rd edition, Vol. 3, Butterworths (1953) at page. 271.
\n293 Glanville Williams, \u2018The Definition of Crime\u2019, Current Legal Problems, Vol. 8 (1955).
\n294 Henry M. Hart, \u201cThe Aims of the Criminal Law\u201d, Law and Contemporary Problems, Vol. 23 (1958), at pages 401\u2013
\n441.
\n295 Ibid.
\n296 Ibid.
\nPART K
\n147
\nspecific in its prescription and at another time much more
\ngeneral.\u201d297
\nEarly philosophers sought to define crime by distinguishing it from a civil
\nwrong. In his study of rhetoric, Aristotle observed that:
\n\u201cJustice in relation to the person is defined in two ways. For it
\nis defined either in relation to the community or to one of its
\nmembers what one should or should not do. Accordingly, it is
\npossible to perform just and unjust acts in two ways, either
\ntowards a defined individual or towards the community.\u201d298
\nKant, in the Metaphysics of Morals,299 observed that:
\n\u201cA transgression of public law that makes someone who
\ncommits it unfit to be a citizen is called a crime simply
\n(crimen) but is also called a public crime (crimen publicum);
\nso the first (private crime) is brought before a civil court, the
\nlatter before a criminal court.\u201d300
\nAnother method of defining crime is from the nature of injury caused, \u201cof being
\npublic, as opposed to private, wrongs.\u201d301 This distinction was brought out by
\nBlackstone and later by Duff, in their theories on criminal law. Blackstone, in
\nhis \u201cCommentaries on the Laws of England\u201d put forth the idea that only<\/p>\n

297
\nRoscoe Pound, Interpretation of Legal History, Harvard University Press (1946).
\n298
\nH.C. Lawson-Tancred, The Art of Rhetoric\/ Aristotle, Penguin (2004).
\n299
\nImmanuel Kant: The Metaphysics of Morals (Mary Gregor ed.), Cambridge University Press (1996).
\n300
\nIbid, at pages 353, 331.
\n301
\nGrant Lamond, \u201cWhat is a Crime?\u201d, Oxford Journal of Legal Studies, Vol.27 (2007).
\nPART K
\n148
\nactions which constitute a \u2018public wrong\u2019 will be classified as a crime.302 He
\ncharacterised public wrongs as \u201ca breach and violation of the public rights and
\nduties, due to the whole community, considered as a community, in its social
\naggregate capacity.\u201d303 Duff adds to the idea of public wrong by arguing that
\n\u201c[w]e should interpret a \u2018public\u2019 wrong, not as a wrong that injures the public,
\nbut as one that properly concerns the public, i.e. the polity as a whole.\u201d304
\nNozick and Becker also support the theory that crime is conduct that harms
\nthe public. Nozick argues that the harm caused by a crime, unlike other
\nprivate law wrongs, extends beyond the immediate victim to all those who
\nview themselves as potential victims of the crime.305 When such an act is
\ndone on purpose, it spreads fear in the general community, and it is due to
\nthis additional harm to the community [of causing fear and insecurity], that
\nsuch actions are classified as crimes and pursued by the state.306 Becker
\npreferred to describe crime as something which disrupts social stability and
\nhas \u201cthe potential for destructive disturbance of fundamental social
\nstructures.\u201d307<\/p>\n

302
\nSir William Blackstone, Commentaries on the Laws of England, Book IV, Ch. 1 & 2.
\n303
\nIbid.
\n304 Antony Duff and Sandra Marshall, \u201cCriminalization and Sharing Wrongs\u201d, Canadian Journal of Law and
\nJurisprudence, Vol. 11, (1998) at pages 7-22.
\n305 Robert Nozick, Anarchy, State and Utopia, Basic Books (1974) ,at page 65.
\n306 Supra note 301.
\n307 Lawrence C. Becker, \u201cCriminal Attempts and the Theory of the Law of Crimes\u201d, Philosophy & Public Affairs, Vol 3
\n(1974), at page 273.
\nPART K
\n149
\nHowever, Hart questioned the theory of simply defining crime as a public
\nwrong, for all wrongs affect society in some way or the other:
\n\u201cCan crimes be distinguished from civil wrongs on the ground
\nthat they constitute injuries to society generally which society
\nis interested in preventing? The difficulty is that society is
\ninterested also in the due fulfilment of contracts and the
\navoidance of traffic accidents and most of the other stuff of
\ncivil litigation.\u201d 308
\n128 Hart preferred to define crime in terms of the methodology of criminal
\nlaw and the characteristics of this method. He described criminal law as
\npossessing the following features:
\n\u201c1. The method operates by means of a series of directions,
\nor commands, formulated in general terms, telling people
\nwhat they must or must not do\u2026
\n2. The commands are taken as valid and binding upon all
\nthose who fall within their terms when the time comes for
\ncomplying with them, whether or not they have been
\nformulated in advance in a single authoritative set of words\u2026
\n3. The commands are subject to one or more sanctions for
\ndisobedience which the community is prepared to enforce\u2026
\n4. What distinguishes a criminal from a civil sanction and
\nall that distinguishes it, it is ventured, is the judgment of
\ncommunity condemnation which accompanies and justifies
\nits imposition.\u201d309
\n(Numbering and emphasis supplied)<\/p>\n

308 Supra note 294.
\n309 Ibid.
\nPART K
\n150
\nAccording to Hart, the first three characteristics above are common to both
\ncivil and criminal law.310 However, the key differentiating factor between
\ncriminal and civil law, he observed, is the \u201ccommunity condemnation.\u201d 311 Thus,
\nhe attempted to define crime as:
\n\u201cConduct which, if duly shown to have taken place, will incur a
\nformal and solemn pronouncement of the moral
\ncondemnation of the community.\u201d 312
\nPerhaps it is difficult to carve out a single definition of crime due to the multidimensional
\nnature of criminal law. The process of deconstructing the
\ncriminalisation of consensual sexual acts by adults will be facilitated by
\nexamining some criminal theories and their interplay with Section 377.
\nCriminal Law Theories
\nBentham\u2019s Utilitarian Theory
\n129 Utilitarianism has provided some of the most powerful critiques of
\nexisting laws. Bentham was one of the earliest supporters for reform in
\nsodomy laws. In his essay, \u201cOffences Against One\u2019s Self\u201d,
\n313 Bentham
\nrebutted all the justifications given by the state for enacting laws on<\/p>\n

310 Ibid.
\n311 Ibid.
\n312 Ibid.
\n313 Jeremy Bentham, \u201cOffences Against One’s Self\u201d (Louis Crompton Ed.), Columbia University.
\nPART K
\n151
\nsodomy.
\n314 According to Bentham, homosexuality, if viewed outside the
\nrealms of morality and religion, is neutral behaviour which gives the
\nparticipants pleasure and does not cause pain to anyone else.315 Therefore,
\nhe concluded that such an act cannot constitute an offence, and there is \u201cno
\nreason for punishing it at all.\u201d316
\n130 Bentham tested sodomy laws on three main principles: (i) whether they
\nproduce any primary mischief, i.e., direct harm to another person; (ii) whether
\nthey produce any secondary mischief, i.e., harm to the stability and security of
\nsociety; and (iii) whether they cause any danger to society.317
\nHe argued that
\nsodomy laws do not satisfy any of the above tests, and hence, should be
\nrepealed. On the first principle of primary mischief, Bentham said:
\n\u201cAs to any primary mischief, it is evident that it produces no
\npain in anyone. On the contrary it produces pleasure, and that
\na pleasure which, by their perverted taste, is by this
\nsupposition preferred to that pleasure which is in general
\nreputed the greatest. The partners are both willing. If either of
\nthem be unwilling, the act is not that which we have here in
\nview: it is an offence totally different in its nature of effects: it
\nis a personal injury; it is a kind of rape.\u201d 318<\/p>\n

314 Ibid.
\n315 Ibid.
\n316 Ibid.
\n317 Ibid.
\n318 Ibid.
\nPART K
\n152
\nThus, Bentham argued that consensual homosexual acts do not harm anyone
\nelse. Instead, they are a source of pleasure to adults who choose to engage in
\nthem. Bentham was clear about the distinction between \u2018willing\u2019 partners and
\n\u2018unwilling\u2019 partners, and the latter according to him, would not fall under his
\ndefence.
\nBentham\u2019s second argument was that there was no secondary mischief,
\nwhich he described as something which may \u201cproduce any alarm in the
\ncommunity.\u201d On this, Bentham argued:
\n\u201cAs to any secondary mischief, it produces not any pain of
\napprehension. For what is there in it for any body to be afraid
\nof? By the supposition, those only are the objects of it who
\nchoose to be so, who find a pleasure, for so it seems they do,
\nin being so.\u201d319
\nBentham\u2019s explanation was that only those adults who choose will be the
\nobjects of homosexual sexual acts. It does not involve any activity which will
\ncreate anxiety among the rest of the society. Therefore, homosexuality does
\nnot cause secondary harm either.
\nLastly, Bentham tested sodomy laws on whether they cause danger to
\nsociety. The only danger that Bentham could apprehend was the supposed<\/p>\n

319 Ibid.
\nPART K
\n153
\ndanger of encouraging others to engage in homosexual practices. However,
\nBentham argues that since homosexual activities in themselves do not cause
\nany harm, there is no danger even if they have a domino effect on other
\nindividuals:
\n\u201cAs to any danger exclusive of pain, the danger, if any, must
\nconsist in the tendency of the example. But what is the
\ntendency of this example? To dispose others to engage in the
\nsame practises: but this practise for anything that has yet
\nappeared produces not pain of any kind to anyone.\u201d 320
\nThus, according to Bentham, sodomy laws fail on all three grounds- they
\nneither cause primary mischief, nor secondary mischief, nor any danger to
\nsociety.
\nBentham also critiqued criminal laws by analysing the utility of the punishment
\nprescribed by them. He succinctly described the objective of law through the
\nprinciples of utility- \u201cThe general object which all laws have, or ought to
\nhave\u2026is to augment the total happiness of the community; [and] to
\nexclude\u2026everything that tends to subtract from that happiness.\u201d321 According
\nto Bentham, \u201call punishment in itself is evil\u201d322 because it reduces the level of
\nhappiness in society, and should be prescribed only if it \u201cexcludes some<\/p>\n

320 Ibid.
\n321 Ibid.
\n322 Ibid.
\nPART K
\n154
\ngreater evil.\u201d323 Bentham stipulated four kinds of situations where it is not
\nutilitarian to inflict punishment:
\n\u201c1. Where it is groundless: where there is no mischief for it to
\nprevent; the act not being mischievous upon the whole.
\n2. Where it must be inefficacious: where it cannot act so as to
\nprevent the mischief.
\n3. Where it is unprofitable, or too expensive: where the
\nmischief it would produce would be greater than what it
\nprevented.
\n4. Where it is needless: where the mischief may be
\nprevented, or cease of itself, without it: that is, at a cheaper
\nrate.\u201d324
\nThe Harm Principle
\n131 John Stuart Mill, in his treatise \u201cOn Liberty,\u201d makes a powerful case to
\npreclude governments from interfering in those areas of an individual\u2019s life
\nwhich are private. Mill\u2019s theory, which came to be called the \u201charm principle\u201d,
\nsuggests that the state can intrude into private life by way of sanction only if
\nharm is caused to others or if the conduct is \u201cother-affecting.\u201d325 In Mill\u2019s
\nwords:
\n\u201cThe only purpose for which power can be rightfully exercised
\nover any member of a civilised community, against his will, is
\nto prevent harm to others. His own good, either physical or
\nmoral, is not a sufficient warrant. He cannot rightfully be
\ncompelled to do or forbear because it will be better for him to
\ndo so, because it will make him happier, because, in the<\/p>\n

323 Ibid.
\n324 Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, The Library of Economics and
\nLiberty (1823).
\n325 John Stuart Mill, On Liberty, (Elizabeth Rapaport ed), Hackett Publishing Co, Inc (1978).
\nPART K
\n155
\nopinions of others, to do so would be wise, or even right\u2026
\nThe only part of the conduct of any one, for which he is
\namenable to society, is that which concerns others. In the part
\nwhich merely concerns himself, his independence is, of right,
\nabsolute. Over himself, over his own body and mind, the
\nindividual is sovereign.\u201d 326 (Emphasis supplied)
\nMill created a dichotomy between \u201cself-regarding\u201d actions (those which affect
\nthe individual himself and have no significant effect on society at large) and
\n\u201cother-regarding\u201d actions (those which affect the society).327
\nHe was aware
\nthat in a way, all actions of an individual are likely to affect \u201cthose nearly
\nconnected with him and, in a minor degree, society at large.\u201d328
\nHowever, he
\nargued that as long as an action does not \u201cviolate a distinct and assignable
\nobligation to any other person or persons\u201d, it may not be taken out of the selfregarding
\nclass of actions.329 Thus, Mill proposed that \u201call that portion of a
\nperson\u2019s life and conduct which affects only himself, or, if it also affects others,
\nonly with their free, voluntary, and undeceived consent and participation\u201d
\nshould be free from state interference.330 He further added that the state and
\nsociety are not justified in interfering in the self-regarding sphere, merely
\nbecause they believe certain conduct to be \u201cfoolish, perverse, or wrong.\u201d331<\/p>\n

326 Ibid.
\n327 Ibid.
\n328 Ibid.
\n329 Ibid.
\n330 Ibid.
\n331 Ibid.
\nPART K
\n156
\nEssentially, Mill created a taxonomy on types of conduct \u2013 (a) self-regarding
\nactions should not be the subject of sanctions either from the state or society;
\n(b) actions which may hurt others but do not violate any legal rights may only
\nbe the subject of public condemnation but not state sanction; (c) only action
\nwhich violate the legal rights of others should be the subject of legal sanction
\n(and public condemnation).332 The harm principle thus, operated as a negative
\nor limiting principle, with the main objective of restricting criminal law from
\npenalising conduct merely on the basis of its perceived immorality or
\nunacceptability when the same is not harmful.333
\nWhile Mill\u2019s theory was not propounded in relation to LGBTQ rights, his
\nunderstanding of criminal law is well-suited to argue that sodomy laws
\ncriminalise \u2018self-regarding\u2019 actions which fall under the first category of
\nconduct, and should not be subjected to sanctions either by the state or the
\nsociety.
\n132 A jurisprudential debate on the interplay between criminal law and
\nmorality was set off when Lord Devlin delivered the 1959 Maccabean Lecture,<\/p>\n

332 Mark Strasser, \u201cLawrence, Mill, and Same Sex Relationships: On Values, Valuing and the Constitution\u201d, Southern
\nCalifornia Interdisciplinary Law Journal, Vol. 15 (2006).
\n333 Joseph Raz, \u2018Autonomy, Toleration and the Harm Principle\u2019, in Issues in Contemporary Legal Philosophy: The
\nInfluence of HLA Hart (R. Gavison ed.), Oxford University Press (1987).
\nPART K
\n157
\ntitled \u201cThe Enforcement of Morals.\u201d334 Lord Devlin\u2019s lecture was an attack
\nagainst the Report of the Wolfenden Committee on Homosexual Offences and
\nProstitution (\u201cWolfenden Report\u201d), which had recommended the
\ndecriminalisation of sodomy laws in England.335 The Wolfenden Committee,
\nheaded by Sir John Wolfenden, Vice-Chancellor of Reading University, was
\nset up in 1954 to consider the criminalisation of homosexuality and
\nprostitution, in the wake of increased arrests and convictions in the UK for
\nhomosexuality between men.336 Among those prosecuted for \u2018gross
\nindecency\u2019 under the Buggery Act of 1553 and Sexual Offences Act of 1967
\nwere eminent persons like Oscar Wilde, Alan Turing and Lord Montagu of
\nBeaulieu.337 After conducting a three-year long inquiry, carrying out empirical
\nresearch, and interviewing three gay men, the Wolfenden Committee
\nreleased its Report in 1957.338 The Wolfenden Report recommended that:
\n\u201cHomosexual behaviour between consenting adults should no
\nlonger be a criminal offence… Unless a deliberate attempt is
\nto be made by society, acting through the agency of the law,
\nto equate the sphere of crime with that of sin, there must
\nremain a realm of private morality and immorality which is, in
\nbrief and crude terms, not the law\u2019s business.\u201d339<\/p>\n

334 Graham Hughes, \u201cMorals and the Criminal Law\u201d, The Yale Law Journal, Vol.71 (1962).
\n335 Supra note 29.
\n336 Ibid.
\n337 Ibid.
\n338 Ibid.
\n339 Supra note 29, at paras 61 and 62.
\nPART K
\n158
\nThe Wolfenden Report stated that \u201cit is not the purpose of law to intervene in
\nthe private lives of citizens, or to seek to enforce any particular pattern of
\nbehaviour\u2026\u201d340 The Wolfenden Report acknowledged that the law and public
\nopinion have a close relationship with each other \u2013 the law ought to \u201cfollow
\nbehind public opinion\u201d so that it garners the community support, while at the
\nsame time, the law must also fortify and lead public opinion.341 However, it
\nmade out a strong case for divorcing morality from criminal law and stated that
\n– \u201cmoral conviction or instinctive feeling, however strong, is not a valid basis
\nfor overriding the individual\u2019s privacy and for bringing within the ambit of the
\ncriminal law private sexual behaviour of this kind.\u201d342 Stating that
\nhomosexuality is not a mental illness, the Wolfenden Report clarified that
\nhomosexuality is \u201ca sexual propensity for persons of one\u2019s own sex\u2026[it] is a
\nstate or condition, and as such does not, and cannot, come within the purview
\nof criminal law.\u201d343<\/p>\n

133 Lord Devlin, perturbed by the Wolfenden Report\u2019s line of reasoning,
\nframed questions on the issue of criminal law and morality:
\n\u201c1. Has society the right to pass judgments on all matters of
\nmorals?<\/p>\n

340 Ibid, at para 14.
\n341 Ibid, at para 16.
\n342 Ibid, at para 54.
\n343 Ibid, at para 18.
\nPART K
\n159
\n2. If society has the right to pass judgment, has it also the
\nright to use the weapon of the law to enforce it?\u201d
\n344
\nDevlin believed that society depends upon a common morality for its stability
\nand existence.345 On the basis of this belief, Devlin answered the above
\nquestions in the affirmative, stating that \u2013 society has the right to pass
\njudgments on all matters of morality and also the right to use law to enforce
\nsuch morality.346
\nDevlin reasoned that society would disintegrate if a common
\nmorality was not observed. Therefore, society is justified in taking steps to
\npreserve its morality as much as it preserves the government.347 Devlin
\nproposed that the common morality or \u201ccollective judgment of the society\u201d
\nshould be ascertained taking into consideration the \u201creasonable man.\u201d348
\nAccording to him, a reasonable man is an ordinary man whose judgment \u201cmay
\nlargely be a matter of feeling.\u201d349
\nHe added that if the reasonable man
\nbelieved a practice to be immoral, and held this belief honestly and
\ndispassionately, then for the purpose of law such practice should be
\nconsidered immoral.350<\/p>\n

344 Sir Patrick Arthur Devlin, \u201cThe Enforcement Of Morals\u201d Oxford University Press (1959) at page 9.
\n345 Supra note 334, at page 662.
\n346 Animesh Sharma, \u201cSection 377: No Jurisprudential Basis.\u201d Economic and Political Weekly, Vol. 43 (2008) at
\npages 12-14.
\n347 Supra note 344.
\n348 Ibid.
\n349 Ibid.
\n350 Ibid.
\nPART K
\n160
\n134 Countering Devlin\u2019s theory, Hart argued that society is not held together
\nby a common morality, for, after all, it is not a hive mind or a monolith,
\ngoverned by a singular set of morals and principles.351 Hart rebutted Devlin\u2019s
\nargument in the following way:
\n\u201c\u2026apart from one vague reference to \u2018history\u2019 showing the
\n\u2018the loosening of moral bonds is often the first stage of
\ndisintegration,\u2019 no evidence is produced to show that
\ndeviation from accepted sexual morality, even by adults in
\nprivate is something which, like treason, threatens the
\nexistence of society. No reputable historian has maintained
\nthis thesis, and there is indeed much evidence against
\nit\u2026Lord Devlin\u2019s belief in it [that homosexuality is a cause of
\nsocietal disintegration], and his apparent indifference to the
\nquestion of evidence, are at points traceable to an
\nundiscussed assumption. This is that all morality \u2013 sexual
\nmorality together with the morality that forbids acts injurious to
\nothers such as killing, stealing, and dishonesty — forms a
\nsingle seamless web, so that those who deviate from any part
\nare likely to perhaps bound to deviate from the whole. It is of
\ncourse clear (and one of the oldest insights of political theory)
\nthat society could not exist without a morality which mirrored
\nand supplemented the law\u2019s proscription of conduct injurious
\nto others. But there is again no evidence to support, and
\nmuch to refute, the theory that those who deviate from
\nconventional sexual morality are in other ways hostile to
\nsociety.\u201d
\n352
\nDespite countering Devlin, Hart was not completely opposed to a relationship
\nbetween law and morality, and in fact, he emphasised that the two are closely
\nrelated:<\/p>\n

351 Supra note 346, at pages 12-14.
\n352 Hart, H. L. A, \u201cThe Changing Sense of Morality\u201d In Political Thought (Michael Rosen and Jonathan Wolff eds.),
\nOxford University Press (1999) at pages 140-141.
\nPART K
\n161
\n\u201cThe law of every modem state shows at a thousand points
\nthe influence of both the accepted social morality and wider
\nmoral ideals. These influences enter into law either abruptly
\nand avowedly through legislation, or silently and piecemeal
\nthrough the judicial process\u2026The further ways in which law
\nmirrors morality are myriad, and still insufficiently studied:
\nstatutes may be a mere legal shell and demand by their
\nexpress terms to be filled out with the aid of moral principles;
\nthe range of enforceable contracts may be limited by
\nreference to conceptions of morality and fair- ness; liability for
\nboth civil and criminal wrongs may be adjusted to prevailing
\nviews of moral responsibility.\u201d 353
\nHowever, unlike Devlin, Hart did not propose that morality is a necessary
\ncondition for the validity of law.354 Hart argued, in summary, that \u201claw is
\nmorally relevant,\u201d but \u201cnot morally conclusive.\u201d355 Hart vehemently disagreed
\nwith Devlin’s view that if laws are not based on some collective morality and
\nenacted to buttress that morality, society will disintegrate.356 Hart draws this
\ndistinction by conceding that certain sexual acts (including homosexual acts)
\nwere considered \u2018immoral\u2019 by mainstream Western society but adding that
\nprivate sexual acts are an issue of \u201cprivate morality\u201d over which society has no
\ninterest and the law, no control.357
\nHart further expounded his warning about the imposition of majoritarian
\nmorals, propounding that \u201c[l]t is fatally easy to confuse the democratic<\/p>\n

353 H.L.A. Hart, Law, Liberty And Morality (1979).
\n354 William Starr, \u201cLaw and Morality in H.L.A. Hart\u2019s Legal Philosophy\u201d, Marquette Law Review, Vol. 67 (1984).
\n355 Ibid.
\n356 Supra note 352.
\n357 Peter August Bittlinger, \u201cGovernment enforcement of morality: a critical analysis of the Devlin-Hart controversy\u201d,
\nDoctoral Dissertations 1896-February 2014 (1975) at pages 69-70.
\nPART K
\n162
\nprinciple that power should be in the hands of the majority with the utterly
\ndifferent claim that the majority, with power in their hands, need respect no
\nlimits\u201d358:
\n\u201cWhatever other arguments there may be for the enforcement
\nof morality, no one should think even when popular morality is
\nsupported by an \u201coverwhelming majority\u201d or marked by
\nwidespread “intolerance, indignation, and disgust” that loyalty
\nto democratic principles requires him to admit that its
\nimposition on a minority is justified.\u201d359
\nIn this way, Hart avoided the specious generalization that the law must be
\nseverely quarantined from morality but still made it clear that laws like Section
\n377, which impose a majoritarian view of right and wrong upon a minority in
\norder to protect societal cohesion, are jurisprudentially and democratically
\nimpermissible.
\nBentham had a different view on morality and weighed morality against
\nutilitarian principles. Bentham argued that if the punishment is not utilitarian
\n(i.e. does not serve as a deterrent, is unprofitable, or unnecessary), the
\n\u2018immoral\u2019 action would have to go unpunished.360
\nHe opined that legislators
\nshould not be overly swayed by the society\u2019s morality:<\/p>\n

358 Ibid at page 91.
\n359 Ibid at page 93.
\n360 Supra note 334.
\nPART K
\n163
\n\u201cThe strength of their prejudice is the measure of the
\nindulgence which should be granted to it\u2026The legislator
\nought to yield to the violence of a current which carries away
\neverything that obstructs it.
\nBut ought the legislator to be a slave to the fancies of those
\nwhom he governs? No. Between an imprudent opposition and
\na servile compliance, there is a middle path, honourable and
\nsafe.\u201d361<\/p>\n

In other words, it appears that Bentham argued that the morality of the people
\nought not be ignored in creating laws but also must not become their
\nunchecked fount. And if prejudicial moralities arise from the people, they
\nshould not be unthinkingly and permanently cemented into the law, but rather
\naddressed and conquered.
\nJohn Stuart Mill also made a strong argument against popular morality being
\ncodified into laws. He argued that \u2018disgust\u2019 cannot be classified as harm, and
\nthose \u201cwho consider as an injury to themselves any conduct which they have
\na distaste for\u201d, cannot dictate the actions of others merely because such
\nactions contradict their own beliefs or views.362 Mill believed that society is not
\nthe right judge when dealing with the question of when to interfere in conduct<\/p>\n

361 Ibid.
\n362 Supra note 325.
\nPART K
\n164
\nthat is purely personal, and that when society does interfere, \u201cthe odds are
\nthat it interferes wrongly and in the wrong place.\u201d363
\n135 Christopher R Leslie points out the dangers of letting morality creep into
\nlaw:
\n\u201cCurrent generations enshrine their morality by passing laws
\nand perpetuate their prejudices by handing these laws down
\nto their children. Soon, statutes take on lives of their own, and
\ntheir very existence justifies their premises and consequent
\nimplications. The underlying premises of ancient laws are
\nrarely discussed, let alone scrutinized.\u201d364
\nLeslie further adds that \u201csodomy laws do not merely express societal
\ndisapproval; they go much further by creating a criminal class\u201d
\n365:
\n\u201cSodomy laws are kept on the books, even though state
\ngovernments do not intend to actively enforce them, because
\nthe laws send a message to society that homosexuality is
\nunacceptable. Even without actual criminal prosecution, the
\nlaws carry meaning\u2026 In short, the primary importance of
\nsodomy laws today is the government\u2019s message to diminish
\nthe societal status of gay men and lesbians.\u201d366
\n136 A broad analysis of criminal theory points to the general conclusion that
\ncriminologists and legal philosophers have long been in agreement about one
\nbasic characteristic of crime: that it should injure a third person or the society.<\/p>\n

363 Ibid.
\n364 Christopher. R. Leslie, \u201cCreating criminals: The Injuries Inflicted by \u201cUnenforced\u201d Sodomy Laws\u201d, Harvard Civil
\nRights and Civil Liberties Law Review, Vol. 35 (2000).
\n365 Ibid, at pages 103-181.
\n366 Ibid.
\nPART K
\n165
\nAn element of larger public interest emerges as the crux of crime. The
\nconduct which Section 377 criminalises voluntary \u2018carnal intercourse against
\nthe order of nature\u2019 with a man or woman, inter alia \u2013 pertains solely to acts
\nbetween consenting adults. Such conduct is purely private, or as Mill would
\ncall it, \u201cself-regarding,\u201d and is neither capable of causing injury to someone
\nelse nor does it pose a threat to the stability and security of society. Once the
\nfactor of consent is established, the question of such conduct causing any
\ninjury, does not arise.
\nAlthough Section 377 prima facie appears to criminalise certain acts or
\nconduct, it creates a class of criminals, consisting of individuals who engage
\nin consensual sexual activity. It typecasts LGBTQ individuals as sexoffenders,
\ncategorising their consensual conduct on par with sexual offences
\nlike rape and child molestation. Section 377 not only criminalises acts
\n(consensual sexual conduct between adults) which should not constitute
\ncrime, but also stigmatises and condemns LGBTQ individuals in society.
\n137 We are aware of the perils of allowing morality to dictate the terms of
\ncriminal law. If a single, homogenous morality is carved out for a society, it will
\nundoubtedly have the effect of hegemonizing or \u2018othering\u2019 the morality of
\nminorities. The LGBTQ community has been a victim of the pre-dominant
\nPART L
\n166
\n(Victorian) morality which prevailed at the time when the Indian Penal Code
\nwas drafted and enacted. Therefore, we are inclined to observe that it is
\nconstitutional morality, and not mainstream views about sexual morality, which
\nshould be the driving factor in determining the validity of Section 377.
\nL Constitutional morality
\n138 With the attainment of independence on 15 August 1947, Indians were
\nfinally free to shape their own destiny.367 The destiny was to be shaped
\nthrough a written Constitution. Constitutions are scripts in which people
\ninscribe the text of their professed collective destiny. They write down who
\nthey think they are, what they want to be, and the principles that will guide
\ntheir interacting along that path in the future.368 The Constitution of India was
\nburdened with the challenge of \u201cdrawing a curtain on the past\u201d369 of social
\ninequality and prejudices. Those who led India to freedom established into the
\nConstitution the ideals and vision of a vibrant equitable society. The framing of
\nIndia\u2019s Constitution was a medium of liberating the society by initiating the
\nprocess of establishing and promoting the shared values of liberty, equality<\/p>\n

367 Jawaharlal Nehru, \u201cTryst with Destiny\u201d, address to the Constituent Assembly of India, delivered on 14-15 August
\n1947.
\n368 Uday S. Mehta, \u201cConstitutionalism\u201d, In The Oxford Companion to Politics in India (Niraja Gopal Jayal and Pratap
\nBhanu Mehta eds.), Oxford University Press (2010), at page 15.
\n369 Ibid, at page 16.
\nPART L
\n167
\nand fraternity. Throughout history, socio-cultural revolts, anti-discrimination
\nassertions, movements, literature and leaders have worked at socializing
\npeople away from supremacist thought and towards an egalitarian existence.
\nThe Indian Constitution is an expression of these assertions. It was an attempt
\nto reverse the socializing of prejudice, discrimination, and power hegemony in
\na disjointed society. All citizens were to be free from coercion or restriction by
\nthe state, or by society privately.370 Liberty was no longer to remain the
\nprivilege of the few. The judgment in Puttaswamy highlights the commitment
\nof the constitution makers, thus:
\n\u201cThe vision of the founding fathers was enriched by the
\nhistories of suffering of those who suffered oppression and a
\nviolation of dignity both here and elsewhere.\u201d
\n139 Understanding the vision of India at a time when there was little else
\nolder than that vision, is of paramount importance for the reason that though
\nthe people may not have played any role in the actual framing of the
\nConstitution, the Preamble professes that the Constitution has been adopted
\nby the people themselves. Constitutional historian Granville Austin has said
\nthat the Indian Constitution is essentially a social document.371 The Indian
\nConstitution does not provide merely a framework of governance. It embodies
\na vision. It is goal-oriented and its purpose is to bring about a social<\/p>\n

370 Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University Press (1966), at page 65.
\n371 Ibid, at page 63.
\nPART L
\n168
\ntransformation in the country. It represents the aspirations of its framers. The
\ndemocratic Constitution of India embodies provisions which are value-based.
\n140 During the framing of the Constitution, it was realized by the members
\nof the Constituent Assembly that there was a wide gap between constitutional
\nprecept and reality. The draftspersons were clear that the imbibing of new
\nconstitutional values by the population at large would take some time. Society
\nwas not going to change overnight. Dr Ambedkar remarked in the Constituent
\nAssembly:
\n\u201cDemocracy in India is only a top-dressing on an Indian soil,
\nwhich is essentially undemocratic.\u201d
\n141 The values of a democracy require years of practice, effort, and
\nexperience to make the society work with those values. Similar is the position
\nof non-discrimination, equality, fraternity and secularism. While the
\nConstitution guarantees equality before the law and equal protection of the
\nlaw, it was felt that the realization of the constitutional vision requires the
\nexistence of a commitment to that vision. Dr Ambedkar described this
\ncommitment to be the presence of constitutional morality among the members
\nof the society. The conception of constitutional morality is different from that of
\npublic or societal morality. Under a regime of public morality, the conduct of
\nPART L
\n169
\nsociety is determined by popular perceptions existent in society. The
\ncontinuance of certain symbols, labels, names or body shapes determine the
\nnotions, sentiments and mental attitudes of the people towards individuals and
\nthings.372 Constitutional morality determines the mental attitude towards
\nindividuals and issues by the text and spirit of the Constitution. It requires that
\nthe rights of an individual ought not to be prejudiced by popular notions of
\nsociety. It assumes that citizens would respect the vision of the framers of the
\nConstitution and would conduct themselves in a way which furthers that
\nvision. Constitutional morality reflects that the ideal of justice is an overriding
\nfactor in the struggle for existence over any other notion of social acceptance.
\nIt builds and protects the foundations of a democracy, without which any
\nnation will crack under its fissures. For this reason, constitutional morality has
\nto be imbibed by the citizens consistently and continuously. Society must
\nalways bear in mind what Dr Ambedkar observed before the Constituent
\nAssembly:
\n\u201cConstitutional morality is not a natural sentiment. It has to be
\ncultivated. We must realize that our people have yet to learn
\nit.\u201d<\/p>\n

372 Babasaheb.R. Ambedkar, Annihilation of Caste, Navayana Publishing (2014); See also Martha C. Nussbaum,
\n\u201cDisgust or Equality? Sexual Orientation and Indian Law\u201d, Journal of Indian Law and Society, Vol. 6 (2010).
\nPART L
\n170
\n142 In the decision in Government of NCT of Delhi v. Union of India373
\n,
\nthe Constitution Bench of this Court dealt with the constitutive elements of
\nconstitutional morality which govern the working of a democratic system and
\nrepresentative form of government. Constitutional morality was described as
\nfounded on a \u201cconstitutional culture\u201d, which requires the \u201cexistence of
\nsentiments and dedication for realizing a social transformation which the
\nIndian Constitution seeks to attain.\u201d This Court held thus:
\n\u201cIf the moral values of our .Constitution were not upheld at
\nevery stage, the text of the Constitution may not be enough to
\nprotect its democratic values.\u201d
\nThis Court held that constitutional morality acts a check against the \u201ctyranny of
\nthe majority\u201d and as a \u201cthreshold against an upsurge in mob rule.\u201d It was held
\nto be a balance against popular public morality.
\n143 Constitutional morality requires in a democracy the assurance of certain
\nminimum rights, which are essential for free existence to every member of
\nsociety. The Preamble to the Constitution recognises these rights as \u201cLiberty
\nof thought, expression, belief, faith and worship\u201d and \u201cEquality of status and of
\nopportunity.\u201d Constitutional morality is the guarantee which seeks that all
\ninequality is eliminated from the social structure and each individual is<\/p>\n

373 2018 (8) SCALE 72
\nPART L
\n171
\nassured of the means for the enforcement of the rights guaranteed.
\nConstitutional morality leans towards making Indian democracy vibrant by
\ninfusing a spirit of brotherhood amongst a heterogeneous population,
\nbelonging to different classes, races, religions, cultures, castes and sections.
\nConstitutional morality cannot, however, be nurtured unless, as recognised by
\nthe Preamble, there exists fraternity, which assures and maintains the dignity
\nof each individual. In his famous, yet undelivered speech titled \u201cAnnihilation of
\nCaste\u201d (which has been later published as a book), Dr Ambedkar described
\n\u2018fraternity\u2019 as \u201cprimarily a mode of associated living, of conjoint communicated
\nexperience\u201d and \u201cessentially an attitude of respect and reverence towards
\nfellow men.\u201d
\n374 He remarked:
\n\u201cAn ideal society should be mobile, should be full of channels
\nfor conveying a change taking place in one part to other parts.
\nIn an ideal society there should be many interests consciously
\ncommunicated and shared. There should be varied and free
\npoints of contact with other modes of association. In other
\nwords there must be social endosmosis. This is fraternity,
\nwhich is only another name for democracy.\u201d
\nIn his last address to the Constituent Assembly, he defined fraternity as \u201ca
\nsense of common brotherhood of all Indians.\u201d As on the social and economic
\nplane, Indian society was based on graded inequality, Dr Ambedkar had
\nwarned in clear terms:
\n\u201cWithout fraternity, liberty [and] equality could not become a
\nnatural course of things. It would require a constable to<\/p>\n

374 Supra note 372, at para 14.2.
\nPART L
\n172
\nenforce them\u2026 Without fraternity equality and liberty will be
\nno deeper than coats of paint.\u201d375
\n144 Constitutional morality requires that all the citizens need to have a
\ncloser look at, understand and imbibe the broad values of the Constitution,
\nwhich are based on liberty, equality and fraternity. Constitutional morality is
\nthus the guiding spirit to achieve the transformation which, above all, the
\nConstitution seeks to achieve. This acknowledgement carries a necessary
\nimplication: the process through which a society matures and imbibes
\nconstitutional morality is gradual, perhaps interminably so. Hence,
\nconstitutional courts are entrusted with the duty to act as external facilitators
\nand to be a vigilant safeguard against excesses of state power and
\ndemocratic concentration of power. This Court, being the highest
\nconstitutional court, has the responsibility to monitor the preservation of
\nconstitutional morality as an incident of fostering conditions for human dignity
\nand liberty to flourish. Popular public morality cannot affect the decisions of
\nthis Court. Lord Neuberger (of the UK Supreme Court) has aptly observed:
\n\u201c[W]e must always remember that Parliament has democratic
\nlegitimacy \u2013 but that has disadvantages as well as
\nadvantages. The need to offer oneself for re-election
\nsometimes makes it hard to make unpopular, but correct,
\ndecisions. At times it can be an advantage to have an<\/p>\n

375 Constituent Assembly Debates (25 November 1949).
\nPART L
\n173
\nindependent body of people who do not have to worry about
\nshort term popularity.\u201d376
\nThe flourishing of a constitutional order requires not only the institutional
\nleadership of constitutional courts, but also the responsive participation of the
\ncitizenry.377 Constitutional morality is a pursuit of this responsive participation.
\nThe Supreme Court cannot afford to denude itself of its leadership as an
\ninstitution in expounding constitutional values. Any loss of its authority will
\nimperil democracy itself.
\n145 The question of morality has been central to the concerns around
\nhomosexuality and the rights of LGBT individuals. Opponents \u2013 including
\nthose of the intervenors who launched a diatribe in the course of hearing \u2013
\nclaim that homosexuality is against popular culture and is thus unacceptable in
\nIndian society. While dealing with the constitutionality of Section 377 of the
\nIndian Penal Code, the Delhi High Court in Naz Foundation had held:
\n\u201cThus popular morality or public disapproval of certain acts is
\nnot a valid justification for restriction of the fundamental rights
\nunder Article 21. Popular morality, as distinct from a
\nconstitutional morality derived from constitutional values, is
\nbased on shifting and subjecting notions of right and wrong. If
\nthere is any type of \u201cmorality\u201d that can pass the test of
\ncompelling state interest, it must be \u201cconstitutional\u201d morality<\/p>\n

376
\nLord Neuberger, \u201cUK Supreme Court decisions on private and commercial law: The role of public policy and
\npublic interest\u201d, Centre for Commercial Law Studies Conference (2015).
\n377
\nMarc Galanter, \u201cFifty Years on\u201d, in BN Kirpal et al, Supreme but Not Infallible: Essays in Honour of the Supreme
\nCourt of India, Oxford University Press (2000), at page 57.
\nPART L
\n174
\nand not public morality\u2026 In our scheme of things,
\nconstitutional morality must outweigh the argument of public
\nmorality, even if it be the majoritarian view.\u201d
\nThe invocation of constitutional morality must be seen as an extension of Dr
\nAmbedkar\u2019s formulation of social reform and constitutional transformation.
\nHighlighting the significance of individual rights in social transformation, he
\nhad observed:
\n\u201cThe assertion by the individual of his own opinions and
\nbeliefs, his own independence and interest\u2014over and against
\ngroup standards, group authority, and group interests\u2014is the
\nbeginning of all reform. But whether the reform will continue
\ndepends upon what scope the group affords for such
\nindividual assertion.\u201d378
\nAfter the enactment of the Constitution, every individual assertion of rights is
\nto be governed by the principles of the Constitution, by its text and spirit. The
\nConstitution assures to every individual the right to lead a dignified life. It
\nprohibits discrimination within society. It is for this reason that constitutional
\nmorality requires this court to issue a declaration – which we now do – that
\nLGBT individuals are equal citizens of India, that they cannot be discriminated
\nagainst and that they have a right to express themselves through their
\nintimate choices. In upholding constitutional morality, we affirm that the
\nprotection of the rights of LGBT individuals are not only about guaranteeing a<\/p>\n

378 Supra note 373, at para 12.1.
\nPART L
\n175
\nminority their rightful place in the constitutional scheme, but that we equally
\nspeak of the vision of the kind of country we want to live in and of what it
\nmeans for the majority.379 The nine-judge Bench of this Court in Puttaswamy
\nhad held in clear terms that discrimination against an individual on the basis of
\nsexual orientation is deeply offensive to the dignity and self-worth of the
\nindividual. The Bench held:
\n\u201cThe purpose of elevating certain rights to the stature of
\nguaranteed fundamental rights is to insulate their exercise
\nfrom the disdain of majorities, whether legislative or popular.
\nThe guarantee of constitutional rights does not depend upon
\ntheir exercise being favourably regarded by majoritarian
\nopinion. The test of popular acceptance does not furnish a
\nvalid basis to disregard rights which are conferred with the
\nsanctity of constitutional protection. Discrete and insular
\nminorities face grave dangers of discrimination for the simple
\nreason that their views, beliefs or way of life does not accord
\nwith the \u2018mainstream\u2019. Yet in a democratic Constitution
\nfounded on the rule of law, their rights are as sacred as those
\nconferred on other citizens to protect their freedoms and
\nliberties.\u201d
\nConstitutional morality will impact upon any law which deprives the LGBT
\nindividuals of their entitlement to a full and equal citizenship. After the
\nConstitution came into force, no law can be divorced from constitutional
\nmorality. Society cannot dictate the expression of sexuality between
\nconsenting adults. That is a private affair. Constitutional morality will<\/p>\n

379 Supra note 41.
\nPART M
\n176
\nsupersede any culture or tradition.
\nThe interpretation of a right in a matter of decriminalisation and beyond must
\nbe determined by the norms of the Constitution.
\n146 LGBT individuals living under the threats of conformity grounded in
\ncultural morality have been denied a basic human existence. They have been
\nstereotyped and prejudiced. Constitutional morality requires this Court not to
\nturn a blind eye to their right to an equal participation of citizenship and an
\nequal enjoyment of living. Constitutional morality requires that this Court must
\nact as a counter majoritarian institution which discharges the responsibility of
\nprotecting constitutionally entrenched rights, regardless of what the majority
\nmay believe.380 Constitutional morality must turn into a habit of citizens. By
\nrespecting the dignity of LGBT individuals, this Court is only fulfilling the
\nfoundational promises of our Constitution.
\nM In summation : transformative constitutionalism
\n147 This case has required a decision on whether Section 377 of the Penal
\nCode fulfills constitutional standards in penalising consensual sexual conduct
\nbetween adults of the same sex. We hold and declare that in penalising such<\/p>\n

380 Ibid.
\nPART M
\n177
\nsexual conduct, the statutory provision violates the constitutional guarantees
\nof liberty and equality. It denudes members of the LGBT communities of their
\nconstitutional right to lead fulfilling lives. In its application to adults of the
\nsame sex engaged in consensual sexual behaviour, it violates the
\nconstitutional guarantee of the right to life and to the equal protection of law.
\n148 Sexual orientation is integral to the identity of the members of the LGBT
\ncommunities. It is intrinsic to their dignity, inseparable from their autonomy
\nand at the heart of their privacy. Section 377 is founded on moral notions
\nwhich are an anathema to a constitutional order in which liberty must trump
\nover stereotypes and prevail over the mainstreaming of culture. Our
\nConstitution, above all, is an essay in the acceptance of diversity. It is founded
\non a vision of an inclusive society which accommodates plural ways of life.
\n149 The impact of Section 377 has travelled far beyond criminalising certain
\nacts. The presence of the provision on the statute book has reinforced
\nstereotypes about sexual orientation. It has lent the authority of the state to
\nthe suppression of identities. The fear of persecution has led to the closeting
\nof same sex relationships. A penal provision has reinforced societal disdain.
\nPART M
\n178
\n150 Sexual and gender based minorities cannot live in fear, if the
\nConstitution has to have meaning for them on even terms. In its quest for
\nequality and the equal protection of the law, the Constitution guarantees to
\nthem an equal citizenship. In de-criminalising such conduct, the values of the
\nConstitution assure to the LGBT community the ability to lead a life of freedom
\nfrom fear and to find fulfilment in intimate choices.
\n151 The choice of a partner, the desire for personal intimacy and the
\nyearning to find love and fulfilment in human relationships have a universal
\nappeal, straddling age and time. In protecting consensual intimacies, the
\nConstitution adopts a simple principle: the state has no business to intrude
\ninto these personal matters. Nor can societal notions of heteronormativity
\nregulate constitutional liberties based on sexual orientation.
\n152 This reference to the Constitution Bench is about the validity of Section
\n377 in its application to consensual sexual conduct between adults of the
\nsame sex. The constitutional principles which we have invoked to determine
\nthe outcome address the origins of the rights claimed and the source of their
\nprotection. In their range and content, those principles address issues broader
\nthan the acts which the statute penalises. Resilient and universal as they are,
\nthese constitutional values must enure with a mark of permanence.
\nPART M
\n179
\n153 Above all, this case has had great deal to say on the dialogue about the
\ntransformative power of the Constitution. In addressing LGBT rights, the
\nConstitution speaks \u2013 as well \u2013 to the rest of society. In recognising the rights
\nof the LGBT community, the Constitution asserts itself as a text for
\ngovernance which promotes true equality. It does so by questioning prevailing
\nnotions about the dominance of sexes and genders. In its transformational
\nrole, the Constitution directs our attention to resolving the polarities of sex and
\nbinarities of gender. In dealing with these issues we confront much that
\npolarises our society. Our ability to survive as a free society will depend upon
\nwhether constitutional values can prevail over the impulses of the time.
\n154 A hundred and fifty eight years is too long a period for the LGBT
\ncommunity to suffer the indignities of denial. That it has taken sixty eight years
\neven after the advent of the Constitution is a sobering reminder of the
\nunfinished task which lies ahead. It is also a time to invoke the transformative
\npower of the Constitution.
\n155 The ability of a society to acknowledge the injustices which it has
\nperpetuated is a mark of its evolution. In the process of remedying wrongs
\nunder a regime of constitutional remedies, recrimination gives way to
\nrestitution, diatribes pave the way for dialogue and healing replaces the hate
\nPART M
\n180
\nof a community. For those who have been oppressed, justice under a regime
\ncommitted to human freedom, has the power to transform lives. In addressing
\nthe causes of oppression and injustice, society transforms itself. The
\nConstitution has within it the ability to produce a social catharsis. The
\nimportance of this case lies in telling us that reverberations of how we address
\nsocial conflict in our times will travel far beyond the narrow alleys in which
\nthey are explored.
\n156 We hold and declare that:
\n(i) Section 377 of the Penal Code, in so far as it criminalises consensual
\nsexual conduct between adults of the same sex, is unconstitutional;
\n(ii) Members of the LGBT community are entitled, as all other citizens, to
\nthe full range of constitutional rights including the liberties protected by
\nthe Constitution;
\n(iii) The choice of whom to partner, the ability to find fulfilment in sexual
\nintimacies and the right not to be subjected to discriminatory behaviour
\nare intrinsic to the constitutional protection of sexual orientation;
\n(iv) Members of the LGBT community are entitled to the benefit of an equal
\ncitizenship, without discrimination, and to the equal protection of law;
\nand
\nPART M
\n181
\n(v) The decision in Koushal stands overruled.
\nAcknowledgment
\nBefore concluding, I acknowledge the efforts of counsel for the petitioners and
\nintervenors who appeared in this case \u2013 Mr Mukul Rohatgi, Mr Arvind Datar,
\nMr Ashok Desai, Mr Anand Grover, Mr Shyam Divan, Mr CU Singh and Mr
\nKrishnan Venugopal, Senior Counsel; and Mr Saurabh Kirpal, Dr Menaka
\nGuruswamy and Ms Arundhati Katju, and Ms Jayna Kothari, learned Counsel.
\nTheir erudition has enabled us to absorb, as we reflected and wrote. Mr
\nTushar Mehta, learned Additional Solicitor General appeared for the Union of
\nIndia. We acknowledge the assistance rendered by the counsel for the
\nintervenors who opposed the petitioners.
\n\u2026\u2026…..\u2026………………………………………J
\n[Dr Dhananjaya Y Chandrachud]
\nNew Delhi;
\nSeptember 06, 2018.
\n1
\nREPORTABLE
\nIN THE SUPREME COURT OF INDIA
\nCRIMINAL ORIGINAL JURISDICTION
\nWRIT PETITION (CRL.) NO. 76 OF 2016
\nNavtej Singh Johar and Others \u2026Petitioners
\nVERSUS
\nUnion of India Ministry of Law
\nand Justice Secretary \u2026Respondent
\nWITH
\nW.P. (C) NO. 572\/2016
\nW.P. (CRL.) NO. 88\/2018
\nW.P. (CRL.) NO. 100\/2018
\nW.P. (CRL.) NO. 101\/2018
\nW.P. (CRL.) NO. 121\/2018
\nJ U D G E M E N T
\nINDU MALHOTRA, J.
\n1. I have had the advantage of reading the opinions prepared by
\nthe Hon\u2019ble Chief Justice, and my brother Judges Justice
\nNariman and Justice Chandrachud. The Judgments have dealt
\n2
\nin-depth with the various issues that are required to be
\nexamined by this Bench, to answer the reference.
\n2. The present batch of Writ Petitions have been filed to challenge
\nthe constitutional validity of Section 377 of the Indian Penal
\nCode, 1860 (\u201cIPC\u201d) on the specific ground that it criminalises
\nconsensual sexual intercourse between adult persons
\nbelonging to the same sex in private.
\n3. The issue as to whether the decision in Suresh Kumar Koushal
\nv. Naz Foundation & Ors.1 requires re-consideration was
\nreferred to the Constitution Bench vide Order dated 8th
\nJanuary, 2018.
\n4. The Petitioners have inter alia submitted that sexual
\nexpression and intimacy between consenting adults of the
\nsame sex in private ought to receive protection under Part III of
\nthe Constitution, as sexuality lies at the core of a human
\nbeing\u2019s innate identity. Section 377 inasmuch as it
\ncriminalises consensual relationships between same sex
\ncouples is violative of the fundamental rights guaranteed by
\nArticles 21, 19 and 14, in Part III of the Constitution.
\nThe principal contentions raised by the Petitioners during
\nthe course of hearing are:<\/p>\n

1 (2014) 1 SCC 1
\n3
\ni. Fundamental rights are available to LGBT persons
\nregardless of the fact that they constitute a minority.
\nii. Section 377 is violative of Article 14 being wholly
\narbitrary, vague, and has an unlawful objective.
\niii. Section 377 penalises a person on the basis of their
\nsexual orientation, and is hence discriminatory under
\nArticle 15.
\niv. Section 377 violates the right to life and liberty
\nguaranteed by Article 21 which encompasses all aspects
\nof the right to live with dignity, the right to privacy, and
\nthe right to autonomy and self-determination with respect
\nto the most intimate decisions of a human being.
\n5. During the course of hearing, the Union of India tendered an
\nAffidavit dated 11th July, 2018 wherein it was submitted that
\nwith respect to the Constitutional validity of Section 377
\ninsofar as it applies to consensual acts of adults in private, the
\nUnion of India would leave the said question to the wisdom of
\nthis Hon\u2019ble Court.
\nHowever, if the Court is to decide and examine any issue
\nother than the Constitutional validity of Section 377, or
\nconstrue any other right in favour of the LGBT community, the
\nUnion of India would like to file a detailed Affidavit as that
\n4
\nwould have far-reaching and wide ramifications, not
\ncontemplated by the reference.
\n6. LEGISLATIVE BACKGROUND
\n6.1. The legal treatises Fleta and Britton, which date back to
\n1290 and 1300 respectively, documented prevailing laws
\nin England at the time. These treatises made references
\nto sodomy as a crime.2
\n6.2. The Buggery Act, 1533 was re-enacted in 1563 during
\nthe regime of Queen Elizabeth I, which penalized acts of
\nsodomy by hanging.
\nIn 1861, death penalty for buggery was abolished in
\nEngland and Wales. However, it remained a crime \u201cnot to
\nbe mentioned by Christians\u201d.
\n6.3. The 1861 Act became the charter for enactments framed
\nin the colonies of Great Britain.
\n6.4. The Marginal Note of Section 377, refers to \u201cUnnatural
\nOffences\u201d. Section 377 reads as under:
\n\u201c377. Unnatural offences.\u2014 Whoever voluntarily has
\ncarnal intercourse against the order of nature with any
\nman, woman or animal, shall be punished with
\nimprisonment for life, or with imprisonment of either<\/p>\n

2 John Boswell, Christianity, Social Tolerance, and Homosexuality: Gay People in Western
\nEurope from the Beginning of the Christian Era to the Fourteenth Century, 292 (University
\nof Chicago Press, 1980).
\n5
\ndescription for a term which may extend to ten years,
\nand shall also be liable to fine.
\nExplanation.\u2014Penetration is sufficient to constitute the
\ncarnal intercourse necessary to the offence described in
\nthis section.\u201d
\n(emphasis supplied)
\n6.5. Section 377 does not define \u201ccarnal intercourse against
\nthe order of nature\u201d. Even though the provision is
\nfacially neutral, the Petitioners submit that the thrust of
\nthis provision has been to target the LGBT community in
\nlight of the colonial history of anti-sodomy laws, and
\npenalise what was perceived to be \u2018deviant\u2019 or \u2018perverse\u2019
\nsexual behaviour.
\n7. In the early 20th century, there were many psychiatric theories
\nwhich regarded homosexuality as a form of psychopathology or
\ndevelopmental arrest.3 It was believed that normal
\ndevelopment resulted in a child growing up to be a
\nheterosexual adult, and that homosexuality was but a state of
\narrested development.4 Homosexuality was treated as a
\ndisorder or mental illness, which was meted out with social
\nostracism and revulsion.<\/p>\n

3 Report of the Committee on Homosexual Offences and Prostitution, 1957, at para 30.
\n4 Benjamin J. Sadock et al., Kaplan and Sadock\u2019s Comprehensive Textbook of Psychiatry
\n(9th ed., 2009), at pp. 2060-89.
\n6
\n8. Towards the end of the 20th century, this notion began to
\nchange, and the earlier theories gave way to a more
\nenlightened perspective that characterized homosexuality as a
\nnormal and natural variant of human sexuality. Scientific
\nstudies indicated that human sexuality is complex and
\ninherent.<\/p>\n

Kurt Hiller in his speech delivered at the Second International Congress for Sexual Reform held at Copenhagen in 19286, stated:<\/p>\n

\u201cSame-sex love is not a mockery of nature, but rather nature at play\u2026As Nietzsche expressed it in Daybreak, Procreation is a frequently occurring accidental result of one way of satisfying the sexual drive \u2013 it is neither its goal nor its necessary consequence. The theory which would make procreation the goal of sexuality is exposed as hasty, simplistic and false by the phenomenon of same-sex love alone. Nature\u2019s laws, unlike the laws formulated by the human mind, cannot be violated. The assertion that a specific phenomenon of nature could somehow be \u201ccontrary to nature\u201d amounts to pure absurdity\u2026To belong, not to the rule, not to the norm, but rather to the exception, to the minority, to the variety, is neither a symptom of degeneration nor of pathology.\u201d (emphasis supplied)<\/p>\n

9. In 1957, the United Kingdom published the Wolfenden Committee Report (supra) which recognised how the antisodomy laws had created an atmosphere for blackmail, harassment and violence against homosexuals. An extract of the findings of this Committee reads as under: \u201cWe have found it hard to decide whether the blackmailer\u2019s primary weapon is the threat of disclosure to the police, with attendant legal consequences, or the threat of disclosure to the victim\u2019s relatives, employers or friends, with attendant social consequences. It may well be that the latter is the more effective weapon, but it may yet be true that it would lose much of its edge if the social consequences were not associated with the present legal position.\u201d<\/p>\n

Pursuant to this Report, the House of Lords initiated legislation to de-criminalise homosexual acts done in private by consenting parties. The Sexual Offences Act, 1967 came to be passed in England which de-criminalised homosexual acts done in private, provided the parties had consented to it, and were above the age of 21.<\/p>\n

10. The trend of decriminalizing anti-sodomy laws world over has gained currency during the past few decades since such laws have been recognised to be violative of human rights. In 2017, the International Lesbian, Gay, Bisexual, Trans and Intersex Association noted in its Annual State Sponsored Homophobia Report7 that 124 countries no longer penalise homosexuality. The change in laws in these countries was given effect to, either through legislative amendments to the statutory enactments, or by way of court judgments. Relationships between same-sex couples have been increasingly accorded protection by States across the world. As per the aforesaid Report, a total of 24 countries now allow same-sex couples to marry, while 28 countries legally recognise partnerships between same-sex couples. Several countries have enacted enabling legislations which protect LGBT persons from discrimination, and allow them to adopt children.8 For instance, the United Kingdom now outlaws discrimination in employment, education, social protection and housing on the ground of sexual orientation. Marriage between same-sex couples have been recognised in England and Wales.<\/p>\n

The British Prime Minister Theresa May in her speech at the Commonwealth Joint Forum on April 17, 2018 urged Commonwealth Nations to overhaul \u201coutdated\u201d anti-gay laws, and expressed regret regarding Britain\u2019s role in introducing such laws.9 The relevant excerpt of her speech is extracted hereinbelow:<\/p>\n

\u201c Across the world, discriminatory laws made many years ago continue to affect the lives of many people, criminalising same-sex relations and failing to protect women and girls.<\/p>\n

I am all too aware that these laws were often put in place by my own country. They were wrong then, and they are wrong now. As the UK\u2019s Prime Minister, I deeply regret both the fact that such laws were introduced, and the legacy of discrimination, violence and even death that persists today. \u201d<\/p>\n

11. Section 377 has, however, remained in its original form in the IPC to date.<\/p>\n

12. JUDICIAL INTERPRETATION<\/p>\n

12.1. The essential ingredient required to constitute an offence under Section 377 is \u201ccarnal intercourse against the order of nature\u201d, which is punishable with life imprisonment, or imprisonment of either description up to ten years. Section 377 applies irrespective of gender, age, or consent.<\/p>\n

12.2. The expression \u2018carnal intercourse\u2019 used in Section 377 is distinct from \u2018sexual intercourse\u2019 which appears in Sections 375 and 497 of the IPC. The phrase \u201ccarnal intercourse against the order of nature\u201d is not defined by Section 377, or in the Code.<\/p>\n

12.3. The term \u2018carnal\u2019 has been the subject matter of judicial interpretation in various decisions. According to the New International Webster\u2019s Comprehensive Dictionary of the English Language10, \u2018carnal\u2019 means:<\/p>\n

\u201c1.Pertaining to the fleshly nature or to bodily appetites.<\/p>\n

2. Sensual ; sexual.<\/p>\n

3.Pertaining to the flesh or to the body; not spiritual; hence worldly.\u201d<\/p>\n

12.4. The courts had earlier interpreted the term \u201ccarnal\u201d to refer to acts which fall outside penile-vaginal intercourse, and were not for the purposes of procreation.<\/p>\n

In Khanu v. Emperor11, the Sindh High Court was dealing with a case where the accused was found guilty of having committed Gomorrah coitus per os with a little child, and was convicted under Section 377. The Court held that the act of carnal intercourse was clearly against the order of nature, because the natural object of carnal intercourse is that there should be the possibility of conception of human beings, which in the case of coitus per os is impossible.<\/p>\n

The Lahore High Court in Khandu v. Emperor12 was dealing with a case wherein the accused had penetrated the nostril of a bullock with his penis. The Court, while relying on the decision of the Sindh High Court in Khanu v. Emperor (supra) held that the acts of the accused constituted coitus per os, were punishable under Section 377.<\/p>\n

In Lohana Vasantlal Devchand & Ors v. State13 the Gujarat High Court convicted two accused under Section 377 read with Section 511 of the IPC, on account of having carnal intercourse per anus, and inserting the penis in the mouth of a young boy. It was held that: \u201c\u2026words used (in Section 377) are quite comprehensive and in my opinion, an act like the present act (oral sex), which was an imitative act of sexual intercourse for the purpose of his satisfying the sexual appetite, would be an act punishable under Section 377 of the Indian Penal Code.\u201d<\/p>\n

Later this Court in Fazal Rab Choudhary v. State of Bihar14 while reducing the sentence of the appellant who was convicted for having committed an offence on a young boy under Section 377 IPC, held that: \u201c\u2026The offence is one under Section 377 I.P.C., which implies sexual perversity. No force appears to have been used. Neither the notions of permissive society nor the fact that in some countries homosexuality has ceased to be an offence has influenced our thinking.\u201d (emphasis supplied)<\/p>\n

The test for attracting penal provisions under Section 377 changed over the years from non-procreative sexual acts in Khanu v. Emperor (supra), to imitative sexual intercourse like oral sex in Lohana Vasantlal Devchand v. State (supra), to sexual perversity in Fazal Rab v. State of Bihar (supra). These cases referred to nonconsensual sexual intercourse by coercion.<\/p>\n

13. HOMOSEXUALITY \u2013 NOT AN ABERRATION BUT A VARIATION OF SEXUALITY<\/p>\n

13.1. Whilst a great deal of scientific research has examined possible genetic, hormonal, developmental, psychological, social and cultural influences on sexual orientation, no findings have conclusively linked sexual orientation to any one particular factor or factors. It is believed that one\u2019s sexuality is the result of a complex interplay between nature and nurture.<\/p>\n

Sexual orientation is an innate attribute of one\u2019s identity, and cannot be altered. Sexual orientation is not a matter of choice. It manifests in early adolescence. Homosexuality is a natural variant of human sexuality. The U.S. Supreme Court in Lawrence v. Texas15 relied upon the Brief of the Amici Curiae16 which stated: \u201cHeterosexual and homosexual behavior are both normal aspects of human sexuality. Both have been documented in many different human cultures and historical eras, and in a wide variety of animal species. There is no consensus among scientists about the exact reasons why an individual develops a heterosexual, bisexual, or homosexual orientation. According to current scientific and professional understanding, however, the core feelings and attractions that form the basis for adult sexual orientation typically emerge between middle childhood and early adolescence. Moreover, these patterns of sexual attraction generally arise without any prior sexual experience. Most or many gay men and lesbians experience little or no choice about their sexual orientation.\u201d (emphasis supplied)<\/p>\n

16 Brief for the Amici Curiae American Psychological Association, American Psychiatric Association, National Association of Social Workers, and Texas Chapter of the National Association of Social Workers in Lawrence v. Texas 539 U.S. 558(2003), available at http:\/\/www.apa.org\/about\/offices\/ogc\/amicus\/lawrence.pdf.<\/p>\n

13.2. An article by K.K. Gulia and H.N. Mallick titled \u201cHomosexuality: A Dilemma in Discourse\u201d17 states: \u201cIn general, homosexuality as a sexual orientation refers to an enduring pattern or disposition to experience sexual, affectional, or romantic attractions primarily to people of the same sex. It also refers to an individual\u2019s sense of personal and social identity based on those attractions, behaviours, expressing them, and membership in a community of others who share them. It is a condition in which one is attracted and drawn to his\/her own gender, which is evidenced by the erotic and emotional involvement with members of his\/her own sex\u2026 \u2026In the course of the 20th century, homosexuality became a subject of considerable study and debate in western societies. It was predominantly viewed as a disorder or mental illness. At that time, emerged two major pioneering studies on homosexuality carried out by Alfred Charles Kinsey (1930) and Evelyn Hooker (1957)\u2026This empirical study of sexual behavior among American adults revealed that a significant number of participants were homosexuals. In this study when people were asked directly if they had engaged in homosexual relations, the percentage of positive responses nearly doubled. The result of this study became the widely popularized Kinsey Scale of Sexuality. This scales rates all individuals on a spectrum of sexuality, ranging from 100% heterosexual to 100% homosexual\u2026\u201d (emphasis supplied)<\/p>\n

13.3. The American Psychiatric Association in December 1973 removed \u2018homosexuality\u2019 from the Diagnostic and<\/p>\n

17 KK Gulia and HN Mallick, Homosexuality: a dilemma in discourse, 54 Indian Journal of Physiology and Pharmacology (2010), at pp. 5, 6 and 8. Statistical Manual of Psychological Disorders, and opined that the manifestation of sexual attraction towards persons of the opposite sex, or same sex, is a natural condition.<\/p>\n

13.4. The World Health Organization removed homosexuality from the list of diseases in the International Classification of Diseases in the publication of ICD-10 in 1992.19<\/p>\n

13.5. In India, the Indian Psychiatric Society has also opined that sexual orientation is not a psychiatric disorder. It was noted that:<\/p>\n

\u201c\u2026there is no scientific evidence that sexual orientation can be altered by any treatment and that any such attempts may in fact lead to low self-esteem and stigmatization of the person.\u201d<\/p>\n

13.6. It is relevant to note that under Section 3 of the Mental Healthcare Act, 2017, determination of what constitutes a \u201cmental illness\u201d has to be done in accordance with nationally and internationally accepted medical<\/p>\n

18 Jack Drescher, Out of DSM: Depathologizing Homosexuality, 5(4) Behavioral Sciences (2015), at p. 565. 19 The ICD-10 classification of mental and behavioural disorders: clinical descriptions and diagnostic guidelines, World Health Organization, Geneva, 1992 available at http:\/\/www.who.int\/classifications\/icd\/en\/bluebook.pdf. 20Indian Psychiatry Society: “Position statement on Homosexuality”, IPS\/Statement\/02\/07\/2018 available at _1.pdf.<\/p>\n

standards, including the latest edition of the International Classification of Disease of the World Health Organisation.<\/p>\n

14. SECTION 377 IF APPLIED TO CONSENTING ADULTS IS VIOLATIVE OF ARTICLE 14<\/p>\n

14.1. One of the main contentions raised by the Petitioners to challenge the Constitutional validity of Section 377 is founded on Article 14 of the Constitution. Article 14 enshrines the principle of equality as a fundamental right, and mandates that the State shall not deny to any person equality before the law, or the equal protection of the laws within the territory of India. It recognizes and guarantees the right of equal treatment to all persons in this country.<\/p>\n

It is contended that Section 377 discriminates against adults of the same gender, from having a consensual sexual relationship in private, by treating it as a penal offence, and hence is violative of Article 14.<\/p>\n

14.2. The twin-test of classification under Article 14 provides that:<\/p>\n

(i) there should be a reasonable classification based on intelligible differentia; and,<\/p>\n

(ii) this classification should have a rational nexus with the objective sought to be achieved.<\/p>\n

14.3. Section 377 operates in a vastly different manner for two classes of persons based on their \u201csexual orientation\u201d i.e. the LGBT persons and heterosexual persons. Section 377 penalises all forms of non penile-vaginal intercourse. In effect, voluntary consensual relationships between LGBT persons are criminalised in totality.<\/p>\n

The import and effect of Section 377 is that while a consensual heterosexual relationship is permissible, a consensual relationship between LGBT persons is considered to be \u2018carnal\u2019, and against the order of nature. Section 377 creates an artificial dichotomy. The natural or innate sexual orientation of a person cannot be a ground for discrimination. Where a legislation discriminates on the basis of an intrinsic and core trait of an individual, it cannot form a reasonable classification based on an intelligible differentia. 14.4. In National Legal Services Authority v. Union of India and Ors.21 this Court granted equal protection of laws to transgender persons. There is therefore no justification to deny the same to LGBT persons.<\/p>\n

14.5. A person\u2019s sexual orientation is intrinsic to their being. It is connected with their individuality, and identity. A classification which discriminates between persons based on their innate nature, would be violative of their fundamental rights, and cannot withstand the test of constitutional morality.<\/p>\n

14.6. In contemporary civilised jurisprudence, with States increasingly recognising the status of same-sex relationships, it would be retrograde to describe such relationships as being \u2018perverse\u2019, \u2018deviant\u2019, or \u2018unnatural\u2019.<\/p>\n

14.7. Section 375 defines the offence of rape. It provides for penetrative acts which if performed by a man against a woman without her consent, or by obtaining her consent under duress, would amount to rape. Penetrative acts (after the 2013 Amendment) include anal and oral sex. The necessary implication which can be drawn from the amended provision is that if such penetrative acts are done with the consent of the woman they are not punishable under Section 375.<\/p>\n

While Section 375 permits consensual penetrative acts (the definition of \u2018penetration\u2019 includes oral and anal sex), Section 377 makes the same acts of penetration punishable irrespective of consent. This creates a dichotomy in the law.<\/p>\n

14.8. The proscription of a consensual sexual relationship under Section 377 is not founded on any known or rational criteria. Sexual expression and intimacy of a consensual nature, between adults in private, cannot be treated as \u201ccarnal intercourse against the order of nature\u201d.<\/p>\n

14.9. Emphasising on the second part of Article 14 which enjoins the State 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 as a facet of Article 14. Apart from the conventional twin-tests of classification discussed in the preceding paragraphs, a legislation, or part thereof, can also be struck down under Article 14 on the ground that it is manifestly arbitrary. It would be instructive to refer to the following passage from the judgment of this Court in Shayara Bano v. Union of India & Ors. (supra):<\/p>\n

\u201c101\u2026Manifest 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.\u201d Section 377 insofar as it criminalises consensual sexual acts between adults in private, is not based on any sound or rational principle, since the basis of criminalisation is the \u201csexual orientation\u201d of a person, over which one has \u201clittle or no choice\u201d. Further, the phrase \u201ccarnal intercourse against the order of nature\u201d in Section 377 as a determining principle in a penal provision, is too open-ended, giving way to the scope for misuse against members of the LGBT community.<\/p>\n

Thus, apart from not satisfying the twin-test under Article 14, Section 377 is also manifestly arbitrary, and hence violative of Article 14 of the Constitution.<\/p>\n

15. SECTION 377 IS VIOLATIVE OF ARTICLE 15 Article 15 prohibits the State from discrimination against any citizen on the grounds of religion, race, caste, sex, or place of birth. The object of this provision was to guarantee protection to those citizens who had suffered historical disadvantage, whether it be of a political, social, or economic nature.<\/p>\n

15.1. The term \u2018sex\u2019, as it occurs in Article 15 has been given an expansive interpretation by this Court in National Legal Services Authority v. Union of India (referred to as the NALSA judgment) to include sexual identity. Paragraph 66 of the judgment reads thus: \u201c66\u2026Both gender and biological attributes constitute distinct components of sex. The biological characteristics, of course, include genitals, chromosomes and secondary sexual features, but gender attributes includes one\u2019s self-image, the deep psychological or emotional sense of sexual identity and character. The discrimination on the ground of sex under Article 15 and 16, therefore includes discrimination on the ground of gender identity. The expression sex used in Articles 15 and 16 is not just limited to biological sex of male and female, but intended to include people who consider themselves neither male nor female.\u201d<\/p>\n

(emphasis supplied and internal quotations omitted) Sex as it occurs in Article 15, is not merely restricted to the biological attributes of an individual, but also includes their \u201csexual identity and character\u201d.<\/p>\n

The J.S. Verma Committee23 had recommended that \u2018sex\u2019 under Article 15 must include \u2018sexual orientation\u2019: \u201c65. We must also recognize that our society has the need to recognize different sexual orientations a human reality. In addition to homosexuality, bisexuality, and lesbianism, there also exists the transgender community. In view of the lack of scientific understanding of the different variations of orientation, even advanced societies have had to first declassify \u2018homosexuality\u2019 from being a mental disorder and now it is understood as a triangular development occasioned by evolution, partial conditioning and neurological underpinnings owing to genetic reasons. Further, we are clear that Article 15\u00a9 of the constitution of 52 India uses the word \u201csex\u201d as including sexual orientation.\u201d<\/p>\n

The prohibition against discrimination under Article 15 on the ground of \u2018sex\u2019 should therefore encompass instances where such discrimination takes place on the basis of one\u2019s sexual orientation. In this regard, the view taken by the Human Rights Committee of the United Nations in Nicholas Toonen v. Australia24 is relevant to cite, wherein the Committee noted that the reference to \u2018sex\u2019 in Article 2, Paragraph 1 and Article 26 of the International Covenant on Civil and Political Rights would include \u2018sexual orientation\u2019.<\/p>\n

15.2. In an article titled \u201cReading Swaraj into Article 15: A New Deal For All Minorities\u201d<\/p>\n

25, Tarunabh Khaitan notes that the underlying commonality between the grounds specified in Article 15 is based on the ideas of \u2018immutable status\u2019 and \u2018fundamental choice\u2019. He refers to the following quote by John Gardener to provide context to the aforesaid commonality: \u201cDiscrimination on the basis of our immutable status tends to deny us [an autonomous] life. Its result is that our further choices are constrained not mainly by our own choices, but by the choices of others. Because these choices of others are based on our immutable status, our own choices can make no difference to them. …. And discrimination on the ground of fundamental choices can be wrongful by the same token. To lead an autonomous life we need an adequate range of valuable options throughout that life…. there are some particular valuable options that each of us should have irrespective of our other choices. Where a particular choice is a choice between valuable options which ought to be available to people whatever else they may choose, it is a fundamental choice. Where there is discrimination against people based on their fundamental choices it tends to skew those choices by making one or more of the valuable options from which they must choose more painful or burdensome than others.\u201d (emphasis supplied)<\/p>\n

Race, caste, sex, and place of birth are aspects over which a person has no control, ergo they are immutable. On the other hand, religion is a fundamental choice of a person.27 Discrimination based on any of these grounds would undermine an individual\u2019s personal autonomy. The Supreme Court of Canada in its decisions in the cases of Egan v. Canada28, and Vriend v. Alberta29, interpreted Section 15(1)30 of the Canadian Charter of Rights and Freedoms which is pari materia to Article 15 of the Indian Constitution.<\/p>\n

Section 15(1), of the Canadian Charter like Article 15 of our Constitution, does not include \u201csexual orientation\u201d as a prohibited ground of discrimination. Notwithstanding that, the Canadian Supreme Court in the aforesaid decisions has held that sexual orientation is a \u201cground analogous\u201d to the other grounds specified under Section 15(1). Discrimination based on any of these grounds has adverse impact on an individual\u2019s<\/p>\n

30 \u201c15. 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 equal protection 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\u2026\u201d<\/p>\n

Article 15(1), Canadian Charter of Rights and Freedoms. personal autonomy, and is undermining of his personality.<\/p>\n

A similar conclusion can be reached in the Indian context as well in light of the underlying aspects of immutability and fundamental choice. The LGBT community is a sexual minority which has suffered from unjustified and unwarranted hostile discrimination, and is equally entitled to the protection afforded by Article 15.<\/p>\n

16. SECTION 377 VIOLATES THE RIGHT TO LIFE AND LIBERTY GUARANTEED BY ARTICLE 21<\/p>\n

Article 21 provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Such procedure established by law must be fair, just and reasonable.31 The right to life and liberty affords protection to every citizen or non-citizen, irrespective of their identity or orientation, without discrimination.<\/p>\n

16.1. RIGHT TO LIVE WITH DIGNITY<\/p>\n

This Court has expansively interpreted the terms \u201clife\u201d and \u201cpersonal liberty\u201d to recognise a panoply of rights under Article 21 of the Constitution, so as to comprehend the true scope and contours of the right to life under Article 21. Article 21 is \u201cthe most precious human right and forms the ark of all other rights\u201d as held in Francis Coralie Mullin v. Administrator, Union Territory of Delhi and Ors.,32 wherein it was noted that the right to life could not be restricted to a mere animal existence, and provided for much more than only physical survival.33 Bhagwati J. observed as under: \u201c8\u2026We think that the right to life includes the right to live with human dignity and all that goes along with it, namely the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings\u2026it must in any view of the matter, include the right to the basic necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human-self. Every act which offends against or impairs human dignity would constitute deprivation pro tanto of this right to live and it would have to be in accordance with reasonable, fair and just procedure established by law which stands the test of other fundamental rights.\u201d (emphasis supplied)<\/p>\n

This was re-affirmed by the Constitution bench decision in K.S. Puttaswamy and Anr. v. Union of India and Ors.34 and Common Cause (A Registered Society) v. Union of India and Anr.<\/p>\n

Although dignity is an amorphous concept which is incapable of being defined, it is a core intrinsic value of every human being. Dignity is considered essential for a meaningful existence.36<\/p>\n

In National Legal Services Authority v. Union of India and Ors. (supra), this Court recognised the right of transgender persons to decide their self-identified gender. In the context of the legal rights of transgender persons, this Court held that sexual orientation and gender identity is an integral part of their personality. The relevant excerpt from Radhakrishnan, J.\u2019s view is extracted hereinbelow:<\/p>\n

\u201c22. \u2026Each person\u2019s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom\u2026\u201d (Emphasis supplied)<\/p>\n

Sexual orientation is innate to a human being. It is an important attribute of one\u2019s personality and identity. Homosexuality and bisexuality are natural variants of human sexuality. LGBT persons have little or no choice over their sexual orientation. LGBT persons, like other heterosexual persons, are entitled to their privacy, and the right to lead a dignified existence, without fear of persecution. They are entitled to complete autonomy over the most intimate decisions relating to their personal life, including the choice of their partners. Such choices must be protected under Article 21. The right to life and liberty would encompass the right to sexual autonomy, and freedom of expression.<\/p>\n

The following excerpt from the decision of the Constitutional Court of South Africa in National Coalition for Gay and Lesbian Equality and Anr. v. Minister of Justice and Ors.<\/p>\n

37 is also instructive in this regard: \u201cWhile recognising the unique worth of each person, the Constitution does not presuppose that a holder of rights is an isolated, lonely and abstract figure possessing a disembodied and socially disconnected self. It acknowledges that people live in their bodies, their communities, their cultures, their places and their times. The expression of sexuality requires a partner, real or imagined. It is not for the state to choose or arrange the choice of partner, but for the partners to choose themselves.\u201d (emphasis supplied)<\/p>\n

Section 377 insofar as it curtails the personal liberty of LGBT persons to engage in voluntary consensual sexual relationships with a partner of their choice, in a safe and dignified environment, is violative of Article 21. It inhibits them from entering and nurturing enduring relationships. As a result, LGBT individuals are forced to either lead a life of solitary existence without a companion, or lead a closeted life as \u201cunapprehended felons\u201d.<\/p>\n

Section 377 criminalises the entire class of LGBT persons since sexual intercourse between such persons, is considered to be carnal and \u201cagainst the order of nature\u201d. Section 377 prohibits LGBT persons from engaging in intimate sexual relations in private.<\/p>\n

38 According to Professor Edwin Cameron, LGBT persons are reduced to the status of \u201cunapprehended felons\u201d owing to the ever-so-present threat of prosecution. Edwin Cameron, Sexual Orientation and the Constitution: A Test Case for Human Rights, 110 South African Law Journal (1993), at page 450.<\/p>\n

The social ostracism against LGBT persons prevents them from partaking in all activities as full citizens, and in turn impedes them from realising their fullest potential as human beings.<\/p>\n

On the issue of criminalisation of homosexuality, the dissenting opinion of Blackmun J. of the U.S. Supreme Court in Bowers v. Hardwick39 is instructive, which cites a previous decision in Paris Adult Theatre I v. Slaton40 and noted as follows:<\/p>\n

\u201cOnly the most wilful blindness could obscure the fact that sexual intimacy is a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality.\u201d41 (emphasis supplied)<\/p>\n

The U.S. Supreme Court over-ruled Bowers v. Hardwick (supra) in Lawrence et al. v. Texas. (supra) and declared that a statute proscribing homosexuals from engaging in intimate sexual conduct as invalid on the ground that it violated the right to privacy, and dignity of homosexual persons. Kennedy, J. in his majority opinion observed as under:<\/p>\n

\u201cTo say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse\u2026 \u2026It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice\u2026This stigma this criminal statute imposes, moreover, is not trivial. The offence, to be sure, is but a class C misdemeanour, a minor offence in the Texas legal system. Still, it remains a criminal offence with all that imports for the dignity of the persons charged. The petitioners will bear on their record the history of criminal convictions… \u2026The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexuals persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engage in sexual practices, common to a homosexual lifestyle. The Petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. The right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter. Casey, supra at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.\u201d (emphasis supplied)<\/p>\n

Thus, Section 377 prevents LGBT persons from leading a dignified life as guaranteed by Article 21. 16.2. RIGHT TO PRIVACY<\/p>\n

The right to privacy has now been recognised to be an intrinsic part of the right to life and personal liberty under Article 21.<\/p>\n

Sexual orientation is an innate part of the identity of LGBT persons. Sexual orientation of a person is an essential attribute of privacy. Its protection lies at the core of Fundamental Rights guaranteed by Articles 14, 15, and 21.43<\/p>\n

The right to privacy is broad-based and pervasive under our Constitutional scheme, and encompasses decisional autonomy, to cover intimate\/personal decisions and preserves the sanctity of the private sphere of an individual.<\/p>\n

The right to privacy is not simply the \u201cright to be let alone\u201d, and has travelled far beyond that initial concept. It now incorporates the ideas of spatial privacy, and decisional privacy or privacy of choice.45 It extends to the right to make fundamental personal choices, including those relating to intimate sexual conduct, without unwarranted State interference.<\/p>\n

Section 377 affects the private sphere of the lives of LGBT persons. It takes away the decisional autonomy of LGBT persons to make choices consistent with their sexual orientation, which would further a dignified existence and a meaningful life as a full person. Section 377 prohibits LGBT persons from expressing their sexual orientation and engaging in sexual conduct in private, a decision which inheres in the most intimate spaces of one\u2019s existence.<\/p>\n

The Constitutional Court of South Africa in National Coalition for Gay and Lesbian Equality and Anr. v. Minister of Justice and Ors. (supra) noted as under:<\/p>\n

\u201cPrivacy recognises that we all have a right to a sphere of private intimacy and autonomy which allows us to establish and nurture human relationships without interference from the outside community. The way in which we give expression to our sexuality is at the core of this area of private intimacy. If, in expressing our sexuality, we act consensually and without harming one another, invasion of that precinct will be a breach of our privacy.\u201d<\/p>\n

Just like other fundamental rights, the right to privacy is not an absolute right and is subject to reasonable restrictions. Any restriction on the right to privacy must adhere to the requirements of legality, existence of a legitimate state interest, and proportionality.46 A subjective notion of public or societal morality which discriminates against LGBT persons, and subjects them to criminal sanction, simply on the basis of an innate characteristic runs counter to the concept of Constitutional morality, and cannot form the basis of a legitimate State interest.<\/p>\n

The theme of inclusiveness permeates through Part III of the Constitution. Apart from the equality code of the Constitution comprised in Articles 14, 15(1), 16, and other provisions in the form of Article 17 (Abolition of Untouchability), Article 21A (Right to Education), Article 25 (Freedom of Conscience and Free Profession, Practice and Propagation of Religion), Article 26 (Freedom to Manage Religious Affairs), Article 29 (Protection of Interest of Minorities), Article 30 (Right of Minorities to Establish and Administer Educational Institutions) are aimed at creating an inclusive society where rights are guaranteed to all, regardless of their status as a minority.<\/p>\n

16.3. RIGHT TO HEALTH<\/p>\n

The right to health, and access to healthcare are also crucial facets of the right to life guaranteed under Article 21 of the Constitution. LGBT persons being a sexual minority have been subjected to societal prejudice, discrimination and<\/p>\n

47 Common Cause (A Registered Society) v. Union of India & Anr., (2018) 5 SCC 1, at paragraph 304; C.E.S.C. Limited and Ors. v. Subhash Chandra Bose and 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 Litigation v. Union of India & Ors., (2013) 16 SCC 279, at paragraph 25. violence on account of their sexual orientation. Since Section 377 criminalises \u201ccarnal intercourse against the order of nature\u201d it compels LGBT persons to lead closeted lives. As a consequence, LGBT persons are seriously disadvantaged and prejudiced when it comes to access to health-care facilities. This results in serious health issues, including depression and suicidal tendencies amongst members of this community.<\/p>\n

LGBT persons, and more specifically the MSM, and transgender persons are at a higher risk of contracting HIV as they lack safe spaces to engage in safe-sex practices. They are inhibited from seeking medical help for testing, treatment and supportive care on account of the threat of being \u2018exposed\u2019 and the resultant prosecution.49 Higher rates of prevalence of HIV-AIDS in MSM, who are in turn married to other people of the opposite sex, coupled with the difficulty in detection and<\/p>\n

48 M.V. Lee Badgett, The Economic Cost of Stigma and the Exclusion of LGBT People: A Case Study of India, World Bank Group (2014) available at http:\/\/documents.worldbank.org\/curated\/en\/527261468035379692\/The-economiccost-of-stigma-and-the-exclusion-of-LGBT-people-a-case-study-of-India (Last accessed on August 11, 2018).<\/p>\n

49 Govindasamy Agoramoorthy and Minna J Hsu, India\u2019s homosexual discrimination and health consequences, 41(4) Rev Saude Publica (2007), at pages 567-660 available at http:\/\/www.scielo.br\/pdf\/rsp\/v41n4\/6380.pdf (Last accessed on August 4, 2018). treatment, makes them highly susceptible to contraction and further transmission of the virus. It is instructive to refer to the findings of the Human Rights Committee of the United Nations in Nicholas Toonen v. Australia (supra):<\/p>\n

\u201c8.5 As far as the public health argument of the Tasmanian authorities is concerned, the Committee notes that the criminalization of homosexual practices cannot be considered a reasonable means or proportionate measure to achieve the aim of preventing the spread of AIDS\/HIV. The Australian Government observes that statutes criminalizing homosexual activity tend to impede public health programmes by driving underground many of the people at the risk of infection. Criminalization of homosexual activity thus would appear to run counter to the implementation of effective education programmes in respect of the HIV\/AIDS prevention. Secondly, the Committee notes that no link has been shown between the continued criminalization of homosexual activity and the effective control of the spread of the HIV\/AIDS virus.\u201d<\/p>\n

(emphasis supplied and internal footnotes omitted) The American Psychological Association, American Psychiatric Association, National Association of Social Workers and the Texas Chapter of the National Association of Social Workers in their Amicus Brief in Lawrence, et al. v. Texas (supra) stated as follows:<\/p>\n

\u201cIII. Texas Penal Code S. 21.06 reinforces prejudice, discrimination, and violence against gay men and lesbians\u2026Although many gay men and lesbians learn to cope with the social stigma against homosexuality, this pattern of prejudice can cause gay people serious psychological distress, especially if they attempt to conceal or deny their sexual orientation\u2026.\u201d (emphasis supplied)<\/p>\n

It is pertinent to mention that in India the Mental Healthcare Act, 2017 came into force on July 7, 2018. Sections 18(1) and (2) read with 21(1)(a) of the Mental Healthcare Act, 2017 provide for the right to access mental healthcare and equal treatment of people with physical and mental illnesses without discrimination, inter alia, on the basis of \u201csexual orientation\u201d.<\/p>\n

This gives rise to a paradoxical situation since Section 377 criminalises LGBT persons, which inhibits them from accessing health-care facilities, while the Mental Healthcare Act, 2017 provides a right to access mental healthcare without discrimination, even on the ground of \u2018sexual orientation\u2019.<\/p>\n

17. SECTION 377 VIOLATES THE RIGHT TO FREEDOM OF EXPRESSION OF LGBT PERSONS<\/p>\n

17.1. Article 19(1)(a) guarantees freedom of expression to all citizens. However, reasonable restrictions can be imposed on the exercise of this right on the grounds specified in Article 19(2). LGBT persons express their sexual orientation in myriad ways. One such way is engagement in intimate sexual acts like those proscribed under Section 377.51 Owing to the fear of harassment from law enforcement agencies and prosecution, LGBT persons tend to stay \u2018in the closet\u2019. They are forced not to disclose a central aspect of their personal identity i.e. their sexual orientation, both in their personal and professional spheres to avoid persecution in society and the opprobrium attached to homosexuality. Unlike heterosexual persons, they are inhibited from openly forming and nurturing fulfilling relationships, thereby restricting rights of full personhood and a dignified existence. It also has an impact on their mental wellbeing.<\/p>\n

17.2. In National Legal Services Authority v. Union of India and Ors. (supra), this Court noted that gender identity is an important aspect of personal identity and is inherent to a person. It was held that transgender persons have the right to express their self-identified gender by way of speech, mannerism, behaviour, presentation and clothing, etc.<\/p>\n

The Court also noted that like gender identity, sexual orientation is integral to one\u2019s personality, and is a basic aspect of self-determination, dignity and freedom.53 The proposition that sexual orientation is integral to one\u2019s personality and identity was affirmed by the Constitution Bench in K.S. Puttaswamy & Anr. v. Union of India & Ors.<\/p>\n

In this regard, it is instructive to refer to the decision of this Court in S. Khushboo v. Kanniammal and Another55 wherein the following observation was made in the context of the phrase \u201cdecency and morality\u201d as it occurs in Article 19(2):<\/p>\n

\u201c45. Even though the constitutional freedom of speech and expression is not absolute and can be subjected to reasonable restrictions on grounds such as \u201cdecency and morality\u201d among others, we must lay stress on the need to tolerate unpopular views in the sociocultural space. The Framers of our Constitution recognised the importance of safeguarding this right since the free flow of opinions and ideas is essential to sustain the collective life of the citizenry. While an informed citizenry is a precondition for meaningful governance in the political sense, we must also promote a culture of open dialogue when it comes to societal attitudes. 46\u2026Notions of social morality are inherently subjective and the criminal law cannot be used as a means to unduly interfere with the domain of personal autonomy. Morality and criminality are not coextensive.\u201d (emphasis supplied)<\/p>\n

Therefore, Section 377 cannot be justified as a reasonable restriction under Article 19(2) on the basis of public or societal morality, since it is inherently subjective.<\/p>\n

18. SURESH KUMAR KOUSHAL OVERRULED The two-Judge bench of this Court in Suresh Kumar Koushal and Another v. Naz Foundation and Others (supra) over-ruled the decision of the Delhi High Court in Naz Foundation v. Government of NCT of Delhi and Ors. (supra) which had declared Section 377 insofar as it criminalised consensual sexual acts of adults in private to be violative of Articles 14, 15 and 21 of the Constitution. The grounds on which the two-judge bench of this Court over-ruled the judgment in Naz Foundation was that:<\/p>\n

i. Section 377 does not criminalise particular people or identity or orientation. It merely identifies certain acts which if committed would constitute an offence. Such a prohibition regulates sexual conduct, regardless of gender identity and orientation.<\/p>\n

Those who indulge in carnal intercourse in the ordinary course, and those who indulge in carnal intercourse against the order of nature, constitute different classes. Persons falling in the latter category cannot claim that Section 377 suffers from the vice of arbitrariness and irrational classification. Section 377 merely defines a particular offence, and prescribes a punishment for the same.<\/p>\n

ii. LGBT persons constitute a \u201cminiscule fraction\u201d of the country\u2019s population, and there have been very few prosecutions under this Section. Hence, it could not have been made a sound basis for declaring Section 377 to be ultra-vires Articles 14, 15, and 21.<\/p>\n

iii. It was held that merely because Section 377, IPC has been used to perpetrate harassment, blackmail and torture to persons belonging to the LGBT community, cannot be a ground for challenging the vires of the Section.<\/p>\n

iv. After noting that Section 377 was intra vires, this Court observed that the legislature was free to repeal or amend Section 377.<\/p>\n

19. The fallacy in the Judgment of Suresh Kumar Koushal (supra) is that:<\/p>\n

i. The offence of \u201ccarnal intercourse against the order of nature\u201d has not been defined in Section 377. It is too wide, and open-ended, and would take within its sweep, and criminalise even sexual acts of consenting adults in private.<\/p>\n

In this context, it would be instructive to refer to the decision of a Constitution Bench of this Court in A.K. Roy v. Union of India56 wherein it was held that:<\/p>\n

\u201c 62. The requirement that crimes must be defined with appropriate definiteness is regarded as a fundamental concept in criminal law and must now be regarded as a pervading theme of our Constitution since the decision in Maneka Gandhi. The underlying principle is that every person is entitled to be informed as to what the State commands or forbids and that the life and liberty of a person cannot be put in peril on an ambiguity. However, even in the domain of criminal law, the processes of which can result in the taking away of life itself, no more than a reasonable degree of certainty has to be accepted as a fact. Neither the criminal law nor the Constitution requires the application of impossible standards and therefore, what is expected is that the language of the law must contain an adequate warning of the conduct which may fall within the proscribed area, when measured by common understanding\u2026.\u201d (emphasis supplied)<\/p>\n

The Judgment does not advert to the distinction between consenting adults engaging in sexual intercourse, and sexual acts which are without the will, or consent of the other party. A distinction has to be made between consensual relationships of adults in private, whether they are heterosexual or homosexual in nature.<\/p>\n

Furthermore, consensual relationships between adults cannot be classified along with offences of bestiality, sodomy and nonconsensual relationships.<\/p>\n

Sexual orientation is immutable, since it is an innate feature of one\u2019s identity, and cannot be changed at will. The choice of LGBT persons to enter into intimate sexual relations with persons of the same sex is an exercise of their personal choice, and an expression of their autonomy and self-determination.<\/p>\n

Section 377 insofar as it criminalises voluntary sexual relations between LGBT persons of the same sex in private, discriminates against them on the basis of their \u201csexual orientation\u201d which is violative of their fundamental rights guaranteed by Articles 14, 19, and 21 of the Constitution.<\/p>\n

ii. The mere fact that the LGBT persons constitute a \u201cminiscule fraction\u201d of the country\u2019s population cannot be a ground to deprive them of their Fundamental Rights guaranteed by Part III of the Constitution. Even though the LGBT constitute a sexual minority, members of the LGBT community are citizens of this country who are equally entitled to the enforcement of their Fundamental Rights guaranteed by Articles 14, 15, 19, and 21.<\/p>\n

Fundamental Rights are guaranteed to all citizens alike, irrespective of whether they are a numerical minority. Modern democracies are based on the twin principles of majority rule, and protection of fundamental rights guaranteed under Part III of the Constitution. Under the Constitutional scheme, while the majority is entitled to govern; the minorities like all other citizens are protected by the solemn guarantees of rights and freedoms under Part III. The J.S. Verma Committee, in this regard, in paragraph 77 of its Report (supra) states that:<\/p>\n

\u201c77. We need to remember that the founding fathers of our Constitution never thought that the Constitution is \u2018mirror of perverse social discrimination\u2019. On the contrary, it promised the mirror in which equality will be reflected brightly. Thus, all the sexual identities, including sexual minorities, including transgender communities are entitled to be totally protected. The Constitution enables change of beliefs, greater understanding and is also an equally guaranteed instrument to secure the rights of sexually despised minorities. \u201d (emphasis supplied)<\/p>\n

iii. Even though Section 377 is facially neutral, it has been misused by subjecting members of the LGBT community to hostile discrimination, making them vulnerable and living in fear of the ever-present threat of prosecution on account of their sexual orientation.<\/p>\n

The criminalisation of \u201ccarnal intercourse against the order of nature\u201d has the effect of criminalising the entire class of LGBT persons since any kind of sexual intercourse in the case of such persons would be considered to be against the \u201corder of nature\u201d, as per the existing interpretation.<\/p>\n

iv. The conclusion in Suresh Kumar Koushal\u2019s case to await legislative amendments to this provision may not be necessary. Once it is brought to the notice of the Court of any violation of the Fundamental Rights of a citizen, or a group of citizens the Court will not remain a mute spectator, and wait for a majoritarian government to bring about such a change. Given the role of this Court as the sentinel on the qui vive, it is the Constitutional duty of this Court to review the provisions of the impugned Section, and read it down to the extent of its inconsistency with the Constitution. In the present case, reading down Section 377 is necessary to exclude consensual sexual relationships between adults, whether of the same sex or otherwise, in private, so as to remove the vagueness of the provision to the extent it is inconsistent with Part III of the Constitution.<\/p>\n

20. History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries. The members of this community were compelled to live a life full of fear of reprisal and persecution. This was on account of the ignorance of the majority to recognise that homosexuality is a completely natural condition, part of a range of human sexuality. The mis-application of this provision denied them the Fundamental Right to equality guaranteed by Article 14. It infringed the Fundamental Right to non-discrimination under Article 15, and the Fundamental Right to live a life of dignity and privacy guaranteed by Article<\/p>\n

21. The LGBT persons deserve to live a life unshackled from the shadow of being \u2018unapprehended felons\u2019.<\/p>\n

21. CONCLUSION<\/strong><\/p>\n

i. In view of the aforesaid findings, it is declared that insofar as Section 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 the Constitution.<\/p>\n

It is, however, clarified that such consent must be free consent, which is completely voluntary in nature, and devoid of any duress or coercion.<\/p>\n

ii. The declaration of the aforesaid reading down of Section 377 shall not, however, lead to the reopening of any concluded prosecutions, but can certainly be relied upon in all pending matters whether they are at the trial, appellate, or revisional stages.<\/p>\n

iii. The provisions of Section 377 will continue to govern non-consensual sexual acts against adults, all acts of carnal intercouse against minors, and acts of beastiality.<\/p>\n

iv. The judgment in Suresh K. Koushal & Anr. v. Naz Foundation & Ors.57 is hereby overruled for the reasons stated in paragraph 18.<\/p>\n

The Reference is answered accordingly. In view of the above findings, the Writ Petitions are allowed.<\/p>\n

(Indu Malhotra)
\nNew Delhi;
\nSeptember 6, 2018.<\/p>\n","protected":false},"excerpt":{"rendered":"

IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION WRIT PETITION (CRIMINAL) NO. 76 OF 2016 NAVTEJ SINGH JOHAR & ORS. \u2026Petitioner(s) VERSUS UNION OF…<\/p>\n","protected":false},"author":1091,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_customify_content_layout":"","_customify_sidebar":"","_customify_page_header_display":"","_customify_disable_header":"","_customify_disable_header_top":"","_customify_disable_header_main":"","_customify_disable_header_bottom":"","_customify_disable_page_title":"","_customify_disable_content_vertical_padding":"","_customify_disable_footer_top":"","_customify_disable_footer_main":"","_customify_disable_footer_bottom":"","_customify_breadcrumb_display":"","_customify_header_transparent_display":"","footnotes":""},"categories":[65],"tags":[70083,70082,22251,70096,43222,70087,70088,27844,70086,4645,25842,25883,2298,70095,70081,70091,70093,70094,25840,70085,70089,23930,25835,70092,70090,70084,68736],"class_list":["post-9518","post","type-post","status-publish","format-standard","hentry","category-judgments","tag-377-judgment","tag-377-sc-judgment","tag-a-m-khanwilkar","tag-arthur-schopenhauer","tag-articles-14","tag-articles-15","tag-articles-19","tag-articles-21","tag-carnal-intercouse","tag-cji","tag-consensual-sexual-acts","tag-dipak-misra","tag-fundamental-right","tag-gay-sex","tag-lgbt","tag-lgbt-community","tag-miniscule-fraction","tag-navtej-singh-johar","tag-naz-foundation","tag-non-consensual-sexual-acts","tag-non-discrimination","tag-section-377","tag-section-377-ipc","tag-sexual-minority","tag-sexual-orientation","tag-suresh-k-koushal","tag-writ-petitions"],"_links":{"self":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/posts\/9518","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/users\/1091"}],"replies":[{"embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/comments?post=9518"}],"version-history":[{"count":0,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/posts\/9518\/revisions"}],"wp:attachment":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/media?parent=9518"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/categories?post=9518"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/tags?post=9518"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}