Navtej Singh Johar Vs Union of India Ministry of Law and Justice Secretary.

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRIMINAL) NO. 76 OF 2016

NAVTEJ SINGH JOHAR & ORS. …Petitioner(s)

VERSUS

UNION OF INDIA

THR. SECRETARY

MINISTRY OF LAW AND JUSTICE …Respondent(s)

WITH

WRIT PETITION (CIVIL) NO. 572 OF 2016

WRIT PETITION (CRIMINAL) NO. 88 OF 2018

WRIT PETITION (CRIMINAL) NO. 100 OF 2018

WRIT PETITION (CRIMINAL) NO. 101 OF 2018

WRIT PETITION (CRIMINAL) NO. 121 OF 2018

J U D G M E N T Dipak Misra, CJI (for himself and A.M. Khanwilkar, J.)

C O N T E N T S

S. No(s). Heading Page No(s)

A. Introduction………………………………………… 3-11

B. The Reference……………………………………… 11-15

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C. Submissions on behalf of the petitioners…… 15-30

D. Submissions on behalf of the respondents and other intervenors.………………………….…

31-44

E. Decisions in Naz Foundation and Suresh

Koushal………………..……………………………..

45-48

F. Other judicial pronouncements on Section 377 IPC ……………………….…………………………..

48-57

G. The Constitution – an organic charter of

progressive rights…………………………………

57-64

H. Transformative constitutionalism and the rights of LGBT community……………………….

65-74

I. Constitutional morality and Section 377 IPC…. 74-81

J. Perspective of human dignity…………………… 81-89

K. Sexual orientation…………………………………. 89-96

L. Privacy and its concomitant aspects…………... 96-111

M. Doctrine of progressive realization of rights………………………………………………….

111-118

N. International perspective…………………………. 118

(i) United States……………………………… 118-122

(ii) Canada…………………………………….. 123-125

(iii) South Africa………………………………. 125

(iv) United Kingdom…………………………. 126-127

(v) Other Courts/Jurisdictions…………….. 127-129

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O. Comparative analysis of Section 375 and Section 377 IPC………………………………….…

129-140

P.

Q.

The litmus test for survival of Section 377 IPC…….……………………………………………… Conclusions…………………………………………

140-156

156-166

A. Introduction

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:-

―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.‖

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‘s signature and self-determined design. One defines oneself.

That is the glorious form of individuality. In the present case, our

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deliberation and focus on the said concept shall be from various

spectrums.

2. Shakespeare through one of his characters in a play says

―What‘s 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‘s 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‘s own life script where freedom broadens

everyday. Identity is equivalent to divinity.

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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

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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.

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.

5. The eminence of identity has been luculently stated in National

Legal Services Authority v. Union of India and others1, popularly

1 (2014) 5 SCC 438

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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‘s intrinsic sense of being male, female or

transgender or transsexual person. A person‘s 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 post-

operative 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:-

―Gender identity refers to each person‘s 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,

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therefore, refers to an individual‘s self-identification as a man, woman, transgender or other identified category.‖

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.‖

7. Dealing with the legality of transgender identity, Radhakrishnan,

J. ruled:-

―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‘s 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‖.‖

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

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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‘s licence, the right to education,

employment, health and so on. Emphasising on the aspect of human

rights, he observed:-

―…there 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.‖ 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.

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

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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‘s 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‘s 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‘s own abilities

visualizing the opportunities and rejection of external views with a

clear conscience that is in accord with constitutional norms and

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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 others2 overturning the judgment of the Delhi High

Court in Naz Foundation v. Government of NCT of Delhi and

others3, is the central issue involved in the present controversy.

B. The Reference

10. Writ Petition (Criminal) No. 76 of 2016 was filed for declaring

―right to sexuality‖, ―right to sexual autonomy‖ and ―right to choice of 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

2 (2014) 1 SCC 1 3 (2009) 111 DRJ 1

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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 nine-

Judge 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

4 (2017) 10 SCC 1

13

formulated on majoritarian favour or acceptance. Kaul, J, in his

concurring opinion, referred to the decision in Mosley v. News

Group Newspapers Ltd. 5 to highlight that the emphasis for

individual‘s freedom to conduct his sex life and personal relationships

as he wishes, subject to the permitted exceptions, countervails public

interest.

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.

5 [2008] EWHC 1777 (QB)

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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

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view, the decision in Suresh Kumar Koushal's case (supra) requires re-consideration.‖

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.

C. Submissions on behalf of the petitioners

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.

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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.

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

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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‘s 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.

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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‘s 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‘s 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

6 (2013) 15 SCC 755

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Violence Act, 2005‖ for various kinds of live-in relationships. The

same protection, as per the petitioners, must be accorded to same

sex relationships.

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.

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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

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criminalize non-consensual sexual acts between children thereby

plugging important gaps in the law governing sexual violence in India.

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.

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

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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.

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

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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.

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‘s 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

others7 and Shafin Jahan v. Asokan K.M.8 wherein it has been

clearly recognized that an individual‘s 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.

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 inter-

religious marriages but this Court is for enforcing constitutional rights.

7(2018) 7 SCC 192 8AIR 2018 SC 1933 : 2018 (5) SCALE 422

24

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 India9, 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.

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

9 (2014) 9 SCC 1

25

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.

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.

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 10(1981) 1 SCC 608 11(2018) 5 SCC 1 12(2008) 3 SCC 1

26

valid at the time of its adoption may cease to be so on account of

changing social norms.

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.

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‘s 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‘ 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.

13(2017) 9 SCC 1

27

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‘s right to expression of his/her self-

identified gender which can be expressed through words, action,

behaviour or any other form.

30. The petitioners have also contended that Section 377 violates the

rights of LGBT persons under Article 19(1)(c) and denies them the

14(2010) 5 SCC 600

28

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.

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.

15(2013) 2 SCC 398 16(2013) 10 SCC 591

29

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.

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‘ 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’s case on the ground that the view

in the said decision on classification is contrary to the ‗impact or effect

test‘, 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

30

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.

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.

31

D. Submissions on behalf of the respondents and other intervenors

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.

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.

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

32

contemplated in the reference nor required to be answered by this

Hon‘ble Bench.

38. The respondent has submitted that allowing any other issue

(other than the constitutional validity of Section 377 IPC) to be 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.

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‘s 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

33

dignity, then it would amount to constitutional wrong and

constitutional immorality.

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.

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.

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

34

deeply influenced by the values governing that society and it,

therefore, varies from one country to another and one period of

history to another.

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.

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.

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

35

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.

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.

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 another17.

17 (2005) 4 SCC 370

36

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.

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.

37

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 others19.

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

18 (1970) 2 SCC 780 19 (1979) 1 SCC 23

38

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.

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.

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

39

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.

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.

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

20(1982) 3 SCC 9

40

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

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 India23.

21 (1973) 1 SCC 20 22 (2005) 8 SCC 534 23 (1973) 4 SCC 225

41

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.

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.

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,

42

sex, place of birth or any of them but not sexual orientation. The word

‗sexual orientation‘, 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.

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.

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 self-

restraint and thereby refrain from giving birth to judicial legislation. In

the applicant's view, the legislative wisdom of the Parliament must be

43

respected and it must be left to the Parliament to amend Section 377

IPC, if so desired.

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

others 24 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.

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,

24(2004) 5 SCC 518 251992 Supp. (1) SCC 323

44

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.

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.

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,—(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.

45

E. Decisions in Naz Foundation and Suresh Koushal 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’s 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.

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

46

inclusiveness and understanding, the LGBT persons can be assured

of a life of dignity and non-discrimination.

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.

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 non-

vaginal sex involving minors, the High Court ruled that Section 377

IPC was valid.

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.

47

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.

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.

48

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

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.

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

26 (2011) 6 SCC 261

49

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‘ 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.

75. A reference may be made to Khanu v. Emperor27 which was

also alluded to in Suresh Koushal‘s case. We deem it appropriate to

reproduce a part of Khanu‘s 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

27 AIR 1925 Sind 286

50

thereby committed an offence under Section 377 of the Penal Code.

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. …

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

51

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.‖

76. In Suresh Koushal‘s 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‘

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

28 AIR 1968 Guj 252 29 ‘Psychology of Sex’ Twelfth Impression, 1948, London

52

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"‖

77. After referring to the definition of sodomy, the pronouncement

in Khanu (supra), Stroud‘s Judicial Dictionary, 3rd Edition and

Webster‘s New 20th Century Dictionary, unabridged, 2nd Edition, the

Gujarat High Court opined thus:-

―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.‖

78. The decision in State of Kerala v. Kundumkara Govindan

and another30 has also been reproduced in Suresh Koushal‘s case.

The High Court of Kerala held thus:-

―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

301969 Cri LJ 818 (Ker)

53

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.

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

‗Intercourse may be defined as mutual frequent action by members of independent organisation.‘

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.‘

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.

20. Then about penetration. The word ‗penetrate‘ means in the Concise Oxford Dictionary ‗find access into or through, pass through.‘ When the male organ is inserted between the thighs kept together and tight, is there no penetration? The word ‗insert‘ means place,

54

fit, thrust.‘ Therefore, if the male organ is ‗inserted‘ or ‗thrust‘ between the thighs, there is ‗penetration‘ to constitute unnatural offence.

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‘ and the act in Section 377 is ‗carnal intercourse against the order of nature‘.

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

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

55

between the thighs of another is carnal intercourse against the order of nature.‖

79. In Calvin Francis v. State of Orissa33, 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‘ 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.‖

80. Referring to the said decision, the two-Judge Bench in Suresh

Koushal‘s case has opined:-

―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

33 1992 (1) OLR 316

56

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. …‖

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

57

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.

G. The Constitution – an organic charter of progressive rights

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.

83. In the case of Saurabh Chaudri and others v. Union of India

and others35, it was observed:-

"Our Constitution is organic in nature, being a living organ, it is ongoing and with the passage of time, law

34 (1979) 2 SCC 34 35 (2003) 11 SCC 146

58

must change. Horizons of constitutional law are expanding."

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:-

"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."

36 (1997) 5 SCC 201

59

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:-

"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."

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

37 (1990) 3 SCC 87

60

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.

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

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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.

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

62

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.

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. As 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." The ‗living document‘ concept finds place in several

international authorities as well. The courts in other jurisdictions have

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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.

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 Marriage38, has observed:-

"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."

92. As early as the 1920s, the Supreme Court of the United States

in the case of State of Missouri v. Holland 39 , 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:-

"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

38[2004] 3 S.C.R. 698 39 252 U.S. 416 (1920)

64

has cost their successors much sweat and blood to prove that they created a nation."

93. In one of his celebrated works, Judge Richard Posner made

certain observations which would be relevant to be reproduced here:-

"A constitution that did not invalidate so offensive, oppressive, probably undemocratic, and sectarian law [as the Connecticut law banning contraceptives] would stand revealed as containing major gaps. Maybe that is the nature of our, or perhaps any, written Constitution; but yet, perhaps the courts are authorized to plug at least the most glaring gaps. Does anyone really believe, in his heart of hearts, that the Constitution should be interpreted so literally as to authorize every conceivable law that would not violate a specific constitutional clause? This would mean that a state could require everyone to marry, or to have intercourse at least once a month, or it could take away every couple's second child and place it in a foster home.... We find it reassuring to think that the courts stand between us and legislative tyranny even if a particular form of tyranny was not foreseen and expressly forbidden by framers of the Constitution."40

94. Thus, it is demonstrable that expansive growth of constitutional

idealism is embedded in the theory of progress, abandonment of

status quoist attitude, expansion of the concept of inclusiveness and

constant remembrance of the principle of fitting into the norm of

change with a constitutional philosophy.

40

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

65

H. Transformative constitutionalism and the rights of LGBT community

95. For understanding the need of having a constitutional

democracy and for solving the million dollar question as to why we

adopted the Constitution, we perhaps need to understand the

concept of transformative constitutionalism with some degree of

definiteness. In this quest of ours, the ideals enshrined in the

Preamble to our Constitution would be a guiding laser beam. The

ultimate goal of our magnificent Constitution is to make right the

upheaval which existed in the Indian society before the adopting of

the Constitution. The Court in State of Kerala and another v. N.M.

Thomas and others41 observed that the Indian Constitution is a

great social document, almost revolutionary in its aim of transforming

a medieval, hierarchical society into a modern, egalitarian democracy

and its provisions can be comprehended only by a spacious, social-

science approach, not by pedantic, traditional legalism. The whole

idea of having a Constitution is to guide the nation towards a

resplendent future. Therefore, the purpose of having a Constitution is

to transform the society for the better and this objective is the

fundamental pillar of transformative constitutionalism.

41 AIR 1976 SC 490

66

96. The concept of transformative constitutionalism has at its kernel

a pledge, promise and thirst to transform the Indian society so as to

embrace therein, in letter and spirit, the ideals of justice, liberty,

equality and fraternity as set out in the Preamble to our Constitution.

The expression ‗transformative constitutionalism‘ can be best

understood by embracing a pragmatic lens which will help in

recognizing the realities of the current day. Transformation as a

singular term is diametrically opposed to something which is static

and stagnant, rather it signifies change, alteration and the ability to

metamorphose. Thus, the concept of transformative constitutionalism,

which is an actuality with regard to all Constitutions and particularly

so with regard to the Indian Constitution, is, as a matter of fact, the

ability of the Constitution to adapt and transform with the changing

needs of the times.

97. It is this ability of a Constitution to transform which gives it the

character of a living and organic document. A Constitution

continuously shapes the lives of citizens in particular and societies in

general. Its exposition and energetic appreciation by constitutional

courts constitute the lifeblood of progressive societies. The

Constitution would become a stale and dead testament without

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dynamic, vibrant and pragmatic interpretation. Constitutional

provisions have to be construed and developed in such a manner that

their real intent and existence percolates to all segments of the

society. That is the raison d'etre for the Constitution.

98. The Supreme Court as well as other constitutional courts have

time and again realized that in a society undergoing fast social and

economic change, static judicial interpretation of the Constitution

would stultify the spirit of the Constitution. Accordingly, the

constitutional courts, while viewing the Constitution as a

transformative document, have ardently fulfilled their obligation to act

as the sentinel on qui vive for guarding the rights of all individuals

irrespective of their sex, choice and sexual orientation.

99. The purpose of transformative constitutionalism has been aptly

described in the case of Road Accident Fund and another v.

Mdeyide42 wherein the Constitutional Court of South Africa, speaking

in the context of the transformative role of the Constitution of South

Africa, had observed:-

―Our Constitution has often been described as ―transformative‖. One of the most important purposes of this transformation is to ensure that, by the realisation of fundamental socio-economic rights,

422008 (1) SA 535 (CC)

68

people disadvantaged by their deprived social and economic circumstances become more capable of enjoying a life of dignity, freedom and equality that lies at the heart of our constitutional democracy.‖

100. In Bato Star Fishing (Pty) Ltd v. Minister of Environmental

Affairs and Tourism and others43, the Constitutional Court of South

Africa opined:-

―The achievement of equality is one of the fundamental goals that we have fashioned for ourselves in the Constitution. Our constitutional order is committed to the transformation of our society from a grossly unequal society to one "in which there is equality between men and women and people of all races". In this fundamental way, our Constitution differs from other constitutions which assume that all are equal and in so doing simply entrench existing inequalities. Our Constitution recognises that decades of systematic racial discrimination entrenched by the apartheid legal order cannot be eliminated without positive action being taken to achieve that result. We are required to do more than that. The effects of discrimination may continue indefinitely unless there is a commitment to end it."

101. Davies44 understands transformation as follows:-

"Transformation which is based on the continuing evaluation and modification of a complex material and ideological environment cannot be reduced to a scientific theory of change, like those of evolution or the halflife of radioactive substances ... practical change occurs within a climate of serious reflection,

43 [2004] ZACC 15 44 Asking the Law Question: The Dissolution of Legal Theory 205 (2002), Margaret Davies.

69

and diversity of opinion is in my view absolutely essential as a stimulus to theory."

102. A J Van der Walt 45 has metaphorically, by comparing

'constitutional transformation' to 'dancing', described the art of

constitutional transformation to be continually progressive where one

does not stop from daring to imagine alternatives and that the society

could be different and a better place where the rights of every

individual are given due recognition:-

"However, even when we trade the static imagery of position, standing, for the more complex imagery of dancing, we still have to resist the temptation to see transformation as linear movement or progress - from authoritarianism to justification, from one dancing code to another, or from volkspele jurisprudence to toyitoyi jurisprudence... I suggest that we should not only switch to a more complex metaphorical code such as dancing when discussing transformation, but that we should also deconstruct the codes we dance to; pause to reflect upon the language in terms of which we think and talk and reason about constitutionalism, about rights, and about transformation, and recognize the liberating and the captivating potential of the codes shaping and shaped by that language.

103. Again, the Supreme Court of South Africa in President of the

Republic of South Africa v. Hugo46 observed that the prohibition on

unfair discrimination in the interim Constitution seeks not only to

45 Van der Walt, Dancing with codes - Protecting, developing and deconstructing property rights in a constitutional state, 118 (2) J. S. APR. L. 258 (2001) 46

(1997) 6 B.C.L.R. 708 (CC)

70

avoid discrimination against people who are members of

disadvantaged groups but also that at the heart of the prohibition of

unfair discrimination lies a recognition that the purpose of our new

constitutional and democratic order is the establishment of a society

in which all human beings will be accorded equal dignity and respect,

regardless of their membership of particular groups.

104. Equality does not only imply recognition of individual dignity but

also includes within its sphere ensuring of equal opportunity to

advance and develop their human potential and social, economic and

legal interests of every individual and the process of transformative

constitutionalism is dedicated to this purpose. It has been observed

by Albertyn & Goldblatt47:-

"The challenge of achieving equality within this transformation project involves the eradication of systemic forms of discrimination and material disadvantage based on race, gender, class and other forms of inequality. It also entails the development of opportunities which allow people to realise their full human potential within positive social relationships."

105. In Investigating Directorate: Serious Economic Offences

and others v. Hyundai Motor Distributors (Pty) Ltd and others: In

47

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

71

Re Hyundai Motor Distributors (Pty) Ltd and others v. Smit NO

and others48, the Constitutional Court of South Africa observed:-

"The Constitution is located in a history which involves a transition from a society based on division, injustice and exclusion from the democratic process to one which respects the dignity of all citizens and includes all in the process of governance. As such, the process of interpreting the Constitution must recognise the context in which we find ourselves and the Constitution's goal of a society based on democratic values, social justice and fundamental human rights. This spirit of transition and transformation characterises the constitutional enterprise as a whole.

... The Constitution requires that judicial officers read legislation, where possible, in ways which give effect to its fundamental values. Consistently with this, when the constitutionality of legislation is in issue, they are under a duty to examine the objects and purport of an Act and to read the provisions of the legislation, so far as is possible, in conformity with the Constitution."

106. The society has changed much now, not just from the year

1860 when the Indian Penal Code was brought into force but there

has also been continuous progressive change. In many spheres, the

sexual minorities have been accepted. They have been given space

after the NALSA judgment but the offence punishable under Section

377 IPC, as submitted, creates a chilling effect. The freedom that is

required to be attached to sexuality still remains in the pavilion with

482001 (1) SA 545 (CC)

72

no nerves to move. The immobility due to fear corrodes the desire to

express one‘s own sexual orientation as a consequence of which the

body with flesh and bones feels itself caged and a sense of fear

gradually converts itself into a skeleton sans spirit.

107. The question of freedom of choosing a partner is reflective from

a catena of recent judgments of this Court such as Shafin Jahan

(supra) wherein the Court held that a person who has come of age

and has the capability to think on his/her own has a right to choose

his/her life partner. It is apposite to reproduce some of the

observations made by the Court which are to the following effect:-

―It is obligatory to state here that expression of choice in accord with law is acceptance of individual identity. Curtailment of that expression and the ultimate action emanating therefrom on the conceptual structuralism of obeisance to the societal will destroy the individualistic entity of a person. The social values and morals have their space but they are not above the constitutionally guaranteed freedom. The said freedom is both a constitutional and a human right. Deprivation of that freedom which is ingrained in choice on the plea of faith is impermissible.‖

108. Recently, in Shakti Vahini (supra), the Court has ruled that the

right to choose a life partner is a facet of individual liberty and the

Court, for the protection of this right, issued preventive, remedial and

73

punitive measures to curb the menace of honour killings. The Court

observed:-

―When the ability to choose is crushed in the name of class honour and the person‘s physical frame is treated with absolute indignity, a chilling effect dominates over the brains and bones of the society at large.‖

109. An argument is sometimes advanced that what is permissible

between two adults engaged in acceptable sexual activity is different

in the case of two individuals of the same sex, be it homosexuals or

lesbians, and the ground of difference is supported by social

standardization. Such an argument ignores the individual orientation,

which is naturally natural, and disrobes the individual of his/her

identity and the inherent dignity and choice attached to his/her being.

110. The principle of transformative constitutionalism also places

upon the judicial arm of the State a duty to ensure and uphold the

supremacy of the Constitution, while at the same time ensuring that a

sense of transformation is ushered constantly and endlessly in the

society by interpreting and enforcing the Constitution as well as other

provisions of law in consonance with the avowed object. The idea is

to steer the country and its institutions in a democratic egalitarian

direction where there is increased protection of fundamental rights

74

and other freedoms. It is in this way that transformative

constitutionalism attains the status of an ideal model imbibing the

philosophy and morals of constitutionalism and fostering greater

respect for human rights. It ought to be remembered that the

Constitution is not a mere parchment; it derives its strength from the

ideals and values enshrined in it. However, it is only when we adhere

to constitutionalism as the supreme creed and faith and develop a

constitutional culture to protect the fundamental rights of an individual

that we can preserve and strengthen the values of our

compassionate Constitution.

I. Constitutional morality and Section 377 IPC

111. The concept of constitutional morality is not limited to the mere

observance of the core principles of constitutionalism as the

magnitude and sweep of constitutional morality is not confined to the

provisions and literal text which a Constitution contains, rather it

embraces within itself virtues of a wide magnitude such as that of

ushering a pluralistic and inclusive society, while at the same time

adhering to the other principles of constitutionalism. It is further the

result of embodying constitutional morality that the values of

constitutionalism trickle down and percolate through the apparatus of

75

the State for the betterment of each and every individual citizen of the

State.

112. In one of the Constituent Assembly Debates, Dr. Ambedkar,

explaining the concept of constitutional morality by quoting the Greek

historian, George Grote, said:-

"By constitutional morality, Grote meant... a paramount reverence for the forms of the constitution, enforcing obedience to authority and acting under and within these forms, yet combined with the habit of open speech, of action subject only to definite legal control, and unrestrained censure of those very authorities as to all their public acts combined, too with a perfect confidence in the bosom of every citizen amidst the bitterness of party contest that the forms of constitution wall not be less sacred in the eyes of his opponents than his own."49

113. Our Constitution was visualized with the aim of securing to the

citizens of our country inalienable rights which were essential for

fostering a spirit of growth and development and at the same time

ensuring that the three organs of the State working under the aegis of

the Constitution and deriving their authority from the supreme

document, that is, the Constitution, practise constitutional morality.

The Executive, the Legislature and the Judiciary all have to stay alive

to the concept of constitutional morality.

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

76

114. In the same speech50, Dr. Ambedkar had quoted George Grote

who had observed:-

"The diffusion of 'constitutional morality', not merely among the majority of any community, but throughout the whole is the indispensable condition of a government at once free and peaceable; since even any powerful and obstinate minority may render the working of a free institution impracticable, without being strong enough to conquer ascendance for themselves."51 This statement of Dr. Ambedkar underscores that constitutional

morality is not a natural forte for our country for the simple reason

that our country had attained freedom after a long period of colonial

rule and, therefore, constitutional morality at the time when the

Constituent Assembly was set up was an alien notion. However, the

strengthening of constitutional morality in contemporary India remains

a duty of the organs of the State including the Judiciary.

115. The society as a whole or even a minuscule part of the society

may aspire and prefer different things for themselves. They are

perfectly competent to have such a freedom to be different, like

different things, so on and so forth, provided that their different tastes

and liking remain within their legal framework and neither violates any

statute nor results in the abridgement of fundamental rights of any

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

77

other citizen. The Preambular goals of our Constitution which contain

the noble objectives of Justice, Liberty, Equality and Fraternity can

only be achieved through the commitment and loyalty of the organs of

the State to the principle of constitutional morality.

116. It is the concept of constitutional morality which strives and

urges the organs of the State to maintain such a heterogeneous fibre

in the society, not just in the limited sense, but also in multifarious

ways. It is the responsibility of all the three organs of the State to curb

any propensity or proclivity of popular sentiment or majoritarianism.

Any attempt to push and shove a homogeneous, uniform, consistent

and a standardised philosophy throughout the society would violate

the principle of constitutional morality. Devotion and fidelity to

constitutional morality must not be equated with the popular

sentiment prevalent at a particular point of time.

117. Any asymmetrical attitude in the society, so long as it is within

the legal and constitutional framework, must at least be provided an

environment in which it could be sustained, if not fostered. It is only

when such an approach is adopted that the freedom of expression

including that of choice would be allowed to prosper and flourish and

78

if that is achieved, freedom and liberty, which is the quintessence of

constitutional morality, will be allowed to survive.

118. In Government of NCT of Delhi v. Union of India and

others52, one of us (Dipak Misra, CJI) observed:-

"Constitutional morality, appositely understood, means the morality that has inherent elements in the constitutional norms and the conscience of the Constitution. Any act to garner justification must possess the potentiality to be in harmony with the constitutional impulse. We may give an example. When one is expressing an idea of generosity, he may not be meeting the standard of justness. There may be an element of condescension. But when one shows justness in action, there is no feeling of any grant or generosity. That will come within the normative value. That is the test of constitutional justness which falls within the sweep of constitutional morality. It advocates the principle of constitutional justness without subjective exposition of generosity."

119. The duty of the constitutional courts is to adjudge the validity of

law on well-established principles, namely, legislative competence or

violations of fundamental rights or of any other constitutional

provisions. At the same time, it is expected from the courts as the

final arbiter of the Constitution to uphold the cherished principles of

the Constitution and not to be remotely guided by majoritarian view or

522018 (8) SCALE 72

79

popular perception. The Court has to be guided by the conception of

constitutional morality and not by the societal morality.

120. We may hasten to add here that in the context of the issue at

hand, when a penal provision is challenged as being violative of the

fundamental rights of a section of the society, notwithstanding the fact

whether the said section of the society is a minority or a majority, the

magna cum laude and creditable principle of constitutional morality, in

a constitutional democracy like ours where the rule of law prevails,

must not be allowed to be trampled by obscure notions of social

morality which have no legal tenability. The concept of constitutional

morality would serve as an aid for the Court to arrive at a just

decision which would be in consonance with the constitutional rights

of the citizens, howsoever small that fragment of the populace may

be. The idea of number, in this context, is meaningless; like zero on

the left side of any number.

121. In this regard, we have to telescopically analyse social morality

vis-à-vis constitutional morality. It needs no special emphasis to state

that whenever the constitutional courts come across a situation of

transgression or dereliction in the sphere of fundamental rights, which

are also the basic human rights of a section, howsoever small part of

80

the society, then it is for the constitutional courts to ensure, with the

aid of judicial engagement and creativity, that constitutional morality

prevails over social morality.

122. In the garb of social morality, the members of the LGBT

community must not be outlawed or given a step-motherly treatment

of malefactor by the society. If this happens or if such a treatment to

the LGBT community is allowed to persist, then the constitutional

courts, which are under the obligation to protect the fundamental

rights, would be failing in the discharge of their duty. A failure to do so

would reduce the citizenry rights to a cipher.

123. We must not forget that the founding fathers adopted an

inclusive Constitution with provisions that not only allowed the State,

but also, at times, directed the State, to undertake affirmative action

to eradicate the systematic discrimination against the backward

sections of the society and the expulsion and censure of the

vulnerable communities by the so-called upper caste/sections of the

society that existed on a massive scale prior to coming into existence

of the Constituent Assembly. These were nothing but facets of the

majoritarian social morality which were sought to be rectified by

bringing into force the Constitution of India. Thus, the adoption of the

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Constitution, was, in a way, an instrument or agency for achieving

constitutional morality and means to discourage the prevalent social

morality at that time. A country or a society which embraces

constitutional morality has at its core the well-founded idea of

inclusiveness.

124. While testing the constitutional validity of impugned provision

of law, if a constitutional court is of the view that the impugned

provision falls foul to the precept of constitutional morality, then the

said provision has to be declared as unconstitutional for the pure and

simple reason that the constitutional courts exist to uphold the

Constitution.

J. Perspective of human dignity

125. While discussing about the role of human dignity in gay rights

adjudication and legislation, Michele Finck53 observes:-

―As a concept devoid of a precise legal meaning, yet widely appealing at an intuitive level, dignity- can be easily manipulated and transposed into a number of legal contexts. With regard to the rights of lesbian and gay individuals, dignity captures what Nussbaum described as the transition from "disgust" to "humanity." Once looked at with disgust and considered unworthy of some rights, there is

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

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increasing consensus that homosexuals should no longer be deprived of the benefits of citizenship that are available to heterosexuals, such as the ability to contract marriage, on the sole ground of their sexual orientation. Homosexuals are increasingly considered as "full humans" disposing of equal rights, and dignity functions as the vocabulary that translates such socio- cultural change into legal change‖

126. The Universal Declaration of Human Rights, 1948 became the

Magna Carta of people all over the world. The first Article of the

UDHR was uncompromising in its generality of application: All

human beings are born free and equal in dignity and rights. Justice

Kirby succinctly observed:-

―This language embraced every individual in our world. It did not apply only to citizens. It did not apply only to 'white' people. It did not apply only to good people. Prisoners, murderers and even traitors were to be entitled to the freedoms that were declared. There were no exceptions to the principles of equality.‖54

127. The fundamental idea of dignity is regarded as an inseparable

facet of human personality. Dignity has been duly recognized as an

important aspect of the right to life under Article 21 of the Constitution.

In the international sphere, the right to live with dignity had been

identified as a human right way back in 1948 with the introduction of

the Universal Declaration of Human Rights. The constitutional courts

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

83

of our country have solemnly dealt with the task of assuring and

preserving the right to dignity of each and every individual whenever

the occasion arises, for without the right to live with dignity, all other

fundamental rights may not realise their complete meaning.

128. To understand a person‘s dignity, one has to appreciate how

the dignity of another is to be perceived. Alexis de Tocqueville tells

us55:-

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

129. Every individual has many possessions which assume the

position of his/her definitive characteristics. There may not be any

obsession with them but he/she may abhor to be denuded of them,

for they are sacred to him/her and so inseparably associated that

he/she may not conceive of any dissolution. He/she would like others

to respect the said attributes with a singular acceptable condition that

there is mutual respect. Mutual respect abandons outside

interference and is averse to any kind of interdiction. It is based on

the precept that the individuality of an individual is recognized,

accepted and respected. Such respect for the conception of dignity

5556, New York State Bar Journal (No 3. April, 1984), p.50

84

has become a fundamental right under Article 21 of the Constitution

and that ushers in the right of liberty of expression. Dignity and liberty

as a twin concept in a society that cares for both, apart from painting

a grand picture of humanity, also smoothens the atmosphere by

promoting peaceful co-existence and thereby makes the

administration of justice easy. In such a society, everyone becomes a

part of the social engineering process where rights as inviolable and

sacrosanct principles are adhered to; individual choice is not an

exception and each one gets his/her space. Though no tower is built,

yet the tower of individual rights with peaceful co-existence is visible.

130. In Common Cause (A Regd. Society) (supra), one of us has

observed that human dignity is beyond definition and it may, at times,

defy description. To some, it may seem to be in the world of

abstraction and some may even perversely treat it as an attribute of

egotism or accentuated eccentricity. This feeling may come from the

roots of absolute cynicism, but what really matters is that life without

dignity is like a sound that is not heard. Dignity speaks, it has its

sound, it is natural and human. It is a combination of thought and

feeling.

85

131. In Maneka Gandhi v. Union of India and another56, Krishna

Iyer, J. observed that life is a terrestrial opportunity for unfolding

personality and when any aspect of Article 21 is viewed in a truncated

manner, several other freedoms fade out automatically. It has to be

borne in mind that dignity of all is a sacrosanct human right and sans

dignity, human life loses its substantial meaning.

132. Dignity is that component of one‘s being without which

sustenance of his/her being to the fullest or completest is

inconceivable. In the theatre of life, without possession of the attribute

of identity with dignity, the entity may be allowed entry to the centre

stage but would be characterized as a spineless entity or, for that

matter, projected as a ruling king without the sceptre. The purpose of

saying so is that the identity of every individual attains the quality of

an ―individual being‖ only if he/she has the dignity. Dignity while

expressive of choice is averse to creation of any dent. When

biological expression, be it an orientation or optional expression of

choice, is faced with impediment, albeit through any imposition of law,

the individual‘s natural and constitutional right is dented. Such a

situation urges the conscience of the final constitutional arbiter to

56 (1978) 1 SCC 248

86

demolish the obstruction and remove the impediment so as to allow

the full blossoming of the natural and constitutional rights of

individuals. This is the essence of dignity and we say, without any

inhibition, that it is our constitutional duty to allow the individual to

behave and conduct himself/herself as he/she desires and allow

him/her to express himself/herself, of course, with the consent of the

other. That is the right to choose without fear. It has to be ingrained

as a necessary pre-requisite that consent is the real fulcrum of any

sexual relationship.

133. In this context, we may travel a little abroad. In Law v. Canada

(Minister of Employment and Immigration)57 capturing the essence

of dignity, the Supreme Court of Canada has made the following

observations:-

"Human dignity means that an individual or group feels self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits. It is enhanced by laws which are sensitive to the needs, capacities, and merits of different individuals, taking into account the context underlying their differences. Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is

57

1999 1 S.C.R. 497

87

enhanced when laws recognise the full place of all individuals and groups within Canadian society."

134. It is not only the duty of the State and the Judiciary to protect

this basic right to dignity, but the collective at large also owes a

responsibility to respect one another's dignity, for showing respect for

the dignity of another is a constitutional duty. It is an expression of the

component of constitutional fraternity.

135. The concept of dignity gains importance in the present scenario,

for a challenge has been raised to a provision of law which

encroaches upon this essential right of a severely deprived section of

our society. An individual's choice to engage in certain acts within

their private sphere has been restricted by criminalising the same on

account of the age old social perception. To harness such an

essential decision, which defines the individualism of a person, by

tainting it with criminality would violate the individual's right to dignity

by reducing it to mere letters without any spirit.

136. The European Court of Justice in P v. S58 in the context of

rights of individuals who intend to or have undergone sex

reassignment has observed that where a person is dismissed on the

ground that he or she intends to undergo or has undergone gender

58 Judgment of 30 April 1996. P v S and Cornwall County Council Case C-13/94. paras. 21-22.

88

reassignment, he or she is treated unfavorably by comparison with

persons of the sex to which he or she was deemed to belong before

undergoing gender reassignment. To tolerate such discrimination

would tantamount, as regards such a person, to a failure to respect

the dignity and freedom to which he or she is entitled and which the

Court has a duty to safeguard.

137. In Planned Parenthood of Southeastern Pa. v. Casey59, the

United States Supreme Court had opined that such matters which

involve the most intimate and personal choices a person may make in

a lifetime, choices central to personal dignity and autonomy, are

central to the liberty protected by the Fourteenth Amendment.

138. From the aforesaid pronouncements, some in different spheres

but some also in the sphere of sexual orientation, the constitutional

courts have laid emphasis on individual inclination, expression of both

emotional and physical behaviour and freedom of choice, of course,

subject to the consent of the other. A biological engagement, in

contradistinction to going to a restaurant or going to a theatre to see a

film or a play, is founded on company wherein both the parties have

consented for the act. The inclination is an expression of choice that

59505 U.S. 833 (1992)

89

defines the personality to cumulatively build up the elevated paradigm

of dignity. Be it clarified that expression of choice, apart from being a

facet of dignity, is also an essential component of liberty. Liberty as a

concept has to be given its due place in the realm of dignity, for both

are connected with the life and living of a persona.

K. Sexual orientation

139. After stating about the value of dignity, we would have

proceeded to deal with the cherished idea of privacy which has

recently received concrete clarity in Puttaswamy‘s case. Prior to that,

we are advised to devote some space to sexual orientation and the

instructive definition of LGBT by Michael Kirby, former Judge of the

High Court of Australia:-

―Homosexual: People of either gender who are attracted, sexually,

emotionally and in relationships, to persons of the same sex.

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

attracted to both sexes.

Lesbian: Women who are attracted to women.

Gay: Men who are attracted to men, although this term is sometimes

also used generically for all same-sex attracted persons.

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Gender identity: A phenomenon distinct from sexual orientation

which refers to whether a person identifies as male or female. This

identity' may exist whether there is "conformity or non-conformity"

between their physical or biological or birth sex and their

psychological sex and the way they express it through physical

characteristics, appearance and conduct. It applies whether, in the

Indian sub-continent, they identify as hijra or kothi or by another

name.

Intersex: Persons who are born with a chromosomal pattern or

physical characteristics that do not clearly fall on one side or the

other of a binary malefemale line.

LGBT or LGBTIQ: Lesbian, Gay, Bisexual, Transsexual, Intersex and

Queer minorities. The word 'Queer' is sometimes used generically,

usually by younger people, to include the members of all of the

sexual minorities. I usually avoid this expression because of its

pejorative overtones within an audience unfamiliar with the

expression. However, it is spreading and, amongst the young, is

often seen as an instance of taking possession of a pejorative word

in order to remove its sting.

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MSM: Men who have sex with men. This expression is common in

United Nations circles. It refers solely to physical, sexual activity by

men with men. The expression is used on the basis that in some

countries - including India - some men may engage in sexual acts

with their own sex although not identifying as homosexual or even

accepting a romantic or relationship emotion.‖60

140. Presently, we shall focus on the aspect of sexual orientation.

Every human being has certain basic biological characteristics and

acquires or develops some facets under certain circumstances.

The first can generally be termed as inherent orientation that is

natural to his/her being. The second can be described as a

demonstration of his/her choice which gradually becomes an

inseparable quality of his/her being, for the individual also leans on

a different expression because of the inclination to derive

satisfaction. The third one has the proclivity which he/she

maintains and does not express any other inclination. The first one

is homosexuality, the second, bisexuality and third, heterosexuality.

The third one is regarded as natural and the first one, by the same

standard, is treated to be unnatural. When the second category 60Sexual Orientation & Gender Identity – A New Province of Law for India, J. Michael D. Kirby, Tagore Lectures, 2013

92

exercises his/her choice of homosexuality and involves in such an

act, the same is also not accepted. In sum, the ‗act‘ is treated

either in accord with nature or against the order of nature in terms

of societal perception.

141. The Yogyakarta Principles define the expression "sexual

orientation‖ thus:-

"Sexual Orientation" is understood to refer to each person's capacity for profound emotional, affectional and sexual attraction to and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender."

142. In its study, the American Psychological Association has

attempted to define ―sexual orientation‖ in the following manner:-

"Sexual orientation refers to an enduring pattern of emotional, romantic and/or sexual attractions to men. women or both sexes. Sexual orientation also refers to a person's sense of identity based on those attractions, related behaviors, and membership in a community of others who share those attractions. Research over several decades has demonstrated that sexual orientation ranges along a continuum, from exclusive attraction to the other sex to exclusive attraction to the same sex.‖61

143. From the aforesaid, it has to be appreciated that homosexuality

is something that is based on sense of identity. It is the reflection of a

61American Psychological Association, "Answers to Your Questions for a Better Understanding of Sexual Orientation & Homosexuality," 2008

93

sense of emotion and expression of eagerness to establish intimacy.

It is just as much ingrained, inherent and innate as heterosexuality.

Sexual orientation, as a concept, fundamentally implies a pattern of

sexual attraction. It is as natural a phenomenon as other natural

biological phenomena. What the science of sexuality has led to is that

an individual has the tendency to feel sexually attracted towards the

same sex, for the decision is one that is controlled by neurological

and biological factors. That is why it is his/her natural orientation

which is innate and constitutes the core of his/her being and identity.

That apart, on occasions, due to a sense of mutuality of release of

passion, two adults may agree to express themselves in a different

sexual behaviour which may include both the genders. To this, one

can attribute a bisexual orientation which does not follow the rigidity

but allows room for flexibility.

144. The society cannot remain unmindful to the theory which

several researches, conducted both in the field of biological and

psychological science, have proven and reaffirmed time and again.

To compel a person having a certain sexual orientation to proselytize

to another is like asking a body part to perform a function it was never

designed to perform in the first place. It is pure science, a certain

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manner in which the brain and genitals of an individual function and

react. Whether one's sexual orientation is determined by genetic,

hormonal, developmental, social and/or cultural influences (or a

combination thereof), most people experience little or no sense of

choice about their sexual orientation.62

145. The statement of the American Psychological Association on

homosexuality which was released in July 1994 reiterates this

position in the following observations:-

"The research on homosexuality is very7 clear. Homosexuality is neither mental illness nor moral depravity. It is simply the way a minority of our population expresses human love and sexuality. Study after study documents the mental health of gay men and lesbians. Studies of judgment, stability, reliability, and social and vocational adaptiveness all show that gay men and lesbians function every bit as well as heterosexuals. Nor is homosexuality a matter of individual choice. Research suggests that the homosexual orientation is in place very early in the life cycle, possibly even before birth. It is found in about ten percent of the population, a figure which is surprisingly constant across cultures, irrespective of the different moral values and standards of a particular culture. Contrary to what some imply, the incidence of homosexuality in a population does not appear to change with new moral codes or social mores. Research findings suggest that efforts to repair homosexuals are nothing more than social prejudice garbed in psychological accouterments."

(Emphasis is ours)

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

95

146. In the said context, the observations made by Leonard Sax to

the following effect are relevant and are reproduced below:-

―Biologically, the difference between a gay man and a straight man is something like the difference between a left-handed person and a right-handed person. Being left- handed isn't just a phase. A left-handed person won't someday magically turn into a right-handed person.... Some children are destined at birth to be left- handed, and some boys are destined at birth to grow up to be gay.‖

147. The Supreme Court of Canada in the case of James Egan and

John Norris Nesbit v. Her Majesty The Queen in Right of Canada

and another63, while holding that sexual orientation is one of the

grounds for claiming the benefit under Section 15(1) as it is

analogous to the grounds already set out in the list in Section 15(1)

and the said list not being finite and exhaustive can be extended to

LGBTs on account of the historical, social, political and economic

disadvantage suffered by LGBTs, has observed:-

"Sexual orientation is a deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal costs, and so falls within the ambit of s. 15 protection as being analogous to the enumerated grounds."

148. It is worth noting that scientific study has, by way of keen

analysis, arrived at the conclusion as regards the individual‘s

63[1995] 2 SCR 513

96

inherent orientation. Apart from orientation, as stated earlier, there

can be situations which influence the emotional behaviour of an

individual to seek intimacy in the same gender that may bring two

persons together in a biological pattern. It has to be treated as

consensual activity and reflective of consensual choice.

L. Privacy and its concomitant aspects 149. While testing the constitutional validity of Section 377 IPC, due

regard must be given to the elevated right to privacy as has been

recently proclaimed in Puttaswamy (supra). We shall not delve in

detail upon the concept of the right to privacy as the same has been

delineated at length in Puttaswamy (supra). In the case at hand, our

focus is limited to dealing with the right to privacy vis-à-vis Section

377 IPC and other facets such as right to choice as part of the

freedom of expression and sexual orientation. That apart, within the

compartment of privacy, individual autonomy has a significant space.

Autonomy is individualistic. It is expressive of self-determination and

such self-determination includes sexual orientation and declaration of

sexual identity. Such an orientation or choice that reflects an

individual‘s autonomy is innate to him/her. It is an inalienable part of

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his/her identity. The said identity under the constitutional scheme

does not accept any interference as long as its expression is not

against decency or morality. And the morality that is conceived of

under the Constitution is constitutional morality. Under the autonomy

principle, the individual has sovereignty over his/her body. He/she

can surrender his/her autonomy wilfully to another individual and their

intimacy in privacy is a matter of their choice. Such concept of

identity is not only sacred but is also in recognition of the

quintessential facet of humanity in a person‘s nature. The autonomy

establishes identity and the said identity, in the ultimate eventuate,

becomes a part of dignity in an individual. This dignity is special to the

man/woman who has a right to enjoy his/her life as per the

constitutional norms and should not be allowed to wither and perish

like a mushroom. It is a directional shift from conceptual macrocosm

to cognizable microcosm. When such culture grows, there is an

affirmative move towards a more inclusive and egalitarian society.

Non-acceptance of the same would tantamount to denial of human

rights to people and one cannot be oblivious of the saying of Nelson

Mandela ― ―to deny people their human rights is to challenge their

very humanity.‖

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150. Article 12 of the Universal Declaration of Human Rights, (1948)

makes a reference to privacy by stating:-

"No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks."

151. Similarly, Article 17 of the International Covenant of Civil and

Political Rights, to which India is a party, talks about privacy thus:-

"No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home and correspondence, nor to unlawful attacks on his honour and reputation."

152. The European Convention on Human Rights also seeks to

protect the right to privacy by stating:-

"1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority except such as is in accordance with law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the protection of health or morals or for the protection of the rights and freedoms of others."

153. In the case of Dudgeon v. United Kingdom64, privacy has

been defined as under:-

64

[1981] 4 EHRR 149

99

"Perhaps the best and most succinct legal definition of privacy is that given by Warren and Brandeis - it is "the right to be let alone"."

154. In R. Rajagopal v. State of Tamil Nadu and others65, while

discussing the concept of right to privacy, it has been observed that

the right to privacy is implicit in the right to life and liberty guaranteed

to the citizens of this country by Article 21 and it is a "right to be let

alone", for a citizen has a right to safeguard the privacy of his/her

own, his/her family, marriage, procreation, motherhood, child-bearing

and education, among other matters.

155. The above authorities capture the essence of the right to

privacy. There can be no doubt that an individual also has a right to a

union under Article 21 of the Constitution. When we say union, we do

not mean the union of marriage, though marriage is a union. As a

concept, union also means companionship in every sense of the word,

be it physical, mental, sexual or emotional. The LGBT community is

seeking realisation of its basic right to companionship, so long as

such a companionship is consensual, free from the vice of deceit,

force, coercion and does not result in violation of the fundamental

rights of others.

65

(1994) 6 SCC 632

100

156. Justice Blackmun, in his vigorous dissent, in the case of

Bowers, Attorney General of Georgia v. Hardwick et al. 66 ,

regarding the ―right to be let alone‖, referred to Paris Adult Theatre I

v. Slaton67 wherein he observed that only the most willful 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. Justice

Blackmun went on to observe:-

―The fact that individuals define themselves in a significant way through their intimate sexual relationships with others suggests, in a Nation as diverse as ours, that there may be many "right" ways of conducting those relationships, and that much of the richness of a relationship will come from the freedom an individual has to choose the form and nature of these intensely personal bonds. … In a variety of circumstances, we have recognized that a necessary corollary of giving individuals freedom to choose how to conduct their lives is acceptance of the fact that different individuals will make different choices.‖

157. In A.R. Coeriel and M.A.R. Aurik v. The Netherlands68, the

Human Rights Committee observed that the notion of privacy refers

to the sphere of a person's life in which he or she can freely express

his or her identity, be it by entering into relationships with others or 66

Bowers v. Hardwick, 478 U.S. 186 (1986) 67

413 U.S. 49 (1973) 68

Communication No. 453/1991, para. 10.2

101

alone. The Committee was of the view that a person's surname

constitutes an important component of one's identity and that the

protection against arbitrary or unlawful interference with one's privacy

includes the protection against arbitrary or unlawful interference with

the right to choose and change one's own name.

158. We may also usefully refer to the views of the Human Rights

Committee in Toonen v. Australia69 to the effect that the introduction

of the concept of arbitrariness is intended to guarantee that every

interference provided for by the law should be in accordance with the

provisions, aims and objectives of the Covenant and should be, in

any event, reasonable in the circumstances. The requirement of

reasonableness implies that any interference with privacy must be

proportional to the end sought and be necessary in the circumstances

of any given case.

159. The South African Constitutional Court in National Coalition

for Gay and Lesbian Equality and another v. Minister of Justice

and others 70 has arrived at a theory of privacy in sexuality that

includes both decisional and relational elements. It lays down that

privacy recognises that we all have a right to a sphere of private

69

Communication No. 488/1992, U.C. Doc CCPR/C/ 50/D 488/ 1992, March 31, 1994, para. 8.3 70

1998 (12) BCLR 1517 (CC)

102

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. The Court admitted that the

society had a poor record of seeking to regulate the sexual

expression of South Africans. It observed that in some cases, as in

this one, the reason for the regulation was discriminatory; the law, for

example, outlawed sexual relationships among people of different

races. The fact that a law prohibiting forms of sexual conduct is

discriminatory does not, however, prevent it at the same time from

being an improper invasion of the intimate sphere of human life to

which protection is given by the Constitution in Section 14. The Court

emphasized that the importance of a right to privacy in the new

constitutional order should not be denied even while acknowledging

the importance of equality. In fact, emphasising the breach of both

these rights in the present case highlights just how egregious the

invasion of the constitutional rights of gay persons has been. The

offence which lies at the heart of the discrimination in this case

103

constitutes, at the same time and independently, a breach of the

rights of privacy and dignity which, without doubt, strengthens the

conclusion that the discrimination is unfair.

160. At home, the view as to the right to privacy underwent a sea-

change when a nine-Judge Bench of this Court in Puttaswamy

(supra) elevated the right to privacy to the stature of fundamental

right under Article 21 of the Constitution. One of us, Chandrachud, J.,

speaking for the majority, regarded the judgment in Suresh Koushal

as a discordant note and opined that the reasons stated therein

cannot be regarded as a valid constitutional basis for disregarding a

claim based on privacy under Article 21 of the Constitution. Further,

he observed that the reasoning in Suresh Koushal‘s decision to the

effect that ―a minuscule fraction of the country's population

constitutes lesbians, gays, bisexuals or transgenders" is not a

sustainable basis to deny the right to privacy.

161. It was further observed that the purpose of elevating certain

rights to the stature of guaranteed fundamental rights is to insulate

their exercise from the disdain of majorities, whether legislative or

popular, and the guarantee of constitutional rights does not depend

upon their exercise being favourably regarded by majoritarian opinion.

104

162. The test of popular acceptance, in view of the majority opinion,

was not at all a valid basis to disregard rights which have been

conferred with the sanctity of constitutional protection. The Court

noted that the discrete and insular minorities face grave dangers of

discrimination for the simple reason that their views, beliefs or way of

life does not accord with the 'mainstream', but in a democratic

Constitution founded on the Rule of Law, it does not mean that their

rights are any less sacred than those conferred on other citizens.

163. As far as the aspect of sexual orientation is concerned, the

Court opined that it is an essential attribute of privacy and

discrimination against an individual on the basis of sexual orientation

is deeply offensive to the dignity and self-worth of the individual. The

Court was of the view that equality demands that the sexual

orientation of each individual in the society must be protected on an

even platform, for the right to privacy and the protection of sexual

orientation lie at the core of the fundamental rights guaranteed by

Articles 14, 15 and 21 of the Constitution.

164. Regarding the view in Suresh Koushal‘s case to the effect that

the Delhi High Court in Naz Foundation case had erroneously relied

upon international precedents in its anxiety to protect the so-called

105

rights of LGBT persons, the nine-Judge Bench was of the opinion that

the aforesaid view in Suresh Koushal (supra) was unsustainable.

The rights of the lesbian, gay, bisexual and transgender population,

as per the decision in Puttaswamy (supra), cannot be construed to

be "so-called rights" as the expression "so-called" seems to suggest

the exercise of liberty in the garb of a right which is illusory.

165. The Court regarded such a construction in Suresh Koushal‘s

case as inappropriate of the privacy based claims of the LGBT

population, for their rights are not at all "so-called" but are real rights

founded on sound constitutional doctrine. The Court went on to

observe that the rights of the LGBT community inhere in the right to

life, dwell in privacy and dignity and they constitute the essence of

liberty and freedom. Further, the Court observed that sexual

orientation being an essential component of identity, equal protection

demands equal protection of the identity of every individual without

discrimination.

166. Speaking in the same tone and tenor, Kaul, J., while concurring

with the view of Chandrachud, J., observed that the right to privacy

cannot be denied even if there is a minuscule fraction of the

population which is affected. He was of the view that the majoritarian

106

concept does not apply to constitutional rights and the Courts are

often called upon to take what may be categorized as a non-

majoritarian view.

167. Kaul, J. went on to opine that one‘s sexual orientation is

undoubtedly an attribute of privacy and in support of this view, he

referred to the observations made in Mosley (supra) which read

thus:-

"130... It is not simply a matter of personal privacy v. the public interest. The modern perception is that there is a public interest in respecting personal privacy. It is thus a question of taking account of conflicting public interest considerations and evaluating them according to increasingly well recognized criteria. 131. When the courts identify an infringement of a person‘s Article 8 rights, and in particular in the context of his freedom to conduct his sex life and personal relationships as he wishes, it is right to afford a remedy and to vindicate that right. The only permitted exception is where there is a countervailing public interest which in the particular circumstances is strong enough to outweigh it; that is to say. because one at least of the established "limiting principles" comes into play. Was it necessary and proportionate for the intrusion to take place, for example, in order to expose illegal activity or to prevent the public from being significantly misled by public claims hitherto made by the individual concerned (as with Naomi Campbell's public denials of drug- taking)? Or was it necessary because the information, in the words of the Strasbourg court in Von Hannover at (60) and (76). would make a contribution to "a debate of general interest"? That is, of course, a very high test, it is yet to

107

be determined how far that doctrine will be taken in the courts of this jurisdiction in relation to photography in public places. If taken literally, it would mean a very significant change in what is permitted. It would have a profound effect on the tabloid and celebrity culture to which we have become accustomed in recent years.""

168. After the nine-Judge bench decision in Puttaswamy (supra),

the challenge to the vires of Section 377 IPC has been stronger than

ever. It needs to be underscored that in the said decision, the nine-

Judge Bench has held that sexual orientation is also a facet of a

person's privacy and that the right to privacy is a fundamental right

under the Constitution of India.

169. The observation made in Suresh Koushal (supra) that gays,

lesbians, bisexuals and transgenders constitute a very minuscule part

of the population is perverse due to the very reason that such an

approach would be violative of the equality principle enshrined under

Article 14 of the Constitution. The mere fact that the percentage of

population whose fundamental right to privacy is being abridged by

the existence of Section 377 in its present form is low does not

impose a limitation upon this Court from protecting the fundamental

rights of those who are so affected by the present Section 377 IPC.

170. The constitutional framers could have never intended that the

protection of fundamental rights was only for the majority population.

108

If such had been the intention, then all provisions in Part III of the

Constitution would have contained qualifying words such as 'majority

persons' or 'majority citizens'. Instead, the provisions have employed

the words 'any person‘ and ‗any citizen' making it manifest that the

constitutional courts are under an obligation to protect the

fundamental rights of every single citizen without waiting for the

catastrophic situation when the fundamental rights of the majority of

citizens get violated.

171. Such a view is well supported on two counts, namely, one that

the constitutional courts have to embody in their approach a

telescopic vision wherein they inculcate the ability to be futuristic and

do not procrastinate till the day when the number of citizens whose

fundamental rights are affected and violated grow in figures. In the

case at hand, whatever be the percentage of gays, lesbians,

bisexuals and transgenders, this Court is not concerned with the

number of persons belonging to the LGBT community. What matters

is whether this community is entitled to certain fundamental rights

which they claim and whether such fundamental rights are being

violated due to the presence of a law in the statute book. If the

answer to both these questions is in the affirmative, then the

109

constitutional courts must not display an iota of doubt and must not

hesitate in striking down such provision of law on the account of it

being violative of the fundamental rights of certain citizens, however

minuscule their percentage may be.

172. A second count on which the view in Suresh Koushal (supra)

becomes highly unsustainable is that the language of both Articles 32

and 226 of the Constitution is not reflective of such an intention. A

cursory reading of both the Articles divulges that the right to move the

Supreme Court and the High Courts under Articles 32 and 226

respectively is not limited to a situation when there is violation of the

fundamental rights of a large chunk of populace.

173. Such a view is also fortified by several landmark judgments of

the Supreme Court such as D.K. Basu v. State of W.B.71 wherein the

Court was concerned with the fundamental rights of only those

persons who were put under arrest and which again formed a

minuscule fraction of the total populace. Another recent case wherein

the Supreme Court while discharging its constitutional duty did not

hesitate to protect the fundamental right to die with dignity is

Common Cause (A Regd. Society) (supra) wherein the Supreme

71

(1997) 1 SCC 416

110

Court stepped in to protect the said fundamental right of those who

may have slipped into permanent vegetative state, who again form a

very minuscule part of the society.

174. Such an approach reflects the idea as also mooted by Martin

Luther King Jr. who said, ―Injustice anywhere is a threat to justice

everywhere‖. While propounding this view, we are absolutely

conscious of the concept of reasonable classification and the fact that

even single person legislation could be valid as held in Chiranjit Lal

Chowdhury v. Union of India72, which regarded the classification to

be reasonable from both procedural and substantive points of view.

175. We are aware that the legislature is fully competent to enact

laws which are applicable only to a particular class or group. But, for

the classification to be valid, it must be founded on an intelligible

differentia and the differentia must have a rational nexus with the

object sought to be achieved by a particular provision of law.

176. That apart, since it is alleged that Section 377 IPC in its present

form violates a fundamental right protected by Article 21 of the

Constitution, that is, the right to personal liberty, it has to not only

stand the test of Article 21 but it must also stand the test of Article 19

72

[1950] 1 SCR 869

111

which is to say that the restriction imposed by it has to be reasonable

and also that of Article 14 which is to say that Section 377 must not

be arbitrary.

177. Whether Section 377 stands the trinity test of Articles 14, 19

and 21 as propounded in the case of Maneka Gandhi (supra) will be

ascertained and determined at a later stage of this judgment when we

get into the interpretative dissection of Section 377 IPC.

M. Doctrine of progressive realization of rights

178. When we talk about the rights guaranteed under the

Constitution and the protection of these rights, we observe and

comprehend a manifest ascendance and triumphant march of such

rights which, in turn, paves the way for the doctrine of progressive

realization of the rights under the Constitution. This doctrine

invariably reminds us about the living and dynamic nature of a

Constitution. Edmund Burke, delineating upon the progressive and

the perpetual growing nature of a Constitution, had said that a

Constitution is ever-growing and it is perpetually continuous as it

embodies the spirit of a nation. It is enriched at the present by the

past experiences and influences and makes the future richer than the

present.

112

179. In N.M. Thomas (supra), Krishna Iyer, J., in his concurring

opinion, observed thus:-

"Law, including constitutional law, can no longer go it alone' but must be illumined in the interpretative process by sociology and allied fields of knowledge. Indeed, the term 'constitutional law' symbolizes an intersection of law and politics, wherein issues of political power are acted on by persons trained in the legal tradition, working in judicial institutions, following the procedures of law, thinking as lawyers think. So much so, a wider perspective is needed to resolve issues of constitutional law." And again:- ―An overview of the decided cases suggests the need to re-interpret the dynamic import of the 'equality clauses' and, to stress again, beyond reasonable doubt, that the paramount law. which is organic and regulates our nation's growing life, must take in its sweep ethics, economics, politics and sociology'.‖

The learned Judge, expanding the horizon of his concern,

reproduced the lament of Friedman:-

"It would be tragic if the law were so petrified as to be unable to respond to the unending challenge of evolutionary or revolutionary changes in society.''

The main assumptions which Friedman makes are:

"first, the law is, in Holmes' phrase, not a brooding omnipotence in the sky', but a flexible instrument of social order, dependent on the political values of the society which it purports to regulate...."

113

Naturally surges the interrogation, what are the challenges of changing values to which the guarantee of equality must respond and how?‖

180. Further, Krishna Iyer, J. referred to the classic statement made

by Chief Justice Marshall in McCulloch v. Maryland73 which was

also followed by Justice Brennan in Kazenbach v. Morgan74. The

said observation reads thus:-

"Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional."

181. In Manoj Narula (supra), the Court recognized the dynamic

nature of the Indian Constitution and observed that it is a living

document with capabilities of enormous dynamism. It is a Constitution

made for a progressive society and the working of such a Constitution

depends upon the prevalent atmosphere and conditions.

182. In Government of NCT of Delhi (supra), the Court, while

contemplating on what is it that makes a Constitution a dynamic and

a living document, observed that it is the philosophy of 'constitutional

culture' which, as a set of norms and practices, breathes life into the

73

(1816) 17 US 316 74

(1966) 384 US 641

114

words of the great document and it constantly enables the words to

keep stride with the rapid and swift changes occurring in the society

and the responsibility of fostering a constitutional culture rests upon

the shoulders of the State. Thereafter, the Court went on to observe:-

―The Constitutional Courts, while interpreting the constitutional provisions, have to take into account the constitutional culture, bearing in mind its flexible and evolving nature, so that the provisions are given a meaning which reflect the object and purpose of the Constitution.‖

And again, it proceeded to reproduce the wise words of Justice

Brennan:-

"We current Justices read the Constitution in the only way that we can: as Twentieth Century Americans. We look to the history of the time of framing and to the intervening history of interpretation. But the ultimate question must be, what do the words of the text mean in our time? For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs. What the constitutional fundamentals meant to the wisdom of other times cannot be their measure to the vision of our time. Similarly, what those fundamentals mean for us, our descendants will learn, cannot be the measure to the vision of their time."

183. We have discussed, in brief, the dynamic and progressive

nature of the Constitution to accentuate that rights under the

Constitution are also dynamic and progressive, for they evolve with

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the evolution of a society and with the passage of time. The rationale

behind the doctrine of progressive realization of rights is the dynamic

and ever growing nature of the Constitution under which the rights

have been conferred to the citizenry.

184. The constitutional courts have to recognize that the

constitutional rights would become a dead letter without their dynamic,

vibrant and pragmatic interpretation. Therefore, it is necessary for the

constitutional courts to inculcate in their judicial interpretation and

decision making a sense of engagement and a sense of constitutional

morality so that they, with the aid of judicial creativity, are able to fulfill

their foremost constitutional obligation, that is, to protect the rights

bestowed upon the citizens of our country by the Constitution.

185. Here, it is also apposite to refer to the words of Lord Roskill in

his presidential address to the Bentham Club at University College of

London on February 29, 1984 on the subject 'Law Lords,

Reactionaries or Reformers'75 which read as follows:-

"Legal policy now stands enthroned and will I hope remain one of the foremost considerations governing the development by the House of Lords of the common law. What direction should this development now take? I can think of several occasions upon which we have all said to ourselves:-

75

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

116

"this case requires a policy decision what is the right policy decision?" The answer is, and I hope will hereafter be, to follow that route which is most consonant with the current needs of the society, and which will be seen to be sensible and will pragmatically thereafter be easy to apply. No doubt the Law Lords will continue to be the targets for those academic lawyers who will seek intellectual perfection rather than imperfect pragmatism. But much of the common law and virtually all criminal law, distasteful as it may be to some to have to acknowledge it. is a blunt instrument by means of which human beings, whether they like it or not, are governed and subject to which they are required to live, and blunt instruments are rarely perfect intellectually or otherwise. By definition they operate bluntly and not sharply."

[Emphasis supplied]

186. What the words of Lord Roskill suggest is that it is not only the

interpretation of the Constitution which needs to be pragmatic, due to

the dynamic nature of a Constitution, but also the legal policy of a

particular epoch must be in consonance with the current and the

present needs of the society, which are sensible in the prevalent

times and at the same time easy to apply.

187. This also gives birth to an equally important role of the State to

implement the constitutional rights effectively. And of course, when

we say State, it includes all the three organs, that is, the legislature,

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the executive as well as the judiciary. The State has to show

concerned commitment which would result in concrete action. The

State has an obligation to take appropriate measures for the

progressive realization of economic, social and cultural rights.

188. The doctrine of progressive realization of rights, as a natural

corollary, gives birth to the doctrine of non-retrogression. As per this

doctrine, there must not be any regression of rights. In a progressive

and an ever-improving society, there is no place for retreat. The

society has to march ahead.

189. The doctrine of non-retrogression sets forth that the State

should not take measures or steps that deliberately lead to

retrogression on the enjoyment of rights either under the Constitution

or otherwise.

190. The aforesaid two doctrines lead us to the irresistible

conclusion that if we were to accept the law enunciated in Suresh

Koushal's case, it would definitely tantamount to a retrograde step in

the direction of the progressive interpretation of the Constitution and

denial of progressive realization of rights. It is because Suresh

Koushal’s view gets wrongly embedded with the minuscule facet and

assumes criminality on the bedrock being guided by a sense of social

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morality. It discusses about health which is no more a phobia and is

further moved by the popular morality while totally ignoring the

concepts of privacy, individual choice and the orientation. Orientation,

in certain senses, does get the neuro-impulse to express while seeing

the other gender. That apart, swayed by data, Suresh Koushal fails

to appreciate that the sustenance of fundamental rights does not

require majoritarian sanction. Thus, the ruling becomes sensitively

susceptible.

N. International perspective

(i) United States

191. The Supreme Court of the United States in Obergefell, et al. v.

Hodges, Director, Ohio Department of Health, et al.76, highlighting

the plight of homosexuals, observed that until the mid-20th century,

same-sex intimacy had long been condemned as immoral by the

State itself in most Western nations and a belief was often embodied

in the criminal law and for this reason, homosexuals, among others,

were not deemed to have dignity in their own distinct identity. The

Court further noted that truthful declaration by same-sex couples of

what was in their hearts had to remain unspoken and even when a

76576 US (2015)

119

greater awareness of the humanity and integrity of homosexual

persons came in the period after World War II, the argument that

gays and lesbians had a just claim to dignity was in conflict with both

law and widespread social conventions. The Court also observed that

same-sex intimacy remained a crime in many States and that gays

and lesbians were prohibited from most government employment,

barred from military service, excluded under immigration laws,

targeted by the police and burdened in their rights to associate.

192. The Court further observed that what the statutes in question

seek to control is a personal relationship, whether or not entitled to

formal recognition in the law, that is within the liberty of persons to

choose without being punished as criminals. Further, the Court

acknowledged that adults may choose to enter upon a relationship in

the confines of their homes and their own private lives and still retain

their dignity as free persons and that 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

Court held that such liberty protected by the Constitution allows

homosexual persons the right to make this choice.

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193. In the case of Price Waterhouse v. Hopkins77, the Supreme

Court of the United States, while evaluating the legal relevance of sex

stereotyping, observed thus:-

"...we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for, "'[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.""

194. In the case of Kimberly Hively v. Ivy Tech Community

College of Indiana78, while holding that discrimination amongst

employees based on their sexual orientation amounts to

discrimination based on sex, the Court observed as under:-

"We would be remiss not to consider the EEOC's recent decision in which it concluded that "sexual orientation is inherently a 'sex-based consideration,' and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII." Baldwin v. Foxx, EEOC Appeal No. 0120133080, 2015 WL 4397641, at *5, *10 (July 16, 2015). The EEOC, the body charged with enforcing Title VII, came to this conclusion for three primary reasons. First, it concluded that "sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee's sex." Id. at *5 (proffering the example of a woman who is suspended for placing a photo of her female spouse on her desk, and a man who faces no consequences for the

77490 U.S. 228 (1989) 78

830 F.3d 698 (7th Cir. 2016)

121

same act). Second, it explained that "sexual orientation discrimination is also sex discrimination because it is associational discrimination on the basis of sex," in which an employer discriminates against lesbian, gay, or bisexual employees based on who they date or marry. Id. at *6-7. Finally, the EEOC described sexual orientation discrimination as a form of discrimination based on gender stereotypes in which employees are harassed or punished for failing to live up to societal norms about appropriate masculine and feminine behaviors, mannerisms, and appearances. Id. In coming to these conclusions, the EEOC noted critically that "courts have attempted to distinguish discrimination based on sexual orientation from discrimination based on sex, even while noting that the "borders [between the two classes] are imprecise." Id. at *8 (quoting Simonton, 232 F.3d at 35).

[Underlining is ours]

195. In the case of Lawrence v. Texas79, while dealing with the

issue of decriminalization of sexual conduct between homosexuals,

the U.S. Supreme Court observed that the said issue neither involved

minors nor persons who might be injured or coerced or who are

situated in relationships where consent might not easily be refused

nor did it involve public conduct or prostitution nor the question

whether the government must give formal recognition to any

relationship that homosexual persons seek to enter. The Court further

observed that the issue related to two adults who, with full and mutual

consent of each other, engaged in sexual practices common to a

79 539 U.S. 558 (2003)

122

homosexual lifestyle. The Court declared that the petitioners were

entitled to respect for their private lives and that the State could not

demean their existence or control their destiny by making their private

sexual conduct a crime, for their right to liberty under the Due

Process Clause gives them the full right to engage in their conduct

without the intervention of the State.

196. In Roberts v. United States Jaycees80, the Supreme Court of

the United States observed:-

"Our decisions have referred to constitutionally protected "freedom of association" in two distinct senses. In one line of decisions, the Court has concluded that choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme. In this respect, freedom of association receives protection as a fundamental element of personal liberty. In another set of decisions, the Court has recognized a right to associate for the purpose of engaging in those activities protected by the First Amendment ~ speech, assembly, petition for the redress of grievances, and the exercise of religion. The Constitution guarantees freedom of association of this kind as an indispensable means of preserving other individual liberties. The intrinsic and instrumental features of constitutionally protected association may, of course, coincide."

[Emphasis added]

80468 U.S. 609 (1984)

123

(ii) Canada

197. The Supreme Court of Canada, in Delwin Vriend and others

v. Her Majesty the Queen in Right of Alberta and others81, while

interpreting a breach of Section 15(1) of the Canadian Charter of

Rights and Freedoms, arrived at the conclusion that 'sex' includes

sexual orientation. Section 15(1) of the Charter reads thus:-

"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 physical disability."

198. In Delwin Vriend, the Supreme Court of Canada, relying on the

reasoning adopted by it in Egan v. Canada (supra), applied its well-

known test of grounds analogous to those specified textually. The

Egan test is:-

"In Egan, it was said that there are two aspects which are relevant in determining whether the distinction created by the law constitutes discrimination. First, "whether the equality right was denied on the basis of a personal characteristic which is either enumerated in s. 15(1) or which is analogous to those enumerated". Second "whether that distinction has the effect on the claimant of imposing a burden, obligation or disadvantage not imposed upon others or of withholding or limiting access to benefits or advantages which are available to others" (para. 131).

81

[1998] 1 SCR 493

124

A discriminatory distinction was also described as one which is "capable of either promoting or perpetuating the view that the individual adversely affected by this distinction is less capable, or less worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration" (Egan, at para. 56, per L'Heureux - Dube J.). It may as well be appropriate to consider whether the unequal treatment is based on "the stereotypical application of presumed group or personal characteristics" (Miron, at para. 128, per McLachlin J.)

In Egan, it was held, on the basis of "historical social, political and economic disadvantage suffered by homosexuals" and the emerging consensus among legislatures (at para. 176), as well as previous judicial decisions (at para. 177), that sexual orientation is a ground analogous to those listed in s. 15(1). Sexual orientation is "a deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal costs" (para. 5). It is analogous to the other personal characteristics enumerated in s. 15(1); and therefore this step of the test is satisfied."

199. Thereafter, the Court in Delwin Vriend (supra) observed that

perhaps the most important outcome is the psychological harm which

may ensue from the state of affairs as the fear of discrimination (by

LGBT) would logically lead them to concealment of true identity and

this is harmful to their personal confidence and self-esteem. The

Court held that this is a clear example of a distinction which demeans

the individual and strengthens and perpetrates the view that gays and

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lesbians are less worthy of protection as individuals in Canada‘s

society and the potential harm to the dignity and perceived worth of

gay and lesbian individuals constitutes a particularly cruel form of

discrimination.

(iii) South Africa

200. The Constitutional Court of South Africa in National Coalition

for Gay & Lesbian Equality (supra) made the following relevant

observations:-

"Its symbolic effect is to state that in the eyes of our legal system all gay men are criminals. The stigma thus attached to a significant proportion of our population is manifest. But the harm imposed by the criminal law is far more than symbolic. As a result of the criminal offence, gay men are at risk of arrest, prosecution and conviction of the offence of sodomy simply because they seek to engage in sexual conduct which is part of their experience of being human. Just as apartheid legislation rendered the lives of couples of different racial groups perpetually at risk, the sodomy offence builds insecurity and vulnerability into the daily lives of gay men. There can be no doubt that the existence of a law which punishes a form of sexual expression for gay men degrades and devalues gay men in our broader society. As such it is a palpable invasion of their dignity and a breach of section 10 of the Constitution."

126

(iv) United Kingdom 201. In Euan Sutherland v. United Kingdom82, the issue before

the European Commission of Human Rights was whether the

difference in age limit for consent for sexual activities for

homosexuals and heterosexuals, the age limit being 16 years in

the case of heterosexuals and 18 years in the case of

homosexuals, is justified. While considering the same, the

Commission observed that no objective and reasonable

justification exists for the maintenance of a higher minimum age of

consent in case of male homosexuals as compared to

heterosexuals and that the application discloses discriminatory

treatment in the exercise of the applicant's right to respect for

private life under Article 8 of the Convention. The Commission

further observed that sexual orientation was usually established

before the age of puberty in both boys and girls and referred to

evidence that reducing the age of consent would unlikely affect the

majority of men engaging in homosexual activity, either in general

or within specific age groups. The Council of the British Medical

Association (BMA) concluded in its Report that the age of consent

82

2001 ECHR 234

127

for homosexual men should be set at 16 since the then existing

law might inhibit efforts to improve the sexual health of young

homosexual and bisexual men. An equal age of consent was also

supported by the Royal College of Psychiatrists, the Health

Education Authority and the National Association of Probation

Officers as well as by other bodies and organizations concerned

with health and social welfare. It is further noted that equality of

treatment in respect of the age of consent is now recognized by

the great majority of Member States of the Council of Europe.

(v) Other Courts/Jurisdictions 202. In Ang Ladlad LGBT Party v. Commission of Elections83, the

Supreme Court of the Republic of the Philippines observed:-

"Freedom of expression constitutes one of the essential foundations of a democratic society, and this freedom applies not only to those that are favorably received but also to those that offend, shock, or disturb. Any restriction imposed in this sphere must be proportionate to the legitimate aim pursued. Absent any compelling state interest, it is not for the COMELEC or this Court to impose its views on the populace.‖

Elaborating further, the Court held:-

―It follows that both expressions concerning one's homosexuality and the activity of forming a political

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

128

association that supports LGBT individuals are protected as well.‖

The Court navigated through European and United Nations

Judicial decisions and held:-

―In the area of freedom of expression, for instance, United States courts have ruled that existing free speech doctrines protect gay and lesbian rights to expressive conduct. In order to justify the prohibition of a particular expression of opinion, public institutions must show that their actions were caused by "something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint."

203. Further, in Toonen‘s case, the Human Rights Committee made

the following relevant observations:-

"I concur with this view, as the common denominator for the grounds "race, colour and sex" are biological or genetic factors. This being so, the criminalization of certain behaviour operating under Sections 122(a), (c) and 123 of the Tasmanian Criminal Code must be considered incompatible with article 26 of the Covenant.

Firstly, these provisions of the Tasmanian Criminal Code prohibit sexual intercourse between men and between women, thereby making a distinction between heterosexuals and homosexuals. Secondly, they criminalize other sexual contacts between consenting men without at the same time criminalizing such contacts between women. These provisions therefore set aside the principle of equality before the law. It should be emphasized that it is the criminalization as such that constitutes discrimination of which individuals may claim to be victims, and thus

129

violates article 26, notwithstanding the fact that the law has not been enforced over a considerable period of time: the designated behaviour none the less remains a criminal offence."

204. In Dudgeon (supra), the European Court of Human Rights

made the following observations with respect to homosexuality:-

"It cannot be maintained in these circumstances that there is a "pressing social need" to make such acts criminal offences, there being no sufficient justification provided by the risk of harm to vulnerable sections of society requiring protection or by the effects on the public. On the issue of proportionality, the Court considers that such justifications as there are for retaining the law in force unamended are outweighed by the detrimental effects which the very existence of the legislative provisions in question can have on the life of a person of homosexual orientation like the applicant. Although members of the public who regard homosexuality as immoral may be shocked, offended or disturbed by the commission by others of private homosexual acts, this cannot on its own warrant the application of penal sanctions when it is consenting adults alone who are involved."

[Emphasis supplied]

O. Comparative analysis of Section 375 and Section 377 IPC 205. Let us, in the obtaining situation, conduct a comparative

analysis of the offence of rape and unnatural offences as defined

under Section 375 and Section 377 of the IPC respectively. Section

375 IPC defines the offence of rape and reads as under:-

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Section 375. Rape-A man is said to commit "rape" if

he —

(a) penetrates his penis, to any extent, into the vagina,

mouth, urethra or anus of a woman or makes her to do

so with him or any other person; or

(b) inserts, to any extent, any object or a 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 him or

any other person; or

(c) manipulates any part of the body of a woman so as

to cause penetration into the vagina, urethra, anus or

any part of body of such woman or makes her to do so

with him or any other person; or

(d) applies his mouth to the vagina, anus, urethra of a

woman or makes her to do so with him or any other

person, under the circumstances falling under any of

the following seven descriptions: —

First. —Against her will.

Secondly. —Without her consent.

Thirdly. —With her consent, when her consent has

been obtained by putting her or any person in whom

she is interested, in fear of death or of hurt.

Fourthly. —With her consent, when the man knows

that he is not her husband and that her consent is

given because she believes that he is another man to

whom she is or believes herself to be lawfully married.

Fifthly. —With her consent when, at the time of giving

such consent, by reason of unsoundness of mind or

intoxication or the administration by him personally or

through another of any stupefying or unwholesome

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substance, she is unable to understand the nature and

consequences of that to which she gives consent.

Sixthly. —With or without her consent, when she is

under eighteen years of age.

Seventhly. —When she is unable to communicate

consent.

Explanation I.—For the purposes of this section,

"vagina" shall also include labia majora.

Explanation 2. — Consent means an unequivocal

voluntary agreement when the woman by words,

gestures or any form of verbal or non-verbal

communication, communicates willingness to

participate in the specific sexual act:

Provided that a woman who does not physically resist

to the act of penetration shall not by the reason only of

that fact, be regarded as consenting to the sexual

activity.

Exception I.—A medical procedure or intervention shall

not constitute rape.

Exception 2. —Sexual intercourse or sexual acts by a

man with his own wife, the wife not being under fifteen

years of age, is not rape.'.

206. A cursory reading of Section 375 IPC divulges that it is a

gender specific provision for the protection of women as only a man

can commit the offence of rape. The Section has been divided into

two parts. The former part, comprising of Clauses (a) to (d), simply

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describes what acts committed by a man with a woman would

amount to rape provided that the said acts are committed in the

circumstances falling under any of the seven descriptions as

stipulated by the latter part of the Section.

207. It is in this way that the latter part of Section 375 IPC becomes

important as it lays down the circumstances, either of which must be

present, for an act committed by a man with a woman to come within

the sweep of the offence of rape. To put it differently, for completing

the offence of rape, any of the circumstances described in the latter

part of Section 375 must be present. Let us now dissect each of the

seven descriptions appended to Section 375 IPC which specify the

absence of a willful and informed consent for constituting the offence

of rape.

208. The first description provides that any of the acts described in

the former part of Section 375 IPC would amount to rape if such acts

are committed against the will of the woman. The second description

stipulates that the acts described in the former part would amount to

rape if such acts are committed without the consent of the woman. As

per the third description, the acts would amount to rape even if the

woman has given her consent but the said consent has been

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obtained by putting her or any person in whom she is interested, in

fear of death or of hurt. As per the fourth description, the acts would

amount to rape when the woman has given her consent but the same

was given by her under the belief that she is or believes herself to be

lawfully married to the man committing the acts stated in the former

part of the Section. The fifth description provides that the acts

described in the former part would amount to rape if the woman gives

her consent but at the time of giving such consent, she is unable to

understand the nature and consequences of the acts to which she

consents due to the reason of unsoundness of mind or intoxication or

the administration of any stupefying or unwholesome substance

either by the man who commits the acts or through another third

person. The sixth description is plain and simple as it stipulates that

the acts described in the former part of the Section would amount to

rape, irrespective of the fact whether the woman has given her

consent or not, if, at the time when the acts were committed, the

woman was below the age of eighteen years. Coming to the seventh

and the last description, it provides that the acts prescribed in the

former part would amount to rape if the woman is unable to

communicate her consent.

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209. Explanation 2 to Section 375 IPC gives the definition of consent

for the purpose of Section 375 to the effect that consent means an

unequivocal voluntary agreement by the woman through words,

gestures or any form of verbal or non-verbal communication whereby

she communicates her willingness to participate in any of the sexual

acts described in the former part of Section 375 IPC.

210. We have scrutinized the anatomy of the seven descriptions

contained in the latter part of Section 375 IPC along with Explanation

2 to Section 375 IPC to emphasize and accentuate that the element

of absence of consent is firmly ingrained in all the descriptions

contained in the latter part of Section 375 IPC and the absence of a

willful and informed consent is sine qua non to designate the acts

contained in the former part of Section 375 IPC as rape.

211. Presently, we proceed to scan the anatomy of Section 377 of

IPC and x-ray the provision to study its real nature and content. It

reads thus:-

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

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Explanation.—Penetration is sufficient to constitute the

carnal intercourse necessary to the offence described

in this section.‖

212. Section 377 IPC, unlike Section 375, is a gender-neutral

provision as it uses the word ‗whoever‘. The word ‗carnal‘, as per the

Black‘s Law Dictionary84, means of the body, relating to the body,

fleshy or sexual. ‗Sexual intercourse‘ has been defined in Black‘s Law

Dictionary as a contact between a male and a female‘s organ.

213. Another expression which has been employed in Section 377 is

‗against the order of nature‘. The phrase ‗against the order of nature‘

has neither been defined in Section 377 IPC nor in any other

provision of the IPC. The foundation on which Section 377 IPC

makes carnal intercourse an offence is the precept that such carnal

intercourse is against the order of nature. This brings us to the

important question as to what is ‗against the order of nature‘?

214. In Khanu (supra), where the question before the Court was

whether coitus per os (mouth contact with the male genitals) amounts

to carnal intercourse against the order of nature, the Court ruled in

the affirmative observing that the natural object of intercourse is that

there should be the possibility of conception of human beings which

84

Black’s Law Dictionary, 2 nd

edn.

136

in the case of coitus per os is impossible. Thus, the most common

argument against homosexuality and criminalization of carnal

intercourse even between consenting adults of opposite sex is that

traditionally, the essential purpose of sex is to procreate.

215. With the passage of time and evolution of the society,

procreation is not the only reason for which people choose to come

together, have live-in relationships, perform coitus or even marry.

They do so for a whole lot of reasons including emotional

companionship. Homer Clark writes:-

―But the fact is that the most significant function of marriage today seems to be that it furnishes emotional satisfactions to be found in no other relationships. For many people it is the refuge from the coldness and impersonality of contemporary existence.‖

216. In the contemporary world where even marriage is now not

equated to procreation of children, the question that would arise is

whether homosexuality and carnal intercourse between consenting

adults of opposite sex can be tagged as ‗against the order of nature‘.

It is the freedom of choice of two consenting adults to perform sex for

procreation or otherwise and if their choice is that of the latter, it

cannot be said to be against the order of nature. Therefore, sex, if

performed differently, as per the choice of the consenting adults,

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does not per se make it against the order of nature.

217. Section 377 criminalises even voluntary carnal intercourse not

only between homosexuals but also between heterosexuals. The

major difference between the language of Section 377 and Section

375 is that of the element of absence consent which has been

elaborately incorporated in the seven descriptions contained in the

latter part of Section 375 IPC. It is the absence of willful and informed

consent embodied in the seven descriptions to Section 375 which

makes the offence of rape criminal.

218. On the other hand, Section 377 IPC contains no such

descriptions/exceptions embodying the absence of willful and

informed consent and criminalises even voluntary carnal intercourse

both between homosexuals as well as between heterosexuals. While

saying so, we gain strength and support from the fact that the

legislature, in its wisdom, while enacting Section 375 IPC in its

amended form after the Criminal Law (Amendment) Act, 2013, has

not employed the words ―subject to any other provision of the IPC‖.

The implication of the absence of these words simply indicates that

Section 375 IPC which does not criminalize consensual carnal

intercourse between heterosexuals is not subject to Section 377 IPC.

138

219. Section 377, so far as it criminalises carnal intercourse

between heterosexuals is legally unsustainable in its present form for

the simple reason that Section 375 IPC clearly stipulates that carnal

intercourse between a man and a woman with the willful and

informed consent of the woman does not amount to rape and is not

penal.

220. Despite the Criminal Law (Amendment) Act, 2013 coming into

force, by virtue of which Section 375 was amended, whereby the

words ‗sexual intercourse‘ in Section 375 were replaced by four

elaborate clauses from (a) to (d) giving a wide definition to the

offence of rape, Section 377 IPC still remains in the statute book in

the same form. Such an anomaly, if allowed to persist, may result in a

situation wherein a heterosexual couple who indulges in carnal

intercourse with the willful and informed consent of each other may

be held liable for the offence of unnatural sex under Section 377 IPC,

despite the fact that such an act would not be rape within the

definition as provided under Section 375 IPC.

221. Drawing an analogy, if consensual carnal intercourse between

a heterosexual couple does not amount to rape, it definitely should

not be labelled and designated as unnatural offence under Section

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377 IPC. If any proclivity amongst the heterosexual population

towards consensual carnal intercourse has been allowed due to the

Criminal Law (Amendment) Act, 2013, such kind of proclivity amongst

any two persons including LGBT community cannot be treated as

untenable so long as it is consensual and it is confined within their

most private and intimate spaces.

222. There is another aspect which needs to be discussed, which is

whether criminalisation of carnal intercourse under Section 377

serves any useful purpose under the prevalent criminal law.

Delineating on this aspect, the European Commission of Human

Rights in Dudgeon (supra) opined thus:-

―The 1967 Act, which was introduced into Parliament as a Private Member‘s Bill, was passed to give effect to the recommendations concerning homosexuality made in 1957 in the report of the Departmental Committee on Homosexual Offences and Prostitution established under the chairman ship of Sir John Wolfenden (the ―Wolfenden Committee‖ and ―Wolfenden report‖). The Wolfenden Committee regarded the function of the criminal law in this field as:

―to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others, particularly those who are specially vulnerable because they are young, weak in body or mind, inexperienced, or in a state of special physical, official, or economic dependence‖,

140

but not

―to intervene in the private lives of citizens, or to seek to enforce any particular pattern of behaviour, further than is necessary to carry out the purposes we have outlined‖.

The Wolfenden Committee concluded that homosexual behaviour between consenting adults in private was part of the ―realm of private morality and immorality which is, in brief and crude terms, not the law‘s business‖ and should no longer be criminal‖

[Underlining is ours]

223. At the very least, it can be said that criminalisation of

consensual carnal intercourse, be it amongst homosexuals,

heterosexuals, bi-sexuals or transgenders, hardly serves any

legitimate public purpose or interest. Per contra, we are inclined to

believe that if Section 377 remains in its present form in the statute

book, it will allow the harassment and exploitation of the LGBT

community to prevail. We must make it clear that freedom of choice

cannot be scuttled or abridged on the threat of criminal prosecution

and made paraplegic on the mercurial stance of majoritarian

perception.

P. The litmus test for survival of Section 377 IPC 224. Having discussed the various principles and concepts and

bearing in mind the sacrosanctity of the fundamental rights which

141

guides the constitutional courts, we shall now proceed to deal with

the constitutionality of Section 377 IPC on the bedrock of the

principles enunciated in Articles 14, 19 and 21 of the Constitution.

225. It is axiomatic that the expression ‗life or personal liberty‘ in

Article 21 embodies within itself a variety of rights. In Maneka

Gandhi (supra), Bhagwati, J. (as he then was) observed:-

―The expression 'personal liberty' in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Article 19...‖

226. In Anuj Garg (supra), while dealing with the constitutional

validity of Section 30 of the Punjab Excise Act, 1914 prohibiting

employment of ―any man under the age of 25 years‖ or ―any woman‖,

the Court, holding it ultra vires, ruled thus:-

―31. … It is their life; subject to constitutional, statutory and social interdicts—a citizen of India should be allowed to live her life on her own terms.‖

And again:-

―35. Privacy rights prescribe autonomy to choose profession whereas security concerns texture methodology of delivery of this assurance. But it is a reasonable proposition that the measures to safeguard such a guarantee of autonomy should not be so strong

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that the essence of the guarantee is lost. State protection must not translate into censorship.‖

227. In Common Cause (A Regd. Society) (supra), the Court, in

the context of right to dignity, observed:-

―Right to life and liberty as envisaged under Article 21 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.‖

228. In Puttaswamy (supra), the right to privacy has been declared

to be a fundamental right by this Court as being a facet of life and

personal liberty protected under Article 21 of the Constitution.

229. In view of the above authorities, we have no hesitation to say

that Section 377 IPC, in its present form, abridges both human dignity

as well as the fundamental right to privacy and choice of the citizenry,

howsoever small. As sexual orientation is an essential and innate

facet of privacy, the right to privacy takes within its sweep the right of

every individual including that of the LGBT to express their choices in

terms of sexual inclination without the fear of persecution or criminal

prosecution.

230. The sexual autonomy of an individual to choose his/her sexual

partner is an important pillar and an insegregable facet of individual

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liberty. When the liberty of even a single person of the society is

smothered under some vague and archival stipulation that it is

against the order of nature or under the perception that the majority

population is peeved when such an individual exercises his/her liberty

despite the fact that the exercise of such liberty is within the confines

of his/her private space, then the signature of life melts and living

becomes a bare subsistence and resultantly, the fundamental right of

liberty of such an individual is abridged.

231. While saying so, we are absolutely conscious of the fact that

the citizenry may be deprived of their right to life and personal liberty

if the conditions laid down in Article 21 are fulfilled and if, at the same

time, the procedure established by law as laid down in Maneka

Gandhi (supra) is satisfied. Article 21 requires that for depriving a

person of his right to life and personal liberty, there has to be a law

and the said law must prescribe a fair procedure. The seminal point

is to see whether Section 377 withstands the sanctity of dignity of an

individual, expression of choice, paramount concept of life and

whether it allows an individual to lead to a life that one‘s natural

orientation commands. That apart, more importantly, the question is

whether such a gender-neutral offence, with the efflux of time, should

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be allowed to remain in the statute book especially when there is

consent and such consent elevates the status of bodily autonomy.

Hence, the provision has to be tested on the principles evolved under

Articles 14, 19 and 21 of the Constitution.

232. In Sunil Batra v. Delhi Administration and others85, Krishna

Iyer, J. opined that what is punitively outrageous, scandalizingly

unusual or cruel and rehabilitatively counterproductive, is unarguably

unreasonable and arbitrary and is shot down by Article 14 and 19 and

if inflicted with procedural unfairness, falls foul of Article 21.

233. We, first, must test the validity of Section 377 IPC on the anvil

of Article 14 of the Constitution. What Article 14 propounds is that ‗all

like should be treated alike‘. In other words, it implies equal treatment

for all equals. Though the legislature is fully empowered to enact laws

applicable to a particular class, as in the case at hand in which

Section 377 applies to citizens who indulge in carnal intercourse, yet

the classification, including the one made under Section 377 IPC, has

to satisfy the twin conditions to the effect that the classification must

be founded on an intelligible differentia and the said differentia must

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

145

have a rational nexus with the object sought to be achieved by the

provision, that is, Section 377 IPC.

234. In M. Nagaraj and others v. Union of India and others86, it

has been held:-

―The gravamen of Article 14 is equality of treatment. Article 14 confers a personal right by enacting a prohibition which is absolute. By judicial decisions, the doctrine of classification is read into Article 14. Equality of treatment under Article 14 is an objective test. It is not the test of intention. Therefore, the basic principle underlying Article 14 is that the law must operate equally on all persons under like circumstances.‖

235. In E.P. Royappa v. State of Tamil Nadu and another87, this

Court observed that equality is a dynamic concept with many aspects

and dimensions and it cannot be "cribbed, cabined and confined"

within traditional and doctrinaire limits. It was further held that equality

is antithetic to arbitrariness, for equality and arbitrariness are sworn

enemies; one belongs to the rule of law in a republic while the other,

to the whim and caprice of an absolute monarch.

236. In Budhan Choudhry v. The State of Bihar 88 , while

delineating on the concept of reasonable classification, the Court

observed thus:-

86

AIR 2007 SC 71 : (2006) 8 SCC 212 87

AIR 1974 SC 555 : (1974) 4 SCC 3 88

AIR 1955 SC 191

146

―It is now well-established that while article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases; namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established by the decisions of this Court that article 14 condemns discrimination not only by a substantive law but also by a law of procedure.‖

237. A perusal of Section 377 IPC reveals that it classifies and

penalizes persons who indulge in carnal intercourse with the object to

protect women and children from being subjected to carnal

intercourse. That being so, now it is to be ascertained whether this

classification has a reasonable nexus with the object sought to be

achieved. The answer is in the negative as the non-consensual acts

which have been criminalized by virtue of Section 377 IPC have

already been designated as penal offences under Section 375 IPC

and under the POCSO Act. Per contra, the presence of this Section

in its present form has resulted in a distasteful and objectionable

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collateral effect whereby even ‗consensual acts‘, which are neither

harmful to children nor women and are performed by a certain class

of people (LGBTs) owning to some inherent characteristics defined

by their identity and individuality, have been woefully targeted. This

discrimination and unequal treatment meted out to the LGBT

community as a separate class of citizens is unconstitutional for being

violative of Article 14 of the Constitution.

238. In Shayara Bano (supra), the Court observed that manifest

arbitrariness of a provision of law can also be a ground for declaring a

law as unconstitutional. Opining so, the Court observed thus:-

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

239. In view of the law laid down in Shayara Bano (supra) and

given the fact that Section 377 criminalises even consensual sexual

acts between adults, it fails to make a distinction between

consensual and non-consensual sexual acts between competent

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adults. Further, Section 377 IPC fails to take into account that

consensual sexual acts between adults in private space are neither

harmful nor contagious to the society. On the contrary, Section 377

trenches a discordant note in respect of the liberty of persons

belonging to the LGBT community by subjecting them to societal

pariah and dereliction. Needless to say, the Section also interferes

with consensual acts of competent adults in private space. Sexual

acts cannot be viewed from the lens of social morality or that of

traditional precepts wherein sexual acts were considered only for the

purpose of procreation. This being the case, Section 377 IPC, so

long as it criminalises consensual sexual acts of whatever nature

between competent adults, is manifestly arbitrary.

240. The LGBT community possess the same human, fundamental

and constitutional rights as other citizens do since these rights inhere

in individuals as natural and human rights. We must remember that

equality is the edifice on which the entire non-discrimination

jurisprudence rests. Respect for individual choice is the very essence

of liberty under law and, thus, criminalizing carnal intercourse under

Section 377 IPC is irrational, indefensible and manifestly arbitrary. It

is true that the principle of choice can never be absolute under a

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liberal Constitution and the law restricts one individual‘s choice to

prevent harm or injury to others. However, the organisation of

intimate relations is a matter of complete personal choice especially

between consenting adults. It is a vital personal right falling within the

private protective sphere and realm of individual choice and

autonomy. Such progressive proclivity is rooted in the constitutional

structure and is an inextricable part of human nature.

241. In the adverting situation, we must also examine whether

Section 377, in its present form, stands the test of Article 19 of the

Constitution in the sense of whether it is unreasonable and, therefore,

violative of Article 19. In Chintaman Rao v. State of Madhya

Pradesh89, this Court, in the context of reasonable restrictions under

Article 19, opined thus:-

"The phrase "reasonable restriction" connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word "reasonable" implies intelligent care and deliberation, that is, the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in article 19(1)(g) and the social control permitted by

89

AIR 1951 SC 118

150

clause (6) of article 19, it must be held to be wanting in that quality."

242. In S. Rangarajan v. P. Jagjivan Ram and others90, the Court

observed, though in a different context, thus:-

" ... Our commitment of freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should have proximate and direct nexus with the expression.‖

243. In S. Khushboo (supra), this Court, while observing that

‗morality and decency‘ on the basis of which reasonable restrictions

can be imposed on the rights guaranteed under Article 19 should not

be amplified beyond a rational and logical limit, ruled that even

though the constitutional freedom of speech and expression is not

absolute and can be subjected to reasonable restrictions on grounds

such as `decency and morality' among others, yet it is necessary to

tolerate unpopular views in the socio-cultural space.

244. In the case of Shreya Singhal v. Union of India91, this Court,

while striking down Section 66A of the Information Technology Act,

2000, had observed that when a provision is vague and overboard in

90

(1989) 2 SCC 574 91

(2015) 5 SCC 1

151

the sense that it criminalises protected speech and speech of

innocent nature, resultantly, it has a chilling effect and is liable to be

struck down. The Court opined:-

―We, therefore, hold that the Section is unconstitutional also on the ground that it takes within its sweep protected speech and speech that is innocent in nature and is liable therefore to be used in such a way as to have a chilling effect on free speech and would, therefore, have to be struck down on the ground of overbreadth.‖

245. In the obtaining situation, we need to check whether public

order, decency and morality as grounds to limit the fundamental right

of expression including choice can be accepted as reasonable

restrictions to uphold the validity of Section 377 IPC. We are of the

conscious view that Section 377 IPC takes within its fold private acts

of adults including the LGBT community which are not only

consensual but are also innocent, as such acts neither cause

disturbance to the public order nor are they injurious to public

decency or morality. The law is et domus sua cuique est tutissimum

refugium – A man‘s house is his castle. Sir Edward Coke92 said:-

―The house of everyone is to him as his castle and fortress, as well for his defence against injury and violence as for his repose.‖

92

Semayne’s Case, 77 Eng. Rep. 194, 195; 5 Co. Rep. 91, 195 (K.B. 1604)

152

246. That apart, any display of affection amongst the members of

the LGBT community towards their partners in the public so long as it

does not amount to indecency or has the potentiality to disturb public

order cannot be bogged down by majority perception. Section 377

IPC amounts to unreasonable restriction as it makes carnal

intercourse between consenting adults within their castle a criminal

offence which is manifestly not only overboard and vague but also

has a chilling effect on an individual‘s freedom of choice.

247. In view of the test laid down in the aforesaid authorities, Section

377 IPC does not meet the criteria of proportionality and is violative of

the fundamental right of freedom of expression including the right to

choose a sexual partner. Section 377 IPC also assumes the

characteristic of unreasonableness, for it becomes a weapon in the

hands of the majority to seclude, exploit and harass the LGBT

community. It shrouds the lives of the LGBT community in criminality

and constant fear mars their joy of life. They constantly face social

prejudice, disdain and are subjected to the shame of being their very

natural selves. Thus, an archaic law which is incompatible with

constitutional values cannot be allowed to be preserved.

248. Bigoted and homophobic attitudes dehumanize the

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transgenders by denying them their dignity, personhood and above

all, their basic human rights. It is important to realize that identity and

sexual orientation cannot be silenced by oppression. Liberty, as the

linchpin of our constitutional values, enables individuals to define and

express their identity and individual identity has to be acknowledged

and respected.

249. The very existence of Section 377 IPC criminalising

transgenders casts a great stigma on an already oppressed and

discriminated class of people. This stigma, oppression and prejudice

has to be eradicated and the transgenders have to progress from

their narrow claustrophobic spaces of mere survival in hiding with

their isolation and fears to enjoying the richness of living out of the

shadows with full realization of their potential and equal opportunities

in all walks of life. The ideals and objectives enshrined in our

benevolent Constitution can be achieved only when each and every

individual is empowered and enabled to participate in the social

mainstream and in the journey towards achieving equality in all

spheres, equality of opportunities in all walks of life, equal freedoms

and rights and, above all, equitable justice. This can be achieved

only by inclusion of all and exclusion of none from the mainstream.

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250. We must realize that different hues and colours together make

the painting of humanity beautiful and this beauty is the essence of

humanity. We need to respect the strength of our diversity so as to

sustain our unity as a cohesive unit of free citizens by fostering

tolerance and respect for each others‘ rights thereby progressing

towards harmonious and peaceful co-existence in the supreme bond

of humanity. Attitudes and mentality have to change to accept the

distinct identity of individuals and respect them for who they are

rather than compelling them to ‗become‘ who they are not. All human

beings possess the equal right to be themselves instead of

transitioning or conditioning themselves as per the perceived

dogmatic notions of a group of people. To change the societal bias

and root out the weed, it is the foremost duty of each one of us to

―stand up and speak up‖ against the slightest form of discrimination

against transgenders that we come across. Let us move from

darkness to light, from bigotry to tolerance and from the winter of

mere survival to the spring of life ― as the herald of a New India ― to

a more inclusive society.

251. It is through times of grave disappointment, denunciation,

adversity, grief, injustice and despair that the transgenders have

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stood firm with their formidable spirit, inspired commitment, strong

determination and infinite hope and belief that has made them look

for the rainbow in every cloud and lead the way to a future that would

be the harbinger of liberation and emancipation from a certain

bondage indescribable in words – towards the basic recognition of

dignity and humanity of all and towards leading a life without pretence

eschewing duality and ambivalence. It is their momentous ―walk to

freedom‖ and journey to a constitutional ethos of dignity, equality and

liberty and this freedom can only be fulfilled in its truest sense when

each of us realize that the LGBT community possess equal rights as

any other citizen in the country under the magnificent charter of rights

– our Constitution.

252. Thus analysed, Section 377 IPC, so far as it penalizes any

consensual sexual activity between two adults, be it homosexuals

(man and a man), heterosexuals (man and a woman) and lesbians

(woman and a woman), cannot be regarded as constitutional.

However, if anyone, by which we mean both a man and a woman,

engages in any kind of sexual activity with an animal, the said aspect

of Section 377 IPC is constitutional and it shall remain a penal

offence under Section 377 IPC. Any act of the description covered

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under Section 377 IPC done between the individuals without the

consent of any one of them would invite penal liability under Section

377 IPC.

Q. Conclusions

253. In view of the aforesaid analysis, we record our conclusions in

seriatim:-

(i) The eminence of identity which has been luculently stated in

the NALSA case very aptly connects human rights and the

constitutional guarantee of right to life and liberty with dignity.

With the same spirit, we must recognize that the concept of

identity which has a constitutional tenability cannot be

pigeon-holed singularly to one‘s orientation as it may keep

the individual choice at bay. At the core of the concept of

identity lies self-determination, realization of one‘s 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‖.

(ii) In Suresh Koushal (supra), this Court overturned the

decision of the Delhi High Court in Naz Foundation (supra)

157

thereby upholding the constitutionality of Section 377 IPC

and stating a ground that the LGBT community comprised

only a minuscule fraction of the total population and that the

mere fact that the said Section was being misused is not a

reflection of the vires of the Section. Such a view is

constitutionally impermissible.

(iii) Our Constitution is a living and organic document capable of

expansion with the changing needs and demands of the

society. The Courts must commemorate that it is the

Constitution and its golden principles to which they bear their

foremost allegiance and they must robe themselves with the

armoury of progressive and pragmatic interpretation to

combat the evils of inequality and injustice that try to creep

into the society. The role of the Courts gains more

importance when the rights which are affected belong to a

class of persons or a minority group who have been

deprived of even their basic rights since time immemorial.

(iv) The primary objective of having a constitutional democracy

is to transform the society progressively and inclusively. Our

Constitution has been perceived to be transformative in the

158

sense that the interpretation of its provisions should not be

limited to the mere literal meaning of its words; instead they

ought to be given a meaningful construction which is

reflective of their intent and purpose in consonance with the

changing times. Transformative constitutionalism not only

includes within its wide periphery the recognition of the rights

and dignity of individuals but also propagates the fostering

and development of an atmosphere wherein every individual

is bestowed with adequate opportunities to develop socially,

economically and politically. Discrimination of any kind

strikes at the very core of any democratic society. When

guided by transformative constitutionalism, the society is

dissuaded from indulging in any form of discrimination so

that the nation is guided towards a resplendent future.

(v) Constitutional morality embraces within its sphere several

virtues, foremost of them being the espousal of a pluralistic

and inclusive society. The concept of constitutional morality

urges the organs of the State, including the Judiciary, to

preserve the heterogeneous nature of the society and to

curb any attempt by the majority to usurp the rights and

159

freedoms of a smaller or minuscule section of the populace.

Constitutional morality cannot be martyred at the altar of

social morality and it is only constitutional morality that can

be allowed to permeate into the Rule of Law. The veil of

social morality cannot be used to violate fundamental rights

of even a single individual, for the foundation of

constitutional morality rests upon the recognition of diversity

that pervades the society.

(vi) The right to live with dignity has been recognized as a

human right on the international front and by number of

precedents of this Court and, therefore, the constitutional

courts must strive to protect the dignity of every individual,

for without the right to dignity, every other right would be

rendered meaningless. Dignity is an inseparable facet of

every individual that invites reciprocative respect from others

to every aspect of an individual which he/she perceives as

an essential attribute of his/her individuality, be it an

orientation or an optional expression of choice. The

Constitution has ladened the judiciary with the very important

duty to protect and ensure the right of every individual

160

including the right to express and choose without any

impediments so as to enable an individual to fully realize

his/her fundamental right to live with dignity.

(vii) Sexual orientation is one of the many biological phenomena

which is natural and inherent in an individual and is

controlled by neurological and biological factors. The science

of sexuality has theorized that an individual exerts little or no

control over who he/she gets attracted to. Any discrimination

on the basis of one‘s sexual orientation would entail a

violation of the fundamental right of freedom of expression.

(viii) After the privacy judgment in Puttaswamy (supra), the right

to privacy has been raised to the pedestal of a fundamental

right. The reasoning in Suresh Koushal (supra), that only a

minuscule fraction of the total population comprises of LGBT

community and that the existence of Section 377 IPC

abridges the fundamental rights of a very minuscule

percentage of the total populace, is found to be a discordant

note. The said reasoning in Suresh Koushal (supra), in our

opinion, is fallacious, for the framers of our Constitution

could have never intended that the fundamental rights shall

161

be extended for the benefit of the majority only and that the

Courts ought to interfere only when the fundamental rights of

a large percentage of the total populace is affected. In fact,

the said view would be completely against the constitutional

ethos, for the language employed in Part III of the

Constitution as well as the intention of the framers of our

Constitution mandates that the Courts must step in

whenever there is a violation of the fundamental rights, even

if the right/s of a single individual is/are in peril.

(ix) There is a manifest ascendance of rights under the

Constitution which paves the way for the doctrine of

progressive realization of rights as such rights evolve with

the evolution of the society. This doctrine, as a natural

corollary, gives birth to the doctrine of non-retrogression, as

per which there must not be atavism of constitutional rights.

In the light of the same, if we were to accept the view in

Suresh Koushal (supra), it would tantamount to a

retrograde step in the direction of the progressive

interpretation of the Constitution and denial of progressive

realization of rights.

162

(x) Autonomy is individualistic. Under the autonomy principle,

the individual has sovereignty over his/her body. He/she can

surrender his/her autonomy wilfully to another individual and

their intimacy in privacy is a matter of their choice. Such

concept of identity is not only sacred but is also in

recognition of the quintessential facet of humanity in a

person‘s nature. The autonomy establishes identity and the

said identity, in the ultimate eventuate, becomes a part of

dignity in an individual.

(xi) A cursory reading of both Sections 375 IPC and 377 IPC

reveals that although the former Section gives due

recognition to the absence of ‗wilful and informed consent‘

for an act to be termed as rape, per contra, Section 377

does not contain any such qualification embodying in itself

the absence of ‗wilful and informed consent‘ to criminalize

carnal intercourse which consequently results in

criminalizing even voluntary carnal intercourse between

homosexuals, heterosexuals, bisexuals and transgenders.

Section 375 IPC, after the coming into force of the Criminal

Law (Amendment) Act, 2013, has not used the words

163

‗subject to any other provision of the IPC‘. This indicates that

Section 375 IPC is not subject to Section 377 IPC.

(xii) The expression ‗against the order of nature‘ has neither

been defined in Section 377 IPC nor in any other provision of

the IPC. The connotation given to the expression by various

judicial pronouncements includes all sexual acts which are

not intended for the purpose of procreation. Therefore, if

coitus is not performed for procreation only, it does not per

se make it ‗against the order of nature‘.

(xiii) Section 377 IPC, in its present form, being violative of the

right to dignity and the right to privacy, has to be tested, both,

on the pedestal of Articles 14 and 19 of the Constitution as

per the law laid down in Maneka Gandhi (supra) and other

later authorities.

(xiv) An examination of Section 377 IPC on the anvil of Article 14

of the Constitution reveals that the classification adopted

under the said Section has no reasonable nexus with its

object as other penal provisions such as Section 375 IPC

and the POCSO Act already penalize non-consensual carnal

intercourse. Per contra, Section 377 IPC in its present form

164

has resulted in an unwanted collateral effect whereby even

‗consensual sexual acts‘, which are neither harmful to

children nor women, by the LGBTs have been woefully

targeted thereby resulting in discrimination and unequal

treatment to the LGBT community and is, thus, violative of

Article 14 of the Constitution.

(xv) Section 377 IPC, so far as it criminalises even consensual

sexual acts between competent adults, fails to make a

distinction between non-consensual and consensual sexual

acts of competent adults in private space which are neither

harmful nor contagious to the society. Section 377 IPC

subjects the LGBT community to societal pariah and

dereliction and is, therefore, manifestly arbitrary, for it has

become an odious weapon for the harassment of the LGBT

community by subjecting them to discrimination and unequal

treatment. Therefore, in view of the law laid down in

Shayara Bano (supra), Section 377 IPC is liable to be

partially struck down for being violative of Article 14 of the

Constitution.

165

(xvi) An examination of Section 377 IPC on the anvil of Article

19(1)(a) reveals that it amounts to an unreasonable

restriction, for public decency and morality cannot be

amplified beyond a rational or logical limit and cannot be

accepted as reasonable grounds for curbing the fundamental

rights of freedom of expression and choice of the LGBT

community. Consensual carnal intercourse among adults, be

it homosexual or heterosexual, in private space, does not in

any way harm the public decency or morality. Therefore,

Section 377 IPC in its present form violates Article 19(1)(a)

of the Constitution.

(xvii) Ergo, Section 377 IPC, so far as it penalizes any consensual

sexual relationship between two adults, be it homosexuals

(man and a man), heterosexuals (man and a woman) or

lesbians (woman and a woman), cannot be regarded as

constitutional. However, if anyone, by which we mean both

a man and a woman, engages in any kind of sexual activity

with an animal, the said aspect of Section 377 is

constitutional and it shall remain a penal offence under

Section 377 IPC. Any act of the description covered under

166

Section 377 IPC done between two individuals without the

consent of any one of them would invite penal liability under

Section 377 IPC.

(xviii) The decision in Suresh Koushal (supra), not being in

consonance with what we have stated hereinabove, is

overruled.

254. The Writ Petitions are, accordingly, disposed of. There shall be

no order as to costs.

……………………………….CJI (Dipak Misra) …………………………….…..J. (A.M. Khanwilkar) New Delhi; September 6, 2018

1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL/CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CRIMINAL) NO. 76 OF 2016

NAVTEJ SINGH JOHAR & ORS. …PETITIONERS

VERSUS

UNION OF INDIA …RESPONDENT

WITH

WRIT PETITION (CIVIL) NO.572 OF 2016

WITH

WRIT PETITION (CRIMINAL) NO.88 OF 2018

WITH

WRIT PETITION (CRIMINAL) NO.100 OF 2018

WITH

WRIT PETITION (CRIMINAL) NO.101 OF 2018

WITH

WRIT PETITION (CRIMINAL) NO.121 OF 2018

2

J U D G M E N T

R.F. Nariman, J.

1. “The love that dare not speak its name” is how the love

that exists between same-sex couples was described by Lord

Alfred Douglas, the lover of Oscar Wilde, in his poem Two

Loves published in 1894 in Victorian England.

2. The word “homosexual” is not derived from “homo”

meaning man, but from “homo” meaning same.1 The word

“lesbian” is derived from the name of the Greek island of

Lesbos, where it was rumored that female same-sex couples

proliferated. What we have before us is a relook at the

constitutional validity of Section 377 of the Indian Penal Code

which was enacted in the year 1860 (over 150 years ago)

insofar as it criminalises consensual sex between adult same-

sex couples.

3. These cases have had a chequered history. Writ petitions

were filed before the Delhi High Court challenging the

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

3

constitutional validity of Section 377 of the Penal Code insofar

as it criminalizes consensual sex between adult same-sex

couples within the confines of their homes or other private

places. A Division Bench of the Delhi High Court in Naz

Foundation v. Government of NCT of Delhi (“Naz

Foundation”), 111 DRJ 1 (2009), after considering wide-

ranging arguments on both sides, finally upheld the plea of the

petitioners in the following words:

“132. We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue to govern non-consensual penile non- vaginal sex and penile non-vaginal sex involving minors. By ‘adult’ we mean everyone who is 18 years of age and above. A person below 18 would be presumed not to be able to consent to a sexual act. This clarification will hold till, of course, Parliament chooses to amend the law to effectuate the recommendation of the Law Commission of India in its 172nd Report which we believe removes a great deal of confusion. Secondly, we clarify that our judgment will not result in the re-opening of criminal cases involving Section 377 IPC that have already attained finality. We allow the writ petition in the above terms.”

4. Despite the fact that no appeal was filed by the Union of

India, in appeals filed by private individuals and groups, the

4

Supreme Court in Suresh Kumar Koushal and Anr. v. Naz

Foundation and Ors. (“Suresh Kumar Koushal”), (2014) 1

SCC 1, reversed the judgment of the High Court. Reviews that

were filed against the aforesaid judgment, including by the

Union of India, were dismissed by this Court.

5. Meanwhile, the Supreme Court delivered an important

judgment reported as National Legal Services Authority v.

Union of India (“NALSA”), (2014) 5 SCC 438, which

construed Articles 15 and 21 of the Constitution of India as

including the right to gender identity and sexual orientation, and

held that just like men and women, transgenders could enjoy all

the fundamental rights that other citizens of India could enjoy.

Thereafter, in Justice K.S. Puttaswamy (Retd.) and Anr. v.

Union of India and Ors. (“Puttaswamy”), (2017) 10 SCC 1, a

nine-Judge Bench of this Court unanimously declared that there

is a fundamental right of privacy which enured in favour of all

persons, the concomitant of which was that the right to make

choices that were fundamental to a person’s way of living could

not be interfered with by the State without compelling necessity

and/or harm caused to other individuals.

5

6. The impetus of this decision is what led to a three-Judge

Bench order of 08.01.2018, which referred to the judgment of

Puttaswamy (supra) and other arguments made by Shri Datar,

to refer the correctness of Suresh Kumar Koushal’s case

(supra) to a larger Bench. This is how the matter has come to

us.

History of Section 377

7. In the western world, given the fact that both Judaism and

Christianity outlawed sexual intercourse by same-sex couples,

offences relating thereto were decided by ecclesiastical courts.

It is only as a result of Henry VIII of England breaking with the

Roman Catholic Church that legislation in his reign, namely the

Buggery Act of 1533, prohibited “the detestable and

abominable offence” of buggery committed with mankind or

beast.

8. Between 1806, when reliable figures begin, and 1900,

8,921 men were indicted for sodomy, gross indecency or other

‘unnatural misdemeanours’ in England and Wales. Ninety men

per year were, on average, indicted for homosexual offences in

6

this period. About a third as many were arrested and their case

considered by magistrates. Most of the men convicted were

imprisoned, but between 1806 and 1861, when the death

penalty for sodomy was finally abolished, 404 men were

sentenced to death. Fifty-six were executed, and the remainder

were either imprisoned or transported to Australia for life. Two

such men, James Pratt and John Smith, were the last to be

executed in Britain for sodomy on 27 November, 1835.

9. During the reign of the East India Company in India,

Parliament established what was called the Indian Law

Commission. In 1833, Thomas Babington Macaulay was

appointed to chair the Commission.2

10. The Indian Law Commission, with Macaulay as its head,

submitted the Draft Penal Code to the Government of India on

14.10.1837. This draft consisted of 488 clauses. After the First

Report submitted on 23.07.1846, the Second Report of Her

Majesty’s Commissioners for revising and consolidating the law

was submitted by C.H. Cameron and D. Eliott on 24.06.1847. 2 Thomas Babington Macaulay was a Whig liberal who was a precocious genius. Apart from having a photographic memory with which he astounded persons around him, one incident which took place when Macaulay was only 5 years old told the world what was in store for it when Macaulay would reach adulthood. A lady dropped some hot coffee on the five-year old child and expressed great sorrow for doing so. The child riposted, after letting out a scream, “Madam, the agony has abated”.

7

These Commissioners concluded that the Draft Penal Code

was sufficiently complete, and, with slight modifications, fit to be

acted upon. The revised edition of the Penal Code was then

forwarded to the Judges of the Supreme Court at Calcutta on

30.05.1851, and also to the Judges of the Sudder Court at

Calcutta.

11. The revised edition of the Penal Code as prepared by Mr.

Bethune, the Legislative member of the Legislative Council of

India, together with the views of the Chief Justice and Mr.

Justice Buller of the Supreme Court at Calcutta, as well as

those of Mr. Justice Colvile were sent to the Company in

London. The Court of Directors in London were anxious to see

the Penal Code enacted as early as possible. They, therefore,

constituted a Council in which Sir Barnes Peacock was made

the fourth member.

12. This Council or Committee prepared a revised Penal

Code which was then referred to a Select Committee in 1857.

Given the Indian Mutiny of 1857, the Code was passed soon

thereafter in October, 1860 and brought into force on

01.01.1862. Sir James Fitzjames Stephen proclaimed that:

8

“The Indian Penal Code is to the English criminal law what a manufactured article ready for use is to the materials out of which it is made. It is to the French Penal Code and, I may add, to the North Germany Code of 1871, what a finished picture is to a sketch. It is far simpler, and much better expressed, than Livingston’s Code for Louisiana; and its practical success has been complete”.

13. He further described the Penal Code as:-

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

14. According to Lord Macaulay, a good Code should have

the qualities of precision and comprehensibility. In a letter to

Lord Auckland, the Governor General of India in Council, which

accompanied his draft Penal Code, he stated:

“There are two things which a legislator should always have in view while he is framing laws: the one is that they should be as far as possible precise; the other that they should be easily understood. That a law, and especially a penal law, should be drawn in words which convey no meaning to the people who are to obey it, is an evil. On the other hand, a loosely worded law is no law, and to whatever extent a legislature uses vague expressions, to that extent it abdicates its functions, and resigns the power of making law to the Courts of Justice.”

9

15. Stung to the quick, when criticized as to the delay in

bringing out the Code, he observed in a Minute to Lord

Auckland as follows:

“…when I remember the slow progress of law reforms at home and when I consider that our Code decides hundreds of questions… every one of which if stirred in England would give occasion to voluminous controversy and to many animated debates, I must acknowledge that I am inclined to fear that we have been guilty rather of precipitation than of delay.”

16. Earlier, he had described the core objective of his project

in his 04.06.1835 Minute to the Council which could be

paraphrased as follows:-

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

It should suppress crime with the least infliction of suffering and allow for the ascertaining of the truth at the smallest possible cost of time and money.

Its language should be clear, unequivocal and concise. Every criminal act should be separately defined, its language followed precisely in indictment and conduct found to fall clearly within the definition.

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

10

17. It is interesting to note that Lord Macaulay’s Draft was

substantially different from what was enacted as Section 377.

Macaulay’s original draft read:-

“361. Whoever, intending to gratify unnatural lust, touches for that purpose any person, or any animal, or is by his own consent touched by any person, for the purpose of gratifying unnatural lust, shall be punished with imprisonment of either description for a term which may extend to fourteen years and must not be less than two years, and shall be liable to fine.

362. Whoever, intending to gratify unnatural lust, touches for that purpose any person without that person’s free and intelligent consent, shall be punished with imprisonment of either description for a term which may extend to life and must not be less than seven years, and shall also be liable to fine.”

18. What is remarkable for the time in which he lived is the

fact that Lord Macaulay would punish touching another person

for the purpose of gratifying “unnatural lust” without their “free

and intelligent consent” with a term of imprisonment extendable

to life (but not less than seven years) while the penalty for the

same offence, when consensual, would be imprisonment for a

maximum term of fourteen years (but not less than two years).

Even in this most prudish of all periods of English history, Lord

11

Macaulay recognized a lesser sentence for the crime of

“unnatural lust”, if performed with consent. Living in the era in

which he lived, he clearly eschewed public discussion on this

subject, stating:-

“Clause 361 and 362 relate to an odious class of offences respecting which it is desirable that as little as possible should be said. We leave, without comment, to the judgment of his Lordship in Council the two clauses which we have provided for these offences. We are unwilling to insert, either in the text or in the notes, anything which could give rise to public discussion on this revolting subject; as we are decidedly of the opinion that the injury which would be done to the morals of the community by such discussion would far more than compensate for any benefits which might be derived from legislative measures framed with the greatest precision.”

19. At what stage of the proceedings before the various

persons and committees after 1837, Section 377 finally took

shape, is not clear. What is clear is that it is the Committee of

Sir Barnes Peacock which finally sent the draft equivalent of

Section 377 for enactment.

20. The Indian Penal Code, given its long life of over 150

years, has had surprisingly few amendments made to it. The

42nd Law Commission Report, early in this country’s history, did

not recommend the amendment or deletion of Section 377. But

12

B. P. Jeevan Reddy, J.’s Law Commission Report of the year

2000 (the 172nd Report) recommended its deletion consequent

to changes made in the preceding sections, which made it clear

that anal sex between consenting adults, whether same-sex or

otherwise, would not be penalized.

Law in the United Kingdom

21. As has been mentioned earlier in this judgment, the first

enactment prohibiting same-sex intercourse was passed in the

year 1533 in the reign of Henry VIII. The death penalty was

prescribed even for consenting adults who indulged in this

“abomination”. The trial of persons such as Oscar Wilde is

what led to law reform in the U.K., albeit 60 years later.

22. The Marquess of Queensberry’s son, Lord Alfred

Douglas, was having an affair with Oscar Wilde, which the

Marquess discovered. At Oscar Wilde’s club, the Marquess left

a note describing Oscar Wilde as a “somdomite” which led to

one of the most celebrated defamation actions in England. In

the course of his cross-examination of Oscar Wilde, Sir Edward

Carson was able to draw from his famous witness the fact that

13

boys could be plain or ugly, which would have led to the truth of

establishing the charge against Oscar Wilde. Rather than go on

with the trial, Oscar Wilde hastily withdrew his action for

defamation. But that was not the end. A prosecution under the

Criminal Law Amendment Act of 1885 followed, in which Oscar

Wilde was convicted and sent to jail for a period of two years.

He never quite recovered, for after his jail sentence was served

out, he died a broken and impoverished man in Paris at the

early age of 46.3

23. The winds of change slowly blew over the British Isles

and finally, post the Second World War, what is known as the

Wolfenden Committee was appointed on 24.08.1954, inter alia

to consider the law and practice relating to homosexual

offences and the treatment of persons convicted of such

offences by the courts. The Committee Report, even though it

is of a vintage of September 1957, makes interesting reading.

In paragraphs 31 and 32 of the Report, the Committee opined:-

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

14

“31. Even if it could be established that homosexuality were a disease, it is clear that many individuals, however their state is reached, present social rather than medical problems and must be dealt with by social, including penological, methods. This is especially relevant when the claim that homosexuality is an illness is taken to imply that its treatment should be a medical responsibility. Much more important than the academic question whether homosexuality is a disease is the practical question whether a doctor should carry out any part or all of the treatment. Psychiatrists deal regularly with problems of personality which are not regarded as diseases, and conversely the treatment of cases of recognized psychiatric illness may not be strictly medical but may best be carried out by non-medical supervision or environmental change. Examples would be certain cases of senile dementia or chronic schizophrenia which can best be managed at home. In fact, the treatment of behavior disorders, even when medically supervised, is rarely confined to psychotherapy or to treatment of a strictly medical kind. This is not to deny that expert advice should be sought in very many homosexual cases. We shall have something more to say on these matters in connection with the treatment of offenders.

32. The claim that homosexuality is an illness carries the further implication that the sufferer cannot help it and therefore carries a diminished responsibility for his actions. Even if it were accepted that homosexuality could properly be described as a “disease”, we should not accept this corollary. There are no prima facie grounds for supposing that because a particular person’s sexual propensity happens to lie in the direction of persons of his or her own sex it is any less controllable than that of those whose propensity is for persons of the opposite sex. We are informed that patients in mental hospitals, with few exceptions, show clearly

15

by their behavior that they can and do exercise a high degree of responsibility and self-control; for example, only a small minority need to be kept in locked wards. The existence of varying degrees of self-control is a matter of daily experience - the extent to which coughing can be controlled is an example - and the capacity for self-control can vary with the personality structure or with temporary physical or emotional conditions. The question which is important for us here is whether the individual suffers from a condition which causes diminished responsibility. This is a different question from the question whether he was responsible in the past for the causes or origins of his present condition. That is an interesting enquiry and may be of relevance in other connections; but our concern is with the behavior which flows from the individual’s present condition and with the extent to which he is responsible for that behavior, whatever may have been the causes of the condition from which it springs. Just as expert opinion can give valuable assistance in deciding on the appropriate ways of dealing with a convicted person, so can it help in assessing the additional factors that may affect his present responsibility?”

24. It then went on to note in paragraph 36 that the evidence

before them showed that homosexuality existed in all levels of

society and was prevalent in all trades and professions. In

paragraph 53, the main arguments for retention of the existing

law were set out. Insofar as societal health was concerned, the

Committee rejected this for lack of evidence. It went on to

state:-

16

“54. As regards the first of these arguments, it is held that conduct of this kind is a cause of the demoralization and decay of civilisations, and that therefore, unless we wish to see our nation degenerate and decay, such conduct must be stopped, by every possible means. We have found no evidence to support this view, and we cannot feel it right to frame the laws which should govern this country in the present age by reference to hypothetical explanations of the history of other peoples in ages distant in time and different in circumstances from our own. In so far as the basis of this argument can be precisely formulated, it is often no more than the expression of revulsion against what is regarded as unnatural, sinful or disgusting. Many people feel this revulsion, for one or more of these reasons. But moral conviction or instinctive feeling, however strong, is not a valid basis for overriding the individual’s privacy and for bringing within the ambit of the criminal law private sexual behaviour of this kind. It is held also that if such men are employed in certain professions or certain branches of the public service their private habits may render them liable to threats of blackmail or to other pressures which may make them “bad security risks.” If this is true, it is true also of some other categories of persons: for example, drunkards, gamblers and those who become involved in compromising situations of a heterosexual kind; and while it may be a valid ground for excluding from certain forms of employment men who indulge in homosexual behaviour, it does not, in our view, constitute a sufficient reason for making their private sexual behaviour an offence in itself.”

(Emphasis supplied)

17

25. Insofar as the damaging effects on family life were

concerned, this was rejected by stating:-

“55. The second contention, that homosexual behaviour between males has a damaging effect on family life, may well be true. Indeed, we have had evidence, that it often is; cases in which homosexual behaviour on the part of the husband has broken up a marriage are by no means rare, and there are also cases in which a man in whom the homosexual component is relatively weak nevertheless derives such satisfaction from homosexual outlets that he does not enter upon a marriage which might have been successfully and happily consummated. We deplore this damage to what we regard as the basic unit of society; but cases are also frequently encountered in which a marriage has been broken up by homosexual behaviour on the part of the wife, and no doubt some women, too, derive sufficient satisfaction from homosexual outlets to prevent their marrying. We have had no reasons shown to us which would lead us to believe that homosexual behaviour between males inflicts any greater damage on family life than adultery, fornication or lesbian behaviour. These practices are all reprehensible from the point of view of harm to the family, but it is difficult to see why on this ground male homosexual behaviour alone among them should be a criminal offence. This argument is not to be taken as saying that society should condone or approve male homosexual behaviour. But where adultery, fornication and lesbian behaviour are not criminal offences there seems to us to be no valid ground, on the basis of damage to the family, for so regarding homosexual behaviour between men. Moreover, it has to be recognized that the mere existence of the condition of homosexuality in one of the partners can result in an unsatisfactory marriage, so that for a

18

homosexual to marry simply for the sake of conformity with the accepted structure of society or in the hope of curing his condition may result in disaster.”

26. And in rejecting the allegation that men indulging in such

practices with other men may turn their attention to boys, the

Committee said:-

“56. We have given anxious consideration to the third argument, that an adult male who has sought as his partner another adult male may turn from such a relationship and seek as his partner a boy or succession of boys. We should certainly not wish to countenance any proposal which might tend to increase offences against minors. Indeed, if we thought that any recommendation for a change in the law would increase the danger to minors, we should not make it. But in this matter, we have been much influenced by our expert witnesses. They are in no doubt that whatever may be the origins of the homosexual condition, there are two recognisably different categories among adult male homosexuals. There are those who seek as partners other adult males, and there are paedophiliacs, that is to say men who seek as partners boys who have not reached puberty. 57. We are authoritatively informed that a man who has homosexual relations with an adult partner seldom turns to boys, and vice-versa, though it is apparent from the police reports we have seen and from other evidence submitted to us that such cases do happen.”

27. Finally, the Committee stated:

“60. We recognise that a proposal to change a law which has operated for many years so as to make

19

legally permissible acts which were formerly unlawful, is open to criticisms which might not be made in relation to a proposal to omit, from a code of laws being formulated de novo, any provision making these acts illegal. To reverse a long- standing tradition is a serious matter and not to be suggested lightly. But the task entrusted to us, as we conceive it, is to state what we regard as a just and equitable law. We therefore do not think it appropriate that consideration of this question should be unduly influenced by a regard for the present law, much of which derives from traditions whose origins are obscure. 61. Further, we feel bound to say this. We have outlined the arguments against a change in the law, and we recognise their weight. We believe, however, that they have been met by the counter- arguments we have already advanced. There remains one additional counter-argument which we believe to be decisive, namely, the importance which society and the law ought to give to individual freedom of choice and action in matters of private morality. Unless a deliberate attempt is to be made by society, acting through the agency of the law, to equate the sphere of crime with that of sin, there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law’s business. To say this is not to condone or encourage private immorality. On the contrary, to emphasise the personal and private responsibility of the individual for his own actions, and that is a responsibility which a mature agent can properly be expected to carry for himself without the threat of punishment from the law.

62. We accordingly recommend that homosexual behaviour between consenting adults in private should no longer be a criminal offence.”

20

28. Change came slowly. It was only in 1967 that the

Wolfenden Committee Report was acted upon by the British

Parliament by enacting the Sexual Offences Act, 1967, which

abolished penal offences involving consenting same-sex adults.

29. In 2017, the United Kingdom passed the Policing and

Crimes Act which served as an amnesty law to pardon persons

who were cautioned or convicted under legislations that

outlawed homosexual acts.4

The Law in the United States

30. At the time that the United States achieved independence

in 1776, the law in all the States insofar as same-sex offences

were concerned, was the English law. This state of affairs

continued until challenges were made in the last century to

state statutes which criminalized sodomy. One such case,

namely, Bowers v. Hardwick (“Bowers”), 92 L. Ed. 2d 140

(1986), reached the United States Supreme Court in the year

1986. By a 5:4 decision, the United States Supreme Court

upheld a Georgia statute criminalizing sodomy and its 4 The impetus for this law was the prosecution of Alan Turing in 1952. Alan Turing was instrumental in cracking intercepted code messages that enabled the Allies to defeat Germany in many crucial engagements in the War. Turing accepted chemical castration treatment as an alternative to prison upon conviction, but committed suicide just before his 42nd birthday in 1954.

21

applicability to the commission of that act with another adult

male in the bedroom of the respondent’s home. Justice White,

who spoke for the majority of the Court, did this on several

grounds.

31. First and foremost, he stated that there was no right to

privacy that extended to homosexual sodomy. No connection

between family, marriage, or procreation and homosexuality

had been demonstrated to the court. The next ground for

upholding such law was that proscriptions against such conduct

had ancient roots. Stanley v. Georgia (“Stanley”), 22 L. Ed.

2d 542 (1969), where the Court held that the First Amendment

prohibits conviction for possessing and reading obscene

material in the privacy of one’s home, was brushed aside

stating that Stanley itself recognized that its holding offered no

protection for possession of drugs, firearms or stolen goods in

the home. Therefore, such a claimed fundamental right could

not possibly exist when adultery, incest and other sexual crimes

are punished, even though they may be committed in the home.

Another important rationale was that the Georgia law was

based on a notion of morality, which is a choice that could

22

legitimately be exercised by a State Legislature. Chief Justice

Burger, concurring, again relied heavily on ‘ancient roots’,

stating that throughout the history of western civilization,

homosexual sodomy was outlawed in the Judeo-Christian

tradition, which the Georgia legislature could well follow.

Justice Powell, concurring with the majority, found that to

imprison a person upto 20 years for a single, private,

consensual act of sodomy within the home would be a cruel

and unusual punishment within the meaning of the Eighth

Amendment. However, since no trial had taken place on the

facts, and since the respondent did not raise any such Eighth

Amendment issue, Justice Powell concurred with the majority.

32. The dissenting opinion of four Justices makes interesting

reading. Justice Blackmun, who spoke for four dissenters,

began with the classical definition of the old privacy right which

is the “right to be let alone”, and quoted from Justice Holmes’

article The Path of the Law, stating:-

“[i]t is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since,

23

and the rule simply persists from blind imitation of the past.”

33. So much, then, for history and its “ancient roots”. Justice

Blackmun’s dissent then went on to consider the famous

judgment in Wisconsin v. Yoder, 32 L. Ed. 2d 15 (1972), in

which the Court had upheld the fundamental right of the Amish

community not to send their children to schools, stating that a

way of life that is odd or even erratic but interferes with no

rights or interests of others is not to be condemned because it

is different. Referring to Judeo-Christian values, the Court said

that the fact that certain religious groups condemn the behavior

of sodomy gives the State no licence to impose their moral

judgment on the entire citizenry of the United States. Ending

with a John Stuart Mill type of analysis, the dissent stated:-

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

24

34. Justice Stevens, also in a powerfully worded dissent,

specifically stated that the protection of privacy extends to

intimate choices made by unmarried as well as married

persons.

35. It took the United States 17 years to set aside this view of

the law and to accept the dissenting judgments in Bowers

(supra).

36. In Lawrence v. Texas, 539 U.S. 558 (2003), by a

majority of 6:3, Justice Anthony Kennedy, speaking for the

majority, set aside the judgment in Bowers (supra), accepting

that the dissenting judgments in that case were correct. In a tilt

at the history analysis of the majority judgment in Bowers

(supra), the Court found that earlier sodomy laws were not

directed at homosexuals at large, but instead sought to prohibit

non-procreative sexual activity more generally, and were not

enforced against consenting adults acting in private. After citing

from Planned Parenthood of Southeastern Pa. v. Casey

(“Casey”), 505 U.S. 833 (1992), the majority held – “our

obligation is to define the liberty of all, not to mandate our own

moral code.” The majority judgment then referred to a Model

25

Penal Code that the American Law Institute took out in 1955,

making it clear that it did not provide for criminal penalties for

consensual same-sex relationships conducted in private. The

judgment then went on to refer to the Wolfenden Committee

Report and the Sexual Offences Act,1967 in the United

Kingdom and referred to the European Court’s decision in

Dudgeon v. United Kingdom, 45 Eur. Ct. H. R. (1981). It then

referred to Romer v. Evans (“Romer”), 517 U.S. 620 (1996),

where the Court struck down a class-based legislation which

deprived homosexuals of State anti-discrimination laws as a

violation of the Equal Protection Clause. The majority then

found that the 1986 decision of Bowers (supra), had “sustained

serious erosion” through their recent decisions in Casey (supra)

and Romer (supra), and had, therefore, to be revisited.5 Justice

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

“The freedom asserted by these appellees does not bring them into collision with rights asserted by any other individual. It is such conflicts which most frequently require intervention of the State to determine where the rights of one end and those of another begin. But the refusal of these persons to participate in the ceremony does not interfere with or deny rights of others to do so. Nor is there any question in this case that their behavior is peaceable and orderly.”

The learned Judge then went on to find: “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and

26

O’Connor concurred in the judgment but side-stepped rather

than overruled Bowers (supra). Justice Scalia, with whom the

Chief Justice and Justice Thomas joined, found no reason to

undo the Bowers (supra) verdict stating that stare decisis

should carry the day. An interesting passage in Justice Scalia’s

judgment reads as follows:-

“Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts—or, for that matter, display any moral disapprobation of them—than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new “constitutional right” by a Court that is impatient of democratic change. It is indeed true that “later generations can see that laws once

assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”

And finally, it was held:- “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.”

27

thought necessary and proper in fact serve only to oppress,” [ante, at 579]; and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best.”

37. Before coming to our own judgments, we may quickly

survey some of the judgments of the courts of other democratic

nations. The European Community decisions, beginning with

Dudgeon v. United Kingdom (supra) and continuing with

Norris v. Ireland, Application no. 10581/83, and Modinos v.

Cyprus, 16 EHRR 485 (1993), have all found provisions similar

to Section 377 to be violative of Article 8 of the European

Human Rights Convention, 1948 in which everyone has the

right to respect for his private and family life, his home and his

correspondence, and no interference can be made with these

rights unless the law is necessary in a democratic society inter

alia for the prevention of disorder or crime, for the protection of

health or morals, or for the protection of the rights and

freedoms of others.

38. In El-Al Israel Airlines Ltd. v. Jonathan Danielwitz,

H.C.J. 721/94, the Supreme Court of Israel, speaking through

28

Barak, J., recognized a same-sex relationship so that a male

companion could be treated as being a companion for the

receipt of a free or discounted aeroplane ticket. The Court

held:-

“14.….The principle of equality demands that the existence of a rule that treats people differently is justified by the nature and substance of the issue. The principle of equality therefore presumes the existence of objective reasons that justify a difference (a distinction, dissimilarity). Discrimination — which is the opposite of equality — exists therefore in those situations where a different law for people who are (de facto) different from one another is based on reasons that are insufficient to justify a distinction between them in a free and democratic society. In Justice Or’s words, discrimination is ‘different treatment without an objective justification’ (Hoppert v. ‘Yad VaShem’ Holocaust Martyrs and Heroes Memorial Authority [12], at p. 360). President Agranat discussed this and pointed out:

‘The principle of equality, which is merely the opposite of discrimination and which, for reasons of justice and fairness, the law of every democratic country aspires to achieve, means that people must be treated equally for a particular purpose, when no real differences that are relevant to this purpose exist between them. If they are not treated equally, we have a case of discrimination. However, if the difference or differences between different people are relevant for the purpose under discussion, it is a permitted distinction to treat them differently for that purpose, provided that

29

those differences justify this. In this context, the concept of “equality” therefore means “relevant equality”, and it requires, with regard to the purpose under discussion, “equality of treatment” for those persons in this state. By contrast, it will be a permitted distinction if the different treatment of different persons derives from their being for the purpose of the treatment, in a state of relevant inequality, just as it will be discrimination if it derives from their being in a state of inequality that is not relevant to the purpose of the treatment’ (FH 10/69 Boronovski v. Chief Rabbis [16], at p. 35).

Therefore, a particular law will create discrimination when two individuals, who are different from one another (factual inequality), are treated differently by the law, even though the factual difference between them does not justify different treatment in the circumstances. Discrimination is therefore based on the factors of arbitrariness, injustice and unreasonableness.

XXX

17. We have seen, therefore, that giving a benefit to a (permanent) employee for a spouse or recognized companion of the opposite sex and not giving the same benefit for a same-sex companion amounts to a violation of equality. What is the nature of this discrimination? Indeed, all discrimination is prohibited, but among the different kinds of discrimination, there are varying degrees. The severity of the discrimination is determined by the severity of the violation of the principle of equality. Thus, for example, we consider discrimination on the basis of race, religion, nationality, language, ethnic group and age to be particularly serious. In

30

this framework, the Israeli legal system attaches great importance to the need to guarantee equality between the sexes and to prevent discrimination on the basis of sex (see HCJ 153/87 Shakdiel v. Minister of Religious Affairs [19]; Poraz v. Mayor of Tel Aviv-Jaffa [6]).”

(Emphasis supplied)

39. An instructive recent judgment from Trinidad and Tobago

in Jason Jones v. Attorney General of Trinidad and Tobago,

Claim No. CV 2017-00720, followed our judgment in

Puttaswamy (supra) in order to strike down Section 13 of the

Sexual Offences Act, 1986 on the ground that the State cannot

criminalise sexual relations of the same sex between

consenting adults. The court concluded:-

“168. Having regard to the evidence and submissions before this court on all sides, there is no cogent evidence that the legislative objective is sufficiently important to justify limiting the claimant’s rights. Mr. Hosein’s stated objectives of:

168.1. Maintaining traditional family and values that represent society;

168.2. Preserving the legislation as it is and clarifying the law; and

168.3. Extending the offence in section 16 to women and reduce it to serious indecency from gross indecency;

do not counterbalance the claimant’s limit of his fundamental right of which he has given evidence.

31

Instead, the court accepts the claimant’s position that the law as it stands is not sufficiently important to justify limiting his fundamental rights and that he has proven it on a balance of probabilities.”

40. To similar effect is the judgment of the High Court of Fiji in

Dhirendra Nadan v. State, Case No. HAA0085 of 2005, where

a Section similar to Section 377 was held to be inconsistent

with the constitutional right of privacy and invalid to the extent

that the law criminalises acts constituting private consensual

sexual conduct “against the course of nature” between adults.

41. The South African Supreme Court, by a decision of 1999

in The National Coalition for Gay and Lesbian Equality v.

The Minister of Home Affairs, Case CCT 10/99, after referring

to various judgments of other courts, also found a similar

section to be inconsistent with the fundamental rights under its

Constitution.

42. Another important decision is that of the United Nations

Human Rights Committee in Toonen v. Australia,

Communication No. 488/1992, U.N. Doc

CCPR/C/50/D/488/1992 (1994), dated 31.03.1994. The

Committee was called upon to determine whether Mr. Nicholas

32

Toonen, who resided in the state of Tasmania, had been the

victim of arbitrary interference with his privacy, and whether he

had been discriminated against on the basis of his sexual

orientation of being a homosexual. The Committee found:-

“8.2 Inasmuch as Article 17 is concerned, it is undisputed that adult consensual sexual activity in private is covered by the concept of “privacy”, and that Mr. Toonen is actually and currently affected by the continued existence of the Tasmanian laws. The Committee considers that Sections 122 (a), (c) and 123 of the Tasmanian Criminal Code “interfere” with the author's privacy, even if these provisions have not been enforced for a decade. In this context, it notes that the policy of the Department of Public Prosecutions not to initiate criminal proceedings in respect of private homosexual conduct does not amount to a guarantee that no actions will be brought against homosexuals in the future, particularly in the light of undisputed statements of the Director of Public Prosecutions of Tasmania in 1988 and those of members of the Tasmanian Parliament. The continued existence of the challenged provisions therefore continuously and directly “interferes” with the author's privacy.

8.3 The prohibition against private homosexual behaviour is provided for by law, namely, Sections 122 and 123 of the Tasmanian Criminal Code. As to whether it may be deemed arbitrary, the Committee recalls that pursuant to its General Comment 16 on article 17, the "introduction of the concept of arbitrariness is intended to guarantee that even interference provided for by the law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the circumstances”.(4) The

33

Committee interprets the requirement of reasonableness to imply that any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case.

XXX

8.5 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.

XXX

8.7 The State party has sought the Committee's guidance as to whether sexual orientation may be considered an “other status” for the purposes of article 26. The same issue could arise under article 2, paragraph 1, of the Covenant. The Committee confines itself to noting, however, that in its view the reference to "sex" in articles 2, paragraph 1, and 26 is to be taken as including sexual orientation.

XXX

10. Under article 2(3)(a) of the Covenant, the author, victim of a violation of articles 17, paragraph 1, juncto 2, paragraph 1, of the Covenant, is entitled to a remedy. In the opinion of the Committee, an

34

effective remedy would be the repeal of Sections 122(a), (c) and 123 of the Tasmanian Criminal Code.”

43. As a result of these findings, the Australian Parliament, on

19.12.1994, passed the Human Rights (Sexual Conduct) Act,

1994, Section 4 of which reads as under:-

“4. Arbitrary interferences with privacy

(1) Sexual conduct involving only consenting adults acting in private is not to be subject, by or under any law of the Commonwealth, a State or a Territory, to any arbitrary interference with privacy within the meaning of Article 17 of the International Covenant on Civil and Political Rights.

(2) For the purposes of this section, an adult is a person who is 18 years old or more.”

Recent Judgments of this Court

44. Anuj Garg and Ors. v. Hotel Association of India and

Ors., (2008) 3 SCC 1, is an important decision of this Court,

which dealt with the constitutional validity of another pre-

constitution enactment, namely, Section 30 of the Punjab

Excise Act of 1914, which prohibited employment of any

woman in any part of premises in which liquor is consumed by

the public. Sinha, J. adverted to the fact that when the original

35

Act was enacted, the concept of equality between the two

sexes was unknown. The Constitution changed all that when it

enacted Articles 14 and 15. What is of importance is that when

discrimination is made between two sets of persons, the

classification must be founded on some rational criteria having

regard to the societal conditions as they exist presently, and not

as they existed in the early 20th century or even earlier. This

was felicitously stated by the learned Judge as follows:-

“7. The Act is a pre-constitutional legislation. Although it is saved in terms of Article 372 of the Constitution, challenge to its validity on the touchstone of Articles 14, 15 and 19 of the Constitution of India, is permissible in law. While embarking on the questions raised, it may be pertinent to know that a statute although could have been held to be a valid piece of legislation keeping in view the societal condition of those times, but with the changes occurring therein both in the domestic as also international arena, such a law can also be declared invalid.

8. In John Vallamattom v. Union of India, (2003) 6 SCC 611, this Court, while referring to an amendment made in UK in relation to a provision which was in pari materia with Section 118 of Indian Succession Act, observed (SCC p. 624, para 28):

“28…The constitutionality of a provision, it is trite, will have to be judged keeping in view the interpretative changes of the statute affected by passage of time.”

36

Referring to the changing legal scenario and having regard to the Declaration on the Right to Development adopted by the World Conference on Human Rights as also Article 18 of the United Nations Covenant on Civil and Political Rights, 1966, it was held (John Vallamattom case, SCC p. 625, para 33):

“33. It is trite that having regard to Article 13(1) of the Constitution, the constitutionality of the impugned legislation is required to be considered on the basis of laws existing on 26-1-1950, but while doing so the court is not precluded from taking into consideration the subsequent events which have taken place thereafter. It is further trite that the law although may be constitutional when enacted but with passage of time the same may be held to be unconstitutional in view of the changed situation.”

XXX

26. When a discrimination is sought to be made on the purported ground of classification, such classification must be founded on a rational criteria. The criteria which in absence of any constitutional provision and, it will bear repetition to state, having regard to the societal conditions as they prevailed in early 20th century, may not be a rational criteria in the 21st century. In the early 20th century, the hospitality sector was not open to women in general. In the last 60 years, women in India have gained entry in all spheres of public life. They have also been representing people at grass root democracy. They are now employed as drivers of heavy transport vehicles, conductors of service carriages, pilots, et. al. Women can be seen to be occupying Class IV posts to the post of a Chief Executive Officer of a Multinational Company. They

37

are now widely accepted both in police as also army services.”

45. The Court went on to hold that “proportionality” should be

a standard capable of being called reasonable in a modern

democratic society (See paragraph 36).

In a significant paragraph, the learned Judge held:-

“43. Instead of prohibiting women employment in the bars altogether the State should focus on factoring in ways through which unequal consequences of sex differences can be eliminated. It is the State’s duty to ensure circumstances of safety which inspire confidence in women to discharge the duty freely in accordance to the requirements of the profession they choose to follow. Any other policy inference (such as the one embodied under Section 30) from societal conditions would be oppressive on the women and against the privacy rights.”

46. The learned Judge then went on to further hold that the

standard of judicial scrutiny of legislations, which on their face

effect discrimination, is as follows:-

“46. It is to be borne in mind that legislations with pronounced “protective discrimination” aims, such as this one, potentially serve as double-edged swords. Strict scrutiny test should be employed while assessing the implications of this variety of legislations. Legislation should not be only

38

assessed on its proposed aims but rather on the implications and the effects. The impugned legislation suffers from incurable fixations of stereotype morality and conception of sexual role. The perspective thus arrived at is outmoded in content and stifling in means.

47. No law in its ultimate effect should end up perpetuating the oppression of women. Personal freedom is a fundamental tenet which cannot be compromised in the name of expediency until and unless there is a compelling State purpose. Heightened level of scrutiny is the normative threshold for judicial review in such cases.”

47. Finally, the Court held:-

“50. The test to review such a protective discrimination statute would entail a two-pronged scrutiny:

(a) the legislative interference (induced by sex discriminatory legislation in the instant case) should be justified in principle,

(b) the same should be proportionate in measure.

51. The Court’s task is to determine whether the measures furthered by the State in the form of legislative mandate, to augment the legitimate aim of protecting the interests of women are proportionate to the other bulk of well-settled gender norms such as autonomy, equality of opportunity, right to privacy, et al. The bottomline in this behalf would be a functioning modern democratic society which ensures freedom to pursue varied opportunities and options without discriminating on the basis of sex, race, caste or any other like basis.

39

In fine, there should be a reasonable relationship of proportionality between the means used and the aim pursued.”

48. The Section which had been struck down by the High

Court was held to be arbitrary and unreasonable by this Court

as well.

49. Close on the heels of this Court’s judgment in Suresh

Kumar Koushal (supra) is this Court’s judgment in NALSA

(supra). In this case, the Court had to grapple with the trauma,

agony and pain of the members of the transgender community.

The Court referred to Section 377 in the following words:

“19. Section 377 IPC found a place in the Penal Code, 1860, prior to the enactment of the Criminal Tribes Act that criminalised all penile non-vaginal sexual acts between persons, including anal sex and oral sex, at a time when transgender persons were also typically associated with the proscribed sexual practices. Reference may be made to the judgment of the Allahabad High Court in Queen Empress v. Khairati, ILR (1884) 6 All 204, wherein a transgender person was arrested and prosecuted under Section 377 on the suspicion that he was a “habitual sodomite” and was later acquitted on appeal. In that case, while acquitting him, the Sessions Judge stated as follows: (ILR pp. 204-05)

“… ‘This case relates to a person named Khairati, over whom the police seem to have exercised some sort of supervision, whether strictly regular or not, as a

40

eunuch. The man is not a eunuch in the literal sense, but he was called for by the police when on a visit to his village, and was found singing dressed as a woman among the women of a certain family. Having been subjected to examination by the Civil Surgeon (and a subordinate medical man), he is shown to have the characteristic mark of a habitual catamite—the distortion of the orifice of the anus into the shape of a trumpet— and also to be affected with syphilis in the same region in a manner which distinctly points to unnatural intercourse within the last few months.’”

Even though, he was acquitted on appeal, this case would demonstrate that Section 377, though associated with specific sexual acts, highlighted certain identities, including hijras and was used as an instrument of harassment and physical abuse against hijras and transgender persons.”

50. The Court went on to explain the concepts of gender

identity and sexual orientation, and relied heavily upon

Yogyakarta Principles on the Application of International

Human Rights Law in Relation to Sexual Orientation and

Gender Identity. The Court then went on to hold:

“60. The principles discussed hereinbefore on TGs and the international conventions, including Yogyakarta Principles, which we have found not inconsistent with the various fundamental rights guaranteed under the Indian Constitution, must be recognised and followed, which has sufficient legal and historical justification in our country.”

41

51. Insofar as Articles 15 and 16 of the Constitution were

concerned, the Court held:

“66. Articles 15 and 16 sought to prohibit discrimination on the basis of sex, recognising that sex discrimination is a historical fact and needs to be addressed. The Constitution-makers, it can be gathered, gave emphasis to the fundamental right against sex discrimination so as to prevent the direct or indirect attitude to treat people differently, for the reason of not being in conformity with stereotypical generalisations of binary genders. Both gender and biological attributes constitute distinct components of sex. The biological characteristics, of course, include genitals, chromosomes and secondary sexual features, but gender attributes include one's self-image, the deep psychological or emotional sense of sexual identity and character. 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.”

52. Insofar as Article 19(1)(a) of the Constitution and

transgenders were concerned, the Court held:

“72. Gender identity, therefore, lies at the core of one's personal identity, gender expression and presentation and, therefore, it will have to be protected under Article 19(1)(a) of the Constitution of India. A transgender's personality could be expressed by the transgender's behaviour and presentation. State cannot prohibit, restrict or

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interfere with a transgender's expression of such personality, which reflects that inherent personality. Often the State and its authorities either due to ignorance or otherwise fail to digest the innate character and identity of such persons. We, therefore, hold that values of privacy, self-identity, autonomy and personal integrity are fundamental rights guaranteed to members of the transgender community under Article 19(1)(a) of the Constitution of India and the State is bound to protect and recognise those rights.”

53. In a significant paragraph relating to the personal

autonomy of an individual, this Court held:

“75. Article 21, as already indicated, guarantees the protection of “personal autonomy” of an individual. In Anuj Garg v. Hotel Assn. of India [(2008) 3 SCC 1] (SCC p. 15, paras 34-35), this Court held that personal autonomy includes both the negative right of not to be subject to interference by others and the positive right of individuals to make decisions about their life, to express themselves and to choose which activities to take part in. Self-determination of gender is an integral part of personal autonomy and self-expression and falls within the realm of personal liberty guaranteed under Article 21 of the Constitution of India.”

54. The conclusion therefore was:-

“83. We, therefore, conclude that discrimination on the basis of sexual orientation or gender identity includes any discrimination, exclusion, restriction or preference, which has the effect of nullifying or transposing equality by the law or the equal protection of laws guaranteed under our

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Constitution, and hence we are inclined to give various directions to safeguard the constitutional rights of the members of the TG community.”

55. Dr. A.K. Sikri, J., in a separate concurring judgment,

spoke of the fundamental and universal principle of the right of

choice given to every individual, which is an inseparable part of

human rights. He then went on to hold:-

“116.1. Though in the past TGs in India were treated with great respect, that does not remain the scenario any longer. Attrition in their status was triggered with the passing of the Criminal Tribes Act, 1871 which deemed the entire community of hijra persons as innately “criminal” and “adapted to the systematic commission of non-bailable offences”. This dogmatism and indoctrination of the Indian people with aforesaid presumption, was totally capricious and nefarious. There could not have been more harm caused to this community with the passing of the aforesaid brutal legislation during the British Regime with the vicious and savage mind- set. To add insult to the irreparable injury caused, Section 377 of the Penal Code was misused and abused as there was a tendency, in the British period, to arrest and prosecute TG persons under Section 377 merely on suspicion. To undergo this sordid historical harm caused to TGs of India, there is a need for incessant efforts with effervescence.”

56. And in paragraphs 125 and 129, he outlined the role of

our Court as follows:-

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“125. The role of the Court is to understand the central purpose and theme of the Constitution for the welfare of the society. Our Constitution, like the law of the society, is a living organism. It is based on a factual and social reality that is constantly changing. Sometimes a change in the law precedes societal change and is even intended to stimulate it. Sometimes, a change in the law is the result in the social reality. When we discuss about the rights of TGs in the constitutional context, we find that in order to bring about complete paradigm shift, the law has to play more predominant role. As TGs in India, are neither male nor female, treating them as belonging to either of the aforesaid categories, is the denial of these constitutional rights. It is the denial of social justice which in turn has the effect of denying political and economic justice.

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129. As we have pointed out above, our Constitution inheres liberal and substantive democracy with the rule of law as an important and fundamental pillar. It has its own internal morality based on dignity and equality of all human beings. The 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.”

57. In an unusual final order, the Court declared:-

“135. We, therefore, declare:

135.1. Hijras, eunuchs, apart from binary genders, be treated as “third gender” for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by Parliament and the State Legislature.

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135.2. Transgender persons' right to decide their self-identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender.

135.3. We direct the Centre and the State Governments to take steps to treat them as Socially and Educationally Backward Classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments.

135.4. The Centre and State Governments are directed to operate separate HIV serosurveillance centres since hijras/transgenders face several sexual health issues.

135.5. The Centre and State Governments should seriously address the problems being faced by hijras/transgenders such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, social stigma, etc. and any insistence for SRS for declaring one's gender is immoral and illegal.

135.6. The Centre and State Governments should take proper measures to provide medical care to TGs in the hospitals and also provide them separate public toilets and other facilities.

135.7. The Centre and State Governments should also take steps for framing various social welfare schemes for their betterment.

135.8. The Centre and State Governments should take steps to create public awareness so that TGs will feel that they are also part and parcel of the social life and be not treated as untouchables.

135.9. The Centre and the State Governments should also take measures to regain their respect

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and place in the society which once they enjoyed in our cultural and social life.”

58. Puttaswamy (supra) is the next important nail in the

coffin of section 377 insofar as it pertains to consensual sex

between same-sex adults. In this judgment, Chandrachud, J.

referred approvingly to the NALSA (supra) judgment in

paragraph 96 and went on to hold that privacy is intrinsic to

freedom and liberty. In referring to Suresh Kumar Koushal

(supra), Chandrachud, J. referred to the judgment as “another

discordant note” which directly bears upon the evolution of

constitutional jurisprudence on the right to privacy.

Chandrachud, J. went on to castigate the judgment in Suresh

Kumar Koushal (supra), and held:-

“144. Neither of the above reasons can be regarded as a valid constitutional basis for disregarding a claim based on privacy under Article 21 of the Constitution. That “a miniscule fraction of the country's population constitutes lesbians, gays, bisexuals or transgenders” (as observed in the judgment of this Court) is not a sustainable basis to deny the right to privacy. The purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities, whether legislative or popular. The guarantee of constitutional rights does not depend upon their exercise being favourably regarded by majoritarian opinion. The test of

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popular acceptance does not furnish a valid basis to disregard rights which are conferred with the sanctity of constitutional protection. Discrete and insular minorities face grave dangers of discrimination for the simple reason that their views, beliefs or way of life does not accord with the “mainstream”. Yet in a democratic Constitution founded on the Rule of Law, their rights are as sacred as those conferred on other citizens to protect their freedoms and liberties. Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.

145. The view in Koushal [Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1 : (2013) 4 SCC (Cri) 1] that the High Court had erroneously relied upon international precedents “in its anxiety to protect the so-called rights of LGBT persons” is similarly, in our view, unsustainable. The rights of the lesbian, gay, bisexual and transgender population cannot be construed to be “so-called rights”. The expression “so-called” seems to suggest the exercise of a liberty in the garb of a right which is illusory. This is an inappropriate construction of the privacy-based claims of the LGBT population. Their rights are not “so-called” but are real rights founded on sound constitutional doctrine. They inhere in the right to life. They dwell in privacy and dignity. They constitute the essence of liberty and freedom. Sexual orientation is an essential component of identity. Equal protection demands protection of the identity of every individual without discrimination.

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146. The decision in Koushal [Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1 : (2013) 4 SCC (Cri) 1] presents a de minimis rationale when it asserts that there have been only two hundred prosecutions for violating Section 377. The de minimis hypothesis is misplaced because the invasion of a fundamental right is not rendered tolerable when a few, as opposed to a large number of persons, are subjected to hostile treatment. The reason why such acts of hostile discrimination are constitutionally impermissible is because of the chilling effect which they have on the exercise of the fundamental right in the first place. For instance, pre-publication restraints such as censorship are vulnerable because they discourage people from exercising their right to free speech because of the fear of a restraint coming into operation. The chilling effect on the exercise of the right poses a grave danger to the unhindered fulfilment of one's sexual orientation, as an element of privacy and dignity. The chilling effect is due to the danger of a human being subjected to social opprobrium or disapproval, as reflected in the punishment of crime. Hence the Koushal [Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1 : (2013) 4 SCC (Cri) 1] rationale that prosecution of a few is not an index of violation is flawed and cannot be accepted. Consequently, we disagree with the manner in which Koushal [Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1 : (2013) 4 SCC (Cri) 1] has dealt with the privacy-dignity based claims of LGBT persons on this aspect.

147. Since the challenge to Section 377 is pending consideration before a larger Bench of this Court, we would leave the constitutional validity to be decided in an appropriate proceeding.”

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59. In an important paragraph, the learned Judge finally held:

“323. Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy. Privacy protects heterogeneity and recognises the plurality and diversity of our culture. While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place. Privacy attaches to the person since it is an essential facet of the dignity of the human being.”

60. Nariman, J., in his judgment, which was concurred in by

three other learned Judges, recognized the privacy of choice

which protects an individual’s autonomy over fundamental

personal choices as follows:-

“521. In the Indian context, a fundamental right to privacy would cover at least the following three aspects:

• Privacy that involves the person i.e. when there is some invasion by the State of a person's rights relatable to his physical body, such as the right to move freely;

• Informational privacy which does not deal with a person's body but deals with a person's mind, and therefore recognises that an individual may have

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control over the dissemination of material that is personal to him. Unauthorised use of such information may, therefore lead to infringement of this right; and

• The privacy of choice, which protects an individual's autonomy over fundamental personal choices.

For instance, we can ground physical privacy or privacy relating to the body in Articles 19(1)(d) and (e) read with Article 21; ground personal information privacy under Article 21; and the privacy of choice in Articles 19(1)(a) to (c), 20(3), 21 and 25. The argument based on “privacy” being a vague and nebulous concept need not, therefore, detain us.”

61. Kaul, J., in a separate judgment, also joined

Chandrachud, J. in castigating Suresh Kumar Koushal’s

judgment as follows:

“647. There are two aspects of the opinion of Dr D.Y. Chandrachud, J., one of which is common to the opinion of Rohinton F. Nariman, J., needing specific mention. While considering the evolution of constitutional jurisprudence on the right to privacy he has referred to the judgment in Suresh Kumar Koushal v. Naz Foundation [Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1 : (2013) 4 SCC (Cri) 1]. In the challenge laid to Section 377 of the Penal Code before the Delhi High Court, one of the grounds of challenge was that the said provision amounted to an infringement of the right to dignity and privacy. The Delhi High Court, inter alia, observed [Naz Foundation v. Govt. (NCT of Delhi), 2009 SCC OnLine Del 1762 : 2010 Cri LJ 94] that the right to live with dignity and the right to privacy both are recognised as dimensions of Article 21 of

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the Constitution of India. The view of the High Court, however did not find favour with the Supreme Court and it was observed that only a miniscule fraction of the country's population constitutes lesbians, gays, bisexuals or transgenders and thus, there cannot be any basis for declaring the section ultra vires of provisions of Articles 14, 15 and 21 of the Constitution. The matter did not rest at this, as the issue of privacy and dignity discussed by the High Court was also observed upon. The sexual orientation even within the four walls of the house thus became an aspect of debate. I am in agreement with the view of Dr D.Y. Chandrachud, J., who in paras 144 to 146 of his judgment, states that the right to privacy cannot be denied, even if there is a miniscule fraction of the population which is affected. The majoritarian concept does not apply to constitutional rights and the courts are often called up on to take what may be categorised as a non-majoritarian view, in the check and balance of power envisaged under the Constitution of India. One's sexual orientation is undoubtedly an attribute of privacy. The observations made in Mosley v. News Group Papers Ltd. [Mosley v. News Group Papers Ltd., 2008 EWHC 1777 (QB)], in a broader concept may be usefully referred to:

“130. … It is not simply a matter of personal privacy versus the public interest. The modern perception is that there is a public interest in respecting personal privacy. It is thus a question of taking account of conflicting public interest considerations and evaluating them according to increasingly well-recognised criteria.

131. When the courts identify an infringement of a person's Article 8 rights, and in particular in the context of his freedom to conduct his sex life and

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personal relationships as he wishes, it is right to afford a remedy and to vindicate that right. The only permitted exception is where there is a countervailing public interest which in the particular circumstances is strong enough to outweigh it; that is to say, because one at least of the established “limiting principles” comes into play. Was it necessary and proportionate for the intrusion to take place, for example, in order to expose illegal activity or to prevent the public from being significantly misled by public claims hitherto made by the individual concerned (as with Naomi Campbell's public denials of drug-taking)? Or was it necessary because the information, in the words of the Strasbourg Court in Von Hannover [Von Hannover v. Germany, (2004) 40 EHRR 1] at pp. 60 and 76, would make a contribution to “a debate of general interest”? That is, of course, a very high test, it is yet to be determined how far that doctrine will be taken in the courts of this jurisdiction in relation to photography in public places. If taken literally, it would mean a very significant change in what is permitted. It would have a profound effect on the tabloid and celebrity culture to which we have become accustomed in recent years.”

62. Close upon the heels of these three judgments are three

other important recent decisions. In Common Cause v. Union

of India, 2018 5 SCC 1, a case dealing with euthanasia, Dipak

Misra, C.J., states as under:-

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“166. The purpose of saying so is only to highlight that the law must take cognizance of the changing society and march in consonance with the developing concepts. The need of the present has to be served with the interpretative process of law. However, it is to be seen how much strength and sanction can be drawn from the Constitution to consummate the changing ideology and convert it into a reality. The immediate needs are required to be addressed through the process of interpretation by the Court unless the same totally falls outside the constitutional framework or the constitutional interpretation fails to recognise such dynamism. The Constitution Bench in Gian Kaur [Gian Kaur v. State of Punjab, (1996) 2 SCC 648 : 1996 SCC (Cri) 374], as stated earlier, distinguishes attempt to suicide and abetment of suicide from acceleration of the process of natural death which has commenced. The authorities, we have noted from other jurisdictions, have observed the distinctions between the administration of lethal injection or certain medicines to cause painless death and non- administration of certain treatment which can prolong the life in cases where the process of dying that has commenced is not reversible or withdrawal of the treatment that has been given to the patient because of the absolute absence of possibility of saving the life. To explicate, the first part relates to an overt act whereas the second one would come within the sphere of informed consent and authorised omission. The omission of such a nature will not invite any criminal liability if such action is guided by certain safeguards. The concept is based on non-prolongation of life where there is no cure for the state the patient is in and he, under no circumstances, would have liked to have such a degrading state. The words “no cure” have to be understood to convey that the patient remains in the same state of pain and suffering or the dying process is delayed by means of taking recourse to

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modern medical technology. It is a state where the treating physicians and the family members know fully well that the treatment is administered only to procrastinate the continuum of breath of the individual and the patient is not even aware that he is breathing. Life is measured by artificial heartbeats and the patient has to go through this undignified state which is imposed on him. The dignity of life is denied to him as there is no other choice but to suffer an avoidable protracted treatment thereby thus indubitably casting a cloud and creating a dent in his right to live with dignity and face death with dignity, which is a preserved concept of bodily autonomy and right to privacy. In such a stage, he has no old memories or any future hopes but he is in a state of misery which nobody ever desires to have. Some may also silently think that death, the inevitable factum of life, cannot be invited. To meet such situations, the Court has a duty to interpret Article 21 in a further dynamic manner and it has to be stated without any trace of doubt that the right to life with dignity has to include the smoothening of the process of dying when the person is in a vegetative state or is living exclusively by the administration of artificial aid that prolongs the life by arresting the dignified and inevitable process of dying. Here, the issue of choice also comes in. Thus analysed, we are disposed to think that such a right would come within the ambit of Article 21 of the Constitution.

L. Right of self-determination and individual autonomy

167. Having dealt with the right to acceleration of the process of dying a natural death which is arrested with the aid of modern innovative technology as a part of Article 21 of the Constitution, it is necessary to address the issues of right of self- determination and individual autonomy.

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168. John Rawls says that the liberal concept of autonomy focuses on choice and likewise, self- determination is understood as exercised through the process of choosing [Rawls, John, Political Liberalism, 32, 33 (New York: Columbia University Press, 1993)]. The respect for an individual human being and in particular for his right to choose how he should live his own life is individual autonomy or the right of self-determination. It is the right against non- interference by others, which gives a competent person who has come of age the right to make decisions concerning his or her own life and body without any control or interference of others. Lord Hoffman, in Reeves v. Commr. of Police of the Metropolis [Reeves v. Commr. of Police of the Metropolis, (2000) 1 AC 360 : (1993) 3 WLR 363 (HL)] has stated: (AC p. 369 B)

“… Autonomy means that every individual is sovereign over himself and cannot be denied the right to certain kinds of behaviour, even if intended to cause his own death.”

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202.8. An inquiry into Common Law jurisdictions reveals that all adults with capacity to consent have the right of self-determination and autonomy. The said rights pave the way for the right to refuse medical treatment which has acclaimed universal recognition. A competent person who has come of age has the right to refuse specific treatment or all treatment or opt for an alternative treatment, even if such decision entails a risk of death. The “Emergency Principle” or the “Principle of Necessity” has to be given effect to only when it is not practicable to obtain the patient's consent for treatment and his/her life is in danger. But where a patient has already made a valid Advance Directive which is free from reasonable doubt and specifying

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that he/she does not wish to be treated, then such directive has to be given effect to.”

63. In the same case, Chandrachud J. went on to hold:

“437. Under our Constitution, the inherent value which sanctifies life is the dignity of existence. Recognising human dignity is intrinsic to preserving the sanctity of life. Life is truly sanctified when it is lived with dignity. There exists a close relationship between dignity and the quality of life. For, it is only when life can be lived with a true sense of quality that the dignity of human existence is fully realised. Hence, there should be no antagonism between the sanctity of human life on the one hand and the dignity and quality of life on the other hand. Quality of life ensures dignity of living and dignity is but a process in realising the sanctity of life.

438. Human dignity is an essential element of a meaningful existence. A life of dignity comprehends all stages of living including the final stage which leads to the end of life. Liberty and autonomy are essential attributes of a life of substance. It is liberty which enables an individual to decide upon those matters which are central to the pursuit of a meaningful existence. The expectation that the individual should not be deprived of his or her dignity in the final stage of life gives expression to the central expectation of a fading life: control over pain and suffering and the ability to determine the treatment which the individual should receive. When society assures to each individual a protection against being subjected to degrading treatment in the process of dying, it seeks to assure basic human dignity. Dignity ensures the sanctity of life. The recognition afforded to the autonomy of the individual in matters relating to end-of-life decisions

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is ultimately a step towards ensuring that life does not despair of dignity as it ebbs away.

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441. The protective mantle of privacy covers certain decisions that fundamentally affect the human life cycle. [Richard Delgado, “Euthanasia Reconsidered—The Choice of Death as an Aspect of the Right of Privacy”, Arizona Law Review (1975), Vol. 17, at p. 474.] It protects the most personal and intimate decisions of individuals that affect their life and development. [Ibid.] Thus, choices and decisions on matters such as procreation, contraception and marriage have been held to be protected. While death is an inevitable end in the trajectory of the cycle of human life of individuals are often faced with choices and decisions relating to death. Decisions relating to death, like those relating to birth, sex, and marriage, are protected by the Constitution by virtue of the right of privacy. The right to privacy resides in the right to liberty and in the respect of autonomy. [T.L. Beauchamp, “The Right to Privacy and the Right to Die”, Social Philosophy and Policy (2000), Vol. 17, at p. 276.] The right to privacy protects autonomy in making decisions related to the intimate domain of death as well as bodily integrity. Few moments could be of as much importance as the intimate and private decisions that we are faced regarding death. [Ibid.] Continuing treatment against the wishes of a patient is not only a violation of the principle of informed consent, but also of bodily privacy and bodily integrity that have been recognised as a facet of privacy by this Court.”

64. Similarly, in Shafin Jahan v. Asokan K.M., 2018 SCC

Online 343, this Court was concerned with the right of an adult

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citizen to make her own marital choice. The learned Chief

Justice referred to Articles 19 and 21 of the Constitution of India

as follows:-

“28. Thus, the pivotal purpose of the said writ is to see that no one is deprived of his/her liberty without sanction of law. It is the primary duty of the State to see that the said right is not sullied in any manner whatsoever and its sanctity is not affected by any kind of subterfuge. The role of the Court is to see that the detenue is produced before it, find out about his/her independent choice and see to it that the person is released from illegal restraint. The issue will be a different one when the detention is not illegal. What is seminal is to remember that the song of liberty is sung with sincerity and the choice of an individual is appositely respected and conferred its esteemed status as the Constitution guarantees. It is so as the expression of choice is a fundamental right under Articles 19 and 21 of the Constitution, if the said choice does not transgress any valid legal framework. Once that aspect is clear, the enquiry and determination have to come to an end.

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54. It is obligatory to state here that expression of choice in accord with law is acceptance of individual identity. Curtailment of that expression and the ultimate action emanating therefrom on the conceptual structuralism of obeisance to the societal will destroy the individualistic entity of a person. The social values and morals have their space but they are not above the constitutionally guaranteed freedom. The said freedom is both a constitutional and a human right. Deprivation of that freedom which is ingrained in choice on the plea of faith is impermissible. Faith of a person is intrinsic to

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his/her meaningful existence. To have the freedom of faith is essential to his/her autonomy; and it strengthens the core norms of the Constitution. Choosing a faith is the substratum of individuality and sans it, the right of choice becomes a shadow. It has to be remembered that the realization of a right is more important than the conferment of the right. Such actualization indeed ostracises any kind of societal notoriety and keeps at bay the patriarchal supremacy. It is so because the individualistic faith and expression of choice are fundamental for the fructification of the right. Thus, we would like to call it indispensable preliminary condition.”

65. In another recent judgment of a three-Judge Bench, in

Shakti Vahini v. Union of India, 2018 SCC Online SC 275,

which dealt with honour killings, this Court held:-

“44. Honour killing guillotines individual liberty, freedom of choice and one's own perception of choice. It has to be sublimely borne in mind that when two adults consensually choose each other as life partners, it is a manifestation of their choice which is recognized under Articles 19 and 21 of the Constitution. Such a right has the sanction of the constitutional law and once that is recognized, the said right needs to be protected and it cannot succumb to the conception of class honour or group thinking which is conceived of on some notion that remotely does not have any legitimacy.

45. The concept of liberty has to be weighed and tested on the touchstone of constitutional sensitivity, protection and the values it stands for. It is the obligation of the Constitutional Courts as the sentinel on qui vive to zealously guard the right to liberty of an individual as the dignified existence of

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an individual has an inseparable association with liberty. Without sustenance of liberty, subject to constitutionally valid provisions of law, the life of a person is comparable to the living dead having to endure cruelty and torture without protest and tolerate imposition of thoughts and ideas without a voice to dissent or record a disagreement. The fundamental feature of dignified existence is to assert for dignity that has the spark of divinity and the realization of choice within the parameters of law without any kind of subjugation. The purpose of laying stress on the concepts of individual dignity and choice within the framework of liberty is of paramount importance. We may clearly and emphatically state that life and liberty sans dignity and choice is a phenomenon that allows hollowness to enter into the constitutional recognition of identity of a person.

46. The choice of an individual is an inextricable part of dignity, for dignity cannot be thought of where there is erosion of choice. True it is, the same is bound by the principle of constitutional limitation but in the absence of such limitation, none, we mean, no one shall be permitted to interfere in the fructification of the said choice. If the right to express one's own choice is obstructed, it would be extremely difficult to think of dignity in its sanctified completeness. When two adults marry out of their volition, they choose their path; they consummate their relationship; they feel that it is their goal and they have the right to do so. And it can unequivocally be stated that they have the right and any infringement of the said right is a constitutional violation. The majority in the name of class or elevated honour of clan cannot call for their presence or force their appearance as if they are the monarchs of some indescribable era who have the power, authority and final say to impose any sentence and determine the execution of the same in the way they desire possibly harbouring the

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notion that they are a law unto themselves or they are the ancestors of Caesar or, for that matter, Louis the XIV. The Constitution and the laws of this country do not countenance such an act and, in fact, the whole activity is illegal and punishable as offence under the criminal law.”

Mental Healthcare Act, 2017

66. Parliament is also alive to privacy interests and the fact

that persons of the same-sex who cohabit with each other are

entitled to equal treatment.

67. A recent enactment, namely the Mental Healthcare Act,

2017, throws a great deal of light on recent parliamentary

legislative understanding and acceptance of constitutional

values as reflected by this Court’s judgments. Section 2(s) of

the Act defines mental illness, which reads as under:

“2(s) “mental illness” means a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs, but does not include mental retardation which is a condition of arrested or incomplete development of mind of a person, specially characterised by subnormality of intelligence;”

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68. This definition throws to the winds all earlier

misconceptions of mental illness including the fact that same-

sex couples who indulge in anal sex are persons with mental

illness. At one point of time, the thinking in Victorian England

and early on in America was that homosexuality was to be

considered as a mental disorder. The amicus curiae brief of the

American Psychiatric Association in support of the petitioners in

Lawrence v. Texas (supra) has put paid to this notion. This

brief set out the research that has been done in this area as

follows:

“D. The Recognition That Homosexuality Is Not A “Mental Disorder”

The American mental health professions concluded more than a quarter-century ago that homosexuality is not a mental disorder. That conclusion was reached after decades of study of homosexuality by independent researchers, as well as numerous attempts by practitioners in the mental-health professions to effectuate a change in individuals’ sexual orientation. During the first half of the 20th century, many mental health professionals regarded homosexuality as a pathological condition, but that perspective reflected untested assumptions supported largely by clinical impressions of patients seeking therapy and individuals whose conduct brought them into the criminal justice system. See J.C. Gonsiorek, The Empirical Basis for the Demise of the Illness Model of Homosexuality, in Homosexuality: Research Implications for Public

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Policy 115 (J.C. Gonsiorek & J.D. Weinrich eds., 1991). Those assumptions were not subjected to rigorous scientific scrutiny with nonclinical, nonincarcerated samples until the latter half of the century. Once the notion that homosexuality is linked to mental illness was empirically tested, it proved to be based on untenable assumptions and value judgments.

In one of the first rigorous examinations of the mental health status of homosexuality, Dr. Evelyn Hooker administered a battery of standard psychological tests to homosexual and heterosexual men who were matched for age, IQ, and education. See Evelyn Hooker, The Adjustment of the Male Overt Homosexual, 21 J. Projective Techniques 17- 31 (1957). None of the men was in therapy at the time of the study. Based on the ratings of expert judges who were kept unaware of the men’s sexual orientation, Hooker determined that homosexual and heterosexual men could not be distinguished from one another on the basis of the psychological testing, and that a similar majority of the two groups appeared to be free of psychopathology. She concluded from her data that homosexuality is not inherently associated with psychopathology and that “homosexuality as a clinical entity does not exist.” Id. at 18-19. Hooker’s findings were followed over the next two decades by numerous studies, using a variety of research techniques, which similarly concluded that homosexuality is not related to psychopathology or social maladjustment.

In 1973, in recognition that scientific data do not indicate that a homosexual orientation is inherently associated with psychopathology, amicus American Psychiatric Association’s Board of Trustees voted to remove homosexuality from the Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders. That resolution stated that “homosexuality per se implies no impairment in

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judgment, stability, reliability, or general social or vocational capabilities.” Am. Psychiatric Ass’n, Position Statement on Homosexuality and Civil Rights (Dec. 15, 1973), printed in 131 Am. J. Psychiatry 497 (1974). That decision was upheld by a vote of the Psychiatric Association’s membership the following year. After a thorough review of the scientific evidence, amicus American Psychological Association adopted the same position in 1975, and urged all mental health professionals to help dispel the stigma of mental illness that had long been associated with homosexual orientation. See Am. Psychol. Ass’n, Minutes of the Annual Meeting of the Council of Representatives, 30 Am. Psychologist 620, 633 (1975). Amicus National Association of Social Workers (NASW) has adopted a similar policy. See NASW, Policy Statement on Lesbian and Gay Issues (Aug. 1993) (approved by NASW Delegate Assembly), reprinted in NASW, Social Work Speaks: NASW Policy Statements 162 (3d ed. 1994).

Of course, as is the case for heterosexuals, some homosexuals have mental illnesses, psychological disturbances, or poor social adjustment. Gay men, lesbians, and bisexuals also may be at somewhat greater risk for some kinds of psychological problems because of stresses associated with the experiences of social stigma and prejudice (see pp. 23-27, infra). But research conducted over four decades has established that “homosexuality in and of itself bears no necessary relationship to psychological adjustment.” The efforts to “cure” homosexuality that were prevalent in earlier generations—which included hypnosis, administration of hormones, aversive conditioning with electric shock or nausea-inducing drugs, lobotomy, electroshock, and castration—are now regarded by the mental-health professions as regrettable.”

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69. It also outlined the prejudice, discrimination and violence

that has been encountered by gay people, as follows:

“A. Discrimination, Prejudice, And Violence Encountered By Gay People

Lesbians and gay men in the United States encounter extensive prejudice, discrimination, and violence because of their sexual orientation. Intense prejudice against gay men and lesbians was widespread throughout much of the 20th century; public opinion studies routinely showed that, among large segments of the public, gay people were the target of strong antipathy. Although a shift in public opinion concerning homosexuality occurred in the 1990s, hostility toward gay men and lesbians remains common in contemporary American society. Prejudice against bisexuals appears to exist at comparable levels. Discrimination against gay people in employment and housing also appears to remain widespread.

The severity of this anti-gay prejudice is reflected in the consistently high rate of anti-gay harassment and violence in American society. Numerous surveys indicate that verbal harassment and abuse are nearly universal experiences of gay people. Although physical violence is less common, substantial numbers of gay people report having experienced crimes against their person or property because of their sexual orientation. In 2001, the most recent year for which FBI statistics are available, there were 1,375 reported bias motivated incidents against gay men, lesbians, and bisexuals. That figure likely represents only a fraction of such crimes, because reporting of hate crimes by law enforcement agencies is voluntary, the thoroughness of police statistics differs widely

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among jurisdictions, and many victims do not report their experiences to police because they fear further harassment or lack confidence that the assailants will be caught.

Although homosexuality is not a mental disorder, this societal prejudice against gay men and lesbians can cause them real and substantial psychological harm. Research indicates that experiencing rejection, discrimination, and violence is associated with heightened psychological distress among gay men and lesbians. These problems are exacerbated by the fact that, because of anti-gay stigma, gay men and lesbians have less access to social support and other resources that assist heterosexuals in coping with stress. Although many gay men and lesbians learn to cope with the social stigma against homosexuality, efforts to avoid that social stigma through attempts to conceal or dissimulate sexual orientation can be seriously damaging to the psychological well-being of gay people. Lesbians and gay men have been found to manifest better mental health to the extent that they feel positively about their sexual orientation and have integrated it into their lives through “coming out” and participating in the gay community. Being able to disclose one’s sexual orientation to others also increases the availability of social support, which is crucial to mental health.”

70. Expressing its approval of the position taken by the

American Psychiatric Association, the Indian Psychiatric

Society in its recent Position Statement on Homosexuality

dated 02.07.2018 has stated:-

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“In the opinion of the Indian Psychiatric Society (IPS) homosexuality is not a psychiatric disorder.

This is in line with the position of American Psychiatric Association and The International Classification of Diseases of the World health Organization which removed homosexuality from the list of psychiatric disorders in 1973 and 1992 respectively.

The I.P.S recognizes same-sex sexuality as a normal variant of human sexuality much like heterosexuality and bisexuality. There 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.

The Indian Psychiatric Society further supports de- criminalization of homosexual behavior.”

71. The US Supreme Court, in its decision in Obergefell et

al. v. Hodges, Director, Ohio Department of Health, et al.,

576 US (2015), also took note of the enormous sufferings of

homosexual persons in the time gap between Bowers (supra)

and Lawrence v. Texas (supra), in the following words:-

“This is not the first time the Court has been asked to adopt a cautious approach to recognizing and protecting fundamental rights. In Bowers, a bare majority upheld a law criminalizing same-sex intimacy. See 478 U.S., at 186, 190–195. That approach might have been viewed as a cautious endorsement of the democratic process, which had only just begun to consider the rights of gays and lesbians. Yet, in effect, Bowers upheld state action

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that denied gays and lesbians a fundamental right and caused them pain and humiliation. As evidenced by the dissents in that case, the facts and principles necessary to a correct holding were known to the Bowers Court. See id., at 199 (Blackmun, J., joined by Brennan, Marshall, and Stevens, JJ., dissenting); id., at 214 (Stevens, J., joined by Brennan and Marshall, JJ., dissenting). That is why Lawrence held Bowers was “not correct when it was decided.” 539 U.S., at 578. Although Bowers was eventually repudiated in Lawrence, men and women were harmed in the interim, and the substantial effects of these injuries no doubt lingered long after Bowers was overruled. Dignitary wounds cannot always be healed with the stroke of a pen.”

72. The present definition of mental illness in the 2017

Parliamentary statute makes it clear that homosexuality is not

considered to be a mental illness. This is a major advance in

our law which has been recognized by the Parliament itself.

Further, this is buttressed by Section 3 of the Act which reads

as follows:-

“3. Determination of Mental Illness. (1) Mental illness shall be determined in accordance with such nationally or internationally accepted medical standards (including the latest edition of the International Classification of Disease of the World Health Organisation) as may be notified by the Central Government.

(2) No person or authority shall classify a person as a person with mental illness, except for purposes

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directly relating to the treatment of the mental illness or in other matters as covered under this Act or any other law for the time being in force.

(3) Mental illness of a person shall not be determined on the basis of––

(a) political, economic or social status or membership of a cultural, racial or religious group, or for any other reason not directly relevant to mental health status of the person;

(b) non-conformity with moral, social, cultural, work or political values or religious beliefs prevailing in a person’s community.

(4) Past treatment or hospitalisation in a mental health establishment though relevant, shall not by itself justify any present or future determination of the person’s mental illness.

(5) The determination of a person’s mental illness shall alone not imply or be taken to mean that the person is of unsound mind unless he has been declared as such by a competent court.”

73. Mental illness in our statute has to keep pace with

international notions and accepted medical standards including

the latest edition of the International Classification of Diseases

of the World Health Organization under Section 3(1) of the Act.

Under Section 3(3), mental illness shall not be determined on

the basis of social status or membership of a cultural group or

for any other reason not directly relevant to the mental health of

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the person. More importantly, mental illness shall not be

determined on the basis of non-conformity with moral, social,

cultural, work or political values or religious beliefs prevailing in

a person’s community. It is thus clear that Parliament has

unequivocally declared that the earlier stigma attached to

same-sex couples, as persons who are regarded as mentally ill,

has gone for good. This is another very important step forward

taken by the legislature itself which has undermined one of the

basic underpinnings of the judgment in Suresh Kumar

Koushal (supra).

Section 21(1)(a) is important and set out hereinbelow:

“21. Right to equality and non-discrimination. (1) Every person with mental illness shall be treated as equal to persons with physical illness in the provision of all healthcare which shall include the following, namely:–

(a) there shall be no discrimination on any basis including gender, sex, sexual orientation, religion, culture, caste, social or political beliefs, class or disability;”

74. This Section is parliamentary recognition of the fact that

gay persons together with other persons are liable to be

affected with mental illness, and shall be treated as equal to the

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other persons with such illness as there is to be no

discrimination on the basis of sexual orientation. Section 30 is

extremely important and reads as under:

“30. Creating awareness about mental health and illness and reducing stigma associated with mental illness. The appropriate Government shall take all measures to ensure that,— (a) the provisions of this Act are given wide publicity through public media, including television, radio, print and online media at regular intervals; (b) the programmes to reduce stigma associated with mental illness are planned, designed, funded and implemented in an effective manner; (c) the appropriate Government officials including police officers and other officers of the appropriate Government are given periodic sensitisation and awareness training on the issues under this Act.”

75. Section 115 largely does away with one other outmoded

Section of the Indian Penal Code, namely, Section 309. This

Section reads as follows.

“115. Presumption of severe stress in case of attempt to commit suicide. (1) Notwithstanding anything contained in section 309 of the Indian Penal Code any person who attempts to commit suicide shall be presumed, unless proved otherwise, to have severe stress and shall not be tried and punished under the said Code.

(2) The appropriate Government shall have a duty to provide care, treatment and rehabilitation to a person, having severe stress and who attempted to

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commit suicide, to reduce the risk of recurrence of attempt to commit suicide.”

76. Instead of the inhumane Section 309 which has remained

on the statute book for over 150 years, Section 115 makes it

clear that Section 309 is rendered largely ineffective, and on the

contrary, instead of committing a criminal offence, any person

who attempts to commit suicide shall be presumed to have

severe stress and shall not be tried and punished under Section

309 of the Indian Penal Code. More importantly, the

Government has an affirmative duty to provide care, treatment

and rehabilitation to such a person to reduce the risk of

recurrence of that person’s attempt to commit suicide. This

parliamentary declaration under Section 115 again is in keeping

with the present constitutional values, making it clear that

humane measures are to be taken by the Government in

respect of a person who attempts to commit suicide instead of

prosecuting him for the offence of attempt to commit suicide.

77. And finally, Section 120 of the Act reads as under:-

“120. Act to have overriding effect. The provisions of this Act shall have overriding effect notwithstanding anything inconsistent therewith

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contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.”

78. The Latin maxim cessant ratione legis, cessat ipsa lex,

meaning when the reason for a law ceases, the law itself

ceases, is a rule of law which has been recognized by this

Court in H.H. Shri Swamiji of Shri Amar Mutt v.

Commissioner, Hindu Religious and Charitable

Endowments Dept, 1979 4 SCC 642 at paragraph 29, and

State of Punjab v. Devans Modern Breweries Ltd., (2004) 11

SCC 26 at paragraph 335. It must not be forgotten that Section

377 was the product of the Victorian era, with its attendant

puritanical moral values. Victorian morality must give way to

constitutional morality as has been recognized in many of our

judgments. Constitutional morality is the soul of the

Constitution, which is to be found in the Preamble of the

Constitution, which declares its ideals and aspirations, and is

also to be found in Part III of the Constitution, particularly with

respect to those provisions which assure the dignity of the

individual. The rationale for Section 377, namely Victorian

morality, has long gone and there is no reason to continue with

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- as Justice Holmes said in the lines quoted above in this

judgment - a law merely for the sake of continuing with the law

when the rationale of such law has long since disappeared.

79. Given our judgment in Puttaswamy (supra), in particular,

the right of every citizen of India to live with dignity and the right

to privacy including the right to make intimate choices regarding

the manner in which such individual wishes to live being

protected by Articles 14, 19 and 21, it is clear that Section 377,

insofar as it applies to same-sex consenting adults, demeans

them by having them prosecuted instead of understanding their

sexual orientation and attempting to correct centuries of the

stigma associated with such persons.

80. The Union of India, seeing the writing on the wall, has

filed an affidavit in which it has not opposed the Petitioners but

left the matter to be considered by the wisdom of this Court.

Some of the intervenors have argued in favour of the retention

of Section 377 qua consenting adults on the grounds that

homosexual acts are not by themselves proscribed by Section

377. Unless there is penetration in the manner pointed out by

the explanation to the Section, no offence takes place. They

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have also added that the Section needs to be retained given

the fact that it is only a parliamentary reflection of the prevailing

social mores of today in large segments of society. According to

them, this furthers a compelling state interest to reinforce

morals in public life which is not disproportionate in nature. We

are afraid that, given the march of events in constitutional law

by this Court, and parliamentary recognition of the plight of

such persons in certain provisions of the Mental Healthcare Act,

2017, it will not be open for a constitutional court to substitute

societal morality with constitutional morality, as has been stated

by us hereinabove. Further, as stated in S. Khushboo v.

Kanniammal and Anr., (2010) 5 SCC 600, at paragraphs 46

and 50, this Court made it clear that notions 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 co-extensive - sin is

not punishable on earth by Courts set up by the State but

elsewhere; crime alone is punishable on earth. To confuse the

one with the other is what causes the death knell of Section

377, insofar as it applies to consenting homosexual adults.

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81. Another argument raised on behalf of the intervenors is

that change in society, if any, can be reflected by amending

laws by the elected representatives of the people. Thus, it

would be open to the Parliament to carve out an exception from

Section 377, but this Court should not indulge in taking upon

itself the guardianship of changing societal mores. Such an

argument must be emphatically rejected. The very purpose of

the fundamental rights chapter in the Constitution of India is to

withdraw the subject of liberty and dignity of the individual and

place such subject beyond the reach of majoritarian

governments so that constitutional morality can be applied by

this Court to give effect to the rights, among others, of ‘discrete

and insular’ minorities.6 One such minority has knocked on the

doors of this Court as this Court is the custodian of the

fundamental rights of citizens. These fundamental rights do not

depend upon the outcome of elections. And, it is not left to

majoritarian governments to prescribe what shall be orthodox in

matters concerning social morality. The fundamental rights

chapter is like the north star in the universe of constitutionalism

6 This phrase occurs in one of the most celebrated footnotes in the US Supreme Court’s constitutional history – namely, Footnote 4 of United States v. Carolene Products Co., 304 U.S. 144 (1938).

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in India.7 Constitutional morality always trumps any imposition

of a particular view of social morality by shifting and different

majoritarian regimes.

82. Insofar as Article 14 is concerned, this Court in Shayara

Bano v. Union of India, (2017) 9 SCC 1, has stated, in

paragraph 101, that a statutory provision can be struck down on

the ground of manifest arbitrariness, when the provision is

capricious, irrational and/or without adequate determining

principle, as also if it is excessive or disproportionate. We find

that Section 377, in penalizing consensual gay sex, is

manifestly arbitrary. Given modern psychiatric studies and

legislation which recognizes that gay persons and transgenders

are not persons suffering from mental disorder and cannot

therefore be penalized, the Section must be held to be a

provision which is capricious and irrational. Also, roping in such

persons with sentences going upto life imprisonment is clearly

excessive and disproportionate, as a result of which, when

applied to such persons, Articles 14 and 21 of the Constitution 7 In William Shakespeare’s Julius Caesar (Act III, Scene 1), Caesar tells Cassius-

“I could be well moved, if I were as you; If I could pray to move, prayers would move me:

But I am constant as the Northern Star, Of whose true-fixed and resting quality

There is no fellow in the firmament.”

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would clearly be violated. The object sought to be achieved by

the provision, namely to enforce Victorian mores upon the

citizenry of India, would be out of tune with the march of

constitutional events that has since taken place, rendering the

said object itself discriminatory when it seeks to single out

same-sex couples and transgenders for punishment.

83. As has been stated in the judgment of Nariman, J. in

Shreya Singhal v. Union of India, (2015) 5 SCC 1, the chilling

effect caused by such a provision would also violate a privacy

right under Article 19(1)(a), which can by no stretch of

imagination be said to be a reasonable restriction in the interest

of decency or morality (See paragraphs 87 to 94).

84. We may hasten to add, that the Yogyakarta Principles on

the Application of International Human Rights Law in relation to

Sexual Orientation and Gender Identity discussed below, which

were also referred to by Radhakrishnan, J. in NALSA (supra),

conform to our constitutional view of the fundamental rights of

the citizens of India and persons who come to this Court.

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85. The International Commission of Jurists and the

International Service for Human Rights, on behalf of a coalition

of human rights organisations, had undertaken a project to

develop a set of international legal principles on the application

of international law to human rights violations based on sexual

orientation and gender identity to bring greater clarity and

coherence to States’ human rights obligations.

86. A distinguished group of human rights experts drafted,

developed, discussed and refined these Principles. Following

an experts’ meeting held at Gadjah Mada University in

Yogyakarta, Indonesia from 6th to 9th November, 2006, 29

distinguished experts from 25 countries with diverse

backgrounds and expertise relevant to issues of human rights

law unanimously adopted the Yogyakarta Principles on the

Application of International Human Rights Law in relation to

Sexual Orientation and Gender Identity.

87. A few relevant extracts from the Yogyakarta Principles

and its Preamble are as follows:-

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“Preamble

WE, THE INTERNATIONAL PANEL OF EXPERTS IN INTERNATIONAL HUMAN RIGHTS LAW AND ON SEXUAL ORIENTATION AND GENDER IDENTITY,

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UNDERSTANDING ‘sexual orientation’ to refer to each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender;

XX

FOLLOWING AN EXPERTS’ MEETING HELD IN YOGYAKARTA, INDONESIA FROM 6 TO 9 NOVEMBER 2006, HEREBY ADOPT THESE PRINCIPLES:

1. The right to the universal enjoyment of human rights.—All human beings are born free and equal in dignity and rights. Human beings of all sexual orientations and gender identities are entitled to the full enjoyment of all human rights.

States shall:

(a) embody the principles of the universality, interrelatedness, interdependence and indivisibility of all human rights in their national constitutions or other appropriate legislation and ensure the practical realisation of the universal enjoyment of all human rights;

(b) amend any legislation, including criminal law, to ensure its consistency with the universal enjoyment of all human rights;

(c) undertake programmes of education and awareness to promote and enhance the full

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enjoyment of all human rights by all persons, irrespective of sexual orientation or gender identity;

(d) integrate within State policy and decision making a pluralistic approach that recognises and affirms the interrelatedness and indivisibility of all aspects of human identity including sexual orientation and gender identity.

2. The rights to equality and non- discrimination.—Everyone is entitled to enjoy all human rights without discrimination on the basis of sexual orientation or gender identity. Everyone is entitled to equality before the law and the equal protection of the law without any such discrimination whether or not the enjoyment of another human right is also affected. The law shall prohibit any such discrimination and guarantee to all persons equal and effective protection against any such discrimination.

Discrimination on the basis of sexual orientation or gender identity includes any distinction, exclusion, restriction or preference based on sexual orientation or gender identity which has the purpose or effect of nullifying or impairing equality before the law or the equal protection of the law, or the recognition, enjoyment or exercise, on an equal basis, of all human rights and fundamental freedoms. Discrimination based on sexual orientation or gender identity may be, and commonly is, compounded by discrimination on other grounds including gender, race, age, religion, disability, health and economic status.

States shall:

(a) embody the principles of equality and non- discrimination on the basis of sexual orientation and gender identity in their national constitutions or other appropriate legislation, if not yet incorporated therein, including by means of amendment and

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interpretation, and ensure the effective realisation of these principles;

(b) repeal criminal and other legal provisions that prohibit or are, in effect, employed to prohibit consensual sexual activity among people of the same-sex who are over the age of consent, and ensure that an equal age of consent applies to both same-sex and different-sex sexual activity;

(c) adopt appropriate legislative and other measures to prohibit and eliminate discrimination in the public and private spheres on the basis of sexual orientation and gender identity;

(d) take appropriate measures to secure adequate advancement of persons of diverse sexual orientations and gender identities as may be necessary to ensure such groups or individuals equal enjoyment or exercise of human rights. Such measures shall not be deemed to be discriminatory;

(e) in all their responses to discrimination on the basis of sexual orientation or gender identity, take account of the manner in which such discrimination may intersect with other forms of discrimination;

(f) take all appropriate action, including programmes of education and training, with a view to achieving the elimination of prejudicial or discriminatory attitudes or behaviours which are related to the idea of the inferiority or the superiority of any sexual orientation or gender identity or gender expression.

3. The right to recognition before the law.— Everyone has the right to recognition everywhere as a person before the law. Persons of diverse sexual orientations and gender identities shall enjoy legal capacity in all aspects of life. Each person's 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. No one shall be forced to undergo medical procedures, including sex reassignment surgery,

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sterilisation or hormonal therapy, as a requirement for legal recognition of their gender identity. No status, such as marriage or parenthood, may be invoked as such to prevent the legal recognition of a person's gender identity. No one shall be subjected to pressure to conceal, suppress or deny their sexual orientation or gender identity.

States shall:

(a) ensure that all persons are accorded legal capacity in civil matters, without discrimination on the basis of sexual orientation or gender identity, and the opportunity to exercise that capacity, including equal rights to conclude contracts, and to administer, own, acquire (including through inheritance), manage, enjoy and dispose of property;

(b) take all necessary legislative, administrative and other measures to fully respect and legally recognise each person's self-defined gender identity;

(c) take all necessary legislative, administrative and other measures to ensure that procedures exist whereby all State-issued identity papers which indicate a person's gender/sex—including birth certificates, passports, electoral records and other documents—reflect the person's profound self- defined gender identity;

(d) ensure that such procedures are efficient, fair and non-discriminatory, and respect the dignity and privacy of the person concerned;

(e) ensure that changes to identity documents will be recognised in all contexts where the identification or disaggregation of persons by gender is required by law or policy;

(f) undertake targeted programmes to provide social support for all persons experiencing gender transitioning or reassignment.

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XXX

4. The right to life.—Everyone has the right to life. No one shall be arbitrarily deprived of life, including by reference to considerations of sexual orientation or gender identity. The death penalty shall not be imposed on any person on the basis of consensual sexual activity among persons who are over the age of consent or on the basis of sexual orientation or gender identity.

States shall:

(a) repeal all forms of crime that have the purpose or effect of prohibiting consensual sexual activity among persons of the same-sex who are over the age of consent and, until such provisions are repealed, never impose the death penalty on any person convicted under them;

(b) remit sentences of death and release all those currently awaiting execution for crimes relating to consensual sexual activity among persons who are over the age of consent;

(c) cease any State-sponsored or State-condoned attacks on the lives of persons based on sexual orientation or gender identity, and ensure that all such attacks, whether by government officials or by any individual or group, are vigorously investigated, and that, where appropriate evidence is found, those responsible are prosecuted, tried and duly punished.

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6. The right to privacy.—Everyone, regardless of sexual orientation or gender identity, is entitled to the enjoyment of privacy without arbitrary or unlawful interference, including with regard to their family, home or correspondence as well as to protection from unlawful attacks on their honour and

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reputation. The right to privacy ordinarily includes the choice to disclose or not to disclose information relating to one's sexual orientation or gender identity, as well as decisions and choices regarding both one's own body and consensual sexual and other relations with others.

States shall:

(a) take all necessary legislative, administrative and other measures to ensure the right of each person, regardless of sexual orientation or gender identity, to enjoy the private sphere, intimate decisions, and human relations, including consensual sexual activity among persons who are over the age of consent, without arbitrary interference;

(b) repeal all laws that criminalise consensual sexual activity among persons of the same-sex who are over the age of consent, and ensure that an equal age of consent applies to both same-sex and different-sex sexual activity;

(c) ensure that criminal and other legal provisions of general application are not applied de facto to criminalise consensual sexual activity among persons of the same-sex who are over the age of consent;

(d) repeal any law that prohibits or criminalises the expression of gender identity, including through dress, speech or mannerisms, or that denies to individuals the opportunity to change their bodies as a means of expressing their gender identity;

(e) release all those held on remand or on the basis of a criminal conviction, if their detention is related to consensual sexual activity among persons who are over the age of consent, or is related to gender identity;

(f) ensure the right of all persons ordinarily to choose when, to whom and how to disclose information pertaining to their sexual orientation or gender identity, and protect all persons from

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arbitrary or unwanted disclosure, or threat of disclosure of such information by others.

XXX

18. Protection from medical abuses.—No person may be forced to undergo any form of medical or psychological treatment, procedure, testing, or be confined to a medical facility, based on sexual orientation or gender identity. Notwithstanding any classifications to the contrary, a person's sexual orientation and gender identity are not, in and of themselves, medical conditions and are not to be treated, cured or suppressed.

States shall:

(a) take all necessary legislative, administrative and other measures to ensure full protection against harmful medical practices based on sexual orientation or gender identity, including on the basis of stereotypes, whether derived from culture or otherwise, regarding conduct, physical appearance or perceived gender norms;

(b) take all necessary legislative, administrative and other measures to ensure that no child's body is irreversibly altered by medical procedures in an attempt to impose a gender identity without the full, free and informed consent of the child in accordance with the age and maturity of the child and guided by the principle that in all actions concerning children, the best interests of the child shall be a primary consideration;

(c) establish child protection mechanisms whereby no child is at risk of, or subjected to, medical abuse;

(d) ensure protection of persons of diverse sexual orientations and gender identities against unethical or involuntary medical procedures or research, including in relation to vaccines, treatments or microbicides for HIV/AIDS or other diseases;

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(e) review and amend any health funding provisions or programmes, including those of a development- assistance nature, which may promote, facilitate or in any other way render possible such abuses;

(f) ensure that any medical or psychological treatment or counselling does not, explicitly or implicitly, treat sexual orientation and gender identity as medical conditions to be treated, cured or suppressed.

19. The right to freedom of opinion and expression.— Everyone has the right to freedom of opinion and expression, regardless of sexual orientation or gender identity. This includes the expression of identity or personhood through speech, deportment, dress, bodily characteristics, choice of name, or any other means, as well as the freedom to seek, receive and impart information and ideas of all kinds, including with regard to human rights, sexual orientation and gender identity, through any medium and regardless of frontiers.

States shall:

(a) take all necessary legislative, administrative and other measures to ensure full enjoyment of freedom of opinion and expression, while respecting the rights and freedoms of others, without discrimination on the basis of sexual orientation or gender identity, including the receipt and imparting of information and ideas concerning sexual orientation and gender identity, as well as related advocacy for legal rights, publication of materials, broadcasting, organisation of or participation in conferences, and dissemination of and access to safer-sex information;

(b) ensure that the outputs and the organisation of media that is State-regulated is pluralistic and non- discriminatory in respect of issues of sexual orientation and gender identity and that the personnel recruitment and promotion policies of

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such organisations are non-discriminatory on the basis of sexual orientation or gender identity;

(c) take all necessary legislative, administrative and other measures to ensure the full enjoyment of the right to express identity or personhood, including through speech, deportment, dress, bodily characteristics, choice of name or any other means;

(d) ensure that notions of public order, public morality, public health and public security are not employed to restrict, in a discriminatory manner, any exercise of freedom of opinion and expression that affirms diverse sexual orientations or gender identities;

(e) ensure that the exercise of freedom of opinion and expression does not violate the rights and freedoms of persons of diverse sexual orientations and gender identities;

(f) ensure that all persons, regardless of sexual orientation or gender identity, enjoy equal access to information and ideas, as well as to participation in public debate.”

(Emphasis supplied)

88. These principles give further content to the fundamental

rights contained in Articles 14, 15, 19 and 21, and viewed in the

light of these principles also, Section 377 will have to be

declared to be unconstitutional.

89. Given the aforesaid, it has now to be decided as to

whether the judgment in Suresh Kumar Koushal (supra) is

correct. Suresh Kumar Koushal’s judgment (supra) first

begins with the presumption of constitutionality attaching to pre-

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constitutional laws, such as the Indian Penal Code. The

judgment goes on to state that pre-constitutional laws, which

have been adopted by Parliament and used with or without

amendment, being manifestations of the will of the people of

India through Parliament, are presumed to be constitutional.

We are afraid that we cannot agree.

90. Article 372 of the Constitution of India continues laws in

force in the territory of India immediately before the

commencement of the Constitution. That the Indian Penal Code

is a law in force in the territory of India immediately before the

commencement of this Constitution is beyond cavil. Under

Article 372(2), the President may, by order, make such

adaptations and modifications of an existing law as may be

necessary or expedient to bring such law in accord with the

provisions of the Constitution. The fact that the President has

not made any adaptation or modification as mentioned in Article

372(2) does not take the matter very much further. The

presumption of constitutionality of a statute is premised on the

fact that Parliament understands the needs of the people, and

that, as per the separation of powers doctrine, Parliament is

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aware of its limitations in enacting laws – it can only enact laws

which do not fall within List II of Schedule VII of the Constitution

of India, and cannot transgress the fundamental rights of the

citizens and other constitutional provisions in doing so.

Parliament is therefore deemed to be aware of the aforesaid

constitutional limitations. Where, however, a pre-constitution

law is made by either a foreign legislature or body, none of

these parameters obtain. It is therefore clear that no such

presumption attaches to a pre-constitutional statute like the

Indian Penal Code. In fact, in the majority judgment of B.P.

Jeevan Reddy, J. in New Delhi Municipal Council v. State of

Punjab and Ors., (1997) 7 SCC 339, the Punjab Municipal Act

of 1911 was deemed to be a post-constitutional law inasmuch

as it was extended to Delhi only in 1950, as a result of which

the presumption of constitutionality was raised. Ahmadi, C.J.’s

dissenting opinion correctly states that if a pre-constitutional law

is challenged, the presumption of constitutional validity would

not obtain. The relevant paragraph is extracted below:-

“119. Reddy, J. has taken the view that the Doctrine of Presumption of Constitutionality of Legislations requires the saving of the taxes which these Acts impose upon the commercial activities of State

91

Governments. The Act is a pre-constitutional enactment. The basis of this doctrine is the assumed intention of the legislators not to transgress constitutional boundaries. It is difficult to appreciate how that intention can be assumed when, at the time that the law was passed, there was no such barrier and the limitation was brought in by a Constitution long after the enactment of the law. (This Court has in a Constitution Bench decision, Gulabbhai Vallabbhai Desai v. Union of India [AIR 1967 SC 1110 : (1967) 1 SCR 602] , (AIR at p. 1117 raised doubts along similar lines). The Framers obviously wanted the law under Article 289(2) to be of a very high standard. Can these laws, which are silent on the most important aspect required by Article 289(2), i.e., the specification of the trading activities of State Governments which would be liable to Union taxation, be said to meet with that standard?”

91. It is a little difficult to subscribe to the view of the Division

Bench that the presumption of constitutionality of Section 377

would therefore attach.

92. The fact that the legislature has chosen not to amend the

law, despite the 172nd Law Commission Report specifically

recommending deletion of Section 377, may indicate that

Parliament has not thought it proper to delete the aforesaid

provision, is one more reason for not invalidating Section 377,

according to Suresh Kumar Koushal (supra). This is a little

difficult to appreciate when the Union of India admittedly did not

92

challenge the Delhi High Court judgment striking down the

provision in part. Secondly, the fact that Parliament may or

may not have chosen to follow a Law Commission Report does

not guide the Court’s understanding of its character, scope,

ambit and import as has been stated in Suresh Kumar

Koushal (supra). It is a neutral fact which need not be taken

into account at all. All that the Court has to see is whether

constitutional provisions have been transgressed and if so, as a

natural corollary, the death knell of the challenged provision

must follow.

93. It is a little difficult to appreciate the Court stating that the

ambit of Section 377 IPC is only determined with reference to

the sexual act itself and the circumstances in which it is

executed. It is also a little difficult to appreciate that Section 377

regulates sexual conduct regardless of gender identity and

orientation.

94. After 2013, when Section 375 was amended so as to

include anal and certain other kinds of sexual intercourse

between a man and a woman, which would not be criminalized

as rape if it was between consenting adults, it is clear that if

93

Section 377 continues to penalize such sexual intercourse, an

anomalous position would result. A man indulging in such

sexual intercourse would not be liable to be prosecuted for rape

but would be liable to be prosecuted under Section 377.

Further, a woman who could, at no point of time, have been

prosecuted for rape would, despite her consent, be prosecuted

for indulging in anal or such other sexual intercourse with a

man in private under Section 377. This would render Section

377, as applied to such consenting adults, as manifestly

arbitrary as it would be wholly excessive and disproportionate

to prosecute such persons under Section 377 when the

legislature has amended one portion of the law in 2013, making

it clear that consensual sex, as described in the amended

provision, between two consenting adults, one a man and one a

woman, would not be liable for prosecution. If, by having regard

to what has been said above, Section 377 has to be read down

as not applying to anal and such other sex by a male-female

couple, then the Section will continue to apply only to

homosexual sex. If this be the case, the Section will offend

Article 14 as it will discriminate between heterosexual and

94

homosexual adults which is a distinction which has no rational

relation to the object sought to be achieved by the Section -

namely, the criminalization of all carnal sex between

homosexual and/or heterosexual adults as being against the

order of nature.8 Viewed either way, the Section falls foul of

Article 14.

95. The fact that only a minuscule fraction of the country’s

population constitutes lesbians and gays or transgenders, and

that in the last 150 years less than 200 persons have been

prosecuted for committing the offence under Section 377, is

neither here nor there. When it is found that privacy interests

come in and the State has no compelling reason to continue an

existing law which penalizes same-sex couples who cause no

harm to others, on an application of the recent judgments

delivered by this Court after Suresh Kumar Koushal (supra), it

is clear that Articles 14, 15, 19 and 21 have all been

transgressed without any legitimate state rationale to uphold

such provision.

8 An argument was made by the Petitioners that Section 377, being vague and unintelligible, should be struck down on this ground as it is not clear as to what is meant by “against the order of nature”. Since Section 377 applies down the line to carnal sex between human beings and animals as well, which is not the subject matter of challenge here, it is unnecessary to go into this ground as the Petitioners have succeeded on other grounds raised by them.

95

96. For all these reasons therefore, we are of the view that,

Suresh Kumar Koushal (supra) needs to be, and is hereby,

overruled.

97. We may conclude by stating that persons who are

homosexual have a fundamental right to live with dignity, which,

in the larger framework of the Preamble of India, will assure the

cardinal constitutional value of fraternity that has been

discussed in some of our judgments (See (1) Nandini Sundar v.

State of Chhattisgarh, (2011) 7 SCC 547 at paragraphs 16, 25

and 52; and (2) Subramaniam Swamy v. Union of India (2016)

7 SCC 221 at paragraphs 153 to 156). We further declare that

such groups are entitled to the protection of equal laws, and are

entitled to be treated in society as human beings without any

stigma being attached to any of them. We further declare that

Section 377 insofar as it criminalises homosexual sex and

transgender sex between consenting adults is unconstitutional.

98. We are also of the view that the Union of India shall take

all measures to ensure that this judgment is given wide publicity

through the public media, which includes television, radio, print

and online media at regular intervals, and initiate programs to

96

reduce and finally eliminate the stigma associated with such

persons. Above all, all government officials, including and in

particular police officials, and other officers of the Union of India

and the States, be given periodic sensitization and awareness

training of the plight of such persons in the light of the

observations contained in this judgment.

……………………………..J. (R.F. Nariman)

New Delhi; September 06, 2018.

1

IN THE SUPREME COURT OF INDIA CRIMINAL/CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CRIMINAL) NO 76 OF 2016

NAVTEJ SINGH JOHAR & ORS. ...Petitioner

VERSUS

UNION OF INDIA, THR. SECRETARY, MINISTRY OF LAW AND JUSTICE …Respondent

WITH

WRIT PETITION (CIVIL) NO 572 OF 2016

AKKAI PADMASHALI ...Petitioner

VERSUS

UNION OF INDIA, THR.SECRETARY, MINISTRY OF LAW AND JUSTICE ...Respondent

REPORTABLE

2

WITH

WRIT PETITION (CRIMINAL) NO 88 OF 2018

KESHAV SURI ...Petitioner

VERSUS

UNION OF INDIA ...Respondent

WITH

WRIT PETITION (CRIMINAL) NO 100 OF 2018

ARIF JAFAR ...Petitioner

VERSUS

UNION OF INDIA AND ORS. ...Respondents

WITH

3

WRIT PETITION (CRIMINAL) NO 101 OF 2018

ASHOK ROW KAVI AND ORS. ...Petitioners

VERSUS

UNION OF INDIA AND ORS. ...Respondents

AND

WITH

WRIT PETITION (CRIMINAL) NO 121 OF 2018

ANWESH POKKULURI AND ORS. ...Petitioners

VERSUS

UNION OF INDIA ...Respondent

J U D G M E N T

Index to the judgment

A From denial to freedom B “To the wisdom of the Court”

4

C From “The Ashes of the Gay”

C.I “Arc of the moral universe”

D An equal love E Beyond physicality: sex, identity and stereotypes

E.I Facial neutrality: through the looking glass

E.2 Deconstructing the polarities of binary genders

F Confronting the closet

F.I Sexual privacy and autonomy- deconstructing the heteronormative

framework

F.2 A right to intimacy- celebration of sexual agency

G Section 377 and the right to health

G.I Section 377 and HIV prevention efforts

G.2 Mental health

H Judicial review I India’s commitments at International Law J Transcending borders - comparative law K Crime, morality and the Constitution L Constitutional morality M In summation : transformative constitutionalism

PART A

5

Dr Dhananjaya Y Chandrachud, J

A From denial to freedom

“What makes life meaningful is love. The right that

makes us human is the right to love. To criminalize the

expression of that right is profoundly cruel and

inhumane. To acquiesce in such criminalization, or

worse, to recriminalize it, is to display the very

opposite of compassion. To show exaggerated

deference to a majoritarian Parliament when the

matter is one of fundamental rights is to display judicial

pusillanimity, for there is no doubt, that in the

constitutional scheme, it is the judiciary that is the

ultimate interpreter.”1

1 The lethargy of the law is manifest yet again.

2 A hundred and fifty eight years ago, a colonial legislature made it

criminal, even for consenting adults of the same gender, to find fulfillment in

love. The law deprived them of the simple right as human beings to live, love

and partner as nature made them. The human instinct to love was caged by

constraining the physical manifestation of their sexuality. Gays and lesbians2

were made subordinate to the authority of a coercive state. A charter of

morality made their relationships hateful. The criminal law became a willing

instrument of repression. To engage in ‘carnal intercourse’ against ‘the order

of nature’ risked being tucked away for ten years in a jail. The offence would

1 Justice Leila Seth, “A mother and a judge speaks out on Section 377”, The Times of India, 26 January, 2014. 2 These terms as well as terms such as “LGBT” and “LGBTIQ” used in the judgement are to be construed in an

inclusive sense to include members of all gender and sexual minorities, whose sexual activity is criminalized by the application of Section 377 of the Indian Penal Code, 1860.

PART A

6

be investigated by searching the most intimate of spaces to find tell-tale signs

of intercourse. Civilisation has been brutal.

3 Eighty seven years after the law was made, India gained her liberation

from a colonial past. But Macaulay’s legacy - the offence under Section 377 of

the Penal Code - has continued to exist for nearly sixty eight years after we

gave ourselves a liberal Constitution. Gays and lesbians, transgenders and

bisexuals continue to be denied a truly equal citizenship seven decades after

Independence. The law has imposed upon them a morality which is an

anachronism. Their entitlement should be as equal participants in a society

governed by the morality of the Constitution. That in essence is what Section

377 denies to them. The shadows of a receding past confront their quest for

fulfillment.

4 Section 377 exacts conformity backed by the fear of penal reprisal.

There is an unbridgeable divide between the moral values on which it is based

and the values of the Constitution. What separates them is liberty and dignity.

We must, as a society, ask searching questions to the forms and symbols of

injustice. Unless we do that, we risk becoming the cause and not just the

inheritors of an unjust society. Does the Constitution allow a quiver of fear to

become the quilt around the bodies of her citizens, in the intimacies which

PART A

7

define their identities? If there is only one answer to this question, as I believe

there is, the tragedy and anguish which Section 377 inflicts must be remedied.

5 The Constitution brought about a transfer of political power. But it

reflects above all, a vision of a society governed by justice. Individual liberty is

its soul. The constitutional vision of justice accommodates differences of

culture, ideology and orientation. The stability of its foundation lies in its effort

to protect diversity in all its facets: in the beliefs, ideas and ways of living of

her citizens. Democratic as it is, our Constitution does not demand conformity.

Nor does it contemplate the mainstreaming of culture. It nurtures dissent as

the safety valve for societal conflict. Our ability to recognise others who are

different is a sign of our own evolution. We miss the symbols of a

compassionate and humane society only at our peril.

Section 377 provides for rule by the law instead of the rule of law. The rule of

law requires a just law which facilitates equality, liberty and dignity in all its

facets. Rule by the law provides legitimacy to arbitrary state behaviour.

6 Section 377 has consigned a group of citizens to the margins. It has

been destructive of their identities. By imposing the sanctions of the law on

consenting adults involved in a sexual relationship, it has lent the authority of

PART B

8

the state to perpetuate social stereotypes and encourage discrimination.

Gays, lesbians, bisexuals and transgenders have been relegated to the

anguish of closeted identities. Sexual orientation has become a target for

exploitation, if not blackmail, in a networked and digital age. The impact of

Section 377 has travelled far beyond the punishment of an offence. It has

been destructive of an identity which is crucial to a dignified existence.

7 It is difficult to right the wrongs of history. But we can certainly set the

course for the future. That we can do by saying, as I propose to say in this

case, that lesbians, gays, bisexuals and transgenders have a constitutional

right to equal citizenship in all its manifestations. Sexual orientation is

recognised and protected by the Constitution. Section 377 of the Penal Code

is unconstitutional in so far as it penalises a consensual relationship between

adults of the same gender. The constitutional values of liberty and dignity can

accept nothing less.

B “To the wisdom of the Court”

Union Government before the Court

8 After the hearing commenced, the Additional Solicitor General tendered

an affidavit. The Union government states that it leaves a decision on the

PART B

9

validity of Section 377 ‘to the wisdom of this Court’. Implicit in this is that the

government has no view of its own on the subject and rests content to abide

by the decision of this Court. During the parleys in Court, the ASG however

submitted that the court should confine itself to the reference by ruling upon

the correctness of Suresh Kumar Koushal v. Naz Foundation3 (“Koushal”).

9 We would have appreciated a categorical statement of position by the

government, setting out its views on the validity of Section 377 and on the

correctness of Koushal. The ambivalence of the government does not obviate

the necessity for a judgment on the issues raised. The challenge to the

constitutional validity of Section 377 must squarely be addressed in this

proceeding. That is plainly the duty of the Court. Constitutional issues are not

decided on concession. The statement of the Union government does not

concede to the contention of the petitioners that the statutory provision is

invalid. Even if a concession were to be made, that would not conclude the

matter for this Court. All that the stand of the government indicates is that it is

to the ‘wisdom’ of this Court that the matter is left. In reflecting upon this

appeal to our wisdom, it is just as well that we as judges remind ourselves of a

truth which can unwittingly be forgotten: flattery is a graveyard for the gullible.

3 (2014) 1 SCC 1

PART B

10

10 Bereft of a submission on behalf of the Union government on a matter of

constitutional principle these proceedings must be dealt with in the only

manner known to the constitutional court: through an adjudication which fulfills

constitutional values and principles.

11 The ASG made a fair submission when he urged that the court should

deal with the matter in reference. The submission, to its credit, would have the

court follow a path of prudence. Prudence requires, after all, that the Court

should address itself to the controversy in the reference without pursuing an

uncharted course beyond it. While accepting the wisdom of the approach

suggested by the ASG, it is nonetheless necessary to make some prefatory

observations on the scope of the reference.

12 The correctness of the decision in Koushal is in question. Koushal [as

indeed the decision of the Delhi High Court in Naz Foundation v.

Government of NCT of Delhi4 (“Naz”)] dealt with the validity of Section 377

which criminalizes even a consensual relationship between adults of the same

gender who engage in sexual conduct (‘carnal intercourse against the order of

nature’). In dealing with the validity of the provision, it is necessary to

understand the nature of the constitutional right which LGBT individuals claim.

4(2010) Cri LJ 94

PART B

11

According to them, the right to be in a relationship with a consenting adult of

the same gender emanates from the right to life, as a protected value under

the Constitution. They ground their right on the basis of an identity resting in

their sexual orientation. According to them, their liberty and dignity require

both an acknowledgement as well as a protection under the law, of their

sexual orientation. Representing their identity, based on sexual orientation, to

the world at large and asserting it in their relationship with the community and

the state is stated to be intrinsic to the free exercise of speech and expression

guaranteed by the Constitution. Sexual orientation is claimed to be intrinsic to

the guarantee against discrimination on the ground of sex. The statutory

provision, it has been asserted, also violates the fundamental guarantee

against arbitrariness because it unequally targets gay men whose sexual

expression falls in the area prohibited by Section 377.

13 In answering the dispute in regard to the validity of Section 377, the

court must of necessity understand and explain in a constitutional perspective,

the nature of the right which is claimed. The challenge to Section 377 has to

be understood from the perspective of a rights discourse. While doing so, it

becomes necessary to understand the constitutional source from which the

claim emerges. When a right is claimed to be constitutionally protected, it is

but necessary for the court to analyze the basis of that assertion. Hence, in

PART C

12

answering the reference, it is crucial for the court to place the entitlement of

the LGBT population in a constitutional framework. We have approached the

matter thus far from the perspective of constitutional analysis. But there is a

more simple line of reasoning as well, grounded as we believe, in common-

sense. Sexual acts between consenting adults of the same gender constitute

one facet – albeit an important aspect – of the right asserted by gay men to

lead fulfilling lives. Gay and lesbian relationships are sustained and nurtured

in every aspect which makes for a meaningful life. In understanding the true

nature of those relationships and the protection which the Constitution affords

to them, it is necessary to adopt a perspective which leads to their acceptance

as equal members of a humane and compassionate society. Forming a

holistic perspective requires the court to dwell on, but not confine itself, to

sexuality. Sexual orientation creates an identity on which there is a

constitutional claim to the entitlement of a dignified life. It is from that broad

perspective that the constitutional right needs to be adjudicated.

C From “The Ashes of the Gay”

“Democracy

It's coming through a hole in the air,

…

It's coming from the feel

that this ain't exactly real,

or it's real, but it ain't exactly there.

From the wars against disorder,

from the sirens night and day,

PART C

13

from the fires of the homeless,

from the ashes of the gay:

Democracy is coming…”5

14 Section 377 of the Indian Penal Code, 1860 (“IPC”) has made ‘carnal

intercourse against the order of nature’ an offence. This provision, understood

as prohibiting non-peno vaginal intercourse, reflects the imposition of a

particular set of morals by a colonial power at a particular point in history. A

supposedly alien law,6 Section 377 has managed to survive for over 158

years, impervious to both the anticolonial struggle as well as the formation of

a democratic India, which guarantees fundamental rights to all its citizens. An

inquiry into the colonial origins of Section 377 and its postulations about

sexuality is useful in assessing the relevance of the provision in contemporary

times.7

15 Lord Thomas Babington Macaulay, Chairman of the First Law

Commission of India and principal architect of the IPC, cited two main sources

from which he drew in drafting the Code: the French (Napoleonic) Penal

Code, 1810 and Edward Livingston’s Louisiana Code.8 Lord Macaulay also

5 Lyrics from Leonard Cohen’s song “Democracy” (1992). 6 See Same-Sex Love in India: A Literary History (Ruth Vanita and Saleem Kidwai, eds.), Penguin India (2008) for

writings spanning over more than 2,000 years of Indian literature which demonstrate that same-sex love has flourished, evolved and been embraced in various forms since ancient times.

7 Law like Love: Queer Perspectives on Law (Arvind Narrain and Alok Gupta, eds.), Yoda Press (2011). 8 K. N. Chandrasekharan Pillai and Shabistan Aquil, “Historical Introduction to the Indian Penal Code”, in Essays on

the Indian Penal Code, New Delhi, Indian Law Institute (2005); Siyuan Chen, “Codification, Macaulay and the Indian Penal Code [Book Review], Singapore Journal of Legal Studies, National University of Singapore, Faculty of Law (2011), at pages 581-584.

PART C

14

drew inspiration from the English common law and the British Royal

Commission’s 1843 Draft Code.9 Tracing that origin, English jurist Fitzjames

Stephen observes:

“The Indian Penal Code may be described as the criminal law

of England freed from all technicalities and superfluities,

systematically arranged and modified in some few particulars

(they are surprisingly few) to suit the circumstances of British

India.”10

In order to understand the colonial origins of Section 377, it is necessary to go

further back to modern English law’s conception of anal and oral intercourse,

which was firmly rooted in Judeo-Christian morality and condemned non-

procreative sex.11 Though Jesus himself does not reference homosexuality or

homosexual sex,12 the “Holiness Code”13 found in Leviticus provides thus:

“You shall not lie with a male as with a woman. It is an

abomination. [18:22]

If a man also lie with mankind, as he lieth with a woman, both

of them have committed an abomination: they shall surely be

put to death; their blood shall be upon them. [19:13]

If a man lies with a male as with a woman, both of them have

committed an abomination; they shall be put to death, their

blood is upon them. [20:13]”

9 Douglas E. Sanders, “377 and the Unnatural Afterlife of British Colonialism in Asia”, Asian Journal of Comparative

Law, Vol. 4 (2009), at page 11 (“Douglas”); David Skuy, “Macaulay and the Indian Penal Code of 1862: The Myth of the Inherent Superiority and Modernity of the English Legal System Compared to India’s Legal System in the Nineteenth Century”, Modern Asian Studies, Vol. 32 (1998), at pages 513-557.

10 Barry Wright, “Macaulay’s Indian Penal Code: Historical Context and Originating Principles”, Carleton University (2011).

11 Michael Kirby, “The Sodomy Offence: England's Least Lovely Law Export?” Journal of Commonwealth Criminal Law, Inaugural Issue (2011).

12 Douglas, supra note 9, at page 4. 13 Ibid at page 2.

PART C

15

Another Judeo-Christian religious interpretation refers to “sodomy”, a term

used for anal intercourse that is derived from an interpretation of Genesis

18:20 of the Old Testament,14 known as the story of Sodom and Gomorrah.

Briefly, when two angels took refuge in the home of Lot, the men of the town

of Sodom surrounded the house and demanded that the angels be sent out so

that the men may “know” them (in this interpretation, with sexual

connotations). When Lot offered them his two virgin daughters instead, the

men of Sodom responded by threatening Lot. The angels then blinded the

“Sodomites.”15 The use of the term “sodomites” to describe those who

engaged in anal intercourse emerged in the 13th Century, and the term

“sodomy” was used as a euphemism for a number of sexual ‘sins’ two

centuries earlier.16

16 The preservation of the Judeo-Christian condemnation of homosexuality

is also attributed to the Jewish theologian, Philo of Alexandria, who is

regarded as the father of the Church Fathers and who reviled homosexuals

and called for their execution.17 The condemnation of homosexuality can also

be traced to Roman law. Emperor Justinian’s Code of 529, for instance, stated

14 Douglas, supra note 9, at page 4. 15 Jessica Cecil, “The Destruction of Sodom and Gomorrah”, British Broadcasting Company, 11 February 2017. 16 Douglas, supra note 9, at page 4; KSN Murthy’s Criminal Law: Indian Penal Code (KVS Sarma ed), Lexis Nexis

(2016). 17 Philo, translated by F.H. Colson and G.H. Whitaker, 10 Volumes, (Cambridge: Harvard University Press, 1929-

1962).

PART C

16

that persons who engaged in homosexual sex were to be executed.18 From

Rome, the condemnation of homosexuality spread across Europe, where it

manifested itself in ecclesiastical law.19 During the Protestant Reformation,

these laws shifted from the ecclesiastical to the criminal domain, beginning

with Germany in 1532.20

While ecclesiastical laws against homosexual intercourse were well

established in England by the 1500s,21 England’s first criminal (non-

ecclesiastical) law was the Buggery Act of 1533, which condemned “the

detestable and abominable vice of buggeri committed with mankind or

beest.”22 “Buggery” is derived from the old French word for heretic, “bougre”,

and was taken to mean anal intercourse.23

17 The Buggery Act, 1533, which was enacted by Henry VIII, made the

offence of buggery punishable by death, and continued to exist for nearly 300

years before it was repealed and replaced by the Offences against the Person

Act, 1828. Buggery, however, remained a capital offence in England until

1861, one year after the enactment of the IPC. The language of Section 377

18 David F. Greenberg and Marcia H. Bystryn, “Christian Intolerance of Homosexuality”, American Journal of

Sociology, Vol. 88 (1982), at pages 515-548. 19 Douglas, supra note 9, at pages 5 and 8. 20 Ibid at page 5. 21 Ibid at page 2. 22 The Buggery Act, 1533. 23 Douglas, supra note 9, at page 2.

PART C

17

has antecedents in the definition of buggery found in Sir Edward Coke’s late

17th Century compilation of English law:24

“...Committed by carnal knowledge against the ordinance of

the Creator, and order of nature, by mankind with mankind, or

with brute beast, or by womankind with brute beast.”25

18 The Criminal Law Amendment Act, 1885 made “gross indecency” a

crime in the United Kingdom, and was used to prosecute homosexuals where

sodomy could not be proven. In 1895, Oscar Wilde was arrested under the

Act for ‘committing acts of gross indecency with male persons’.26 During

Wilde’s trial, the Prosecutor, referring to homosexual love, asked him, “What

is ‘the love that dare not speak its name’?” Wilde responded:

“The love that dare not speak its name” in this century is such

a great affection of an elder for a younger man as there was

between David and Jonathan, such as Plato made the very

basis of his philosophy, and such as you find in the sonnets of

Michelangelo and Shakespeare. It is that deep spiritual

affection that is as pure as it is perfect. It dictates and

pervades great works of art, like those of Shakespeare and

Michelangelo, and those two letters of mine, such as they are.

It is in this century misunderstood, so much misunderstood

that it may be described as “the love that dare not speak its

name,” and on that account of it I am placed where I am now.

It is beautiful, it is fine, it is the noblest form of affection. There

is nothing unnatural about it. It is intellectual, and it repeatedly

exists between an older and a younger man, when the older

man has intellect, and the younger man has all the joy, hope

and glamour of life before him. That it should be so, the world

24 Ibid at 7. 25 Human Rights Watch. This Alien Legacy: The Origins of “Sodomy” Laws in British Colonialism (2008). 26 Douglas, supra note 9, at page 15.

PART C

18

does not understand. The world mocks at it, and sometimes

puts one in the pillory for it.”27

Wilde was held guilty and was sentenced to two years’ hard labour and

subsequently incarcerated.

Following World War II, arrests and prosecutions of homosexuals increased.

Alan Turing, the renowned mathematician and cryptographer who was

responsible for breaking the Nazi Enigma code during World War II, was

convicted of ‘gross indecency’ in 1952. In order to avoid a prison sentence,

Turing was forced to agree to chemical castration. He was injected with

synthetic female hormones. Less than two years after he began the hormone

treatment, Turing committed suicide. The Amendment Act (also known as the

Labouchere Amendment) remained in English law until 1967. Turing was

posthumously pardoned in 2013, and in 2017, the UK introduced the Policing

and Crime Bill, also called the “Turing Law,” posthumously pardoning 50,000

homosexual men and providing pardons for the living.

In the wake of several court cases in which homosexuality had been featured,

the British Parliament in 1954 set up the Wolfenden Committee, headed by

27 H. Montgomery Hyde, John O'Connor, and Merlin Holland, The Trials of Oscar Wilde (2014), at page 201.

PART C

19

John Wolfenden, to “consider…the law and practice relating to homosexual

offenses and the treatment of persons convicted of such offenses by the

courts”, as well as the laws relevant to prostitution and solicitation. The

Wolfenden Report of 1957, which was supported by the Church of England,28

proposed that there ‘must remain a realm of private morality and immorality

which is, in brief and crude terms, not the law’s business’ and recommended

that homosexual acts between two consenting adults should no longer be a

criminal offence.29

19 The success of the report led England and Wales to enact The Sexual

Offences Act, 1967, which decriminalized private homosexual sex between

two men over the age of twenty-one. Britain continued to introduce and

amend laws governing same-sex intercourse to make them more equal,

including the lowering of the age of consent for gay/bisexual men to sixteen in

2001.30 In May 2007, in a statement to the UN Human Rights Council, the UK,

which imposed criminal prohibitions against same-sex intercourse in its former

colonies across the world, committed itself to the cause of worldwide

decriminalization of homosexuality.31 Today, India continues to enforce a law

28 Ibid at 25. 29 Report of the Departmental Committee on Homosexual Offences and Prostitution (1957) (“Wolfenden Report”). 30 Sexual Offences (Amendment) Act 2000, Parliament of the United Kingdom. 31 Douglas, supra note 9, at page 29.

PART C

20

imposed by an erstwhile colonial government, a law that has been long done

away with by the same government in its own jurisdiction.

C.I “Arc of the moral universe”

20 Lord Macaulay was greatly influenced by English philosopher and jurist

Jeremy Bentham, who coined the term codification and argued for replacing

existing laws with clear, concise, and understandable provisions that could be

universally applied across the Empire.32 Ironically, in a 1785 essay, Bentham

himself wrote one of the earliest known defences of homosexuality in the

English language, arguing against the criminalization of homosexuality.

However, this essay was only discovered 200 years after his death.33

21 The Law Commission’s 1837 draft of the Penal Code (prepared by Lord

Macaulay) contained two sections (Clauses 361 and 362), which are

considered the immediate precursors to Section 377:

“OF UNNATURAL OFFENCES

361. Whoever, intending to gratify unnatural lust, touches, for

that purpose, any person, or any animal, or is by his own

consent touched by any person, for the purpose of gratifying

unnatural lust, shall be punished with imprisonment of either

description for a term which may extend to fourteen years and

32 Douglas, supra note 9, at page 9. 33 Ibid.

PART C

21

must not be less than two years, and shall also be liable to

fine.

362. Whoever, intending to gratify unnatural lust, touches for

that purpose any person without that person's free and

intelligent consent, shall be punished with imprisonment of

either description for a term which may extend to life and

must not be less than seven years, and shall also be liable to

fine.”

Both the draft clauses are vague in their description of the acts they seek to

criminalize. Lord Macaulay also omitted an explanation to the Clauses. In a

note presented with the 1837 draft, Lord Macaulay elaborated:

“Clauses 361 and 362 relate to an odious class of offences

respecting which it is desirable that as little as possible be

said. We leave without comment to the judgment of his

Lordship in Council the two Clauses which we have provided

for these offences. We are unwilling to insert, either in the

text, or in the notes, anything which could give rise to

public discussion on this revolting subject; as we are

decidedly of opinion that the injury which would be done

to the morals of the community by such discussion would

far more than compensate for any benefits which might be

derived from legislative measures framed with the greatest

precision.”34 (Emphasis supplied)

So abominable did Macaulay consider these offences that he banished the

thought of providing a rationale for their being made culpable. The prospect of

a public discussion was revolting.

34 Enze Han, Joseph O'Mahoney, “British Colonialism and the Criminalization of Homosexuality: Queens, Crime and

Empire”, Routledge (2018).

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22

After twenty-five years of revision, the IPC entered into force on 1 January

1862, two years after Lord Macaulay’s death. The IPC was the first codified

criminal code in the British Empire. Section 377 of the revised code read as

follows:

“Of Unnatural Offences

377. Unnatural Offences.- Whoever voluntarily has carnal

intercourse against the order of nature with any man, woman

or animal, shall be punished with [imprisonment for life]35, or

with imprisonment of either description for a term which may

extend to ten years, and shall also be liable to fine.

Explanation.- Penetration is sufficient to constitute the carnal

intercourse necessary to the offence described in this

section.”

22 The Explanation is unique in that it requires proof of penetration –

something that British Law did not. The two clauses in the Draft Code fell

somewhere in between, requiring proof of “touch”.36

By the time India gained independence in 1947, Britain had introduced Penal

Codes similar to the IPC in other former colonies, including Zanzibar

(Tanzania) in 1867, Singapore, Malaysia, and Brunei in 1871, Ceylon (Sri

Lanka) in 1885, Burma (Myanmar) in 1886,37 East Africa Protectorate (Kenya)

35 Changed from “transportation for life” by Act 26 of 1955. 36 Douglas, supra note 9, at page 16. 37 Nang Yin Kham, “An Introduction to the Law and Judicial System of Myanmar”, Centre for Asia Legal Studies

Faculty of Law, National University of Singapore, Working Paper 14/02, (2014).

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in 1897, Sudan in 1889, Uganda in 1902, and Tanganyika (Tanzania) in

1920.38 Under Article 372(1) of the Indian Constitution, which provides that all

laws in force prior to the commencement of the Constitution shall continue to

be in force until altered or repealed, the IPC and many other pre-

Independence laws were “saved” and allowed to operate in Independent

India.

23 While Section 377 has been used to prosecute non-consensual sexual

acts, it has also been used to prosecute consensual sexual acts. In

(Meharban) Nowshirwan Irani v. Emperor39, for instance, a police officer

observed Nowshirwan, a young shopkeeper, engaged in homosexual acts

with a young man, Ratansi, through a keyhole in Nowshirwan’s house. The

Prosecution argued that the acts were non-consensual, but could not prove

coercion.40 The High Court of Sindh ultimately set aside the conviction based

on insufficient evidence. Nevertheless, what should have been an intimate act

between two consenting parties in their bedroom became a public scandal

and the subject of judicial scrutiny.41

38 Supra note 34. 39 AIR 1934 Sind. 206. 40 Arvind Narrain, “‘That Despicable Specimen of Humanity’: Policing of Homosexuality in India”, in Challenging the

Rule(s) of Law: Colonialism, Criminology and Human Rights in India (Kalpana Kannabiran and Ranbir Singh eds.), Sage (2008).

41 Arvind Narrain, “A New Language of Morality: From the Trial of Nowshirwan to the Judgement in Naz Foundation”, The Indian Journal of Constitutional Law, Vol. 4 (2010).

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In D P Minwalla v. Emperor42, Minawalla and Tajmahomed, were seen

having anal intercourse in a lorry and were arrested, charged, and found guilty

under Section 377. Tajmahomed was sentenced to four months rigorous

imprisonment, and Minawalla, who was charged with abetment, was

sentenced to a fine of Rs 100 and imprisonment until the rising of the Bench.

Minawalla appealed the decision on the grounds that he was not a consenting

partner, and submitted himself to a medical exam. The judge was

unconvinced, however, and Minawalla’s original sentence was upheld. The

Court, convinced that the acts were consensual, found the men guilty under

Section 377.43

In Ratan Mia v. State of Assam44, the Court convicted two men (one aged

fifteen and a half, the other twenty) under Section 377 and treated them as

equally culpable, as he was unable to cast one of them as the perpetrator and

the other as the victim or abettor. Both men were originally sentenced to

imprisonment for six months and a fine of Rs 100. After Nur had spent six

years in prison and appealed three times,45 both men's sentences were

42 AIR 1935 Sind. 78. 43 Supra note 40. 44 (1988) Cr.L.J. 980. 45 Suparna Bhaskaran, “The Politics of Penetration: Section 377 of the Indian Penal Code” in Queering India: Same-

Sex Love and Eroticism in Indian Culture and Society (Ruth Vanita ed.), Routledge (2002).

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reduced to seven days rigorous imprisonment, in view of the fact that they

were first time offenders under the age of twenty-one.46

Even though the government is not proactively enforcing a law that governs

private activities, the psychological impact for homosexuals who are, for all

practical purposes, felons in waiting, is damaging in its own right:

“...The true impact of Section 377 on queer lives is felt outside

the courtroom and must not be measured in terms of legal

cases. Numerous studies, including both documented and

anecdotal evidence, tell us that Section 377 is the basis for

routine and continuous violence against sexual minorities by

the police, the medical establishment, and the state. There

are innumerable stories that can be cited – from the everyday

violence faced by hijras [a distinct transgender category] and

kothis [effeminate males] on the streets of Indian cities to the

refusal of the National Human Rights Commission to hear the

case of a young man who had been given electro-shock

therapy for nearly two years. A recent report by the People’s

Union for Civil Liberties (Karnataka), showed that Section 377

was used by the police to justify practices such as illegal

detention, sexual abuse and harassment, extortion and outing

of queer people to their families.”47

Before the end of the 19th century, gay rights movements were few and far

between. Indeed, when Alfred Douglas, Oscar Wilde’s lover, wrote in his

1890s poem entitled “Two Loves” of “the love that dare not speak its name”,

he was alluding to society’s moral disapprobation of homosexuality.48 The 20th

46 Ibid. 47 Douglas, supra note 9, at page 21; “Introduction” to Because I Have a Voice: Queer Politics in India, (Gautam

Bhan and Arvind Narrain eds), Yoda Press (2005) at pages 7, 8. 48 Melba Cuddy-Keane, Adam Hammond and Alexandra Peat, “Q” in Modernism: Keywords, Wiley-Blackwell (2014).

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century, however, saw the LGBTIQ community emerge from the shadows

worldwide, poised to agitate and demand equal civil rights. LGBTIQ

movements focused on issues of intersectionality, the interplay of oppressions

arising from being both queer and lower class, coloured, disabled, and so on.

Despite the movement making numerous strides forward in the fight for equal

rights, incidents of homosexual arrests were nevertheless extant at the turn of

the 21st century.

In many cases of unfulfilled civil rights, there is a tendency to operate under

the philosophy articulated by Dr. Martin Luther King, that “the arc of the moral

universe is long, but it bends towards justice.” It is likely that those who

subscribe to this philosophy believe that homosexuals should practice the

virtue of patience, and wait for society to understand and accept their way of

life. What those who purport this philosophy fail to recognize is that Dr King

himself argued against the doctrine of “wait”:

“For years now I have heard the word “wait.” It rings in the ear

of every Negro with a piercing familiarity. This “wait” has

almost always meant “never.” It has been a tranquilizing

thalidomide, relieving the emotional stress for a moment, only

to give birth to an ill-formed infant of frustration. We must

come to see with the distinguished jurist of yesterday that

“justice too long delayed is justice denied.” We have waited

for more than three hundred and forty years for our God-given

and constitutional rights . . . when you are harried by day and

haunted by night by the fact that you are a Negro, living

constantly at tiptoe stance, never knowing what to expect

next, and plagued with inner fears and outer resentments;

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when you are forever fighting a degenerating sense of

“nobodyness” -- then you will understand why we find it

difficult to wait. There comes a time when the cup of

endurance runs over and men are no longer willing to be

plunged into an abyss of injustice where they experience the

bleakness of corroding despair. I hope, sirs, you can

understand our legitimate and unavoidable impatience.”

(Letter from a Birmingham Jail)49

24 Indian citizens belonging to sexual minorities have waited. They have

waited and watched as their fellow citizens were freed from the British yoke

while their fundamental freedoms remained restrained under an antiquated

and anachronistic colonial-era law – forcing them to live in hiding, in fear, and

as second-class citizens. In seeking an adjudication of the validity of Section

377, these citizens urge that the acts which the provision makes culpable

should be decriminalised. But this case involves much more than merely

decriminalising certain conduct which has been proscribed by a colonial law.

The case is about an aspiration to realise constitutional rights. It is about a

right which every human being has, to live with dignity. It is about enabling

these citizens to realise the worth of equal citizenship. Above all, our decision

will speak to the transformative power of the Constitution. For it is in the

transformation of society that the Constitution seeks to assure the values of a

just, humane and compassionate existence to all her citizens.

49 Martin Luther King Jr., “Letter from a Birmingham Jail” (1963).

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28

D An equal love

“Through Love's Great Power

Through love's great power to be made whole

In mind and body, heart and soul –

Through freedom to find joy, or be

By dint of joy itself set free

In love and in companionhood:

This is the true and natural good.

To undo justice, and to seek

To quash the rights that guard the weak -

To sneer at love, and wrench apart

The bonds of body, mind and heart

With specious reason and no rhyme:

This is the true unnatural crime.”50

Article 14 is our fundamental charter of equality:

“The State shall not deny to any person equality before the

law or the equal protection of the laws within the territory of

India.” (Emphasis supplied)

25 In Naz, the Delhi High Court held that Section 377 violates Article 14 of

the Constitution since the classification on which it is based does not bear any

nexus to the object which the provision seeks to achieve.51 In Koushal, this

Court rejected the Naz formulation on the ground that “those who indulge in

carnal intercourse in the ordinary course and those who ... [do so] against the

order of nature constitute different classes.”52 Koushal held on that logic that

50 Vikram Seth wrote this poem the morning after the Supreme Court refused to review its decision in Koushal. 51 Naz Foundation, at para 91. 52 Koushal, at para 65.

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Section 377 does not suffer from arbitrariness or from an irrational

classification.

26 A litany of our decisions – to refer to them individually would be a

parade of the familiar – indicates that to be a reasonable classification under

Article 14 of the Constitution, two criteria must be met: (i) the classification

must be founded on an intelligible differentia; and (ii) the differentia must have

a rational nexus to the objective sought to be achieved by the legislation.53

There must, in other words, be a causal connection between the basis of

classification and the object of the statute. If the object of the classification is

illogical, unfair and unjust, the classification will be unreasonable.54

27 Equating the content of equality with the reasonableness of a

classification on which a law is based advances the cause of legal formalism.

The problem with the classification test is that what constitutes a reasonable

classification is reduced to a mere formula: the quest for an intelligible

differentia and the rational nexus to the object sought to be achieved. In doing

so, the test of classification risks elevating form over substance. The danger

inherent in legal formalism lies in its inability to lay threadbare the values

which guide the process of judging constitutional rights. Legal formalism

53 State of West Bengal v. Anwar Ali Sarkar, AIR (1952) SC 75. 54 Deepak Sibal v. Punjab University, (1989) 2 SCC 145.

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buries the life-giving forces of the Constitution under a mere mantra. What it

ignores is that Article 14 contains a powerful statement of values – of the

substance of equality before the law and the equal protection of laws. To

reduce it to a formal exercise of classification may miss the true value of

equality as a safeguard against arbitrariness in state action. As our

constitutional jurisprudence has evolved towards recognizing the substantive

content of liberty and equality, the core of Article 14 has emerged out of the

shadows of classification. Article 14 has a substantive content on which,

together with liberty and dignity, the edifice of the Constitution is built. Simply

put, in that avatar, it reflects the quest for ensuring fair treatment of the

individual in every aspect of human endeavor and in every facet of human

existence.

In E P Royappa v. State of Tamil Nadu55, the validity of state action was

made subject to the test of arbitrariness:

“Equality is a dynamic concept with many aspects and

dimensions and it cannot be “cribbed cabined and confined”

within traditional and doctrinaire limits. From a positivistic

point of view, equality is antithetic to arbitrariness. In fact

equality and arbitrariness are sworn enemies; one belongs to

the rule of law in a republic while the other, to the whim and

caprice of an absolute monarch. Where an act is arbitrary it is

implicit in it that it is unequal both according to political logic

and constitutional law and is therefore violative of Art.14…”

55 (1974) 4 SCC 3

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Four decades later, the test has been refined in Shayara Bano v. Union of

India56:

“The expression ‘arbitrarily’ means: in an unreasonable

manner, as fixed or done capriciously or at pleasure, without

adequate determining principle, not founded in the nature of

things, non-rational, not done or acting according to reason or

judgment, depending on the will alone.”

28 The wording of Section 377 does not precisely map on to a distinction

between homosexuals and heterosexuals but a precise interpretation would

mean that it penalizes some forms of sexual expression among heterosexuals

while necessarily criminalizing every form of sexual expression and intimacy

between homosexuals.57 For Section 377 to withstand the scrutiny of Article

14, it was necessary for the Court in Koushal to establish the difference

between ‘ordinary intercourse’ and ‘intercourse against the order of nature’,

the legitimate objective being pursued and the rational nexus between the

goal and the classification. However, the Koushal approach has been

criticised on the ground that while dealing with Article 14, it fell “short of the

minimum standards of judicial reasoning that may be expected from the

Supreme Court.”58 On a review of the prosecutions under Section 377,

Koushal conceded that “no uniform test [could] be culled out to classify acts

56 (2017) 9 SCC 1 57 Gautam Bhatia, “Equal moral membership: Naz Foundation and the refashioning of equality under a transformative

constitution”, Indian Law Review, Vol. 1 (2017), at pages 115-144. 58 Shubhankar Dam, “Suresh Kumar Koushal and Another v. NAZ Foundation and Others (Civil Appeal No. 10972 of

2013)” Public Law, International Survey Section (2014).

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as ‘carnal intercourse against the order of nature.’”59 Yet Koushal upheld the

classification of sexual acts in Section 377 without explaining the difference

between the classes, or the justification for treating the classes differently.

This lack of reasoning and analysis by the Court has been critiqued in

scholarly research on the subject. The following extract sums up the criticism

with telling effect:

“The Court says – without an iota of evidence – that there are

two classes of persons – those who engage in sexual

intercourse in the “ordinary course”, and those who don’t.

What is ordinary course? Presumably, heterosexuality. Why

is this ordinary course? Perhaps because there are more

heterosexuals than homosexuals around, although the Court

gives no evidence for that. Well, there are also more black-

haired people in India than brown-haired people. Is sex with a

brown-haired person against the order of nature because it

happens less often?... Where is the rational nexus? What is

the legitimate governmental objective? Even if we accept that

there is an intelligible differentia here, on what basis do

you criminalize – and thus deny equal protection of laws – to

one class of persons? The Court gives no answer.

Alternatively, “ordinary sex” is penal-vaginal, and every other

kind of sex is “against the ordinary course of nature”. Again,

no evidence to back that claim up apart from the say-so of the

judge.”60

At the very outset, we must understand the problem with the usage of the

term ‘order of nature’. What is ‘natural’ and what is ‘unnatural’? And who

decides the categorization into these two ostensibly distinct and water-tight

compartments? Do we allow the state to draw the boundaries between

59 Koushal, at para 60. 60 Gautam Bhatia, “The Unbearable Wrongness of Koushal vs Naz Foundation”, Indian Constitutional Law and

Philosophy (2013).

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permissible and impermissible intimacies between consenting adults?

Homosexuality has been documented in almost 1500 species, who

“unfortunately are not blessed with rational capabilities (and the propensity to

‘nurture’ same sex thoughts) as are found in mankind.”61 An interesting article

in this regard notes that, “no species has been found in which homosexual

behaviour has not been shown to exist, with the exception of species that

never have sex at all, such as sea urchins and aphis.”62

29 In an incisive article,63 Ambrosino discusses the shift from reproductive

instinct to erotic desire and how crucial this shift is to understanding modern

notions of sexuality. He analyses how the lines between homosexuality and

heterosexuality are blurred, and perhaps even an outdated myth or invention

when we understand the fluidity of sexual identities today:64

““No one knows exactly why heterosexuals and homosexuals

ought to be different,” wrote Wendell Ricketts, author of the

1984 study Biological Research on Homosexuality. The best

answer we’ve got is something of a tautology: “heterosexuals

and homosexuals are considered different because they can

be divided into two groups on the basis of the belief that they

can be divided into two groups.”

Though the hetero/homo divide seems like an eternal,

indestructible fact of nature, it simply isn’t. It’s merely one

recent grammar humans have invented to talk about what sex

means to us.”

61 Shamnad Basheer, Sroyon Mukherjee and Karthy Nair, “Section 377 and the ‘Order of Nature’: Nurturing

‘Indeterminacy’ in the Law”, NUJS Law Review, Vol, 2 (2009). 62 Bruce Bagemihl, Biological Exuberance: Animal Homosexuality and Natural Diversity, Stonewall Inn Editions

(2000). 63 Brandon Ambrosino, “The Invention of Heterosexuality”, British Broadcasting Company, 26 March, 2017. 64 Ibid.

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He questions the elevated status of ‘normalcy’ in the following words:

“Normal” is a loaded word, of course, and it has been misused

throughout history. Hierarchical ordering leading to slavery was

at one time accepted as normal, as was a geocentric

cosmology. It was only by questioning the foundations of the

consensus view that “normal” phenomena were dethroned

from their privileged positions.”

There are obvious shortcomings of the human element in the judgment of

natural and unnatural:

“Why judge what is natural and ethical to a human being by his

or her animal nature? Many of the things human beings value,

such as medicine and art, are egregiously unnatural. At the

same time, humans detest many things that actually are

eminently natural, like disease and death. If we consider some

naturally occurring phenomena ethical and others unethical,

that means our minds (the things looking) are determining what

to make of nature (the things being looked at). Nature doesn’t

exist somewhere “out there,” independently of us – we’re

always already interpreting it from the inside.”

It has been argued that “the ‘naturalness’ and omnipresence of

heterosexuality is manufactured by an elimination of historical specificities

about the organisation, regulation and deployment of sexuality across time

and space.”65 It is thus this “closeting of history” that produces the “hegemonic

heterosexual” - the ideological construction of a particular alignment of sex,

gender and desire that posits itself as natural, inevitable and eternal.66

Heterosexuality becomes the site where the male sexed masculine man’s

desire for the female sexed feminine woman is privileged over all other forms

65 Zaid Al Baset, “Section 377 and the Myth of Heterosexuality”, Jindal Global Law Review, Vol. 4 (2012). 66 Ibid.

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of sexual desire and becomes a pervasive norm that structures all societal

structures.67

The expression ‘carnal’ is susceptible to a wide range of meanings. Among

them are:

“sexual, sensual, erotic, lustful, lascivious, libidinous, lecherous, licentious,

lewd, prurient, salacious, coarse, gross, lubricious, venereal.”

That’s not all. The word incorporates meanings such as: “physical,

bodily, corporeal and of the flesh.” The late Middle English origin of ‘carnal’

derives from Christian Latin ‘carnalis’, from caro, carn – ‘flesh’. At one end of

the spectrum ‘carnal’ embodies something which relates to the physical

feelings and desires of the body. In another sense, the word implies ‘a

relation to the body or flesh as the state of basic physical appetites’. In a

pejorative sense, it conveys grossness or lewdness. The simple question

which we need to ask ourselves is whether liberty and equality can be made

to depend on such vagueness of expression and indeterminacy of content.

Section 377 is based on a moral notion that intercourse which is lustful is to

be frowned upon. It finds the sole purpose of intercourse in procreation. In

doing so, it imposes criminal sanctions upon basic human urges, by targeting

67 Ibid.

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some of them as against the order of nature. It does so, on the basis of a

social hypocrisy which the law embraces as its own. It would have human

beings lead sanitized lives, in which physical relationships are conditioned by

a moral notion of what nature does or does not ordain. It would have human

beings accept a way of life in which sexual contact without procreation is an

aberration and worse still, penal. It would ask of a section of our citizens that

while love, they may, the physical manifestation of their love is criminal. This

is manifest arbitrariness writ large.

If it is difficult to locate any intelligible differentia between indeterminate terms

such as ‘natural’ and ‘unnatural’, then it is even more problematic to say that a

classification between individuals who supposedly engage in ‘natural’

intercourse and those who engage in ‘carnal intercourse against the order of

nature’ can be legally valid.

In addition to the problem regarding the indeterminacy of the terms, there is a

logical fallacy in ascribing legality or illegality to the ostensibly universal

meanings of ‘natural’ and ‘unnatural’ as is pointed out in a scholarly article.68

Basheer, et al make this point effectively:

“From the fact that something occurs naturally, it does not

necessarily follow that it is socially desirable. Similarly, acts

that are commonly perceived to be ‘unnatural’ may not

necessarily deserve legal sanction. Illustratively, consider a

68 Supra note 61.

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person who walks on his hands all the time. Although this

may be unnatural, it is certainly not deserving of legal

censure.

…In fact, several activities that might be seen to contravene

the order of nature (heart transplants, for example) are

beneficial and desirable. Even if an unnatural act is harmful to

the extent that it justifies criminal sanctions being imposed

against it, the reason for proscribing such an act would be

that the act is harmful, and not that it is unnatural.”

Indeed, there is no cogent reasoning to support the idea that behaviour that

may be uncommon on the basis of mere statistical probability is necessarily

abnormal and must be deemed ethically or morally wrong.69 Even behaviour

that may be considered wrong or unnatural cannot be criminalised without

sufficient justification given the penal consequences that follow. Section 377

becomes a blanket offence that covers supposedly all types of non-

procreative ‘natural’ sexual activity without any consideration given to the

notions of consent and harm.

30 The meaning of ‘natural’ as understood in cases such as Khanu v.

Emperor70, which interpreted natural sex to mean only sex that would lead to

procreation, would lead to absurd consequences. Some of the consequences

have been pointed out thus:

“The position of the court was thus that ‘natural’ sexual

intercourse is restricted not only to heterosexual coitus, but

further only to acts that might possibly result in conception.

69 Sex, Morality and the Law, (Lori Gruen and George Panichas eds.), Routledge (1996). 70 AIR (1925) Sind. 286

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Such a formulation of the concept of ‘natural’ sex excludes

not only the use of contraception, which is likely to have fallen

outside the hegemonic view of normative sexuality at the

time, but also heterosexual coitus where one or both partners

are infertile, or during the ‘safe’ period of a woman’s

menstrual cycle. It is perhaps unnecessary to state that the

formulation also excludes oral sex between heterosexual

partners and any homosexual act whatsoever.”71

The indeterminacy and vagueness of the terms ‘carnal intercourse’ and ‘order

of nature’ renders Section 377 constitutionally infirm as violating the equality

clause in Article 14.

While it is evident that the classification is invalid, it is useful to understand its

purported goal by looking at the legislative history of Section 377. In

Macaulay’s first draft of the Penal Code, the predecessor to present day

Section 377 was Clause 36172 which provided a severe punishment for

touching another for the purpose of ‘unnatural’ lust. Macaulay abhorred the

idea of any debate or discussion on this ‘heinous crime’. India’s anti-sodomy

law was conceived, legislated and enforced by the British without any kind of

public discussion.73 So abhorrent was homosexuality to the moral notions

which he espoused, that Macaulay believed that the idea of a discussion was

71 Andrew Davis, “The Framing of Sex: Evaluating Judicial Discourse on the 'Unnatural Offences'”, Alternative Law

Journal, Vol. 5 (2006). 72 Clause 361 stated “Whoever, intending to gratify unnatural lust, touches, for that purpose, any person, or any

animal, or is by his own consent touched by any person, for the purpose of gratifying unnatural lust, shall be punished with imprisonment of either description for a term which may extend to fourteen years and must not be less than two years, and shall also be liable to fine.”

73 Alok Gupta, “Section 377 and the Dignity of Indian Homosexuals” The Economic and Political Weekly, Vol. 41 (2006).

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repulsive. Section 377 reveals only the hatred, revulsion and disgust of the

draftsmen towards certain intimate choices of fellow human beings. The

criminalization of acts in Section 377 is not based on a legally valid distinction,

“but on broad moral proclamations that certain kinds of people, singled out by

their private choices, are less than citizens – or less than human.”74

31 The Naz judgement has been criticised on the ground that even though

it removed private acts between consenting adults from the purview of Section

377, it still retained the section along with its problematic terminology

regarding the ‘order of nature’:75

“…even though the acts would not be criminal, they would still

be categorized as “unnatural” in the law. This is not an idle

terminological issue. As Durkheim noted over a hundred

years ago, the law also works as a tool that expresses social

relations.76 Hence, this expression itself is problematic from a

dignitarian standpoint, otherwise so eloquently referred to by

the judgement.”

At this point, we look at some of the legislative changes that have taken place

in India’s criminal law since the enactment of the Penal Code. The Criminal

Law (Amendment) Act 2013 imported certain understandings of the concept of

sexual intercourse into its expansive definition of rape in Section 375 of the

Indian Penal Code, which now goes beyond penile–vaginal penetrative

74 Supra note 25. 75 John Sebastian, “The opposite of unnatural intercourse: understanding Section 377 through Section 375, Indian

Law Review, Vol. 1 (2018). 76 Emile Durkheim, The Division of Labour in Society, Macmillan (1984).

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intercourse.77 It has been argued that if ‘sexual intercourse’ now includes

many acts which were covered under Section 377, those acts are clearly not

‘against the order of nature’ anymore. They are, in fact, part of the changed

meaning of sexual intercourse itself. This means that much of Section 377 has

not only been rendered redundant but that the very word ‘unnatural’ cannot

have the meaning that was attributed to it before the 2013 amendment.78

Section 375 defines the expression rape in an expansive sense, to include

any one of several acts committed by a man in relation to a woman. The

offence of rape is established if those acts are committed against her will or

without the free consent of the woman. Section 375 is a clear indicator that in

a heterosexual context, certain physical acts between a man and woman are

excluded from the operation of penal law if they are consenting adults. Many

of these acts which would have been within the purview of Section 377, stand

77 375. A man is said to commit “rape” if he- (a) penetrates his penis, to any extent, into the vagina, mouth, urethra

or 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 a 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 him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:— First.—Against her will. Secondly.—Without her consent. Thirdly.—With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. Fourthly.—With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly.—With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent Sixthly.—With or without her consent, when she is under eighteen years of age. Seventhly.—When she is unable to communicate consent. Explanation 1.—For the purposes of this section, "vagina" shall also include labia majora. Explanation 2.—Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. Exception 1.—A medical procedure or intervention shall not constitute rape. Exception 2.—Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.

78 Supra note 75, at pages 232-249.

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excluded from criminal liability when they take place in the course of

consensual heterosexual contact. Parliament has ruled against them being

regarded against the ‘order of nature’, in the context of Section 375. Yet those

acts continue to be subject to criminal liability, if two adult men or women were

to engage in consensual sexual contact. This is a violation of Article 14.

Nivedita Menon opposes the idea that ‘normal’ sexuality springs from nature

and argues that this idea of ‘normal’ sexuality is a cultural and social

construct:79

“Consider the possibility that rules of sexual conduct are as

arbitrary as traffic rules, created by human societies to

maintain a certain sort of order, and which could differ from

place to place -- for example, you drive on the left in India and

on the right in the USA. Further, let us say you question the

sort of social order that traffic rules keep in place. Say you

believe that traffic rules in Delhi are the product of a model of

urban planning that privileges the rich and penalizes the poor,

that this order encourages petrol-consuming private vehicles

and discourages forms of transport that are energy-saving --

cycles, public transport, pedestrians. You would then question

that model of the city that forces large numbers of inhabitants

to travel long distances every day simply to get to school

andwork. You could debate the merits of traffic rules and

urban planning on the grounds of convenience, equity and

sustainability of natural resources -- at least, nobody could

seriously argue that any set of traffic rules is natural.”

32 The struggle of citizens belonging to sexual minorities is located within

the larger history of the struggles against various forms of social subordination

79 Nivedita Menon, “How Natural is Normal? Feminism and Compulsory Heterosexuality”, In Because I have a Voice,

Queer Politics in India, (Narrain and Bhan eds.) Yoda Press (2005).

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in India. The order of nature that Section 377 speaks of is not just about non-

procreative sex but is about forms of intimacy which the social order finds

“disturbing”.80 This includes various forms of transgression such as inter-caste

and inter-community relationships which are sought to be curbed by society.

What links LGBT individuals to couples who love across caste and community

lines is the fact that both are exercising their right to love at enormous

personal risk and in the process disrupting existing lines of social authority.81

Thus, a re-imagination of the order of nature as being not only about the

prohibition of non-procreative sex but instead about the limits imposed by

structures such as gender, caste, class, religion and community makes the

right to love not just a separate battle for LGBT individuals, but a battle for

all.82

E Beyond physicality: sex, identity and stereotypes

“Only in the most technical sense is this a case about who

may penetrate whom where. At a practical and symbolical

level it is about the status, moral citizenship and sense of self-

worth of a significant section of the community. At a more

general and conceptual level, it concerns the nature of the

open, democratic and pluralistic society contemplated by the

Constitution.”83

80 Supra note 7. 81 Ibid. 82 Supra note 7. 83 The National Coalition for Gay and Lesbian Equality v. The Minister of Justice, 1999 (1) SA 6 (CC), Sachs J.,

concurring.

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33 The Petitioners contend that (i) Section 377 discriminates on the basis

of sex and violates Articles 15 and 16; and (ii) Discrimination on the ground of

sexual orientation is in fact, discrimination on the ground of sex. The

intervenors argue that (i) Section 377 criminalizes acts and not people; (ii) It is

not discriminatory because the prohibition on anal and oral sex applies equally

to both heterosexual and homosexual couples; and (iii) Article 15 prohibits

discrimination on the ground of ‘sex’ which cannot be interpreted so broadly

as to include ‘sexual orientation’.

34 When the constitutionality of a law is challenged on the ground that it

violates the guarantees in Part III of the Constitution, what is determinative is

its effect on the infringement of fundamental rights.84 This affords the

guaranteed freedoms their true potential against a claim by the state that the

infringement of the right was not the object of the provision. It is not the object

of the law which impairs the rights of the citizens. Nor is the form of the action

taken determinative of the protection that can be claimed. It is the effect of the

law upon the fundamental right which calls the courts to step in and remedy

the violation. The individual is aggrieved because the law hurts. The hurt to

the individual is measured by the violation of a protected right. Hence, while

84 Re. the Kerala Education Bill, AIR 1958 SC 956 at para 26; Sakal Papers v Union of India, AIR 1962 SC 305 at

para 42; R.C. Cooper v Union of India, (1970) 1 SCC 248 at paras 43, 49; Bennett Coleman v. Union of India, AIR (1972) 2 SCC 788 at para 39; Maneka Gandhi v Union of India, (1978) 1 SCC 248 at para 19.

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assessing whether a law infringes a fundamental right, it is not the intention of

the lawmaker that is determinative, but whether the effect or operation of the

law infringes fundamental rights.

Article 15 of the Constitution reads thus:

“15. (1) The State shall not discriminate against any citizen on

grounds only of religion, race, caste, sex, place of birth or any

of them.” (Emphasis supplied)

Article 15 prohibits the State from discriminating on grounds only of sex. Early

judicial pronouncements adjudged whether discrimination aimed only at sex is

covered by Article 15 or whether the guarantee is attracted even to a

discrimination on the basis of sex and some other grounds (‘Sex plus’). The

argument was that since Article 15 prohibited discrimination on only specified

grounds, discrimination resulting from a specified ground coupled with other

considerations is not prohibited. The view was that if the discrimination is

justified on the grounds of sex and another factor, it would not be covered by

the prohibition in Article 15.

35 One of the earliest cases decided in 1951 was by the Calcutta High

Court in Sri Sri Mahadev Jiew v. Dr. B B Sen85. Under Order XXV, R. 1 of

the Code of Civil Procedure, men could be made liable for paying a security

85 AIR (1951) Cal. 563.

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45

cost if they did not possess sufficient movable property in India only if they

were residing outside India. However, women were responsible for paying

such security, regardless of whether or not they were residing in India. In

other words, the law drew a distinction between resident males who did not

have sufficient immovable property, and resident females who did not have

sufficient immovable property. Upholding the provision, the Calcutta High

Court held:

“31. Article 15(1) of the Constitution pro-vides, inter alia, --

The State shall not discriminate against any citizen on

grounds only of sex. The word ‘only’ in this Article is of great

importance and significance which should not be missed. The

impugned law must be shown to discriminate because of sex

alone. If other factors in addition to sex come into play in

making the discriminatory law, then such discrimination

does not, in my judgment, come within the provision of

Article 15(1) of the Constitution.” (Emphasis supplied)

This interpretation was upheld by this Court in Air India v. Nergesh Meerza

(“Nergesh Meerza”).86 Regulations 46 and 47 of the Air India Employees’

Service Regulations were challenged for causing a disparity between the pay

and promotional opportunities of men and women in-flight cabin crew. Under

Regulation 46, while the retirement age for male Flight Pursers was fifty eight,

Air Hostesses were required to retire at thirty five, or on marriage (if they

married within four years of joining service), or on their first

pregnancy, whichever occurred earlier. This period could be extended in the

86 (1981) 4 SCC 335

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absolute discretion of the Managing Director. Even though the two cadres

were constituted on the grounds of sex, the Court upheld the Regulations in

part and opined:

“68. Even otherwise, what Articles 15(1) and 16(2) prohibit

is that discrimination should not be made only and only

on the ground of sex. These Articles of the Constitution

do not prohibit the State from making discrimination on

the ground of sex coupled with other considerations.”

(Emphasis supplied)

36 This formalistic interpretation of Article 15 would render the

constitutional guarantee against discrimination meaningless. For it would

allow the State to claim that the discrimination was based on sex and another

ground (‘Sex plus’) and hence outside the ambit of Article 15. Latent in the

argument of the discrimination, are stereotypical notions of the differences

between men and women which are then used to justify the discrimination.

This narrow view of Article 15 strips the prohibition on discrimination of its

essential content. This fails to take into account the intersectional nature of

sex discrimination, which cannot be said to operate in isolation of other

identities, especially from the socio-political and economic context. For

example, a rule that people over six feet would not be employed in the army

would be able to stand an attack on its disproportionate impact on women if it

was maintained that the discrimination is on the basis of sex and height. Such

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a formalistic view of the prohibition in Article 15, rejects the true operation of

discrimination, which intersects varied identities and characteristics.

37 A divergent note was struck by this Court in Anuj Garg v. Hotel

Association of India87. Section 30 of the Punjab Excise Act, 1914 prohibited

the employment of women (and men under 25 years) in premises where liquor

or other intoxicating drugs were consumed by the public. Striking down the

law as suffering from “incurable fixations of stereotype morality and

conception of sexual role”, the Court held:

“42… one issue of immediate relevance in such cases is

the effect of the traditional cultural norms as also the

state of general ambience in the society which women

have to face while opting for an employment which is

otherwise completely innocuous for the male

counterpart...”

“43…It is state’s duty to ensure circumstances of safety

which inspire confidence in women to discharge the duty

freely in accordance to the requirements of the profession

they choose to follow. Any other policy inference (such as

the one embodied under section 30) from societal

conditions would be oppressive on the women and

against the privacy rights.” (Emphasis supplied)

The Court recognized that traditional cultural norms stereotype gender roles.

These stereotypes are premised on assumptions about socially ascribed roles

of gender which discriminate against women. The Court held that “insofar as

governmental policy is based on the aforesaid cultural norms, it is

87(2008) 3 SCC 1

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48

constitutionally invalid.” In the same line, the Court also cited with approval,

the judgments of the US Supreme Court in Frontiero v. Richardson88, and

United States v. Virginia89, and Justice Marshall’s dissent in Dothard v.

Rawlinson90, The Court grounded the anti-stereotyping principle as firmly

rooted in the prohibition under Article 15.

In National Legal Services Authority v. Union of India (“NALSA”)91, while

dealing with the rights of transgender persons under the Constitution, this

Court opined:

“66. Articles 15 and 16 sought to prohibit discrimination

on the basis of sex, recognizing that sex discrimination

is a historical fact and needs to be addressed.

Constitution makers, it can be gathered, gave emphasis

to the fundamental right against sex discrimination so as

to prevent the direct or indirect attitude to treat people

differently, for the reason of not being in conformity with

stereotypical generalizations of binary genders. Both

gender and biological attributes constitute distinct

components of sex. Biological characteristics, of course,

include genitals, chromosomes and secondary sexual

features, but gender attributes include one’s self image, the

deep psychological or emotional sense of sexual identity and

character. The discrimination on the ground of ‘sex’ Under

88 411 U.S. 677 (1973). The case concerned a statute that allowed service-members to claim additional benefits if

their spouse was dependent on them. A male claimant would automatically be entitled to such benefits while a female claimant would have to prove that her spouse was dependent on her for more than half his support. The Court struck down this statute stating that the legislation violated the equal protection clause of the American Constitution.

89 518 U.S. 515 (1996). The case concerned the Virginia Military Institute (VMI), which had a stated objected of producing “citizen-soldiers.” However, it did not admit women. The Court held that such a provision was unconstitutional and that there were no “fixed notions concerning the roles and abilities of males and females.”

90 433 U.S. 321 (1977).The case concerned an effective bar on females for the position of guards or correctional counsellors in the Alabama State Penitentiary system. Justice Marshall’s dissent held that prohibition of women in ‘contact positions’ violated the Title VII guarantee.

91 (2014) 5 SCC 438

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Articles 15 and 16, therefore, includes discrimination on the

ground of gender identity.” (Emphasis supplied)

This approach, in my view, is correct.

In Nergesh Meerza, this Court held that where persons of a particular class,

in view of the “special attributes, qualities” are treated differently in ‘public

interest’, such a classification would not be discriminatory. The Court opined

that since the modes of recruitment, promotional avenues and other matters

were different for Air Hostesses, they constituted a class separate from male

Flight Pursers. This, despite noting that “a perusal of the job functions which

have been detailed in the affidavit, clearly shows that the functions of the two,

though obviously different overlap on some points but the difference, if any, is

one of degree rather than of kind.”

38 The Court did not embark on the preliminary enquiry as to whether the

initial classification between the two cadres, being grounded in sex, was

violative of the constitutional guarantee against discrimination. Referring

specifically to the three significant disabilities that the Regulations imposed on

Air Hostesses, the Court held that “there can be no doubt that these peculiar

conditions do form part of the Regulations governing Air Hostesses but once

we have held that Air Hostesses form a separate category with different and

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50

separate incidents the circumstances pointed out by the petitioners cannot

amount to discrimination so as to violate Article 14 of the Constitution on this

ground.”

39 The basis of the classification was that only men could become male

Flight Pursers and only women could become Air Hostesses. The very

constitution of the cadre was based on sex. What this meant was, that to pass

the non-discrimination test found in Article 15, the State merely had to create

two separate classes based on sex and constitute two separate cadres. That

would not be discriminatory.

The Court went a step ahead and opined:

“80…Thus, the Regulation permits an AH to marry at the age

of 23 if she has joined the service at the age of 19 which is by

all standards a very sound and salutary provision. Apart from

improving the health of the employee, it helps a good in

the promotion and boosting up of our family planning

programme. Secondly, if a woman marries near about the

age of 20 to 23 years, she becomes fully mature and

there is every chance of such a marriage proving a

success, all things being equal. Thirdly, it has been

rightly pointed out to us by the Corporation that if the bar

of marriage within four years of service is removed then

the Corporation will have to incur huge expenditure in

recruiting additional AHs either on a temporary or on ad

hoc basis to replace the working AHs if they conceive

and any period short of four years would be too little a

time for the Corporation to phase out such an ambitious

plan.” (Emphasis supplied)

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40 A strong stereotype underlines the judgment. The Court did not

recognize that men were not subject to the same standards with respect to

marriage. It holds that the burdens of health and family planning rest solely on

women. This perpetuates the notion that the obligations of raising family are

those solely of the woman. In dealing with the provision for termination of

service on the first pregnancy, the Court opined that a substituted provision for

termination on the third pregnancy would be in the “larger interest of the

health of the Air Hostesses concerned as also for the good upbringing of the

children.” Here again, the Court’s view rested on a stereotype. The patronizing

attitude towards the role of women compounds the difficulty in accepting the

logic of Nergesh Meerza. This approach, in my view, is patently incorrect.

41 A discriminatory act will be tested against constitutional values. A

discrimination will not survive constitutional scrutiny when it is grounded in

and perpetuates stereotypes about a class constituted by the grounds

prohibited in Article 15(1). If any ground of discrimination, whether direct or

indirect is founded on a stereotypical understanding of the role of the sex, it

would not be distinguishable from the discrimination which is prohibited by

Article 15 on the grounds only of sex. If certain characteristics grounded in

stereotypes, are to be associated with entire classes of people constituted as

groups by any of the grounds prohibited in Article 15(1), that cannot establish

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a permissible reason to discriminate. Such a discrimination will be in violation

of the constitutional guarantee against discrimination in Article 15(1). That

such a discrimination is a result of grounds rooted in sex and other

considerations, can no longer be held to be a position supported by the

intersectional understanding of how discrimination operates. This infuses

Article 15 with true rigour to give it a complete constitutional dimension in

prohibiting discrimination.

The approach adopted the Court in Nergesh Meerza, is incorrect.

A provision challenged as being ultra vires the prohibition of discrimination on

the grounds only of sex under Article 15(1) is to be assessed not by the

objects of the state in enacting it, but by the effect that the provision has on

affected individuals and on their fundamental rights. Any ground of

discrimination, direct or indirect, which is founded on a particular

understanding of the role of the sex, would not be distinguishable from the

discrimination which is prohibited by Article 15 on the grounds only of sex.

E.I Facial neutrality: through the looking glass

42 The moral belief which underlies Section 377 is that sexual activities

which do not result in procreation are against the ‘order of nature’ and ought

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53

to be criminalized under Section 377. The intervenors submit that Section

377, criminalizes anal and oral sex by heterosexual couples as well. Hence, it

is urged that Section 377 applies equally to all conduct against the ‘order of

nature’, irrespective of sexual orientation. This submission is incorrect. In

NALSA this Court held that Section 377, though associated with specific

sexual acts, highlights certain identities. In Naz, the Delhi High Court

demonstrated effectively how Section 377 though facially neutral in its

application to certain acts, targets specific communities in terms of its impact:

“Section 377 IPC is facially neutral and it apparently

targets not identities but acts, but in its operation it does

end up unfairly targeting a particular community. The fact

is that these sexual acts which are criminalised are

associated more closely with one class of persons,

namely, the homosexuals as a class. Section 377 IPC has

the effect of viewing all gay men as criminals. When everything

associated with homosexuality is treated as bent, queer,

repugnant, the whole gay and lesbian community is marked

with deviance and perversity. They are subject to extensive

prejudice because what they are or what they are

perceived to be, not because of what they do. The result is

that a significant group of the population is, because of its

sexual nonconformity, persecuted, marginalised and

turned in on itself.”92 (Emphasis supplied)

To this end, it chronicled the experiences of the victims of Section 377, relying

on the extensive records and affidavits submitted by the Petitioners that

brought to fore instances of custodial rape and torture, social boycott,

degrading and inhuman treatment and incarceration. The court concluded that

while Section 377 criminalized conduct, it created a systemic pattern of 92 Naz, at para 94.

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disadvantage, exclusion and indignity for the LGBT community, and for

individuals who indulge in non-heterosexual conduct.

43 Jurisprudence across national frontiers supports the principle that

facially neutral action by the State may have a disproportionate impact upon a

particular class. In Europe, Directive 2006/54/EC of the European

Parliament and of the Council of 5 July 2006 defines ‘indirect

discrimination’ as: “where an apparently neutral provision, criterion or practice

would put persons of one sex at a particular disadvantage compared with

persons of the other sex, unless that provision, criterion or practice is

objectively justified by a legitimate aim, and the means of achieving that aim

are appropriate and necessary.”

In Griggs v Duke Power Co.93, the US Supreme Court, whilst recognizing

that African-Americans received sub-standard education due to segregated

schools, opined that the requirement of an aptitude/intelligence test

disproportionately affected African-American candidates. The Court held that

“The Civil Rights Act” proscribes not only overt discrimination but also

practices that are fair in form, but discriminatory in operation.”

93 401 U.S. 424 (1971)

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In Bilka-Kaufhaus GmbH v. Karin Weber von Hartz94, the European Court

of Justice held that denying pensions to part-time employees is more likely to

affect women, as women were more likely to take up part-time jobs. The Court

noted:

“Article 119 of the EEC Treaty is infringed by a department

store company which excludes part-time employees from its

occupational pension scheme, where that exclusion affects

a far greater number of women than men, unless the

undertaking shows that the exclusion is based on objectively

justified factors unrelated to any discrimination on grounds of

sex.” (Emphasis supplied)

The Canadian Supreme Court endorsed the notion of a disparate impact

where an action has a disproportionate impact on a class of persons. In

Andrews v. Law Society of British Columbia95, the Court noted:

“Discrimination is a distinction which, whether intentional or

not but based on grounds relating to personal characteristics

of the individual or group, has an effect which imposes

disadvantages not imposed upon others or which withholds or

limits access to advantages available to other members of

society. Distinctions based on personal characteristics

attributed to an individual solely on the basis of

association with a group will rarely escape the charge of

discrimination, while those based on an individual's merits

and capacities will rarely be so classed.” (Emphasis supplied)

Thus, when an action has “the effect of imposing burdens, obligations, or

disadvantages on such individual or group not imposed upon others, or which

94 (1986) ECR 1607 95 (1989) 1 SCR 143

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withholds or limits access to opportunities, benefits, and advantages available

to other members of society”,96 it would be suspect.

In City Council of Pretoria v. Walker97, the Constitutional Court of South

Africa observed:

“The concept of indirect discrimination, … was developed

precisely to deal with situations where discrimination lay

disguised behind apparently neutral criteria or where

persons already adversely hit by patterns of historic

subordination had their disadvantage entrenched or

intensified by the impact of measures not overtly

intended to prejudice them.

In many cases, particularly those in which indirect

discrimination is alleged, the protective purpose would

be defeated if the persons complaining of discrimination

had to prove not only that they were unfairly

discriminated against but also that the unfair

discrimination was intentional. This problem would be

particularly acute in cases of indirect discrimination

where there is almost always some purpose other than

a discriminatory purpose involved in the conduct or

action to which objection is taken.”

(Emphasis supplied)

E.2 Deconstructing the polarities of binary genders

44 Section 377 criminalizes behaviour that does not conform to the

heterosexual expectations of society. In doing so it perpetuates a symbiotic

relationship between anti-homosexual legislation and traditional gender roles.

96 Ibid. 97 (1998) 3 BCLR 257

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The notion that the nature of relationships is fixed and within the ‘order of

nature’ is perpetuated by gender roles, thus excluding homosexuality from the

narrative. The effect is described as follows:

“Cultural homophobia thus discourages social behavior that

appears to threaten the stability of heterosexual gender roles.

These dual normative standards of social and sexual

behavior construct the image of a gay man as abnormal

because he deviates from the masculine gender role by

subjecting himself in the sexual act to another man.”98

If individuals as well as society hold strong beliefs about gender roles – that

men (to be characteristically reductive) are unemotional, socially dominant,

breadwinners that are attracted to women and women are emotional, socially

submissive, caretakers that are attracted to men – it is unlikely that such

persons or society at large will accept that the idea that two men or two

women could maintain a relationship. If such a denial is further grounded in a

law, such as Article 377 the effect is to entrench the belief that homosexuality

is an aberration that falls outside the ‘normal way of life.’

45 An instructive article by Zachary A. Kramer,99 notes that a heterosexist

society both expects and requires men and women to engage in only

opposite-sex sexual relationships. The existence of same-sex relationships is,

98 Elvia R. Arriola, “Gendered Inequality: Lesbians, Gays, and Feminist Legal Theory”, Berkeley Women’s Law

Journal, Vol. 9 (1994), at pages 103-143. 99 Zachary A. Kramer, “The Ultimate Gender Stereotype: Equalizing Gender-Conforming and Gender-Nonconforming

Homosexuals under Title VII”, University of Illinois Law Review (2004), at page 490.

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therefore, repugnant to heterosexist societal expectations. Kramer argues

that:

“Discrimination against gays and lesbians reinforces

traditional sex roles. The primary thrust of such discrimination

is the gender-based stigmatization of gays and lesbians,

deriving from the idea that homosexuality departs from

traditional gender roles and that “real” men and women

should not be attracted to a member of the same sex. This

portrayal relies heavily on what Bennett Capers calls the

“binary gender system.”100

46 Bennett Capers defines the binary gender system as based in

“heterosexism,” which he defines as the “institutionalized valorization of

heterosexual activity.” Capers, in fact suggests that:

“The sanctioning of discrimination based on sexual orientation

perpetuates the subordination not only of lesbians and gays

but of women as well.

Heterosexism, then, in its reliance on a bipolar system of sex

and gender, reinforces sexism in two ways. First, by

penalizing persons who do not conform to a bipolar gender

system and rewarding men and women who do, the

heterosexist hegemony perpetuates a schema that valorizes

passive, dependent women, thus contributing to sexism.

Second, heterosexism reinforces sexism because it

subordinates the female sex through its hierarchical polarity.

Because heterosexism perpetuates sexism, the extension of

substantial rights to lesbians and gays, who by definition

challenge heterosexism and the concept of a binary gender

system, would result in a challenge to sexism and to male

power.” 101

100 Ibid. 101 Bennett Capers, “Note, Sexual Orientation and Title VII”, Columbia Law Review (1991), at pages 1159, 1160,

1163.

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In other words, one cannot simply separate discrimination based on sexual

orientation and discrimination based on sex because discrimination based on

sexual orientation inherently promulgates ideas about stereotypical notions of

sex and gender roles. Taking this further, Andrew Koppelman argues that:

“Similarly, sodomy laws discriminate on the basis of sex-for

example, permitting men, but not women, to have sex with

women-in order to impose traditional sex roles. The Court has

deemed this purpose impermissible in other contexts because

it perpetuates the subordination of women. The same

concern applies with special force to the sodomy laws,

because their function is to maintain the polarities of gender

on which the subordination of women depends.”102

Koppelman thus suggests that the taboo against homosexuals “polices the

boundaries that separate the dominant from the dominated in a social

hierarchy.”103 He expands on this idea, using the analogy of miscegenation, or

the interbreeding of races:

“Do statutes that outlaw homosexual sex impose traditional

sex roles? One possible answer is that of McLaughlin

[McLaughlin v. Florida]: The crime is by definition one of

engaging in activity inappropriate to one's sex. But these

statutes' inconsistency with the Constitution's command of

equality is deeper. Like the miscegenation statutes, the

sodomy statutes reflect and reinforce the morality of a

hierarchy based on birth. Just as the prohibition of

miscegenation preserved the polarities of race on which white

supremacy rested, so the prohibition of sodomy preserves the

polarities of gender on which rests the subordination of

women.”104

102 Andrew Koppelman, “The Miscegenation Analogy: Sodomy Law as Sex Discrimination”, Yale Law Journal, Vol.

98 (1988), at page 147. 103 Andrew Koppelman, “Why Discrimination against Lesbians and Gay Men is Sex Discrimination”, New York

University Law Review, Vol. 69 (1994). 104 Supra note 102, at page 148.

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Statutes like Section 377 give people ammunition to say “this is what a man

is” by giving them a law which says “this is what a man is not.” Thus, laws that

affect non-heterosexuals rest upon a normative stereotype: “the bald

conviction that certain behavior-for example, sex with women-is appropriate

for members of one sex, but not for members of the other sex.”105

What this shows us is that LGBT individuals as well as those who do not

conform to societal expectations of sexual behaviour defy gender stereotypes.

“The construction of gender stereotypes ultimately rests on the

assumption that there are two opposite and mutually exclusive

biological sexes. The assumption of heterosexuality is central

to this gender binary. In a patriarchal context, some of the

most serious transgressors are thus: a woman who renounces

a man sexual partner or an individual assigned female at birth

who renounces womanhood, thereby rejecting the patriarchal

system and all other forms of male supervision and control,

and an individual assigned male at birth who embraces

womanhood, thereby abandoning privilege in favor of that

which is deemed subservient, femininity.”106

Prohibition of sex discrimination is meant to change traditional practices which

legally, and often socially and economically, disadvantage persons on the

basis of gender. The case for gay rights undoubtedly seeks justice for gays.

But it goes well beyond the concern for the gay community. The effort to end

105 Ibid. 106 The Relationship between Homophobia, Transphobia, and Women’s Access to Justice for the Forthcoming

CEDAW General Recommendation on Women’s Access to Justice. Submitted to the United Nations Committee for the Elimination of All Forms of Discrimination against Women (2013).

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discrimination against gays should be understood as a necessary part of the

larger effort to end the inequality of the sexes.

“To be a lesbian is to be perceived (labelled) as someone

who has stepped out of line, who has moved out of

sexual/economic dependence on a male, who is woman-

identified. A lesbian is perceived as someone who can live

without a man, and who is therefore (however illogically)

against men. A lesbian is perceived as being outside the

acceptable, routinized order of things. She is seen as

someone who has no societal institutions to protect her and

who is not privileged to the protection of individual males. A

lesbian is perceived as a threat to the nuclear family, to male

dominance and control, to the very heart of sexism.”107

Commenting on its link with the essence of Article 15, Tarunabh Khaitan

writes:

“But the salience of a case on discrimination against a

politically disempowered minority, based purely on the

prejudices of a majority, goes beyond the issue of LGBTQ

rights. Indian constitutional democracy is at a

crossroads…Inclusiveness and pluralism lie at the heart of

Article 15, which can be our surest vehicle for the Court to

lend its institutional authority to the salience of these ideas in

our constitutional identity.”108

47 Relationships that tend to undermine the male/female divide are

inherently required for the maintenance of a socially imposed gender

inequality. Relationships which question the divide are picked up for target

and abuse. Section 377 allows this. By attacking these gender roles,

members of the affected community, in their move to build communities and

107 Suzanne Pharr, Homophobia: A weapon of Sexism, Chardon Press (1988), at page18. 108 Tarunabh Khaitan, “Inclusive Pluralism or Majoritarian Nationalism: Article 15, Section 377 and Who We Really

Are”, Indian Constitutional Law and Philosophy (2018).

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relationships premised on care and reciprocity, lay challenge to the idea that

relationships, and by extension society, must be divided along hierarchical

sexual roles in order to function. For members of the community, hostility and

exclusion aimed at them, drive them into hiding, away from public expression

and view. It is this discrimination faced by the members of the community,

which results in silence, and consequently invisibility, creating barriers,

systemic and deliberate, that effect their participation in the work force and

thus undermines substantive equality. In the sense that the prohibition of

miscegenation was aimed to preserve and perpetuate the polarities of race to

protect white supremacy, the prohibition of homosexuality serves to ensure a

larger system of social control based on gender and sex.

48 A report prepared by the International Commission of Jurists109 has

documented the persecution faced by the affected community due to the

operation of Section 377. The report documents numerous violations inflicted

on people under the authority of Section 377. According to the National Crime

Records Bureau, 1279 persons in 2014 and 1491 in 2015 were arrested under

Section 377.110

109 International Commission of Jurists, “Unnatural Offences” Obstacles to Justice in India Based on Sexual

Orientation and Gender Identity (2017). 110 Ibid, at page 16.

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The report documents instances of abuse from law enforcement agencies and

how the possibility of persecution under Section 377 prevents redress.111

Even though acts such as blackmail, assault, and bodily crimes are

punishable under penal laws, such methods of seeking redressal are not

accessed by those communities given the fear of retaliation or prosecution.

49 The petitioners in the present batch of cases have real life narrations of

suffering discrimination, prejudice and hate. In Anwesh Pokkuluri v. UOI112,

with which this case is connected, the Petitioners are a group of persons

belonging to the LGBTQ community, each of whom has excelled in their fields

but suffer immensely due to the operation of Section 377. To cope with the

growing isolation among the community, these Petitioners, all alumni of Indian

Institutes of Technology across the country, created a closed group called

“Pravritti”. The group consists of persons from the LGBTQ community. They

are faculty members, students, alumni and anyone who has ever stayed on

the campus of any IIT in the country. The group was formed in 2012 to help

members cope with loneliness and difficulties faced while accepting their

identity along with holding open discussions on awareness.

111 Ibid, at pages 16 – 18. 112 Writ Petition (Criminal) No. 121 of 2018.

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50 Out of twenty Petitioners, sixteen are gay, two are bisexual women and

one is a bisexual man. One among the Petitioners is a transwoman. Three of

the Petitioners explain that they suffered immense mental agony due to which

they were on the verge of committing suicide. Another two stated that

speaking about their sexual identity has been difficult, especially since they

did not have the support of their families, who, upon learning of their sexual

orientation, took them for psychiatric treatment to cure the so-called “disease.”

The families of three Petitioners ignored their sexual identity. One of them

qualified to become an Indian Administrative Services officer in an

examination which more than 4,00,000 people write each year. But he chose

to forgo his dream because of the fear that he would be discriminated against

on the ground of his sexuality. Some of them have experienced depression;

others faced problems focusing on their studies while growing up; one among

them was forced to drop out of high school as she was residing in a girl’s

hostel where the authorities questioned her identity. The parents of one of

them brushed his sexuality under the carpet and suggested that he marry a

woman. Some doubted whether or not they should continue their relationships

given the atmosphere created by Section 377. Several work in organisations

that have policies protecting the LGBT community in place. Having faced so

much pain in their personal lives, the Petitioners submit that with the

continued operation of Section 377, such treatment will be unabated.

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51 In Navtej Johar v. Union of India113, with which this case is concerned,

the Petitioners have set out multiple instances of discrimination and expulsion.

The following is a realistic account:

“While society, friends and family are accepting of my

sexuality, I cannot be fully open about my identity and my

relationships because I constantly fear arrest and violence by

the police…Without the existence of this section, the social

prejudice and shame that I have faced would have been

considerably lessened…the fact that gay people, like me, are

recognized only as criminals is deeply upsetting and denies

me the dignity and respect that I feel I deserve.114

Apart from the visible social manifestations of Section 377, the retention of the

provision perpetuates a certain culture. The stereotypes fostered by section

377 have an impact on how other individuals and non-state institutions treat

the community. While this behaviour is not sanctioned by Section 377, the

existence of the provision nonetheless facilitates it by perpetuating

homophobic attitudes and making it almost impossible for victims of abuse to

access justice. Thus, the social effects of such a provision, even when it is

enforced with zeal, is to sanction verbal harassment, familial fear, restricted

access to public spaces and the lack of safe spaces. This results in a denial of

the self. Identities are obliterated, denying the entitlement to equal

participation and dignity under the Constitution. Section 377 deprives them of

an equal citizenship. Referring to the effect of Foucault’s panopticon in

113 Writ Petition (Criminal) No. 76 of 2016. 114 Written Submission on Behalf of the Voices Against 377, in W.P. (CRL.) No. 76/2016 at page 18.

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inducing “a state of conscious and permanent visibility that assures the

automatic functioning of power”,115 Ryan Goodman writes:

“The state's relationship to lesbian and gay individuals under

a regime of sodomy laws constructs a similar, yet dispersed,

structure of observation and surveillance. The public is

sensitive to the visibility of lesbians and gays as socially

and legally constructed miscreants. Admittedly certain

individuals, namely those who are certified with various

levels of state authority, are more directly linked to the

extension of law's power. Yet the social effects of

sodomy laws are not tied to these specialized agents

alone. On the ground level, private individuals also

perform roles of policing and controlling lesbian and gay

lives in a mimetic relation to the modes of justice

itself.”116 (Emphasis supplied)

The effect of Section 377, thus, is not merely to criminalize an act, but to

criminalize a specific set of identities. Though facially neutral, the effect of the

provision is to efface specific identities. These identities are the soul of the

LGBT community.

52 The Constitution envisaged a transformation in the order of relations not

just between the state and the individual, but also between individuals: in a

constitutional order characterized by the Rule of Law, the constitutional

commitment to egalitarianism and an anti-discriminatory ethos permeates and

infuses these relations. In K S Puttaswamy v. Union of India

115 Michel Foucault, Discipline And Punish: the Birth of the Prison, Pantheon Books (1977) at page 201. 116 Ryan Goodman, “Beyond the Enforcement Principle: Sodomy Laws, Social Norms, and Social Panoptics”,

California Law Review, Vol. 89 (2001), at page 688.

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(“Puttaswamy”)117, this Court affirmed the individual as the bearer of the

constitutional guarantee of rights. Such rights are devoid of their guarantee

when despite legal recognition, the social, economic and political context

enables an atmosphere of continued discrimination. The Constitution enjoins

upon every individual a commitment to a constitutional democracy

characterized by the principles of equality and inclusion. In a constitutional

democracy committed to the protection of individual dignity and autonomy, the

state and every individual has a duty to act in a manner that advances and

promotes the constitutional order of values.

By criminalizing consensual sexual conduct between two homosexual adults,

Section 377 has become the basis not just of prosecutions but of the

persecution of members of the affected community. Section 377 leads to the

perpetuation of a culture of silence and stigmatization. Section 377

perpetuates notions of morality which prohibit certain relationships as being

against the ‘order of nature.’ A criminal provision has sanctioned

discrimination grounded on stereotypes imposed on an entire class of persons

on grounds prohibited by Article 15(1). This constitutes discrimination on the

grounds only of sex and violates the guarantee of non-discrimination in Article

15(1)

117(2017) 10 SCC 1

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53 History has been witness to a systematic stigmatization and exclusion of

those who do not conform to societal standards of what is expected of them.

Section 377 rests on deep rooted gender stereotypes. In the quest to assert

their liberties, people criminalized by the operation of the provision, challenge

not only its existence, but also a gamut of beliefs that are strongly rooted in

majoritarian standards of what is ‘normal’. In this quest, the attack on the

validity of Section 377 is a challenge to a long history of societal discrimination

and persecution of people based on their identities. They have been

subjugated to a culture of silence and into leading their lives in closeted

invisibility. There must come a time when the constitutional guarantee of

equality and inclusion will end the decades of discrimination practiced, based

on a majoritarian impulse of ascribed gender roles. That time is now.

F Confronting the closet

54 The right to privacy is intrinsic to liberty, central to human dignity and

the core of autonomy. These values are integral to the right to life under

Article 21 of the Constitution. A meaningful life is a life of freedom and self-

respect and nurtured in the ability to decide the course of living. In the nine

judge Bench decision in Puttaswamy, this Court conceived of the right to

privacy as natural and inalienable. The judgment delivered on behalf of four

judges holds:

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“Privacy is a concomitant of the right of the individual to

exercise control over his or her personality. It finds an origin

in the notion that there are certain rights which are natural to

or inherent in a human being. Natural rights are inalienable

because they are inseparable from the human personality.

The human element in life is impossible to conceive without

the existence of natural rights…”118

Justice Bobde, in his exposition on the form of the ‘right to privacy’ held thus:

“Privacy, with which we are here concerned, eminently

qualifies as an inalienable natural right, intimately connected

to two values whose protection is a matter of universal moral

agreement: the innate dignity and autonomy of man.”119

Justice Nariman has written about the inalienable nature of the right to

privacy:

“…Fundamental rights, on the other hand, are contained in

the Constitution so that there would be rights that the citizens

of this country may enjoy despite the governments that they

may elect. This is all the more so when a particular

fundamental right like privacy of the individual is an

“inalienable” right which inheres in the individual because he

is a human being. The recognition of such right in the

fundamental rights chapter of the Constitution is only a

recognition that such right exists notwithstanding the shifting

sands of majority governments…”120

Justice Sapre, in his opinion, has also sanctified ‘privacy’ as a natural right:

“In my considered opinion, “right to privacy of any individual”

is essentially a natural right, which inheres in every human

being by birth... It is indeed inseparable and inalienable…it is

born with the human being…”121

118 Puttaswamy, at para 42. 119 Puttaswamy, at para 392. 120 Puttaswamy, at para 490. 121 Puttaswamy at para 557.

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These opinions establish that the right to privacy is a natural right. The

judgment of four judges in Puttaswamy held that the right to sexual

orientation is an intrinsic part of the right to privacy. To define the scope of the

right, it is useful to examine the discussion on the right to sexual orientation in

judicial precedents of this Court.

55 Speaking for a two judge Bench in NALSA, Justice K S Radhakrishnan

elucidated upon the term ‘sexual orientation’ as differentiable from an

individual’s ‘gender identity’, noting that:

“Sexual orientation refers to an individual’s enduring physical,

romantic and/or emotional attraction to another person.

Sexual orientation includes transgender and gender-variant

people with heavy sexual orientation and their sexual

orientation may or may not change during or after gender

transmission, which also includes homo-sexuals, bysexuals,

heterosexuals, asexual etc. Gender identity and sexual

orientation, as already indicated, are different concepts. Each

person’s 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…”122

Puttaswamy rejected the “test of popular acceptance” employed by this Court

in Koushal and affirmed that sexual orientation is a constitutionally

guaranteed freedom:

“…The guarantee of constitutional rights does not depend

upon their exercise being favourably regarded by majoritarian

opinion. The test of popular acceptance does not furnish a

valid basis to disregard rights which are conferred with the

sanctity of constitutional protection. Discrete and insular

122 NALSA, at para 22.

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minorities face grave dangers of discrimination for the simple

reason that their views, beliefs or way of life do not accord

with the ‘mainstream’. Yet in a democratic Constitution

founded on the rule of law, their rights are as sacred as those

conferred on other citizens to protect their freedoms and

liberties. Sexual orientation is an essential attribute of privacy.

Discrimination against an individual on the basis of sexual

orientation is deeply offensive to the dignity and self-worth of

the individual. Equality demands that the sexual orientation of

each individual in society must be protected on an even

platform. The right to privacy and the protection of sexual

orientation lie at the core of the fundamental rights

guaranteed by Articles 14, 15 and 21 of the Constitution.”123

Rejecting the notion that the rights of the LGBT community can be construed

as illusory, the court held that the right to privacy claimed by sexual minorities

is a constitutionally entrenched right:

“…The rights of the lesbian, gay, bisexual and transgender

population cannot be construed to be “so-called rights”. The

expression “so-called” seems to suggest the exercise of a

liberty in the garb of a right which is illusory. This is an

inappropriate construction of the privacy based claims of the

LGBT population. Their rights are not “so-called” but are real

rights founded on sound constitutional doctrine. They inhere

in the right to life. They dwell in privacy and dignity. They

constitute the essence of liberty and freedom. Sexual

orientation is an essential component of identity. Equal

protection demands protection of the identity of every

individual without discrimination.”124

Justice Kaul, concurring with the recognition of sexual orientation as an

aspect of privacy, noted that:

“…The sexual orientation even within the four walls of the

house thus became an aspect of debate. I am in agreement

with the view of Dr. D.Y. Chandrachud, J., who in paragraphs

144 to 146 of his judgment, states that the right of privacy

123 Puttaswamy, at para 144. 124 Puttaswamy, at para 145.

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cannot be denied, even if there is a miniscule fraction of the

population which is affected. The majoritarian concept does

not apply to Constitutional rights and the Courts are often

called up on to take what may be categorized as a non-

majoritarian view, in the check and balance of power

envisaged under the Constitution of India. One’s sexual

orientation is undoubtedly an attribute of privacy…”125

With these observations by five of the nine judges in Puttaswamy, the basis

on which Koushal upheld the validity of Section 377 stands eroded and even

disapproved.

56 We must now consider the impact of Section 377 on the exercise of the

right to privacy by sexual minorities. Legislation does not exist in a vacuum.

The social ramifications of Section 377 are enormous. While facially Section

377 only criminalizes certain “acts”, and not relationships, it alters the prism

through which a member of the LGBTQ is viewed. Conduct and identity are

conflated.126 The impact of criminalising non-conforming sexual relations is

that individuals who fall outside the spectrum of heteronormative127 sexual

identity are perceived as criminals.128

57 World over, sexual minorities have struggled to find acceptance in the

heteronormative structure that is imposed by society. In her book titled

125 Puttaswamy, at para 647. 126 Supra note 116, at page 689. 127 The expression heteronormative is used to denote or relate to a world view that promotes heterosexuality as the

normal or preferred sexual orientation. 128 Supra note 116, at page 689.

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‘Epistemology of the Closet’,129 Eve Sedgwick states that “the closet is the

defining structure for gay oppression in this century.” The closet is symbolic

of the exclusion faced by them:

“Closets exist and they hide social information. They hide

certain socially proscribed sexual desires, certain unnamable

sexual acts deemed ‘unnatural‘ by the cultural context and

law, certain identities which dare not speak their name and

certain forms of behaviour which can make an individual

susceptible to stigma and oppression. The closet does not

simply hide this susceptibility; it hides stigma and oppression

itself. It marks the silencing of different voices, a silence

which is achieved by a gross violation of lives that inhabit the

closet, through both violence and pain inflicted by significant

others both within and without the closet and instances of

self-inflicted pain and violence. The closet also hides

pleasure, myriad sexual expressions and furtive encounters

that gratify the self. The closet also conceals the possibility of

disease and death.”130

The existing heteronormative framework – which recognises only sexual

relations that conform to social norms – is legitimized by the taint of

‘unnaturalness’ that Section 377 lends to sexual relations outside this

framework. The notion of ‘unnatural acts’, viewed in myopic terms of a “fixed

procreational model of sexual functioning”, is improperly applied to sexual

relations between consenting adults.131 Sexual activity between adults and

based on consent must be viewed as a “natural expression” of human sexual

competences and sensitivities.132 The refusal to accept these acts amounts to

129 Eve Kosofsky Sedgwick, Epistemology of the Closet, University of California Press (1990). 130 Supra note 65, at page 102. 131 David A. J. Richards, “Sexual Autonomy and the Constitutional Right to Privacy: A Case Study in Human Rights

and the Unwritten Constitution”, Hastings Law Journal, Vol. 30, at page 786. 132 Ibid.

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a denial of the distinctive human capacities for sensual experience outside of

the realm of procreative sex.133

58 To deny the members of the LGBT community the full expression of the

right to sexual orientation is to deprive them of their entitlement to full

citizenship under the Constitution. The denial of the right to sexual orientation

is also a denial of the right to privacy. The application of Section 377 causes a

deprivation of the fundamental right to privacy which inheres in every citizen.

This Court is entrusted with the duty to act as a safeguard against such

violations of human rights. Justice Chelameswar, in his judgement in

Puttaswamy, held that:

“To sanctify an argument that whatever is not found in the text

of the Constitution cannot become a part of the Constitution

would be too primitive an understanding of the Constitution

and contrary to settled cannons of constitutional

interpretation. Such an approach regarding the rights and

liberties of citizens would be an affront to the collective

wisdom of our people and the wisdom of the members of the

Constituent Assembly...”134

59 The exercise of the natural and inalienable right to privacy entails

allowing an individual the right to a self-determined sexual orientation. Thus, it

is imperative to widen the scope of the right to privacy to incorporate a right to

‘sexual privacy’ to protect the rights of sexual minorities. Emanating from the

133 Ibid. 134 Puttaswamy, at Para 350.

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inalienable right to privacy, the right to sexual privacy must be granted the

sanctity of a natural right, and be protected under the Constitution as

fundamental to liberty and as a soulmate of dignity.

60 Citizens of a democracy cannot be compelled to have their lives pushed

into obscurity by an oppressive colonial legislation. In order to ensure to

sexual and gender minorities the fulfilment of their fundamental rights, it is

imperative to ‘confront the closet’ and, as a necessary consequence, confront

‘compulsory heterosexuality.’135 Confronting the closet would entail

“reclaiming markers of all desires, identities and acts which challenge it.”136 It

would also entail ensuring that individuals belonging to sexual minorities,

have the freedom to fully participate in public life, breaking the invisible barrier

that heterosexuality imposes upon them. The choice of sexuality is at the core

of privacy. But equally, our constitutional jurisprudence must recognise that

the public assertion of identity founded in sexual orientation is crucial to the

exercise of freedoms.

61 In conceptualising a right to sexual privacy, it is important to consider

how the delineation of ‘public’ and ‘private’ spaces affects the lives of the

LGBTIQ community. Members of the community have argued that to base

135 Supra note 65, at page 103. 136 Ibid.

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their claims on a right to privacy is of no utility to individuals who do not

possess the privilege of a private space.137 In fact, even for individuals who

have access to private spaces the conflation of ‘private’ with home and family

may be misplaced.138 The home is often reduced to a public space as

heteronormativity within the family can force the individual to remain inside

the closet.139 Thus, even the conception of a private space for certain

individuals is utopian.140

62 Privacy creates “tiers of ‘reputable’ and ‘disreputable’ sex”, only

granting protection to acts behind closed doors.141 Thus, it is imperative that

the protection granted for consensual acts in private must also be available in

situations where sexual minorities are vulnerable in public spaces on account

of their sexuality and appearance.142 If one accepts the proposition that public

places are heteronormative, and same-sex sexual acts partially closeted,

relegating ‘homosexual‘ acts into the private sphere, would in effect reiterate

the “ambient heterosexism of the public space.”143 It must be acknowledged

that members belonging to sexual minorities are often subjected to

137 Danish Sheikh, “Queer Rights and the Puttaswamy Judgement”, Economic and Political Weekly, Vol. 52 (2017), at

page 51. 138 Supra note 65, at page 101. 139 Ibid. 140 Ibid. 141 Supra note 137, at page 51. 142 Saptarshi Mandal, “‘Right To Privacy’ In Naz Foundation: A Counter-Heteronormative Critique”, NUJS Law

Review, Vol. 2 (2009), at page 533. 143 Supra note 65, at page 100.

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harassment in public spaces.144 The right to sexual privacy, founded on the

right to autonomy of a free individual, must capture the right of persons of the

community to navigate public places on their own terms, free from state

interference.

F.I Sexual privacy and autonomy- deconstructing the heteronormative

framework

63 In the absence of a protected zone of privacy, individuals are forced to

conform to societal stereotypes. Puttaswamy has characterised the right to

privacy as a shield against forced homogeneity and as an essential attribute

to achieve personhood:

“…Recognizing a zone of privacy is but an acknowledgment

that each individual must be entitled to chart and pursue the

course of development of personality. Hence privacy is a

postulate of human dignity itself. Thoughts and behavioural

patterns which are intimate to an individual are entitled to a

zone of privacy where one is free of social expectations. In

that zone of privacy, an individual is not judged by others.

Privacy enables each individual to take crucial decisions

which find expression in the human personality. It enables

individuals to preserve their beliefs, thoughts, expressions,

ideas, ideologies, preferences and choices against societal

demands of homogeneity. Privacy is an intrinsic recognition of

heterogeneity, of the right of the individual to be different and

to stand against the tide of conformity in creating a zone of

solitude. Privacy protects the individual from the searching

glare of publicity in matters which are personal to his or her

144 Supra note 137, at page 53.

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life. Privacy attaches to the person and not to the place where

it is associated.”145

This Court has recognized the right of an individual to break free from the

demands of society and the need to foster a plural and inclusive culture. The

judgment of four judges in Puttaswamy, for instance, held that:

“Privacy constitutes the foundation of all liberty because it is

in privacy that the individual can decide how liberty is best

exercised. Individual dignity and privacy are inextricably

linked in a pattern woven out of a thread of diversity into the

fabric of a plural culture.”146

64 In Santosh Singh v Union of India147, a two-judge Bench of this Court

dismissed a petition under Article 32 seeking a direction to the Central Board

of Secondary Education to include moral science as a compulsory subject in

the school syllabus in order to inculcate moral values. One of us

(Chandrachud J) underscored the importance of accepting a plurality of ideas

and tolerance of radically different views:

“Morality is one and, however important it may sound to

some, it still is only one element in the composition of values

that a just society must pursue. There are other equally

significant values which a democratic society may wish for

education to impart to its young. Among those is the

acceptance of a plurality and diversity of ideas, images and

faiths which unfortunately faces global threats. Then again,

equally important is the need to foster tolerance of those who

hold radically differing views, empathy for those whom the

economic and social milieu has cast away to the margins, a

145 Puttaswamy, at para 297. 146 Puttaswamy, at para 297. 147 (2016) 8 SCC 253

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sense of compassion and a realisation of the innate humanity

which dwells in each human being. Value based education

must enable our young to be aware of the horrible

consequences of prejudice, hate and discrimination that

continue to threaten people and societies the world over…”148

The right to privacy enables an individual to exercise his or her autonomy,

away from the glare of societal expectations. The realisation of the human

personality is dependent on the autonomy of an individual. In a liberal

democracy, recognition of the individual as an autonomous person is an

acknowledgment of the State’s respect for the capacity of the individual to

make independent choices. The right to privacy may be construed to signify

that not only are certain acts no longer immoral, but that there also exists an

affirmative moral right to do them.149 As noted by Richards, this moral right

emerges from the autonomy to which the individual is entitled:

“Autonomy, in the sense fundamental to the theory of human

rights, is an empirical assumption that persons as such have

a range of capacities that enables them to develop, and act

upon plans of action that take as their object one's life and the

way it is lived. The consequence of these capacities of

autonomy is that humans can make independent decisions

regarding what their life shall be, self-critically reflecting, as a

separate being, which of one's first-order desires will be

developed and which disowned, which capacities cultivated

and which left barren, with whom one will or will not identify,

or what one will define and pursue as needs and aspirations.

In brief, autonomy gives to persons the capacity to call their

life their own. The development of these capacities for

separation and individuation is, from birth, the central

developmental task of becoming a person.”150

148 Ibid at para 22. 149 Supra note 131, at pages 1000-1001. 150 Supra note 131, at pages 964-965; M. Mahler, “The Psychological Birth of The Human Infant: Symbiosis And

Individuation” (1975); L. Kaplan, Oneness And Separateness: From Infant To Individual (1978).

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65 In Common Cause (A Registered Society) v. Union of India

(“Common Cause”)151, a Constitution Bench of this Court held that the right

to die with dignity is integral to the right to life recognised by the Constitution

and an individual possessing competent mental faculties is entitled to express

his or her autonomy by the issuance of an advance medical directive:

“The protective mantle of privacy covers certain decisions that

fundamentally affect the human life cycle. It protects the most

personal and intimate decisions of individuals that affect their

life and development. Thus, choices and decisions on matters

such as procreation, contraception and marriage have been

held to be protected. While death is an inevitable end in the

trajectory of the cycle of human life individuals are often faced

with choices and decisions relating to death. Decisions

relating to death, like those relating to birth, sex, and

marriage, are protected by the Constitution by virtue of the

right of privacy…”152

Autonomy and privacy are inextricably linked. Each requires the other for its

full realization. Their interrelationship has been recognised in Puttaswamy:

“…Privacy postulates the reservation of a private space for

the individual, described as the right to be left alone. The

concept is founded on the autonomy of the individual. The

ability of an individual to make choices lies at the core of the

human personality. The notion of privacy enables the

individual to assert and control the human element which is

inseparable from the personality of the individual. The

inviolable nature of the human personality is manifested in the

ability to make decisions on matters intimate to human life.

The autonomy of the individual is associated over matters

which can be kept private. These are concerns over which

there is a legitimate expectation of privacy...”153

151 (2018) 5 SCC 1 152 Ibid, at para 441. 153 Puttaswamy, at para 297.

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In order to understand how sexual choices are an essential attribute of

autonomy, it is useful to refer to John Rawls’ theory on social contract. Rawls’

conception of the ‘Original Position’ serves as a constructive model to

illustrate the notion of choice behind a “partial veil of ignorance.”154 Persons

behind the veil are assumed to be rational and mutually disinterested

individuals, unaware of their positions in society.155 The strategy employed by

Rawls is to focus on a category of goods which an individual would desire

irrespective of what individuals’ conception of ‘good’ might be.156 These

neutrally desirable goods are described by Rawls as ‘primary social goods’

and may be listed as rights, liberties, powers, opportunities, income, wealth,

and the constituents of self-respect.157 Rawls's conception of self-respect, as

a primary human good, is intimately connected to the idea of autonomy.158

Self-respect is founded on an individual's ability to exercise her native

capacities in a competent manner.159

66 An individual’s sexuality cannot be put into boxes or

compartmentalized; it should rather be viewed as fluid, granting the individual

the freedom to ascertain her own desires and proclivities. The self-

154 Thomas M. Jr. Scanlon, Rawls’ Theory of Justice, University of Pennsylvania Law Review (1973) at 1022. 155 Ibid at 1023. 156 Ibid at 1023. 157 Ibid at 1023. 158 Supra note 131, at page 971. 159 Ibid at page 972.

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determination of sexual orientation is an exercise of autonomy. Accepting the

role of human sexuality as an independent force in the development of

personhood is an acknowledgement of the crucial role of sexual autonomy in

the idea of a free individual.160 Such an interpretation of autonomy has

implications for the widening application of human rights to sexuality.161

Sexuality cannot be construed as something that the State has the

prerogative to legitimize only in the form of rigid, marital procreational sex.162

Sexuality must be construed as a fundamental experience through which

individuals define the meaning of their lives.163 Human sexuality cannot be

reduced to a binary formulation. Nor can it be defined narrowly in terms of its

function as a means to procreation. To confine it to closed categories would

result in denuding human liberty of its full content as a constitutional right. The

Constitution protects the fluidities of sexual experience. It leaves it to

consenting adults to find fulfilment in their relationships, in a diversity of

cultures, among plural ways of life and in infinite shades of love and longing.

F.2 A right to intimacy- celebration of sexual agency

67 By criminalising consensual acts between individuals who wish to

exercise their constitutionally-protected right to sexual orientation, the State is

160 Supra note 131, at page 1003. 161 Ibid. 162 Ibid. 163 Ibid.

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denying its citizens the right to intimacy. The right to intimacy emanates from

an individual’s prerogative to engage in sexual relations on their own terms. It

is an exercise of the individual’s sexual agency, and includes the individual’s

right to the choice of partner as well as the freedom to decide on the nature of

the relationship that the individual wishes to pursue.

In Shakti Vahini v. Union of India164, a three judge Bench of this Court

issued directives to prevent honour killings at the behest of Khap Panchayats

and protect persons who enter into marriages that do not have the approval of

the Panchayats. The Court recognised the right to choose a life partner as a

fundamental right under Articles 19 and 21 of the Constitution. The learned

Chief Justice held:

“…when two adults consensually choose each other as life

partners, it is a manifestation of their choice which is

recognized under Articles 19 and 21 of the Constitution. Such

a right has the sanction of the constitutional law and once that

is recognized, the said right needs to be protected and it

cannot succumb to the conception of class honour or group

thinking which is conceived of on some notion that remotely

does not have any legitimacy.”165

In Shafin Jahan v. Asokan166, this Court set aside a Kerala High Court

judgement which annulled the marriage of a twenty-four year old woman with

a man of her choice in a habeas corpus petition instituted by her father. The

164 (2018) SCC OnLine SC 275 165 Ibid, at para 44. 166 (2018) SCC OnLine SC 343

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Court upheld her right to choose of a life partner as well as her autonomy in

the sphere of “intimate personal decisions.” The Chief Justice held thus:

“…expression of choice in accord with law is acceptance of

individual identity. Curtailment of that expression and the

ultimate action emanating therefrom on the conceptual

structuralism of obeisance to the societal will destroy the

individualistic entity of a person. The social values and

morals have their space but they are not above the

constitutionally guaranteed freedom …”167

(Emphasis supplied)

One of us (Chandrachud J) recognised the right to choose a partner as an

important facet of autonomy:

“…The choice of a partner whether within or outside

marriage lies within the exclusive domain of each individual.

Intimacies of marriage lie within a core zone of privacy, which

is inviolable. The absolute right of an individual to choose a

life partner is not in the least affected by matters of

faith...Social approval for intimate personal decisions is not

the basis for recognising them...”168 (Emphasis supplied)

The judgement in Shafin Jahan delineates a space where an individual

enjoys the autonomy of making intimate personal decisions:

“The strength of the Constitution, therefore, lies in the

guarantee which it affords that each individual will have a

protected entitlement in determining a choice of partner to

share intimacies within or outside marriage.”169

In furtherance of the Rawlsian notion of self-respect as a primary good,

individuals must not be denied the freedom to form relationships based on

sexual intimacy. Consensual sexual relationships between adults, based on

167 Ibid, at para 54. 168 Ibid, at para 88. 169 Ibid, at para 93.

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the human propensity to experience desire must be treated with respect. In

addition to respect for relationships based on consent, it is important to foster

a society where individuals find the ability for unhindered expression of the

love that they experience towards their partner. This “institutionalized

expression to love” must be considered an important element in the full

actualisation of the ideal of self-respect.170 Social institutions must be

arranged in such a manner that individuals have the freedom to enter into

relationships untrammelled by binary of sex and gender and receive the

requisite institutional recognition to perfect their relationships.171 The law

provides the legitimacy for social institutions. In a democratic framework

governed by the rule of law, the law must be consistent with the constitutional

values of liberty, dignity and autonomy. It cannot be allowed to become a

yoke on the full expression of the human personality. By penalising sexual

conduct between consenting adults, Section 377 imposes moral notions

which are anachronistic to a constitutional order. While ostensibly penalising

‘acts’, it impacts upon the identity of the LGBT community and denies them

the benefits of a full and equal citizenship. Section 377 is based on a

stereotype about sex. Our Constitution which protects sexual orientation must

170 David A. J. Richards, “Unnatural Acts and the Constitutional Right to Privacy: A Moral Theory”, Fordham Law

Review, Vol. 45 (1977), at pages 1130-1311. 171 Ibid at 1311.

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outlaw any law which lends the authority of the state to obstructing its

fulfilment.

G Section 377 and the right to health

“Should medicine ever fulfil its great ends, it must enter into

the larger political and social life of our time; it must indicate

the barriers which obstruct the normal completion of the life

cycle and remove them.”

- Virchow Rudolf

68 In the evolution of its jurisprudence on the constitutional right to life

under Article 21, this Court has consistently held that the right to life is

meaningless unless accompanied by the guarantee of certain concomitant

rights including, but not limited to, the right to health.172 The right to health is

understood to be indispensable to a life of dignity and well-being, and

includes, for instance, the right to emergency medical care and the right to the

maintenance and improvement of public health.173

It would be useful to refer to judgments of this Court which have recognised

the right to health.

172 Dipika Jain and Kimberly Rhoten, “The Heteronormative State and the Right to Health in India”, NUJS Law

Review, Vol. 6 (2013). 173 C.E.S.C. Limited v. Subhash Chandra Bose, (1992) 1 SCC 441; Consumer Education and Research Centre v.

UOI, (1995) 3 SCC 42; Paschim Banga Khet Mazdoor Samity v. State of West Bengal, (1996) 4 SCC 37; Society for Unaided Private Schools of Rajasthan v. Union of India, (2012) 6 SCC 1; Devika Biswas v. Union of India & Ors., (2016) 10 SCC 726; Common Cause v. Union of India & Ors., (2018) 5 SCC 1.

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In Bandhua Mukti Morcha v. Union of India174, a three-judge Bench

identified the right to health within the right to life and dignity. In doing so, this

Court drew on the Directive Principles of State Policy:

“It is the fundamental right of every one in this country … to

live with human dignity, free from exploitation. This right to

live with human dignity enshrined in Article 21 derives

its life breath from the Directive Principles of State

Policy and particularly Clauses (e) and (f) of Article 39

and Articles 41 and 42 and at the least, therefore, it

must include protection of the health and strength of

workers men and women, and of the tender age of

children against abuse, opportunities and facilities for

children to develop in a healthy manner and in

conditions of freedom and dignity, educational

facilities, just and humane conditions of work and

maternity relief. These are the minimum requirements

which must exist in order to enable a person to live with

human dignity and no State neither the Central Government

nor any State Government-has the right to take any action

which will deprive a person of the enjoyment of these basic

essentials.” (Emphasis supplied)

In Consumer Education & Research Centre v. Union of India (“CERC”)175,

a Bench of three judges dealt with the right to health of workers in asbestos

industries. While laying down mandatory guidelines to be followed for the well-

being of workers, the Court held that:

“The right to health to a worker is an integral facet of

meaningful right to life to have not only a meaningful

existence but also robust health and vigour without which

worker would lead life of misery. Lack of health denudes his

livelihood...Therefore, it must be held that the right to

health and medical care is a fundamental right under

174 (1984) 3 SCC 161 175 (1995) 3 SCC 42

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Article 21 read with Articles 39(c), 41 and 43 of the

Constitution and makes the life of the workman

meaningful and purposeful with dignity of person. Right

to life includes protection of the health and strength of the

worker and is a minimum requirement to enable a person to

live with human dignity.” (Emphasis supplied)

In a dissenting judgment in C.E.S.C. Limited v. Subhash Chandra Bose176,

K Ramaswamy J observed that:

“Health is thus a state of complete physical, mental and

social well-being and not merely the absence of disease

or infirmity. In the light of Articles. 22 to 25 of the

Universal Declaration of Human Rights, International

Convention on Economic, Social and Cultural Rights, and

in the light of socio-economic justice assured in our

constitution, right to health is a fundamental human right

to workmen. The maintenance of health is a most imperative

constitutional goal whose realisation requires interaction by

many social and economic factors” (Emphasis supplied)

In Kirloskar Brothers Ltd. V. Employees' State Insurance Corporation177,

a three-judge Bench of this Court considered the applicability of the

Employees' State Insurance Act, 1948 to the regional offices of the Appellant,

observing that:

“Health is thus a state of complete physical, mental and social

well-being. Right to health, therefore, is a fundamental and

human right to the workmen. The maintenance of health is

the most imperative constitutional goal whose realisation

requires interaction of many social and economic factors.”

176 (1992) 1 SCC 441 177 (1996) 2 SCC 682

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In State of Punjab v. Ram Lubhaya Bagga178, a three-judge Bench of this

Court considered a challenge to the State of Punjab’s medical reimbursement

policy. A.P. Mishra J, speaking for the Bench, observed that:

“Pith and substance of life is the health, which is the nucleus

of all activities of life including that of an employee or other

viz. the physical, social, spiritual or any conceivable human

activities. If this is denied, it is said everything crumbles.

This Court has time and again emphasised to the

Government and other authorities for focussing and giving

priority and other authorities for focussing and giving priority

to the health of its, citizen, which not only makes one's life

meaningful, improves one's efficiency, but in turn gives

optimum out put.”

In Smt M Vijaya v. The Chairman and Managing Director Singareni

Collieries Co. Ltd.179, a five judge Bench of the Andhra Pradesh High Court

considered a case where a girl was infected with HIV due to the negligence of

hospital authorities. The Court observed that:

“Article 21 of the Constitution of India provides that no person

shall be deprived of his life or personal liberty except

according to procedure established by law. By reason of

numerous judgments of the Apex Court the horizons of Article

21 of the Constitution have been expanded recognising

various rights of the citizens i.e...right to health...

It is well settled that right to life guaranteed under Article 21 is

not mere animal existence. It is a right to enjoy all faculties of

life. As a necessary corollary, right to life includes right to

healthy life.”

178 (1998) 4 SCC 117 179 (2001) 5 ALD 522

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In Devika Biswas v. Union of India180, while hearing a public interest petition

concerning several deaths that had taken place due to unsanitary conditions

in sterilization camps across the country, a two judge Bench of this Court held

that:

“It is well established that the right to life under Article 21 of

the Constitution includes the right to lead a dignified and

meaningful life and the right to health is an integral facet of

this right...That the right to health is an integral part of the

right to life does not need any repetition.”

In his concurring judgment in Common Cause v. Union of India, Sikri J,

noted the inextricable link between the right to health and dignity:

“There is a related, but interesting, aspect of this dignity which

needs to be emphasised. Right to health is a part of Article

21 of the Constitution. At the same time, it is also a harsh

reality that everybody is not able to enjoy that right because

of poverty etc. The State is not in a position to translate into

reality this right to health for all citizens. Thus, when citizens

are not guaranteed the right to health, can they be denied

right to die in dignity?” (Emphasis supplied)

In addition to the constitutional recognition granted to the right to health, the

right to health is also recognised in international treaties, covenants, and

agreements which India has ratified, including the International Covenant on

Economic, Social and Cultural Rights, 1966 (“ICESCR”) and the Universal

180 (2016) 10 SCC 726

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Declaration of Human Rights, 1948 (“UDHR”). Article 25 of the UDHR

recognizes the right to health:

"Everyone has the right to a standard of living adequate for

the health and well-being of himself and of his family,

including food, clothing, housing and medical care and

necessary social services."

69 Article 12 of the International Covenant on Economic, Social and

Cultural Rights (“ICESCR”) recognizes the right of all persons to the

enjoyment of the highest attainable standard of physical and mental health:

“The States Parties to the present Covenant recognize the

right of everyone to the enjoyment of the highest attainable

standard of physical and mental health.”

Article 12.2 requires States Parties to take specific steps to improve the health

of their citizens, including creating conditions to ensure equal and timely

access to medical services. In its General Comment No. 14,181 the UN

Economic and Social Council stated that States must take measures to

respect, protect and fulfil the health of all persons. States are obliged to

ensure the availability and accessibility of health-related information,

education, facilities, goods and services, without discrimination, especially for

vulnerable and marginalized populations.

181 UN Economic and Social Council (ECOSOC), Committee on Economic, Social and Cultural Rights, General

Comment No. 14: The Right to the Highest Attainable Standard of Health, UN Doc. E/C.12/2004 (2000).

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Pursuant to General Comment No. 14, India is required to provide

marginalized populations, including members of the LGBTIQ community,

goods and services that are available (in sufficient quantity), accessible

(physically, geographically, economically and in a non-discriminatory manner),

acceptable (respectful of culture and medical ethics) and of quality

(scientifically and medically appropriate and of good quality).

70 As early as 1948, the World Health Organization (“WHO”) defined the

term ‘health’ broadly to mean “a state of complete physical, mental and social

well-being and not merely the absence of disease or infirmity.”182 Even today,

for a significant number of Indian citizens this standard of health remains an

elusive aspiration. Of relevance to the present case, a particular class of

citizens is denied the benefits of this constitutional enunciation of the right to

health because of their most intimate sexual choices.

71 Sexuality is a natural and precious aspect of life, an essential and

fundamental part of our humanity.183 Sexual rights are entitlements related to

sexuality and emanate from the rights to freedom, equality, privacy,

autonomy, and dignity of all people.184 For people to attain the highest

182Definition contained in the Preamble to the WHO Constitution (1948). 183 Sexual Rights, International Planned Parenthood Federation (2008). 184 Ibid.

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standard of health, they must also have the right to exercise choice in their

sexual lives and feel safe in expressing their sexual identity. However, for

some citizens, discrimination, stigma, fear and violence prevent them from

attaining basic sexual rights and health.

72 Individuals belonging to sexual and gender minorities experience

discrimination, stigmatization, and, in some cases, denial of care on account

of their sexual orientation and gender identity.185 However, it is important to

note that ‘sexual and gender minorities’ do not constitute a homogenous

group, and experiences of social exclusion, marginalization, and

discrimination, as well as specific health needs, vary considerably.186

Nevertheless, these individuals are united by one factor - that their exclusion,

discrimination and marginalization is rooted in societal heteronormativity and

society’s pervasive bias towards gender binary and opposite-gender

relationships, which marginalizes and excludes all non-heteronormative

sexual and gender identities.187 This, in turn, has important implications for

individuals’ health-seeking behaviour, how health services are provided, and

the extent to which sexual health can be achieved.188

185 Alexandra Muller, “Health for All? Sexual Orientation, Gender Identity, and the Implementation of the Right to

Access to Health Care in South Africa”, Health and Human Rights (2016) at pages 195–208. 186 Institute of Medicine, “The Health of Lesbian, Gay, Bisexual, and Transgender People: Building a Foundation for

Better Understanding”, National Academies Press (2011). 187 Supra note 185, at pages 195–208. 188 Ibid.

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73 The term ‘sexual health’ was first defined in a 1975 WHO Technical

Report series as “the integration of the somatic, emotional, intellectual and

social aspects of sexual being, in ways that are positively enriching and that

enhance personality, communication and love.”189 The WHO’s current working

definition of sexual health is as follows:

“…a state of physical, emotional, mental and social well-being

in relation to sexuality; it is not merely the absence of

disease, dysfunction or infirmity. Sexual health requires a

positive and respectful approach to sexuality and sexual

relationships, as well as the possibility of having pleasurable

and safe sexual experiences, free of coercion, discrimination

and violence. For sexual health to be attained and

maintained, the sexual rights of all persons must be

respected, protected and fulfilled.”

The WHO further states that “sexual health cannot be defined, understood or

made operational without a broad consideration of sexuality, which underlies

important behaviours and outcomes related to sexual health.” It defines

sexuality thus:

“…a central aspect of being human throughout life

encompasses sex, gender identities and roles, sexual

orientation, eroticism, pleasure, intimacy and reproduction.

Sexuality is experienced and expressed in thoughts,

fantasies, desires, beliefs, attitudes, values, behaviours,

practices, roles and relationships. While sexuality can include

all of these dimensions, not all of them are always

experienced or expressed. Sexuality is influenced by the

interaction of biological, psychological, social, economic,

political, cultural, legal, historical, religious and spiritual

factors.”

189 World Health Organization, “Gender and human rights: Defining sexual health”, (2002).

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74 A report entitled “Sexual Health, Human Rights and the Law”,190

published by the WHO in 2015 explores the relationship between these

concepts. The report notes that “human sexuality includes many different

forms of behaviour and expression, and that the recognition of the diversity of

sexual behaviour and expression contributes to people’s overall sense of

health and well-being.”191 It emphasizes the importance of sexual health by

stating that not only is it essential to the physical and emotional well-being of

individuals, couples and families, but it is also fundamental to the social and

economic development of communities and countries.192 The ability of

individuals to progress towards sexual health and well-being depends on

various factors, including “access to comprehensive information about

sexuality, knowledge about the risks they face and their vulnerability to the

adverse consequences of sexual activity; access to good quality sexual health

care, and an environment that affirms and promotes sexual health.”

75 The International Women’s Health Coalition has located the right to

sexual health within ‘sexual rights’, defined as follows:193

“Sexual rights embrace certain human rights that are already

recognized in national laws, international human rights

documents, and other consensus documents. They rest on

the recognition that all individuals have the right—free of

190 World Health Organisation, “Sexual Health, Human Rights and the Law” (2015). 191 Ibid. 192 Ibid. 193 International Women’s Health Coalition, “Sexual Rights are Human Rights” (2014).

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coercion, violence, and discrimination of any kind—to the

highest attainable standard of sexual health; to pursue a

satisfying, safe, and pleasurable sexual life; to have control

over and decide freely, and with due regard for the rights of

others, on matters related to their sexuality, reproduction,

sexual orientation, bodily integrity, choice of partner, and

gender identity; and to the services, education, and

information, including comprehensive sexuality education,

necessary to do so.”

The discussion of ‘sexual rights’ (as they pertain to sexuality and sexual

orientation) within the framework of the right to health is a relatively new

phenomenon:194

“..Before the 1993 World Conference on Human Rights in

Vienna, and the subsequent 1994 International Conference

on Population and Development in Cairo, sexuality, sexual

rights, and sexual diversity had not formed part of the

international health and human rights discourse. These

newly emerged “sexual rights” were founded on the

principles of bodily integrity, personhood, equality, and

diversity.”195 (Emphasis supplied)

76 The operation of Section 377 denies consenting adults the full

realization of their right to health, as well as their sexual rights. It forces

consensual sex between adults into a realm of fear and shame, as persons

who engage in anal and oral intercourse risk criminal sanctions if they seek

health advice. This lowers the standard of health enjoyed by them and

particularly by members of sexual and gender minorities, in relation to the rest

of society.

194 Supra note 185, at pages 195–208. 195 Supra note 185, at pages 195–208.

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77 The right to health is not simply the right not to be unwell, but rather the

right to be well. It encompasses not just the absence of disease or infirmity,

but “complete physical, mental and social well being”,196 and includes both

freedoms such as the right to control one’s health and body and to be free

from interference (for instance, from non-consensual medical treatment and

experimentation), and entitlements such as the right to a system of healthcare

that gives everyone an equal opportunity to enjoy the highest attainable level

of health.

78 The jurisprudence of this Court, in recognizing the right to health and

access to medical care, demonstrates the crucial distinction between negative

and positive obligations. Article 21 does not impose upon the State only

negative obligations not to act in such a way as to interfere with the right to

health. This Court also has the power to impose positive obligations upon the

State to take measures to provide adequate resources or access to treatment

facilities to secure effective enjoyment of the right to health.197

79 A study of sexuality and its relationship to the right to health in South

Africa points to several other studies that suggest a negative correlation

between sexual orientation-based discrimination and the right to health: 196 Preamble to the Constitution of the World Health Organisation. 197 Jayna Kothari, “Social Rights and the Indian Constitution”, Law, Social Justice and Global Development Journal

(2004).

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“For example, in a Canadian study, Brotman and colleagues

found that being open about their sexual orientation in health

care settings contributed to experiences of discrimination for

lesbian, gay, and bisexual people.”198

“Lane and colleagues interviewed men who have sex with

men in Soweto, and revealed that all men who disclosed their

sexual orientation at public health facilities had experienced

some form of discrimination. Such discrimination [‘ranging

from verbal abuse to denial of care’199], and also the

anticipation thereof, leads to delays when seeking sexual

health services such as HIV counseling and testing.”200

80 Alexandra Muller describes the story of two individuals who experienced

such discrimination. T, a gay man, broke both his arms while fleeing from a

group of people that attacked him because of his sexuality. At the hospital, the

staff learned about T’s sexual orientation, and pejoratively discussed it in his

presence. He also had to endure “a local prayer group that visited the ward

daily to provide spiritual support to patients” which “prayed at his bedside to

rectify his “devious” sexuality. When he requested that they leave, or that he

be transferred to another ward, the nurses did not intervene, and the prayer

group visited regularly to continue to recite their homophobic prayers. T did

not file an official complaint, fearing future ramifications in accessing care.

Following his discharge, he decided not to return for follow up appointments

and had his casts removed at another facility.201

198 Supra note 185, at pages 195–208. 199 Ibid. 200 Ibid. 201 Ibid.

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Another woman, P, who had been with her female partner for three years,

wanted to get tested for HIV. The nurse at the hospital asked certain

questions to discern potential risk behaviours. When asked why she did not

use condoms or contraception, P revealed that she did not need to on account

of her sexuality. The nurse immediately exclaimed that P was not at risk for

HIV, and that she should “go home and not waste her time any longer.” P has

not attempted to have another HIV test since.202

These examples are illustrative of a wider issue: individuals across the world

are denied access to equal healthcare on the basis of their sexual orientation.

That people are intimidated or blatantly denied healthcare access on a

discriminatory basis around the world proves that this issue is not simply an

ideological tussle playing out in classrooms and courtrooms, but an issue

detrimentally affecting individuals on the ground level and violating their rights

including the right to health.

81 The right to health is one of the major rights at stake in the struggle for

equality amongst gender and sexual minorities:203

“The right to physical and mental health is at conflict with

discriminatory policies and practices, some physicians'

homophobia, the lack of adequate training for health care

202 Ibid. 203 Study Guide: Sexual Orientation and Human Rights, University of Minnesota Human RIghts Library (2003).

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personnel regarding sexual orientation issues or the general

assumption that patients are heterosexuals.”204

While the enumeration of the right to equal healthcare is crucial, an

individual’s sexual health is also equally significant to holistic well-being. A

healthy sex life is integral to an individual’s physical and mental health,

regardless of whom an individual is attracted to. Criminalising certain sexual

acts, thereby shunning them from the mainstream discourse, would invariably

lead to situations of unsafe sex, coercion, and a lack of sound medical advice

and sexual education, if any at all.

82 A report by the Francois-Xavier Bagnoud Center for Health and Human

Rights at Harvard School of Public Health defines the term ‘sexual health’ as

follows:

“A state of physical, emotional, mental, and social well-being

in relation to sexuality. Like health generally, it is not merely

the absence of disease, but encompasses positive and

complex experiences of sexuality as well as freedom to

determine sexual relationships, as well as the possibility of

having pleasurable sexual experiences, free of coercion,

discrimination and violence.”205

83 Laws that criminalize same-sex intercourse create social barriers to

accessing healthcare, and curb the effective prevention and treatment of

204 Ibid. 205 Center for Health and Human Rights and Open Society Foundations. “Health and Human Rights Resource Guide

(2013).

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HIV/AIDS.206 Criminal laws are the strongest expression of the State’s power

to punish certain acts and behaviour, and it is therefore incumbent upon the

State to ensure full protection for all persons, including the specific needs of

sexual minorities. The equal protection of law mandates the state to fulfill this

constitutional obligation. Indeed, the state is duty bound to revisit its laws and

executive decisions to ensure that they do not deny equality before the law

and the equal protection of laws. That the law must not discriminate is one

aspect of equality. But there is more. The law must take affirmative steps to

achieve equal protection of law to all its citizens, irrespective of sexual

orientation.

In regard to sexuality and health, it is important to distinguish between

behaviour that is harmful to others, such as rape and coerced sex, and that

which is not, such as consensual same-sex conduct between adults, conduct

related to gender-expression such as cross-dressing, as well as seeking or

providing sexual and reproductive health information and services. The use of

criminal laws in relation to an expanding range of otherwise consensual

sexual conduct has been found to be discriminatory by international and

206 Supra note 172.

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domestic courts, often together with violations of other human rights, such as

the rights to privacy, self-determination, human dignity and health.207

G.I Section 377 and HIV prevention efforts

84 Section 377 has a significant detrimental impact on the right to health of

those persons who are susceptible to contracting HIV – men who have sex

with men (“MSM”)208 and transgender persons.209 The Global Commission on

HIV and the Law has noted the impact of Section 377 on the right of health of

persons afflicted with or vulnerable to contracting HIV:

“The law and its institutions can protect the dignity of all

people living with HIV, and in so doing fortify those most

vulnerable to HIV, so-called “key populations”, such as sex

workers, MSM, transgender people, prisoners and migrants.

The law can open the doors to justice when these people’s

rights are trampled…. But the law can also do grave harm to

the bodies and spirits of people living with HIV. It can

perpetuate discrimination and isolate the people most

vulnerable to HIV from the programmes that would help them

to avoid or cope with the virus. By dividing people into

criminals and victims or sinful and innocent, the legal

environment can destroy the social, political, and economic

207 Eszter Kismodi, Jane Cottingham, Sofia Gruskin & Alice M. Miller, “Advancing sexual health through human

rights: The role of the law”, Taylor and Francis, (2015), at pages 252-267. 208 The term “men who have sex with men” (MSM) denotes all men who have sex with men, regardless of their

sexual identity, sexual orientation and whether or not they also have sex with females. MSM is an epidemiological term which focuses on sexual behaviours for the purpose of HIV and STI surveillance. The assumption is that behaviour, not sexual identity, places people at risk for HIV. See Regional Office for South-East Asia, World Health Organization, “HIV/AIDS among men who have sex with men and transgender populations in South-East Asia: the current situation and national responses” (2010).

209 Transgender people continue to be included under the umbrella term “MSM”. However, it has increasingly been recognized that Transgender people have unique needs and concerns, and it would be more useful to view them as a separate group. See Regional Office for South-East Asia, World Health Organization, “HIV/AIDS among men who have sex with men and transgender populations in South-East Asia: the current situation and national responses” (2010).

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solidarity that is necessary to overcome this global

epidemic.”210

85 Mr Anand Grover, learned Senior Counsel in his submissions,

highlighted the vulnerability of MSM and transgender persons. According to a

study published by the Global Commission on HIV and the Law, MSM were

found to be 19 times more susceptible to be infected with HIV than other adult

men.211

86 The UN Human Rights Committee has recognized the impact of the

criminalization of homosexuality on the spread of HIV/AIDS. In Toonen v

Australia212, a homosexual man from Tasmania, where homosexual sex was

criminalized, argued that criminalization of same-sex activities between

consenting adults was an infringement of his right to privacy under Article 17

of the International Covenant on Civil and Political Rights (“ICCPR”). The

Committee rejected the argument of the Tasmanian authorities that the law

was justified on grounds of public health and morality as it was enacted to

prevent the spread of HIV/AIDS in Tasmania. The Committee observed that:

“... the criminalization of homosexual practices cannot be

considered a reasonable means or proportionate measure to

achieve the aim of preventing the spread of AIDS/HIV …

210 United Nations Development Programme, “Global Commission on HIV and the Law: Risks, Rights and Health”

(2012), at pages 11-12. 211 Ibid at page 45; HIV prevalence amongst MSM is 4.3% and amongst transgender persons it is 7.5% as opposed

to the overall adult HIV prevalence of 0.26%. 212 Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994), decision dated 31/03/1994.

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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.”

In response to the Committee’s decision, a law was enacted to overcome the

Tasmanian law criminalizing homosexual sex.

87 Section 377 has had far-reaching consequences for this “key

population”, pushing them out of the public health system. MSM and

transgender persons may not approach State health care providers for fear of

being prosecuted for engaging in criminalized intercourse. Studies show that

it is the stigma attached to these individuals that contributes to increased

sexual risk behaviour and/or decreased use of HIV prevention services.213

88 The silence and secrecy that accompanies institutional discrimination

may foster conditions which encourage escalation of the incidence of

HIV/AIDS.214 The key population is stigmatized by health providers,

employers and other service providers.215 As a result, there exist serious

obstacles to effective HIV prevention and treatment as discrimination and

213 Beena Thomas, Matthew J. Mimiaga, Senthil Kumar, Soumya Swaminathan, Steven A. Safren, and Kenneth H.

Mayer, “HIV in Indian MSM: Reasons for a concentrated epidemic & strategies for prevention”, Indian Journal Medical Research (2011), at pages 920–929.

214 Ibid. 215 Ibid.

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harassment can hinder access to HIV and sexual health services and

prevention programmes.216

89 An incisive article, based on extensive empirical research carried out in

various countries, has concluded that there is a demonstrable relationship

between “laws which criminalize same-sex conduct and adverse health

effects on HIV-AIDs rates as well as other health indicators for the MSM

community” due to poor access to key HIV prevention tools and outreach

programmes.217 According to a report published by the Joint United Nations

Programme on HIV/AIDS (“UNAIDS”), in Caribbean countries where same-

sex relations are criminalised, almost one in four MSMs is infected with

HIV.218 In the absence of such criminal provisions, the prevalence of HIV is

one in fifteen among MSMs.219

90 Closer to home, the UNAIDS project found that in the four years

following the judgement in Naz, there had been an increase of more than 50%

in the number of healthcare centers providing HIV services to MSM and

transgender persons in India.220 If same-sex relations remain criminalised, it is

216 Ibid. 217 Supra note 172, at page 636. 218 Supra note 210, at page 45. 219 Ibid. 220 UNAIDS, “UNAIDS Calls on India and All Countries to Repeal Laws That Criminalize Adult Consensual Same Sex

Sexual Conduct” (2013).

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likely that HIV interventions for MSMs will continue to be inadequate, MSMs

will continue to be marginalised from health services, and the prevalence of

HIV will exacerbate.221

91 To safeguard the health of persons who are at the greatest risk of HIV

infection, it is imperative that access is granted to effective HIV prevention

and treatment services and commodities such as clean needles, syringes,

condoms and lubricants.222 A needle or a condom can only be considered a

concrete representation of the entitlements of vulnerable groups: the

fundamental human rights of dignity, autonomy and freedom from ill-

treatment, along with the right to the highest attainable standard of physical

and mental health, without regard to sexuality or legal status.223 This is the

mandate of the Directive Principles contained in Part IV of the Constitution.

92 In 2017, Parliament enacted the HIV (Prevention and Control) Act, to

provide for the prevention and control of the spread of HIV/AIDS and for the

protection of the human rights of persons affected. Parliament recognized the

importance of prevention interventions for vulnerable groups including MSMs.

Section 22 of this Act provides for protection against criminal sanctions as

well as any civil liability arising out of promoting actions or practices or “any 221 UNAIDS, “Judging the Epidemic: A Judicial Handbook on HIV, Human Rights and the Law” (2013) at page 165. 222 Supra note 210, at page 26. 223 Ibid, at page 26.

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strategy or mechanism or technique” undertaken for reducing the risk of HIV

transmission. Illustrations (a) and (b) to Section 22 read as follows:

“(a) A supplies condoms to B who is a sex worker or to C,

who is a client of B. Neither A nor B nor C can be held

criminally or civilly liable for such actions or be prohibited,

impeded, restricted or prevented from implementing or using

the strategy.

(b) M carries on an intervention project on HIV or AIDS and

sexual health information, education and counselling for men,

who have sex with men, provides safer sex information,

material and condoms to N, who has sex with other men.

Neither M nor N can be held criminally or civilly liable for such

actions or be prohibited, impeded, restricted or prevented

from implementing or using the intervention.”

Persons who engage in anal or oral intercourse face significant sexual health

risks due to the operation of Section 377. Prevalence rates of HIV are high,

particularly among men who have sex with men. Discrimination, stigma and a

lack of knowledge on the part of many healthcare providers means that these

individuals often cannot and do not access the health care they need. In order

to promote sexual health and reduce HIV transmission among LGBT

individuals, it is imperative that the availability, effectiveness, and quality of

health services to the LGBT community be significantly improved.

Under our constitutional scheme, no minority group must suffer deprivation of

a constitutional right because they do not adhere to the majoritarian way of

life. By the application of Section 377 of the Indian Penal Code, MSM and

transgender persons are excluded from access to healthcare due to the

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societal stigma attached to their sexual identity. Being particularly vulnerable

to contraction of HIV, this deprivation can only be described as cruel and

debilitating. The indignity suffered by the sexual minority cannot, by any

means, stand the test of constitutional validity.

G.2 Mental health

93 The treatment of homosexuality as a disorder has serious

consequences on the mental health and well-being of LGBT persons. The

mental health of citizens “growing up in a culture that devalues and silences

same-sex desire” is severely impacted.224 Global psychiatric expert Dinesh

Bhugra has emphasised that radical solutions are needed to combat the high

levels of mental illness among the LGBT population stating there is a “clear

correlation between political and social environments” and how persecutory

laws against LGBT individuals are leading to greater levels of depression,

anxiety, self-harm, and suicide. Even in Britain, gay people are at greater risk

of a range of mental health problems, and, it is believed, are more likely to

take their own lives.

“A number of studies this year have highlighted the

disproportionate levels of mental illness among LGBT people.

In Britain, one of the world's most legally equal countries for

this community, research in the last few months has revealed

that LGBT people are nearly twice as likely to have

224 Ketki Ranade, “Process of Sexual Identity Development for Young People with Same Sex Desires: Experiences

of Exclusion”, Psychological Foundations - The Journal (2008).

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attempted suicide or harmed themselves, gay men are more

than twice as likely to have a mental illness than

heterosexual men, and 4 in 5 transgender people have

suffered depression in the last five years.”225

(Emphasis supplied)

He discusses studies from various countries which indicate that in countries

where laws continue to discriminate against LGBT individuals, there are high

rates of mental illness. Similarly he states that there have been a series of

studies showing that in America, rates of psychiatric disorders have dropped

when state policies have recognised the equal rights of LGBT individuals.

94 Mr Chander Uday Singh, learned Senior Counsel appearing on behalf of

an intervenor, a psychiatrist, has brought to our notice how even the mental

health sector has often reflected the societal prejudice regarding

homosexuality as a pathological condition.

95 Medical and scientific authority has now established that consensual

same sex conduct is not against the order of nature and that homosexuality is

natural and a normal variant of sexuality. Parliament has provided legislative

acknowledgment of this global consensus through the enactment of the

Mental Healthcare Act, 2017. Section 3 of the Act mandates that mental

illness is to be determined in accordance with ‘nationally’ or ‘internationally’

225 Dinesh Bhugra, globally renowned psychiatrist (article annexed in compilation provided by Mr. Chander Uday

Singh, learned Senior Counsel).

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accepted medical standards. The International Classification of Diseases

(ICD-10) by the World Health Organisation is listed as an internationally

accepted medical standard and does not consider non-peno-vaginal sex

between consenting adults either a mental disorder or an illness. The Act

through Section 18(2)226 and Section 21227 provides for protection against

discrimination on the grounds of sexual orientation.

The repercussions of prejudice, stigma and discrimination continue to impact

the psychological well-being of individuals impacted by Section 377. Mental

health professionals can take this change in the law as an opportunity to re-

examine their own views of homosexuality.

96 Counselling practices will have to focus on providing support to

homosexual clients to become comfortable with who they are and get on with

their lives, rather than motivating them for change. Instead of trying to cure

something that isn’t even a disease or illness, the counsellors have to adopt a

more progressive view that reflects the changed medical position and

226 Section 18. Right to access mental healthcare.—(1) Every person shall have a right to access mental

healthcare and treatment from mental health services run or funded by the appropriate Government. (2) The right to access mental healthcare and treatment shall mean mental health services of affordable cost, of good quality, available in sufficient quantity, accessible geographically, without discrimination on the basis of gender, sex, sexual orientation, religion, culture, caste, social or political beliefs, class, disability or any other basis and provided in a manner that is acceptable to persons with mental illness and their families and care-givers.

227 Section 21. Right to equality and non-discrimination.—(1) Every person with mental illness shall be treated as equal to persons with physical illness in the provision of all healthcare which shall include the following, namely:— (a) there shall be no discrimination on any basis including gender, sex, sexual orientation, religion, culture, caste, social or political beliefs, class or disability.

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changing societal values. There is not only a need for special skills of

counsellors but also heightened sensitivity and understanding of LGBT lives.

The medical practice must share the responsibility to help individuals, families,

workplaces and educational and other institutions to understand sexuality

completely in order to facilitate the creation of a society free from

discrimination228 where LGBT individuals like all other citizens are treated with

equal standards of respect and value for human rights.

H Judicial review

97 The Constitution entrusts the function of making laws to Parliament and

the State Legislatures under Articles 245 and 246 of the Constitution.

Parliament and the State Legislatures are empowered to create offences

against laws with respect to the heads of legislation, falling within the purview

of their legislative authority. (See Entry 93 of List I and Entry 64 of List II of the

Seventh Schedule). Criminal law is a subject which falls within the Concurrent

List. Entry I of List III provides thus:

“1. Criminal law, including all matters included in the Indian

Penal Code at the commencement of this Constitution but

excluding offences against laws with respect to any of the

matters specified in List I or List II and excluding the use of

naval, military or air forces or any other armed forces of the

Union in aid of the civil power.”

228 Vinay Chandran, “From judgement to practice: Section 377 and the medical sector”, Indian Journal of Medical

Ethics, Vol. 4 (2009).

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The power to enact legislation in the field of criminal law has been entrusted

to Parliament and, subject to its authority, to the State Legislatures. Both

Parliament and the State Legislatures can enact laws providing for offences

arising out of legislation falling within their legislative domains. The authority

to enact law, however, is subject to the validity of the law being scrutinised on

the touchstone of constitutional safeguards. A citizen, or, as in the present

case, a community of citizens, having addressed a challenge to the validity of

a law which creates an offence, the authority to determine that question is

entrusted to the judicial branch in the exercise of the power of judicial review.

The Court will not, as it does not, in the exercise of judicial review, second

guess a value judgment made by the legislature on the need for or the

efficacy of legislation. But where a law creating an offence is found to be

offensive to fundamental rights, such a law is not immune to challenge. The

constitutional authority which is entrusted to the legislatures to create offences

is subject to the mandate of a written Constitution. Where the validity of the

law is called into question, judicial review will extend to scrutinising whether

the law is manifestly arbitrary in its encroachment on fundamental liberties. If

a law discriminates against a group or a community of citizens by denying

them full and equal participation as citizens, in the rights and liberties granted

by the Constitution, it would be for the Court to adjudicate upon validity of

such a law.

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I India’s commitments at International Law

98 International human rights treaties and jurisprudence impose obligations

upon States to protect all individuals from violations of their human rights,

including on the basis of their sexual orientation.229 Nevertheless, laws

criminalizing same-sex relations between consenting adults remain on the

statute books in more than seventy countries. Many of them, including so-

called “sodomy laws”, are vestiges of colonial-era legislation that prohibits

either certain types of sexual activity or any intimacy or sexual activity

between persons of the same sex.230 In some cases, the language used

refers to vague and indeterminate concepts, such as ‘crimes against the order

of nature’, ‘morality’, or ‘debauchery’.231 There is a familiar ring to it in India,

both in terms of history and text.

99 International law today has evolved towards establishing that the

criminalization of consensual sexual acts between same-sex adults in private

contravenes the rights to equality, privacy, and freedom from discrimination.

These rights are recognised in international treaties, covenants, and

229 Dominic McGoldrick, “The Development and Status of Sexual Orientation Discrimination under International

Human Rights Law”, Human Rights Law Review, Vol. 16 (2016). 230 UN Human Rights Council, “Discriminatory laws and practices and acts of violence against individuals based on

their sexual orientation and gender identity” (2011). 231 UN Human Rights Council, “Promotion and Protection of all Human Rights, Civil, Political, Economic, Social and

Cultural Rights, including the Right to Development” (2008).

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agreements which India has ratified, including the UDHR, ICCPR, and the

ICESCR. India has a constitutional duty to honour these internationally

recognized rules and principles.232 Article 51 of the Constitution, which forms

part of the Directive Principles of State Policy, requires the State to endeavour

to “foster respect for international law and treaty obligations in the dealings of

organised peoples with one another.”

100 The human rights treaties that India has ratified require States Parties to

guarantee the rights to equality before the law, equal protection of the law and

freedom from discrimination. For example, Article 2 of the ICESCR requires

states to ensure that:

“The rights enunciated in the present Covenant will be

exercised without discrimination of any kind as to race,

colour, sex, language, religion, political or other opinion,

national or social origin, property, birth or other status.”

101 The Committee on Economic, Social and Cultural Rights - the body

mandated by the ICESCR to monitor States Parties’ implementation of the

treaty – has stated that “other status” in article 2 (2) includes sexual

orientation, and reaffirmed that “gender identity is recognized as among the

232 Vishaka v State of Rajasthan, (1997) 6 SCC 241.

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prohibited grounds of discrimination”, as “persons who are transgender,

transsexual or intersex often face serious human rights violations.”233

102 The prohibition against discrimination in the ICCPR is contained in

Article 26, which guarantees equality before the law:

“All persons are equal before the law and are entitled without

any discrimination to the equal protection of the law. In this

respect, the law shall prohibit any discrimination and

guarantee to all persons equal and effective protection

against discrimination on any ground such as race, colour,

sex, language, religion, political or other opinion, national or

social origin, property, birth or other status.”

India is also required to protect the right to privacy, which includes within its

ambit the right to engage in consensual same-sex sexual relations.234 Article

12 of the UDHR recognises the right to privacy:

“Article 12: No one shall be subjected to arbitrary interference

with his privacy, family, home or correspondence, nor to

attacks upon his honour and reputation. Everyone has the

right to the protection of the law against such interference or

attacks.”

233 Committee on Economic, Social and Cultural Rights, “General Comment 20: Non-discrimination in economic,

social and cultural rights” (2009), at para 32. 234 Toonen.

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Similarly, Article 17 of the ICCPR, which India ratified on 11 December 1977,

provides that:

“The obligations imposed by this article require the State to

adopt legislative and other measures to give effect to the

prohibition against such interferences and attacks as well as

to the protection of the right.”

In its General Comment No. 16, the Human Rights Committee confirmed that

any interference with privacy, even if provided for by law, “should be in

accordance with the provisions, aims and objectives of the Covenant and

should be, in any event, reasonable in the particular circumstances.”235

In their general comments, concluding observations and views on

communications, human rights treaty bodies have affirmed that States are

obliged to protect individuals from discrimination on grounds of sexual

orientation and/or gender identity, as these factors do not limit an individual’s

entitlement to enjoy the full range of human rights to which they are entitled.236

103 In NALSA, while dealing with the rights of transgender persons, this

Court recognized the ‘Yogyakarta Principles on the Application of International

Law in Relation to Issues of Sexual Orientation and Gender Identity’ – which

235 Supra note 230, at page 6. 236 Ibid.

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outline the rights that sexual minorities enjoy as human persons under the

protection of international law – and held that they should be applied as a part

of Indian law. Principle 33 provides thus:

“Everyone has the right to be free from criminalisation and

any form of sanction arising directly or indirectly from that

person’s actual or perceived sexual orientation, gender

identity, gender expression or sex characteristics.”

While the Yogyakarta Principles are not legally binding, NALSA nevertheless

signifies an affirmation of the right to non-discrimination on the grounds of

gender identity, as well as the relevance of international human rights norms

in addressing violations of these rights.

104 There is a contradiction between India’s international obligations and

Section 377 of the Indian Penal Code, insofar as it criminalizes consensual

sexual acts between same-sex adults in private. In adjudicating the validity of

this provision, the Indian Penal Code must be brought into conformity with

both the Indian Constitution and the rules and principles of international law

that India has recognized. Both make a crucial contribution towards

recognizing the human rights of sexual and gender minorities.

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J Transcending borders - comparative law

105 Over the past several decades, international and domestic courts have

developed a strong body of jurisprudence against discrimination based on

sexual orientation. This section analyses the evolution of the perspective of

the law towards sexual orientation from a comparative law perspective, and

looks at how sodomy laws have been construed in various jurisdictions based

on their histories.

106 In 1967, England and Wales decriminalized same-sex intercourse

between consenting adult males in private, and in 1980, Scotland followed

suit. The law in Northern Ireland only changed in 1982 with the decision of the

ECtHR in Dudgeon v The United Kingdom (“Dudgeon”).237 The Petitioners

challenged the Offences against the Person Act, 1861, the Criminal Law

Amendment Act, 1885 and a sodomy law that made buggery and “gross

indecency” a criminal offense, irrespective of consent. Although the law did

not specifically define these terms, the Court interpreted ‘buggery’ to mean

anal intercourse by a man with a man or woman and gross indecency to mean

any act “involving sexual indecency between male persons.” Regarding acts

prohibited by these provisions, the ECtHR observed that:

237 App No 7525/76, (1981) ECHR 5.

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“Although it is not homosexuality itself which is prohibited but

the particular acts of gross indecency between males and

buggery, there can be no doubt but that male homosexual

practices whose prohibition is the subject of the applicant’s

complaints come within the scope of the offences punishable

under the impugned legislation.”

The ECtHR concluded that Dudgeon had suffered and continued to suffer an

unjustified interference with his right to respect for his private life. Hence, the

Court struck down the laws under challenge as violative of Article 8 of the

European Convention on Human Rights, in so far as they criminalised “private

homosexual relations between adult males capable of valid consent.” In

observing that these laws were not proportionate to their purported need, the

Court observed:

“On the issue of proportionality, the Court considers that such

justifications as there are for retaining the law in force

unamended are outweighed by the detrimental effects which

the very existence of the legislative provisions in question can

have on the life of a person of homosexual orientation like the

applicant. Although members of the public who regard

homosexuality as immoral may be shocked, offended or

disturbed by the commission by others of private homosexual

acts, this cannot on its own warrant the application of penal

sanctions when it is consenting adults alone who are

involved.”238

The ECtHR thus concluded:

“To sum up, the restriction imposed on Mr. Dudgeon under

Northern Ireland law, by reason of its breadth and absolute

character, is, quite apart from the severity of the possible

238 Ibid, at para 60.

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penalties provided for, disproportionate to the aims sought to

be achieved.”239

Later, in Norris v Ireland240, the Applicant challenged Ireland's criminalization

of certain homosexual acts between consenting adult men as being violative

of Article 8 of the European Convention on Human Rights, which protected

the right to respect for private and family life. The ECtHR held that the law

violated Article 8, regardless of whether it was actively enforced:

“A law which remains on the statute books even though it is

not enforced in a particular class of cases for a considerable

time, may be applied again in such cases at any time, if for

example, there is a change of policy. The applicant can

therefore be said to ‘run the risk of being directly affected’ by

the legislation in question.”

This decision was affirmed in Modinos v Cyprus241, where the Criminal Code

of Cyprus, which penalized homosexual conduct, was alleged to constitute an

unjustified interference with the Applicant’s private life.

107 Five years after Dudgeon, the United States Supreme Court, in

Bowers v. Hardwick (“Bowers”)242, held that “sodomy” laws had been a

significant part of American history and did not violate the Constitution. The

Supreme Court’s reasoning in Bowers is a clear departure from that of the

239 Ibid, at para 61. 240 Application No. 10581/83, (1988) ECHR 22. 241 Application No. 15070/89,16 EHRR 485. 242 478 U.S. 186 (1986).

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ECtHR in Dudgeon. In Bowers, the Supreme Court declined to accept that

the question concerned the right to privacy. Instead, it stated that the issue

was about "a fundamental right upon homosexuals to engage in sodomy”,243

which was held not to be protected by the US Constitution.

Seventeen years later, the United States Supreme Court laid the constitutional

foundation for LGBT rights in the country with its judgment in Lawrence v

Texas (“Lawrence”).244 In Lawrence, the Petitioner had been arrested under

a Texas statute, which prohibited same-sex persons from engaging in sexual

conduct, regardless of consent. The validity of the statute was considered.

Relying on Dudgeon, the U S Supreme Court struck down the statute as

violative of the Due Process Clause of the Fourteenth Amendment to the U.S.

Constitution. Overruling the judgment in Bowers, Justice Kennedy, writing for

the majority, upheld Justice Stevens’ dissent in Bowers – who was also part

of the majority in Lawrence – to note that:

“Our prior cases make two propositions abundantly clear.

First, the fact that the governing majority in a State has

traditionally viewed a particular practice as immoral is not a

sufficient reason for upholding a law prohibiting the practice;

neither history nor tradition could save a law prohibiting

miscegenation from constitutional attack. Second, individual

243 Bowers, at para 190. 244 539 U.S. 558 (2003).

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decisions by married persons, concerning the intimacies of

their physical relationship, even when not intended to produce

offspring, are a form of “liberty” protected by the Due Process

Clause of the Fourteenth Amendment. Moreover, this

protection extends to intimate choices by unmarried as well

as married persons.”245

He also noted that the case concerned the private, personal relationships of

consenting adults, and that the laws challenged did not further any legitimate

state interest:

“The 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 homosexual persons seek

to enter [eg, a right to marry or to register a ‘civil union’]. The

case does involve two adults who, with full and mutual

consent from each other, engaged 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. Their right to liberty

under the Due Process Clause gives them the full right to

engage in their conduct without intervention of the

government. ... The Texas statute furthers no legitimate state

interest which can justify its intrusion into the personal and

private life of the individual....”

108 Justice Kennedy also identified the harm caused by the operation of the

criminal law:

“When homosexual conduct is made criminal by the law of

the State, that declaration in and of itself is an invitation to

245 Bowers, at para 216.

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subject homosexual persons to discrimination both in the

public and in the private spheres.”

The Court thus struck down the Texas law banning “deviate sexual

intercourse” between persons of the same sex (and similar laws in 13 other

US states and Puerto Rico), holding that:

“The laws involved in Bowers and here are, to be sure,

statutes that purport to do no more than prohibit a particular

sexual act. Their penalties and purposes, though, have

more far-reaching consequences, touching upon the

most private human conduct, sexual behavior, and in the

most private of places, the home. The statutes do seek to

control a personal relationship that, whether or not entitled to

formal recognition in the law, is within the liberty of persons to

choose without being punished as criminals.”

(Emphasis supplied)

109 In Toonen, the UN Human Rights Committee held that laws used to

criminalize private, adult, consensual same-sex sexual relations violate the

right to privacy and the right to non-discrimination. Mr Toonen – a member of

the Tasmanian Gay Law Reform Group – had complained to the Committee

about a Tasmanian law that criminalized ‘unnatural sexual intercourse’,

‘intercourse against nature’ and ‘indecent practice between male persons’.

The law allowed police officers to investigate intimate aspects of his private

life and to detain him if they had reason to believe that he was involved in

sexual activities with his long-term partner in the privacy of their home. Mr

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Toonen challenged these laws as violative of Article 2(1)246, Article 17247 and

Article 26248 of the ICCPR, on the ground that:

“[The provisions] have created the conditions for

discrimination in employment, constant stigmatization,

vilification, threats of physical violence and the violation of

basic democratic rights.”249

The Committee rejected the argument that criminalization may be justified as

“reasonable” on grounds of protection of public health or morals, noting that

the use of criminal law in such circumstances is neither necessary nor

proportionate:250

“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.”

246 Article 2(1): Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within

its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

247 Article 17: No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

248 Article 26: All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

249 Toonen, at para 2.4. 250 Toonen, at para. 8.5.

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The Court concluded that the legislation was violative of Article 7 of the

ICCPR, holding that:

“… It is undisputed that adult consensual sexual activity in

private is covered by the concept of “privacy”, and that Mr.

Toonen is actually and currently affected by the continued

existence of the Tasmanian laws.”251

110 In X v. Colombia252, the Committee clarified that there is no “Global

South exception” to Toonen.253 The Egyptian and Tunisian members of the

Committee, who dissented from the majority’s decision requiring equal

treatment of unmarried same-sex and different-sex couples, concurred with

the principle laid down in Toonen:

“[T]here is no doubt that [A]rticle 17…is violated by

discrimination on grounds of sexual orientation. The

Committee…has rightly and repeatedly found that protection

against arbitrary or unlawful interference with privacy

precludes prosecution and punishment for homosexual

relations between consenting adults.”

111 The Constitutional Tribunal of Ecuador was the first Constitutional Court

in the Global South to decriminalise sodomy laws.254 The constitutionality of

Article 516 of the Penal Code, which penalised “cases of homosexualism, that

do not constitute rape”, was challenged before the Tribunal. The Tribunal’s

251 Toonen, at para 8.2. 252 Communication No. 1361/2005. 253 Robert Wintemute, “Same-Sex Love and Indian Penal Code §377: An Important Human Rights Issue for India”

National University of Juridical Sciences Law Review, (2011). 254 Case No. 111-97-TC (27 November 1997).

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reasoning was that “this abnormal behaviour should be the object of medical

treatment ... imprisonment in jails, creates a suitable environment for the

development of this dysfunction.” The Tribunal’s line of reasoning – referring

to homosexual activity as ‘abnormal behaviour’, requiring medical treatment –

is seriously problematic.255 That assumption is unfounded in fact and is an

incorrect doctrine for a constitutional court which protects liberty and dignity.

However ultimately, the Tribunal struck down the first paragraph of Article 516

of the Penal Code, holding that:

“Homosexuals are above all holders of all the rights of the

human person and therefore, have the right to exercise them

in conditions of full equality ... that is to say that their rights

enjoy legal protection, as long as in the exteriorisation of their

behaviour they do not harm the rights of others, as is the case

with all other persons.”

112 The adverse impact of sodomy laws on the lives of homosexual adults

was also considered by the Constitutional Court of South Africa in National

Coalition for Gay and Lesbian Equality v. Minister of Justice (“National

Coalition”)256, in which the constitutionality of the common law offence of

sodomy and other legislations which penalised unnatural sexual acts between

men was at issue. The Constitutional Court unanimously found that the

sodomy laws, all of which purported to proscribe sexual intimacy between

255 The Tribunal’s decision was criticized by LGBT rights activists for its description of homosexuality as “abnormal

conduct.” However, a year after this decision, Ecuador became the third country in the world to include sexual orientation as a constitutionally protected category against discrimination.

256 1999 (1) SA 6 (CC).

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homosexual adult men, violated their right to equality and discriminated

against them on the basis of their sexual orientation.

Justice Ackerman, concurring with the ECtHR’s observation in Norris, noted

that:

“The discriminatory prohibitions on sex between men

reinforces already existing societal prejudices and severely

increases the negative effects of such prejudices on their

lives.”257

Justice Ackerman quoted from Edwin Cameron’s “Sexual Orientation and the

Constitution: A Test Case for Human Rights”258:

“Even when these provisions are not enforced, they reduce

gay men… to what one author has referred to as

‘unapprehended felons’, thus entrenching stigma and

encouraging discrimination in employment and

insurance and in judicial decisions about custody and

other matters bearing on orientation.”259

(Emphasis supplied)

Commenting on the violation of individuals’ rights to privacy and dignity, the

Court held that:

“Gay people are a vulnerable minority group in our society.

Sodomy laws criminalise their most intimate relationships.

This devalues and degrades gay men and therefore

constitutes a violation of their fundamental right to dignity.

Furthermore, the offences criminalise private conduct

257 National Coalition, at para 23. 258 (1993) 110 SALJ 450. 259 National Coalition, at para 23.

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between consenting adults which causes no harm to anyone

else. This intrusion on the innermost sphere of human life

violates the constitutional right to privacy. The fact that the

offences, which lie at the heart of the discrimination, also

violate the rights to privacy and dignity strengthens the

conclusion that the discrimination against gay men is unfair.”

In its conclusion, the Court held that all persons have a right to a “sphere of

private intimacy and autonomy that allows [them] to establish and nurture

human relationships without interference from the outside community.”260

113 In 2005, the High Court of Fiji, in Dhirendra Nadan Thomas McCoskar

v. State261, struck down provisions of the Fijian Penal Code, which punished

any person who permits a male person to have “carnal knowledge” of him, as

well as acts of “gross indecency” between male persons. The High Court read

down the provisions to the extent that they were inconsistent with the

Constitution of Fiji, drawing a clear distinction between consensual and non-

consensual sexual behavior:

“What the constitution requires is that the Law acknowledges

difference, affirms dignity and allows equal respect to every

citizen as they are. The acceptance of difference celebrates

diversity. The affirmation of individual dignity offers respect to

the whole of society. The promotion of equality can be a

source of interactive vitality…A country so founded will put

sexual expression in private relationships into its proper

perspective and allow citizens to define their own good

moral sensibilities leaving the law to its necessary duties

260 National Coalition, at para 32. 261 [2005] FJHC 500.

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of keeping sexual expression in check by protecting the

vulnerable and penalizing the predator.”

(Emphasis supplied)

In recent years, the Caribbean States of Belize and Trinidad and Tobago have

also decriminalized consensual sexual acts between adults in private. In

Caleb Orozco v. The Attorney General of Belize (“Caleb Orozco”)262,

provisions of the Belize Criminal Code which penalized “every person who

has intercourse against the order of nature with any person…” were

challenged before the Supreme Court. Commenting on the concept of dignity,

Justice Benjamin borrowed from the Canadian Supreme Court’s observations

and noted that:263

“Human dignity means that an individual or group feels self-

respect and self-worth. It is concerned with physical and

psychological integrity and empowerment. Human dignity is

harmed by unfair treatment premised upon personal

traits or circumstances which do not relate to the

individual needs, capacities or merits. It is enhanced by

laws which are sensitive to the needs, capacities and merits

of different individuals, taking into account the context

underlying the differences.” (Emphasis supplied)

Relying on the judgments in Dudgeons, National Coalition, McCoskar,

Toonen, and Lawrence, the Supreme Court struck down the provision as

violative of the claimant’s constitutional rights to privacy, dignity, and equality.

Justice Benjamin held thus:

262 Claim No. 668 of 2010. 263 Law v Canada (Minister of Employment and Immigration) [1999] 1 S.C.R. 497.

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“However, from the perspective of legal principle, the Court

cannot act upon prevailing majority views or what is popularly

accepted as moral…There must be demonstrated that some

harm will be caused should the proscribed conduct be

rendered unregulated. No evidence has been presented as to

the real likelihood of such harm. The duty of the Court is to

apply the provisions of the Constitution.”264

114 In Jason Jones v. The Attorney General of Trinidad and Tobago

(“Jones”)265, an expatriate gay rights activist living in the United Kingdom

challenged the provisions of Trinidad and Tobago’s Sexual Offences Act,

which criminalized ‘buggery’ and ‘serious indecency’ before the High Court of

Justice at Trinidad and Tobago. The central issue before the Court was

whether the provisions were ‘saved’ under Section 6 of the Constitution, which

protects laws that were in existence before the Constitution came into force

and were only marginally changed since, from being struck down for breach of

fundamental rights.

The High Court struck down the provisions as unconstitutional, observing that

the right to choose a partner and to have a family is intrinsic to an individual’s

personal autonomy and dignity:

“To this court, human dignity is a basic and inalienable right

recognized worldwide in all democratic societies. Attached to

that right is the concept of autonomy and the right of an

individual to make decisions for herself/himself without any

264 Caleb Orozco, at para 81. 265 Claim no. CV2017-00720.

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unreasonable intervention by the State. In a case such as

this, she/he must be able to make decisions as to who she/he

loves, incorporates in his/her life, who she/he wishes to live

with and with who to make a family.”266

The High Court also held that the existence of such laws deliberately

undermined the lives of homosexuals:

“A citizen should not have to live under the constant threat,

the proverbial “Sword of Damocles,” that at any moment

she/he may be persecuted or prosecuted. That is the threat

that exists at present. It is a threat that is sanctioned by the

State and that sanction is an important sanction because it

justifies in the mind of others in society who are differently

minded, that the very lifestyle, life and existence of a person

who chooses to live in the way that the claimant does is

criminal and is deemed to be of a lesser value than anyone

else…The Parliament has taken the deliberate decision to

criminalise the lifestyle of persons like the claimant whose

ultimate expression of love and affection is crystallised in an

act which is statutorily unlawful, whether or not enforced.”267

(Emphasis supplied)

The High Court compared the impugned provisions to racial segregation, the

Holocaust, and apartheid, observing that:

“To now deny a perceived minority their right to humanity and

human dignity would be to continue this type of thinking, this

type of perceived superiority, based on the genuinely held

beliefs of some.”268

266 Jones, at para 91. 267 Ibid. 268 Jones, at para 171.

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115 In Leung TC William Roy v. Secretary for Justice269, the High Court

of Hong Kong considered the constitutional validity of provisions that

prescribed different ages of consent for buggery and regular sexual

intercourse. The court held that these provisions violated the petitioner’s rights

to privacy and equality:

“Denying persons of a minority class the right to sexual

expression in the only way available to them, even if that way

is denied to all, remains discriminatory when persons of a

majority class are permitted the right to sexual expression in a

way natural to them. During the course of submissions, it

was described as ‘disguised discrimination’. It is, I think, an

apt description. It is disguised discrimination founded on a

single base: sexual orientation.”270

The Court concluded that the difference in the ages of consent was

unjustifiable, noting that:

“No evidence has been placed before us to explain why the

minimum age requirement for buggery is 21 whereas as far

as sexual intercourse between a man and a woman is

concerned, the age of consent is only 16. There is, for

example, no medical reason for this and none was suggested

in the course of argument.”271

Courts around the world have not stopped at decriminalizing sodomy laws;

they have gone a step further and developed a catena of broader rights and

protections for homosexuals. These rights go beyond the mere freedom to

269 Civil Appeal No. 317 of 2005. 270 Ibid, at para 48. 271 Ibid, at para 51.

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engage in consensual sexual activity in private, and include the right to full

citizenship, the right to form unions and the right to family life.

116 Israel was one of the first countries to recognize the rights of

homosexuals against discrimination in matters of employment. In El-Al Israel

Airlines Ltd v. Jonathan Danielwitz (“El-Al Israel Airlines”)272, the Supreme

Court of Israel considered an airline company’s policy of giving discounted

tickets to their employees and a ‘companion recognized as the husband/wife

of the employee’. This benefit was also given to a partner with whom the

employee was living together like husband and wife, but not married.

However, the airline refused to give the discounted tickets to the Respondent

and his male partner.

The Supreme Court of Israel observed thus:

“The principle of equality demands that the existence of a rule

that treats people differently is justified by the nature and

substance of the issue…therefore, a particular law will create

discrimination when two individuals who are different from

one another (factual inequality), are treated differently by the

law, even though the factual difference between them

does not justify different treatment in the

circumstances.”273 (Emphasis supplied)

272 HCJ 721/94. 273 El-A Israel Airlines, at para 14.

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The Supreme Court held that giving a benefit to an employee who has a

spouse of the opposite sex and denying the same benefit to an employee

whose spouse is of the same sex amounts to discrimination based on sexual

orientation. This violated the Petitioner’s right to equality and created an

unjustifiable distinction in the context of employee benefits.

117 In Vriend v Alberta274, the appellant, a homosexual college employee,

was terminated from his job. He alleged that his employer had discriminated

against him because of his sexual orientation, but that he could not make a

complaint under Canada’s anti-discrimination statute – the Individual’s Rights

Protection Act (“IRPA”) – because it did not include sexual orientation as a

protected ground. The Supreme Court of Canada held that the omission of

protection against discrimination on the basis of sexual orientation was an

unjustified violation of the right to equality under the Canadian Charter of

Rights and Freedoms.

118 The Supreme Court held that the State had failed to provide a rational

justification for the omission of sexual orientation as a protected ground under

the IRPA. Commenting on the domino effect that such discriminatory

measures have on the lives of homosexuals, the Supreme Court noted thus: 274 (1998) 1 S.C.R. 493.

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“Perhaps most important is the psychological harm which

may ensue from this state of affairs. Fear of discrimination will

logically lead to concealment of true identity and this must be

harmful to personal confidence and self-esteem.

Compounding that effect is the implicit message conveyed by

the exclusion, that gays and lesbians, unlike other individuals,

are not worthy of protection. This is clearly an example of a

distinction which demeans the individual and strengthens and

perpetrates [sic] the view that gays and lesbians are less

worthy of protection as individuals in Canada’s society. The

potential harm to the dignity and perceived worth of gay and

lesbian individuals constitutes a particularly cruel form of

discrimination.”

The next breakthrough for LGBTQ rights came from the Supreme Court of

Nepal, in Sunil Babu Pant v. Nepal Government275. Sunil Pant – the first

openly gay Asian national leader – filed a PIL before the Supreme Court of

Nepal praying for the recognition of the rights of lesbians, gays, and third

gender persons. The Supreme Court located the rights of LGBTQ persons to

their sexuality within the right to privacy, holding that:

“The right to privacy is a fundamental right of any individual.

The issue of sexual activity falls under the definition of

privacy. No one has the right to question how do two adults

perform the sexual intercourse and whether this intercourse is

natural or unnatural.”

The Court held that all individuals have an inherent right to marriage,

regardless of their sexual orientation:

275 Writ Petition No. 917 of 2007.

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“Looking at the issue of same sex marriage, we hold that it is

an inherent right of an adult to have marital relation with

another adult with his/her free consent and according to

her/his will.”

In concluding, the Court directed the Nepalese government to enact new

legislation or amend existing legislation to ensure that persons of all sexual

orientations and gender identities could enjoy equal rights.

119 In 2015, in Oliari v Italy (“Oliari”)276, the Applicants before the ECtHR

argued that the absence of legislation in Italy permitting same-sex marriage or

any other type of civil union constituted discrimination on the basis of sexual

orientation, in violation of Articles 8, 12, and 14 of the European Convention

on Human Rights. In line with its previous case law, the Court affirmed that

same-sex couples “are in need of legal recognition and protection of their

relationship.”277 The ECtHR concluded that gay couples are equally capable

of entering into stable and committed relationships in the same way as

heterosexual couples.278

120 The ECtHR examined the domestic context in Italy, and noted a clear

gap between the “social reality of the applicants”,279 who openly live their

276 [2015] ECHR 716 277 Oliari, at para 165. 278 Ibid. 279 Oliari, at para. 173.

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relationship, and the law, which fails to formally recognize same-sex

partnerships. The Court held that in the absence of any evidence of a

prevailing community interest in preventing legal recognition of same-sex

partnerships, Italian authorities “have overstepped their margin of appreciation

and failed to fulfil their positive obligation to ensure that the applicants have

available a specific legal framework providing for the recognition and

protection of their same-sex unions.”280

121 In 2013, in United States v. Windsor281, US Supreme Court considered

the constitutionality of the Defense of Marriage Act (“DOMA”) which states

that, for the purposes of federal law, the words ‘marriage’ and ‘spouse’ refer to

legal unions between one man and one woman. Windsor, who had inherited

the estate of her same-sex partner, was barred from claiming the federal

estate tax exemption for surviving spouses since her marriage was not

recognized by federal law.282 Justice Kennedy writing for the majority, held

that restricting the federal interpretation of ‘marriage’ and ‘spouse’ to apply

only to opposite-sex unions was unconstitutional under the Due Process

Clause of the Fifth Amendment:

“Its [the DOMA’s] unusual deviation from the tradition of

recognizing and accepting state definitions of marriage

280 Oliari, at para 185. 281 570 U.S. 744 (2013). 282 Section 3, Defense of Marriage Act.

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operates to deprive same-sex couples of the benefits and

responsibilities that come with federal recognition of their

marriages. This is strong evidence of a law having the

purpose and effect of disapproval of a class recognized and

protected by state law. DOMA’s avowed purpose and

practical effect are to impose a disadvantage, a separate

status, and so a stigma upon all who enter into same-sex

marriages made lawful by the unquestioned authority of the

States.”

Two years later, in Obergefell v. Hodges (“Obergefell”),283 while analysing

precedent and decisions of other US courts recognizing same-sex marriage,

Justice Kennedy observed that:

“A first premise of the Court’s relevant precedents is that the

right to personal choice regarding marriage is inherent in the

concept of individual autonomy… Like choices concerning

contraception, family relationships, procreation, and

childrearing, all of which are protected by the Constitution,

decisions concerning marriage are among the most intimate

that an individual can make.”284

122 Justice Kennedy expressed the need to go beyond the narrow holding

in Lawrence, towards a more expansive view of the rights of homosexuals:

“Lawrence invalidated laws that made same- sex intimacy a

criminal act... But while Lawrence confirmed a dimension

of freedom that allows individuals to engage in intimate

association without criminal liability, it does not follow

that freedom stops there. Outlaw to outcast may be a

step forward, but it does not achieve the full promise of

liberty.” (Emphasis supplied)

283 576 U.S. ___ (2015). 284 Obergefell, at page 12.

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By a 5-4 majority, the US Supreme Court ruled that the fundamental right to

marry is guaranteed to same-sex couples by the Due Process Clause and the

Equal Protection Clause of the Fourteenth Amendment to the US Constitution.

Commenting on the right to marriage, Justice Kennedy noted:

“No union is more profound than marriage, for it embodies the

highest ideals of love, fidelity, devotion, sacrifice, and family.

… It would misunderstand these men and women to say they

disrespect the idea of marriage. Their plea is that they do

respect it, respect it so deeply that they seek to find its

fulfilment for themselves. Their hope is not to be condemned

to live in loneliness, excluded from one of civilization’s oldest

institutions. They ask for equal dignity in the eyes of the law.

The Constitution grants them that right.”

123 The recent case of Masterpiece Cakeshop v. Colorado Civil Rights

Commission (“Masterpiece Cakeshop”)285 concerned a Christian baker who

was accused of violating an anti-discrimination ordinance for refusing to make

a wedding cake for a same-sex couple based on his religious beliefs. The

Colorado Civil Rights Commission (“CCRC”) decided against the baker, and,

on appeal, the Supreme Court ruled 7-2 that the CCRC violated the baker’s

rights under the First Amendment, which guarantees freedom of expression.

Writing for the majority, Justice Kennedy said the CCRC showed “hostility” to

the baker’s religious beliefs:

285 584 U.S. ____ (2018).

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“It must be concluded that the State’s interest could have

been weighed against Phillips’ sincere religious objections in

a way consistent with the requisite religious neutrality that

must be strictly observed. The official expressions of hostility

to religion in some of the commissioners’ comments—

comments that were not disavowed at the Commission or by

the State at any point in the proceedings that led to

affirmance of the order—were inconsistent with what the Free

Exercise Clause requires. The Commission’s disparate

consideration of Phillips’ case compared to the cases of the

other bakers suggests the same. For these reasons, the order

must be set aside.”

The majority held that while the Constitution allows gay persons to exercise

their civil rights, “religious and philosophical objections to gay marriage are

protected views and in some instances protected forms of expression.” The

Supreme Court found merit in the baker’s First Amendment claim, noting that

his dilemma was understandable, especially given that the cause of action

arose in 2012, before the enactment of Colorado’s anti-discrimination law and

the Obergefell judgment that legalised same-sex marriage.

The court buttressed its position by noting that in several other cases, bakers

had declined to decorate cakes with messages that were derogatory towards

gay persons and the State Civil Rights Division had held that the bakers were

within their rights to have done so. According to the majority in Masterpiece

Cakeshop, the owner was similarly entitled to decline the order, and his case

should have been treated no differently.

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124 Justice Ginsburg’s dissenting opinion, which was supported by Justice

Sotomayor, distinguished the baker in Masterpiece Cakeshop from the other

three bakers. Justice Ginsburg noted that while the other bakers would have

refused the said cake decorations to all customers, Phillips refused to bake a

wedding cake (which he baked for other customers), specifically for the

couple. She observed that:

“Phillips declined to make a cake he found offensive where

the offensiveness of the product was determined solely

by the identity of the customer requesting it. The three

other bakeries declined to make cakes where their objection

to the product was due to the demeaning message the

requested product would literally display.” (Emphasis

supplied)

“When a couple contacts a bakery for a wedding cake, the

product they are seeking is a cake celebrating their

wedding—not a cake celebrating heterosexual weddings or

same-sex weddings—and that is the service Craig and

Mullins were denied.”

Justice Ginsburg concluded that a proper application of the Colorado Anti-

Discrimination Act would require upholding the lower courts’ rulings.

125 Masterpiece Cakeshop is also distinguishable from a similar case, Lee

v. Ashers Bakery Co. Ltd.286, which is currently on appeal to the United

Kingdom Supreme Court. In that case, a bakery in Northern Ireland offered a

286 [2015] NICty 2.

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service whereby customers could provide messages, pictures or graphics that

would be iced on a cake. Lee – a member of an LGBT organisation – ordered

a cake with the words “support gay marriage” on it. The Christian owners

refused, stating that preparing such an order would conflict with their religious

beliefs. Lee claimed that in refusing his order, the bakery discriminated

against him on grounds of sexual orientation. Both the County Court and the

Court of Appeal ruled in favour of Lee, on the ground that the respondent’s

refusal on the ground of his religious beliefs was contrary to the provisions of

the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 and

the Fair Employment and Treatment Order 1998.

From an analysis of comparative jurisprudence from across the world, the

following principles emerge:

1. Sexual orientation is an intrinsic element of liberty, dignity, privacy,

individual autonomy and equality;

2. Intimacy between consenting adults of the same-sex is beyond the

legitimate interests of the state;

3. Sodomy laws violate equality by targeting a segment of the population for

their sexual orientation;

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4. Such a law perpetrates stereotypes, lends authority of the state to societal

stereotypes and has a chilling effect on the exercise of freedom;

5. The right to love and to a partner, to find fulfillment in a same-sex

relationship is essential to a society which believes in freedom under a

constitutional order based on rights;

6. Sexual orientation implicates negative and positive obligations on the state.

It not only requires the state not to discriminate, but also calls for the state

to recognise rights which bring true fulfillment to same-sex relationships;

and

7. The constitutional principles which have led to decriminalization must

continuously engage in a rights discourse to ensure that same-sex

relationships find true fulfillment in every facet of life. The law cannot

discriminate against same-sex relationships. It must also take positive

steps to achieve equal protection.

The past two decades have witnessed several decisions by constitutional and

international courts, recognizing both the decriminalization of same-sex

intercourse in private, as well as broader rights recognizing sexual orientation

equality. In 1996, South Africa became the first country in the world to

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constitutionally prohibit discrimination based on sexual orientation.287 As on

the date of this judgment, ten countries constitutionally prohibit discrimination

on grounds of sexual orientation.288 The United Kingdom, Bolivia, Ecuador,

Fiji, and Malta specifically prohibit discrimination on the basis of gender

identity, either constitutionally or through enacted laws.289 According the

International Lesbian, Gay, Bisexual, Trans and Intersex Association, 74

countries (including India) criminalize same-sex sexual conduct, as of 2017.290

Most of these countries lie in the Sub-Saharan and Middle East region. Some

of them prescribe death penalty for homosexuality.291

126 We are aware that socio-historical contexts differ from one jurisdiction to

another and that we must therefore look at comparative law-making

allowances for them. However, the overwhelming weight of international

opinion and the dramatic increase in the pace of recognition of fundamental

rights for same-sex couples reflects a growing consensus towards sexual

orientation equality. We feel inclined to concur with the accumulated wisdom

reflected in these judgments, not to determine the meaning of the guarantees

287 Amy Raub, “Protections Of Equal Rights Across Sexual Orientation And Gender Identity: An Analysis Of 193

National Constitutions”, Yale Journal of Law and Feminism, Vol. 28 (2017). 288 Ibid. Of these, three are in the Americas (Bolivia, Ecuador, and Mexico), four are in Europe and Central Asia

(Malta, Portugal, Sweden, and the United Kingdom), two are in East Asia and the Pacific (Fiji and New Zealand), and one is in Sub-Saharan Africa (South Africa).

289 Ibid. 290 The International Lesbian, Gay, Bisexual, Trans And Intersex Association, “Sexual Orientation Laws of the World”,

(2017). 291 Ibid.

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contained within the Indian Constitution, but to provide a sound and

appreciable confirmation of our conclusions about those guarantees.

This evolution has enabled societies governed by liberal constitutional values

– such as liberty, dignity, privacy, equality and individual autonomy – to move

beyond decriminalisation of offences involving consensual same-sex

relationships. Decriminalisation is of course necessary to bury the ghosts of

morality which flourished in a radically different age and time. But

decriminalisation is a first step. The constitutional principles on which it is

based have application to a broader range of entitlements. The Indian

Constitution is based on an abiding faith in those constitutional values. In the

march of civilizations across the spectrum of a compassionate global order,

India cannot be left behind.

K Crime, morality and the Constitution

127 The question of what qualifies as a punishable offence under the law

has played a central role in legal theory. Attempts have been made by legal

scholars and jurists alike, to define a crime. Halsbury’s Laws of England

defines a crime as “an unlawful act or default which is an offence against the

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public and renders the person guilty of the act or default liable to legal

punishment.”292 As Glanville Williams observes:

“A crime is an act capable of being followed by criminal

proceedings, having a criminal outcome…criminal law is that

branch of law which deals with conduct…by prosecution in

the criminal courts.”293

Henry Hart, in his essay titled “The Aims of Criminal Law”, 294 comments on

the difficulty of a definition in this branch of law. A crime is a crime because it

is called a crime:

“If one were to judge from the notions apparently underlying

many judicial opinions, and the overt language even of some

of them, the solution of the puzzle is simply that a crime is

anything which is called a crime, and a criminal penalty is

simply the penalty provided for doing anything which has

been given that name.”295

However, Hart confesses that such a simplistic definition would be “a betrayal

of intellectual bankruptcy.”296 Roscoe Pound articulates the dilemma in

defining what constitutes an offence:

“A final answer to the question ‘what is a crime?’, is

impossible, because law is a living, changing thing, which

may at one time be uniform, and at another time give much

room for judicial discretion, which may at one time be more

292 Halsbury’s Laws of England. 3rd edition, Vol. 3, Butterworths (1953) at page. 271. 293 Glanville Williams, ‘The Definition of Crime’, Current Legal Problems, Vol. 8 (1955). 294 Henry M. Hart, “The Aims of the Criminal Law”, Law and Contemporary Problems, Vol. 23 (1958), at pages 401–

441. 295 Ibid. 296 Ibid.

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specific in its prescription and at another time much more

general.”297

Early philosophers sought to define crime by distinguishing it from a civil

wrong. In his study of rhetoric, Aristotle observed that:

“Justice in relation to the person is defined in two ways. For it

is defined either in relation to the community or to one of its

members what one should or should not do. Accordingly, it is

possible to perform just and unjust acts in two ways, either

towards a defined individual or towards the community.”298

Kant, in the Metaphysics of Morals,299 observed that:

“A transgression of public law that makes someone who

commits it unfit to be a citizen is called a crime simply

(crimen) but is also called a public crime (crimen publicum);

so the first (private crime) is brought before a civil court, the

latter before a criminal court.”300

Another method of defining crime is from the nature of injury caused, “of being

public, as opposed to private, wrongs.”301 This distinction was brought out by

Blackstone and later by Duff, in their theories on criminal law. Blackstone, in

his “Commentaries on the Laws of England” put forth the idea that only

297 Roscoe Pound, Interpretation of Legal History, Harvard University Press (1946). 298 H.C. Lawson-Tancred, The Art of Rhetoric/ Aristotle, Penguin (2004). 299 Immanuel Kant: The Metaphysics of Morals (Mary Gregor ed.), Cambridge University Press (1996). 300 Ibid, at pages 353, 331. 301 Grant Lamond, “What is a Crime?”, Oxford Journal of Legal Studies, Vol.27 (2007).

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actions which constitute a ‘public wrong’ will be classified as a crime.302 He

characterised public wrongs as “a breach and violation of the public rights and

duties, due to the whole community, considered as a community, in its social

aggregate capacity.”303 Duff adds to the idea of public wrong by arguing that

“[w]e should interpret a ‘public’ wrong, not as a wrong that injures the public,

but as one that properly concerns the public, i.e. the polity as a whole.”304

Nozick and Becker also support the theory that crime is conduct that harms

the public. Nozick argues that the harm caused by a crime, unlike other

private law wrongs, extends beyond the immediate victim to all those who

view themselves as potential victims of the crime.305 When such an act is

done on purpose, it spreads fear in the general community, and it is due to

this additional harm to the community [of causing fear and insecurity], that

such actions are classified as crimes and pursued by the state.306 Becker

preferred to describe crime as something which disrupts social stability and

has “the potential for destructive disturbance of fundamental social

structures.”307

302 Sir William Blackstone, Commentaries on the Laws of England, Book IV, Ch. 1 & 2. 303 Ibid. 304 Antony Duff and Sandra Marshall, “Criminalization and Sharing Wrongs”, Canadian Journal of Law and

Jurisprudence, Vol. 11, (1998) at pages 7-22. 305 Robert Nozick, Anarchy, State and Utopia, Basic Books (1974) ,at page 65. 306 Supra note 301. 307 Lawrence C. Becker, “Criminal Attempts and the Theory of the Law of Crimes”, Philosophy & Public Affairs, Vol 3

(1974), at page 273.

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149

However, Hart questioned the theory of simply defining crime as a public

wrong, for all wrongs affect society in some way or the other:

“Can crimes be distinguished from civil wrongs on the ground

that they constitute injuries to society generally which society

is interested in preventing? The difficulty is that society is

interested also in the due fulfilment of contracts and the

avoidance of traffic accidents and most of the other stuff of

civil litigation.” 308

128 Hart preferred to define crime in terms of the methodology of criminal

law and the characteristics of this method. He described criminal law as

possessing the following features:

“1. The method operates by means of a series of directions,

or commands, formulated in general terms, telling people

what they must or must not do…

2. The commands are taken as valid and binding upon all

those who fall within their terms when the time comes for

complying with them, whether or not they have been

formulated in advance in a single authoritative set of words…

3. The commands are subject to one or more sanctions for

disobedience which the community is prepared to enforce…

4. What distinguishes a criminal from a civil sanction and

all that distinguishes it, it is ventured, is the judgment of

community condemnation which accompanies and justifies

its imposition.”309 (Numbering and emphasis supplied)

308 Supra note 294. 309 Ibid.

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According to Hart, the first three characteristics above are common to both

civil and criminal law.310 However, the key differentiating factor between

criminal and civil law, he observed, is the “community condemnation.” 311 Thus,

he attempted to define crime as:

“Conduct which, if duly shown to have taken place, will incur a

formal and solemn pronouncement of the moral

condemnation of the community.” 312

Perhaps it is difficult to carve out a single definition of crime due to the multi-

dimensional nature of criminal law. The process of deconstructing the

criminalisation of consensual sexual acts by adults will be facilitated by

examining some criminal theories and their interplay with Section 377.

Criminal Law Theories

Bentham’s Utilitarian Theory

129 Utilitarianism has provided some of the most powerful critiques of

existing laws. Bentham was one of the earliest supporters for reform in

sodomy laws. In his essay, “Offences Against One’s Self”,313 Bentham

rebutted all the justifications given by the state for enacting laws on

310 Ibid. 311 Ibid. 312 Ibid. 313 Jeremy Bentham, “Offences Against One's Self” (Louis Crompton Ed.), Columbia University.

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sodomy.314 According to Bentham, homosexuality, if viewed outside the

realms of morality and religion, is neutral behaviour which gives the

participants pleasure and does not cause pain to anyone else.315 Therefore,

he concluded that such an act cannot constitute an offence, and there is “no

reason for punishing it at all.”316

130 Bentham tested sodomy laws on three main principles: (i) whether they

produce any primary mischief, i.e., direct harm to another person; (ii) whether

they produce any secondary mischief, i.e., harm to the stability and security of

society; and (iii) whether they cause any danger to society.317 He argued that

sodomy laws do not satisfy any of the above tests, and hence, should be

repealed. On the first principle of primary mischief, Bentham said:

“As to any primary mischief, it is evident that it produces no

pain in anyone. On the contrary it produces pleasure, and that

a pleasure which, by their perverted taste, is by this

supposition preferred to that pleasure which is in general

reputed the greatest. The partners are both willing. If either of

them be unwilling, the act is not that which we have here in

view: it is an offence totally different in its nature of effects: it

is a personal injury; it is a kind of rape.” 318

314 Ibid. 315 Ibid. 316 Ibid. 317 Ibid. 318 Ibid.

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Thus, Bentham argued that consensual homosexual acts do not harm anyone

else. Instead, they are a source of pleasure to adults who choose to engage in

them. Bentham was clear about the distinction between ‘willing’ partners and

‘unwilling’ partners, and the latter according to him, would not fall under his

defence.

Bentham’s second argument was that there was no secondary mischief,

which he described as something which may “produce any alarm in the

community.” On this, Bentham argued:

“As to any secondary mischief, it produces not any pain of

apprehension. For what is there in it for any body to be afraid

of? By the supposition, those only are the objects of it who

choose to be so, who find a pleasure, for so it seems they do,

in being so.”319

Bentham’s explanation was that only those adults who choose will be the

objects of homosexual sexual acts. It does not involve any activity which will

create anxiety among the rest of the society. Therefore, homosexuality does

not cause secondary harm either.

Lastly, Bentham tested sodomy laws on whether they cause danger to

society. The only danger that Bentham could apprehend was the supposed

319 Ibid.

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danger of encouraging others to engage in homosexual practices. However,

Bentham argues that since homosexual activities in themselves do not cause

any harm, there is no danger even if they have a domino effect on other

individuals:

“As to any danger exclusive of pain, the danger, if any, must

consist in the tendency of the example. But what is the

tendency of this example? To dispose others to engage in the

same practises: but this practise for anything that has yet

appeared produces not pain of any kind to anyone.” 320

Thus, according to Bentham, sodomy laws fail on all three grounds- they

neither cause primary mischief, nor secondary mischief, nor any danger to

society.

Bentham also critiqued criminal laws by analysing the utility of the punishment

prescribed by them. He succinctly described the objective of law through the

principles of utility- “The general object which all laws have, or ought to

have…is to augment the total happiness of the community; [and] to

exclude…everything that tends to subtract from that happiness.”321 According

to Bentham, “all punishment in itself is evil”322 because it reduces the level of

happiness in society, and should be prescribed only if it “excludes some

320 Ibid. 321 Ibid. 322 Ibid.

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greater evil.”323 Bentham stipulated four kinds of situations where it is not

utilitarian to inflict punishment:

“1. Where it is groundless: where there is no mischief for it to

prevent; the act not being mischievous upon the whole.

2. Where it must be inefficacious: where it cannot act so as to

prevent the mischief.

3. Where it is unprofitable, or too expensive: where the

mischief it would produce would be greater than what it

prevented.

4. Where it is needless: where the mischief may be

prevented, or cease of itself, without it: that is, at a cheaper

rate.”324

The Harm Principle

131 John Stuart Mill, in his treatise “On Liberty,” makes a powerful case to

preclude governments from interfering in those areas of an individual’s life

which are private. Mill’s theory, which came to be called the “harm principle”,

suggests that the state can intrude into private life by way of sanction only if

harm is caused to others or if the conduct is “other-affecting.”325 In Mill’s

words:

“The only purpose for which power can be rightfully exercised

over any member of a civilised community, against his will, is

to prevent harm to others. His own good, either physical or

moral, is not a sufficient warrant. He cannot rightfully be

compelled to do or forbear because it will be better for him to

do so, because it will make him happier, because, in the

323 Ibid. 324 Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, The Library of Economics and

Liberty (1823). 325 John Stuart Mill, On Liberty, (Elizabeth Rapaport ed), Hackett Publishing Co, Inc (1978).

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opinions of others, to do so would be wise, or even right…

The only part of the conduct of any one, for which he is

amenable to society, is that which concerns others. In the part

which merely concerns himself, his independence is, of right,

absolute. Over himself, over his own body and mind, the

individual is sovereign.” 326 (Emphasis supplied)

Mill created a dichotomy between “self-regarding” actions (those which affect

the individual himself and have no significant effect on society at large) and

“other-regarding” actions (those which affect the society).327 He was aware

that in a way, all actions of an individual are likely to affect “those nearly

connected with him and, in a minor degree, society at large.”328 However, he

argued that as long as an action does not “violate a distinct and assignable

obligation to any other person or persons”, it may not be taken out of the self-

regarding class of actions.329 Thus, Mill proposed that “all that portion of a

person’s life and conduct which affects only himself, or, if it also affects others,

only with their free, voluntary, and undeceived consent and participation”

should be free from state interference.330 He further added that the state and

society are not justified in interfering in the self-regarding sphere, merely

because they believe certain conduct to be “foolish, perverse, or wrong.”331

326 Ibid. 327 Ibid. 328 Ibid. 329 Ibid. 330 Ibid. 331 Ibid.

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Essentially, Mill created a taxonomy on types of conduct – (a) self-regarding

actions should not be the subject of sanctions either from the state or society;

(b) actions which may hurt others but do not violate any legal rights may only

be the subject of public condemnation but not state sanction; (c) only action

which violate the legal rights of others should be the subject of legal sanction

(and public condemnation).332 The harm principle thus, operated as a negative

or limiting principle, with the main objective of restricting criminal law from

penalising conduct merely on the basis of its perceived immorality or

unacceptability when the same is not harmful.333

While Mill’s theory was not propounded in relation to LGBTQ rights, his

understanding of criminal law is well-suited to argue that sodomy laws

criminalise ‘self-regarding’ actions which fall under the first category of

conduct, and should not be subjected to sanctions either by the state or the

society.

132 A jurisprudential debate on the interplay between criminal law and

morality was set off when Lord Devlin delivered the 1959 Maccabean Lecture,

332 Mark Strasser, “Lawrence, Mill, and Same Sex Relationships: On Values, Valuing and the Constitution”, Southern

California Interdisciplinary Law Journal, Vol. 15 (2006). 333 Joseph Raz, ‘Autonomy, Toleration and the Harm Principle’, in Issues in Contemporary Legal Philosophy: The

Influence of HLA Hart (R. Gavison ed.), Oxford University Press (1987).

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titled “The Enforcement of Morals.”334 Lord Devlin’s lecture was an attack

against the Report of the Wolfenden Committee on Homosexual Offences and

Prostitution (“Wolfenden Report”), which had recommended the

decriminalisation of sodomy laws in England.335 The Wolfenden Committee,

headed by Sir John Wolfenden, Vice-Chancellor of Reading University, was

set up in 1954 to consider the criminalisation of homosexuality and

prostitution, in the wake of increased arrests and convictions in the UK for

homosexuality between men.336 Among those prosecuted for ‘gross

indecency’ under the Buggery Act of 1553 and Sexual Offences Act of 1967

were eminent persons like Oscar Wilde, Alan Turing and Lord Montagu of

Beaulieu.337 After conducting a three-year long inquiry, carrying out empirical

research, and interviewing three gay men, the Wolfenden Committee

released its Report in 1957.338 The Wolfenden Report recommended that:

“Homosexual behaviour between consenting adults should no

longer be a criminal offence... Unless a deliberate attempt is

to be made by society, acting through the agency of the law,

to equate the sphere of crime with that of sin, there must

remain a realm of private morality and immorality which is, in

brief and crude terms, not the law’s business.”339

334 Graham Hughes, “Morals and the Criminal Law”, The Yale Law Journal, Vol.71 (1962). 335 Supra note 29. 336 Ibid. 337 Ibid. 338 Ibid. 339 Supra note 29, at paras 61 and 62.

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The Wolfenden Report stated that “it is not the purpose of law to intervene in

the private lives of citizens, or to seek to enforce any particular pattern of

behaviour…”340 The Wolfenden Report acknowledged that the law and public

opinion have a close relationship with each other – the law ought to “follow

behind public opinion” so that it garners the community support, while at the

same time, the law must also fortify and lead public opinion.341 However, it

made out a strong case for divorcing morality from criminal law and stated that

- “moral conviction or instinctive feeling, however strong, is not a valid basis

for overriding the individual’s privacy and for bringing within the ambit of the

criminal law private sexual behaviour of this kind.”342 Stating that

homosexuality is not a mental illness, the Wolfenden Report clarified that

homosexuality is “a sexual propensity for persons of one’s own sex…[it] is a

state or condition, and as such does not, and cannot, come within the purview

of criminal law.”343

133 Lord Devlin, perturbed by the Wolfenden Report’s line of reasoning,

framed questions on the issue of criminal law and morality:

“1. Has society the right to pass judgments on all matters of

morals?

340 Ibid, at para 14. 341 Ibid, at para 16. 342 Ibid, at para 54. 343 Ibid, at para 18.

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2. If society has the right to pass judgment, has it also the

right to use the weapon of the law to enforce it?”344

Devlin believed that society depends upon a common morality for its stability

and existence.345 On the basis of this belief, Devlin answered the above

questions in the affirmative, stating that – society has the right to pass

judgments on all matters of morality and also the right to use law to enforce

such morality.346 Devlin reasoned that society would disintegrate if a common

morality was not observed. Therefore, society is justified in taking steps to

preserve its morality as much as it preserves the government.347 Devlin

proposed that the common morality or “collective judgment of the society”

should be ascertained taking into consideration the “reasonable man.”348

According to him, a reasonable man is an ordinary man whose judgment “may

largely be a matter of feeling.”349 He added that if the reasonable man

believed a practice to be immoral, and held this belief honestly and

dispassionately, then for the purpose of law such practice should be

considered immoral.350

344 Sir Patrick Arthur Devlin, “The Enforcement Of Morals” Oxford University Press (1959) at page 9. 345 Supra note 334, at page 662. 346 Animesh Sharma, “Section 377: No Jurisprudential Basis.” Economic and Political Weekly, Vol. 43 (2008) at

pages 12-14. 347 Supra note 344. 348 Ibid. 349 Ibid. 350 Ibid.

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134 Countering Devlin’s theory, Hart argued that society is not held together

by a common morality, for, after all, it is not a hive mind or a monolith,

governed by a singular set of morals and principles.351 Hart rebutted Devlin’s

argument in the following way:

“…apart from one vague reference to ‘history’ showing the

‘the loosening of moral bonds is often the first stage of

disintegration,’ no evidence is produced to show that

deviation from accepted sexual morality, even by adults in

private is something which, like treason, threatens the

existence of society. No reputable historian has maintained

this thesis, and there is indeed much evidence against

it…Lord Devlin’s belief in it [that homosexuality is a cause of

societal disintegration], and his apparent indifference to the

question of evidence, are at points traceable to an

undiscussed assumption. This is that all morality – sexual

morality together with the morality that forbids acts injurious to

others such as killing, stealing, and dishonesty -- forms a

single seamless web, so that those who deviate from any part

are likely to perhaps bound to deviate from the whole. It is of

course clear (and one of the oldest insights of political theory)

that society could not exist without a morality which mirrored

and supplemented the law’s proscription of conduct injurious

to others. But there is again no evidence to support, and

much to refute, the theory that those who deviate from

conventional sexual morality are in other ways hostile to

society.”352

Despite countering Devlin, Hart was not completely opposed to a relationship

between law and morality, and in fact, he emphasised that the two are closely

Oxford University Press (1999) at pages 140-141.

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“The law of every modem state shows at a thousand points

the influence of both the accepted social morality and wider

moral ideals. These influences enter into law either abruptly

and avowedly through legislation, or silently and piecemeal

through the judicial process…The further ways in which law

mirrors morality are myriad, and still insufficiently studied:

statutes may be a mere legal shell and demand by their

express terms to be filled out with the aid of moral principles;

the range of enforceable contracts may be limited by

reference to conceptions of morality and fair- ness; liability for

both civil and criminal wrongs may be adjusted to prevailing

views of moral responsibility.” 353

However, unlike Devlin, Hart did not propose that morality is a necessary

condition for the validity of law.354 Hart argued, in summary, that “law is

morally relevant,” but “not morally conclusive.”355 Hart vehemently disagreed

with Devlin's view that if laws are not based on some collective morality and

enacted to buttress that morality, society will disintegrate.356 Hart draws this

distinction by conceding that certain sexual acts (including homosexual acts)

were considered ‘immoral’ by mainstream Western society but adding that

private sexual acts are an issue of “private morality” over which society has no

interest and the law, no control.357

Hart further expounded his warning about the imposition of majoritarian

morals, propounding that “[l]t is fatally easy to confuse the democratic 353 H.L.A. Hart, Law, Liberty And Morality (1979). 354 William Starr, “Law and Morality in H.L.A. Hart’s Legal Philosophy”, Marquette Law Review, Vol. 67 (1984). 355 Ibid. 356 Supra note 352. 357 Peter August Bittlinger, “Government enforcement of morality: a critical analysis of the Devlin-Hart controversy”,

Doctoral Dissertations 1896-February 2014 (1975) at pages 69-70.

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principle that power should be in the hands of the majority with the utterly

different claim that the majority, with power in their hands, need respect no

limits”358:

“Whatever other arguments there may be for the enforcement

of morality, no one should think even when popular morality is

supported by an “overwhelming majority” or marked by

widespread "intolerance, indignation, and disgust" that loyalty

to democratic principles requires him to admit that its

imposition on a minority is justified.”359

In this way, Hart avoided the specious generalization that the law must be

severely quarantined from morality but still made it clear that laws like Section

377, which impose a majoritarian view of right and wrong upon a minority in

order to protect societal cohesion, are jurisprudentially and democratically

impermissible.

Bentham had a different view on morality and weighed morality against

utilitarian principles. Bentham argued that if the punishment is not utilitarian

(i.e. does not serve as a deterrent, is unprofitable, or unnecessary), the

‘immoral’ action would have to go unpunished.360 He opined that legislators

should not be overly swayed by the society’s morality:

358 Ibid at page 91. 359 Ibid at page 93. 360 Supra note 334.

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“The strength of their prejudice is the measure of the

indulgence which should be granted to it…The legislator

ought to yield to the violence of a current which carries away

everything that obstructs it.

But ought the legislator to be a slave to the fancies of those

whom he governs? No. Between an imprudent opposition and

a servile compliance, there is a middle path, honourable and

safe.”361

In other words, it appears that Bentham argued that the morality of the people

ought not be ignored in creating laws but also must not become their

unchecked fount. And if prejudicial moralities arise from the people, they

should not be unthinkingly and permanently cemented into the law, but rather

addressed and conquered.

John Stuart Mill also made a strong argument against popular morality being

codified into laws. He argued that ‘disgust’ cannot be classified as harm, and

those “who consider as an injury to themselves any conduct which they have

a distaste for”, cannot dictate the actions of others merely because such

actions contradict their own beliefs or views.362 Mill believed that society is not

the right judge when dealing with the question of when to interfere in conduct

361 Ibid. 362 Supra note 325.

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that is purely personal, and that when society does interfere, “the odds are

that it interferes wrongly and in the wrong place.”363

135 Christopher R Leslie points out the dangers of letting morality creep into

law:

“Current generations enshrine their morality by passing laws

and perpetuate their prejudices by handing these laws down

to their children. Soon, statutes take on lives of their own, and

their very existence justifies their premises and consequent

implications. The underlying premises of ancient laws are

rarely discussed, let alone scrutinized.”364

Leslie further adds that “sodomy laws do not merely express societal

disapproval; they go much further by creating a criminal class”365:

“Sodomy laws are kept on the books, even though state

governments do not intend to actively enforce them, because

the laws send a message to society that homosexuality is

unacceptable. Even without actual criminal prosecution, the

laws carry meaning… In short, the primary importance of

sodomy laws today is the government’s message to diminish

the societal status of gay men and lesbians.”366

136 A broad analysis of criminal theory points to the general conclusion that

criminologists and legal philosophers have long been in agreement about one

basic characteristic of crime: that it should injure a third person or the society.

363 Ibid. 364 Christopher. R. Leslie, “Creating criminals: The Injuries Inflicted by “Unenforced” Sodomy Laws”, Harvard Civil

Rights and Civil Liberties Law Review, Vol. 35 (2000). 365 Ibid, at pages 103-181. 366 Ibid.

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An element of larger public interest emerges as the crux of crime. The

conduct which Section 377 criminalises voluntary ‘carnal intercourse against

the order of nature’ with a man or woman, inter alia – pertains solely to acts

between consenting adults. Such conduct is purely private, or as Mill would

call it, “self-regarding,” and is neither capable of causing injury to someone

else nor does it pose a threat to the stability and security of society. Once the

factor of consent is established, the question of such conduct causing any

injury, does not arise.

Although Section 377 prima facie appears to criminalise certain acts or

conduct, it creates a class of criminals, consisting of individuals who engage

in consensual sexual activity. It typecasts LGBTQ individuals as sex-

offenders, categorising their consensual conduct on par with sexual offences

like rape and child molestation. Section 377 not only criminalises acts

(consensual sexual conduct between adults) which should not constitute

crime, but also stigmatises and condemns LGBTQ individuals in society.

137 We are aware of the perils of allowing morality to dictate the terms of

criminal law. If a single, homogenous morality is carved out for a society, it will

undoubtedly have the effect of hegemonizing or ‘othering’ the morality of

minorities. The LGBTQ community has been a victim of the pre-dominant

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(Victorian) morality which prevailed at the time when the Indian Penal Code

was drafted and enacted. Therefore, we are inclined to observe that it is

constitutional morality, and not mainstream views about sexual morality, which

should be the driving factor in determining the validity of Section 377.

L Constitutional morality

138 With the attainment of independence on 15 August 1947, Indians were

finally free to shape their own destiny.367 The destiny was to be shaped

through a written Constitution. Constitutions are scripts in which people

inscribe the text of their professed collective destiny. They write down who

they think they are, what they want to be, and the principles that will guide

their interacting along that path in the future.368 The Constitution of India was

burdened with the challenge of “drawing a curtain on the past”369 of social

inequality and prejudices. Those who led India to freedom established into the

Constitution the ideals and vision of a vibrant equitable society. The framing of

India’s Constitution was a medium of liberating the society by initiating the

process of establishing and promoting the shared values of liberty, equality

367 Jawaharlal Nehru, “Tryst with Destiny”, address to the Constituent Assembly of India, delivered on 14-15 August

1947. 368 Uday S. Mehta, “Constitutionalism”, In The Oxford Companion to Politics in India (Niraja Gopal Jayal and Pratap

Bhanu Mehta eds.), Oxford University Press (2010), at page 15. 369 Ibid, at page 16.

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and fraternity. Throughout history, socio-cultural revolts, anti-discrimination

assertions, movements, literature and leaders have worked at socializing

people away from supremacist thought and towards an egalitarian existence.

The Indian Constitution is an expression of these assertions. It was an attempt

to reverse the socializing of prejudice, discrimination, and power hegemony in

a disjointed society. All citizens were to be free from coercion or restriction by

the state, or by society privately.370 Liberty was no longer to remain the

privilege of the few. The judgment in Puttaswamy highlights the commitment

of the constitution makers, thus:

“The vision of the founding fathers was enriched by the

histories of suffering of those who suffered oppression and a

violation of dignity both here and elsewhere.”

139 Understanding the vision of India at a time when there was little else

older than that vision, is of paramount importance for the reason that though

the people may not have played any role in the actual framing of the

Constitution, the Preamble professes that the Constitution has been adopted

by the people themselves. Constitutional historian Granville Austin has said

that the Indian Constitution is essentially a social document.371 The Indian

Constitution does not provide merely a framework of governance. It embodies

a vision. It is goal-oriented and its purpose is to bring about a social

370 Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University Press (1966), at page 65. 371 Ibid, at page 63.

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transformation in the country. It represents the aspirations of its framers. The

democratic Constitution of India embodies provisions which are value-based.

140 During the framing of the Constitution, it was realized by the members

of the Constituent Assembly that there was a wide gap between constitutional

precept and reality. The draftspersons were clear that the imbibing of new

constitutional values by the population at large would take some time. Society

was not going to change overnight. Dr Ambedkar remarked in the Constituent

Assembly:

“Democracy in India is only a top-dressing on an Indian soil,

which is essentially undemocratic.”

141 The values of a democracy require years of practice, effort, and

experience to make the society work with those values. Similar is the position

of non-discrimination, equality, fraternity and secularism. While the

Constitution guarantees equality before the law and equal protection of the

law, it was felt that the realization of the constitutional vision requires the

existence of a commitment to that vision. Dr Ambedkar described this

commitment to be the presence of constitutional morality among the members

of the society. The conception of constitutional morality is different from that of

public or societal morality. Under a regime of public morality, the conduct of

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society is determined by popular perceptions existent in society. The

continuance of certain symbols, labels, names or body shapes determine the

notions, sentiments and mental attitudes of the people towards individuals and

things.372 Constitutional morality determines the mental attitude towards

individuals and issues by the text and spirit of the Constitution. It requires that

the rights of an individual ought not to be prejudiced by popular notions of

society. It assumes that citizens would respect the vision of the framers of the

Constitution and would conduct themselves in a way which furthers that

vision. Constitutional morality reflects that the ideal of justice is an overriding

factor in the struggle for existence over any other notion of social acceptance.

It builds and protects the foundations of a democracy, without which any

nation will crack under its fissures. For this reason, constitutional morality has

to be imbibed by the citizens consistently and continuously. Society must

always bear in mind what Dr Ambedkar observed before the Constituent

Assembly:

“Constitutional morality is not a natural sentiment. It has to be

cultivated. We must realize that our people have yet to learn

it.”

372 Babasaheb.R. Ambedkar, Annihilation of Caste, Navayana Publishing (2014); See also Martha C. Nussbaum,

“Disgust or Equality? Sexual Orientation and Indian Law”, Journal of Indian Law and Society, Vol. 6 (2010).

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142 In the decision in Government of NCT of Delhi v. Union of India373,

the Constitution Bench of this Court dealt with the constitutive elements of

constitutional morality which govern the working of a democratic system and

representative form of government. Constitutional morality was described as

founded on a “constitutional culture”, which requires the “existence of

sentiments and dedication for realizing a social transformation which the

Indian Constitution seeks to attain.” This Court held thus:

“If the moral values of our .Constitution were not upheld at

every stage, the text of the Constitution may not be enough to

protect its democratic values.”

This Court held that constitutional morality acts a check against the “tyranny of

the majority” and as a “threshold against an upsurge in mob rule.” It was held

to be a balance against popular public morality.

143 Constitutional morality requires in a democracy the assurance of certain

minimum rights, which are essential for free existence to every member of

society. The Preamble to the Constitution recognises these rights as “Liberty

of thought, expression, belief, faith and worship” and “Equality of status and of

opportunity.” Constitutional morality is the guarantee which seeks that all

inequality is eliminated from the social structure and each individual is

373 2018 (8) SCALE 72

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assured of the means for the enforcement of the rights guaranteed.

Constitutional morality leans towards making Indian democracy vibrant by

infusing a spirit of brotherhood amongst a heterogeneous population,

belonging to different classes, races, religions, cultures, castes and sections.

Constitutional morality cannot, however, be nurtured unless, as recognised by

the Preamble, there exists fraternity, which assures and maintains the dignity

of each individual. In his famous, yet undelivered speech titled “Annihilation of

Caste” (which has been later published as a book), Dr Ambedkar described

‘fraternity’ as “primarily a mode of associated living, of conjoint communicated

experience” and “essentially an attitude of respect and reverence towards

fellow men.”374 He remarked:

“An ideal society should be mobile, should be full of channels for conveying a change taking place in one part to other parts. In an ideal society there should be many interests consciously communicated and shared. There should be varied and free points of contact with other modes of association. In other words there must be social endosmosis. This is fraternity, which is only another name for democracy.”

In his last address to the Constituent Assembly, he defined fraternity as “a

sense of common brotherhood of all Indians.” As on the social and economic

plane, Indian society was based on graded inequality, Dr Ambedkar had

warned in clear terms:

“Without fraternity, liberty [and] equality could not become a

natural course of things. It would require a constable to

374 Supra note 372, at para 14.2.

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enforce them… Without fraternity equality and liberty will be

no deeper than coats of paint.”375

144 Constitutional morality requires that all the citizens need to have a

closer look at, understand and imbibe the broad values of the Constitution,

which are based on liberty, equality and fraternity. Constitutional morality is

thus the guiding spirit to achieve the transformation which, above all, the

Constitution seeks to achieve. This acknowledgement carries a necessary

implication: the process through which a society matures and imbibes

constitutional morality is gradual, perhaps interminably so. Hence,

constitutional courts are entrusted with the duty to act as external facilitators

and to be a vigilant safeguard against excesses of state power and

democratic concentration of power. This Court, being the highest

constitutional court, has the responsibility to monitor the preservation of

constitutional morality as an incident of fostering conditions for human dignity

and liberty to flourish. Popular public morality cannot affect the decisions of

this Court. Lord Neuberger (of the UK Supreme Court) has aptly observed:

“[W]e must always remember that Parliament has democratic

legitimacy – but that has disadvantages as well as

advantages. The need to offer oneself for re-election

sometimes makes it hard to make unpopular, but correct,

decisions. At times it can be an advantage to have an

375 Constituent Assembly Debates (25 November 1949).

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173

independent body of people who do not have to worry about

short term popularity.”376

The flourishing of a constitutional order requires not only the institutional

leadership of constitutional courts, but also the responsive participation of the

citizenry.377 Constitutional morality is a pursuit of this responsive participation.

The Supreme Court cannot afford to denude itself of its leadership as an

institution in expounding constitutional values. Any loss of its authority will

imperil democracy itself.

145 The question of morality has been central to the concerns around

homosexuality and the rights of LGBT individuals. Opponents – including

those of the intervenors who launched a diatribe in the course of hearing –

claim that homosexuality is against popular culture and is thus unacceptable in

Indian society. While dealing with the constitutionality of Section 377 of the

Indian Penal Code, the Delhi High Court in Naz Foundation had held:

“Thus popular morality or public disapproval of certain acts is

not a valid justification for restriction of the fundamental rights

under Article 21. Popular morality, as distinct from a

constitutional morality derived from constitutional values, is

based on shifting and subjecting notions of right and wrong. If

there is any type of “morality” that can pass the test of

compelling state interest, it must be “constitutional” morality

376 Lord Neuberger, “UK Supreme Court decisions on private and commercial law: The role of public policy and

public interest”, Centre for Commercial Law Studies Conference (2015). 377 Marc Galanter, “Fifty Years on”, in BN Kirpal et al, Supreme but Not Infallible: Essays in Honour of the Supreme

Court of India, Oxford University Press (2000), at page 57.

PART L

174

and not public morality… In our scheme of things,

constitutional morality must outweigh the argument of public

morality, even if it be the majoritarian view.”

The invocation of constitutional morality must be seen as an extension of Dr

Ambedkar’s formulation of social reform and constitutional transformation.

Highlighting the significance of individual rights in social transformation, he

had observed:

“The assertion by the individual of his own opinions and

beliefs, his own independence and interest—over and against

group standards, group authority, and group interests—is the

beginning of all reform. But whether the reform will continue

depends upon what scope the group affords for such

individual assertion.”378

After the enactment of the Constitution, every individual assertion of rights is

to be governed by the principles of the Constitution, by its text and spirit. The

Constitution assures to every individual the right to lead a dignified life. It

prohibits discrimination within society. It is for this reason that constitutional

morality requires this court to issue a declaration - which we now do - that

LGBT individuals are equal citizens of India, that they cannot be discriminated

against and that they have a right to express themselves through their

intimate choices. In upholding constitutional morality, we affirm that the

protection of the rights of LGBT individuals are not only about guaranteeing a

378 Supra note 373, at para 12.1.

PART L

175

minority their rightful place in the constitutional scheme, but that we equally

speak of the vision of the kind of country we want to live in and of what it

means for the majority.379 The nine-judge Bench of this Court in Puttaswamy

had held in clear terms that discrimination against an individual on the basis of

sexual orientation is deeply offensive to the dignity and self-worth of the

individual. The Bench held:

“The purpose of elevating certain rights to the stature of

guaranteed fundamental rights is to insulate their exercise

from the disdain of majorities, whether legislative or popular.

The guarantee of constitutional rights does not depend upon

their exercise being favourably regarded by majoritarian

opinion. The test of popular acceptance does not furnish a

valid basis to disregard rights which are conferred with the

sanctity of constitutional protection. Discrete and insular

minorities face grave dangers of discrimination for the simple

reason that their views, beliefs or way of life does not accord

with the ‘mainstream’. Yet in a democratic Constitution

founded on the rule of law, their rights are as sacred as those

conferred on other citizens to protect their freedoms and

liberties.”

Constitutional morality will impact upon any law which deprives the LGBT

individuals of their entitlement to a full and equal citizenship. After the

Constitution came into force, no law can be divorced from constitutional

morality. Society cannot dictate the expression of sexuality between

consenting adults. That is a private affair. Constitutional morality will

379 Supra note 41.

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176

supersede any culture or tradition.

The interpretation of a right in a matter of decriminalisation and beyond must

be determined by the norms of the Constitution.

146 LGBT individuals living under the threats of conformity grounded in

cultural morality have been denied a basic human existence. They have been

stereotyped and prejudiced. Constitutional morality requires this Court not to

turn a blind eye to their right to an equal participation of citizenship and an

equal enjoyment of living. Constitutional morality requires that this Court must

act as a counter majoritarian institution which discharges the responsibility of

protecting constitutionally entrenched rights, regardless of what the majority

may believe.380 Constitutional morality must turn into a habit of citizens. By

respecting the dignity of LGBT individuals, this Court is only fulfilling the

foundational promises of our Constitution.

M In summation : transformative constitutionalism

147 This case has required a decision on whether Section 377 of the Penal

Code fulfills constitutional standards in penalising consensual sexual conduct

between adults of the same sex. We hold and declare that in penalising such

380 Ibid.

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177

sexual conduct, the statutory provision violates the constitutional guarantees

of liberty and equality. It denudes members of the LGBT communities of their

constitutional right to lead fulfilling lives. In its application to adults of the

same sex engaged in consensual sexual behaviour, it violates the

constitutional guarantee of the right to life and to the equal protection of law.

148 Sexual orientation is integral to the identity of the members of the LGBT

communities. It is intrinsic to their dignity, inseparable from their autonomy

and at the heart of their privacy. Section 377 is founded on moral notions

which are an anathema to a constitutional order in which liberty must trump

over stereotypes and prevail over the mainstreaming of culture. Our

Constitution, above all, is an essay in the acceptance of diversity. It is founded

on a vision of an inclusive society which accommodates plural ways of life.

149 The impact of Section 377 has travelled far beyond criminalising certain

acts. The presence of the provision on the statute book has reinforced

stereotypes about sexual orientation. It has lent the authority of the state to

the suppression of identities. The fear of persecution has led to the closeting

of same sex relationships. A penal provision has reinforced societal disdain.

PART M

178

150 Sexual and gender based minorities cannot live in fear, if the

Constitution has to have meaning for them on even terms. In its quest for

equality and the equal protection of the law, the Constitution guarantees to

them an equal citizenship. In de-criminalising such conduct, the values of the

Constitution assure to the LGBT community the ability to lead a life of freedom

from fear and to find fulfilment in intimate choices.

151 The choice of a partner, the desire for personal intimacy and the

yearning to find love and fulfilment in human relationships have a universal

appeal, straddling age and time. In protecting consensual intimacies, the

Constitution adopts a simple principle: the state has no business to intrude

into these personal matters. Nor can societal notions of heteronormativity

regulate constitutional liberties based on sexual orientation.

152 This reference to the Constitution Bench is about the validity of Section

377 in its application to consensual sexual conduct between adults of the

same sex. The constitutional principles which we have invoked to determine

the outcome address the origins of the rights claimed and the source of their

protection. In their range and content, those principles address issues broader

than the acts which the statute penalises. Resilient and universal as they are,

these constitutional values must enure with a mark of permanence.

PART M

179

153 Above all, this case has had great deal to say on the dialogue about the

transformative power of the Constitution. In addressing LGBT rights, the

Constitution speaks – as well – to the rest of society. In recognising the rights

of the LGBT community, the Constitution asserts itself as a text for

governance which promotes true equality. It does so by questioning prevailing

notions about the dominance of sexes and genders. In its transformational

role, the Constitution directs our attention to resolving the polarities of sex and

binarities of gender. In dealing with these issues we confront much that

polarises our society. Our ability to survive as a free society will depend upon

whether constitutional values can prevail over the impulses of the time.

154 A hundred and fifty eight years is too long a period for the LGBT

community to suffer the indignities of denial. That it has taken sixty eight years

even after the advent of the Constitution is a sobering reminder of the

unfinished task which lies ahead. It is also a time to invoke the transformative

power of the Constitution.

155 The ability of a society to acknowledge the injustices which it has

perpetuated is a mark of its evolution. In the process of remedying wrongs

under a regime of constitutional remedies, recrimination gives way to

restitution, diatribes pave the way for dialogue and healing replaces the hate

PART M

180

of a community. For those who have been oppressed, justice under a regime

committed to human freedom, has the power to transform lives. In addressing

the causes of oppression and injustice, society transforms itself. The

Constitution has within it the ability to produce a social catharsis. The

importance of this case lies in telling us that reverberations of how we address

social conflict in our times will travel far beyond the narrow alleys in which

they are explored.

156 We hold and declare that:

(i) Section 377 of the Penal Code, in so far as it criminalises consensual

sexual conduct between adults of the same sex, is unconstitutional;

(ii) Members of the LGBT community are entitled, as all other citizens, to

the full range of constitutional rights including the liberties protected by

the Constitution;

(iii) The choice of whom to partner, the ability to find fulfilment in sexual

intimacies and the right not to be subjected to discriminatory behaviour

are intrinsic to the constitutional protection of sexual orientation;

(iv) Members of the LGBT community are entitled to the benefit of an equal

citizenship, without discrimination, and to the equal protection of law;

and

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181

(v) The decision in Koushal stands overruled.

Acknowledgment

Before concluding, I acknowledge the efforts of counsel for the petitioners and

intervenors who appeared in this case – Mr Mukul Rohatgi, Mr Arvind Datar,

Mr Ashok Desai, Mr Anand Grover, Mr Shyam Divan, Mr CU Singh and Mr

Krishnan Venugopal, Senior Counsel; and Mr Saurabh Kirpal, Dr Menaka

Guruswamy and Ms Arundhati Katju, and Ms Jayna Kothari, learned Counsel.

Their erudition has enabled us to absorb, as we reflected and wrote. Mr

Tushar Mehta, learned Additional Solicitor General appeared for the Union of

India. We acknowledge the assistance rendered by the counsel for the

intervenors who opposed the petitioners.

…….....….............................................J [Dr Dhananjaya Y Chandrachud]

New Delhi; September 06, 2018.

1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRL.) NO. 76 OF 2016

Navtej Singh Johar and Others …Petitioners

VERSUS

Union of India Ministry of Law

and Justice Secretary …Respondent

WITH

W.P. (C) NO. 572/2016

W.P. (CRL.) NO. 88/2018

W.P. (CRL.) NO. 100/2018

W.P. (CRL.) NO. 101/2018

W.P. (CRL.) NO. 121/2018

J U D G E M E N T

INDU MALHOTRA, J.

1. I have had the advantage of reading the opinions prepared by

the Hon’ble Chief Justice, and my brother Judges Justice

2

Nariman and Justice Chandrachud. The Judgments have dealt

in-depth with the various issues that are required to be

examined by this Bench, to answer the reference.

2. The present batch of Writ Petitions have been filed to challenge

the constitutional validity of Section 377 of the Indian Penal

Code, 1860 (“IPC”) on the specific ground that it criminalises

consensual sexual intercourse between adult persons

belonging to the same sex in private.

3. The issue as to whether the decision in Suresh Kumar Koushal

& Anr. v. Naz Foundation & Ors.1 requires re-consideration was

referred to the Constitution Bench vide Order dated 8th

January, 2018.

4. The Petitioners have inter alia submitted that sexual

expression and intimacy between consenting adults of the

same sex in private ought to receive protection under Part III of

the Constitution, as sexuality lies at the core of a human

being’s innate identity. Section 377 inasmuch as it

criminalises consensual relationships between same sex

couples is violative of the fundamental rights guaranteed by

Articles 21, 19 and 14, in Part III of the Constitution.

1 (2014) 1 SCC 1

3

The principal contentions raised by the Petitioners during

the course of hearing are:

i. Fundamental rights are available to LGBT persons

regardless of the fact that they constitute a minority.

ii. Section 377 is violative of Article 14 being wholly

arbitrary, vague, and has an unlawful objective.

iii. Section 377 penalises a person on the basis of their

sexual orientation, and is hence discriminatory under

Article 15.

iv. Section 377 violates the right to life and liberty

guaranteed by Article 21 which encompasses all aspects

of the right to live with dignity, the right to privacy, and

the right to autonomy and self-determination with respect

to the most intimate decisions of a human being.

5. During the course of hearing, the Union of India tendered an

Affidavit dated 11th July, 2018 wherein it was submitted that

with respect to the Constitutional validity of Section 377

insofar as it applies to consensual acts of adults in private, the

Union of India would leave the said question to the wisdom of

this Hon’ble Court.

4

However, if the Court is to decide and examine any issue

other than the Constitutional validity of Section 377, or

construe any other right in favour of the LGBT community, the

Union of India would like to file a detailed Affidavit as that

would have far-reaching and wide ramifications, not

contemplated by the reference.

6. LEGISLATIVE BACKGROUND

6.1. The legal treatises Fleta and Britton, which date back to

1290 and 1300 respectively, documented prevailing laws

in England at the time. These treatises made references

to sodomy as a crime.2

6.2. The Buggery Act, 1533 was re-enacted in 1563 during

the regime of Queen Elizabeth I, which penalized acts of

sodomy by hanging.

In 1861, death penalty for buggery was abolished in

England and Wales. However, it remained a crime “not to

be mentioned by Christians”.

6.3. The 1861 Act became the charter for enactments framed

in the colonies of Great Britain.

2 John Boswell, Christianity, Social Tolerance, and Homosexuality: Gay People in Western

Europe from the Beginning of the Christian Era to the Fourteenth Century (University of Chicago Press, 1980), at p. 292

5

6.4. The Marginal Note of Section 377, refers to “Unnatural

Offences”. Section 377 reads as under:

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

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

(emphasis supplied)

6.5. Section 377 does not define “carnal intercourse against

the order of nature”. Even though the provision is

facially neutral, the Petitioners submit that the thrust of

this provision has been to target the LGBT community in

light of the colonial history of anti-sodomy laws, and

penalise what was perceived to be ‘deviant’ or ‘perverse’

sexual behaviour.

7. In the early 20th century, there were many psychiatric theories

which regarded homosexuality as a form of psychopathology or

developmental arrest.3 It was believed that normal

development resulted in a child growing up to be a

heterosexual adult, and that homosexuality was but a state of

3 Report of the Committee on Homosexual Offences and Prostitution, 1957, at para 30.

6

arrested development.4 Homosexuality was treated as a

disorder or mental illness, which was meted out with social

ostracism and revulsion.

8. Towards the end of the 20th century, this notion began to

change, and the earlier theories gave way to a more

enlightened perspective that characterized homosexuality as a

normal and natural variant of human sexuality. Scientific

studies indicated that human sexuality is complex and

inherent.5

Kurt Hiller in his speech delivered at the Second

International Congress for Sexual Reform held at Copenhagen

in 19286, stated:

“Same-sex love is not a mockery of nature, but rather nature at play…As Nietzsche expressed it in Daybreak, Procreation is a frequently occurring accidental result of one way of satisfying the sexual drive – 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’s laws, unlike the laws formulated by the human mind, cannot be violated. The assertion that a specific phenomenon of nature could somehow be “contrary to nature” amounts to pure absurdity…To 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.”

4 Benjamin J. Sadock et al., Kaplan and Sadock’s Comprehensive Textbook of Psychiatry

(9th ed., 2009), at pp. 2060-89 5 Id 6 Great Speeches on Gay Rights (James Daley ed.; Dover Publications, 2010), at pp. 24-30

7

(emphasis supplied)

9. In 1957, the United Kingdom published the Wolfenden

Committee Report (supra) which recognised how the anti-

sodomy laws had created an atmosphere for blackmail,

harassment and violence against homosexuals. An extract of

the findings of this Committee reads as under:

“We have found it hard to decide whether the

blackmailer’s primary weapon is the threat of disclosure to the police, with attendant legal consequences, or the threat of disclosure to the victim’s 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.”

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.

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

8

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.

7 Aengus Carroll And Lucas Ramón Mendos, Ilga Annual State Sponsored Homophobia

Report 2017: A World Survey Of Sexual Orientation Laws: Criminalisation, Protection And Recognition (12th Edition, 2017), at pp. 26-36 8 Id

9

The British Prime Minister Theresa May in her speech at the

Commonwealth Joint Forum on April 17, 2018 urged

Commonwealth Nations to overhaul “outdated” anti-gay laws,

and expressed regret regarding Britain’s role in introducing

such laws.9 The relevant excerpt of her speech is extracted

hereinbelow:

“ 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. 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’s 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. ”

11. Section 377 has, however, remained in its original form in the

IPC to date.

12. JUDICIAL INTERPRETATION

12.1. The essential ingredient required to constitute an offence

under Section 377 is “carnal intercourse against the

order of nature”, which is punishable with life

imprisonment, or imprisonment of either description up

9 Theresa May’s Speech at the Commonwealth Joint Forum Plenary available at https://www.gov.uk/government/speeches/pm-speaks-at-the-commonwealth-joint-forum-

plenary-17-april-2018

10

to ten years. Section 377 applies irrespective of gender,

age, or consent.

12.2. The expression ‘carnal intercourse’ used in Section 377

is distinct from ‘sexual intercourse’ which appears in

Sections 375 and 497 of the IPC. The phrase “carnal

intercourse against the order of nature” is not defined by

Section 377, or in the Code.

12.3. The term ‘carnal’ has been the subject matter of judicial

interpretation in various decisions. According to the New

International Webster’s Comprehensive Dictionary of the

English Language10, ‘carnal’ means:

“1.Pertaining to the fleshly nature or to bodily appetites.

2. Sensual ; sexual. 3.Pertaining to the flesh or to the body; not

spiritual; hence worldly.”

12.4. The courts had earlier interpreted the term “carnal” to

refer to acts which fall outside penile-vaginal

intercourse, and were not for the purposes of

procreation.

10 The New International Webster’s Comprehensive Dictionary of the English Language

(Deluxe Encyclopedic Edition, 1996)

11

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.

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.

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

11 AIR 1925 Sind 286 12 AIR 1934 Lah 261 : 1934 Cri LJ 1096 13 AIR 1968 Guj 252

12

having carnal intercourse per anus, and inserting the

penis in the mouth of a young boy. It was held that:

“…words 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.”

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:

“…The 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.”

(emphasis supplied)

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

& Ors. v. State (supra), to sexual perversity in Fazal Rab

14 (1982) 3 SCC 9

13

v. State of Bihar (supra). These cases referred to non-

consensual sexual intercourse by coercion.

13. HOMOSEXUALITY – NOT AN ABERRATION BUT A VARIATION OF SEXUALITY

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’s sexuality is the result of a complex

interplay between nature and nurture.

Sexual orientation is an innate attribute of one’s

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 et al. v. Texas15

relied upon the Brief of the Amici Curiae16 which stated:

“Heterosexual 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

15 539 U.S. 558 (2003) 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 et al. v. Texas 539 U.S. 558(2003), available at http://www.apa.org/about/offices/ogc/amicus/lawrence.pdf

14

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.”

(emphasis supplied)

13.2. An article by K.K. Gulia and H.N. Mallick titled

“Homosexuality: A Dilemma in Discourse”17 states:

“In 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’s 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… …In 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)…This empirical study of sexual behavior among American adults revealed that a significant

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

15

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…”

(emphasis supplied)

13.3. The American Psychiatric Association in December 1973

removed ‘homosexuality’ from the Diagnostic and

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.18

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

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

16

13.5. In India, the Indian Psychiatric Society has also opined

that sexual orientation is not a psychiatric disorder.20 It

was noted that:

“…there 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.”

13.6. It is relevant to note that under Section 3 of the Mental

Healthcare Act, 2017, determination of what constitutes

a “mental illness” has to be done in accordance with

nationally and internationally accepted medical

standards, including the latest edition of the

International Classification of Disease of the World

Health Organisation.

14. SECTION 377 IF APPLIED TO CONSENTING ADULTS IS VIOLATIVE OF

ARTICLE 14

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

20 Indian Psychiatry Society: "Position statement on Homosexuality"

IPS/Statement/02/07/2018 available at http://www.indianpsychiatricsociety.org/upload_images/imp_download_files/15311250

54_1.pdf

17

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.

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.

14.2. The twin-test of classification under Article 14 provides

that:

(i) there should be a reasonable classification based

on intelligible differentia; and,

(ii) this classification should have a rational nexus

with the objective sought to be achieved.

14.3. Section 377 operates in a vastly different manner for two

classes of persons based on their “sexual orientation” 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.

18

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 ‘carnal’, 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 &

Ors.21 this Court granted equal protection of laws to

transgender persons. There is therefore no justification

to deny the same to LGBT persons.

14.5. A person’s 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.

21 (2014) 5 SCC 438

19

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 ‘perverse’, ‘deviant’, or ‘unnatural’.

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.

While Section 375 permits consensual penetrative acts

(the definition of ‘penetration’ includes oral and anal

sex), Section 377 makes the same acts of penetration

punishable irrespective of consent. This creates a

dichotomy in the law.

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

20

consensual nature, between adults in private, cannot be

treated as “carnal intercourse against the order of

nature”.

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):

“101…Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary.”

Section 377 insofar as it criminalises consensual

sexual acts between adults in private, is not based on

22 (2017) 9 SCC 1

21

any sound or rational principle, since the basis of

criminalisation is the “sexual orientation” of a person,

over which one has “little or no choice”.

Further, the phrase “carnal intercourse against the

order of nature” 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.

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.

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.

15.1. The term ‘sex’, as it occurs in Article 15 has been given

an expansive interpretation by this Court in National

Legal Services Authority v. Union of India & Ors. (supra)

22

to include sexual identity. Paragraph 66 of the judgment

reads thus:

“66…Both 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’s 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.” (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 “sexual identity and character”.

The J.S. Verma Committee23 had recommended that

‘sex’ under Article 15 must include ‘sexual orientation’:

“65. 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 ‘homosexuality’ from being a mental disorder and now it is understood as a

23 Report of the Committee on Amendments to Criminal Law (2013)

23

triangular development occasioned by evolution, partial conditioning and neurological underpinnings owing to genetic reasons. Further, we are clear that Article 15(c) of the constitution of India uses the word “sex” as including sexual orientation.”

The prohibition against discrimination under Article 15

on the ground of ‘sex’ should therefore encompass

instances where such discrimination takes place on the

basis of one’s 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 ‘sex’ in Article 2, Paragraph 1

and Article 26 of the International Covenant on Civil and

Political Rights would include ‘sexual orientation’.

15.2. In an article titled “Reading Swaraj into Article 15: A New

Deal For All Minorities”25, Tarunabh Khaitan notes that

the underlying commonality between the grounds

specified in Article 15 is based on the ideas of ‘immutable

status’ and ‘fundamental choice’. He refers to the

24 Communication No. 488/1992, U.N. Doc.CCPR/C/50/D/488/1992 (1994) 25 Tarunabh Khaitan, Reading Swaraj into Article 15: A New Deal For All Minorities, 2 NUJS

Law Review (2009), at p. 419

24

following quote by John Gardener to provide context to

the aforesaid commonality:

“Discrimination 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.”26

(emphasis supplied)

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’s personal autonomy.

26 John Gardner, On the Ground of Her Sex (uality), 18(2) Oxford Journal of Legal Studies

(1998), at p. 167 27 Supra note 25

25

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.

Section 15(1), of the Canadian Charter like Article 15

of our Constitution, does not include “sexual orientation”

as a prohibited ground of discrimination.

Notwithstanding that, the Canadian Supreme Court in

the aforesaid decisions has held that sexual orientation

is a “ground analogous” to the other grounds specified

under Section 15(1). Discrimination based on any of

these grounds has adverse impact on an individual’s

personal autonomy, and is undermining of his

personality.

28 [1995] SCC 98 29 [1998] SCC 816 30 “15. Equality before and under law and equal protection and benefit of law

(1) Every individual is equal before and under the law and has the right to the 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…”

Article 15(1), Canadian Charter of Rights and Freedoms.

26

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.

16. SECTION 377 VIOLATES THE RIGHT TO LIFE AND LIBERTY GUARANTEED

BY ARTICLE 21

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.

16.1. RIGHT TO LIVE WITH DIGNITY

This Court has expansively interpreted the terms “life”

and “personal liberty” to recognise a panoply of rights

31 Maneka Gandhi v. Union of India & Anr., (1978) 1 SCC 248, at paragraph 48

27

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 “the most precious

human right and forms the ark of all other rights” as held

in Francis Coralie Mullin v. Administrator, Union Territory

of Delhi & 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:

“8…We 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…it 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.”

(emphasis supplied)

32 (1981) 1 SCC 608 33 (1981) 1 SCC 608 at paragraph 7

28

This was re-affirmed by the Constitution bench

decision in K.S. Puttaswamy & Anr. v. Union of India &

Ors.34 and Common Cause (A Registered Society) v. Union

of India & Anr.35

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

In National Legal Services Authority v. Union of India &

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.’s view is

extracted hereinbelow:

“22. …Each person’s 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…”

(emphasis supplied)

34 (2017) 10 SCC 1 35 (2018) 5 SCC 1 at paragraphs 156, 437, 438, 488 & 516 36 Common Cause (A Registered Society) v. Union of India and Anr., (2018) 5 SCC 1, at

paragraphs 437 and 438

29

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

important attribute of one’s 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.

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.37 is also instructive in this regard:

“While 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

37 [1998] ZACC 15

30

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.”

(emphasis supplied)

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 “unapprehended

felons”.38

Section 377 criminalises the entire class of LGBT

persons since sexual intercourse between such persons,

is considered to be carnal and “against the order of

nature”. Section 377 prohibits LGBT persons from

engaging in intimate sexual relations in private.

38 According to Professor Edwin Cameron, LGBT persons are reduced to the status of

“unapprehended felons” 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 p. 450

31

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.

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:

“Only 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.”

(emphasis supplied)

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:

39 478 U.S. 186 (1986)

40 413 U.S. 49 (1973)

32

“To 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… …It 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…This 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... …The 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

33

furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.”

(emphasis supplied)

Thus, Section 377 prevents LGBT persons from leading

a dignified life as guaranteed by Article 21.

16.2. RIGHT TO PRIVACY

The right to privacy has now been recognised to be an

intrinsic part of the right to life and personal liberty

under Article 21.41

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 21.42

The right to privacy is broad-based and pervasive

under our Constitutional scheme, and encompasses

decisional autonomy, to cover intimate/personal

41 K.S. Puttaswamy & Anr. v. Union of India & Ors., (2017) 10 SCC 1 42 K.S. Puttaswamy & Anr. v. Union of India & Ors., (2017) 10 SCC 1, at paragraphs 144,

145, 479 and 647

34

decisions and preserves the sanctity of the private sphere

of an individual.43

The right to privacy is not simply the “right to be let

alone”, and has travelled far beyond that initial concept.

It now incorporates the ideas of spatial privacy, and

decisional privacy or privacy of choice.44 It extends to the

right to make fundamental personal choices, including

those relating to intimate sexual conduct, without

unwarranted State interference.

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’s existence.

43 K.S. Puttaswamy & Anr. v. Union of India & Ors., (2017) 10 SCC 1, at paragraph 248,

250, 371 and 403 44 K.S. Puttaswamy & Anr. v. Union of India & Ors., (2017) 10 SCC 1, at paragraphs 248,

249, 371 and 521

35

The Constitutional Court of South Africa in National

Coalition for Gay and Lesbian Equality & Anr. v. Minister

of Justice & Ors. (supra) noted as under:

“Privacy 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.”

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.45

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.

45 K.S. Puttaswamy & Anr. v. Union of India & Ors., (2017) 10 SCC 1, at paragraphs 325,

638 and 645

36

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.

16.3. RIGHT TO HEALTH

The right to health, and access to healthcare are also

crucial facets of the right to life guaranteed under Article

21 of the Constitution.46

LGBT persons being a sexual minority have been

subjected to societal prejudice, discrimination and

46 Common Cause (A Registered Society) v. Union of India & Anr., (2018) 5 SCC 1, at

paragraph 304; C.E.S.C. Limited & Ors. v. Subhash Chandra Bose & Ors., (1992) 1 SCC

441, at paragraph 32; Union of India v. Mool Chand Khairati Ram Trust, (2018) SCC OnLine SC 675, at paragraph 66; and, Centre for Public Interest Litigation v. Union of India & Ors., (2013) 16 SCC 279, at paragraph 25

37

violence on account of their sexual orientation. Since

Section 377 criminalises “carnal intercourse against the

order of nature” 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.47

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 ‘exposed’ and the resultant

prosecution.48 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

47 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-economic- cost-of-stigma-and-the-exclusion-of-LGBT-people-a-case-study-of-India (Last accessed

on August 11, 2018) 48 Govindasamy Agoramoorthy and Minna J Hsu, India’s homosexual discrimination and

health consequences, 41(4) Rev Saude Publica (2007), at pp. 567-660 available at http://www.scielo.br/pdf/rsp/v41n4/6380.pdf

38

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):

“8.5 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.”

(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:

39

“III. Texas Penal Code S. 21.06 reinforces prejudice, discrimination, and violence against gay men and lesbians…Although 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….”49

(emphasis supplied)

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 “sexual

orientation”.

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 ‘sexual

orientation’.

49 Supra note 16, at page 3

40

17. SECTION 377 VIOLATES THE RIGHT TO FREEDOM OF EXPRESSION OF

LGBT PERSONS

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 377.50

Owing to the fear of harassment from law enforcement

agencies and prosecution, LGBT persons tend to stay ‘in

the closet’. 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

50 Lawrence et al. v. Texas, 539 U.S. 558 (2003); and, National Coalition for Gay and Lesbian

Equality & Anr. v. Minister of Justice & Ors., [1998] ZACC 15

41

existence. It also has an impact on their mental well-

being.

17.2. In National Legal Services Authority v. Union of India &

Ors. (supra), this Court noted that gender identity is an

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.51

The Court also noted that like gender identity, sexual

orientation is integral to one’s personality, and is a basic

aspect of self-determination, dignity and freedom.52 The

proposition that sexual orientation is integral to one’s

personality and identity was affirmed by the Constitution

Bench in K.S. Puttaswamy & Anr. v. Union of India &

Ors.53

In this regard, it is instructive to refer to the decision

of this Court in S. Khushboo v. Kanniammal & Anr.54

wherein the following observation was made in the

51 (2014) 5 SCC 438, at paragraphs 69-72 52 (2014) 5 SCC 438, at paragraph 22 53 (2017) 10 SCC 1, at paragraphs 144, 145, 647 54 (2010) 5 SCC 600

42

context of the phrase “decency and morality” as it occurs

in Article 19(2):

“45. Even though the constitutional freedom of speech and expression is not absolute and can be subjected to reasonable restrictions on grounds such as “decency and morality” 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…Notions 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.”

(emphasis supplied)

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.

18. SURESH KUMAR KOUSHAL OVERRULED

The two-Judge bench of this Court in Suresh Kumar

Koushal & Anr. v. Naz Foundation & Ors. (supra) over-ruled the

43

decision of the Delhi High Court in Naz Foundation v.

Government of NCT of Delhi & Ors.55 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 v. Government of

NCT of Delhi & Ors. (supra) were that:

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.

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

55 (2009) 111 DRJ 1 (DB)

44

classification. Section 377 merely defines a

particular offence, and prescribes a punishment for

the same.

ii. LGBT persons constitute a “miniscule fraction” of

the country’s 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.

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.

iv. After noting that Section 377 was intra vires, this

Court observed that the legislature was free to

repeal or amend Section 377.

19. The fallacy in the Judgment of Suresh Kumar Koushal & Anr.

v. Naz Foundation & Ors. (supra) is that:

i. The offence of “carnal intercourse against the

order of nature” has not been defined in Section

45

377. It is too wide, and open-ended, and would

take within its sweep, and criminalise even

sexual acts of consenting adults in private.

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:

“ 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….”

(emphasis supplied)

56 (1982) 1 SCC 271

46

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.

Furthermore, consensual relationships

between adults cannot be classified along with

offences of bestiality, sodomy and non-

consensual relationships.

Sexual orientation is immutable, since it is

an innate feature of one’s 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.

Section 377 insofar as it criminalises

voluntary sexual relations between LGBT

persons of the same sex in private,

47

discriminates against them on the basis of their

“sexual orientation” which is violative of their

fundamental rights guaranteed by Articles 14,

19, and 21 of the Constitution.

ii. The mere fact that the LGBT persons constitute

a “miniscule fraction” of the country’s 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.

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

48

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:

“77. We need to remember that the founding fathers of our Constitution never thought that the Constitution is ‘mirror of perverse social discrimination’. 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. ”

(emphasis supplied)

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.

The criminalisation of “carnal intercourse

against the order of nature” has the effect of

criminalising the entire class of LGBT persons

49

since any kind of sexual intercourse in the case

of such persons would be considered to be

against the “order of nature”, as per the existing

interpretation.

iv. The conclusion in case of Suresh Kumar Koushal

& Anr. v. Naz Foundation & Ors. (supra) 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

50

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.

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

21. The LGBT persons deserve to live a life unshackled from

the shadow of being ‘unapprehended felons’.

21. CONCLUSION

i. In view of the aforesaid findings, it is declared

that insofar as Section 377 criminalises

51

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.

It is, however, clarified that such consent must

be free consent, which is completely voluntary

in nature, and devoid of any duress or coercion.

ii. The declaration of the aforesaid reading down of

Section 377 shall not, however, lead to the re-

opening of any concluded prosecutions, but can

certainly be relied upon in all pending matters

whether they are at the trial, appellate, or

revisional stages.

iii. The provisions of Section 377 will continue to

govern non-consensual sexual acts against

adults, all acts of carnal intercouse against

minors, and acts of beastiality.

iv. The judgment in Suresh Kumar Koushal & Anr.

v. Naz Foundation & Ors.57 is hereby overruled

for the reasons stated in paragraph 19.

57 (2014) 1 SCC 1

52

The Reference is answered accordingly.

In view of the above findings, the Writ

Petitions are allowed.

……………..……..…………………J. (Indu Malhotra)

New Delhi; September 6, 2018.

NAVTEJ SINGH JOHAR Vs UNION OF INDIA MINISTRY OF LAW AND JUSTICE SECRETARY.

NAVTEJ SINGH JOHAR Vs UNION OF INDIA MINISTRY OF LAW AND JUSTICE SECRETARY.

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