1
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
2
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
3
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
4
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.
5
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
6
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
7
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 postoperative
transsexual persons and also persons who do not choose
to undergo or do not have access to operation and also include
persons who cannot undergo successful operation. Elaborating
further, he said:-
―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,
8
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
9
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
10
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
11
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
12
08.01.2018, the Court referred to a two-Judge Bench decision
rendered in Suresh Koushal (supra) wherein this Court had
overturned the decision rendered by the Division Bench of the Delhi
High Court in Naz Foundation (supra). It was submitted by Mr.
Arvind Datar, learned senior counsel appearing for the writ
petitioners, on the said occasion that the two-Judge Bench in Suresh
Koushal (supra) had been guided by social morality leaning on
majoritarian perception whereas the issue, in actuality, needed to be
debated upon in the backdrop of constitutional morality. A contention
was also advanced that the interpretation placed in Suresh Kumar
(supra) upon Article 21 of the Constitution is extremely narrow and, in
fact, the Court has been basically guided by Article 14 of the
Constitution. Reliance was placed on the pronouncement in NALSA
case wherein this Court had emphasized on ―gender identity and
sexual orientation‖. Attention of this Court was also invited to a nineJudge
Bench decision in K.S. Puttaswamy and another v. Union of
India and others 4 wherein the majority, speaking through
Chandrachud, J., has opined that sexual orientation is an essential
component of rights guaranteed under the Constitution which are not
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)
14
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
15
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.
16
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
17
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.
18
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
19
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.
20
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
21
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
22
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
23
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 interreligious
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 selfidentified
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 selfrestraint
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
others24 wherein it was observed that the attention of the Court
should be on what has been said and also on what has not been said
while interpreting the statute and that it would be wrong and
dangerous for the Court to proceed by substituting some other words
in a statute since it is well settled that a statute enacting an offence
or imposing a penalty has to be strictly construed.
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 nonvaginal
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 Orissa
33, 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
61
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
63
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. Holland39
, 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.
40Posner, 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, socialscience
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
67
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
47Albertyn & 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
81
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
82
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 sociocultural
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
571999 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. S
58 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.
90
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.
91
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
94
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 lefthanded,
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
97
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.‖
98
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 others70 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
69Communication 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 seachange
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 nonmajoritarian
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 nineJudge
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
115
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,
117
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
118
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.
120
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)
78830 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 wellknown
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
125
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
822001 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
83 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:-
130
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
131
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
132
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
133
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.
134
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.
135
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, 2nd 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,
137
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
139
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
142
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
143
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
144
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:-
86AIR 2007 SC 71 : (2006) 8 SCC 212
87AIR 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
147
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
148
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
149
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
89AIR 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.‖
92Semayne’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
153
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.
154
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
155
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
156
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 samesex
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 wideranging
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 nonvaginal
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 longstanding
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 counterarguments
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 preconstitution
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
42
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
43
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 mindset.
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:-
44
“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.
XXX
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.
45
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
46
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
47
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.
48
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.”
49
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
50
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
51
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
52
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:-
53
“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 nonadministration
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
54
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 selfdetermination
and individual autonomy.
55
168. John Rawls says that the liberal concept of
autonomy focuses on choice and likewise, selfdetermination
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 noninterference
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.”
XXX
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
56
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
57
is ultimately a step towards ensuring that life does
not despair of dignity as it ebbs away.
XXX
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
58
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.
XXX
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
59
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
60
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
61
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;”
62
68. This definition throws to the winds all earlier
misconceptions of mental illness including the fact that samesex
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
63
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
64
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.”
65
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
66
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:-
67
“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 decriminalization
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
68
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
69
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
70
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
71
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
72
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
73
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
74
- 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
75
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.
76
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).
77
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.”
78
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.
79
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:-
80
“Preamble
WE, THE INTERNATIONAL PANEL OF EXPERTS IN
INTERNATIONAL HUMAN RIGHTS LAW AND ON SEXUAL
ORIENTATION AND GENDER IDENTITY,
XX
XX
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
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
81
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 nondiscrimination.—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 nondiscrimination
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
82
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 selfdefined
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,
83
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 selfdefined
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.
84
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.
XXX
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
85
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
86
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;
87
(e) review and amend any health funding provisions
or programmes, including those of a developmentassistance
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 nondiscriminatory
in respect of issues of sexual
orientation and gender identity and that the
personnel recruitment and promotion policies of
88
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-
89
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
90
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 commonsense.
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 nonprocreative
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 (nonecclesiastical)
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).
PART C
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).
PART C
23
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 preIndependence
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).
PART C
24
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: SameSex
Love and Eroticism in Indian Culture and Society (Ruth Vanita ed.), Routledge (2002).
PART C
25
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).
PART C
26
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;
PART C
27
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).
PART D
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.
PART D
29
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.
PART D
30
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
PART D
31
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).
PART D
32
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 blackhaired
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).
PART D
33
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.
PART D
34
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.
PART D
35
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.
PART D
36
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.
PART D
37
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 nonprocreative
‘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
PART D
38
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).
PART D
39
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).
PART D
40
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.
PART D
41
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).
PART E
42
in India. The order of nature that Section 377 speaks of is not just about nonprocreative
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 selfworth
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.
PART E
43
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.
PART E
44
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.
PART E
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
PART E
46
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
PART E
47
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
PART E
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
PART E
49
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
PART E
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)
PART E
51
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
PART E
52
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
PART E
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.
PART E
54
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)
PART E
55
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
PART E
56
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
PART E
57
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.
PART E
58
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.
PART E
59
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.
PART E
60
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).
PART E
61
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 womanidentified.
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).
PART E
62
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.
PART E
63
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.
PART E
64
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.
PART E
65
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.
PART E
66
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.
PART E
67
(“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
PART F
68
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 selfrespect
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:
PART F
69
“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.
PART F
70
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.
PART F
71
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.
PART F
72
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 nonmajoritarian
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.
PART F
73
‘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.
PART F
74
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.
PART F
75
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.
PART F
76
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.
PART F
77
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.
PART F
78
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
PART F
79
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).
PART F
80
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.
PART F
81
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.
PART F
82
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.
PART F
83
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
PART F
84
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.
PART F
85
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.
PART G
86
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.
PART G
87
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 wellbeing
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
PART G
88
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
PART G
89
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
PART G
90
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
PART G
91
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).
PART G
92
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.
PART G
93
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.
PART G
94
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).
PART G
95
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).
PART G
96
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.
PART G
97
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).
PART G
98
“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.
PART G
99
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).
PART G
100
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).
PART G
101
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.
PART G
102
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).
PART G
103
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.
PART G
104
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.
PART G
105
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 samesex
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).
PART G
106
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 illtreatment,
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.
PART G
107
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
PART G
108
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).
PART G
109
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).
PART G
110
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 reexamine
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.
PART H
111
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).
PART H
112
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.
PART I
113
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 socalled
“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).
PART I
114
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.
PART I
115
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.
PART I
116
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.
PART I
117
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.
PART J
118
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.
PART J
119
“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.
PART J
120
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).
PART J
121
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).
PART J
122
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.
PART J
123
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
PART J
124
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.
PART J
125
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).
PART J
126
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).
PART J
127
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.
PART J
128
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 nonconsensual
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.
PART J
129
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 selfrespect
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.
PART J
130
“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.
PART J
131
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.
PART J
132
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.
PART J
133
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.
PART J
134
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.
PART J
135
“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.
PART J
136
“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.
PART J
137
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.
PART J
138
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.
PART J
139
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).
PART J
140
“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.
PART J
141
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 AntiDiscrimination
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.
PART J
142
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;
PART J
143
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
PART J
144
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.
PART K
145
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
PART K
146
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.
PART K
147
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).
PART K
148
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.
PART K
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.
PART K
150
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 multidimensional
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.
PART K
151
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.
PART K
152
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.
PART K
153
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.
PART K
154
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).
PART K
155
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 selfregarding
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.
PART K
156
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).
PART K
157
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.
PART K
158
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.
PART K
159
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.
PART K
160
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
related:
351 Supra note 346, at pages 12-14.
352 Hart, H. L. A, “The Changing Sense of Morality” In Political Thought (Michael Rosen and Jonathan Wolff eds.),
Oxford University Press (1999) at pages 140-141.
PART K
161
“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.
PART K
162
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.
PART K
163
“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.
PART K
164
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.
PART K
165
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 sexoffenders,
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
PART L
166
(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.
PART L
167
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.
PART L
168
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
PART L
169
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).
PART L
170
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
PART L
171
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.
PART L
172
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).
PART L
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.
PART M
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.
PART M
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
PART M
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 antisodomy
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-forumplenary-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 nonconsensual
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 selfimage,
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-economiccost-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 wellbeing.
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 nonconsensual
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 reopening
of any concluded prosecutions, but can
certainly be relied upon in all pending matters
whether they are at the trial, appellate, or
revisional stages.
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.
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
2
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
3
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
4
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.
5
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
6
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
7
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 postoperative
transsexual persons and also persons who do not choose
to undergo or do not have access to operation and also include
persons who cannot undergo successful operation. Elaborating
further, he said:-
―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,
8
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
9
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
10
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
11
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
12
08.01.2018, the Court referred to a two-Judge Bench decision
rendered in Suresh Koushal (supra) wherein this Court had
overturned the decision rendered by the Division Bench of the Delhi
High Court in Naz Foundation (supra). It was submitted by Mr.
Arvind Datar, learned senior counsel appearing for the writ
petitioners, on the said occasion that the two-Judge Bench in Suresh
Koushal (supra) had been guided by social morality leaning on
majoritarian perception whereas the issue, in actuality, needed to be
debated upon in the backdrop of constitutional morality. A contention
was also advanced that the interpretation placed in Suresh Kumar
(supra) upon Article 21 of the Constitution is extremely narrow and, in
fact, the Court has been basically guided by Article 14 of the
Constitution. Reliance was placed on the pronouncement in NALSA
case wherein this Court had emphasized on ―gender identity and
sexual orientation‖. Attention of this Court was also invited to a nineJudge
Bench decision in K.S. Puttaswamy and another v. Union of
India and others 4 wherein the majority, speaking through
Chandrachud, J., has opined that sexual orientation is an essential
component of rights guaranteed under the Constitution which are not
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)
14
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
15
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.
16
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
17
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.
18
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
19
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.
20
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
21
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
22
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
23
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 interreligious
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 selfidentified
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 selfrestraint
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
others24 wherein it was observed that the attention of the Court
should be on what has been said and also on what has not been said
while interpreting the statute and that it would be wrong and
dangerous for the Court to proceed by substituting some other words
in a statute since it is well settled that a statute enacting an offence
or imposing a penalty has to be strictly construed.
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 nonvaginal
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 Orissa
33, 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
61
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
63
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. Holland39
, 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.
40Posner, 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, socialscience
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
67
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
47Albertyn & 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
81
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
82
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 sociocultural
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
571999 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. S
58 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.
90
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.
91
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
94
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 lefthanded,
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
97
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.‖
98
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 others70 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
69Communication 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 seachange
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 nonmajoritarian
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 nineJudge
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
115
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,
117
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
118
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.
120
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)
78830 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 wellknown
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
125
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
822001 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
83 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:-
130
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
131
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
132
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
133
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.
134
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.
135
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, 2nd 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,
137
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
139
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
142
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
143
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
144
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:-
86AIR 2007 SC 71 : (2006) 8 SCC 212
87AIR 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
147
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
148
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
149
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
89AIR 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.‖
92Semayne’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
153
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.
154
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
155
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
156
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 samesex
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 wideranging
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 nonvaginal
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 longstanding
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 counterarguments
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 preconstitution
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
42
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
43
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 mindset.
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:-
44
“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.
XXX
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.
45
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
46
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
47
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.
48
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.”
49
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
50
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
51
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
52
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:-
53
“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 nonadministration
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
54
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 selfdetermination
and individual autonomy.
55
168. John Rawls says that the liberal concept of
autonomy focuses on choice and likewise, selfdetermination
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 noninterference
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.”
XXX
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
56
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
57
is ultimately a step towards ensuring that life does
not despair of dignity as it ebbs away.
XXX
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
58
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.
XXX
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
59
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
60
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
61
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;”
62
68. This definition throws to the winds all earlier
misconceptions of mental illness including the fact that samesex
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
63
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
64
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.”
65
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
66
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:-
67
“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 decriminalization
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
68
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
69
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
70
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
71
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
72
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
73
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
74
- 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
75
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.
76
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).
77
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.”
78
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.
79
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:-
80
“Preamble
WE, THE INTERNATIONAL PANEL OF EXPERTS IN
INTERNATIONAL HUMAN RIGHTS LAW AND ON SEXUAL
ORIENTATION AND GENDER IDENTITY,
XX
XX
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
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
81
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 nondiscrimination.—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 nondiscrimination
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
82
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 selfdefined
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,
83
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 selfdefined
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.
84
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.
XXX
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
85
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
86
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;
87
(e) review and amend any health funding provisions
or programmes, including those of a developmentassistance
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 nondiscriminatory
in respect of issues of sexual
orientation and gender identity and that the
personnel recruitment and promotion policies of
88
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-
89
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
90
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 commonsense.
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 nonprocreative
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 (nonecclesiastical)
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).
PART C
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).
PART C
23
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 preIndependence
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).
PART C
24
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: SameSex
Love and Eroticism in Indian Culture and Society (Ruth Vanita ed.), Routledge (2002).
PART C
25
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).
PART C
26
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;
PART C
27
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).
PART D
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.
PART D
29
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.
PART D
30
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
PART D
31
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).
PART D
32
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 blackhaired
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).
PART D
33
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.
PART D
34
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.
PART D
35
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.
PART D
36
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.
PART D
37
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 nonprocreative
‘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
PART D
38
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).
PART D
39
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).
PART D
40
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.
PART D
41
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).
PART E
42
in India. The order of nature that Section 377 speaks of is not just about nonprocreative
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 selfworth
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.
PART E
43
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.
PART E
44
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.
PART E
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
PART E
46
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
PART E
47
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
PART E
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
PART E
49
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
PART E
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)
PART E
51
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
PART E
52
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
PART E
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.
PART E
54
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)
PART E
55
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
PART E
56
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
PART E
57
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.
PART E
58
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.
PART E
59
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.
PART E
60
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).
PART E
61
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 womanidentified.
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).
PART E
62
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.
PART E
63
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.
PART E
64
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.
PART E
65
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.
PART E
66
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.
PART E
67
(“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
PART F
68
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 selfrespect
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:
PART F
69
“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.
PART F
70
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.
PART F
71
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.
PART F
72
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 nonmajoritarian
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.
PART F
73
‘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.
PART F
74
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.
PART F
75
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.
PART F
76
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.
PART F
77
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.
PART F
78
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
PART F
79
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).
PART F
80
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.
PART F
81
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.
PART F
82
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.
PART F
83
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
PART F
84
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.
PART F
85
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.
PART G
86
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.
PART G
87
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 wellbeing
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
PART G
88
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
PART G
89
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
PART G
90
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
PART G
91
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).
PART G
92
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.
PART G
93
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.
PART G
94
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).
PART G
95
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).
PART G
96
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.
PART G
97
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).
PART G
98
“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.
PART G
99
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).
PART G
100
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).
PART G
101
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.
PART G
102
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).
PART G
103
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.
PART G
104
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.
PART G
105
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 samesex
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).
PART G
106
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 illtreatment,
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.
PART G
107
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
PART G
108
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).
PART G
109
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).
PART G
110
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 reexamine
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.
PART H
111
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).
PART H
112
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.
PART I
113
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 socalled
“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).
PART I
114
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.
PART I
115
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.
PART I
116
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.
PART I
117
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.
PART J
118
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.
PART J
119
“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.
PART J
120
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).
PART J
121
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).
PART J
122
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.
PART J
123
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
PART J
124
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.
PART J
125
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).
PART J
126
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).
PART J
127
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.
PART J
128
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 nonconsensual
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.
PART J
129
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 selfrespect
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.
PART J
130
“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.
PART J
131
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.
PART J
132
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.
PART J
133
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.
PART J
134
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.
PART J
135
“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.
PART J
136
“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.
PART J
137
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.
PART J
138
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.
PART J
139
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).
PART J
140
“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.
PART J
141
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 AntiDiscrimination
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.
PART J
142
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;
PART J
143
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
PART J
144
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.
PART K
145
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
PART K
146
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.
PART K
147
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).
PART K
148
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.
PART K
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.
PART K
150
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 multidimensional
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.
PART K
151
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.
PART K
152
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.
PART K
153
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.
PART K
154
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).
PART K
155
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 selfregarding
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.
PART K
156
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).
PART K
157
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.
PART K
158
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.
PART K
159
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.
PART K
160
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
related:
351 Supra note 346, at pages 12-14.
352 Hart, H. L. A, “The Changing Sense of Morality” In Political Thought (Michael Rosen and Jonathan Wolff eds.),
Oxford University Press (1999) at pages 140-141.
PART K
161
“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.
PART K
162
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.
PART K
163
“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.
PART K
164
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.
PART K
165
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 sexoffenders,
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
PART L
166
(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.
PART L
167
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.
PART L
168
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
PART L
169
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).
PART L
170
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
PART L
171
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.
PART L
172
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).
PART L
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.
PART M
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.
PART M
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
PART M
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 antisodomy
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-forumplenary-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 nonconsensual
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 selfimage,
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-economiccost-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 wellbeing.
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 nonconsensual
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 reopening
of any concluded prosecutions, but can
certainly be relied upon in all pending matters
whether they are at the trial, appellate, or
revisional stages.
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.
