2018 (9) TMI 1794 - SC - Indian Laws

Constitutional Validity of Section 377 IPC - homosexuality - restrictions placed by the section on right to sexuality, right to sexual autonomy and right to choice of a sexual partner - Held that - It is declared that insofar as Section 377 criminalises consensual sexual acts of adults (i.e. persons above the age of 18 years who are competent to consent) in private, is violative of Articles 14, 15, 19, and 21 of the Constitution - however, such consent must be free consent, which is completely voluntary in nature, and devoid of any duress or coercion. The declaration of the aforesaid reading down of Section 377 shall not, however, lead to the re-opening of any concluded prosecutions, but can certainly be relied upon in all pending matters whether they are at the trial, appellate, or revisional stages. 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.

Issues Involved:
1. Criminalization of consensual homosexual acts.
2. Violation of Fundamental Rights under Articles 14, 15, 19, and 21.
3. Impact on the right to privacy.
4. Discrimination based on sexual orientation.
5. Mental health implications.
6. Historical and international perspectives on homosexuality.
7. Judicial review and constitutional morality.

Detailed Analysis:

1. Criminalization of Consensual Homosexual Acts:
Section 377 of the Indian Penal Code criminalizes "carnal intercourse against the order of nature," which has historically included consensual homosexual acts. This provision, rooted in colonial-era morality, has been used to persecute the LGBT community, subjecting them to harassment, blackmail, and violence.

2. Violation of Fundamental Rights:
Article 14 (Equality before Law):
Section 377 discriminates against individuals based on their sexual orientation, creating an unreasonable classification that lacks rational nexus to any legitimate state objective. The provision is also deemed manifestly arbitrary as it criminalizes consensual acts without any sound legal basis.

Article 15 (Prohibition of Discrimination):
The term "sex" in Article 15 includes sexual orientation. Discrimination against LGBT individuals on this ground is unconstitutional. The J.S. Verma Committee Report and international human rights bodies affirm that sexual orientation should be protected under non-discrimination clauses.

Article 19 (Freedom of Expression):
Section 377 restricts the freedom of LGBT individuals to express their sexual orientation. This restriction is not a reasonable limitation under Article 19(2) as it is based on subjective societal morality rather than constitutional principles.

Article 21 (Right to Life and Personal Liberty):
The right to life includes the right to live with dignity, privacy, and autonomy. Section 377 infringes on these rights by criminalizing consensual sexual acts between adults, thereby denying LGBT individuals the ability to lead fulfilling lives and form intimate relationships.

3. Impact on the Right to Privacy:
The right to privacy, as recognized in K.S. Puttaswamy v. Union of India, encompasses the protection of sexual orientation. Section 377's criminalization of consensual homosexual acts violates this intrinsic aspect of privacy, decisional autonomy, and personal dignity.

4. Discrimination Based on Sexual Orientation:
The criminalization of consensual homosexual acts under Section 377 perpetuates stereotypes and societal discrimination against the LGBT community. This discrimination is not justified by any legitimate state interest and is contrary to the principles of equality and non-discrimination enshrined in the Constitution.

5. Mental Health Implications:
The stigma and discrimination resulting from Section 377 have severe mental health consequences for LGBT individuals, including depression, anxiety, and suicidal tendencies. The Mental Healthcare Act, 2017, which mandates non-discrimination based on sexual orientation, underscores the need to decriminalize consensual homosexual acts to protect mental health.

6. Historical and International Perspectives:
Historically, anti-sodomy laws were rooted in Judeo-Christian morality and colonial rule. Modern jurisprudence and international human rights standards have increasingly recognized the rights of LGBT individuals, leading to the decriminalization of homosexual acts in many countries. The judgments in cases like Lawrence v. Texas (USA) and National Coalition for Gay and Lesbian Equality v. Minister of Justice (South Africa) highlight the global movement towards recognizing sexual orientation equality.

7. Judicial Review and Constitutional Morality:
The judiciary has a duty to protect fundamental rights against majoritarian morality. Constitutional morality, as opposed to societal morality, must guide the interpretation of laws. The Supreme Court's role as a sentinel of constitutional rights necessitates reading down Section 377 to exclude consensual sexual acts between adults in private.

Conclusion:
The judgment declares Section 377 unconstitutional insofar as it criminalizes consensual sexual acts between adults. It affirms that LGBT individuals are entitled to the full range of constitutional rights, including equality, dignity, and privacy. The decision in Suresh Kumar Koushal v. Naz Foundation is overruled, and the judgment mandates wide publicity and sensitization programs to eliminate the stigma associated with the LGBT community.

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