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TMI Blog2018 (9) TMI 1794X X X X Extracts X X X X X X X X Extracts X X X X ..... design. One defines oneself. That is the glorious form of individuality. In the present case, our deliberation and focus on the said concept shall be from various spectrums. 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 equi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise 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 others(2014) 5 SCC 438), popularly known as NALSA case, wherein the Court was dwelling upon the status of identity of the transgenders. Radhakrishnan, J., after referring to catena of judgments and certain International Covenants, opined that gender identity is one of the most fundamental aspects of life which refers to a person's intrinsic sense of being male, female or transgender or transsexual person. A person's sex is usually assigned at birth, but a relatively small group of persons may be born with bodies which incorporate both or certain aspects of both male and female physiology. The learned Judge further observed that at times, genital anatomy problems may arise in certain persons in the sense that their innate perception of themselves is not in conformity with the sex assigned to them at birth and may include pre-and post-operative transsexual persons and also persons who do not choose to undergo or do not have access to operation a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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 sphere like success, fame, economic prowess, political assertion, celebrity status and social superiorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther to declare Section 377 of the Indian Penal Code (for short, "IPC") to be unconstitutional. When the said Writ Petition was listed before a three-Judge Bench on 08.01.2018, the Court referred to a two-Judge Bench decision rendered in Suresh Koushal (supra) wherein this Court had overturned the decision rendered by the Division Bench of the Delhi High Court in Naz Foundation (supra). It was submitted by Mr. Arvind Datar, learned senior counsel appearing for the writ petitioners, on the said occasion that the two-Judge Bench in Suresh Koushal (supra) had been guided by social morality leaning on majoritarian perception whereas the issue, in actuality, needed to be debated upon in the backdrop of constitutional morality. A contention was also advanced that the interpretation placed in Suresh Kumar (supra) upon Article 21 of the Constitution is extremely narrow and, in fact, the Court has been basically guided by Article 14 of the Constitution. Reliance was placed on the pronouncement in NALSA case wherein this Court had emphasized on "gender identity and sexual orientation". Attention of this Court was also invited to a nine-Judge Bench decision in K.S. Puttaswamy and another v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that there should not be fear of law because fear of law builds civilised society. But that law must have the acceptability of the Constitutional parameters. That is the litmus test. It is necessary to note, in the course of hearing on a query being made and Mr. Datar very fairly stated that he does not intend to challenge that part of Section 377 which relates to carnal intercourse with animals and that apart, he confines to consenting acts between two adults. As far as the first aspect is concerned, that is absolutely beyond debate. As far as the second aspect is concerned, that needs to be debated. The consent between two adults has to be the primary pre-condition. Otherwise the children would become prey, and protection of the children in all spheres has to be guarded and protected. Taking all the apsects in a cumulative manner, we are of the view, the decision in Suresh Kumar Koushal's case (supra) requires re-consideration." 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 16. The petitioners have highlighted that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ple of liberty. 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion and in the light of the decision in Puttaswamy (supra), it has become imperative that Section 377 be struck down. It is contended that the right to privacy has to take within its ambit and sweep the right of every individual, including LGBTs, to make decisions as per their choice without the fear that they may be subjected to humiliation or shunned by the society merely because of a certain choice or manner of living. 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 others(2018) 7 SCC 192) and Shafin Jahan v. Asokan K.M. (AIR 2018 SC 1933 : 2018 (5) SCALE 422) 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 Constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitution 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 others(2008) 3 SCC 1) which lays down the principle that classification which may have been treated as valid at the time of its adoption may cease to be so on account of changing social norms. 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 others(2017) 9 SCC 1) , 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 sex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 013) 2 SCC 398) and Umesh Kumar v. State of Andhra Pradesh and another(2013) 10 SCC 591) 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 several reasons inasmuch as the political, economic and cultural heritage of those countries are very different from India which is a multicultural and multi-linguis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny 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 another(1970) 2 SCC 780) and Rt. Rev. Msgr. Mark Netto v. State of Kerala and others(1979) 1 SCC 23). 51. The applicant, through his learned counsel Mr. Harvinder Chowdhury, submits that if the right to privacy as recognized in Puttaswamy (supra) is allowed its full scope and swing, then that itself would rule out prosecution in all cases of consensual unnatural sex between all couples, whether heterosexual or homosexual, and without having to engage in reading down, much less striking down of, the provisions of Section 377 IPC in its present form. This is so because the State cannot compel individuals engaging in consensual sexual acts from testifying against one another as it involves a breach of privacy unless the consent itself is under challenge and one cannot be a consenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ogy in our country which has also been a matter of concern for this Court in Jagmohan Singh v. State of U.P. (1973) 1 SCC 20). 56. The applicant, after citing the case of State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat and others(2005) 8 SCC 534), has stressed upon the fact that the interest of a citizen or a section of the society, howsoever important, is secondary to the interest of the country or community as a whole and while judging the reasonability of restrictions imposed on fundamental rights, due consideration must also be given to the Directive Principles stated in Part IV. In view of these aforesaid submissions, the applicant has submitted that fundamental rights may not be overstretched and the Directive Principles of State Policy which are fundamental in the governance of the country cannot be neglected, for they are not less significant than what is fundamental in the life of an individual as held in Kesavananda Bharati v. Union of India(1973) 4 SCC 225. 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 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Courts cannot add or delete words into a statute. It is stated that the words 'consent' and/or 'without consent' are not mentioned in Section 377 IPC and, therefore, the Courts cannot make such an artificial distinction. To buttress this stand, the applicant has relied upon the decision of this Court in Sakshi v. Union of India and others(2004) 5 SCC 518) 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 Aggarwal(1992 Supp. (1) SCC 323) wherein it was observed that the Court cannot rewrite, recast or re-frame the legislation for the good reason that it has no power to legislate since the power to legislate has not been conferred upon the Court and, therefore, the Courts cannot add words to a statute or read word ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be held captive of the popular misconceptions of who the LGBTs are, as it cannot be forgotten that discrimination is the antithesis of equality and recognition of equality in its truest sense will foster the dignity of every individual. That apart, the High Court had taken the view that social morality has to succumb to the concept of constitutional morality. 69. On the basis of the aforesaid reasons, the High Court declared Section 377 IPC violative of Articles 14, 15 and 21 of the Constitution in so far as it criminalises consensual sexual acts of adults in private, whereas for non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors, the High Court ruled that Section 377 IPC was valid. 70. The Delhi High Court judgment was challenged in Suresh Koushal (supra) wherein this Court opined that acts which fall within the ambit of Section 377 IPC can only be determined with reference to the act itself and to the circumstances in which it is executed. 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 cer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Emperor (AIR 1925 Sind 286) 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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' 'Psychology of Sex' Twelfth Impression, 1948, London authored by Mr. Havelock Ellis which reads thus:- "While the kiss may be regarded as the typical and normal erogenic method of contrectation for the end of attaining tumescene, there are others only less important. Any orifical contact 'between persons of opposite sex' is sometimes almost equally as effective as the kiss in stimulating tumescene; all such contacts, indeed, belong to the group of which the kiss is the type, Cunnilinctus (often incorrectly termed cunnilingus) and fellatio cannot be regarded as unnatural for they have their prototypic forms among animals, and they are found among various savage races. As forms of contrecttion and aides to tumescene they are thus natural and are sometimes regarded by both sexes as quintessential forms of sexual pleasure, though they may not be considered aesthetic. They become deviations, however, and this liable to be termed "perversions", when they re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me 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 others(1997) 5 SCC 201) 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." 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 only the State and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itution', 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. 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 dynamic, vibrant and pragmatic interpretation. Constitutional provisions have to be construed and developed in such a manner that their real intent and existence percola ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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, and diversity of opinion is in my view absolutely essential as a stimulus to theory." 102. A J Van der Walt45 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 on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 no nerves to move. The immobility due to fear corrodes the desire to express one's own sexual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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, ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 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 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 sen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the transition from "disgust" to "humanity." Once looked at with disgust and considered unworthy of some rights, there is increasing consensus that homosexuals should no longer be deprived of the benefits of citizenship that are available to heterosexuals, such as the ability to contract marriage, on the sole ground of their sexual orientation. Homosexuals are increasingly considered as "full humans" disposing of equal rights, and dignity functions as the vocabulary that translates such socio-cultural change into legal change" 126. The Universal Declaration of Human Rights, 1948 became the Magna Carta of people all over the world. The first Article of the UDHR was uncompromising in its generality of application: All human beings are born free and equal in dignity and rights. Justice Kirby succinctly observed:- "This language embraced every individual in our world. It did not apply only to citizens. It did not apply only to 'white' people. It did not apply only to good people. Prisoners, murderers and even traitors were to be entitled to the freedoms that were declared. There were no exceptions to the principles of equality." Human Rights Gay Rights by Michael Kirby, Pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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. 131. In Maneka Gandhi v. Union of India and another(1978) 1 SCC 248), 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 possessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... showing respect for the dignity of another is a constitutional duty. It is an expression of the component of constitutional fraternity. 135. The concept of dignity gains importance in the present scenario, for a challenge has been raised to a provision of law which encroaches upon this essential right of a severely deprived section of our society. An individual's choice to engage in certain acts within their private sphere has been restricted by criminalising the same on account of the age old social perception. To harness such an essential decision, which defines the individualism of a person, by tainting it with criminality would violate the individual's right to dignity by reducing it to mere letters without any spirit. 136. The European Court of Justice in P v. S58 in the context of rights of individuals who intend to or have undergone sex reassignment has observed that where a person is dismissed on the ground that he or she intends to undergo or has undergone gender 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hysical 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. 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 althou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terosexuality. 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 scie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Kingdom[1981] 4 EHRR 149], privacy has been defined as under:- "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 others (1994) 6 SCC 632, while discussing the concept of right to privacy, it has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entity, be it by entering into relationships with others or 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. Australia Communication No. 488/1992, U.C. Doc CCPR/C/ 50/D 488/ 1992, March 31, 1994, para. 8.3 to the effect that the introduction of the concept of arbitrariness is intended to guarantee that every interference provided for by the law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the circumstances. The requirement of reasonableness implies that any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case. 159. The South African Constitutional Court in National Coalition for Gay and Lesbian Equality and another v. Minister of Justice and others(1998 (12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitutes 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsonal 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 be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enders, 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 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tutional 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itled 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. 193. In the case of Price Waterhouse v. Hopkins(490 U.S. 228 (1989), 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. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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 Jaycees(468 U.S. 609 (1984), 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 associati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reux - 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ual 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 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 Elections G. R. No.190582, Supreme Court of Philippines (2010), 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lnerable 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:- 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. The former part, comprising of Clauses (a) to (d), simply 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure 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. 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 Dictionary Black's Law Dictionary, 2nd edn., 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 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. 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 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30. The sexual autonomy of an individual to choose his/her sexual partner is an important pillar and an insegregable facet of individual 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions 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 (AIR 1955 SC 191), while delineating on the concept of reasonable classification, the Court observed thus:- "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 mus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n-consensual sexual acts between competent 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, criminalizi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 India (2015) 5 SCC 1), this Court, while striking down Section 66A of the Information Technology Act, 2000, had observed that when a provision is vague and overboard in 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. 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 peac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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) 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 imperm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 '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 vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an 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 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. JUDGMENT 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 relo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntal 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. 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... force on 01.01.1862. Sir James Fitzjames Stephen proclaimed that: "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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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:- "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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actors 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:- "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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exual 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 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 62. We accordingly recommend that homosexual behaviour between consenting adults in private should no longer be a criminal offence." 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 applicability to the commission of that act with another adult male in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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." 34. Justice Stevens, also in a powerfully worded dissent, spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the purpose under discussion, it is a permitted distinction to treat them differently for that purpose, provided that 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) employ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Tasmania ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oing 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 are now widely accepted bot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ude 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 cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Indian people with aforesaid presumption, was totally capricious and nefarious. There could not have been more harm caused to this community with the passing of the aforesaid brutal legislation during the British Regime with the vicious and savage mind-set. To add insult to the irreparable injury caused, Section 377 of the Penal Code was misused and abused as there was a tendency, in the British period, to arrest and prosecute TG persons under Section 377 merely on suspicion. To undergo this sordid historical harm caused to TGs of India, there is a need for incessant efforts with effervescence." 56. And in paragraphs 125 and 129, he outlined the role of our Court as follows:- "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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emands protection of the identity of every individual without discrimination. 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 refle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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:- "166. The purpose of saying so is only to highlight that the law must take cognizance of the changing society and march in consonance w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating 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 Cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gnity 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fferent 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 his/her meaningful existence. To have the freedom of faith is essential to his/her ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, 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 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 orie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." 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 appear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Statement on Homosexuality dated 02.07.2018 has stated:- "In the opinion of the Indian Psychiatric Society (IPS) homosexuality is not a psychiatric disorder. This is in line with the position of American Psychiatric Association and The International Classification of Diseases of the World health Organization which removed homosexuality from the list of psychiatric disorders in 1973 and 1992 respectively. The I.P.S recognizes same-sex sexuality as a normal variant of human sexuality much like heterosexuality and bisexuality. There is no scientific evidence that sexual orientation can be altered by any treatment and that any such attempts may in fact lead to low self-esteem and stigmatization of the person. The Indian Psychiatric Society further supports de-criminalization of homosexual behavior." 71. The US Supreme Court, in its decision in Obergefell et al. v. Hodges, Director, Ohio Department of Health, et al., 576 US (2015), also took note of the enormous sufferings of homosexual persons in the time gap between Bowers (supra) and Lawrence v. Texas (supra), in the following words:- "This is not the first time the Court has been asked to adopt a cautious approach to rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pitalisation 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 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 ve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 cess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oday 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. 81. Another argument raised on behalf of the intervenors is that change in society, if any, ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ject 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. 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thout discrimination on the basis of sexual orientation or gender identity. Everyone is entitled to equality before the law and the equal protection of the law without any such discrimination whether or not the enjoyment of another human right is also affected. The law shall prohibit any such discrimination and guarantee to all persons equal and effective protection against any such discrimination. Discrimination on the basis of sexual orientation or gender identity includes any distinction, exclusion, restriction or preference based on sexual orientation or gender identity which has the purpose or effect of nullifying or impairing equality before the law or the equal protection of the law, or the recognition, enjoyment or exercise, on an equal basis, of all human rights and fundamental freedoms. Discrimination based on sexual orientation or gender identity may be, and commonly is, compounded by discrimination on other grounds including gender, race, age, religion, disability, health and economic status. States shall: (a) embody the principles of equality and non-discrimination on the basis of sexual orientation and gender identity in their national constitutions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re that all persons are accorded legal capacity in civil matters, without discrimination on the basis of sexual orientation or gender identity, and the opportunity to exercise that capacity, including equal rights to conclude contracts, and to administer, own, acquire (including through inheritance), manage, enjoy and dispose of property; (b) take all necessary legislative, administrative and other measures to fully respect and legally recognise each person's self-defined gender identity; (c) take all necessary legislative, administrative and other measures to ensure that procedures exist whereby all State-issued identity papers which indicate a person's gender/sex-including birth certificates, passports, electoral records and other documents-reflect the person's profound self-defined gender identity; (d) ensure that such procedures are efficient, fair and non-discriminatory, and respect the dignity and privacy of the person concerned; (e) ensure that changes to identity documents will be recognised in all contexts where the identification or disaggregation of persons by gender is required by law or policy; (f) undertake targ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsual 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 arbitrary or unwanted disclosure, or threat of disclosure of such information by others. XXX 18. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impart information and ideas of all kinds, including with regard to human rights, sexual orientation and gender identity, through any medium and regardless of frontiers. States shall: (a) take all necessary legislative, administrative and other measures to ensure full enjoyment of freedom of opinion and expression, while respecting the rights and freedoms of others, without discrimination on the basis of sexual orientation or gender identity, including the receipt and imparting of information and ideas concerning sexual orientation and gender identity, as well as related advocacy for legal rights, publication of materials, broadcasting, organisation of or participation in conferences, and dissemination of and access to safer-sex information; (b) ensure that the outputs and the organisation of media that is State-regulated is pluralistic and non-discriminatory in respect of issues of sexual orientation and gender identity and that the personnel recruitment and promotion policies of such organisations are non-discriminatory on the basis of sexual orientation or gender identity; (c) take all necessary legislative, administrative and other measures ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eds of the people, and that, as per the separation of powers doctrine, Parliament is 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 belo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ual 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 the state to perpetuate social stereotypes and encourage discrimination. Gays, lesbians, bisexuals and transgenders have been relegated to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a truth which can unwittingly be forgotten: flattery is a graveyard for the gullible. 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 intercour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hters 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 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. Douglas, supra note 9, at pages 5 and 8 During the Protestant Reformation, these laws shifted from the ecclesiastical to the criminal domain, beginning with Germany in 1532. Ibid at page 5 While ecclesiastical laws against homosexual intercourse were well established in England by the 1500s, Ibid at page 2 England's first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f life before him. That it should be so, the world 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 John Wolfenden, to "cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or 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. 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i, 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 In D P Minwalla v. Emperor (AIR 1935 Sind. 78), 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. Supra note 40 In Ratan Mia v. State of Assam(1988) Cr.L.J. 980., the Court convicted two men (one aged fifteen and a half, the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 wha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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. Naz Foundation, at para 91 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." Koushal, at para 65 Koushal held on that logic that 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. State of West Bengal v. Anwar Ali Sarkar, AIR (1952) SC 75. There must, in other words, be a causal connection between the basis of classification and the object of the statute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2017) 9 SCC 1): "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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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: Ibid ""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." 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 merit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erminative 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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." Naz, at para 94 (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 disadvantage, exclusion and indignity for the LGBT community, and for individuals who indulge in non-heterosexual conduct. 43 Jurisprudence across n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndividual'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 withholds or limits access to opportunities, benefits, and advantages available to other members of society", Ibid. it would be suspect. In City Council of Pretoria v. Walker(1998) 3 BCLR 257), 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 discri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayal relies heavily on what Bennett Capers calls the "binary gender system." Ibid. 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 In other words, one cannot simply separate discrimination based on sexual orienta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us 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 discrimination against gays should be understood as a necessary part of the larger effort to end the inequality of the sexes. "To be a lesbian is to be perceived (labelled) as someone who has stepped out of line, who has moved out of sexual/economic dependence on a male, who is woman-identified. A lesbian is perceived as someone who can live without a man, and who is therefore (however illogically) against men. A lesbian is perceived as being outside the acceptable, routinized order of things. Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se from law enforcement agencies and how the possibility of persecution under Section 377 prevents redress. Ibid, at pages 16 - 18 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. UOI (Writ Petition (Criminal) No. 121 of 2018), 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons 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 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 sens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the grounds only of sex and violates the guarantee of non-discrimination in Article 15(1) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntation 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..." NALSA, at para 22 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rights and the Courts are often called up on to take what may be categorized as a non-majoritarian view, in the check and balance of power envisaged under the Constitution of India. One's sexual orientation is undoubtedly an attribute of privacy..." Puttaswamy, at para 647. 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. Supra note 116, at page 689 The impact of criminalising non-conforming sexual relations is that individuals who fall outside the spectrum of heteronormative127 sexual identity are perceived as criminals. Supra note 116, at page 689. 57 World over, sexual minorities have struggled to find acceptance in the heteronormative structure that is imposed by society. In h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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..." Puttaswamy, at Para 350 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmunity 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 diffe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. Supra note 131, at pages 1000-1001 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umed to be rational and mutually disinterested individuals, unaware of their positions in society. Ibid at 1023. 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. Ibid at 1023. 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. Ibid at 1023. Rawls's conception of self-respect, as a primary human good, is intimately connected to the idea of autonomy. Supra note 131, at page 971 Self-respect is founded on an individual's ability to exercise her native capacities in a competent manner. Ibid at page 972 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-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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve any legitimacy." Ibid, at para 44. In Shafin Jahan v. Asokan(2018) SCC OnLine SC 343), 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 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 ..." Ibid, at para 54. (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; 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. In Bandhua Mukti Morcha v. Union of India(1984) 3 SCC 161), 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 P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Employees' State Insurance Corporation(1996) 2 SCC 682), 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." In State of Punjab v. Ram Lubhaya Bagga(1998) 4 SCC 117), 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enant on Economic, Social and Cultural Rights, 1966 ("ICESCR") and the Universal 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 informati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder binary and opposite-gender relationships, which marginalizes and excludes all non-heteronormative sexual and gender identities. Supra note 185, at pages 195-208. 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. Ibid 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 fulf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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: Supra note 185, at pages 195-208 "..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." Supra note 185, at pages 195-208 (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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom 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. Ibid. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns, 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 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 Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntation 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. Ibid The key population is stigmatized by health providers, employers and other service providers. Ibid As a result, there exist serious obstacles to effective HIV prevention and treatment as discrimination and 213 Beena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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' accepted medical standards. The Internatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " 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 que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 sex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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"). App No 7525/76, (1981) ECHR 5 The Petitioners challenged the Offences against the Person Act, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Cyprus Application No. 15070/89,16 EHRR 485, 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") 478 U.S. 186 (1986)., 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 ECtHR in Dudgeon. In Bowers, the Supreme Court declined to accept that the question concerned the right to pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tled 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 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quiring 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. Case No. 111-97-TC (27 November 1997). 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 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 con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." National Coalition, at para 32 113 In 2005, the High Court of Fiji, in Dhirendra Nadan Thomas McCoskar v. State[2005] FJHC 500., struck down provisions of the Fijian Penal Code, which punished any person who permits a male person to have "carnal knowledge" of him, as well as acts of "gross indecency" between male persons. The High Court read down the provisions to the extent that they were inconsistent with the Constitution of Fiji, drawing a clear distinction between consensual and non-consensual sexual behavior: "What the constitution requires is that the Law acknowledges difference, affirms dignity and allows equal respect to every citizen as they are. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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." Jones, at para 91 The High Court also held that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reason for this and none was suggested in the course of argument." Ibid, at para 51 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. 270. 271. 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") HCJ 721/94., 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uals 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 Government Writ Petition No. 917 of 2007. 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: "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 ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsibilities 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"), 576 U.S. ___ (2015). 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." Obergefell, at page 12. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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. 124 Justice Ginsburg's dissenting opinion, which was supported by Justice Sotomayor, distinguished the baker in Masterpiece Cakeshop from the other three bakers. Justice Gin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 constitutionally prohibit discriminatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efault 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." Ibid. However, Hart confesses that such a simplistic definition would be "a betrayal of intellectual bankruptcy." Ibid. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve disturbance of fundamental social structures."307 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." Supra note 294. 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing. 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." Ibid. 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." Ibid. 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 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 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." Ibid. (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). Ibid. 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." Ibid. However, he argued that as long as an action does not "violate a distinct and assignable obligation to any other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... secuted 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. Ibid.After conducting a three-year long inquiry, carrying out empirical research, and interviewing three gay men, the Wolfenden Committee released its Report in 1957. Ibid. 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." Supra note 29, at paras 61 and 62. 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..." Ibid, at para 14. 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Supra note 334. He opined that legislators should not be overly swayed by the society's morality: "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." Ibid. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the factor of consent is established, the question of such conduct causing any injury, does not arise. Although Section 377 prima facie appears to criminalise certain acts or conduct, it creates a class of criminals, consisting of individuals who engage in consensual sexual activity. It typecasts LGBTQ individuals as sex-offenders, categorising their consensual conduct on par with sexual offences like rape and child molestation. Section 377 not only criminalises acts (consensual sexual conduct between adults) which should not constitute crime, but also stigmatises and condemns LGBTQ individuals in society. 137 We are aware of the perils of allowing morality to dictate the terms of criminal law. If a single, homogenous morality is carved out for a society, it will undoubtedly have the effect of hegemonizing or 'othering' the morality of minorities. The LGBTQ community has been a victim of the pre-dominant (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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts 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 fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gnises 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 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." Supra note 372, at para 14.2. He remarked: "An ideal society should be mobile, should be full of channels for conveying a change taking place in one part to other p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 and not public morality... In our scheme of things, constitutional morality must outweigh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 promo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. JUDGEMENT 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 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 decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery 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. 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 homosexu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exual 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 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. Id For instance, the Unite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Emperor (AIR 1934 Lah 261 : 1934 Cri LJ 1096) 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. State (AIR 1968 Guj 252) the Gujarat High Court convicted two accused under Section 377 read with Section 511 of the IPC, on account of having carnal intercourse per anus, and inserting the penis in the mouth of a young boy. It was held that: "...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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esbians 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, Homo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 & O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticle 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 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 whatev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (1981) 1 SCC 608), 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. (1981) 1 SCC 608 at paragraph 7) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 opi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. The right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter. Casey, supra at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual." (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 decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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'. 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 homosexual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able 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 decision of the Delhi High Court in Naz Foundation v. Government of NCT of Delhi & Ors. (2009) 111 DRJ 1 (DB) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he other party. A distinction has to be made between consensual relationships of adults in private, whether they are heterosexual or homosexual in nature. Furthermore, consensual relationships between adults cannot be classified along with offences of bestiality, sodomy and non-consensual relationships. Sexual orientation is immutable, since it is an innate feature of one's identity, and cannot be changed at will. The choice of LGBT persons to enter into intimate sexual relations with persons of the same sex is an exercise of their personal choice, and an expression of their autonomy and self-determination. Section 377 insofar as it criminalises voluntary sexual relations between LGBT persons of the same sex in private, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the extent of its inconsistency with the Constitution. In the present case, reading down Section 377 is necessary to exclude consensual sexual relationships between adults, whether of the same sex or otherwise, in private, so as to remove the vagueness of the provision to the extent it is inconsistent with Part III of the Constitution. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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". 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. 4 The impetus for this law was the prosecution of Alan Turing in 195 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." 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. 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. 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 spanni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Studies Faculty of Law, National University of Singapore, Working Paper 14/02, (2014). 40 Arvind Narrain, "'That Despicable Specimen of Humanity': Policing of Homosexuality in (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). 45 Suparna Bhaskaran, "The Politics of Penetration: Section 377 of the Indian Penal Code" in Queering India: Same-Sex Love and Eroticism in Indian Culture and Society (Ruth Vanita ed.), Routledge (2002). 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). 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)" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly.-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 rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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). 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). 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). 109 International Commission of Jurists, "Unnatural Offences" Obstacles to Justice in India Based on Sexual Orientation and Gender Identity (2017). 114 Written Submission on Behalf of the Voices Against 377, in W.P. (CRL.) No. 76/2016 at page 18. 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 Rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Human Rights and the Law" (2015). 193 International Women's Health Coalition, "Sexual Rights are Human Rights" (2014). 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). 203 Study Guide: Sexual Orientation and Human Rights, University of Minnesota Human RIghts Library (2003). 205 Center for Health and Human Rights and Open Society Foundations. "Health and Human Rights Resource Guide (2013). 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 228 Vinay Chandran, "From judgement to practice: Section 377 and the medical sector", Indian Journal of Medical Ethics, Vol. 4 (2009). 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). 233 Committee on Economic, Social and Cultural Rights, "General Comment 20: Non-discrimination in economic, social and cultural rights" (2009), at para 32. 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 jurisd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Morals (Mary Gregor ed.), Cambridge University Press (1996). 301 Grant Lamond, "What is a Crime?", Oxford Journal of Legal Studies, Vol.27 (2007). 302 Sir William Blackstone, Commentaries on the Laws of England, Book IV, Ch. 1 & 2. 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. 307 Lawrence C. Becker, "Criminal Attempts and the Theory of the Law of Crimes", Philosophy & Public Affairs, Vol 3 (1974), at page 273. 313 Jeremy Bentham, "Offences Against One's Self" (Louis Crompton Ed.), Columbia University. 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). 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). 334 Graham Hughes, "Morals and the Criminal Law", The Yale Law Journal, Vol.71 (196 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 9 Theresa May's Speech at the Commonwealth Joint Forum Plenary available at https://www.gov.uk/government/speeches/pm-speaks-at-the-commonwealth-joint-forum-plenary-17-april-2018 10 The New International Webster's Comprehensive Dictionary of the English Language (Deluxe Encyclopedic Edition, 1996) 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 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 20 Indian Psychiatry Society: "Posi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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