9911796707
TMI Blog2018 (9) TMI 1794X X X X Extracts X X X X X X X X Extracts X X X X ..... Petition (Criminal) No. 76 OF 2016, 88, 100, 101, 121 Of 2018 - - - Dated:- 6-9-2018 - Dr Dhananjaya Y Chandrachud, Indu Malhotra, JJ. JUDGMENT Dipak Misra, CJI (for himself and A.M. Khanwilkar, J.) A. Introduction Not for nothing, the great German thinker, Johann Wolfgang von Goethe, had said, I am what I am, so take me as I am and similarly, Arthur Schopenhauer had pronounced, No one can escape from their individuality . In this regard, it is profitable to quote a few lines from John Stuart Mill:- But society has now fairly got the better of individuality; and the danger which threatens human nature is not the excess, but the deficiency of personal impulses and preferences. The emphasis on the unique being of an individual is the salt of his/her life. Denial of self-expression is inviting death. Irreplaceability of individuality and identity is grant of respect to self. This realization is one s signature and self-determined design. One defines oneself. That is the glorious form of individuality. In the present case, our deliberation and focus on the said concept shall be from various spectrums. 2. Shakespeare through one of his characters in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions, stereotypes and prejudices deeply ingrained in the societal mindset so as to usher in inclusivity in all spheres and empower all citizens alike without any kind of alienation and discrimination. 4. The natural identity of an individual should be treated to be absolutely essential to his being. What nature gives is natural. That is called nature within. Thus, that part of the personality of a person has to be respected and not despised or looked down upon. The said inherent nature and the associated natural impulses in that regard are to be accepted. Non-acceptance of it by any societal norm or notion and punishment by law on some obsolete idea and idealism affects the kernel of the identity of an individual. Destruction of individual identity would tantamount to crushing of intrinsic dignity that cumulatively encapsulates the values of privacy, choice, freedom of speech and other expressions. It can be viewed from another angle. An individual in exercise of his choice may feel that he/she should be left alone but no one, and we mean, no one, should impose solitude on him/her. 5. The eminence of identity has been luculently stated in National Legal Services Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot identify as female because of their lack of female genitalia or lack of reproductive capability. This distinction makes them separate from both male and female genders and they consider themselves neither man nor woman, but a third gender . 8. Sikri, J., in his concurring opinion, dwelling upon the rights of transgenders, laid down that gender identification is an essential component which is required for enjoying civil rights by the community. It is only with this recognition that many rights attached to the sexual recognition as third gender would be available to the said community more meaningfully viz. the right to vote, the right to own property, the right to marry, the right to claim a formal identity through a passport and a ration card, a driver s licence, the right to education, employment, health and so on. Emphasising on the aspect of human rights, he observed:- there seems to be no reason why a transgender must be denied of basic human rights which includes right to life and liberty with dignity, right to privacy and freedom of expression, right to education and empowerment, right against violence, right against exploitation and right against discriminati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etermine and follow his/her pattern of life. And that is where the distinction between constitutional morality and social morality or ethicality assumes a distinguished podium, a different objective. Non-recognition in the fullest sense and denial of expression of choice by a statutory penal provision and giving of stamp of approval by a two-Judge Bench of this Court to the said penal provision, that is, Section 377 of the Indian Penal Code, in Suresh Kumar Koushal and another v. Naz Foundation and others(2014) 1 SCC 1) overturning the judgment of the Delhi High Court in Naz Foundation v. Government of NCT of Delhi and others(2009) 111 DRJ 1), is the central issue involved in the present controversy. B. The Reference 10. Writ Petition (Criminal) No. 76 of 2016 was filed for declaring right to sexuality , right to sexual autonomy and right to choice of a sexual partner to be part of the right to life guaranteed under Article 21 of the Constitution of India and further to declare Section 377 of the Indian Penal Code (for short, IPC ) to be unconstitutional. When the said Writ Petition was listed before a three-Judge Bench on 08.01.2018, the Court referred to a two-Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat:- Certain other aspects need to be noted. Section 377 IPC uses the phraseology carnal intercourse against the order of nature . The determination of order of nature is not a constant phenomenon. Social morality also changes from age to age. The law copes with life and accordingly change takes place. The morality that public perceives, the Constitution may not conceive of. The individual autonomy and also individual orientation cannot be atrophied unless the restriction is regarded as reasonable to yield to the morality of the Constitution. What is natural to one may not be natural to the other but the said natural orientation and choice cannot be allowed to cross the boundaries of law and as the confines of law cannot tamper or curtail the inherent right embedded in an individual under Article 21 of the Constitution. A section of people or individuals who exercise their choice should never remain in a state of fear. When we say so, we may not be understood to have stated that there should not be fear of law because fear of law builds civilised society. But that law must have the acceptability of the Constitutional parameters. That is the litmus test. It is necessary to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Petition (Criminal) No. 76 of 2016, Mr. Manoj V. George, learned counsel appearing for Apostolic Alliance of Churches Utkal Christian Council and Dr. Harshvir Pratap Sharma, learned counsel appearing in Interlocutory Application No. 93411 of 2018 in Writ Petition (Criminal) No. 76 of 2016. 15. It is submitted on behalf of the petitioners and the intervenors that homosexuality, bisexuality and other sexual orientations are equally natural and reflective of expression of choice and inclination founded on consent of two persons who are eligible in law to express such consent and it is neither a physical nor a mental illness, rather they are natural variations of expression and free thinking process and to make it a criminal offence is offensive of the well established principles pertaining to individual dignity and decisional autonomy inherent in the personality of a person, a great discomfort to gender identity, destruction of the right to privacy which is a pivotal facet of Article 21 of the Constitution, unpalatable to the highly cherished idea of freedom and a trauma to the conception of expression of biological desire which revolves around the pattern of mosaic of true mani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 17. It is urged by the learned counsel for the petitioners that individuals belonging to the LGBT group suffer discrimination and abuse throughout their lives due to the existence of Section 377 IPC which is nothing but a manifestation of a mindset of societal values prevalent during the Victorian era where sexual activities were considered mainly for procreation. The said community remains in a constant state of fear which is not conducive for their growth. It is contended that they suffer at the hands of law and are also deprived of the citizenry rights which are protected under the Constitution. The law should have treated them as natural victims and sensitized the society towards their plight and laid stress on such victimisation, however, the reverse is being done due to which a sense of estrangement and alienation has developed and continues to prevail amongst the members belonging to the LGBT group. Compulsory alienation due to stigma and threat is contrary to the fundamental principle of liberty. 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 hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioners contend that sexual orientation which is a natural corollary of gender identity is protected under Article 21 of the Constitution and any discrimination meted out to the LGBT community on the basis of sexual orientation would run counter to the mandate provided under the Constitution and the said view has also gained approval of this Court in the NALSA case. 21. The petitioners have also relied upon the view in K.S. Puttaswamy (supra) to advance their argument that sexual orientation is also an essential attribute of privacy. Therefore, protection of both sexual orientation and right to privacy of an individual is extremely important, for without the enjoyment of these basic and fundamental rights, individual identity may lose significance, a sense of trepidation may take over and their existence would be reduced to mere survival. It is further urged that sexual orientation and privacy lie at the core of the fundamental rights which are guaranteed under Articles 14, 19 and 21 of the Constitution and in the light of the decision in Puttaswamy (supra), it has become imperative that Section 377 be struck down. It is contended that the right to privacy has to take within its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation, being an innate facet of individual identity, is protected under the right to dignity. To bolster the said argument, reliance has been placed upon Francis Coralie Mullin v. Administrator, Union Territory of Delhi and others(1981) 1 SCC 608) and Common Cause (A Registered Society) v. Union of India and another(2018) 5 SCC 1) wherein it was held that the right to life and liberty, as envisaged under Article 21, is meaningless unless it encompasses within its sphere individual dignity and right to dignity includes the right to carry such functions and activities as would constitute the meaningful expression of the human self. 25. It is submitted that Section 377 is an anathema to the concept of fraternity as enshrined in the Preamble to our Constitution and the Indian Constitution mandates that we must promote fraternity amongst the citizens sans which unity shall remain a distant dream. 26. The petitioners have further contended that Section 377 is violative of Article 14 of the Constitution as the said Section is vague in the sense that carnal intercourse against the order of nature is neither defined in the Section nor in the IPC or, for that matter, any other law. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n strongly pressed into service to emphasize that the said decision clearly spells out that the right under Article 19(1)(a) includes one s right to expression of his/her self-identified gender which can be expressed through words, action, behaviour or any other form. 30. The petitioners have also contended that Section 377 violates the rights of LGBT persons under Article 19(1)(c) and denies them the right to form associations. Similarly, such persons are hesitant to register companies to provide benefits to sexual minorities due to the fear of state action and social stigma. Further, a conviction under Section 377 IPC renders such persons ineligible for appointment as a director of a company. 31. It is averred that Section 377 IPC, by creating a taint of criminality, deprives the LGBT persons of their right to reputation which is a facet of the right to life and liberty of a citizen under Article 21 of the Constitution as observed by this Court in Kishore Samrite v. State of U.P. and others(2013) 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 Constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch as NGOs to speak on their behalf. It is urged that the appellants in Suresh Koushal (supra) led this Court to assume that LGBT persons constitute only a minuscule fraction whereas most of the studies indicate that they constitute at least 7-8% of the population and that apart, rights are not determined on the basis of percentage of populace but on a real scrutiny of the existence of right and denial of the same. It is the stand of the petitioners that majority perception or view cannot be the guiding factor for sustaining the constitutionality of a provision or to declare a provision as unconstitutional. D. Submissions on behalf of the respondents and other intervenors 35. The respondent, Union of India, has, vide affidavit dated 11th July, 2018, submitted that the matter at hand was referred to a Constitution Bench to decide as to whether the law laid down in Suresh Koushal (supra) is correct or not and the only question referred to this Bench is the question of the constitutional validity of criminalizing 'consensual acts of adults in private' falling under Section 377 IPC. 36. Further, the Union has submitted that so far as the constitutional validity of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is contended by the intervenor that no further reliefs can be granted to them and the prayers made by them is only to abuse privacy and personal liberty by transgressing the concepts of dignity and public morality. 41. As per the intervenor, Section 377 rightly makes the acts stated therein punishable as Section 377 has been incorporated after taking note of the legal systems and principles which prevailed in ancient India and now in 2018, the said Section is more relevant legally, medically, morally and constitutionally. 42. To illustrate this, the intervenor has drawn the attention of this Court to W. Friedmann from 'Law in a Changing Society' wherein he has observed that to prohibit a type of conduct which a particular society considers worthy of condemnation by criminal sanctions is deeply influenced by the values governing that society and it, therefore, varies from one country to another and one period of history to another. 43. Further, it has been contended by the intervenor that persons indulging in unnatural sexual acts which have been made punishable under Section 377 IPC are more susceptible and vulnerable to contracting HIV/AIDS and the percentage of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venor has suggested that the alleged misuse of Section 377 IPC as highlighted by the petitioners can be curbed by adding an explanation to Section 377 IPC defining 'aggrieved person' which shall include only non-consenting partner or aggrieved person or wife or husband or any person on their behalf on the lines of Section 198(1) of Code of Criminal Procedure, 1973. This, as per the applicant, would curb any mala fide complaint lodged by authorities and vindictive or mischievous persons when the act complained of is 'consenting act' between two persons. Further, the applicant has submitted that this Court may be pleased to identify that the courts shall take cognizance of an offence under Section 377 IPC only on a complaint made by an aggrieved person. Such an approach, as per the applicant, inherently respects consent and also protects from interference and safeguards the privacy and dignity of an individual under Article 21 of the Constitution. 50. The applicant has also contended that the constitutionality of any legislation is always to be presumed and if there is any vagueness in the definition of any section, the courts have to give such a definition which a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 377 IPC does not violate the constitutional rights of a person. 54. Another application for intervention, being I.A No. 9341 of 2011, was filed and allowed. The applicant, in his written submissions, after delineating the concept of immorality, has submitted that the doctrine of manifest arbitrariness is of no application to the present case as the law is not manifestly or otherwise arbitrary, for Section 377 criminalizes an act irrespective of gender or sexual orientation of the persons involved. The universal application of the said provision without any gender bias is the touchstone of Part III of the Constitution and is not arbitrary as there is no intentional or unreasonable discrimination in the provision. 55. The applicant has drawn the attention of this Court to the case of Fazal Rab Choudhary v. State of Bihar(1982) 3 SCC 9) wherein this Court held that the offence under Section 377 IPC implies sexual perversity. Further, it is the case of the applicant that there should not be identical transplantation of Western ideology in our country which has also been a matter of concern for this Court in Jagmohan Singh v. State of U.P. (1973) 1 SCC 20). 56. The applicant, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld require a constitutional amendment. 60. It is also the case of the applicant that the Yogyakarta principles which have been heavily relied upon by the petitioners to bolster their stand have limited sanctity inasmuch as they do not amount to an international treaty binding on the State parties and there are no inter-governmentally negotiated international instruments or agreed human rights treaties on the issue of LGBTs. 61. Further, the applicant has submitted that there is no requirement to reconsider the decision of this Court in Suresh Koushal (supra) wherein it was held that there is a presumption of constitutionality of a legislation and the Court must adopt self-restraint and thereby refrain from giving birth to judicial legislation. In the applicant's view, the legislative wisdom of the Parliament must be respected and it must be left to the Parliament to amend Section 377 IPC, if so desired. 62. The applicant has contended that if the prayers of the petitioners herein are allowed, it would amount to judicial legislation, for the Courts cannot add or delete words into a statute. It is stated that the words 'consent' and/or 'without consent' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpansive interpretation of 'sex' so as to include prohibition of discrimination on the ground of 'sexual orientation' and that sex-discrimination cannot be read as applying to gender simpliciter. Discrimination, as per the High Court's view, on the basis of sexual orientation is grounded in stereotypical judgments and generalization about the conduct of either sex. 67. Another facet of the Indian Constitution that the High Court delineated was that of inclusiveness as the Indian Constitution reflects this value of inclusiveness deeply ingrained in the Indian society and nurtured over several generations. The High Court categorically said that those who are perceived by the majority as deviants or different are not to be, on that score, excluded or ostracised. In the High Court's view, where a society displays inclusiveness and understanding, the LGBT persons can be assured of a life of dignity and non-discrimination. 68. It has been further opined by the High Court that the Constitution does not permit any statutory criminal law to be held captive of the popular misconceptions of who the LGBTs are, as it cannot be forgotten that discrimination is the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ither mandated by the Section nor condoned by it and the mere fact that the Section is misused by police authorities and others is not a reflection of the vires of the Section, though it might be a relevant factor for the Legislature to consider while judging the desirability of amending Section 377 of the Indian Penal Code. F. Other judicial pronouncements on Section 377 IPC 73. Presently, we may refer to some of the judgments and the views taken therein by this Court as well as by the High Courts on Section 377 IPC so as to have a holistic perspective. 74. While interpreting the said provision, the Courts have held that the provision stipulates certain acts, which when committed, would constitute a criminal offence. In Childline India Foundation and another v. Allan John Waters and others(2011) 6 SCC 261), the Court was dealing with carnal intercourse against the order of nature when the material on record showed that the accused Nos. 2 and 3 used to have sex and fellatio with PWs 1 and 4. The Court opined that the ingredients of Section 377 IPC were proved and, accordingly, restored the conviction and sentence of 6 years rigorous imprisonment and confirmed the im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the sin of sodomy. It is to be remembered that the Penal Code does not, except in Section 377, render abnormal sexual vice punishable at all. In England indecent assaults are punishable very severely. It is possible that under the Penal Code, some cases might be met by prosecuting the offender for simple assault, but that is a compoundable offence and in any case the patient could in no way be punished. It is to be supposed that the legislature intended that a Tigellinus should carry on his nefarious profession perhaps vitiating and depraving hundreds of children with perfect immunity? I doubt not, therefore, that coitus per os is punishable under Section 377 of the Penal Code. 76. In Suresh Koushal s case, there has also been a reference to the decision of the Gujarat High Court in Lohana Vasantlal Devchand v. State (AIR 1968 Guj 252) wherein the issue presented before the High Court was whether an offence under Section 377 read with Section 511 IPC had been committed on account of the convict putting his male organ in the mouth of the victim, if the act was done voluntarily by him. A contention was raised that there was no penetration and, therefore, there could not h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the organ visited; and that in the case of sexual act between the thighs, there is no possibility of penetration. 19. The word intercourse means sexual connection (Concise Oxford Dictionary). In Khanu v. Emperor the meaning of the word intercourse has been considered: (AIR p. 286) Intercourse may be defined as mutual frequent action by members of independent organisation. Then commercial intercourse, social intercourse, etc. have been considered; and then appears: By a metaphor the word intercourse, like the word commerce, is applied to the relations of the sexes. Here also there is the temporary visitation of one organism by a member of the other organisation, for certain clearly defined and limited objects. The primary object of the visiting organisation is to obtain euphoria by means of a detent of the nerves consequent on the sexual crisis. But there is no intercourse unless the visiting member is enveloped at least partially by the visited organism, for intercourse connotes reciprocity. Therefore, to decide whether there is intercourse or not, what is to be considered is whether the visiting organ is enveloped at least partially by the visited organism. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 79. In Calvin Francis v. State of Orissa (1992 (1) OLR 316) , the Orissa High Court had reproduced certain passages from Corpus Juris Secundum, Vol. 81, pp. 368-70. We may reproduce the same:- A statute providing that any person who shall commit any act or practice of sexual perversity, either with mankind or beast, on conviction shall be punished, is not limited to instances involving carnal copulation, but is restricted to cases involving the sex organ of at least one of the parties. The term sexual perversity does not refer to every physical contact by a male with the body of the female with intent to cause sexual satisfaction to the actor, but the condemnation of the statute is limited to unnatural conduct performed for the purpose of accomplishing abnormal sexual satisfaction for the actor. Under a statute providing that any person participating in the act or copulating the mouth of one person with the sexual organ of another is guilty of the offence a person is guilty of violating the statute when he has placed his mouth on the genital organ of another, and the offence may be committed by two persons of opposite sex. 80. Referring to the said decision, the tw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... developments taking place in the society. It was highlighted by this Court in the case of Chief Justice of Andhra Pradesh and others v. L.V.A. Dixitulu and others(1979) 2 SCC 34) that the Constitution is a living, integrated organism having a soul and consciousness of its own and its pulse beats, emanating from the spinal cord of its basic framework, can be felt all over its body, even in the extremities of its limbs. 83. In the case of Saurabh Chaudri and others v. Union of India and others(2003) 11 SCC 146), it was observed:- Our Constitution is organic in nature, being a living organ, it is ongoing and with the passage of time, law must change. Horizons of constitutional law are expanding. 84. Thus, we are required to keep in view the dynamic concepts inherent in the Constitution that have the potential to enable and urge the constitutional courts to beam with expansionism that really grows to adapt to the ever-changing circumstances without losing the identity of the Constitution. The idea of identity of the individual and the constitutional legitimacy behind the same is of immense significance. Therefore, in this context, the duty of the constitutional courts gets ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d interpret the same as per the standards of equality that existed decades ago. The judiciary cannot remain oblivious to the fact that the society is constantly evolving and many a variation may emerge with the changing times. There is a constant need to transform the constitutional idealism into reality by fostering respect for human rights, promoting inclusion of pluralism, bringing harmony, that is, unity amongst diversity, abandoning the idea of alienation or some unacceptable social notions built on medieval egos and establishing the cult of egalitarian liberalism founded on reasonable principles that can withstand scrutiny. 87. In Ashok Kumar Gupta (supra), the Court had observed that common sense has always served in the court's ceaseless striving as a voice of reason to maintain the blend of change and continuity of order which are sine qua non for stability in the process of change in a parliamentary democracy. The Court ruled that it is not bound to accept an interpretation which retards the progress or impedes social integration. The Court further observed that it is required to adopt such interpretation which would give the ideals set out in the Preamble to the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsignificant in numbers, are still human beings and therefore they have every right to enjoy their human rights. The living document concept finds place in several international authorities as well. The courts in other jurisdictions have endorsed the view that the Constitution is forever evolving in nature and that a progressive approach is mandated by the principles inherent in the Constitution itself. 91. The Supreme Court of Canada, while giving an expansive interpretation to marriage by including same-sex unions within its encompass, in Re: Same Sex Marriage[2004] 3 S.C.R. 698], has observed:- The frozen concepts reasoning runs contrary to one of the most fundamental principles of Canadian constitutional interpretation: that our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life. 92. As early as the 1920s, the Supreme Court of the United States in the case of State of Missouri v. Holland(252 U.S. 416 (1920), while making a comparison between the instrument in dispute' and the 'Constitution', had made the following observations with regard to the nature of the Constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iding laser beam. The ultimate goal of our magnificent Constitution is to make right the upheaval which existed in the Indian society before the adopting of the Constitution. The Court in State of Kerala and another v. N.M. Thomas and others(AIR 1976 SC 490) observed that the Indian Constitution is a great social document, almost revolutionary in its aim of transforming a medieval, hierarchical society into a modern, egalitarian democracy and its provisions can be comprehended only by a spacious, social-science approach, not by pedantic, traditional legalism. The whole idea of having a Constitution is to guide the nation towards a resplendent future. Therefore, the purpose of having a Constitution is to transform the society for the better and this objective is the fundamental pillar of transformative constitutionalism. 96. The concept of transformative constitutionalism has at its kernel a pledge, promise and thirst to transform the Indian society so as to embrace therein, in letter and spirit, the ideals of justice, liberty, equality and fraternity as set out in the Preamble to our Constitution. The expression transformative constitutionalism can be best understood by embrac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es at the heart of our constitutional democracy. 100. In Bato Star Fishing (Pty) Ltd v. Minister of Environmental Affairs and Tourism and others[2004] ZACC 15], the Constitutional Court of South Africa opined:- The achievement of equality is one of the fundamental goals that we have fashioned for ourselves in the Constitution. Our constitutional order is committed to the transformation of our society from a grossly unequal society to one in which there is equality between men and women and people of all races . In this fundamental way, our Constitution differs from other constitutions which assume that all are equal and in so doing simply entrench existing inequalities. Our Constitution recognises that decades of systematic racial discrimination entrenched by the apartheid legal order cannot be eliminated without positive action being taken to achieve that result. We are required to do more than that. The effects of discrimination may continue indefinitely unless there is a commitment to end it. 101. Davies Asking the Law Question: The Dissolution of Legal Theory 205 (2002), Margaret Davies. understands transformation as follows:- Transformation which is based on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the process of transformative constitutionalism is dedicated to this purpose. It has been observed by Albertyn Goldblatt 47 :- The challenge of achieving equality within this transformation project involves the eradication of systemic forms of discrimination and material disadvantage based on race, gender, class and other forms of inequality. It also entails the development of opportunities which allow people to realise their full human potential within positive social relationships. 105. In Investigating Directorate: Serious Economic Offences and others v. Hyundai Motor Distributors (Pty) Ltd and others: In Re Hyundai Motor Distributors (Pty) Ltd and others v. Smit NO and others(2001 (1) SA 545 (CC), the Constitutional Court of South Africa observed:- The Constitution is located in a history which involves a transition from a society based on division, injustice and exclusion from the democratic process to one which respects the dignity of all citizens and includes all in the process of governance. As such, the process of interpreting the Constitution must recognise the context in which we find ourselves and the Constitution's goal of a society based on d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Court, for the protection of this right, issued preventive, remedial and punitive measures to curb the menace of honour killings. The Court observed:- When the ability to choose is crushed in the name of class honour and the person s physical frame is treated with absolute indignity, a chilling effect dominates over the brains and bones of the society at large. 109. An argument is sometimes advanced that what is permissible between two adults engaged in acceptable sexual activity is different in the case of two individuals of the same sex, be it homosexuals or lesbians, and the ground of difference is supported by social standardization. Such an argument ignores the individual orientation, which is naturally natural, and disrobes the individual of his/her identity and the inherent dignity and choice attached to his/her being. 110. The principle of transformative constitutionalism also places upon the judicial arm of the State a duty to ensure and uphold the supremacy of the Constitution, while at the same time ensuring that a sense of transformation is ushered constantly and endlessly in the society by interpreting and enforcing the Constitution as well as other provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he aim of securing to the citizens of our country inalienable rights which were essential for fostering a spirit of growth and development and at the same time ensuring that the three organs of the State working under the aegis of the Constitution and deriving their authority from the supreme document, that is, the Constitution, practise constitutional morality. The Executive, the Legislature and the Judiciary all have to stay alive to the concept of constitutional morality. 114. In the same speech Ibid 51 Grote, A History of Greece. Routledge, London, 2000, p. 93, Dr. Ambedkar had quoted George Grote who had observed:- The diffusion of 'constitutional morality', not merely among the majority of any community, but throughout the whole is the indispensable condition of a government at once free and peaceable; since even any powerful and obstinate minority may render the working of a free institution impracticable, without being strong enough to conquer ascendance for themselves. 51 This statement of Dr. Ambedkar underscores that constitutional morality is not a natural forte for our country for the simple reason that our country had attained freedom after a long perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rner justification must possess the potentiality to be in harmony with the constitutional impulse. We may give an example. When one is expressing an idea of generosity, he may not be meeting the standard of justness. There may be an element of condescension. But when one shows justness in action, there is no feeling of any grant or generosity. That will come within the normative value. That is the test of constitutional justness which falls within the sweep of constitutional morality. It advocates the principle of constitutional justness without subjective exposition of generosity. 119. The duty of the constitutional courts is to adjudge the validity of law on well-established principles, namely, legislative competence or violations of fundamental rights or of any other constitutional provisions. At the same time, it is expected from the courts as the final arbiter of the Constitution to uphold the cherished principles of the Constitution and not to be remotely guided by majoritarian view or popular perception. The Court has to be guided by the conception of constitutional morality and not by the societal morality. 120. We may hasten to add here that in the context of the is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into force the Constitution of India. Thus, the adoption of the Constitution, was, in a way, an instrument or agency for achieving constitutional morality and means to discourage the prevalent social morality at that time. A country or a society which embraces constitutional morality has at its core the well-founded idea of inclusiveness. 124. While testing the constitutional validity of impugned provision of law, if a constitutional court is of the view that the impugned provision falls foul to the precept of constitutional morality, then the said provision has to be declared as unconstitutional for the pure and simple reason that the constitutional courts exist to uphold the Constitution. J. Perspective of human dignity 125. While discussing about the role of human dignity in gay rights adjudication and legislation, Michele Finck 53 observes:- As a concept devoid of a precise legal meaning, yet widely appealing at an intuitive level, dignity- can be easily manipulated and transposed into a number of legal contexts. With regard to the rights of lesbian and gay individuals, dignity captures what Nussbaum described as the transition from disgust to humanity. Once l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any obsession with them but he/she may abhor to be denuded of them, for they are sacred to him/her and so inseparably associated that he/she may not conceive of any dissolution. He/she would like others to respect the said attributes with a singular acceptable condition that there is mutual respect. Mutual respect abandons outside interference and is averse to any kind of interdiction. It is based on the precept that the individuality of an individual is recognized, accepted and respected. Such respect for the conception of dignity has become a fundamental right under Article 21 of the Constitution and that ushers in the right of liberty of expression. Dignity and liberty as a twin concept in a society that cares for both, apart from painting a grand picture of humanity, also smoothens the atmosphere by promoting peaceful co-existence and thereby makes the administration of justice easy. In such a society, everyone becomes a part of the social engineering process where rights as inviolable and sacrosanct principles are adhered to; individual choice is not an exception and each one gets his/her space. Though no tower is built, yet the tower of individual rights with peaceful co-exis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he real fulcrum of any sexual relationship. 133. In this context, we may travel a little abroad. In Law v. Canada (Minister of Employment and Immigration) 1999 1 S.C.R. 497 capturing the essence of dignity, the Supreme Court of Canada has made the following observations:- Human dignity means that an individual or group feels self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits. It is enhanced by laws which are sensitive to the needs, capacities, and merits of different individuals, taking into account the context underlying their differences. Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognise the full place of all individuals and groups within Canadian society. 134. It is not only the duty of the State and the Judiciary to protect this basic right to dignity, but the collective at large also owes a responsibility to respect one another's dignity, for showing respect for the dignity of ano ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an essential component of liberty. Liberty as a concept has to be given its due place in the realm of dignity, for both are connected with the life and living of a persona. K. Sexual orientation 139. After stating about the value of dignity, we would have proceeded to deal with the cherished idea of privacy which has recently received concrete clarity in Puttaswamy s case. Prior to that, we are advised to devote some space to sexual orientation and the instructive definition of LGBT by Michael Kirby, former Judge of the High Court of Australia:- Homosexual: People of either gender who are attracted, sexually, emotionally and in relationships, to persons of the same sex. Bisexual: Women who are attracted to both sexes; men who are attracted to both sexes. Lesbian: Women who are attracted to women. Gay: Men who are attracted to men, although this term is sometimes also used generically for all same-sex attracted persons. Gender identity: A phenomenon distinct from sexual orientation which refers to whether a person identifies as male or female. This identity' may exist whether there is conformity or non-conformity between their physical or biological or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xual orientation thus:- Sexual Orientation is understood to refer to each person's capacity for profound emotional, affectional and sexual attraction to and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender. 142. In its study, the American Psychological Association has attempted to define sexual orientation in the following manner:- Sexual orientation refers to an enduring pattern of emotional, romantic and/or sexual attractions to men. women or both sexes. Sexual orientation also refers to a person's sense of identity based on those attractions, related behaviors, and membership in a community of others who share those attractions. Research over several decades has demonstrated that sexual orientation ranges along a continuum, from exclusive attraction to the other sex to exclusive attraction to the same sex. 61 143. From the aforesaid, it has to be appreciated that homosexuality is something that is based on sense of identity. It is the reflection of a sense of emotion and expression of eagerness to establish intimacy. It is just as much ingrained, inherent and innate as heterosexuality. Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irrespective of the different moral values and standards of a particular culture. Contrary to what some imply, the incidence of homosexuality in a population does not appear to change with new moral codes or social mores. Research findings suggest that efforts to repair homosexuals are nothing more than social prejudice garbed in psychological accouterments. (Emphasis is ours) 146. In the said context, the observations made by Leonard Sax to the following effect are relevant and are reproduced below:- Biologically, the difference between a gay man and a straight man is something like the difference between a left-handed person and a right-handed person. Being left- handed isn't just a phase. A left-handed person won't someday magically turn into a right-handed person.... Some children are destined at birth to be left-handed, and some boys are destined at birth to grow up to be gay. 147. The Supreme Court of Canada in the case of James Egan and John Norris Nesbit v. Her Majesty The Queen in Right of Canada and another[1995] 2 SCR 513], while holding that sexual orientation is one of the grounds for claiming the benefit under Section 15(1) as it is analogous t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nition of the quintessential facet of humanity in a person s nature. The autonomy establishes identity and the said identity, in the ultimate eventuate, becomes a part of dignity in an individual. This dignity is special to the man/woman who has a right to enjoy his/her life as per the constitutional norms and should not be allowed to wither and perish like a mushroom. It is a directional shift from conceptual macrocosm to cognizable microcosm. When such culture grows, there is an affirmative move towards a more inclusive and egalitarian society. Non-acceptance of the same would tantamount to denial of human rights to people and one cannot be oblivious of the saying of Nelson Mandela to deny people their human rights is to challenge their very humanity. 150. Article 12 of the Universal Declaration of Human Rights, (1948) makes a reference to privacy by stating:- No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks. 151. Similarly, Article 17 of the International Covenant of Civil and Pol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... U.S. 49 (1973) wherein he observed that only the most willful blindness could obscure the fact that sexual intimacy is a sensitive, key relationship of human existence, central to family life, community welfare and the development of human personality. Justice Blackmun went on to observe:- The fact that individuals define themselves in a significant way through their intimate sexual relationships with others suggests, in a Nation as diverse as ours, that there may be many right ways of conducting those relationships, and that much of the richness of a relationship will come from the freedom an individual has to choose the form and nature of these intensely personal bonds. In a variety of circumstances, we have recognized that a necessary corollary of giving individuals freedom to choose how to conduct their lives is acceptance of the fact that different individuals will make different choices. 157. In A.R. Coeriel and M.A.R. Aurik v. The Netherlands Communication No. 453/1991, para. 10.2 , the Human Rights Committee observed that the notion of privacy refers to the sphere of a person's life in which he or she can freely express his or her identity, be it by enteri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder should not be denied even while acknowledging the importance of equality. In fact, emphasising the breach of both these rights in the present case highlights just how egregious the invasion of the constitutional rights of gay persons has been. The offence which lies at the heart of the discrimination in this case constitutes, at the same time and independently, a breach of the rights of privacy and dignity which, without doubt, strengthens the conclusion that the discrimination is unfair. 160. At home, the view as to the right to privacy underwent a sea-change when a nine-Judge Bench of this Court in Puttaswamy (supra) elevated the right to privacy to the stature of fundamental right under Article 21 of the Constitution. One of us, Chandrachud, J., speaking for the majority, regarded the judgment in Suresh Koushal as a discordant note and opined that the reasons stated therein cannot be regarded as a valid constitutional basis for disregarding a claim based on privacy under Article 21 of the Constitution. Further, he observed that the reasoning in Suresh Koushal s decision to the effect that a minuscule fraction of the country's population constitutes lesbians, gays, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n sound constitutional doctrine. The Court went on to observe that the rights of the LGBT community inhere in the right to life, dwell in privacy and dignity and they constitute the essence of liberty and freedom. Further, the Court observed that sexual orientation being an essential component of identity, equal protection demands equal protection of the identity of every individual without discrimination. 166. Speaking in the same tone and tenor, Kaul, J., while concurring with the view of Chandrachud, J., observed that the right to privacy cannot be denied even if there is a minuscule fraction of the population which is affected. He was of the view that the majoritarian concept does not apply to constitutional rights and the Courts are often called upon to take what may be categorized as a non-majoritarian view. 167. Kaul, J. went on to opine that one s sexual orientation is undoubtedly an attribute of privacy and in support of this view, he referred to the observations made in Mosley (supra) which read thus:- 130... It is not simply a matter of personal privacy v. the public interest. The modern perception is that there is a public interest in respecting personal priva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Court from protecting the fundamental rights of those who are so affected by the present Section 377 IPC. 170. The constitutional framers could have never intended that the protection of fundamental rights was only for the majority population. If such had been the intention, then all provisions in Part III of the Constitution would have contained qualifying words such as 'majority persons' or 'majority citizens'. Instead, the provisions have employed the words 'any person and any citizen' making it manifest that the constitutional courts are under an obligation to protect the fundamental rights of every single citizen without waiting for the catastrophic situation when the fundamental rights of the majority of citizens get violated. 171. Such a view is well supported on two counts, namely, one that the constitutional courts have to embody in their approach a telescopic vision wherein they inculcate the ability to be futuristic and do not procrastinate till the day when the number of citizens whose fundamental rights are affected and violated grow in figures. In the case at hand, whatever be the percentage of gays, lesbians, bisexuals and transge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oup. But, for the classification to be valid, it must be founded on an intelligible differentia and the differentia must have a rational nexus with the object sought to be achieved by a particular provision of law. 176. That apart, since it is alleged that Section 377 IPC in its present form violates a fundamental right protected by Article 21 of the Constitution, that is, the right to personal liberty, it has to not only stand the test of Article 21 but it must also stand the test of Article 19 which is to say that the restriction imposed by it has to be reasonable and also that of Article 14 which is to say that Section 377 must not be arbitrary. 177. Whether Section 377 stands the trinity test of Articles 14, 19 and 21 as propounded in the case of Maneka Gandhi (supra) will be ascertained and determined at a later stage of this judgment when we get into the interpretative dissection of Section 377 IPC. M. Doctrine of progressive realization of rights 178. When we talk about the rights guaranteed under the Constitution and the protection of these rights, we observe and comprehend a manifest ascendance and triumphant march of such rights which, in turn, paves the wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s:- Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional. 181. In Manoj Narula (supra), the Court recognized the dynamic nature of the Indian Constitution and observed that it is a living document with capabilities of enormous dynamism. It is a Constitution made for a progressive society and the working of such a Constitution depends upon the prevalent atmosphere and conditions. 182. In Government of NCT of Delhi (supra), the Court, while contemplating on what is it that makes a Constitution a dynamic and a living document, observed that it is the philosophy of 'constitutional culture' which, as a set of norms and practices, breathes life into the words of the great document and it constantly enables the words to keep stride with the rapid and swift changes occurring in the society and the responsibility of fostering a constitutional culture rests upon the shoulders of the State. Thereafter, the Court went on to observe:- The Constitutional Courts, while i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1984) which read as follows:- Legal policy now stands enthroned and will I hope remain one of the foremost considerations governing the development by the House of Lords of the common law. What direction should this development now take? I can think of several occasions upon which we have all said to ourselves:- this case requires a policy decision what is the right policy decision? The answer is, and I hope will hereafter be, to follow that route which is most consonant with the current needs of the society, and which will be seen to be sensible and will pragmatically thereafter be easy to apply. No doubt the Law Lords will continue to be the targets for those academic lawyers who will seek intellectual perfection rather than imperfect pragmatism. But much of the common law and virtually all criminal law, distasteful as it may be to some to have to acknowledge it. is a blunt instrument by means of which human beings, whether they like it or not, are governed and subject to which they are required to live, and blunt instruments are rarely perfect intellectually or otherwise. By definition they operate bluntly and not sharply. [Emphasis supplied] 186. What the words of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e United States in Obergefell, et al. v. Hodges, Director, Ohio Department of Health, et al. 576 US (2015), highlighting the plight of homosexuals, observed that until the mid-20th century, same-sex intimacy had long been condemned as immoral by the State itself in most Western nations and a belief was often embodied in the criminal law and for this reason, homosexuals, among others, were not deemed to have dignity in their own distinct identity. The Court further noted that truthful declaration by same-sex couples of what was in their hearts had to remain unspoken and even when a greater awareness of the humanity and integrity of homosexual persons came in the period after World War II, the argument that gays and lesbians had a just claim to dignity was in conflict with both law and widespread social conventions. The Court also observed that same-sex intimacy remained a crime in many States and that gays and lesbians were prohibited from most government employment, barred from military service, excluded under immigration laws, targeted by the police and burdened in their rights to associate. 192. The Court further observed that what the statutes in question seek to control is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mination because it is associational discrimination on the basis of sex, in which an employer discriminates against lesbian, gay, or bisexual employees based on who they date or marry. Id. at *6-7. Finally, the EEOC described sexual orientation discrimination as a form of discrimination based on gender stereotypes in which employees are harassed or punished for failing to live up to societal norms about appropriate masculine and feminine behaviors, mannerisms, and appearances. Id. In coming to these conclusions, the EEOC noted critically that courts have attempted to distinguish discrimination based on sexual orientation from discrimination based on sex, even while noting that the borders [between the two classes] are imprecise. Id. at *8 (quoting Simonton, 232 F.3d at 35). [Underlining is ours] 195. In the case of Lawrence v. Texas(539 U.S. 558 (2003), while dealing with the issue of decriminalization of sexual conduct between homosexuals, the U.S. Supreme Court observed that the said issue neither involved minors nor persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused nor did it involve public conduct or pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional or ethnic origin, colour, religion, sex, age or physical disability. 198. In Delwin Vriend, the Supreme Court of Canada, relying on the reasoning adopted by it in Egan v. Canada (supra), applied its well-known test of grounds analogous to those specified textually. The Egan test is:- In Egan, it was said that there are two aspects which are relevant in determining whether the distinction created by the law constitutes discrimination. First, whether the equality right was denied on the basis of a personal characteristic which is either enumerated in s. 15(1) or which is analogous to those enumerated . Second whether that distinction has the effect on the claimant of imposing a burden, obligation or disadvantage not imposed upon others or of withholding or limiting access to benefits or advantages which are available to others (para. 131). A discriminatory distinction was also described as one which is capable of either promoting or perpetuating the view that the individual adversely affected by this distinction is less capable, or less worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en. There can be no doubt that the existence of a law which punishes a form of sexual expression for gay men degrades and devalues gay men in our broader society. As such it is a palpable invasion of their dignity and a breach of section 10 of the Constitution. (iv) United Kingdom 201. In Euan Sutherland v. United Kingdom2001 ECHR 234, the issue before the European Commission of Human Rights was whether the difference in age limit for consent for sexual activities for homosexuals and heterosexuals, the age limit being 16 years in the case of heterosexuals and 18 years in the case of homosexuals, is justified. While considering the same, the Commission observed that no objective and reasonable justification exists for the maintenance of a higher minimum age of consent in case of male homosexuals as compared to heterosexuals and that the application discloses discriminatory treatment in the exercise of the applicant's right to respect for private life under Article 8 of the Convention. The Commission further observed that sexual orientation was usually established before the age of puberty in both boys and girls and referred to evidence that reducing the age of consent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... factors. This being so, the criminalization of certain behaviour operating under Sections 122(a), (c) and 123 of the Tasmanian Criminal Code must be considered incompatible with article 26 of the Covenant. Firstly, these provisions of the Tasmanian Criminal Code prohibit sexual intercourse between men and between women, thereby making a distinction between heterosexuals and homosexuals. Secondly, they criminalize other sexual contacts between consenting men without at the same time criminalizing such contacts between women. These provisions therefore set aside the principle of equality before the law. It should be emphasized that it is the criminalization as such that constitutes discrimination of which individuals may claim to be victims, and thus violates article 26, notwithstanding the fact that the law has not been enforced over a considerable period of time: the designated behaviour none the less remains a criminal offence. 204. In Dudgeon (supra), the European Court of Human Rights made the following observations with respect to homosexuality:- It cannot be maintained in these circumstances that there is a pressing social need to make such acts criminal offences, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 I.-For the purposes of this section, vagina shall also include labia majora. Explanation 2. - Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. Exception I.-A medical procedure or intervention shall not constitute rape. Exception 2. -Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.'. 206. A cursory reading of Section 375 IPC divulges that it is a gender specific provision for the protectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve of the fact whether the woman has given her consent or not, if, at the time when the acts were committed, the woman was below the age of eighteen years. Coming to the seventh and the last description, it provides that the acts prescribed in the former part would amount to rape if the woman is unable to communicate her consent. 209. Explanation 2 to Section 375 IPC gives the definition of consent for the purpose of Section 375 to the effect that consent means an unequivocal voluntary agreement by the woman through words, gestures or any form of verbal or non-verbal communication whereby she communicates her willingness to participate in any of the sexual acts described in the former part of Section 375 IPC. 210. We have scrutinized the anatomy of the seven descriptions contained in the latter part of Section 375 IPC along with Explanation 2 to Section 375 IPC to emphasize and accentuate that the element of absence of consent is firmly ingrained in all the descriptions contained in the latter part of Section 375 IPC and the absence of a willful and informed consent is sine qua non to designate the acts contained in the former part of Section 375 IPC as rape. 211. Presently, we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al satisfactions to be found in no other relationships. For many people it is the refuge from the coldness and impersonality of contemporary existence. 216. In the contemporary world where even marriage is now not equated to procreation of children, the question that would arise is whether homosexuality and carnal intercourse between consenting adults of opposite sex can be tagged as against the order of nature . It is the freedom of choice of two consenting adults to perform sex for procreation or otherwise and if their choice is that of the latter, it cannot be said to be against the order of nature. Therefore, sex, if performed differently, as per the choice of the consenting adults, does not per se make it against the order of nature. 217. Section 377 criminalises even voluntary carnal intercourse not only between homosexuals but also between heterosexuals. The major difference between the language of Section 377 and Section 375 is that of the element of absence consent which has been elaborately incorporated in the seven descriptions contained in the latter part of Section 375 IPC. It is the absence of willful and informed consent embodied in the seven descriptions to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nother aspect which needs to be discussed, which is whether criminalisation of carnal intercourse under Section 377 serves any useful purpose under the prevalent criminal law. Delineating on this aspect, the European Commission of Human Rights in Dudgeon (supra) opined thus:- The 1967 Act, which was introduced into Parliament as a Private Member s Bill, was passed to give effect to the recommendations concerning homosexuality made in 1957 in the report of the Departmental Committee on Homosexual Offences and Prostitution established under the chairman ship of Sir John Wolfenden (the Wolfenden Committee and Wolfenden report ). The Wolfenden Committee regarded the function of the criminal law in this field as: to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others, particularly those who are specially vulnerable because they are young, weak in body or mind, inexperienced, or in a state of special physical, official, or economic dependence , but not to intervene in the private lives of citizens, or to seek to enforce any particular pattern of behavi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . But it is a reasonable proposition that the measures to safeguard such a guarantee of autonomy should not be so strong that the essence of the guarantee is lost. State protection must not translate into censorship. 227. In Common Cause (A Regd. Society) (supra), the Court, in the context of right to dignity, observed:- Right to life and liberty as envisaged under Article 21 is meaningless unless it encompasses within its sphere individual dignity and right to dignity includes the right to carry such functions and activities as would constitute the meaningful expression of the human self. 228. In Puttaswamy (supra), the right to privacy has been declared to be a fundamental right by this Court as being a facet of life and personal liberty protected under Article 21 of the Constitution. 229. In view of the above authorities, we have no hesitation to say that Section 377 IPC, in its present form, abridges both human dignity as well as the fundamental right to privacy and choice of the citizenry, howsoever small. As sexual orientation is an essential and innate facet of privacy, the right to privacy takes within its sweep the right of every individual including that of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ike should be treated alike . In other words, it implies equal treatment for all equals. Though the legislature is fully empowered to enact laws applicable to a particular class, as in the case at hand in which Section 377 applies to citizens who indulge in carnal intercourse, yet the classification, including the one made under Section 377 IPC, has to satisfy the twin conditions to the effect that the classification must be founded on an intelligible differentia and the said differentia must have a rational nexus with the object sought to be achieved by the provision, that is, Section 377 IPC. 234. In M. Nagaraj and others v. Union of India and others (AIR 2007 SC 71 : (2006) 8 SCC 212), it has been held:- The gravamen of Article 14 is equality of treatment. Article 14 confers a personal right by enacting a prohibition which is absolute. By judicial decisions, the doctrine of classification is read into Article 14. Equality of treatment under Article 14 is an objective test. It is not the test of intention. Therefore, the basic principle underlying Article 14 is that the law must operate equally on all persons under like circumstances. 235. In E.P. Royappa v. State of Tami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ple (LGBTs) owning to some inherent characteristics defined by their identity and individuality, have been woefully targeted. This discrimination and unequal treatment meted out to the LGBT community as a separate class of citizens is unconstitutional for being violative of Article 14 of the Constitution. 238. In Shayara Bano (supra), the Court observed that manifest arbitrariness of a provision of law can also be a ground for declaring a law as unconstitutional. Opining so, the Court observed thus:- The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply to invalidate legislation as well as subordinate legislation under Article 14. Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well under Article 14. 239. In view of the law laid down in Shayara Bano (supra) an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word reasonable implies intelligent care and deliberation, that is, the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in article 19(1)(g) and the social control permitted by clause (6) of article 19, it must be held to be wanting in that quality. 242. In S. Rangarajan v. P. Jagjivan Ram and others(1989) 2 SCC 574), the Court observed, though in a different context, thus:- ... Our commitment of freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should have proximate and direct nexus with the expression. 243. In S. Khushboo (supra), this Court, while observing that morality and decency on the basis of which reasonable restri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... festly not only overboard and vague but also has a chilling effect on an individual s freedom of choice. 247. In view of the test laid down in the aforesaid authorities, Section 377 IPC does not meet the criteria of proportionality and is violative of the fundamental right of freedom of expression including the right to choose a sexual partner. Section 377 IPC also assumes the characteristic of unreasonableness, for it becomes a weapon in the hands of the majority to seclude, exploit and harass the LGBT community. It shrouds the lives of the LGBT community in criminality and constant fear mars their joy of life. They constantly face social prejudice, disdain and are subjected to the shame of being their very natural selves. Thus, an archaic law which is incompatible with constitutional values cannot be allowed to be preserved. 248. Bigoted and homophobic attitudes dehumanize the transgenders by denying them their dignity, personhood and above all, their basic human rights. It is important to realize that identity and sexual orientation cannot be silenced by oppression. Liberty, as the linchpin of our constitutional values, enables individuals to define and express their ident ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that has made them look for the rainbow in every cloud and lead the way to a future that would be the harbinger of liberation and emancipation from a certain bondage indescribable in words towards the basic recognition of dignity and humanity of all and towards leading a life without pretence eschewing duality and ambivalence. It is their momentous walk to freedom and journey to a constitutional ethos of dignity, equality and liberty and this freedom can only be fulfilled in its truest sense when each of us realize that the LGBT community possess equal rights as any other citizen in the country under the magnificent charter of rights our Constitution. 252. Thus analysed, Section 377 IPC, so far as it penalizes any consensual sexual activity between two adults, be it homosexuals (man and a man), heterosexuals (man and a woman) and lesbians (woman and a woman), cannot be regarded as constitutional. However, if anyone, by which we mean both a man and a woman, engages in any kind of sexual activity with an animal, the said aspect of Section 377 IPC is constitutional and it shall remain a penal offence under Section 377 IPC. Any act of the description covered under Section 377 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of their intent and purpose in consonance with the changing times. Transformative constitutionalism not only includes within its wide periphery the recognition of the rights and dignity of individuals but also propagates the fostering and development of an atmosphere wherein every individual is bestowed with adequate opportunities to develop socially, economically and politically. Discrimination of any kind strikes at the very core of any democratic society. When guided by transformative constitutionalism, the society is dissuaded from indulging in any form of discrimination so that the nation is guided towards a resplendent future. (v) Constitutional morality embraces within its sphere several virtues, foremost of them being the espousal of a pluralistic and inclusive society. The concept of constitutional morality urges the organs of the State, including the Judiciary, to preserve the heterogeneous nature of the society and to curb any attempt by the majority to usurp the rights and freedoms of a smaller or minuscule section of the populace. Constitutional morality cannot be martyred at the altar of social morality and it is only constitutional morality that can be allowed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, for the language employed in Part III of the Constitution as well as the intention of the framers of our Constitution mandates that the Courts must step in whenever there is a violation of the fundamental rights, even if the right/s of a single individual is/are in peril. (ix) There is a manifest ascendance of rights under the Constitution which paves the way for the doctrine of progressive realization of rights as such rights evolve with the evolution of the society. This doctrine, as a natural corollary, gives birth to the doctrine of non-retrogression, as per which there must not be atavism of constitutional rights. In the light of the same, if we were to accept the view in Suresh Koushal (supra), it would tantamount to a retrograde step in the direction of the progressive interpretation of the Constitution and denial of progressive realization of rights. (x) Autonomy is individualistic. Under the autonomy principle, the individual has sovereignty over his/her body. He/she can surrender his/her autonomy wilfully to another individual and their intimacy in privacy is a matter of their choice. Such concept of identity is not only sacred but is also in recognition of the q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a distinction between non-consensual and consensual sexual acts of competent adults in private space which are neither harmful nor contagious to the society. Section 377 IPC subjects the LGBT community to societal pariah and dereliction and is, therefore, manifestly arbitrary, for it has become an odious weapon for the harassment of the LGBT community by subjecting them to discrimination and unequal treatment. Therefore, in view of the law laid down in Shayara Bano (supra), Section 377 IPC is liable to be partially struck down for being violative of Article 14 of the Constitution. (xvi) An examination of Section 377 IPC on the anvil of Article 19(1)(a) reveals that it amounts to an unreasonable restriction, for public decency and morality cannot be amplified beyond a rational or logical limit and cannot be accepted as reasonable grounds for curbing the fundamental rights of freedom of expression and choice of the LGBT community. Consensual carnal intercourse among adults, be it homosexual or heterosexual, in private space, does not in any way harm the public decency or morality. Therefore, Section 377 IPC in its present form violates Article 19(1)(a) of the Constitution. (xvii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penile non-vaginal sex and penile non-vaginal sex involving minors. By adult we mean everyone who is 18 years of age and above. A person below 18 would be presumed not to be able to consent to a sexual act. This clarification will hold till, of course, Parliament chooses to amend the law to effectuate the recommendation of the Law Commission of India in its 172nd Report which we believe removes a great deal of confusion. Secondly, we clarify that our judgment will not result in the re-opening of criminal cases involving Section 377 IPC that have already attained finality. We allow the writ petition in the above terms. 4. Despite the fact that no appeal was filed by the Union of India, in appeals filed by private individuals and groups, the Supreme Court in Suresh Kumar Koushal and Anr. v. Naz Foundation and Ors. ( Suresh Kumar Koushal ), (2014) 1 SCC 1, reversed the judgment of the High Court. Reviews that were filed against the aforesaid judgment, including by the Union of India, were dismissed by this Court. 5. Meanwhile, the Supreme Court delivered an important judgment reported as National Legal Services Authority v. Union of India ( NALSA ), (2014) 5 SCC 438, which c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commission. 2 10. The Indian Law Commission, with Macaulay as its head, submitted the Draft Penal Code to the Government of India on 14.10.1837. This draft consisted of 488 clauses. After the First Report submitted on 23.07.1846, the Second Report of Her Majesty s Commissioners for revising and consolidating the law was submitted by C.H. Cameron and D. Eliott on 24.06.1847. These Commissioners concluded that the Draft Penal Code was sufficiently complete, and, with slight modifications, fit to be acted upon. The revised edition of the Penal Code was then forwarded to the Judges of the Supreme Court at Calcutta on 30.05.1851, and also to the Judges of the Sudder Court at Calcutta. 11. The revised edition of the Penal Code as prepared by Mr. Bethune, the Legislative member of the Legislative Council of India, together with the views of the Chief Justice and Mr. Justice Buller of the Supreme Court at Calcutta, as well as those of Mr. Justice Colvile were sent to the Company in London. The Court of Directors in London were anxious to see the Penal Code enacted as early as possible. They, therefore, constituted a Council in which Sir Barnes Peacock was made the fourth memb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an a mere digest of existing laws, covering all contingencies, and nothing that is not in the Code ought to be law . It should suppress crime with the least infliction of suffering and allow for the ascertaining of the truth at the smallest possible cost of time and money. Its language should be clear, unequivocal and concise. Every criminal act should be separately defined, its language followed precisely in indictment and conduct found to fall clearly within the definition. Uniformity was to be the chief end and special definitions, procedures or other exceptions to account for different races or sects should not be included without clear and strong reasons. 17. It is interesting to note that Lord Macaulay s Draft was substantially different from what was enacted as Section 377. Macaulay s original draft read:- 361. Whoever, intending to gratify unnatural lust, touches for that purpose any person, or any animal, or is by his own consent touched by any person, for the purpose of gratifying unnatural lust, shall be punished with imprisonment of either description for a term which may extend to fourteen years and must not be less than two years, and shall be liable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anal sex between consenting adults, whether same-sex or otherwise, would not be penalized. Law in the United Kingdom 21. As has been mentioned earlier in this judgment, the first enactment prohibiting same-sex intercourse was passed in the year 1533 in the reign of Henry VIII. The death penalty was prescribed even for consenting adults who indulged in this abomination . The trial of persons such as Oscar Wilde is what led to law reform in the U.K., albeit 60 years later. 22. The Marquess of Queensberry s son, Lord Alfred Douglas, was having an affair with Oscar Wilde, which the Marquess discovered. At Oscar Wilde s club, the Marquess left a note describing Oscar Wilde as a somdomite which led to one of the most celebrated defamation actions in England. In the course of his cross-examination of Oscar Wilde, Sir Edward Carson was able to draw from his famous witness the fact that boys could be plain or ugly, which would have led to the truth of establishing the charge against Oscar Wilde. Rather than go on with the trial, Oscar Wilde hastily withdrew his action for defamation. But that was not the end. A prosecution under the Criminal Law Amendment Act of 1885 followe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s sexual propensity happens to lie in the direction of persons of his or her own sex it is any less controllable than that of those whose propensity is for persons of the opposite sex. We are informed that patients in mental hospitals, with few exceptions, show clearly by their behavior that they can and do exercise a high degree of responsibility and self-control; for example, only a small minority need to be kept in locked wards. The existence of varying degrees of self-control is a matter of daily experience - the extent to which coughing can be controlled is an example - and the capacity for self-control can vary with the personality structure or with temporary physical or emotional conditions. The question which is important for us here is whether the individual suffers from a condition which causes diminished responsibility. This is a different question from the question whether he was responsible in the past for the causes or origins of his present condition. That is an interesting enquiry and may be of relevance in other connections; but our concern is with the behavior which flows from the individual s present condition and with the extent to which he is responsible for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... phasis supplied) 25. Insofar as the damaging effects on family life were concerned, this was rejected by stating:- 55. The second contention, that homosexual behaviour between males has a damaging effect on family life, may well be true. Indeed, we have had evidence, that it often is; cases in which homosexual behaviour on the part of the husband has broken up a marriage are by no means rare, and there are also cases in which a man in whom the homosexual component is relatively weak nevertheless derives such satisfaction from homosexual outlets that he does not enter upon a marriage which might have been successfully and happily consummated. We deplore this damage to what we regard as the basic unit of society; but cases are also frequently encountered in which a marriage has been broken up by homosexual behaviour on the part of the wife, and no doubt some women, too, derive sufficient satisfaction from homosexual outlets to prevent their marrying. We have had no reasons shown to us which would lead us to believe that homosexual behaviour between males inflicts any greater damage on family life than adultery, fornication or lesbian behaviour. These practices are all reprehen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de novo, any provision making these acts illegal. To reverse a long-standing tradition is a serious matter and not to be suggested lightly. But the task entrusted to us, as we conceive it, is to state what we regard as a just and equitable law. We therefore do not think it appropriate that consideration of this question should be unduly influenced by a regard for the present law, much of which derives from traditions whose origins are obscure. 61. Further, we feel bound to say this. We have outlined the arguments against a change in the law, and we recognise their weight. We believe, however, that they have been met by the counter-arguments we have already advanced. There remains one additional counter-argument which we believe to be decisive, namely, the importance which society and the law ought to give to individual freedom of choice and action in matters of private morality. Unless a deliberate attempt is to be made by society, acting through the agency of the law, to equate the sphere of crime with that of sin, there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law s business. To say this is not to condone or encourage p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e punished, even though they may be committed in the home. Another important rationale was that the Georgia law was based on a notion of morality, which is a choice that could legitimately be exercised by a State Legislature. Chief Justice Burger, concurring, again relied heavily on ancient roots , stating that throughout the history of western civilization, homosexual sodomy was outlawed in the Judeo-Christian tradition, which the Georgia legislature could well follow. Justice Powell, concurring with the majority, found that to imprison a person upto 20 years for a single, private, consensual act of sodomy within the home would be a cruel and unusual punishment within the meaning of the Eighth Amendment. However, since no trial had taken place on the facts, and since the respondent did not raise any such Eighth Amendment issue, Justice Powell concurred with the majority. 32. The dissenting opinion of four Justices makes interesting reading. Justice Blackmun, who spoke for four dissenters, began with the classical definition of the old privacy right which is the right to be let alone , and quoted from Justice Holmes article The Path of the Law, stating:- [i]t is revolting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y held our obligation is to define the liberty of all, not to mandate our own moral code. The majority judgment then referred to a Model Penal Code that the American Law Institute took out in 1955, making it clear that it did not provide for criminal penalties for consensual same-sex relationships conducted in private. The judgment then went on to refer to the Wolfenden Committee Report and the Sexual Offences Act,1967 in the United Kingdom and referred to the European Court s decision in Dudgeon v. United Kingdom, 45 Eur. Ct. H. R. (1981). It then referred to Romer v. Evans ( Romer ), 517 U.S. 620 (1996), where the Court struck down a class-based legislation which deprived homosexuals of State anti-discrimination laws as a violation of the Equal Protection Clause. The majority then found that the 1986 decision of Bowers (supra), had sustained serious erosion through their recent decisions in Casey (supra) and Romer (supra), and had, therefore, to be revisited. 5 Justice O Connor concurred in the judgment but side-stepped rather than overruled Bowers (supra). Justice Scalia, with whom the Chief Justice and Justice Thomas joined, found no reason to undo the Bowers (supra) ver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Israel, speaking through Barak, J., recognized a same-sex relationship so that a male companion could be treated as being a companion for the receipt of a free or discounted aeroplane ticket. The Court held:- 14. .The principle of equality demands that the existence of a rule that treats people differently is justified by the nature and substance of the issue. The principle of equality therefore presumes the existence of objective reasons that justify a difference (a distinction, dissimilarity). Discrimination - which is the opposite of equality - exists therefore in those situations where a different law for people who are (de facto) different from one another is based on reasons that are insufficient to justify a distinction between them in a free and democratic society. In Justice Or s words, discrimination is different treatment without an objective justification (Hoppert v. Yad VaShem Holocaust Martyrs and Heroes Memorial Authority [12], at p. 360). President Agranat discussed this and pointed out: The principle of equality, which is merely the opposite of discrimination and which, for reasons of justice and fairness, the law of every democratic country aspires ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uctive recent judgment from Trinidad and Tobago in Jason Jones v. Attorney General of Trinidad and Tobago, Claim No. CV 2017-00720, followed our judgment in Puttaswamy (supra) in order to strike down Section 13 of the Sexual Offences Act, 1986 on the ground that the State cannot criminalise sexual relations of the same sex between consenting adults. The court concluded:- 168. Having regard to the evidence and submissions before this court on all sides, there is no cogent evidence that the legislative objective is sufficiently important to justify limiting the claimant s rights. Mr. Hosein s stated objectives of: 168.1. Maintaining traditional family and values that represent society; 168.2. Preserving the legislation as it is and clarifying the law; and 168.3. Extending the offence in section 16 to women and reduce it to serious indecency from gross indecency; do not counterbalance the claimant s limit of his fundamental right of which he has given evidence. Instead, the court accepts the claimant s position that the law as it stands is not sufficiently important to justify limiting his fundamental rights and that he has proven it on a balance of probabilities. 40. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... calls that pursuant to its General Comment 16 on article 17, the introduction of the concept of arbitrariness is intended to guarantee that even interference provided for by the law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the circumstances .(4) The Committee interprets the requirement of reasonableness to imply that any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case. XXX 8.5 As far as the public health argument of the Tasmanian authorities is concerned, the Committee notes that the criminalization of homosexual practices cannot be considered a reasonable means or proportionate measure to achieve the aim of preventing the spread of AIDS/HIV. The Australian Government observes that statutes criminalizing homosexual activity tend to impede public health programmes by driving underground many of the people at the risk of infection . Criminalization of homosexual activity thus would appear to run counter to the implementation of effective education programmes in respect of the HIV/AIDS prevention. Secondly, the Committee no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated by the learned Judge as follows:- 7. The Act is a pre-constitutional legislation. Although it is saved in terms of Article 372 of the Constitution, challenge to its validity on the touchstone of Articles 14, 15 and 19 of the Constitution of India, is permissible in law. While embarking on the questions raised, it may be pertinent to know that a statute although could have been held to be a valid piece of legislation keeping in view the societal condition of those times, but with the changes occurring therein both in the domestic as also international arena, such a law can also be declared invalid. 8. In John Vallamattom v. Union of India, (2003) 6 SCC 611, this Court, while referring to an amendment made in UK in relation to a provision which was in pari materia with Section 118 of Indian Succession Act, observed (SCC p. 624, para 28): 28 The constitutionality of a provision, it is trite, will have to be judged keeping in view the interpretative changes of the statute affected by passage of time. Referring to the changing legal scenario and having regard to the Declaration on the Right to Development adopted by the World Conference on Human Rights as also Art ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the standard of judicial scrutiny of legislations, which on their face effect discrimination, is as follows:- 46. It is to be borne in mind that legislations with pronounced protective discrimination aims, such as this one, potentially serve as double-edged swords. Strict scrutiny test should be employed while assessing the implications of this variety of legislations. Legislation should not be only assessed on its proposed aims but rather on the implications and the effects. The impugned legislation suffers from incurable fixations of stereotype morality and conception of sexual role. The perspective thus arrived at is outmoded in content and stifling in means. 47. No law in its ultimate effect should end up perpetuating the oppression of women. Personal freedom is a fundamental tenet which cannot be compromised in the name of expediency until and unless there is a compelling State purpose. Heightened level of scrutiny is the normative threshold for judicial review in such cases. 47. Finally, the Court held:- 50. The test to review such a protective discrimination statute would entail a two-pronged scrutiny: (a) the legislative interference (induced by sex dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tic mark of a habitual catamite-the distortion of the orifice of the anus into the shape of a trumpet-and also to be affected with syphilis in the same region in a manner which distinctly points to unnatural intercourse within the last few months. Even though, he was acquitted on appeal, this case would demonstrate that Section 377, though associated with specific sexual acts, highlighted certain identities, including hijras and was used as an instrument of harassment and physical abuse against hijras and transgender persons. 50. The Court went on to explain the concepts of gender identity and sexual orientation, and relied heavily upon Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity. The Court then went on to hold: 60. The principles discussed hereinbefore on TGs and the international conventions, including Yogyakarta Principles, which we have found not inconsistent with the various fundamental rights guaranteed under the Indian Constitution, must be recognised and followed, which has sufficient legal and historical justification in our country. 51. Insofar as Articles 15 and 16 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5, paras 34-35), this Court held that personal autonomy includes both the negative right of not to be subject to interference by others and the positive right of individuals to make decisions about their life, to express themselves and to choose which activities to take part in. Self-determination of gender is an integral part of personal autonomy and self-expression and falls within the realm of personal liberty guaranteed under Article 21 of the Constitution of India. 54. The conclusion therefore was:- 83. We, therefore, conclude that discrimination on the basis of sexual orientation or gender identity includes any discrimination, exclusion, restriction or preference, which has the effect of nullifying or transposing equality by the law or the equal protection of laws guaranteed under our Constitution, and hence we are inclined to give various directions to safeguard the constitutional rights of the members of the TG community. 55. Dr. A.K. Sikri, J., in a separate concurring judgment, spoke of the fundamental and universal principle of the right of choice given to every individual, which is an inseparable part of human rights. He then went on to hold:- 116.1. Tho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore they have every right to enjoy their human rights. 57. In an unusual final order, the Court declared:- 135. We, therefore, declare: 135.1. Hijras, eunuchs, apart from binary genders, be treated as third gender for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by Parliament and the State Legislature. 135.2. Transgender persons' right to decide their self-identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender. 135.3. We direct the Centre and the State Governments to take steps to treat them as Socially and Educationally Backward Classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments. 135.4. The Centre and State Governments are directed to operate separate HIV serosurveillance centres since hijras/transgenders face several sexual health issues. 135.5. The Centre and State Governments should seriously address the problems being faced by hijras/transgenders such as fear, shame, gender dysphoria, social pressure, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... beliefs or way of life does not accord with the mainstream . Yet in a democratic Constitution founded on the Rule of Law, their rights are as sacred as those conferred on other citizens to protect their freedoms and liberties. Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution. 145. The view in Koushal [Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1 : (2013) 4 SCC (Cri) 1] that the High Court had erroneously relied upon international precedents in its anxiety to protect the so-called rights of LGBT persons is similarly, in our view, unsustainable. The rights of the lesbian, gay, bisexual and transgender population cannot be construed to be so-called rights . The expression so-called seems to suggest the exercise of a liberty in the garb of a right wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy. Privacy protects heterogeneity and recognises the plurality and diversity of our culture. While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place. Privacy attaches to the person since it is an essential facet of the dignity of the human being. 60. Nariman, J., in his judgment, which was concurred in by three other learned Judges, recognized the privacy of choice which protects an individual s autonomy over fundamental personal choices as follows:- 521. In the Indian context, a fundamental right to privacy would cover at least the following three aspects: Privacy that involves the person i.e. when there is some invasion by the State of a person's rights relat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecame an aspect of debate. I am in agreement with the view of Dr D.Y. Chandrachud, J., who in paras 144 to 146 of his judgment, states that the right to privacy cannot be denied, even if there is a miniscule fraction of the population which is affected. The majoritarian concept does not apply to constitutional rights and the courts are often called up on to take what may be categorised as a non-majoritarian view, in the check and balance of power envisaged under the Constitution of India. One's sexual orientation is undoubtedly an attribute of privacy. The observations made in Mosley v. News Group Papers Ltd. [Mosley v. News Group Papers Ltd., 2008 EWHC 1777 (QB)], in a broader concept may be usefully referred to: 130. It is not simply a matter of personal privacy versus the public interest. The modern perception is that there is a public interest in respecting personal privacy. It is thus a question of taking account of conflicting public interest considerations and evaluating them according to increasingly well-recognised criteria. 131. When the courts identify an infringement of a person's Article 8 rights, and in particular in the context of his freedom to conduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... noted from other jurisdictions, have observed the distinctions between the administration of lethal injection or certain medicines to cause painless death and non-administration of certain treatment which can prolong the life in cases where the process of dying that has commenced is not reversible or withdrawal of the treatment that has been given to the patient because of the absolute absence of possibility of saving the life. To explicate, the first part relates to an overt act whereas the second one would come within the sphere of informed consent and authorised omission. The omission of such a nature will not invite any criminal liability if such action is guided by certain safeguards. The concept is based on non-prolongation of life where there is no cure for the state the patient is in and he, under no circumstances, would have liked to have such a degrading state. The words no cure have to be understood to convey that the patient remains in the same state of pain and suffering or the dying process is delayed by means of taking recourse to modern medical technology. It is a state where the treating physicians and the family members know fully well that the treatment is adm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Commr. of Police of the Metropolis [Reeves v. Commr. of Police of the Metropolis, (2000) 1 AC 360 : (1993) 3 WLR 363 (HL)] has stated: (AC p. 369 B) Autonomy means that every individual is sovereign over himself and cannot be denied the right to certain kinds of behaviour, even if intended to cause his own death. XXX 202.8. An inquiry into Common Law jurisdictions reveals that all adults with capacity to consent have the right of self-determination and autonomy. The said rights pave the way for the right to refuse medical treatment which has acclaimed universal recognition. A competent person who has come of age has the right to refuse specific treatment or all treatment or opt for an alternative treatment, even if such decision entails a risk of death. The Emergency Principle or the Principle of Necessity has to be given effect to only when it is not practicable to obtain the patient's consent for treatment and his/her life is in danger. But where a patient has already made a valid Advance Directive which is free from reasonable doubt and specifying that he/she does not wish to be treated, then such directive has to be given effect to. 63. In the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith choices and decisions relating to death. Decisions relating to death, like those relating to birth, sex, and marriage, are protected by the Constitution by virtue of the right of privacy. The right to privacy resides in the right to liberty and in the respect of autonomy. [T.L. Beauchamp, The Right to Privacy and the Right to Die , Social Philosophy and Policy (2000), Vol. 17, at p. 276.] The right to privacy protects autonomy in making decisions related to the intimate domain of death as well as bodily integrity. Few moments could be of as much importance as the intimate and private decisions that we are faced regarding death. [Ibid.] Continuing treatment against the wishes of a patient is not only a violation of the principle of informed consent, but also of bodily privacy and bodily integrity that have been recognised as a facet of privacy by this Court. 64. Similarly, in Shafin Jahan v. Asokan K.M., 2018 SCC Online 343, this Court was concerned with the right of an adult citizen to make her own marital choice. The learned Chief Justice referred to Articles 19 and 21 of the Constitution of India as follows:- 28. Thus, the pivotal purpose of the said writ is to see t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling guillotines individual liberty, freedom of choice and one's own perception of choice. It has to be sublimely borne in mind that when two adults consensually choose each other as life partners, it is a manifestation of their choice which is recognized under Articles 19 and 21 of the Constitution. Such a right has the sanction of the constitutional law and once that is recognized, the said right needs to be protected and it cannot succumb to the conception of class honour or group thinking which is conceived of on some notion that remotely does not have any legitimacy. 45. The concept of liberty has to be weighed and tested on the touchstone of constitutional sensitivity, protection and the values it stands for. It is the obligation of the Constitutional Courts as the sentinel on qui vive to zealously guard the right to liberty of an individual as the dignified existence of an individual has an inseparable association with liberty. Without sustenance of liberty, subject to constitutionally valid provisions of law, the life of a person is comparable to the living dead having to endure cruelty and torture without protest and tolerate imposition of thoughts and ideas without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 2(s) of the Act defines mental illness, which reads as under: 2(s) mental illness means a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs, but does not include mental retardation which is a condition of arrested or incomplete development of mind of a person, specially characterised by subnormality of intelligence; 68. This definition throws to the winds all earlier misconceptions of mental illness including the fact that same-sex couples who indulge in anal sex are persons with mental illness. At one point of time, the thinking in Victorian England and early on in America was that homosexuality was to be considered as a mental disorder. The amicus curiae brief of the American Psychiatric Association in support of the petitioners in Lawrence v. Texas (supra) has put paid to this notion. This brief set out the research that has been done in this area as follows: D. The Recognition That Homosexuality Is Not A Mental Disorder The American mental health pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated with psychopathology, amicus American Psychiatric Association s Board of Trustees voted to remove homosexuality from the Psychiatric Association s Diagnostic and Statistical Manual of Mental Disorders. That resolution stated that homosexuality per se implies no impairment in judgment, stability, reliability, or general social or vocational capabilities. Am. Psychiatric Ass n, Position Statement on Homosexuality and Civil Rights (Dec. 15, 1973), printed in 131 Am. J. Psychiatry 497 (1974). That decision was upheld by a vote of the Psychiatric Association s membership the following year. After a thorough review of the scientific evidence, amicus American Psychological Association adopted the same position in 1975, and urged all mental health professionals to help dispel the stigma of mental illness that had long been associated with homosexual orientation. See Am. Psychol. Ass n, Minutes of the Annual Meeting of the Council of Representatives, 30 Am. Psychologist 620, 633 (1975). Amicus National Association of Social Workers (NASW) has adopted a similar policy. See NASW, Policy Statement on Lesbian and Gay Issues (Aug. 1993) (approved by NASW Delegate Assembly), reprinted in N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... represents only a fraction of such crimes, because reporting of hate crimes by law enforcement agencies is voluntary, the thoroughness of police statistics differs widely among jurisdictions, and many victims do not report their experiences to police because they fear further harassment or lack confidence that the assailants will be caught. Although homosexuality is not a mental disorder, this societal prejudice against gay men and lesbians can cause them real and substantial psychological harm. Research indicates that experiencing rejection, discrimination, and violence is associated with heightened psychological distress among gay men and lesbians. These problems are exacerbated by the fact that, because of anti-gay stigma, gay men and lesbians have less access to social support and other resources that assist heterosexuals in coping with stress. Although many gay men and lesbians learn to cope with the social stigma against homosexuality, efforts to avoid that social stigma through attempts to conceal or dissimulate sexual orientation can be seriously damaging to the psychological well-being of gay people. Lesbians and gay men have been found to manifest better mental health ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... senting). That is why Lawrence held Bowers was not correct when it was decided. 539 U.S., at 578. Although Bowers was eventually repudiated in Lawrence, men and women were harmed in the interim, and the substantial effects of these injuries no doubt lingered long after Bowers was overruled. Dignitary wounds cannot always be healed with the stroke of a pen. 72. The present definition of mental illness in the 2017 Parliamentary statute makes it clear that homosexuality is not considered to be a mental illness. This is a major advance in our law which has been recognized by the Parliament itself. Further, this is buttressed by Section 3 of the Act which reads as follows:- 3. Determination of Mental Illness. (1) Mental illness shall be determined in accordance with such nationally or internationally accepted medical standards (including the latest edition of the International Classification of Disease of the World Health Organisation) as may be notified by the Central Government. (2) No person or authority shall classify a person as a person with mental illness, except for purposes directly relating to the treatment of the mental illness or in other matters as covered unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons are liable to be affected with mental illness, and shall be treated as equal to the other persons with such illness as there is to be no discrimination on the basis of sexual orientation. Section 30 is extremely important and reads as under: 30. Creating awareness about mental health and illness and reducing stigma associated with mental illness. The appropriate Government shall take all measures to ensure that,- (a) the provisions of this Act are given wide publicity through public media, including television, radio, print and online media at regular intervals; (b) the programmes to reduce stigma associated with mental illness are planned, designed, funded and implemented in an effective manner; (c) the appropriate Government officials including police officers and other officers of the appropriate Government are given periodic sensitisation and awareness training on the issues under this Act. 75. Section 115 largely does away with one other outmoded Section of the Indian Penal Code, namely, Section 309. This Section reads as follows. 115. Presumption of severe stress in case of attempt to commit suicide. (1) Notwithstanding anything contained in sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Preamble of the Constitution, which declares its ideals and aspirations, and is also to be found in Part III of the Constitution, particularly with respect to those provisions which assure the dignity of the individual. The rationale for Section 377, namely Victorian morality, has long gone and there is no reason to continue with - as Justice Holmes said in the lines quoted above in this judgment - a law merely for the sake of continuing with the law when the rationale of such law has long since disappeared. 79. Given our judgment in Puttaswamy (supra), in particular, the right of every citizen of India to live with dignity and the right to privacy including the right to make intimate choices regarding the manner in which such individual wishes to live being protected by Articles 14, 19 and 21, it is clear that Section 377, insofar as it applies to same-sex consenting adults, demeans them by having them prosecuted instead of understanding their sexual orientation and attempting to correct centuries of the stigma associated with such persons. 80. The Union of India, seeing the writing on the wall, has filed an affidavit in which it has not opposed the Petitioners but left ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y has knocked on the doors of this Court as this Court is the custodian of the fundamental rights of citizens. These fundamental rights do not depend upon the outcome of elections. And, it is not left to majoritarian governments to prescribe what shall be orthodox in matters concerning social morality. The fundamental rights chapter is like the north star in the universe of constitutionalism in India. 7 Constitutional morality always trumps any imposition of a particular view of social morality by shifting and different majoritarian regimes. 82. Insofar as Article 14 is concerned, this Court in Shayara Bano v. Union of India, (2017) 9 SCC 1, has stated, in paragraph 101, that a statutory provision can be struck down on the ground of manifest arbitrariness, when the provision is capricious, irrational and/or without adequate determining principle, as also if it is excessive or disproportionate. We find that Section 377, in penalizing consensual gay sex, is manifestly arbitrary. Given modern psychiatric studies and legislation which recognizes that gay persons and transgenders are not persons suffering from mental disorder and cannot therefore be penalized, the Section must be h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... INTERNATIONAL PANEL OF EXPERTS IN INTERNATIONAL HUMAN RIGHTS LAW AND ON SEXUAL ORIENTATION AND GENDER IDENTITY, XX XX UNDERSTANDING sexual orientation to refer to each person s capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender; XX XX FOLLOWING AN EXPERTS MEETING HELD IN YOGYAKARTA, INDONESIA FROM 6 TO 9 NOVEMBER 2006, HEREBY ADOPT THESE PRINCIPLES: 1. The right to the universal enjoyment of human rights.-All human beings are born free and equal in dignity and rights. Human beings of all sexual orientations and gender identities are entitled to the full enjoyment of all human rights. States shall: (a) embody the principles of the universality, interrelatedness, interdependence and indivisibility of all human rights in their national constitutions or other appropriate legislation and ensure the practical realisation of the universal enjoyment of all human rights; (b) amend any legislation, including criminal law, to ensure its consistency with the universal enjoyment of all human rights; (c) undertak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to secure adequate advancement of persons of diverse sexual orientations and gender identities as may be necessary to ensure such groups or individuals equal enjoyment or exercise of human rights. Such measures shall not be deemed to be discriminatory; (e) in all their responses to discrimination on the basis of sexual orientation or gender identity, take account of the manner in which such discrimination may intersect with other forms of discrimination; (f) take all appropriate action, including programmes of education and training, with a view to achieving the elimination of prejudicial or discriminatory attitudes or behaviours which are related to the idea of the inferiority or the superiority of any sexual orientation or gender identity or gender expression. 3. The right to recognition before the law.-Everyone has the right to recognition everywhere as a person before the law. Persons of diverse sexual orientations and gender identities shall enjoy legal capacity in all aspects of life. Each person's self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and free ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose the death penalty on any person convicted under them; (b) remit sentences of death and release all those currently awaiting execution for crimes relating to consensual sexual activity among persons who are over the age of consent; (c) cease any State-sponsored or State-condoned attacks on the lives of persons based on sexual orientation or gender identity, and ensure that all such attacks, whether by government officials or by any individual or group, are vigorously investigated, and that, where appropriate evidence is found, those responsible are prosecuted, tried and duly punished. XXX 6. The right to privacy.-Everyone, regardless of sexual orientation or gender identity, is entitled to the enjoyment of privacy without arbitrary or unlawful interference, including with regard to their family, home or correspondence as well as to protection from unlawful attacks on their honour and reputation. The right to privacy ordinarily includes the choice to disclose or not to disclose information relating to one's sexual orientation or gender identity, as well as decisions and choices regarding both one's own body and consensual sexual and other relations wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essary legislative, administrative and other measures to ensure that no child's body is irreversibly altered by medical procedures in an attempt to impose a gender identity without the full, free and informed consent of the child in accordance with the age and maturity of the child and guided by the principle that in all actions concerning children, the best interests of the child shall be a primary consideration; (c) establish child protection mechanisms whereby no child is at risk of, or subjected to, medical abuse; (d) ensure protection of persons of diverse sexual orientations and gender identities against unethical or involuntary medical procedures or research, including in relation to vaccines, treatments or microbicides for HIV/AIDS or other diseases; (e) review and amend any health funding provisions or programmes, including those of a development-assistance nature, which may promote, facilitate or in any other way render possible such abuses; (f) ensure that any medical or psychological treatment or counselling does not, explicitly or implicitly, treat sexual orientation and gender identity as medical conditions to be treated, cured or suppressed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s give further content to the fundamental rights contained in Articles 14, 15, 19 and 21, and viewed in the light of these principles also, Section 377 will have to be declared to be unconstitutional. 89. Given the aforesaid, it has now to be decided as to whether the judgment in Suresh Kumar Koushal (supra) is correct. Suresh Kumar Koushal s judgment (supra) first begins with the presumption of constitutionality attaching to pre- constitutional laws, such as the Indian Penal Code. The judgment goes on to state that pre-constitutional laws, which have been adopted by Parliament and used with or without amendment, being manifestations of the will of the people of India through Parliament, are presumed to be constitutional. We are afraid that we cannot agree. 90. Article 372 of the Constitution of India continues laws in force in the territory of India immediately before the commencement of the Constitution. That the Indian Penal Code is a law in force in the territory of India immediately before the commencement of this Constitution is beyond cavil. Under Article 372(2), the President may, by order, make such adaptations and modifications of an existing law as may be necessary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y high standard. Can these laws, which are silent on the most important aspect required by Article 289(2), i.e., the specification of the trading activities of State Governments which would be liable to Union taxation, be said to meet with that standard? 91. It is a little difficult to subscribe to the view of the Division Bench that the presumption of constitutionality of Section 377 would therefore attach. 92. The fact that the legislature has chosen not to amend the law, despite the 172nd Law Commission Report specifically recommending deletion of Section 377, may indicate that Parliament has not thought it proper to delete the aforesaid provision, is one more reason for not invalidating Section 377, according to Suresh Kumar Koushal (supra). This is a little difficult to appreciate when the Union of India admittedly did not challenge the Delhi High Court judgment striking down the provision in part. Secondly, the fact that Parliament may or may not have chosen to follow a Law Commission Report does not guide the Court s understanding of its character, scope, ambit and import as has been stated in Suresh Kumar Koushal (supra). It is a neutral fact which need not be taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s or transgenders, and that in the last 150 years less than 200 persons have been prosecuted for committing the offence under Section 377, is neither here nor there. When it is found that privacy interests come in and the State has no compelling reason to continue an existing law which penalizes same-sex couples who cause no harm to others, on an application of the recent judgments delivered by this Court after Suresh Kumar Koushal (supra), it is clear that Articles 14, 15, 19 and 21 have all been transgressed without any legitimate state rationale to uphold such provision. 96. For all these reasons therefore, we are of the view that, Suresh Kumar Koushal (supra) needs to be, and is hereby, overruled. 97. We may conclude by stating that persons who are homosexual have a fundamental right to live with dignity, which, in the larger framework of the Preamble of India, will assure the cardinal constitutional value of fraternity that has been discussed in some of our judgments (See (1) Nandini Sundar v. State of Chhattisgarh, (2011) 7 SCC 547 at paragraphs 16, 25 and 52; and (2) Subramaniam Swamy v. Union of India (2016) 7 SCC 221 at paragraphs 153 to 156). We further declare that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brutal. 3 Eighty seven years after the law was made, India gained her liberation from a colonial past. But Macaulay s legacy - the offence under Section 377 of the Penal Code - has continued to exist for nearly sixty eight years after we gave ourselves a liberal Constitution. Gays and lesbians, transgenders and bisexuals continue to be denied a truly equal citizenship seven decades after Independence. The law has imposed upon them a morality which is an anachronism. Their entitlement should be as equal participants in a society governed by the morality of the Constitution. That in essence is what Section 377 denies to them. The shadows of a receding past confront their quest for fulfillment. 4 Section 377 exacts conformity backed by the fear of penal reprisal. There is an unbridgeable divide between the moral values on which it is based and the values of the Constitution. What separates them is liberty and dignity. We must, as a society, ask searching questions to the forms and symbols of injustice. Unless we do that, we risk becoming the cause and not just the inheritors of an unjust society. Does the Constitution allow a quiver of fear to become the quilt around the bodies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lues of liberty and dignity can accept nothing less. B To the wisdom of the Court Union Government before the Court 8 After the hearing commenced, the Additional Solicitor General tendered an affidavit. The Union government states that it leaves a decision on the validity of Section 377 to the wisdom of this Court . Implicit in this is that the government has no view of its own on the subject and rests content to abide by the decision of this Court. During the parleys in Court, the ASG however submitted that the court should confine itself to the reference by ruling upon the correctness of Suresh Kumar Koushal v. Naz Foundation(2014) 1 SCC 1 ( Koushal ). 9 We would have appreciated a categorical statement of position by the government, setting out its views on the validity of Section 377 and on the correctness of Koushal. The ambivalence of the government does not obviate the necessity for a judgment on the issues raised. The challenge to the constitutional validity of Section 377 must squarely be addressed in this proceeding. That is plainly the duty of the Court. Constitutional issues are not decided on concession. The statement of the Union government does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of speech and expression guaranteed by the Constitution. Sexual orientation is claimed to be intrinsic to the guarantee against discrimination on the ground of sex. The statutory provision, it has been asserted, also violates the fundamental guarantee against arbitrariness because it unequally targets gay men whose sexual expression falls in the area prohibited by Section 377. 13 In answering the dispute in regard to the validity of Section 377, the court must of necessity understand and explain in a constitutional perspective, the nature of the right which is claimed. The challenge to Section 377 has to be understood from the perspective of a rights discourse. While doing so, it becomes necessary to understand the constitutional source from which the claim emerges. When a right is claimed to be constitutionally protected, it is but necessary for the court to analyze the basis of that assertion. Hence, in answering the reference, it is crucial for the court to place the entitlement of the LGBT population in a constitutional framework. We have approached the matter thus far from the perspective of constitutional analysis. But there is a more simple line of reasoning as well, g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en observes: The Indian Penal Code may be described as the criminal law of England freed from all technicalities and superfluities, systematically arranged and modified in some few particulars (they are surprisingly few) to suit the circumstances of British India. 10 In order to understand the colonial origins of Section 377, it is necessary to go further back to modern English law s conception of anal and oral intercourse, which was firmly rooted in Judeo-Christian morality and condemned non-procreative sex. 11 Though Jesus himself does not reference homosexuality or homosexual sex, Douglas, supra note 9, at page 4 the Holiness Code Ibid at page 2 found in Leviticus provides thus: You shall not lie with a male as with a woman. It is an abomination. [18:22] If a man also lie with mankind, as he lieth with a woman, both of them have committed an abomination: they shall surely be put to death; their blood shall be upon them. [19:13] If a man lies with a male as with a woman, both of them have committed an abomination; they shall be put to death, their blood is upon them. [20:13] Another Judeo-Christian religious interpretation refers to sodomy , a term used ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery found in Sir Edward Coke s late 17th Century compilation of English law: Ibid at 7 ...Committed by carnal knowledge against the ordinance of the Creator, and order of nature, by mankind with mankind, or with brute beast, or by womankind with brute beast. 25 18 The Criminal Law Amendment Act, 1885 made gross indecency a crime in the United Kingdom, and was used to prosecute homosexuals where sodomy could not be proven. In 1895, Oscar Wilde was arrested under the Act for committing acts of gross indecency with male persons . Douglas, supra note 9, at page 15. During Wilde s trial, the Prosecutor, referring to homosexual love, asked him, What is the love that dare not speak its name ? Wilde responded: The love that dare not speak its name in this century is such a great affection of an elder for a younger man as there was between David and Jonathan, such as Plato made the very basis of his philosophy, and such as you find in the sonnets of Michelangelo and Shakespeare. It is that deep spiritual affection that is as pure as it is perfect. It dictates and pervades great works of art, like those of Shakespeare and Michelangelo, and those two letters of mine, such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inued to introduce and amend laws governing same-sex intercourse to make them more equal, including the lowering of the age of consent for gay/bisexual men to sixteen in 2001. Sexual Offences (Amendment) Act 2000, Parliament of the United Kingdom. In May 2007, in a statement to the UN Human Rights Council, the UK, which imposed criminal prohibitions against same-sex intercourse in its former colonies across the world, committed itself to the cause of worldwide decriminalization of homosexuality. Douglas, supra note 9, at page 29 Today, India continues to enforce a law imposed by an erstwhile colonial government, a law that has been long done away with by the same government in its own jurisdiction. C.I Arc of the moral universe 20 Lord Macaulay was greatly influenced by English philosopher and jurist Jeremy Bentham, who coined the term codification and argued for replacing existing laws with clear, concise, and understandable provisions that could be universally applied across the Empire. Douglas, supra note 9, at page 9 Ironically, in a 1785 essay, Bentham himself wrote one of the earliest known defences of homosexuality in the English language, arguing against the crim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with [imprisonment for life] Changed from transportation for life by Act 26 of 1955., or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation.- Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section. 22 The Explanation is unique in that it requires proof of penetration something that British Law did not. The two clauses in the Draft Code fell somewhere in between, requiring proof of touch . Douglas, supra note 9, at page 16. By the time India gained independence in 1947, Britain had introduced Penal Codes similar to the IPC in other former colonies, including Zanzibar (Tanzania) in 1867, Singapore, Malaysia, and Brunei in 1871, Ceylon (Sri Lanka) in 1885, Burma (Myanmar) in 1886, 37 East Africa Protectorate (Kenya) in 1897, Sudan in 1889, Uganda in 1902, and Tanganyika (Tanzania) in 1920. Supra note 34 Under Article 372(1) of the Indian Constitution, which provides that all laws in force prior to the commencement of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amaging in its own right: ...The true impact of Section 377 on queer lives is felt outside the courtroom and must not be measured in terms of legal cases. Numerous studies, including both documented and anecdotal evidence, tell us that Section 377 is the basis for routine and continuous violence against sexual minorities by the police, the medical establishment, and the state. There are innumerable stories that can be cited from the everyday violence faced by hijras [a distinct transgender category] and kothis [effeminate males] on the streets of Indian cities to the refusal of the National Human Rights Commission to hear the case of a young man who had been given electro-shock therapy for nearly two years. A recent report by the People s Union for Civil Liberties (Karnataka), showed that Section 377 was used by the police to justify practices such as illegal detention, sexual abuse and harassment, extortion and outing of queer people to their families. 47 Before the end of the 19th century, gay rights movements were few and far between. Indeed, when Alfred Douglas, Oscar Wilde s lover, wrote in his 1890s poem entitled Two Loves of the love that dare not speak its nam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tizens were freed from the British yoke while their fundamental freedoms remained restrained under an antiquated and anachronistic colonial-era law forcing them to live in hiding, in fear, and as second-class citizens. In seeking an adjudication of the validity of Section 377, these citizens urge that the acts which the provision makes culpable should be decriminalised. But this case involves much more than merely decriminalising certain conduct which has been proscribed by a colonial law. The case is about an aspiration to realise constitutional rights. It is about a right which every human being has, to live with dignity. It is about enabling these citizens to realise the worth of equal citizenship. Above all, our decision will speak to the transformative power of the Constitution. For it is in the transformation of society that the Constitution seeks to assure the values of a just, humane and compassionate existence to all her citizens. D An equal love Through Love's Great Power Through love's great power to be made whole In mind and body, heart and soul Through freedom to find joy, or be By dint of joy itself set free In love and in companio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in legal formalism lies in its inability to lay threadbare the values which guide the process of judging constitutional rights. Legal formalism buries the life-giving forces of the Constitution under a mere mantra. What it ignores is that Article 14 contains a powerful statement of values of the substance of equality before the law and the equal protection of laws. To reduce it to a formal exercise of classification may miss the true value of equality as a safeguard against arbitrariness in state action. As our constitutional jurisprudence has evolved towards recognizing the substantive content of liberty and equality, the core of Article 14 has emerged out of the shadows of classification. Article 14 has a substantive content on which, together with liberty and dignity, the edifice of the Constitution is built. Simply put, in that avatar, it reflects the quest for ensuring fair treatment of the individual in every aspect of human endeavor and in every facet of human existence. In E P Royappa v. State of Tamil Nadu(1974) 4 SCC 3), the validity of state action was made subject to the test of arbitrariness: Equality is a dynamic concept with many aspects and dimensions and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ercourse in the ordinary course , and those who don t. What is ordinary course? Presumably, heterosexuality. Why is this ordinary course? Perhaps because there are more heterosexuals than homosexuals around, although the Court gives no evidence for that. Well, there are also more black-haired people in India than brown-haired people. Is sex with a brown-haired person against the order of nature because it happens less often?... Where is the rational nexus? What is the legitimate governmental objective? Even if we accept that there is an intelligible differentia here, on what basis do you criminalize and thus deny equal protection of laws to one class of persons? The Court gives no answer. Alternatively, ordinary sex is penal-vaginal, and every other kind of sex is against the ordinary course of nature . Again, no evidence to back that claim up apart from the say-so of the judge. 60 At the very outset, we must understand the problem with the usage of the term order of nature . What is natural and what is unnatural ? And who decides the categorization into these two ostensibly distinct and water-tight compartments? Do we allow the state to draw the boundaries between ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake of nature (the things being looked at). Nature doesn t exist somewhere out there, independently of us we re always already interpreting it from the inside. It has been argued that the naturalness and omnipresence of heterosexuality is manufactured by an elimination of historical specificities about the organisation, regulation and deployment of sexuality across time and space. 65 It is thus this closeting of history that produces the hegemonic heterosexual - the ideological construction of a particular alignment of sex, gender and desire that posits itself as natural, inevitable and eternal. Ibid. Heterosexuality becomes the site where the male sexed masculine man s desire for the female sexed feminine woman is privileged over all other forms of sexual desire and becomes a pervasive norm that structures all societal structures. Ibid. The expression carnal is susceptible to a wide range of meanings. Among them are: sexual, sensual, erotic, lustful, lascivious, libidinous, lecherous, licentious, lewd, prurient, salacious, coarse, gross, lubricious, venereal. That s not all. The word incorporates meanings such as: physical, bodily, corporeal and of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... censure. In fact, several activities that might be seen to contravene the order of nature (heart transplants, for example) are beneficial and desirable. Even if an unnatural act is harmful to the extent that it justifies criminal sanctions being imposed against it, the reason for proscribing such an act would be that the act is harmful, and not that it is unnatural. Indeed, there is no cogent reasoning to support the idea that behaviour that may be uncommon on the basis of mere statistical probability is necessarily abnormal and must be deemed ethically or morally wrong. 69 Even behaviour that may be considered wrong or unnatural cannot be criminalised without sufficient justification given the penal consequences that follow. Section 377 becomes a blanket offence that covers supposedly all types of non-procreative natural sexual activity without any consideration given to the notions of consent and harm. 30 The meaning of natural as understood in cases such as Khanu v. Emperor AIR (1925) Sind. 286), which interpreted natural sex to mean only sex that would lead to procreation, would lead to absurd consequences. Some of the consequences have been pointed out thus: T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l that expresses social relations. Emile Durkheim, The Division of Labour in Society, Macmillan (1984) Hence, this expression itself is problematic from a dignitarian standpoint, otherwise so eloquently referred to by the judgement. At this point, we look at some of the legislative changes that have taken place in India s criminal law since the enactment of the Penal Code. The Criminal Law (Amendment) Act 2013 imported certain understandings of the concept of sexual intercourse into its expansive definition of rape in Section 375 of the Indian Penal Code, which now goes beyond penile vaginal penetrative intercourse. 77 It has been argued that if sexual intercourse now includes many acts which were covered under Section 377, those acts are clearly not against the order of nature anymore. They are, in fact, part of the changed meaning of sexual intercourse itself. This means that much of Section 377 has not only been rendered redundant but that the very word unnatural cannot have the meaning that was attributed to it before the 2013 amendment. Supra note 75, at pages 232-249. Section 375 defines the expression rape in an expansive sense, to include any one of several acts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orms of transgression such as inter-caste and inter-community relationships which are sought to be curbed by society. What links LGBT individuals to couples who love across caste and community lines is the fact that both are exercising their right to love at enormous personal risk and in the process disrupting existing lines of social authority. Ibid Thus, a re-imagination of the order of nature as being not only about the prohibition of non-procreative sex but instead about the limits imposed by structures such as gender, caste, class, religion and community makes the right to love not just a separate battle for LGBT individuals, but a battle for all. Supra note 7 E Beyond physicality: sex, identity and stereotypes Only in the most technical sense is this a case about who may penetrate whom where. At a practical and symbolical level it is about the status, moral citizenship and sense of self-worth of a significant section of the community. At a more general and conceptual level, it concerns the nature of the open, democratic and pluralistic society contemplated by the Constitution. 83 33 The Petitioners contend that (i) Section 377 discriminates on the basis of sex and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as by the Calcutta High Court in Sri Sri Mahadev Jiew v. Dr. B B Sen (AIR (1951) Cal. 563). Under Order XXV, R. 1 of the Code of Civil Procedure, men could be made liable for paying a security cost if they did not possess sufficient movable property in India only if they were residing outside India. However, women were responsible for paying such security, regardless of whether or not they were residing in India. In other words, the law drew a distinction between resident males who did not have sufficient immovable property, and resident females who did not have sufficient immovable property. Upholding the provision, the Calcutta High Court held: 31. Article 15(1) of the Constitution pro-vides, inter alia, -- The State shall not discriminate against any citizen on grounds only of sex. The word only in this Article is of great importance and significance which should not be missed. The impugned law must be shown to discriminate because of sex alone. If other factors in addition to sex come into play in making the discriminatory law, then such discrimination does not, in my judgment, come within the provision of Article 15(1) of the Constitution. (Emphasis supplied) This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of women (and men under 25 years) in premises where liquor or other intoxicating drugs were consumed by the public. Striking down the law as suffering from incurable fixations of stereotype morality and conception of sexual role , the Court held: 42 one issue of immediate relevance in such cases is the effect of the traditional cultural norms as also the state of general ambience in the society which women have to face while opting for an employment which is otherwise completely innocuous for the male counterpart... 43 It is state s duty to ensure circumstances of safety which inspire confidence in women to discharge the duty freely in accordance to the requirements of the profession they choose to follow. Any other policy inference (such as the one embodied under section 30) from societal conditions would be oppressive on the women and against the privacy rights. (Emphasis supplied) The Court recognized that traditional cultural norms stereotype gender roles. These stereotypes are premised on assumptions about socially ascribed roles of gender which discriminate against women. The Court held that insofar as governmental policy is based on the aforesaid cultur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cally to the three significant disabilities that the Regulations imposed on Air Hostesses, the Court held that there can be no doubt that these peculiar conditions do form part of the Regulations governing Air Hostesses but once we have held that Air Hostesses form a separate category with different and separate incidents the circumstances pointed out by the petitioners cannot amount to discrimination so as to violate Article 14 of the Constitution on this ground. 39 The basis of the classification was that only men could become male Flight Pursers and only women could become Air Hostesses. The very constitution of the cadre was based on sex. What this meant was, that to pass the non-discrimination test found in Article 15, the State merely had to create two separate classes based on sex and constitute two separate cadres. That would not be discriminatory. The Court went a step ahead and opined: 80 Thus, the Regulation permits an AH to marry at the age of 23 if she has joined the service at the age of 19 which is by all standards a very sound and salutary provision. Apart from improving the health of the employee, it helps a good in the promotion and boosting up of our ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in sex and other considerations, can no longer be held to be a position supported by the intersectional understanding of how discrimination operates. This infuses Article 15 with true rigour to give it a complete constitutional dimension in prohibiting discrimination. The approach adopted the Court in Nergesh Meerza, is incorrect. A provision challenged as being ultra vires the prohibition of discrimination on the grounds only of sex under Article 15(1) is to be assessed not by the objects of the state in enacting it, but by the effect that the provision has on affected individuals and on their fundamental rights. Any ground of discrimination, direct or indirect, which is founded on a particular understanding of the role of the sex, would not be distinguishable from the discrimination which is prohibited by Article 15 on the grounds only of sex. E.I Facial neutrality: through the looking glass 42 The moral belief which underlies Section 377 is that sexual activities which do not result in procreation are against the order of nature and ought to be criminalized under Section 377. The intervenors submit that Section 377, criminalizes anal and oral sex by heterosex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im, and the means of achieving that aim are appropriate and necessary. In Griggs v Duke Power Co. 401 U.S. 424 (1971), the US Supreme Court, whilst recognizing that African-Americans received sub-standard education due to segregated schools, opined that the requirement of an aptitude/intelligence test disproportionately affected African-American candidates. The Court held that The Civil Rights Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. In Bilka-Kaufhaus GmbH v. Karin Weber von Hartz(1986) ECR 1607), the European Court of Justice held that denying pensions to part-time employees is more likely to affect women, as women were more likely to take up part-time jobs. The Court noted: Article 119 of the EEC Treaty is infringed by a department store company which excludes part-time employees from its occupational pension scheme, where that exclusion affects a far greater number of women than men, unless the undertaking shows that the exclusion is based on objectively justified factors unrelated to any discrimination on grounds of sex. (Emphasis supplied) The Canadian Supreme Court endorsed the no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and within the order of nature is perpetuated by gender roles, thus excluding homosexuality from the narrative. The effect is described as follows: Cultural homophobia thus discourages social behavior that appears to threaten the stability of heterosexual gender roles. These dual normative standards of social and sexual behavior construct the image of a gay man as abnormal because he deviates from the masculine gender role by subjecting himself in the sexual act to another man. 98 If individuals as well as society hold strong beliefs about gender roles that men (to be characteristically reductive) are unemotional, socially dominant, breadwinners that are attracted to women and women are emotional, socially submissive, caretakers that are attracted to men it is unlikely that such persons or society at large will accept that the idea that two men or two women could maintain a relationship. If such a denial is further grounded in a law, such as Article 377 the effect is to entrench the belief that homosexuality is an aberration that falls outside the normal way of life. 45 An instructive article by Zachary A. Kramer, 99 notes that a heterosexist society both expects an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordination of women. The same concern applies with special force to the sodomy laws, because their function is to maintain the polarities of gender on which the subordination of women depends. 102 Koppelman thus suggests that the taboo against homosexuals polices the boundaries that separate the dominant from the dominated in a social hierarchy. 103 He expands on this idea, using the analogy of miscegenation, or the interbreeding of races: Do statutes that outlaw homosexual sex impose traditional sex roles? One possible answer is that of McLaughlin [McLaughlin v. Florida]: The crime is by definition one of engaging in activity inappropriate to one's sex. But these statutes' inconsistency with the Constitution's command of equality is deeper. Like the miscegenation statutes, the sodomy statutes reflect and reinforce the morality of a hierarchy based on birth. Just as the prohibition of miscegenation preserved the polarities of race on which white supremacy rested, so the prohibition of sodomy preserves the polarities of gender on which rests the subordination of women. Supra note 102, at page 148 Statutes like Section 377 give people ammunition to say th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a majority, goes beyond the issue of LGBTQ rights. Indian constitutional democracy is at a crossroads Inclusiveness and pluralism lie at the heart of Article 15, which can be our surest vehicle for the Court to lend its institutional authority to the salience of these ideas in our constitutional identity. 108 47 Relationships that tend to undermine the male/female divide are inherently required for the maintenance of a socially imposed gender inequality. Relationships which question the divide are picked up for target and abuse. Section 377 allows this. By attacking these gender roles, members of the affected community, in their move to build communities and relationships premised on care and reciprocity, lay challenge to the idea that relationships, and by extension society, must be divided along hierarchical sexual roles in order to function. For members of the community, hostility and exclusion aimed at them, drive them into hiding, away from public expression and view. It is this discrimination faced by the members of the community, which results in silence, and consequently invisibility, creating barriers, systemic and deliberate, that effect their participation in the w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id not have the support of their families, who, upon learning of their sexual orientation, took them for psychiatric treatment to cure the so-called disease. The families of three Petitioners ignored their sexual identity. One of them qualified to become an Indian Administrative Services officer in an examination which more than 4,00,000 people write each year. But he chose to forgo his dream because of the fear that he would be discriminated against on the ground of his sexuality. Some of them have experienced depression; others faced problems focusing on their studies while growing up; one among them was forced to drop out of high school as she was residing in a girl s hostel where the authorities questioned her identity. The parents of one of them brushed his sexuality under the carpet and suggested that he marry a woman. Some doubted whether or not they should continue their relationships given the atmosphere created by Section 377. Several work in organisations that have policies protecting the LGBT community in place. Having faced so much pain in their personal lives, the Petitioners submit that with the continued operation of Section 377, such treatment will be unabated. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay lives in a mimetic relation to the modes of justice itself. 116 (Emphasis supplied) The effect of Section 377, thus, is not merely to criminalize an act, but to criminalize a specific set of identities. Though facially neutral, the effect of the provision is to efface specific identities. These identities are the soul of the LGBT community. 52 The Constitution envisaged a transformation in the order of relations not just between the state and the individual, but also between individuals: in a constitutional order characterized by the Rule of Law, the constitutional commitment to egalitarianism and an anti-discriminatory ethos permeates and infuses these relations. In K S Puttaswamy v. Union of India ( Puttaswamy ) (2017) 10 SCC 1, this Court affirmed the individual as the bearer of the constitutional guarantee of rights. Such rights are devoid of their guarantee when despite legal recognition, the social, economic and political context enables an atmosphere of continued discrimination. The Constitution enjoins upon every individual a commitment to a constitutional democracy characterized by the principles of equality and inclusion. In a constitutional democracy committed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finds an origin in the notion that there are certain rights which are natural to or inherent in a human being. Natural rights are inalienable because they are inseparable from the human personality. The human element in life is impossible to conceive without the existence of natural rights Puttaswamy, at para 42. Justice Bobde, in his exposition on the form of the right to privacy held thus: Privacy, with which we are here concerned, eminently qualifies as an inalienable natural right, intimately connected to two values whose protection is a matter of universal moral agreement: the innate dignity and autonomy of man. Puttaswamy, at para 392 Justice Nariman has written about the inalienable nature of the right to privacy: Fundamental rights, on the other hand, are contained in the Constitution so that there would be rights that the citizens of this country may enjoy despite the governments that they may elect. This is all the more so when a particular fundamental right like privacy of the individual is an inalienable right which inheres in the individual because he is a human being. The recognition of such right in the fundamental rights chapter of the Constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther citizens to protect their freedoms and liberties. Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution. Puttaswamy, at para 144 Rejecting the notion that the rights of the LGBT community can be construed as illusory, the court held that the right to privacy claimed by sexual minorities is a constitutionally entrenched right: The rights of the lesbian, gay, bisexual and transgender population cannot be construed to be so-called rights . The expression so-called seems to suggest the exercise of a liberty in the garb of a right which is illusory. This is an inappropriate construction of the privacy based claims of the LGBT population. Their rights are not so-called but are real rights founded on sound constitutional doctrine. They inhere in the right to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts deemed unnatural by the cultural context and law, certain identities which dare not speak their name and certain forms of behaviour which can make an individual susceptible to stigma and oppression. The closet does not simply hide this susceptibility; it hides stigma and oppression itself. It marks the silencing of different voices, a silence which is achieved by a gross violation of lives that inhabit the closet, through both violence and pain inflicted by significant others both within and without the closet and instances of self-inflicted pain and violence. The closet also hides pleasure, myriad sexual expressions and furtive encounters that gratify the self. The closet also conceals the possibility of disease and death. Supra note 65, at page 102 The existing heteronormative framework which recognises only sexual relations that conform to social norms is legitimized by the taint of unnaturalness that Section 377 lends to sexual relations outside this framework. The notion of unnatural acts , viewed in myopic terms of a fixed procreational model of sexual functioning , is improperly applied to sexual relations between consenting adults. 131 Sexual activity betwee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... freedom to fully participate in public life, breaking the invisible barrier that heterosexuality imposes upon them. The choice of sexuality is at the core of privacy. But equally, our constitutional jurisprudence must recognise that the public assertion of identity founded in sexual orientation is crucial to the exercise of freedoms. 61 In conceptualising a right to sexual privacy, it is important to consider how the delineation of public and private spaces affects the lives of the LGBTIQ community. Members of the community have argued that to base their claims on a right to privacy is of no utility to individuals who do not possess the privilege of a private space. 137 In fact, even for individuals who have access to private spaces the conflation of private with home and family may be misplaced. Supra note 65, at page 101 The home is often reduced to a public space as heteronormativity within the family can force the individual to remain inside the closet. Ibid Thus, even the conception of a private space for certain individuals is utopian. Ibid 62 Privacy creates tiers of reputable and disreputable sex , only granting protection to acts behind closed doors. Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the need to foster a plural and inclusive culture. The judgment of four judges in Puttaswamy, for instance, held that: Privacy constitutes the foundation of all liberty because it is in privacy that the individual can decide how liberty is best exercised. Individual dignity and privacy are inextricably linked in a pattern woven out of a thread of diversity into the fabric of a plural culture. Puttaswamy, at para 297 64 In Santosh Singh v Union of India(2016) 8 SCC 253), a two-judge Bench of this Court dismissed a petition under Article 32 seeking a direction to the Central Board of Secondary Education to include moral science as a compulsory subject in the school syllabus in order to inculcate moral values. One of us (Chandrachud J) underscored the importance of accepting a plurality of ideas and tolerance of radically different views: Morality is one and, however important it may sound to some, it still is only one element in the composition of values that a just society must pursue. There are other equally significant values which a democratic society may wish for education to impart to its young. Among those is the acceptance of a plurality and diversity of idea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndividual possessing competent mental faculties is entitled to express his or her autonomy by the issuance of an advance medical directive: The protective mantle of privacy covers certain decisions that fundamentally affect the human life cycle. It protects the most personal and intimate decisions of individuals that affect their life and development. Thus, choices and decisions on matters such as procreation, contraception and marriage have been held to be protected. While death is an inevitable end in the trajectory of the cycle of human life individuals are often faced with choices and decisions relating to death. Decisions relating to death, like those relating to birth, sex, and marriage, are protected by the Constitution by virtue of the right of privacy Ibid, at para 441 Autonomy and privacy are inextricably linked. Each requires the other for its full realization. Their interrelationship has been recognised in Puttaswamy: Privacy postulates the reservation of a private space for the individual, described as the right to be left alone. The concept is founded on the autonomy of the individual. The ability of an individual to make choices lies at the core of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rience through which individuals define the meaning of their lives. Ibid.Human sexuality cannot be reduced to a binary formulation. Nor can it be defined narrowly in terms of its function as a means to procreation. To confine it to closed categories would result in denuding human liberty of its full content as a constitutional right. The Constitution protects the fluidities of sexual experience. It leaves it to consenting adults to find fulfilment in their relationships, in a diversity of cultures, among plural ways of life and in infinite shades of love and longing. F.2 A right to intimacy- celebration of sexual agency 67 By criminalising consensual acts between individuals who wish to exercise their constitutionally-protected right to sexual orientation, the State is denying its citizens the right to intimacy. The right to intimacy emanates from an individual s prerogative to engage in sexual relations on their own terms. It is an exercise of the individual s sexual agency, and includes the individual s right to the choice of partner as well as the freedom to decide on the nature of the relationship that the individual wishes to pursue. In Shakti Vahini v. Union of In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, lies in the guarantee which it affords that each individual will have a protected entitlement in determining a choice of partner to share intimacies within or outside marriage. Ibid, at para 93 In furtherance of the Rawlsian notion of self-respect as a primary good, individuals must not be denied the freedom to form relationships based on sexual intimacy. Consensual sexual relationships between adults, based on the human propensity to experience desire must be treated with respect. In addition to respect for relationships based on consent, it is important to foster a society where individuals find the ability for unhindered expression of the love that they experience towards their partner. This institutionalized expression to love must be considered an important element in the full actualisation of the ideal of self-respect. 170 Social institutions must be arranged in such a manner that individuals have the freedom to enter into relationships untrammelled by binary of sex and gender and receive the requisite institutional recognition to perfect their relationships. Ibid at 1311 The law provides the legitimacy for social institutions. In a democratic framework governed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ducational facilities, just and humane conditions of work and maternity relief. These are the minimum requirements which must exist in order to enable a person to live with human dignity and no State neither the Central Government nor any State Government-has the right to take any action which will deprive a person of the enjoyment of these basic essentials. (Emphasis supplied) In Consumer Education Research Centre v. Union of India ( CERC ) (1995) 3 SCC 42), a Bench of three judges dealt with the right to health of workers in asbestos industries. While laying down mandatory guidelines to be followed for the well-being of workers, the Court held that: The right to health to a worker is an integral facet of meaningful right to life to have not only a meaningful existence but also robust health and vigour without which worker would lead life of misery. Lack of health denudes his livelihood...Therefore, it must be held that the right to health and medical care is a fundamental right under Article 21 read with Articles 39(c), 41 and 43 of the Constitution and makes the life of the workman meaningful and purposeful with dignity of person. Right to life includes protection of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... due to the negligence of hospital authorities. The Court observed that: Article 21 of the Constitution of India provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. By reason of numerous judgments of the Apex Court the horizons of Article 21 of the Constitution have been expanded recognising various rights of the citizens i.e...right to health... It is well settled that right to life guaranteed under Article 21 is not mere animal existence. It is a right to enjoy all faculties of life. As a necessary corollary, right to life includes right to healthy life. In Devika Biswas v. Union of India(2016) 10 SCC 726, while hearing a public interest petition concerning several deaths that had taken place due to unsanitary conditions in sterilization camps across the country, a two judge Bench of this Court held that: It is well established that the right to life under Article 21 of the Constitution includes the right to lead a dignified and meaningful life and the right to health is an integral facet of this right...That the right to health is an integral part of the right to life does not need any repetit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity), accessible (physically, geographically, economically and in a non-discriminatory manner), acceptable (respectful of culture and medical ethics) and of quality (scientifically and medically appropriate and of good quality). 70 As early as 1948, the World Health Organization ( WHO ) defined the term health broadly to mean a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity. Definition contained in the Preamble to the WHO Constitution (1948). Even today, for a significant number of Indian citizens this standard of health remains an elusive aspiration. Of relevance to the present case, a particular class of citizens is denied the benefits of this constitutional enunciation of the right to health because of their most intimate sexual choices. 71 Sexuality is a natural and precious aspect of life, an essential and fundamental part of our humanity. Sexual Rights, International Planned Parenthood Federation (2008). Sexual rights are entitlements related to sexuality and emanate from the rights to freedom, equality, privacy, autonomy, and dignity of all people. Ibid For people to attain the highest standard of health, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sses sex, gender identities and roles, sexual orientation, eroticism, pleasure, intimacy and reproduction. Sexuality is experienced and expressed in thoughts, fantasies, desires, beliefs, attitudes, values, behaviours, practices, roles and relationships. While sexuality can include all of these dimensions, not all of them are always experienced or expressed. Sexuality is influenced by the interaction of biological, psychological, social, economic, political, cultural, legal, historical, religious and spiritual factors. 74 A report entitled Sexual Health, Human Rights and the Law , 190 published by the WHO in 2015 explores the relationship between these concepts. The report notes that human sexuality includes many different forms of behaviour and expression, and that the recognition of the diversity of sexual behaviour and expression contributes to people s overall sense of health and well-being. Ibid. It emphasizes the importance of sexual health by stating that not only is it essential to the physical and emotional well-being of individuals, couples and families, but it is also fundamental to the social and economic development of communities and countries. Ibid. The abili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the right not to be unwell, but rather the right to be well. It encompasses not just the absence of disease or infirmity, but complete physical, mental and social well being , 196 and includes both freedoms such as the right to control one s health and body and to be free from interference (for instance, from non-consensual medical treatment and experimentation), and entitlements such as the right to a system of healthcare that gives everyone an equal opportunity to enjoy the highest attainable level of health. 78 The jurisprudence of this Court, in recognizing the right to health and access to medical care, demonstrates the crucial distinction between negative and positive obligations. Article 21 does not impose upon the State only negative obligations not to act in such a way as to interfere with the right to health. This Court also has the power to impose positive obligations upon the State to take measures to provide adequate resources or access to treatment facilities to secure effective enjoyment of the right to health. 197 79 A study of sexuality and its relationship to the right to health in South Africa points to several other studies that suggest a negative corr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on a discriminatory basis around the world proves that this issue is not simply an ideological tussle playing out in classrooms and courtrooms, but an issue detrimentally affecting individuals on the ground level and violating their rights including the right to health. 81 The right to health is one of the major rights at stake in the struggle for equality amongst gender and sexual minorities: 203 The right to physical and mental health is at conflict with discriminatory policies and practices, some physicians' homophobia, the lack of adequate training for health care personnel regarding sexual orientation issues or the general assumption that patients are heterosexuals. Ibid While the enumeration of the right to equal healthcare is crucial, an individual s sexual health is also equally significant to holistic well-being. A healthy sex life is integral to an individual s physical and mental health, regardless of whom an individual is attracted to. Criminalising certain sexual acts, thereby shunning them from the mainstream discourse, would invariably lead to situations of unsafe sex, coercion, and a lack of sound medical advice and sexual education, if any at all. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Law has noted the impact of Section 377 on the right of health of persons afflicted with or vulnerable to contracting HIV: The law and its institutions can protect the dignity of all people living with HIV, and in so doing fortify those most vulnerable to HIV, so-called key populations , such as sex workers, MSM, transgender people, prisoners and migrants. The law can open the doors to justice when these people s rights are trampled . But the law can also do grave harm to the bodies and spirits of people living with HIV. It can perpetuate discrimination and isolate the people most vulnerable to HIV from the programmes that would help them to avoid or cope with the virus. By dividing people into criminals and victims or sinful and innocent, the legal environment can destroy the social, political, and economic solidarity that is necessary to overcome this global epidemic. 210 85 Mr Anand Grover, learned Senior Counsel in his submissions, highlighted the vulnerability of MSM and transgender persons. According to a study published by the Global Commission on HIV and the Law, MSM were found to be 19 times more susceptible to be infected with HIV than other adult men. 21 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cess to HIV and sexual health services and prevention programmes. Ibid. 89 An incisive article, based on extensive empirical research carried out in various countries, has concluded that there is a demonstrable relationship between laws which criminalize same-sex conduct and adverse health effects on HIV-AIDs rates as well as other health indicators for the MSM community due to poor access to key HIV prevention tools and outreach programmes. Supra note 172, at page 636. According to a report published by the Joint United Nations Programme on HIV/AIDS ( UNAIDS ), in Caribbean countries where same-sex relations are criminalised, almost one in four MSMs is infected with HIV. Supra note 210, at page 45 In the absence of such criminal provisions, the prevalence of HIV is one in fifteen among MSMs. Ibid. 90 Closer to home, the UNAIDS project found that in the four years following the judgement in Naz, there had been an increase of more than 50% in the number of healthcare centers providing HIV services to MSM and transgender persons in India. 220 If same-sex relations remain criminalised, it is likely that HIV interventions for MSMs will continue to be inadequate, MSMs will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se individuals often cannot and do not access the health care they need. In order to promote sexual health and reduce HIV transmission among LGBT individuals, it is imperative that the availability, effectiveness, and quality of health services to the LGBT community be significantly improved. Under our constitutional scheme, no minority group must suffer deprivation of a constitutional right because they do not adhere to the majoritarian way of life. By the application of Section 377 of the Indian Penal Code, MSM and transgender persons are excluded from access to healthcare due to the societal stigma attached to their sexual identity. Being particularly vulnerable to contraction of HIV, this deprivation can only be described as cruel and debilitating. The indignity suffered by the sexual minority cannot, by any means, stand the test of constitutional validity. G.2 Mental health 93 The treatment of homosexuality as a disorder has serious consequences on the mental health and well-being of LGBT persons. The mental health of citizens growing up in a culture that devalues and silences same-sex desire is severely impacted. 224 Global psychiatric expert Dinesh Bhugra has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Section 18(2) 226 and Section 21 227 provides for protection against discrimination on the grounds of sexual orientation. The repercussions of prejudice, stigma and discrimination continue to impact the psychological well-being of individuals impacted by Section 377. Mental health professionals can take this change in the law as an opportunity to re-examine their own views of homosexuality. 96 Counselling practices will have to focus on providing support to homosexual clients to become comfortable with who they are and get on with their lives, rather than motivating them for change. Instead of trying to cure something that isn t even a disease or illness, the counsellors have to adopt a more progressive view that reflects the changed medical position and changing societal values. There is not only a need for special skills of counsellors but also heightened sensitivity and understanding of LGBT lives. The medical practice must share the responsibility to help individuals, families, workplaces and educational and other institutions to understand sexuality completely in order to facilitate the creation of a society free from discrimination 228 where LGBT individuals like ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... participation as citizens, in the rights and liberties granted by the Constitution, it would be for the Court to adjudicate upon validity of such a law. I India s commitments at International Law 98 International human rights treaties and jurisprudence impose obligations upon States to protect all individuals from violations of their human rights, including on the basis of their sexual orientation. 229 Nevertheless, laws criminalizing same-sex relations between consenting adults remain on the statute books in more than seventy countries. Many of them, including so-called sodomy laws , are vestiges of colonial-era legislation that prohibits either certain types of sexual activity or any intimacy or sexual activity between persons of the same sex. 230 In some cases, the language used refers to vague and indeterminate concepts, such as crimes against the order of nature , morality , or debauchery . 231 There is a familiar ring to it in India, both in terms of history and text. 99 International law today has evolved towards establishing that the criminalization of consensual sexual acts between same-sex adults in private contravenes the rights to equality, privacy, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks. Similarly, Article 17 of the ICCPR, which India ratified on 11 December 1977, provides that: The obligations imposed by this article require the State to adopt legislative and other measures to give effect to the prohibition against such interferences and attacks as well as to the protection of the right. In its General Comment No. 16, the Human Rights Committee confirmed that any interference with privacy, even if provided for by law, should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances. Supra note 230, at page 6 In their general comments, concluding observations and views on communications, human rights treaty bodies have affirmed that States are obliged to protect individuals from discrimination on grounds of sexual orientation and/or gender identity, as these factors do not limit an individual s entitlement to enjoy the full range of human rights to which they are entitled. Ibid 103 In NALSA, while dealing with the rights of transgender pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e these terms, the Court interpreted buggery to mean anal intercourse by a man with a man or woman and gross indecency to mean any act involving sexual indecency between male persons. Regarding acts prohibited by these provisions, the ECtHR observed that: Although it is not homosexuality itself which is prohibited but the particular acts of gross indecency between males and buggery, there can be no doubt but that male homosexual practices whose prohibition is the subject of the applicant s complaints come within the scope of the offences punishable under the impugned legislation. The ECtHR concluded that Dudgeon had suffered and continued to suffer an unjustified interference with his right to respect for his private life. Hence, the Court struck down the laws under challenge as violative of Article 8 of the European Convention on Human Rights, in so far as they criminalised private homosexual relations between adult males capable of valid consent. In observing that these laws were not proportionate to their purported need, the Court observed: On the issue of proportionality, the Court considers that such justifications as there are for retaining the law in force ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... US Constitution. Seventeen years later, the United States Supreme Court laid the constitutional foundation for LGBT rights in the country with its judgment in Lawrence v Texas ( Lawrence ). 539 U.S. 558 (2003). In Lawrence, the Petitioner had been arrested under a Texas statute, which prohibited same-sex persons from engaging in sexual conduct, regardless of consent. The validity of the statute was considered. Relying on Dudgeon, the U S Supreme Court struck down the statute as violative of the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution. Overruling the judgment in Bowers, Justice Kennedy, writing for the majority, upheld Justice Stevens dissent in Bowers who was also part of the majority in Lawrence to note that: Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in the law, is within the liberty of persons to choose without being punished as criminals. (Emphasis supplied) 109 In Toonen, the UN Human Rights Committee held that laws used to criminalize private, adult, consensual same-sex sexual relations violate the right to privacy and the right to non-discrimination. Mr Toonen a member of the Tasmanian Gay Law Reform Group had complained to the Committee about a Tasmanian law that criminalized unnatural sexual intercourse , intercourse against nature and indecent practice between male persons . The law allowed police officers to investigate intimate aspects of his private life and to detain him if they had reason to believe that he was involved in sexual activities with his long-term partner in the privacy of their home. Mr Toonen challenged these laws as violative of Article 2(1)246, Article 17247 and Article 26248 of the ICCPR, on the ground that: [The provisions] have created the conditions for discrimination in employment, constant stigmatization, vilification, threats of physical violence and the violation of basic democratic rights. Toonen, at para 2.4 The Committee rejected the argument that criminalization may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... holding that: Homosexuals are above all holders of all the rights of the human person and therefore, have the right to exercise them in conditions of full equality ... that is to say that their rights enjoy legal protection, as long as in the exteriorisation of their behaviour they do not harm the rights of others, as is the case with all other persons. 112 The adverse impact of sodomy laws on the lives of homosexual adults was also considered by the Constitutional Court of South Africa in National Coalition for Gay and Lesbian Equality v. Minister of Justice ( National Coalition ) 1999 (1) SA 6 (CC)., in which the constitutionality of the common law offence of sodomy and other legislations which penalised unnatural sexual acts between men was at issue. The Constitutional Court unanimously found that the sodomy laws, all of which purported to proscribe sexual intimacy between homosexual adult men, violated their right to equality and discriminated against them on the basis of their sexual orientation. Justice Ackerman, concurring with the ECtHR s observation in Norris, noted that: The discriminatory prohibitions on sex between men reinforces already existing societa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of equality can be a source of interactive vitality A country so founded will put sexual expression in private relationships into its proper perspective and allow citizens to define their own good moral sensibilities leaving the law to its necessary duties of keeping sexual expression in check by protecting the vulnerable and penalizing the predator. (Emphasis supplied) In recent years, the Caribbean States of Belize and Trinidad and Tobago have also decriminalized consensual sexual acts between adults in private. In Caleb Orozco v. The Attorney General of Belize ( Caleb Orozco ) Claim No. 668 of 2010., provisions of the Belize Criminal Code which penalized every person who has intercourse against the order of nature with any person were challenged before the Supreme Court. Commenting on the concept of dignity, Justice Benjamin borrowed from the Canadian Supreme Court s observations and noted that: 263 Human dignity means that an individual or group feels self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hreat, the proverbial Sword of Damocles, that at any moment she/he may be persecuted or prosecuted. That is the threat that exists at present. It is a threat that is sanctioned by the State and that sanction is an important sanction because it justifies in the mind of others in society who are differently minded, that the very lifestyle, life and existence of a person who chooses to live in the way that the claimant does is criminal and is deemed to be of a lesser value than anyone else The Parliament has taken the deliberate decision to criminalise the lifestyle of persons like the claimant whose ultimate expression of love and affection is crystallised in an act which is statutorily unlawful, whether or not enforced. Ibid (Emphasis supplied) The High Court compared the impugned provisions to racial segregation, the Holocaust, and apartheid, observing that: To now deny a perceived minority their right to humanity and human dignity would be to continue this type of thinking, this type of perceived superiority, based on the genuinely held beliefs of some. Jones, at para 171 115 In Leung TC William Roy v. Secretary for Justice Civil Appeal No. 317 of 2005, the High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. El-A Israel Airlines, at para 14 (Emphasis supplied) The Supreme Court held that giving a benefit to an employee who has a spouse of the opposite sex and denying the same benefit to an employee whose spouse is of the same sex amounts to discrimination based on sexual orientation. This violated the Petitioner s right to equality and created an unjustifiable distinction in the context of employee benefits. 117 In Vriend v Alberta(1998) 1 S.C.R. 493), the appellant, a homosexual college employee, was terminated from his job. He alleged that his employer had discriminated against him because of his sexual orientation, but that he could not make a complaint under Canada s anti-discrimination statute the Individual s Rights Protection Act ( IRPA ) because it did not include sexual orientation as a protected ground. The Supreme Court of Canada held that the omission of protection against discrimination on the basis of sexual orientati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rights. 119 In 2015, in Oliari v Italy ( Oliari ) [2015] ECHR 716, the Applicants before the ECtHR argued that the absence of legislation in Italy permitting same-sex marriage or any other type of civil union constituted discrimination on the basis of sexual orientation, in violation of Articles 8, 12, and 14 of the European Convention on Human Rights. In line with its previous case law, the Court affirmed that same-sex couples are in need of legal recognition and protection of their relationship. Oliari, at para 165. The ECtHR concluded that gay couples are equally capable of entering into stable and committed relationships in the same way as heterosexual couples. Ibid. 120 The ECtHR examined the domestic context in Italy, and noted a clear gap between the social reality of the applicants , Oliari, at para. 173. who openly live their relationship, and the law, which fails to formally recognize same-sex partnerships. The Court held that in the absence of any evidence of a prevailing community interest in preventing legal recognition of same-sex partnerships, Italian authorities have overstepped their margin of appreciation and failed to fulfil their positive obligation to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ws individuals to engage in intimate association without criminal liability, it does not follow that freedom stops there. Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty. (Emphasis supplied) By a 5-4 majority, the US Supreme Court ruled that the fundamental right to marry is guaranteed to same-sex couples by the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the US Constitution. Commenting on the right to marriage, Justice Kennedy noted: No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfilment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right. 123 The recent case of Masterpiece Cakeshop v. Colorado Civil Rights Commission ( Masterpiece Cakeshop ) 584 U.S. ____ (2018). conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all customers, Phillips refused to bake a wedding cake (which he baked for other customers), specifically for the couple. She observed that: Phillips declined to make a cake he found offensive where the offensiveness of the product was determined solely by the identity of the customer requesting it. The three other bakeries declined to make cakes where their objection to the product was due to the demeaning message the requested product would literally display. (Emphasis supplied) When a couple contacts a bakery for a wedding cake, the product they are seeking is a cake celebrating their wedding-not a cake celebrating heterosexual weddings or same-sex weddings-and that is the service Craig and Mullins were denied. Justice Ginsburg concluded that a proper application of the Colorado Anti-Discrimination Act would require upholding the lower courts rulings. 125 Masterpiece Cakeshop is also distinguishable from a similar case, Lee v. Ashers Bakery Co. Ltd. [2015] NICty 2], which is currently on appeal to the United Kingdom Supreme Court. In that case, a bakery in Northern Ireland offered a service whereby customers could provide messages, pictures or graphics that woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, ten countries constitutionally prohibit discrimination on grounds of sexual orientation. 288 The United Kingdom, Bolivia, Ecuador, Fiji, and Malta specifically prohibit discrimination on the basis of gender identity, either constitutionally or through enacted laws. Ibid.According the International Lesbian, Gay, Bisexual, Trans and Intersex Association, 74 countries (including India) criminalize same-sex sexual conduct, as of 2017. 290 Most of these countries lie in the Sub-Saharan and Middle East region. Some of them prescribe death penalty for homosexuality. Ibid. 126 We are aware that socio-historical contexts differ from one jurisdiction to another and that we must therefore look at comparative law-making allowances for them. However, the overwhelming weight of international opinion and the dramatic increase in the pace of recognition of fundamental rights for same-sex couples reflects a growing consensus towards sexual orientation equality. We feel inclined to concur with the accumulated wisdom reflected in these judgments, not to determine the meaning of the guarantees contained within the Indian Constitution, but to provide a sound and appreciable confirmation of our ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3rd edition, Vol. 3, Butterworths (1953) at page. 271. specific in its prescription and at another time much more general. 297 Early philosophers sought to define crime by distinguishing it from a civil wrong. In his study of rhetoric, Aristotle observed that: Justice in relation to the person is defined in two ways. For it is defined either in relation to the community or to one of its members what one should or should not do. Accordingly, it is possible to perform just and unjust acts in two ways, either towards a defined individual or towards the community. 298 Kant, in the Metaphysics of Morals, 299 observed that: A transgression of public law that makes someone who commits it unfit to be a citizen is called a crime simply (crimen) but is also called a public crime (crimen publicum); so the first (private crime) is brought before a civil court, the latter before a criminal court. Ibid, at pages 353, 331. Another method of defining crime is from the nature of injury caused, of being public, as opposed to private, wrongs. 301 This distinction was brought out by Blackstone and later by Duff, in their theories on criminal law. Blackstone, in his Commentaries on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. What distinguishes a criminal from a civil sanction and all that distinguishes it, it is ventured, is the judgment of community condemnation which accompanies and justifies its imposition. Ibid. (Numbering and emphasis supplied) According to Hart, the first three characteristics above are common to both civil and criminal law. Ibid. However, the key differentiating factor between criminal and civil law, he observed, is the community condemnation. Ibid. Thus, he attempted to define crime as: Conduct which, if duly shown to have taken place, will incur a formal and solemn pronouncement of the moral condemnation of the community. Ibid. Perhaps it is difficult to carve out a single definition of crime due to the multi-dimensional nature of criminal law. The process of deconstructing the criminalisation of consensual sexual acts by adults will be facilitated by examining some criminal theories and their interplay with Section 377. Criminal Law Theories Bentham s Utilitarian Theory 129 Utilitarianism has provided some of the most powerful critiques of existing laws. Bentham was one of the earliest supporters for reform in sodomy laws. In his essay, Offences A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... secondary harm either. Lastly, Bentham tested sodomy laws on whether they cause danger to society. The only danger that Bentham could apprehend was the supposed danger of encouraging others to engage in homosexual practices. However, Bentham argues that since homosexual activities in themselves do not cause any harm, there is no danger even if they have a domino effect on other individuals: As to any danger exclusive of pain, the danger, if any, must consist in the tendency of the example. But what is the tendency of this example? To dispose others to engage in the same practises: but this practise for anything that has yet appeared produces not pain of any kind to anyone. Ibid. Thus, according to Bentham, sodomy laws fail on all three grounds- they neither cause primary mischief, nor secondary mischief, nor any danger to society. Bentham also critiqued criminal laws by analysing the utility of the punishment prescribed by them. He succinctly described the objective of law through the principles of utility- The general object which all laws have, or ought to have is to augment the total happiness of the community; [and] to exclude everything that tends to subtract fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to any other person or persons , it may not be taken out of the self-regarding class of actions. Ibid. Thus, Mill proposed that all that portion of a person s life and conduct which affects only himself, or, if it also affects others, only with their free, voluntary, and undeceived consent and participation should be free from state interference. Ibid. He further added that the state and society are not justified in interfering in the self-regarding sphere, merely because they believe certain conduct to be foolish, perverse, or wrong. Ibid. Essentially, Mill created a taxonomy on types of conduct (a) self-regarding actions should not be the subject of sanctions either from the state or society; (b) actions which may hurt others but do not violate any legal rights may only be the subject of public condemnation but not state sanction; (c) only action which violate the legal rights of others should be the subject of legal sanction (and public condemnation).332 The harm principle thus, operated as a negative or limiting principle, with the main objective of restricting criminal law from penalising conduct merely on the basis of its perceived immorality or unacceptability when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same time, the law must also fortify and lead public opinion. Ibid, at para 16. However, it made out a strong case for divorcing morality from criminal law and stated that - moral conviction or instinctive feeling, however strong, is not a valid basis for overriding the individual s privacy and for bringing within the ambit of the criminal law private sexual behaviour of this kind. Ibid, at para 54. Stating that homosexuality is not a mental illness, the Wolfenden Report clarified that homosexuality is a sexual propensity for persons of one s own sex [it] is a state or condition, and as such does not, and cannot, come within the purview of criminal law. Ibid, at para 18 133 Lord Devlin, perturbed by the Wolfenden Report s line of reasoning, framed questions on the issue of criminal law and morality: 1. Has society the right to pass judgments on all matters of morals? 2. If society has the right to pass judgment, has it also the right to use the weapon of the law to enforce it? 344 Devlin believed that society depends upon a common morality for its stability and existence. Supra note 334, at page 662. On the basis of this belief, Devlin answered the above qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to society. 352 Despite countering Devlin, Hart was not completely opposed to a relationship between law and morality, and in fact, he emphasised that the two are closely related: The law of every modem state shows at a thousand points the influence of both the accepted social morality and wider moral ideals. These influences enter into law either abruptly and avowedly through legislation, or silently and piecemeal through the judicial process The further ways in which law mirrors morality are myriad, and still insufficiently studied: statutes may be a mere legal shell and demand by their express terms to be filled out with the aid of moral principles; the range of enforceable contracts may be limited by reference to conceptions of morality and fair- ness; liability for both civil and criminal wrongs may be adjusted to prevailing views of moral responsibility. H.L.A. Hart, Law, Liberty And Morality (1979). However, unlike Devlin, Hart did not propose that morality is a necessary condition for the validity of law.354 Hart argued, in summary, that law is morally relevant, but not morally conclusive. Ibid. Hart vehemently disagreed with Devlin's view that if la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rise from the people, they should not be unthinkingly and permanently cemented into the law, but rather addressed and conquered. John Stuart Mill also made a strong argument against popular morality being codified into laws. He argued that disgust cannot be classified as harm, and those who consider as an injury to themselves any conduct which they have a distaste for , cannot dictate the actions of others merely because such actions contradict their own beliefs or views. Supra note 325. Mill believed that society is not the right judge when dealing with the question of when to interfere in conduct that is purely personal, and that when society does interfere, the odds are that it interferes wrongly and in the wrong place. Ibid. 135 Christopher R Leslie points out the dangers of letting morality creep into law: Current generations enshrine their morality by passing laws and perpetuate their prejudices by handing these laws down to their children. Soon, statutes take on lives of their own, and their very existence justifies their premises and consequent implications. The underlying premises of ancient laws are rarely discussed, let alone scrutinized. 364 Leslie f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which should be the driving factor in determining the validity of Section 377. L Constitutional morality 138 With the attainment of independence on 15 August 1947, Indians were finally free to shape their own destiny. 367 The destiny was to be shaped through a written Constitution. Constitutions are scripts in which people inscribe the text of their professed collective destiny. They write down who they think they are, what they want to be, and the principles that will guide their interacting along that path in the future. 368 The Constitution of India was burdened with the challenge of drawing a curtain on the past Ibid, at page 16. of social inequality and prejudices. Those who led India to freedom established into the Constitution the ideals and vision of a vibrant equitable society. The framing of India s Constitution was a medium of liberating the society by initiating the process of establishing and promoting the shared values of liberty, equality and fraternity. Throughout history, socio-cultural revolts, anti-discrimination assertions, movements, literature and leaders have worked at socializing people away from supremacist thought and towards an egalitarian e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he society. The conception of constitutional morality is different from that of public or societal morality. Under a regime of public morality, the conduct of society is determined by popular perceptions existent in society. The continuance of certain symbols, labels, names or body shapes determine the notions, sentiments and mental attitudes of the people towards individuals and things. 372 Constitutional morality determines the mental attitude towards individuals and issues by the text and spirit of the Constitution. It requires that the rights of an individual ought not to be prejudiced by popular notions of society. It assumes that citizens would respect the vision of the framers of the Constitution and would conduct themselves in a way which furthers that vision. Constitutional morality reflects that the ideal of justice is an overriding factor in the struggle for existence over any other notion of social acceptance. It builds and protects the foundations of a democracy, without which any nation will crack under its fissures. For this reason, constitutional morality has to be imbibed by the citizens consistently and continuously. Society must always bear in mind what Dr Ambed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be full of channels for conveying a change taking place in one part to other parts. In an ideal society there should be many interests consciously communicated and shared. There should be varied and free points of contact with other modes of association. In other words there must be social endosmosis. This is fraternity, which is only another name for democracy. In his last address to the Constituent Assembly, he defined fraternity as a sense of common brotherhood of all Indians. As on the social and economic plane, Indian society was based on graded inequality, Dr Ambedkar had warned in clear terms: Without fraternity, liberty [and] equality could not become a natural course of things. It would require a constable to enforce them Without fraternity equality and liberty will be no deeper than coats of paint. Constituent Assembly Debates (25 November 1949). 144 Constitutional morality requires that all the citizens need to have a closer look at, understand and imbibe the broad values of the Constitution, which are based on liberty, equality and fraternity. Constitutional morality is thus the guiding spirit to achieve the transformation which, above all, the Constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity and not public morality In our scheme of things, constitutional morality must outweigh the argument of public morality, even if it be the majoritarian view. The invocation of constitutional morality must be seen as an extension of Dr Ambedkar s formulation of social reform and constitutional transformation. Highlighting the significance of individual rights in social transformation, he had observed: The assertion by the individual of his own opinions and beliefs, his own independence and interest-over and against group standards, group authority, and group interests-is the beginning of all reform. But whether the reform will continue depends upon what scope the group affords for such individual assertion. Supra note 373, at para 12.1. After the enactment of the Constitution, every individual assertion of rights is to be governed by the principles of the Constitution, by its text and spirit. The Constitution assures to every individual the right to lead a dignified life. It prohibits discrimination within society. It is for this reason that constitutional morality requires this court to issue a declaration - which we now do - that LGBT individuals are equal citizens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... res that this Court must act as a counter majoritarian institution which discharges the responsibility of protecting constitutionally entrenched rights, regardless of what the majority may believe. Ibid. Constitutional morality must turn into a habit of citizens. By respecting the dignity of LGBT individuals, this Court is only fulfilling the foundational promises of our Constitution. M In summation : transformative constitutionalism 147 This case has required a decision on whether Section 377 of the Penal Code fulfills constitutional standards in penalising consensual sexual conduct between adults of the same sex. We hold and declare that in penalising such sexual conduct, the statutory provision violates the constitutional guarantees of liberty and equality. It denudes members of the LGBT communities of their constitutional right to lead fulfilling lives. In its application to adults of the same sex engaged in consensual sexual behaviour, it violates the constitutional guarantee of the right to life and to the equal protection of law. 148 Sexual orientation is integral to the identity of the members of the LGBT communities. It is intrinsic to their dignity, inseparabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ety. In recognising the rights of the LGBT community, the Constitution asserts itself as a text for governance which promotes true equality. It does so by questioning prevailing notions about the dominance of sexes and genders. In its transformational role, the Constitution directs our attention to resolving the polarities of sex and binarities of gender. In dealing with these issues we confront much that polarises our society. Our ability to survive as a free society will depend upon whether constitutional values can prevail over the impulses of the time. 154 A hundred and fifty eight years is too long a period for the LGBT community to suffer the indignities of denial. That it has taken sixty eight years even after the advent of the Constitution is a sobering reminder of the unfinished task which lies ahead. It is also a time to invoke the transformative power of the Constitution. 155 The ability of a society to acknowledge the injustices which it has perpetuated is a mark of its evolution. In the process of remedying wrongs under a regime of constitutional remedies, recrimination gives way to restitution, diatribes pave the way for dialogue and healing replaces the hate of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it criminalises consensual sexual intercourse between adult persons belonging to the same sex in private. 3. The issue as to whether the decision in Suresh Kumar Koushal Anr. v. Naz Foundation Ors. (2014) 1 SCC 1) requires re-consideration was referred to the Constitution Bench vide Order dated 8th January, 2018. 4. The Petitioners have inter alia submitted that sexual expression and intimacy between consenting adults of the same sex in private ought to receive protection under Part III of the Constitution, as sexuality lies at the core of a human being s innate identity. Section 377 inasmuch as it criminalises consensual relationships between same sex couples is violative of the fundamental rights guaranteed by Articles 21, 19 and 14, in Part III of the Constitution. The principal contentions raised by the Petitioners during the course of hearing are: i. Fundamental rights are available to LGBT persons regardless of the fact that they constitute a minority. ii. Section 377 is violative of Article 14 being wholly arbitrary, vague, and has an unlawful objective. iii. Section 377 penalises a person on the basis of their sexual orientation, and is hence disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... my laws, and penalise what was perceived to be deviant or perverse sexual behaviour. 7. In the early 20th century, there were many psychiatric theories which regarded homosexuality as a form of psychopathology or developmental arrest. 3 It was believed that normal development resulted in a child growing up to be a heterosexual adult, and that homosexuality was but a state of arrested development. 4 Homosexuality was treated as a disorder or mental illness, which was meted out with social ostracism and revulsion. 8. Towards the end of the 20th century, this notion began to change, and the earlier theories gave way to a more enlightened perspective that characterized homosexuality as a normal and natural variant of human sexuality. Scientific studies indicated that human sexuality is complex and inherent. Id Kurt Hiller in his speech delivered at the Second International Congress for Sexual Reform held at Copenhagen in 1928 6 , stated: Same-sex love is not a mockery of nature, but rather nature at play As Nietzsche expressed it in Daybreak, Procreation is a frequently occurring accidental result of one way of satisfying the sexual drive it is neither its goal nor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nerships 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 United Kingdom now outlaws discrimination in employment, education, social protection and housing on the ground of sexual orientation. Marriage between same-sex couples have been recognised in England and Wales. The British Prime Minister Theresa May in her speech at the Commonwealth Joint Forum on April 17, 2018 urged Commonwealth Nations to overhaul outdated anti-gay laws, and expressed regret regarding Britain s role in introducing such laws. 9 The relevant excerpt of her speech is extracted hereinbelow: Across the world, discriminatory laws made many years ago continue to affect the lives of many people, criminalising same-sex relations and failing to protect women and girls. I am all too aware that these laws were often put in place by my own country. They were wrong then, and they are wrong now. As the UK s Prime Minister, I deeply regret both the fact that such laws were introduced, and the legacy of discrimination, violence and even death that persists today. 11. Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e comprehensive and in my opinion, an act like the present act (oral sex), which was an imitative act of sexual intercourse for the purpose of his satisfying the sexual appetite, would be an act punishable under Section 377 of the Indian Penal Code. Later this Court in Fazal Rab Choudhary v. State of Bihar(1982) 3 SCC 9) while reducing the sentence of the appellant who was convicted for having committed an offence on a young boy under Section 377 IPC, held that: The offence is one under Section 377 I.P.C., which implies sexual perversity. No force appears to have been used. Neither the notions of permissive society nor the fact that in some countries homosexuality has ceased to be an offence has influenced our thinking. (emphasis supplied) The test for attracting penal provisions under Section 377 changed over the years from non-procreative sexual acts in Khanu v. Emperor (supra), to imitative sexual intercourse like oral sex in Lohana Vasantlal Devchand Ors. v. State (supra), to sexual perversity in Fazal Rab v. State of Bihar (supra). These cases referred to non-consensual sexual intercourse by coercion. 13. HOMOSEXUALITY NOT AN ABERRATION BUT A VARIATION O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wo major pioneering studies on homosexuality carried out by Alfred Charles Kinsey (1930) and Evelyn Hooker (1957) This empirical study of sexual behavior among American adults revealed that a significant 17 KK Gulia and HN Mallick, Homosexuality: a dilemma in discourse, 54 Indian Journal of Physiology and Pharmacology (2010), at pp. 5, 6 and 8 number of participants were homosexuals. In this study when people were asked directly if they had engaged in homosexual relations, the percentage of positive responses nearly doubled. The result of this study became the widely popularized Kinsey Scale of Sexuality. This scales rates all individuals on a spectrum of sexuality, ranging from 100% heterosexual to 100% homosexual (emphasis supplied) 13.3. The American Psychiatric Association in December 1973 removed homosexuality from the Diagnostic and Statistical Manual of Psychological Disorders, and opined that the manifestation of sexual attraction towards persons of the opposite sex, or same sex, is a natural condition.18 13.4. The World Health Organization removed homosexuality from the list of diseases in the International Classification of Diseases in the publication of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd for discrimination. Where a legislation discriminates on the basis of an intrinsic and core trait of an individual, it cannot form a reasonable classification based on an intelligible differentia. 14.4. In National Legal Services Authority v. Union of India Ors. (2014) 5 SCC 438) this Court granted equal protection of laws to transgender persons. There is therefore no justification to deny the same to LGBT persons. 14.5. A person s sexual orientation is intrinsic to their being. It is connected with their individuality, and identity. A classification which discriminates between persons based on their innate nature, would be violative of their fundamental rights, and cannot withstand the test of constitutional morality. 14.6. In contemporary civilised jurisprudence, with States increasingly recognising the status of same-sex relationships, it would be retrograde to describe such relationships as being perverse , deviant , or unnatural . 14.7. Section 375 defines the offence of rape. It provides for penetrative acts which if performed by a man against a woman without her consent, or by obtaining her consent under duress, would amount to rape. Penetrative acts (aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 15 prohibits the State from discrimination against any citizen on the grounds of religion, race, caste, sex, or place of birth. The object of this provision was to guarantee protection to those citizens who had suffered historical disadvantage, whether it be of a political, social, or economic nature. 15.1. The term sex , as it occurs in Article 15 has been given an expansive interpretation by this Court in National Legal Services Authority v. Union of India Ors. (supra) to include sexual identity. Paragraph 66 of the judgment reads thus: 66 Both gender and biological attributes constitute distinct components of sex. The biological characteristics, of course, include genitals, chromosomes and secondary sexual features, but gender attributes includes one s self-image, the deep psychological or emotional sense of sexual identity and character. The discrimination on the ground of sex under Article 15 and 16, therefore includes discrimination on the ground of gender identity. The expression sex used in Articles 15 and 16 is not just limited to biological sex of male and female, but intended to include people who consider themselves neither male nor female. (empha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lead an autonomous life we need an adequate range of valuable options throughout that life.... there are some particular valuable options that each of us should have irrespective of our other choices. Where a particular choice is a choice between valuable options which ought to be available to people whatever else they may choose, it is a fundamental choice. Where there is discrimination against people based on their fundamental choices it tends to skew those choices by making one or more of the valuable options from which they must choose more painful or burdensome than others. 26 (emphasis supplied) Race, caste, sex, and place of birth are aspects over which a person has no control, ergo they are immutable. On the other hand, religion is a fundamental choice of a person. Supra note 25 Discrimination based on any of these grounds would undermine an individual s personal autonomy. The Supreme Court of Canada in its decisions in the cases of Egan v. Canada[1995] SCC 98], and Vriend v. Alberta[1998] SCC 816], interpreted Section 15(1)30 of the Canadian Charter of Rights and Freedoms which is pari materia to Article 15 of the Indian Constitution. Section 15(1), of the Ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he basic necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human-self. Every act which offends against or impairs human dignity would constitute deprivation pro tanto of this right to live and it would have to be in accordance with reasonable, fair and just procedure established by law which stands the test of other fundamental rights. (emphasis supplied) This was re-affirmed by the Constitution bench decision in K.S. Puttaswamy Anr. v. Union of India Ors. (2017) 10 SCC 1) and Common Cause (A Registered Society) v. Union of India Anr (2018) 5 SCC 1 at paragraphs 156, 437, 438, 488 516). Although dignity is an amorphous concept which is incapable of being defined, it is a core intrinsic value of every human being. Dignity is considered essential for a meaningful existence. 36 In National Legal Services Authority v. Union of India Ors. (supra), this Court recognised the right of transgender persons to decide their self-identified gender. In the context of the legal rights of transgender persons, this Court held that sexual orientation and gender identity is an integral part of thei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 opinion of Blackmun J. of the U.S. Supreme Court in Bowers v. Hardwick(478 U.S. 186 (1986) is instructive, which cites a previous decision in Paris Adult Theatre I v. Slaton(413 U.S. 49 (1973) and noted as follows: Only the most wilful blindness could obscure the fact that sexual intimacy is a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality. (emphasis supplied) The U.S. Supreme Court over-ruled Bowers v. Hardwick (supra) in Lawrence et al. v. Texas. (supra) and declared that a statute proscribing homosexuals from engaging in intimate sexual conduct as invalid on the ground that it violated the right to privacy, and dignity of homosexual persons. Kennedy, J. in his majority opinion observed as under: To say that the issue in Bowers was simply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Article 21.41 Sexual orientation is an innate part of the identity of LGBT persons. Sexual orientation of a person is an essential attribute of privacy. Its protection lies at the core of Fundamental Rights guaranteed by Articles 14, 15, and 21.42 The right to privacy is broad-based and pervasive under our Constitutional scheme, and encompasses decisional autonomy, to cover intimate/personal decisions and preserves the sanctity of the private sphere of an individual.43 The right to privacy is not simply the right to be let alone , and has travelled far beyond that initial concept. It now incorporates the ideas of spatial privacy, and decisional privacy or privacy of choice.44 It extends to the right to make fundamental personal choices, including those relating to intimate sexual conduct, without unwarranted State interference. Section 377 affects the private sphere of the lives of LGBT persons. It takes away the decisional autonomy of LGBT persons to make choices consistent with their sexual orientation, which would further a dignified existence and a meaningful life as a full person. Section 377 prohibits LGBT persons from expressing their sexual orientation and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns to lead closeted lives. As a consequence, LGBT persons are seriously disadvantaged and prejudiced when it comes to access to health-care facilities. This results in serious health issues, including depression and suicidal tendencies amongst members of this community. 47 LGBT persons, and more specifically the MSM, and transgender persons are at a higher risk of contracting HIV as they lack safe spaces to engage in safe-sex practices. They are inhibited from seeking medical help for testing, treatment and supportive care on account of the threat of being exposed and the resultant prosecution. 48 Higher rates of prevalence of HIV-AIDS in MSM, who are in turn married to other people of the opposite sex, coupled with the difficulty in detection and treatment, makes them highly susceptible to contraction and further transmission of the virus. It is instructive to refer to the findings of the Human Rights Committee of the United Nations in Nicholas Toonen v. Australia (supra): 8.5 As far as the public health argument of the Tasmanian authorities is concerned, the Committee notes that the criminalization of homosexual practices cannot be considered a reasonable means or p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sexual acts like those proscribed under Section 377.50 Owing to the fear of harassment from law enforcement agencies and prosecution, LGBT persons tend to stay in the closet . They are forced not to disclose a central aspect of their personal identity i.e. their sexual orientation, both in their personal and professional spheres to avoid persecution in society and the opprobrium attached to homosexuality. Unlike heterosexual persons, they are inhibited from openly forming and nurturing fulfilling relationships, thereby restricting rights of full personhood and a dignified 50 Lawrence et al. v. Texas, 539 U.S. 558 (2003); and, National Coalition for Gay and Lesbian Equality Anr. v. Minister of Justice Ors., [1998] ZACC 15 existence. It also has an impact on their mental well-being. 17.2. In National Legal Services Authority v. Union of India Ors. (supra), this Court noted that gender identity is an important aspect of personal identity and is inherent to a person. It was held that transgender persons have the right to express their self-identified gender by way of speech, mannerism, behaviour, presentation and clothing, etc. (2014) 5 SCC 438, at paragraphs 69-72) The C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It merely identifies certain acts which if committed would constitute an offence. Such a prohibition regulates sexual conduct, regardless of gender identity and orientation. Those who indulge in carnal intercourse in the ordinary course, and those who indulge in carnal intercourse against the order of nature, constitute different classes. Persons falling in the latter category cannot claim that Section 377 suffers from the vice of arbitrariness and irrational classification. Section 377 merely defines a particular offence, and prescribes a punishment for the same. ii. LGBT persons constitute a miniscule fraction of the country s population, and there have been very few prosecutions under this Section. Hence, it could not have been made a sound basis for declaring Section 377 to be ultra-vires Articles 14, 15, and 21. iii. It was held that merely because Section 377, IPC has been used to perpetrate harassment, blackmail and torture to persons belonging to the LGBT community, cannot be a ground for challenging the vires of the Section. iv. After noting that Section 377 was intra vires, this Court observed that the legislature was free to repeal or amend Section 377. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the basis of their sexual orientation which is violative of their fundamental rights guaranteed by Articles 14, 19, and 21 of the Constitution. ii. The mere fact that the LGBT persons constitute a miniscule fraction of the country s population cannot be a ground to deprive them of their Fundamental Rights guaranteed by Part III of the Constitution. Even though the LGBT constitute a sexual minority, members of the LGBT community are citizens of this country who are equally entitled to the enforcement of their Fundamental Rights guaranteed by Articles 14, 15, 19, and 21. Fundamental Rights are guaranteed to all citizens alike, irrespective of whether they are a numerical minority. Modern democracies are based on the twin principles of majority rule, and protection of fundamental rights guaranteed under Part III of the Constitution. Under the Constitutional scheme, while the majority is entitled to govern; the minorities like all other citizens are protected by the solemn guarantees of rights and freedoms under Part III. The J.S. Verma Committee, in this regard, in paragraph 77 of its Report (supra) states that: 77. We need to remember that the founding fathers of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely natural condition, part of a range of human sexuality. The mis-application of this provision denied them the Fundamental Right to equality guaranteed by Article 14. It infringed the Fundamental Right to non-discrimination under Article 15, and the Fundamental Right to live a life of dignity and privacy guaranteed by Article 21. The LGBT persons deserve to live a life unshackled from the shadow of being unapprehended felons . 21. CONCLUSION i. In view of the aforesaid findings, it is declared that insofar as Section 377 criminalises consensual sexual acts of adults (i.e. persons above the age of 18 years who are competent to consent) in private, is violative of Articles 14, 15, 19, and 21 of the Constitution. It is, however, clarified that such consent must be free consent, which is completely voluntary in nature, and devoid of any duress or coercion. ii. The declaration of the aforesaid reading down of Section 377 shall not, however, lead to the re-opening of any concluded prosecutions, but can certainly be relied upon in all pending matters whether they are at the trial, appellate, or revisional stages. iii. The provisions of Section 377 will continue to govern no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 1952. Alan Turing was instrumental in cracking intercepted code messages that enabled the Allies to defeat Germany in many crucial engagements in the War. Turing accepted chemical castration treatment as an alternative to prison upon conviction, but committed suicide just before his 42nd birthday in 1954. 5 The majority s decision echoes what had happened earlier in what is referred to as the celebrated flag salute case, namely, West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943). The U.S. Supreme Court had overruled its recent judgment in Minersville School District v. Gobitis, 310 U.S. 586 (1940). Justice Jackson speaking for the majority of the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stice 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 spanning over more than 2,000 years of Indian literature which demonstrate that same-sex love has flourished, evolved and been embraced in various forms since ancient times. 7 Law like Love: Queer Perspectives on Law (Arvind Narrain and Alok Gupta, eds.), Yoda Press (2011). 8 K. N. Chandrasekharan Pillai and Shabistan Aquil, Historical Introduction to the Indian Penal Code , in Essays on the Indian Penal Code, New Delhi, Indian Law Institute (2005); Siyuan Chen, Codification, Macaulay and the Indian Penal Code [Book Review], Singapore Journal of Legal Studies, National University of Singapore, Fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ism 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) Public Law, International Survey Section (2014). 60 Gautam Bhatia, The Unbearable Wrongness of Koushal vs Naz Foundation , Indian Constitutional Law and Philosophy (2013). 61 Shamnad Basheer, Sroyon Mukherjee and Karthy Nair, Section 377 and the Order of Nature : Nurturing Indeterminacy in the Law , NUJS Law Review, Vol, 2 (2009). 62 Bruce Bagemihl, Biological Exuberance: Animal Homosexuality and Natural Diversity, Stonewall Inn Editions (2000). 63 Brandon Ambrosino, The Invention of Heteros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent Sixthly.-With or without her consent, when she is under eighteen years of age. Seventhly.-When she is unable to communicate consent. Explanation 1.-For the purposes of this section, vagina shall also include labia majora. Explanation 2.-Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. Exception 1.-A medical procedure or intervention shall not constitute rape. Exception 2.-Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape. 79 Nivedita Menon, How Natural is Normal? Feminism and Compulsory Heterosexuality , In Because I have a Voice, Queer Politics in India, (Narrain and Bhan eds.) Yoda Press (2005). 83 The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst 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 Review, Vol. 89 (2001), at page 688. 127 The expression heteronormative is used to denote or relate to a world view that promotes heterosexuality as the normal or preferred sexual orientation. 131 David A. J. Richards, Sexual Autonomy and the Constitutional Right to Privacy: A Case Study in Human Rights and the Unwritten Constitution , Hastings Law Journal, Vol. 30, at page 786. 137 Danish Sheikh, Q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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/AIDS among men who have sex with men and transgender populations in South-East Asia: the current situation and national responses (2010). 209 Transgender people continue to be included under the umbrella term MSM . However, it has increasingly been recognized that Transgender people have unique needs and concerns, and it would be more useful to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 247 Article 17: No one shall be subjected to arbitrary or unlaw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (1962). 344 Sir Patrick Arthur Devlin, The Enforcement Of Morals Oxford University Press (1959) at page 9. 346 Animesh Sharma, Section 377: No Jurisprudential Basis. Economic and Political Weekly, V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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: Position statement on Homosexuality IPS/Statement/02/07/2018 available at http://www.indianpsychiatricsociety.org/upload_images/imp_dow ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
