Dipak Misra, CJI (for himself and A.M. Khanwilkar, J.) CONTENTS S. No(s). Heading Page No(s) Signature Not Verified A. Introduction………………………………………… 3-11 Digitally signed by CHETAN KUMAR The Reference……………………………………… Date: 2018.09.06 15:12:35 IST Reason: B. 11-15 2 C. Submissions on behalf of the petitioners…… 15-30 D. Submissions on behalf of the respondents and other intervenors.………………………….… 31-44 E. Decisions in Naz Foundation and Suresh Koushal………………..…………………………….. 45-48 F. Other judicial pronouncements on Section 377 IPC ……………………….………………………….. 48-57 G. The Constitution – an organic charter of progressive rights………………………………… 57-64 H. Transformative constitutionalism and the rights of LGBT community………………………. 65-74 I. Constitutional morality and Section 377 IPC…. 74-81 J. Perspective of human dignity…………………… 81-89 K. Sexual orientation…………………………………. 89-96 L. Privacy and its concomitant aspects…………... 96-111 M. Doctrine of progressive realization of rights…………………………………………………. 111-118 N. International perspective…………………………. 118

(i) United States……………………………… 118-122

(ii) Canada…………………………………….. 123-125 (iii) South Africa………………………………. 125

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

(v) Other Courts/Jurisdictions…………….. 127-129 3 O. Comparative analysis of Section 375 and Section 377 IPC………………………………….… 129-140 P. The litmus test for survival of Section 377 IPC…….……………………………………………… 140-156 Q. Conclusions………………………………………… 156-166 A. Introduction Not for nothing, the great German thinker, Johann Wolfgang von Goethe, had said, ―I am what I am, so take me as I am‖ and similarly, Arthur Schopenhauer had pronounced, ―No one can escape from their individuality‖. In this regard, it is profitable to quote a few lines from John Stuart Mill:-

2. Shakespeare through one of his characters in a play says ―What‘s in a name? That which we call a rose by any other name would smell as sweet‖. The said phrase, in its basic sense, conveys that what really matters is the essential qualities of the substance and the fundamental characteristics of an entity but not the name by which it or a person is called. Getting further deeper into the meaning, it is understood that the name may be a convenient concept for identification but the essence behind the same is the core of identity. Sans identity, the name only remains a denotative term. Therefore, the identity is pivotal to one‘s being. Life bestows honour on it and freedom of living, as a facet of life, expresses genuine desire to have it. The said desire, one is inclined to think, is satisfied by the conception of constitutional recognition, and hence, emphasis is laid on the identity of an individual which is conceived under the Constitution. And the sustenance of identity is the filament of life. It is equivalent to authoring one‘s own life script where freedom broadens everyday. Identity is equivalent to divinity. 5

3. The overarching ideals of individual autonomy and liberty, equality for all sans discrimination of any kind, recognition of identity with dignity and privacy of human beings constitute the cardinal four corners of our monumental Constitution forming the concrete substratum of our fundamental rights that has eluded certain sections of our society who are still living in the bondage of dogmatic social norms, prejudiced notions, rigid stereotypes, parochial mindset and bigoted perceptions. Social exclusion, identity seclusion and isolation from the social mainstream are still the stark realities faced by individuals today and it is only when each and every individual is liberated from the shackles of such bondage and is able to work towards full development of his/her personality that we can call ourselves a truly free society. The first step on the long path to acceptance of the diversity and variegated hues that nature has created has to be taken now by vanquishing the enemies of prejudice and injustice and undoing the wrongs done so as to make way for a progressive and inclusive realisation of social and economic rights embracing all and to begin a dialogue for ensuring equal rights and opportunities for the ―less than equal‖ sections of the society. We have to bid adieu to the perceptions, stereotypes and prejudices 6 deeply ingrained in the societal mindset so as to usher in inclusivity in all spheres and empower all citizens alike without any kind of alienation and discrimination.

4. The natural identity of an individual should be treated to be absolutely essential to his being. What nature gives is natural. That is called nature within. Thus, that part of the personality of a person has to be respected and not despised or looked down upon. The said inherent nature and the associated natural impulses in that regard are to be accepted. Non-acceptance of it by any societal norm or notion and punishment by law on some obsolete idea and idealism affects the kernel of the identity of an individual. Destruction of individual identity would tantamount to crushing of intrinsic dignity that cumulatively encapsulates the values of privacy, choice, freedom of speech and other expressions. It can be viewed from another angle. An individual in exercise of his choice may feel that he/she should be left alone but no one, and we mean, no one, should impose solitude on him/her.

5. The eminence of identity has been luculently stated in National Legal Services Authority v. Union of India and others1, popularly 1 (2014) 5 SCC 438 7 known as NALSA case, wherein the Court was dwelling upon the status of identity of the transgenders. Radhakrishnan, J., after referring to catena of judgments and certain International Covenants, opined that gender identity is one of the most fundamental aspects of life which refers to a person‘s intrinsic sense of being male, female or transgender or transsexual person. A person‘s sex is usually assigned at birth, but a relatively small group of persons may be born with bodies which incorporate both or certain aspects of both male and female physiology. The learned Judge further observed that at times, genital anatomy problems may arise in certain persons in the sense that their innate perception of themselves is not in conformity with the sex assigned to them at birth and may include pre-and post- operative transsexual persons and also persons who do not choose to undergo or do not have access to operation and also include persons who cannot undergo successful operation. Elaborating further, he said:-

2 (2014) 1 SCC 1 3 (2009) 111 DRJ 1 12 08.01.2018, the Court referred to a two-Judge Bench decision rendered in Suresh Koushal (supra) wherein this Court had overturned the decision rendered by the Division Bench of the Delhi High Court in Naz Foundation (supra). It was submitted by Mr. Arvind Datar, learned senior counsel appearing for the writ petitioners, on the said occasion that the two-Judge Bench in Suresh Koushal (supra) had been guided by social morality leaning on majoritarian perception whereas the issue, in actuality, needed to be debated upon in the backdrop of constitutional morality. A contention was also advanced that the interpretation placed in Suresh Kumar (supra) upon Article 21 of the Constitution is extremely narrow and, in fact, the Court has been basically guided by Article 14 of the Constitution. Reliance was placed on the pronouncement in NALSA case wherein this Court had emphasized on ―gender identity and sexual orientation‖. Attention of this Court was also invited to a nine- Judge Bench decision in K.S. Puttaswamy and another v. Union of 4 India and others wherein the majority, speaking through Chandrachud, J., has opined that sexual orientation is an essential component of rights guaranteed under the Constitution which are not 4 (2017) 10 SCC 1 13 formulated on majoritarian favour or acceptance. Kaul, J, in his concurring opinion, referred to the decision in Mosley v. News 5 Group Newspapers Ltd. to highlight that the emphasis for individual‘s freedom to conduct his sex life and personal relationships as he wishes, subject to the permitted exceptions, countervails public interest.

11. The further submission that was advanced by Mr. Datar was that privacy of the individual having been put on such a high pedestal and sexual orientation having been emphasized in the NALSA case, Section 377 IPC cannot be construed as a reasonable restriction as that would have the potentiality to destroy the individual autonomy and sexual orientation. It is an accepted principle of interpretation of statutes that a provision does not become unconstitutional merely because there can be abuse of the same. Similarly, though a provision on the statute book is not invoked on many occasions, yet it does not fall into the sphere of the doctrine of desuetude. However, Suresh Koushal 's case has been guided by the aforesaid doctrine of desuetude.

5 [2008] EWHC 1777 (QB) 14

12. Appreciating the said submissions, the three-Judge Bench stated that:-

But that law must have the acceptability of the Constitutional parameters. That is the litmus test.

It is necessary to note, in the course of hearing on a query being made and Mr. Datar very fairly stated that he does not intend to challenge that part of Section 377 which relates to carnal intercourse with animals and that apart, he confines to consenting acts between two adults. As far as the first aspect is concerned, that is absolutely beyond debate. As far as the second aspect is concerned, that needs to be debated. The consent between two adults has to be the primary pre-condition. Otherwise the children would become prey, and protection of the children in all spheres has to be guarded and protected. Taking all the apsects in a cumulative manner, we are of the 15 view, the decision in Suresh Kumar Koushal 's case (supra) requires re-consideration.‖ The three-Judge Bench expressed the opinion that the issues raised should be answered by a larger Bench and, accordingly, referred the matter to the larger Bench. That is how the matter has been placed before us.

C. Submissions on behalf of the petitioners

13. We have heard Mr. Mukul Rohatgi, learned senior counsel assisted by Mr. Saurabh Kirpal, learned counsel appearing for the petitioners in Writ Petition (Criminal) No. 76 of 2016, Ms. Jayna Kothari, learned counsel for the petitioner in Writ Petition (Civil) No. 572 of 2016, Mr. Arvind P. Datar, learned senior counsel for the petitioner in Writ Petition (Criminal) No. 88 of 2018, Mr. Anand Grover, learned senior counsel for the petitioners in Writ Petition (Criminal) Nos. 100 of 2018 and 101 of 2018 and Dr. Menaka Guruswamy, learned counsel for the petitioner in Writ Petition (Criminal) No. 121 of 2018. We have also heard Mr. Ashok Desai, Mr. Chander Uday Singh, Mr. Shyam Divan and Mr. Krishnan Venugopal, learned senior counsel appearing for various intervenors in the matter. A compilation of written submissions has been filed by the petitioners as well as the intervenors.

14. We have heard Mr. Tushar Mehta, learned Additional Solicitor General for the Union of India, Mr. K. Radhakrishnan, learned senior counsel appearing in Interlocutory Application No. 94284 of 2018 in Writ Petition (Criminal) No. 76 of 2016, Mr. Mahesh Jethmalani, learned senior counsel appearing in Interlocutory Application No. 91147 in Writ Petition (Criminal) No. 76 of 2016, Mr. Soumya Chakraborty, learned senior counsel appearing in Interlocutory Application No. 94348 of 2018 in Writ Petition (Criminal) No. 76 of 2016, Mr. Manoj V. George, learned counsel appearing for Apostolic Alliance of Churches & Utkal Christian Council and Dr. Harshvir Pratap Sharma, learned counsel appearing in Interlocutory Application No. 93411 of 2018 in Writ Petition (Criminal) No. 76 of 2016.

15. It is submitted on behalf of the petitioners and the intervenors that homosexuality, bisexuality and other sexual orientations are equally natural and reflective of expression of choice and inclination founded on consent of two persons who are eligible in law to express such consent and it is neither a physical nor a mental illness, rather they are natural variations of expression and free thinking process and to make it a criminal offence is offensive of the well established 17 principles pertaining to individual dignity and decisional autonomy inherent in the personality of a person, a great discomfort to gender identity, destruction of the right to privacy which is a pivotal facet of Article 21 of the Constitution, unpalatable to the highly cherished idea of freedom and a trauma to the conception of expression of biological desire which revolves around the pattern of mosaic of true manifestation of identity. That apart, the phrase ―order of nature‖ is limited to the procreative concept that may have been conceived as natural by a systemic conservative approach and such limitations do not really take note of inborn traits or developed orientations or, for that matter, consensual acts which relate to responses to series of free exercise of assertions of one‘s bodily autonomy. It is further argued that their growth of personality, relation building endeavour to enter into a live-in relationship or to form an association with a sense of commonality have become a mirage and the essential desires are crippled which violates Article 19(1)(a) of the Constitution. It is urged that the American Psychological Association has opined that sexual orientation is a natural condition and attraction towards the same sex or opposite sex are both naturally equal, the only difference being that the same sex attraction arises in far lesser numbers. 18

16. The petitioners have highlighted that the rights of the lesbian, gay, bisexual and transgender (LGBT) community, who comprise 7- 8% of the total Indian population, need to be recognized and protected, for sexual orientation is an integral and innate facet of every individual‘s identity. A person belonging to the said community does not become an alien to the concept of individual and his individualism cannot be viewed with a stigma. The impact of sexual orientation on an individual‘s life is not limited to their intimate lives but also impacts their family, professional, social and educational life. As per the petitioners, such individuals (sexual minorities in societies) need protection more than the heterosexuals so as to enable them to achieve their full potential and to live freely without fear, apprehension or trepidation in such a manner that they are not discriminated against by the society openly or insidiously or by the State in multifarious ways in matters such as employment, choice of partner, testamentary rights, insurability, medical treatment in hospitals and other similar rights arising from live-in relationships which, after the decision in Indra Sarma v. V.K.V. Sarma 6 , is recognized even by the ―Protection of Women from Domestic 6 (2013) 15 SCC 755 19 Violence Act, 2005‖ for various kinds of live-in relationships. The same protection, as per the petitioners, must be accorded to same sex relationships.

17. It is urged by the learned counsel for the petitioners that individuals belonging to the LGBT group suffer discrimination and abuse throughout their lives due to the existence of Section 377 IPC which is nothing but a manifestation of a mindset of societal values prevalent during the Victorian era where sexual activities were considered mainly for procreation. The said community remains in a constant state of fear which is not conducive for their growth. It is contended that they suffer at the hands of law and are also deprived of the citizenry rights which are protected under the Constitution. The law should have treated them as natural victims and sensitized the society towards their plight and laid stress on such victimisation, however, the reverse is being done due to which a sense of estrangement and alienation has developed and continues to prevail amongst the members belonging to the LGBT group. Compulsory alienation due to stigma and threat is contrary to the fundamental principle of liberty.

18. The petitioners have referred to the decision of this Court in NALSA case wherein transgenders have been recognized as a third gender apart from male and female and have been given certain rights. Yet, in view of the existence of Section 377 in the IPC , consensual activities amongst transgenders would continue to constitute an offence. Drawing inspiration from the NALSA case, the petitioners submit that the rights of the LGBT group are not fully realized and they remain incomplete citizens because their expression as regards sexuality is not allowed to be pronounced owing to the criminality attached to the sexual acts between these persons which deserves to be given a burial and, therefore, the rights of the LGBT community also need equal, if not more, constitutional protection. Accordingly, the petitioners are of the view that Section 377 of the IPC be read down qua the LGBT community so as to confine it only to the offence of bestiality and non-consensual acts in view of the fact that with the coming into force of the Criminal Law (Amendment) Act, 2013 and the Protection of Children from Sexual Offences Act, 2012 (POCSO Act ), the scope of sexual assault has been widened to include non peno-vaginal sexual assault and also 21 criminalize non-consensual sexual acts between children thereby plugging important gaps in the law governing sexual violence in India.

19. The petitioners have also submitted that Section 377, despite being a pre-constitutional law, was retained post the Constitution coming into effect by virtue of Article 372 of the Constitution, but it must be noted that the presumption of constitutionality is merely an evidentiary burden initially on the person seeking to challenge the vires of a statute and once any violation of fundamental rights or suspect classification is prima facie shown, then such presumption has no role. In the case at hand, the petitioners face a violation of their fundamental rights to an extent which is manifestly clear and it is a violation which strikes at the very root or substratum of their existence. The discrimination suffered at the hands of the majority, the onslaught to their dignity and invasion on the right to privacy is demonstrably visible and permeates every nook and corner of the society.

20. It is the argument of the petitioners that Section 377, if retained in its present form, would involve the violation of, not one but, several fundamental rights of the LGBTs, namely, right to privacy, right to dignity, equality, liberty and right to freedom of expression. The 22 petitioners contend that sexual orientation which is a natural corollary of gender identity is protected under Article 21 of the Constitution and any discrimination meted out to the LGBT community on the basis of sexual orientation would run counter to the mandate provided under the Constitution and the said view has also gained approval of this Court in the NALSA case.

21. The petitioners have also relied upon the view in K.S. Puttaswamy (supra) to advance their argument that sexual orientation is also an essential attribute of privacy. Therefore, protection of both sexual orientation and right to privacy of an individual is extremely important, for without the enjoyment of these basic and fundamental rights, individual identity may lose significance, a sense of trepidation may take over and their existence would be reduced to mere survival. It is further urged that sexual orientation and privacy lie at the core of the fundamental rights which are guaranteed under Articles 14 , 19 and 21 of the Constitution and in the light of the decision in Puttaswamy (supra), it has become imperative that Section 377 be struck down. It is contended that the right to privacy has to take within its ambit and sweep the right of every individual, including LGBTs, to make decisions as per their 23 choice without the fear that they may be subjected to humiliation or shunned by the society merely because of a certain choice or manner of living.

22. Having canvassed with vehemence that sexual orientation is an important facet of the right to privacy which has been raised to the pedestal of a cherished right, the learned counsel for the petitioners have vigorously propounded that sexual autonomy and the right to choose a partner of one‘s choice is an inherent aspect of the right to life and right to autonomy. In furtherance of the said view, they have relied upon the authorities in Shakti Vahini v. Union of India and others 7 and Shafin Jahan v. Asokan K.M. 8 wherein it has been clearly recognized that an individual‘s exercise of choice in choosing a partner is a feature of dignity and, therefore, it is protected under Articles 19 and 21 of the Constitution.

23. According to the petitioners, there is no difference between persons who defy social conventions to enter into inter-religious and inter-caste marriages and those who choose a same sex partner in the sense that the society may disapprove of inter-caste or inter- religious marriages but this Court is for enforcing constitutional rights. 7(2018) 7 SCC 192 8AIR 2018 SC 1933 : 2018 (5) SCALE 422 24 Similarly, as per the petitioners, even if there is disapproval by the majority of the sexual orientation or exercise of choice by the LGBT persons, the Court as the final arbiter of the constitutional rights, should disregard social morality and uphold and protect constitutional morality which has been adverted to by this Court in several cases, including Manoj Narula v. Union of India9 , for that is the governing rule. It is argued that the Delhi High Court in Naz Foundation (supra) has referred to and analysed the concept of constitutional morality and ultimately struck down Section 377 IPC clearly stating that carnal intercourse between homosexuals and heterosexuals with consent cannot be an offence.

24. The LGBT persons cannot, according to the petitioners, be penalized simply for choosing a same sex partner, for the constitutional guarantee of choice of partner extends to the LGBT persons as well. Learned counsel for the petitioners and the supporting intervenors have submitted that sexual orientation, being an innate facet of individual identity, is protected under the right to dignity. To bolster the said argument, reliance has been placed upon Francis Coralie Mullin v. Administrator, Union Territory of Delhi 9 (2014) 9 SCC 1 25 and others10 and Common Cause (A Registered Society) v. Union of India and another11 wherein it was held that the right to life and liberty, as envisaged under Article 21 , is meaningless unless it encompasses within its sphere individual dignity and right to dignity includes the right to carry such functions and activities as would constitute the meaningful expression of the human self.

25. It is submitted that Section 377 is an anathema to the concept of fraternity as enshrined in the Preamble to our Constitution and the Indian Constitution mandates that we must promote fraternity amongst the citizens sans which unity shall remain a distant dream.

26. The petitioners have further contended that Section 377 is violative of Article 14 of the Constitution as the said Section is vague in the sense that carnal intercourse against the order of nature is neither defined in the Section nor in the IPC or, for that matter, any other law. There is, as per the petitioners, no intelligible differentia or reasonable classification between natural and unnatural sex as long as it is consensual in view of the decision of this Court in Anuj Garg and others v. Hotel Association of India and others12 which lays down the principle that classification which may have been treated as 10(1981) 1 SCC 608 11(2018) 5 SCC 1 12(2008) 3 SCC 1 26 valid at the time of its adoption may cease to be so on account of changing social norms.

27. Section 377, as argued by the petitioners, is manifestly arbitrary and over-broad and for the said purpose, immense inspiration has been drawn from the principles stated in Shayara Bano v. Union of India and others13 , for making consensual relationship a crime on the ground that it is against the order of nature suffers from manifest arbitrariness at the fulcrum.

28. It is the case of the petitioners that Section 377 violates Article 15 of the Constitution since there is discrimination inherent in it based on the sex of a person‘s sexual partner as under Section 376(c) to (e), a person can be prosecuted for acts done with an opposite sex partner without her consent, whereas the same acts if done with a same-sex partner are criminalized even if the partner consents. The petitioners have drawn the attention of this Court to the Justice J.S Verma Committee on Amendments to Criminal Law which had observed that ‗sex‘ occurring in Article 15 includes sexual orientation and, thus, as per the petitioners, Section 377 is also violative of Article 15 of the Constitution on this count.

13(2017) 9 SCC 1 27

29. It is argued with astuteness that Section 377 has a chilling effect on Article 19(1)(a) of the Constitution which protects the fundamental right of freedom of expression including that of LGBT persons to express their sexual identity and orientation, through speech, choice of romantic/sexual partner, expression of romantic/sexual desire, acknowledgment of relationships or any other means and that Section 377 constitutes an unreasonable exception and is thereby not covered under Article 19(2) of the Constitution. To buttress the said stance, reliance is placed upon the decision in S. Khushboo v. Kanniammal and another14 wherein it has been held that law should not be used in such a manner that it has a chilling effect on the freedom of speech and expression. Additionally, the view in NALSA case has also been strongly pressed into service to emphasize that the said decision clearly spells out that the right under Article 19(1)(a) includes one‘s right to expression of his/her self- identified gender which can be expressed through words, action, behaviour or any other form.

30. The petitioners have also contended that Section 377 violates the rights of LGBT persons under Article 19(1)(c) and denies them the 14(2010) 5 SCC 600 28 right to form associations. Similarly, such persons are hesitant to register companies to provide benefits to sexual minorities due to the fear of state action and social stigma. Further, a conviction under Section 377 IPC renders such persons ineligible for appointment as a director of a company.

31. It is averred that Section 377 IPC, by creating a taint of criminality, deprives the LGBT persons of their right to reputation which is a facet of the right to life and liberty of a citizen under Article 21 of the Constitution as observed by this Court in Kishore Samrite v. State of U.P. and others15 and Umesh Kumar v. State of Andhra Pradesh and another16 to the effect that reputation is an element of personal security and protected by the Constitution with the right to enjoyment of life and liberty. This right, as per the petitioners, is being denied to the LGBT persons because of Section 377 IPC as it makes them apprehensive to speak openly about their sexual orientation and makes them vulnerable to extortion, blackmail and denial of State machinery for either protection or for enjoyment of other rights and amenities and on certain occasions, the other concomitant rights are affected.

15(2013) 2 SCC 398 16(2013) 10 SCC 591 29

32. The petitioners have advanced their argument that Section 377 IPC impedes the ability of the LGBTs to realize the constitutionally guaranteed right to shelter. To illustrate the same, the petitioners have drawn the attention of the Court to the fact that LGBTs seek assistance of private resources such as Gay Housing Assistance Resources (GHAR) in order to access safe and suitable shelter and this is an indication that the members of this community are in need of immediate care and protection of the State.

33. The decision in Suresh Koushal (supra), as per the petitioners, is per incuriam as the view observed therein has failed to take into account the amendment to Section 375 IPC which has rendered sexual ‗carnal intercourse against the order of nature‘ between man and woman as permissible. Section 377, on the other hand, has continued to render same sex carnal intercourse as an offence, even if it is consensual. Further, the petitioners have assailed the decision of this Court in Suresh Koushal’s case on the ground that the view in the said decision on classification is contrary to the ‗impact or effect test‘, for the result, in ultimate eventuality, leads to discrimination. Thus, the petitioners have contended that after Puttaswamy (supra), the view in Suresh Koushal (supra) needs to be overruled and the 30 proper test would be whether Section 377 IPC can be enacted by the Parliament today after the decisions of this Court in NALSA (supra) and Puttaswamy (supra) and other authorities laying immense emphasis on individual choice.

34. It is further contended that LGBT persons are deprived of their rights due to the presence of Section 377 as they fear prosecution and persecution upon revealing their sexual identities and, therefore, this class of persons never approached this Court as petitioners, rather they have always relied upon their teachers, parents, mental health professionals and other organizations such as NGOs to speak on their behalf. It is urged that the appellants in Suresh Koushal (supra) led this Court to assume that LGBT persons constitute only a minuscule fraction whereas most of the studies indicate that they constitute at least 7-8% of the population and that apart, rights are not determined on the basis of percentage of populace but on a real scrutiny of the existence of right and denial of the same. It is the stand of the petitioners that majority perception or view cannot be the guiding factor for sustaining the constitutionality of a provision or to declare a provision as unconstitutional.

D. Submissions on behalf of the respondents and other intervenors

35. The respondent, Union of India, has, vide affidavit dated 11th July, 2018, submitted that the matter at hand was referred to a Constitution Bench to decide as to whether the law laid down in Suresh Koushal (supra) is correct or not and the only question referred to this Bench is the question of the constitutional validity of criminalizing 'consensual acts of adults in private' falling under Section 377 IPC.

36. Further, the Union has submitted that so far as the constitutional validity of Section 377 IPC, to the extent it applies to 'consensual acts of adults in private', is concerned, the respondent leaves the same to the wisdom of this Court.

37. The respondent has also contended that in the event Section 377 IPC so far as 'consensual acts of adults in private' is declared unconstitutional, other ancillary issues or rights which have not been referred to this Bench for adjudication may not be dealt with by this Bench as in that case , the Union of India expresses the wish to file detailed affidavit in reply, for consideration of other issues and rights would have far reaching and wide ramifications under various other laws and will also have consequences which are neither 32 contemplated in the reference nor required to be answered by this Hon‘ble Bench.

38. The respondent has submitted that allowing any other issue (other than the constitutional validity of Section 377 IPC) to be argued and adjudicating the same without giving an opportunity to the Union of India to file a counter affidavit may not be in the interest of justice and would be violative of the principles of natural justice.

39. Another set of written submissions has been filed by Shri K. Radhakrishnan, senior counsel, on behalf of intervenor-NGO, Trust God Ministries. The said intervenor has submitted that the observations of this Court in Puttaswamy (supra), particularly in Para 146, virtually pre-empt and forestall the aforesaid NGO from raising substantial contentions to the effect that there is no uncanalised and unbridled right to privacy and the said right cannot be abused. Further, the intervenor has contended that there is no personal liberty to abuse one‘s organs and that the offensive acts proscribed by Section 377 IPC are committed by abusing the organs. Such acts, as per the intervenor, are undignified and derogatory to the constitutional concept of dignity and if any infraction is caused to the concept of 33 dignity, then it would amount to constitutional wrong and constitutional immorality.

40. It is also the case of the intervenor that issues pertaining to the constitutional and other legal rights of the transgender community, their gender identity and sexual orientation have been exhaustively considered in the light of the various provisions of the Constitution and, accordingly, reliefs have been granted by this Court in NALSA (supra). It is contended by the intervenor that no further reliefs can be granted to them and the prayers made by them is only to abuse privacy and personal liberty by transgressing the concepts of dignity and public morality.

41. As per the intervenor, Section 377 rightly makes the acts stated therein punishable as Section 377 has been incorporated after taking note of the legal systems and principles which prevailed in ancient India and now in 2018, the said Section is more relevant legally, medically, morally and constitutionally.

42. To illustrate this, the intervenor has drawn the attention of this Court to W. Friedmann from 'Law in a Changing Society' wherein he has observed that to prohibit a type of conduct which a particular society considers worthy of condemnation by criminal sanctions is 34 deeply influenced by the values governing that society and it, therefore, varies from one country to another and one period of history to another.

43. Further, it has been contended by the intervenor that persons indulging in unnatural sexual acts which have been made punishable under Section 377 IPC are more susceptible and vulnerable to contracting HIV/AIDS and the percentage of prevalence of AIDS in homosexuals is much greater than heterosexuals and that the right to privacy may not be extended in order to enable people to indulge in unnatural offences and thereby contact AIDS.

44. It is also the case of the intervenor that if Section 377 is declared unconstitutional, then the family system which is the bulwark of social culture will be in shambles, the institution of marriage will be detrimentally affected and rampant homosexual activities for money would tempt and corrupt young Indians into this trade.

45. Written submissions have also been filed on behalf of Mr. Suresh Kumar Koushal, intervenor, submitting therein that the argument of the petitioners that consensual acts of adults in private have been decriminalized in many parts of the world and, therefore, it deserves to be decriminalized in India as well does not hold good for 35 several reasons inasmuch as the political, economic and cultural heritage of those countries are very different from India which is a multicultural and multi-linguistic country.

46. The intervenor has contended that since fundamental rights are not absolute, there is no unreasonableness in Section 377 IPC and decriminalizing the same would run foul to all religions practised in the country, and, while deciding the ambit and scope of constitutional morality, Article 25 also deserves to be given due consideration.

47. Another application for intervention, being I.A No. 91250 of 2018, was filed and the same was allowed. It has been contended by the said intervenor that in the attempt that Section 377 is struck down, it would render the victims complaining of forced acts covered under the existing Section 377 IPC remediless as the said Section not only impinges on carnal intercourse against the order of nature between two consenting adults but also applies to forced penile non- vaginal sexual intercourse between adults. This, as per the intervenor, would be contrary to the decision of this Court in Iqbal Singh Marwah and another v. Meenakshi Marwah and another17.

17 (2005) 4 SCC 370 36

48. The applicant has also submitted that in the event consenting acts between two same sex adults are excluded from the ambit of Section 377 IPC, then a married woman would be rendered remediless under the IPC against her bi-sexual husband and his consenting male partner indulging in any sexual acts.

49. The intervenor has suggested that the alleged misuse of Section 377 IPC as highlighted by the petitioners can be curbed by adding an explanation to Section 377 IPC defining 'aggrieved person' which shall include only non-consenting partner or aggrieved person or wife or husband or any person on their behalf on the lines of Section 198(1) of Code of Criminal Procedure, 1973. This, as per the applicant, would curb any mala fide complaint lodged by authorities and vindictive or mischievous persons when the act complained of is 'consenting act' between two persons. Further, the applicant has submitted that this Court may be pleased to identify that the courts shall take cognizance of an offence under Section 377 IPC only on a complaint made by an aggrieved person. Such an approach, as per the applicant, inherently respects consent and also protects from interference and safeguards the privacy and dignity of an individual under Article 21 of the Constitution. 37

50. The applicant has also contended that the constitutionality of any legislation is always to be presumed and if there is any vagueness in the definition of any section, the courts have to give such a definition which advances the purpose of the legislation and that the courts must make every effort to uphold the constitutional validity of a statute if that requires giving a stretched construction in view of the decisions of this Court in K.A. Abbas v. Union of India and another18 and Rt. Rev. Msgr. Mark Netto v. State of Kerala and others19.

51. The applicant, through his learned counsel Mr. Harvinder Chowdhury, submits that if the right to privacy as recognized in Puttaswamy (supra) is allowed its full scope and swing, then that itself would rule out prosecution in all cases of consensual unnatural sex between all couples, whether heterosexual or homosexual, and without having to engage in reading down, much less striking down of, the provisions of Section 377 IPC in its present form. This is so because the State cannot compel individuals engaging in consensual sexual acts from testifying 18 (1970) 2 SCC 780 19 (1979) 1 SCC 23 38 against one another as it involves a breach of privacy unless the consent itself is under challenge and one cannot be a consenting victim of a crime so long as the consent is legally valid.

52. Submissions have also been advanced on behalf of Raza Academy, intervenor, through its learned counsel Mr. R.R Kishore, who has contended that homosexuality is against the order of nature and Section 377 rightly forbids it. Prohibition against carnal intercourse involving penetration into non-sexual parts of the body does not constitute discrimination as laws based on biological reality can never be unconstitutional, for if a male is treated as a male, a female as a female and a transgender as a transgender, it does not amount to discrimination.

53. The applicant has submitted that the purpose of criminal law is to protect the citizens from something that is injurious and since carnal intercourse between two persons is offensive and injurious, it is well within the State's jurisdiction to put reasonable restrictions to forbid such aberrant human behaviour by means of legislation, for it is the duty of the State that people with abnormal conduct are prohibited from imperiling the life, health and security of the 39 community. Unrestrained pleasure, and that too of a lascivious nature, is not conducive for the growth of a civilized society, such inordinate gratification needs to be curbed and, thus, prohibition against carnal intercourse as defined in Section 377 IPC does not violate the constitutional rights of a person.

54. Another application for intervention, being I.A No. 9341 of 2011, was filed and allowed. The applicant, in his written submissions, after delineating the concept of immorality, has submitted that the doctrine of manifest arbitrariness is of no application to the present case as the law is not manifestly or otherwise arbitrary, for Section 377 criminalizes an act irrespective of gender or sexual orientation of the persons involved. The universal application of the said provision without any gender bias is the touchstone of Part III of the Constitution and is not arbitrary as there is no intentional or unreasonable discrimination in the provision.

55. The applicant has drawn the attention of this Court to the case of Fazal Rab Choudhary v. State of Bihar20 wherein this Court held that the offence under Section 377 IPC implies sexual 20(1982) 3 SCC 9 40 perversity. Further, it is the case of the applicant that there should not be identical transplantation of Western ideology in our country which has also been a matter of concern for this Court in Jagmohan Singh v. State of U.P.21

56. The applicant, after citing the case of State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat and others22, has stressed upon the fact that the interest of a citizen or a section of the society, howsoever important, is secondary to the interest of the country or community as a whole and while judging the reasonability of restrictions imposed on fundamental rights, due consideration must also be given to the Directive Principles stated in Part IV. In view of these aforesaid submissions, the applicant has submitted that fundamental rights may not be overstretched and the Directive Principles of State Policy which are fundamental in the governance of the country cannot be neglected, for they are not less significant than what is fundamental in the life of an individual as held in Kesavananda Bharati v. Union of India23.

21 (1973) 1 SCC 20 22 (2005) 8 SCC 534 23 (1973) 4 SCC 225 41

57. Another application for intervention, being I.A. No. 76790 of 2018, has been filed by Apostolic Alliance of Churches and the Utkal Christian Council. The applicants have submitted that the Court, while interpreting Section 377 IPC, has to keep in mind that there can be situations where consent is obtained by putting a person in fear of death or hurt or consent can also be obtained under some misconception or due to unsoundness of mind, intoxication or inability to understand the nature and the consequences of the acts prohibited by Section 377 IPC.

58. The applicant has also advanced the argument that Section 377 IPC in its present form does not violate Article 14 of the Constitution as it merely defines a particular offence and its punishment and it is well within the power of the State to determine who should be regarded as a class for the purpose of a legislation and this, as per the applicant, is reasonable classification in the context of Section 377 IPC.

59. Further, the applicant has contended that Section 377 IPC is not violative of Article 15 of the Constitution as the said Article prohibits discrimination on the grounds of only religion, race, caste, 42 sex, place of birth or any of them but not sexual orientation. The word ‗sexual orientation‘, as per the applicant, is alien to our Constitution and the same cannot be imported within it for testing the constitutional validity of a provision or legislation. As per the applicant, if the word 'sex' has to be replaced by 'sexual orientation', it would require a constitutional amendment.

60. It is also the case of the applicant that the Yogyakarta principles which have been heavily relied upon by the petitioners to bolster their stand have limited sanctity inasmuch as they do not amount to an international treaty binding on the State parties and there are no inter-governmentally negotiated international instruments or agreed human rights treaties on the issue of LGBTs.

61. Further, the applicant has submitted that there is no requirement to reconsider the decision of this Court in Suresh Koushal (supra) wherein it was held that there is a presumption of constitutionality of a legislation and the Court must adopt self- restraint and thereby refrain from giving birth to judicial legislation. In the applicant's view, the legislative wisdom of the Parliament must be 43 respected and it must be left to the Parliament to amend Section 377 IPC, if so desired.

62. The applicant has contended that if the prayers of the petitioners herein are allowed, it would amount to judicial legislation, for the Courts cannot add or delete words into a statute. It is stated that the words 'consent' and/or 'without consent' are not mentioned in Section 377 IPC and, therefore, the Courts cannot make such an artificial distinction. To buttress this stand, the applicant has relied upon the decision of this Court in Sakshi v. Union of India and others 24 wherein it was observed that the attention of the Court should be on what has been said and also on what has not been said while interpreting the statute and that it would be wrong and dangerous for the Court to proceed by substituting some other words in a statute since it is well settled that a statute enacting an offence or imposing a penalty has to be strictly construed.

63. The applicant has also drawn the attention of this Court to the decision in Union of India and another v. Deoki Nandan Aggarwal25 wherein it was observed that the Court cannot rewrite, 24(2004) 5 SCC 518 251992 Supp. (1) SCC 323 44 recast or re-frame the legislation for the good reason that it has no power to legislate since the power to legislate has not been conferred upon the Court and, therefore, the Courts cannot add words to a statute or read words into it which are not there. The Courts are to decide what the law is and not what it should be.

64. It is also the case of the applicant that the decriminalization of Section 377 IPC will open a floodgate of social issues which the legislative domain is not capable of accommodating as same sex marriages would become social experiments with unpredictable outcome.

65. Further, it is the contention of the applicant that decriminalization of Section 377 IPC will have cascading effect on existing laws such as Section 32(d) of the Parsi Marriage and Divorce Act, 1936; Section 27(7)(1A) A of the Special Marriage Act, 1954 which permits a wife to present a petition for divorce to the district court on the ground,—(i) that her husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; Section 10(2) of the Indian Divorce Act, 1869 and Section 13(2) of the Hindu Marriage Act, 1955.

E. Decisions in Naz Foundation and Suresh Koushal

66. We shall now advert to what had been stated by the Delhi High Court in Naz Foundation and thereafter advert to the legal base of the decision in Suresh Koushal’s case. The Delhi High Court had taken the view that Article 15 of the Constitution prohibits discrimination on several enumerated grounds including sex. The High Court preferred an expansive interpretation of 'sex' so as to include prohibition of discrimination on the ground of 'sexual orientation' and that sex-discrimination cannot be read as applying to gender simpliciter. Discrimination, as per the High Court's view, on the basis of sexual orientation is grounded in stereotypical judgments and generalization about the conduct of either sex.

67. Another facet of the Indian Constitution that the High Court delineated was that of inclusiveness as the Indian Constitution reflects this value of inclusiveness deeply ingrained in the Indian society and nurtured over several generations. The High Court categorically said that those who are perceived by the majority as deviants or different are not to be, on that score, excluded or ostracised. In the High Court's view, where a society displays 46 inclusiveness and understanding, the LGBT persons can be assured of a life of dignity and non-discrimination.

68. It has been further opined by the High Court that the Constitution does not permit any statutory criminal law to be held captive of the popular misconceptions of who the LGBTs are, as it cannot be forgotten that discrimination is the antithesis of equality and recognition of equality in its truest sense will foster the dignity of every individual. That apart, the High Court had taken the view that social morality has to succumb to the concept of constitutional morality.

69. On the basis of the aforesaid reasons, the High Court declared Section 377 IPC violative of Articles 14 , 15 and 21 of the Constitution in so far as it criminalises consensual sexual acts of adults in private, whereas for non-consensual penile non-vaginal sex and penile non- vaginal sex involving minors, the High Court ruled that Section 377 IPC was valid.

70. The Delhi High Court judgment was challenged in Suresh Koushal (supra) wherein this Court opined that acts which fall within the ambit of Section 377 IPC can only be determined with reference to the act itself and to the circumstances in which it is executed. 47 While so opining, the Court held that Section 377 IPC would apply irrespective of age and consent, for Section 377 IPC does not criminalize a particular people or identity or orientation and only identifies certain acts which, when committed, would constitute an offence. Such a prohibition, in the Court's view in Suresh Koushal (supra), regulates sexual conduct regardless of gender identity and orientation.

71. The Court further observed that those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute different classes and the people falling in the latter category cannot claim that Section 377 IPC suffers from the vice of arbitrariness and irrational classification. The Court further observed that while reading down Section 377 of the Indian Penal Code, it cannot be overlooked that only a minuscule fraction of the country's population constitutes lesbians, gays, bisexuals or transgenders and in last more than 150 years, less than 200 persons have been prosecuted under Section 377 of the Indian Penal Code which cannot, therefore, be made a sound basis for declaring Section 377 IPC ultra vires the provisions of Articles 14 , 15 and 21 of the Constitution.

72. The submission advanced by the respondents therein to the effect that the provision had become a pernicious tool for perpetrating harassment, blackmail and torture on those belonging to the LGBT community was repelled by stating that such treatment is neither mandated by the Section nor condoned by it and the mere fact that the Section is misused by police authorities and others is not a reflection of the vires of the Section, though it might be a relevant factor for the Legislature to consider while judging the desirability of amending Section 377 of the Indian Penal Code.

F. Other judicial pronouncements on Section 377 IPC

73. Presently, we may refer to some of the judgments and the views taken therein by this Court as well as by the High Courts on Section 377 IPC so as to have a holistic perspective.

74. While interpreting the said provision, the Courts have held that the provision stipulates certain acts, which when committed, would constitute a criminal offence. In Childline India Foundation and another v. Allan John Waters and others26, the Court was dealing with carnal intercourse against the order of nature when the material on record showed that the accused Nos. 2 and 3 used to have sex 26 (2011) 6 SCC 261 49 and fellatio with PWs 1 and 4. The Court opined that the ingredients of Section 377 IPC were proved and, accordingly, restored the conviction and sentence of 6 years‘ rigorous imprisonment and confirmed the imposition of fine. In Fazal Rab Choudhary (supra), although the Court convicted the accused under Section 377 IPC, yet it took note of the absence of any force in the commission of the act. The Court also took into account the prevalent notions of permissive society and the fact that homosexuality has been legalized in some countries. In view of the same, the Court reduced the sentence of 3 years imposed on the accused to 6 months opining that the aforesaid aspects must also be kept in view as they have a bearing on the question of offence and quantum of sentence.

75. A reference may be made to Khanu v. Emperor27 which was also alluded to in Suresh Koushal‘s case. We deem it appropriate to reproduce a part of Khanu‘s decision to understand how the courts in India had understood the word ―carnal intercourse against the order of nature‖. The said passage reads thus:-

Section 377 punishes certain persons who have carnal intercourse against the order of nature with inter alia human beings. Is the act here committed one of carnal intercourse? If so, it is clearly against the order of nature, because the natural object of carnal intercourse is that there should be the possibility of conception of human beings which in the case of coitus per os is impossible. Intercourse may be defined as mutual frequent action by members of independent organisation. Commercial intercourse [is thereafter referred to; emphasis is made on the reciprocity]. By a metaphor the word intercourse like the word commerce is applied to the relations of the sexes. Here also there is the temporary visitation of one organism by a member of other organisation, for certain clearly defined and limited objects. The primary object of the visiting organisation is to obtain euphoria by means of a detent of the nerves consequent on the sexual crisis. But there is no intercourse unless the visiting member is enveloped at least partially by the visited organism, for intercourse connotes reciprocity. Looking at the question in this way it would seem that sin of Gomorrah is no less carnal intercourse than the sin of sodomy. … It is to be remembered that the Penal Code does not, except in Section 377, render abnormal sexual vice punishable at all. In England indecent assaults are punishable very severely. It is possible that under the Penal Code, some cases might be met by prosecuting the offender for simple assault, but that is a compoundable offence and in any case the patient could in no way be punished. It is to be supposed that the legislature intended that a Tigellinus should carry 51 on his nefarious profession perhaps vitiating and depraving hundreds of children with perfect immunity? I doubt not, therefore, that coitus per os is punishable under Section 377 of the Penal Code.‖

76. In Suresh Koushal‘s case, there has also been a reference to the decision of the Gujarat High Court in Lohana Vasantlal Devchand v. State 28 wherein the issue presented before the High Court was whether an offence under Section 377 read with Section 511 IPC had been committed on account of the convict putting his male organ in the mouth of the victim, if the act was done voluntarily by him. A contention was raised that there was no penetration and, therefore, there could not have been any carnal intercourse. The High Court referred to a passage from the book ‗Pyschology of Sex‘ 29 authored by Mr. Havelock Ellis which reads thus:-

The High Court of Kerala held thus:-

In this connection, it may be noted that the act in Section 376 is ‗sexual intercourse‘ and the act in Section 377 is ‗carnal intercourse against the order of nature‘.

22. The position in English law on this question has been brought to my notice. The old decision of R. v. Samuel Jacobs 31 lays down that penetration through the mouth does not amount to the offence of sodomy under English law. The counsel therefore argues that sexual intercourse between the thighs cannot also be an offence under Section 377 of the Penal Code. In Sirkar v. Gula Mythien Pillai Chaithu Maho Mathu32 a Full Bench of the Travancore High Court held that having connection with a person in the mouth was an offence under Section 377 of the Penal Code. In a short judgment, the learned Judges held that it was unnecessary to refer to English Statute Law and English text books which proceeded upon an interpretation of the words sodomy, buggery and bestiality; and that the words used in the Penal Code were very simple and wide enough to include all acts against the order of nature. My view on the question is also that the words of Section 377 are simple and wide enough to include any carnal intercourse against the order of nature within its ambit. Committing intercourse 31 1817 Russ & Ry 331 : 168 ER 830 (CCR) 32 (1908) 14 TLR Appendix 43 (Ker) 55 between the thighs of another is carnal intercourse against the order of nature.‖

79. In Calvin Francis v. State of Orissa33 , the Orissa High Court had reproduced certain passages from Corpus Juris Secundum, Vol. 81, pp. 368-70. We may reproduce the same:-

80. Referring to the said decision , the two-Judge Bench in Suresh Koushal‘s case has opined:-

81. From the aforesaid analysis, it is perceptible that the two-Judge Bench has drawn a distinction between the ―class‖ and the ―act‖ that has been treated as an offence. On a plain reading of the provision, it is noticeable that the ―act‖ covers all categories of persons if the offence is committed. Thus, the seminal issue that emerges for consideration, as has been understood by various High Courts and this Court, is whether the act can be treated as a criminal offence if it violates Articles 19(1)(a) and 21 of the Constitution. Therefore, the provision has to be tested on the anvil of the said constitutional provisions. Additionally, it is also to be tested on the touchstone of Article 14 especially under the scanner of its second limb, that is, manifest arbitrariness. For adjudging the aforesaid facets, certain fundamental concepts which are intrinsically and integrally associated with the expression of a person who enjoys certain inalienable natural rights which also have been recognized under the Constitution are required to be addressed. In this context, the individuality of a person 57 and the acceptance of identity invite advertence to some necessary concepts which eventually recognize the constitutional status of an individual that resultantly brushes aside the ―act‖ and respects the dignity and choice of the individual.

G. The Constitution – an organic charter of progressive rights

82. A democratic Constitution like ours is an organic and breathing document with senses which are very much alive to its surroundings, for it has been created in such a manner that it can adapt to the needs and developments taking place in the society. It was highlighted by this Court in the case of Chief Justice of Andhra Pradesh and others v. L.V.A. Dixitulu and others 34 that the Constitution is a living, integrated organism having a soul and consciousness of its own and its pulse beats, emanating from the spinal cord of its basic framework, can be felt all over its body, even in the extremities of its limbs.

83. In the case of Saurabh Chaudri and others v. Union of India and others35, it was observed:-

84. Thus, we are required to keep in view the dynamic concepts inherent in the Constitution that have the potential to enable and urge the constitutional courts to beam with expansionism that really grows to adapt to the ever-changing circumstances without losing the identity of the Constitution. The idea of identity of the individual and the constitutional legitimacy behind the same is of immense significance. Therefore, in this context, the duty of the constitutional courts gets accentuated. We emphasize on the role of the constitutional courts in realizing the evolving nature of this living instrument. Through its dynamic and purposive interpretative approach, the judiciary must strive to breathe life into the Constitution and not render the document a collection of mere dead letters. The following observations made in the case of Ashok Kumar Gupta and another v. State of U.P. and others36 further throws light on this role of the courts:-

36 (1997) 5 SCC 201 59

85. The rights that are guaranteed as Fundamental Rights under our Constitution are the dynamic and timeless rights of 'liberty' and 'equality' and it would be against the principles of our Constitution to give them a static interpretation without recognizing their transformative and evolving nature. The argument does not lie in the fact that the concepts underlying these rights change with the changing times but the changing times illustrate and illuminate the concepts underlying the said rights. In this regard, the observations in Video Electronics Pvt. Ltd. and another v. State of Punjab and another37 are quite instructive:-

86. Our Constitution fosters and strengthens the spirit of equality and envisions a society where every person enjoys equal rights which enable him/her to grow and realize his/her potential as an individual. This guarantee of recognition of individuality runs through the entire 37 (1990) 3 SCC 87 60 length and breadth of this dynamic instrument. The Constitution has been conceived of and designed in a manner which acknowledges the fact that 'change is inevitable'. It is the duty of the courts to realize the constitutional vision of equal rights in consonance with the current demands and situations and not to read and interpret the same as per the standards of equality that existed decades ago. The judiciary cannot remain oblivious to the fact that the society is constantly evolving and many a variation may emerge with the changing times. There is a constant need to transform the constitutional idealism into reality by fostering respect for human rights, promoting inclusion of pluralism, bringing harmony, that is, unity amongst diversity, abandoning the idea of alienation or some unacceptable social notions built on medieval egos and establishing the cult of egalitarian liberalism founded on reasonable principles that can withstand scrutiny.

87. In Ashok Kumar Gupta (supra), the Court had observed that common sense has always served in the court's ceaseless striving as a voice of reason to maintain the blend of change and continuity of order which are sine qua non for stability in the process of change in a parliamentary democracy. The Court ruled that it is not bound to 61 accept an interpretation which retards the progress or impedes social integration. The Court further observed that it is required to adopt such interpretation which would give the ideals set out in the Preamble to the Constitution aided by Part III and Part IV a meaningful and living reality for all sections of the society.

88. It is through this armoury of expansive dynamism that the courts have been able to give an all-inclusive interpretation to the fundamental rights enshrined in Part III of our Constitution. This is borne testimony by the decisions of the constitutional courts which have evolved views for extending the protection of fundamental rights to those who have been deprived of the enjoyment of the same. If not for such an approach adopted by the courts, our Constitution and its progressive principles would have been rendered ineffective and the dynamic charter would be reduced to a mere ornate document without any purpose or object.

89. The Court, as the final arbiter of the Constitution, has to keep in view the necessities of the needy and the weaker sections. The role of the Court assumes further importance when the class or community whose rights are in question are those who have been the object of humiliation, discrimination, separation and violence by not 62 only the State and the society at large but also at the hands of their very own family members. The development of law cannot be a mute spectator to the struggle for the realisation and attainment of the rights of such members of the society.

90. The authority in NALSA is one such recent illustration where the rights of transgenders as a third sex was recognized which had been long due in a democracy like ours. This Court ruled: -

The ‗living document‘ concept finds place in several international authorities as well. The courts in other jurisdictions have 63 endorsed the view that the Constitution is forever evolving in nature and that a progressive approach is mandated by the principles inherent in the Constitution itself.

91. The Supreme Court of Canada, while giving an expansive interpretation to marriage by including same-sex unions within its encompass, in Re: Same Sex Marriage38, has observed:-

92. As early as the 1920s, the Supreme Court of the United States in the case of State of Missouri v. Holland 39 , while making a comparison between the ‗instrument in dispute' and the 'Constitution', had made the following observations with regard to the nature of the Constitution:-

93. In one of his celebrated works, Judge Richard Posner made certain observations which would be relevant to be reproduced here:-

94. Thus, it is demonstrable that expansive growth of constitutional idealism is embedded in the theory of progress, abandonment of status quoist attitude, expansion of the concept of inclusiveness and constant remembrance of the principle of fitting into the norm of change with a constitutional philosophy.

40 Posner, Richard: (1992) Sex and Reason, Harvard University Press, pg. 328. ISBN 0-674- 80280-2 65 H. Transformative constitutionalism and the rights of LGBT community

95. For understanding the need of having a constitutional democracy and for solving the million dollar question as to why we adopted the Constitution, we perhaps need to understand the concept of transformative constitutionalism with some degree of definiteness. In this quest of ours, the ideals enshrined in the Preamble to our Constitution would be a guiding laser beam. The ultimate goal of our magnificent Constitution is to make right the upheaval which existed in the Indian society before the adopting of the Constitution. The Court in State of Kerala and another v. N.M. Thomas and others 41 observed that the Indian Constitution is a great social document, almost revolutionary in its aim of transforming a medieval, hierarchical society into a modern, egalitarian democracy and its provisions can be comprehended only by a spacious, social- science approach, not by pedantic, traditional legalism. The whole idea of having a Constitution is to guide the nation towards a resplendent future. Therefore, the purpose of having a Constitution is to transform the society for the better and this objective is the fundamental pillar of transformative constitutionalism. 41 AIR 1976 SC 490 66

96. The concept of transformative constitutionalism has at its kernel a pledge, promise and thirst to transform the Indian society so as to embrace therein, in letter and spirit, the ideals of justice, liberty, equality and fraternity as set out in the Preamble to our Constitution. The expression ‗transformative constitutionalism‘ can be best understood by embracing a pragmatic lens which will help in recognizing the realities of the current day. Transformation as a singular term is diametrically opposed to something which is static and stagnant, rather it signifies change, alteration and the ability to metamorphose. Thus, the concept of transformative constitutionalism, which is an actuality with regard to all Constitutions and particularly so with regard to the Indian Constitution, is, as a matter of fact, the ability of the Constitution to adapt and transform with the changing needs of the times.

97. It is this ability of a Constitution to transform which gives it the character of a living and organic document. A Constitution continuously shapes the lives of citizens in particular and societies in general. Its exposition and energetic appreciation by constitutional courts constitute the lifeblood of progressive societies. The Constitution would become a stale and dead testament without 67 dynamic, vibrant and pragmatic interpretation. Constitutional provisions have to be construed and developed in such a manner that their real intent and existence percolates to all segments of the society. That is the raison d'etre for the Constitution.

98. The Supreme Court as well as other constitutional courts have time and again realized that in a society undergoing fast social and economic change, static judicial interpretation of the Constitution would stultify the spirit of the Constitution. Accordingly, the constitutional courts, while viewing the Constitution as a transformative document, have ardently fulfilled their obligation to act as the sentinel on qui vive for guarding the rights of all individuals irrespective of their sex, choice and sexual orientation.

99. The purpose of transformative constitutionalism has been aptly described in the case of Road Accident Fund and another v. Mdeyide42 wherein the Constitutional Court of South Africa, speaking in the context of the transformative role of the Constitution of South Africa, had observed:-

100. In Bato Star Fishing (Pty) Ltd v. Minister of Environmental Affairs and Tourism and others43, the Constitutional Court of South Africa opined:-

101. Davies44 understands transformation as follows:-

102. A J Van der Walt has metaphorically, by comparing 'constitutional transformation' to 'dancing', described the art of constitutional transformation to be continually progressive where one does not stop from daring to imagine alternatives and that the society could be different and a better place where the rights of every individual are given due recognition:-

103. Again, the Supreme Court of South Africa in President of the Republic of South Africa v. Hugo46 observed that the prohibition on unfair discrimination in the interim Constitution seeks not only to 45 Van der Walt, Dancing with codes - Protecting, developing and deconstructing property rights in a constitutional state, 118 (2) J. S. APR. L. 258 (2001) 46 (1997) 6 B.C.L.R. 708 (CC) 70 avoid discrimination against people who are members of disadvantaged groups but also that at the heart of the prohibition of unfair discrimination lies a recognition that the purpose of our new constitutional and democratic order is the establishment of a society in which all human beings will be accorded equal dignity and respect, regardless of their membership of particular groups.

104. Equality does not only imply recognition of individual dignity but also includes within its sphere ensuring of equal opportunity to advance and develop their human potential and social, economic and legal interests of every individual and the process of transformative constitutionalism is dedicated to this purpose. It has been observed by Albertyn & Goldblatt47:-

105. In Investigating Directorate: Serious Economic Offences and others v. Hyundai Motor Distributors (Pty) Ltd and others: In 47 Albertyn & Goldblatt, Facing the challenge of transformation: Difficulties in the development of an indigenous jurisprudence of equality, 14 S. AFR. J. HUM. RTS. 248 (1998) 71 Re Hyundai Motor Distributors (Pty) Ltd and others v. Smit NO and others48, the Constitutional Court of South Africa observed:-

106. The society has changed much now, not just from the year 1860 when the Indian Penal Code was brought into force but there has also been continuous progressive change. In many spheres, the sexual minorities have been accepted. They have been given space after the NALSA judgment but the offence punishable under Section 377 IPC, as submitted, creates a chilling effect. The freedom that is required to be attached to sexuality still remains in the pavilion with 482001 (1) SA 545 (CC) 72 no nerves to move. The immobility due to fear corrodes the desire to express one‘s own sexual orientation as a consequence of which the body with flesh and bones feels itself caged and a sense of fear gradually converts itself into a skeleton sans spirit.

107. The question of freedom of choosing a partner is reflective from a catena of recent judgments of this Court such as Shafin Jahan (supra) wherein the Court held that a person who has come of age and has the capability to think on his/her own has a right to choose his/her life partner. It is apposite to reproduce some of the observations made by the Court which are to the following effect:-

108. Recently, in Shakti Vahini (supra), the Court has ruled that the right to choose a life partner is a facet of individual liberty and the Court, for the protection of this right, issued preventive, remedial and 73 punitive measures to curb the menace of honour killings. The Court observed:-

109. An argument is sometimes advanced that what is permissible between two adults engaged in acceptable sexual activity is different in the case of two individuals of the same sex, be it homosexuals or lesbians, and the ground of difference is supported by social standardization. Such an argument ignores the individual orientation, which is naturally natural, and disrobes the individual of his/her identity and the inherent dignity and choice attached to his/her being.

110. The principle of transformative constitutionalism also places upon the judicial arm of the State a duty to ensure and uphold the supremacy of the Constitution, while at the same time ensuring that a sense of transformation is ushered constantly and endlessly in the society by interpreting and enforcing the Constitution as well as other provisions of law in consonance with the avowed object. The idea is to steer the country and its institutions in a democratic egalitarian direction where there is increased protection of fundamental rights 74 and other freedoms. It is in this way that transformative constitutionalism attains the status of an ideal model imbibing the philosophy and morals of constitutionalism and fostering greater respect for human rights. It ought to be remembered that the Constitution is not a mere parchment; it derives its strength from the ideals and values enshrined in it. However, it is only when we adhere to constitutionalism as the supreme creed and faith and develop a constitutional culture to protect the fundamental rights of an individual that we can preserve and strengthen the values of our compassionate Constitution.

I. Constitutional morality and Section 377 IPC

111. The concept of constitutional morality is not limited to the mere observance of the core principles of constitutionalism as the magnitude and sweep of constitutional morality is not confined to the provisions and literal text which a Constitution contains, rather it embraces within itself virtues of a wide magnitude such as that of ushering a pluralistic and inclusive society, while at the same time adhering to the other principles of constitutionalism. It is further the result of embodying constitutional morality that the values of constitutionalism trickle down and percolate through the apparatus of 75 the State for the betterment of each and every individual citizen of the State.

112. In one of the Constituent Assembly Debates, Dr. Ambedkar, explaining the concept of constitutional morality by quoting the Greek historian, George Grote, said:-

113. Our Constitution was visualized with the aim of securing to the citizens of our country inalienable rights which were essential for fostering a spirit of growth and development and at the same time ensuring that the three organs of the State working under the aegis of the Constitution and deriving their authority from the supreme document, that is, the Constitution, practise constitutional morality. The Executive, the Legislature and the Judiciary all have to stay alive to the concept of constitutional morality.

49 Constituent Assembly Debates, Vol. 7 (4th November 1948) 76

114. In the same speech50, Dr. Ambedkar had quoted George Grote who had observed:-

115. The society as a whole or even a minuscule part of the society may aspire and prefer different things for themselves. They are perfectly competent to have such a freedom to be different, like different things, so on and so forth, provided that their different tastes and liking remain within their legal framework and neither violates any statute nor results in the abridgement of fundamental rights of any 50 Ibid 51 Grote, A History of Greece. Routledge, London, 2000, p. 93. 77 other citizen. The Preambular goals of our Constitution which contain the noble objectives of Justice, Liberty, Equality and Fraternity can only be achieved through the commitment and loyalty of the organs of the State to the principle of constitutional morality.

116. It is the concept of constitutional morality which strives and urges the organs of the State to maintain such a heterogeneous fibre in the society, not just in the limited sense, but also in multifarious ways. It is the responsibility of all the three organs of the State to curb any propensity or proclivity of popular sentiment or majoritarianism. Any attempt to push and shove a homogeneous, uniform, consistent and a standardised philosophy throughout the society would violate the principle of constitutional morality. Devotion and fidelity to constitutional morality must not be equated with the popular sentiment prevalent at a particular point of time.

117. Any asymmetrical attitude in the society, so long as it is within the legal and constitutional framework, must at least be provided an environment in which it could be sustained, if not fostered. It is only when such an approach is adopted that the freedom of expression including that of choice would be allowed to prosper and flourish and 78 if that is achieved, freedom and liberty, which is the quintessence of constitutional morality, will be allowed to survive.

118. In Government of NCT of Delhi v. Union of India and others52, one of us (Dipak Misra, CJI) observed:-

119. The duty of the constitutional courts is to adjudge the validity of law on well-established principles, namely, legislative competence or violations of fundamental rights or of any other constitutional provisions. At the same time, it is expected from the courts as the final arbiter of the Constitution to uphold the cherished principles of the Constitution and not to be remotely guided by majoritarian view or 522018 (8) SCALE 72 79 popular perception. The Court has to be guided by the conception of constitutional morality and not by the societal morality.

120. We may hasten to add here that in the context of the issue at hand, when a penal provision is challenged as being violative of the fundamental rights of a section of the society, notwithstanding the fact whether the said section of the society is a minority or a majority, the magna cum laude and creditable principle of constitutional morality, in a constitutional democracy like ours where the rule of law prevails, must not be allowed to be trampled by obscure notions of social morality which have no legal tenability. The concept of constitutional morality would serve as an aid for the Court to arrive at a just decision which would be in consonance with the constitutional rights of the citizens, howsoever small that fragment of the populace may be. The idea of number, in this context, is meaningless; like zero on the left side of any number.

121. In this regard, we have to telescopically analyse social morality vis-à-vis constitutional morality. It needs no special emphasis to state that whenever the constitutional courts come across a situation of transgression or dereliction in the sphere of fundamental rights, which are also the basic human rights of a section, howsoever small part of 80 the society, then it is for the constitutional courts to ensure, with the aid of judicial engagement and creativity, that constitutional morality prevails over social morality.

122. In the garb of social morality, the members of the LGBT community must not be outlawed or given a step-motherly treatment of malefactor by the society. If this happens or if such a treatment to the LGBT community is allowed to persist, then the constitutional courts, which are under the obligation to protect the fundamental rights, would be failing in the discharge of their duty. A failure to do so would reduce the citizenry rights to a cipher.

123. We must not forget that the founding fathers adopted an inclusive Constitution with provisions that not only allowed the State, but also, at times, directed the State, to undertake affirmative action to eradicate the systematic discrimination against the backward sections of the society and the expulsion and censure of the vulnerable communities by the so-called upper caste/sections of the society that existed on a massive scale prior to coming into existence of the Constituent Assembly. These were nothing but facets of the majoritarian social morality which were sought to be rectified by bringing into force the Constitution of India. Thus, the adoption of the 81 Constitution, was, in a way, an instrument or agency for achieving constitutional morality and means to discourage the prevalent social morality at that time. A country or a society which embraces constitutional morality has at its core the well-founded idea of inclusiveness.

124. While testing the constitutional validity of impugned provision of law, if a constitutional court is of the view that the impugned provision falls foul to the precept of constitutional morality, then the said provision has to be declared as unconstitutional for the pure and simple reason that the constitutional courts exist to uphold the Constitution.

J. Perspective of human dignity

125. While discussing about the role of human dignity in gay rights adjudication and legislation, Michele Finck53 observes:-

126. The Universal Declaration of Human Rights, 1948 became the Magna Carta of people all over the world. The first Article of the UDHR was uncompromising in its generality of application: All human beings are born free and equal in dignity and rights. Justice Kirby succinctly observed:-

127. The fundamental idea of dignity is regarded as an inseparable facet of human personality. Dignity has been duly recognized as an important aspect of the right to life under Article 21 of the Constitution. In the international sphere, the right to live with dignity had been identified as a human right way back in 1948 with the introduction of the Universal Declaration of Human Rights. The constitutional courts 54Human Rights Gay Rights by Michael Kirby, Published in ‘Humane Rights’ in 2016 by Future Leaders 83 of our country have solemnly dealt with the task of assuring and preserving the right to dignity of each and every individual whenever the occasion arises, for without the right to live with dignity, all other fundamental rights may not realise their complete meaning.

128. To understand a person‘s dignity, one has to appreciate how the dignity of another is to be perceived. Alexis de Tocqueville tells us55:-

129. Every individual has many possessions which assume the position of his/her definitive characteristics. There may not be any obsession with them but he/she may abhor to be denuded of them, for they are sacred to him/her and so inseparably associated that he/she may not conceive of any dissolution. He/she would like others to respect the said attributes with a singular acceptable condition that there is mutual respect. Mutual respect abandons outside interference and is averse to any kind of interdiction. It is based on the precept that the individuality of an individual is recognized, accepted and respected. Such respect for the conception of dignity 5556, New York State Bar Journal (No 3. April, 1984), p.50 84 has become a fundamental right under Article 21 of the Constitution and that ushers in the right of liberty of expression. Dignity and liberty as a twin concept in a society that cares for both, apart from painting a grand picture of humanity, also smoothens the atmosphere by promoting peaceful co-existence and thereby makes the administration of justice easy. In such a society, everyone becomes a part of the social engineering process where rights as inviolable and sacrosanct principles are adhered to; individual choice is not an exception and each one gets his/her space. Though no tower is built, yet the tower of individual rights with peaceful co-existence is visible.

130. In Common Cause (A Regd. Society ) (supra), one of us has observed that human dignity is beyond definition and it may, at times, defy description. To some, it may seem to be in the world of abstraction and some may even perversely treat it as an attribute of egotism or accentuated eccentricity. This feeling may come from the roots of absolute cynicism, but what really matters is that life without dignity is like a sound that is not heard. Dignity speaks, it has its sound, it is natural and human. It is a combination of thought and feeling.

131. In Maneka Gandhi v. Union of India and another56, Krishna Iyer, J. observed that life is a terrestrial opportunity for unfolding personality and when any aspect of Article 21 is viewed in a truncated manner, several other freedoms fade out automatically. It has to be borne in mind that dignity of all is a sacrosanct human right and sans dignity, human life loses its substantial meaning.

132. Dignity is that component of one‘s being without which sustenance of his/her being to the fullest or completest is inconceivable. In the theatre of life, without possession of the attribute of identity with dignity, the entity may be allowed entry to the centre stage but would be characterized as a spineless entity or, for that matter, projected as a ruling king without the sceptre. The purpose of saying so is that the identity of every individual attains the quality of an ―individual being‖ only if he/she has the dignity. Dignity while expressive of choice is averse to creation of any dent. When biological expression, be it an orientation or optional expression of choice, is faced with impediment, albeit through any imposition of law, the individual‘s natural and constitutional right is dented. Such a situation urges the conscience of the final constitutional arbiter to 56 (1978) 1 SCC 248 86 demolish the obstruction and remove the impediment so as to allow the full blossoming of the natural and constitutional rights of individuals. This is the essence of dignity and we say, without any inhibition, that it is our constitutional duty to allow the individual to behave and conduct himself/herself as he/she desires and allow him/her to express himself/herself, of course, with the consent of the other. That is the right to choose without fear. It has to be ingrained as a necessary pre-requisite that consent is the real fulcrum of any sexual relationship.

133. In this context, we may travel a little abroad. In Law v. Canada (Minister of Employment and Immigration)57 capturing the essence of dignity, the Supreme Court of Canada has made the following observations:-

134. It is not only the duty of the State and the Judiciary to protect this basic right to dignity, but the collective at large also owes a responsibility to respect one another's dignity, for showing respect for the dignity of another is a constitutional duty. It is an expression of the component of constitutional fraternity.

135. The concept of dignity gains importance in the present scenario, for a challenge has been raised to a provision of law which encroaches upon this essential right of a severely deprived section of our society. An individual's choice to engage in certain acts within their private sphere has been restricted by criminalising the same on account of the age old social perception. To harness such an essential decision, which defines the individualism of a person, by tainting it with criminality would violate the individual's right to dignity by reducing it to mere letters without any spirit.

136. The European Court of Justice in P v. S 58 in the context of rights of individuals who intend to or have undergone sex reassignment has observed that where a person is dismissed on the ground that he or she intends to undergo or has undergone gender 58 Judgment of 30 April 1996. P v S and Cornwall County Council Case C-13/94. paras. 21-22. 88 reassignment, he or she is treated unfavorably by comparison with persons of the sex to which he or she was deemed to belong before undergoing gender reassignment. To tolerate such discrimination would tantamount, as regards such a person, to a failure to respect the dignity and freedom to which he or she is entitled and which the Court has a duty to safeguard.

137. In Planned Parenthood of Southeastern Pa. v. Casey59, the United States Supreme Court had opined that such matters which involve the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.

138. From the aforesaid pronouncements, some in different spheres but some also in the sphere of sexual orientation, the constitutional courts have laid emphasis on individual inclination, expression of both emotional and physical behaviour and freedom of choice, of course, subject to the consent of the other. A biological engagement, in contradistinction to going to a restaurant or going to a theatre to see a film or a play, is founded on company wherein both the parties have consented for the act. The inclination is an expression of choice that 59505 U.S. 833 (1992) 89 defines the personality to cumulatively build up the elevated paradigm of dignity. Be it clarified that expression of choice, apart from being a facet of dignity, is also an essential component of liberty. Liberty as a concept has to be given its due place in the realm of dignity, for both are connected with the life and living of a persona.

K. Sexual orientation

139. After stating about the value of dignity, we would have proceeded to deal with the cherished idea of privacy which has recently received concrete clarity in Puttaswamy‘s case. Prior to that, we are advised to devote some space to sexual orientation and the instructive definition of LGBT by Michael Kirby, former Judge of the High Court of Australia:-

140. Presently, we shall focus on the aspect of sexual orientation. Every human being has certain basic biological characteristics and acquires or develops some facets under certain circumstances. The first can generally be termed as inherent orientation that is natural to his/her being. The second can be described as a demonstration of his/her choice which gradually becomes an inseparable quality of his/her being, for the individual also leans on a different expression because of the inclination to derive satisfaction. The third one has the proclivity which he/she maintains and does not express any other inclination. The first one is homosexuality, the second, bisexuality and third, heterosexuality. The third one is regarded as natural and the first one, by the same standard, is treated to be unnatural. When the second category 60SexualOrientation & Gender Identity – A New Province of Law for India, J. Michael D. Kirby, Tagore Lectures, 2013 92 exercises his/her choice of homosexuality and involves in such an act, the same is also not accepted. In sum, the ‗act‘ is treated either in accord with nature or against the order of nature in terms of societal perception.

141. The Yogyakarta Principles define the expression "sexual orientation‖ thus:-

142. In its study, the American Psychological Association has attempted to define ―sexual orientation‖ in the following manner:-

143. From the aforesaid, it has to be appreciated that homosexuality is something that is based on sense of identity. It is the reflection of a 61American Psychological Association, "Answers to Your Questions for a Better Understanding of Sexual Orientation & Homosexuality," 2008 93 sense of emotion and expression of eagerness to establish intimacy. It is just as much ingrained, inherent and innate as heterosexuality. Sexual orientation, as a concept, fundamentally implies a pattern of sexual attraction. It is as natural a phenomenon as other natural biological phenomena. What the science of sexuality has led to is that an individual has the tendency to feel sexually attracted towards the same sex, for the decision is one that is controlled by neurological and biological factors. That is why it is his/her natural orientation which is innate and constitutes the core of his/her being and identity. That apart, on occasions, due to a sense of mutuality of release of passion, two adults may agree to express themselves in a different sexual behaviour which may include both the genders. To this, one can attribute a bisexual orientation which does not follow the rigidity but allows room for flexibility.

144. The society cannot remain unmindful to the theory which several researches, conducted both in the field of biological and psychological science, have proven and reaffirmed time and again. To compel a person having a certain sexual orientation to proselytize to another is like asking a body part to perform a function it was never designed to perform in the first place. It is pure science, a certain 94 manner in which the brain and genitals of an individual function and react. Whether one's sexual orientation is determined by genetic, hormonal, developmental, social and/or cultural influences (or a combination thereof), most people experience little or no sense of choice about their sexual orientation.62

145. The statement of the American Psychological Association on homosexuality which was released in July 1994 reiterates this position in the following observations:-

(Emphasis is ours) 62 UNHCR GUIDELINES ON INTERNATIONAL PROTECTION NO. 9: Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees 95

146. In the said context, the observations made by Leonard Sax to the following effect are relevant and are reproduced below:-

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 63 , while holding that sexual orientation is one of the grounds for claiming the benefit under Section 15(1) as it is analogous to the grounds already set out in the list in Section 15(1) and the said list not being finite and exhaustive can be extended to LGBTs on account of the historical, social, political and economic disadvantage suffered by LGBTs, has observed:-

148. It is worth noting that scientific study has, by way of keen analysis, arrived at the conclusion as regards the individual‘s 63[1995] 2 SCR 513 96 inherent orientation. Apart from orientation, as stated earlier, there can be situations which influence the emotional behaviour of an individual to seek intimacy in the same gender that may bring two persons together in a biological pattern. It has to be treated as consensual activity and reflective of consensual choice. L. Privacy and its concomitant aspects

149. While testing the constitutional validity of Section 377 IPC, due regard must be given to the elevated right to privacy as has been recently proclaimed in Puttaswamy (supra). We shall not delve in detail upon the concept of the right to privacy as the same has been delineated at length in Puttaswamy (supra). In the case at hand, our focus is limited to dealing with the right to privacy vis-à-vis Section 377 IPC and other facets such as right to choice as part of the freedom of expression and sexual orientation. That apart, within the compartment of privacy, individual autonomy has a significant space. Autonomy is individualistic. It is expressive of self-determination and such self-determination includes sexual orientation and declaration of sexual identity. Such an orientation or choice that reflects an individual‘s autonomy is innate to him/her. It is an inalienable part of 97 his/her identity. The said identity under the constitutional scheme does not accept any interference as long as its expression is not against decency or morality. And the morality that is conceived of under the Constitution is constitutional morality. Under the autonomy principle, the individual has sovereignty over his/her body. He/she can surrender his/her autonomy wilfully to another individual and their intimacy in privacy is a matter of their choice. Such concept of identity is not only sacred but is also in recognition of the quintessential facet of humanity in a person‘s nature. The autonomy establishes identity and the said identity, in the ultimate eventuate, becomes a part of dignity in an individual. This dignity is special to the man/woman who has a right to enjoy his/her life as per the constitutional norms and should not be allowed to wither and perish like a mushroom. It is a directional shift from conceptual macrocosm to cognizable microcosm. When such culture grows, there is an affirmative move towards a more inclusive and egalitarian society. Non-acceptance of the same would tantamount to denial of human rights to people and one cannot be oblivious of the saying of Nelson Mandela ― ―to deny people their human rights is to challenge their very humanity.‖ 98

150. Article 12 of the Universal Declaration of Human Rights, (1948) makes a reference to privacy by stating:-

151. Similarly, Article 17 of the International Covenant of Civil and Political Rights, to which India is a party, talks about privacy thus:-

152. The European Convention on Human Rights also seeks to protect the right to privacy by stating:-

153. In the case of Dudgeon v. United Kingdom 64 , privacy has been defined as under:-

154. In R. Rajagopal v. State of Tamil Nadu and others65, while discussing the concept of right to privacy, it has been observed that the right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21 and it is a "right to be let alone", for a citizen has a right to safeguard the privacy of his/her own, his/her family, marriage, procreation, motherhood, child-bearing and education, among other matters.

155. The above authorities capture the essence of the right to privacy. There can be no doubt that an individual also has a right to a union under Article 21 of the Constitution. When we say union, we do not mean the union of marriage, though marriage is a union. As a concept, union also means companionship in every sense of the word, be it physical, mental, sexual or emotional. The LGBT community is seeking realisation of its basic right to companionship, so long as such a companionship is consensual, free from the vice of deceit, force, coercion and does not result in violation of the fundamental rights of others.

(1994) 6 SCC 632 100

156. Justice Blackmun, in his vigorous dissent, in the case of Bowers, Attorney General of Georgia v. Hardwick et al. 66 , regarding the ―right to be let alone‖, referred to Paris Adult Theatre I v. Slaton67 wherein he observed that only the most willful blindness could obscure the fact that sexual intimacy is a sensitive, key relationship of human existence, central to family life, community welfare and the development of human personality. Justice Blackmun went on to observe:-

157. In A.R. Coeriel and M.A.R. Aurik v. The Netherlands68, the Human Rights Committee observed that the notion of privacy refers to the sphere of a person's life in which he or she can freely express his or her identity, be it by entering into relationships with others or 66 Bowers v. Hardwick, 478 U.S. 186 (1986) 67 413 U.S. 49 (1973) 68 Communication No. 453/1991, para. 10.2 101 alone. The Committee was of the view that a person's surname constitutes an important component of one's identity and that the protection against arbitrary or unlawful interference with one's privacy includes the protection against arbitrary or unlawful interference with the right to choose and change one's own name.

158. We may also usefully refer to the views of the Human Rights Committee in Toonen v. Australia69 to the effect that the introduction of the concept of arbitrariness is intended to guarantee that every interference provided for by the law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the circumstances. The requirement of reasonableness implies that any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case.

159. The South African Constitutional Court in National Coalition for Gay and Lesbian Equality and another v. Minister of Justice and others 70 has arrived at a theory of privacy in sexuality that includes both decisional and relational elements. It lays down that privacy recognises that we all have a right to a sphere of private 69 Communication No. 488/1992, U.C. Doc CCPR/C/ 50/D 488/ 1992, March 31, 1994, para. 8.3 70 1998 (12) BCLR 1517 (CC) 102 intimacy and autonomy which allows us to establish and nurture human relationships without interference from the outside community. The way in which we give expression to our sexuality is at the core of this area of private intimacy. If, in expressing our sexuality, we act consensually and without harming one another, invasion of that precinct will be a breach of our privacy. The Court admitted that the society had a poor record of seeking to regulate the sexual expression of South Africans. It observed that in some cases, as in this one, the reason for the regulation was discriminatory; the law, for example, outlawed sexual relationships among people of different races. The fact that a law prohibiting forms of sexual conduct is discriminatory does not, however, prevent it at the same time from being an improper invasion of the intimate sphere of human life to which protection is given by the Constitution in Section 14 . The Court emphasized that the importance of a right to privacy in the new constitutional order should not be denied even while acknowledging the importance of equality. In fact, emphasising the breach of both these rights in the present case highlights just how egregious the invasion of the constitutional rights of gay persons has been. The offence which lies at the heart of the discrimination in this case 103 constitutes, at the same time and independently, a breach of the rights of privacy and dignity which, without doubt, strengthens the conclusion that the discrimination is unfair.

160. At home, the view as to the right to privacy underwent a sea- change when a nine-Judge Bench of this Court in Puttaswamy (supra) elevated the right to privacy to the stature of fundamental right under Article 21 of the Constitution. One of us, Chandrachud, J., speaking for the majority, regarded the judgment in Suresh Koushal as a discordant note and opined that the reasons stated therein cannot be regarded as a valid constitutional basis for disregarding a claim based on privacy under Article 21 of the Constitution. Further, he observed that the reasoning in Suresh Koushal‘s decision to the effect that ―a minuscule fraction of the country's population constitutes lesbians, gays, bisexuals or transgenders" is not a sustainable basis to deny the right to privacy.

161. It was further observed that the purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities, whether legislative or popular, and the guarantee of constitutional rights does not depend upon their exercise being favourably regarded by majoritarian opinion. 104

162. The test of popular acceptance, in view of the majority opinion, was not at all a valid basis to disregard rights which have been conferred with the sanctity of constitutional protection. The Court noted that the discrete and insular minorities face grave dangers of discrimination for the simple reason that their views, beliefs or way of life does not accord with the 'mainstream', but in a democratic Constitution founded on the Rule of Law, it does not mean that their rights are any less sacred than those conferred on other citizens.

163. As far as the aspect of sexual orientation is concerned, the Court opined that it is an essential attribute of privacy and discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. The Court was of the view that equality demands that the sexual orientation of each individual in the society must be protected on an even platform, for the right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14 , 15 and 21 of the Constitution.

164. Regarding the view in Suresh Koushal‘s case to the effect that the Delhi High Court in Naz Foundation case had erroneously relied upon international precedents in its anxiety to protect the so-called 105 rights of LGBT persons, the nine-Judge Bench was of the opinion that the aforesaid view in Suresh Koushal (supra) was unsustainable. The rights of the lesbian, gay, bisexual and transgender population, as per the decision in Puttaswamy (supra), cannot be construed to be "so-called rights" as the expression "so-called" seems to suggest the exercise of liberty in the garb of a right which is illusory.

165. The Court regarded such a construction in Suresh Koushal‘s case as inappropriate of the privacy based claims of the LGBT population, for their rights are not at all "so-called" but are real rights founded on sound constitutional doctrine. The Court went on to observe that the rights of the LGBT community inhere in the right to life, dwell in privacy and dignity and they constitute the essence of liberty and freedom. Further, the Court observed that sexual orientation being an essential component of identity, equal protection demands equal protection of the identity of every individual without discrimination.

166. Speaking in the same tone and tenor, Kaul, J., while concurring with the view of Chandrachud, J., observed that the right to privacy cannot be denied even if there is a minuscule fraction of the population which is affected. He was of the view that the majoritarian 106 concept does not apply to constitutional rights and the Courts are often called upon to take what may be categorized as a non- majoritarian view.

167. Kaul, J. went on to opine that one‘s sexual orientation is undoubtedly an attribute of privacy and in support of this view, he referred to the observations made in Mosley (supra) which read thus:-

168. After the nine-Judge bench decision in Puttaswamy (supra), the challenge to the vires of Section 377 IPC has been stronger than ever. It needs to be underscored that in the said decision , the nine- Judge Bench has held that sexual orientation is also a facet of a person's privacy and that the right to privacy is a fundamental right under the Constitution of India.

169. The observation made in Suresh Koushal (supra) that gays, lesbians, bisexuals and transgenders constitute a very minuscule part of the population is perverse due to the very reason that such an approach would be violative of the equality principle enshrined under Article 14 of the Constitution. The mere fact that the percentage of population whose fundamental right to privacy is being abridged by the existence of Section 377 in its present form is low does not impose a limitation upon this Court from protecting the fundamental rights of those who are so affected by the present Section 377 IPC.

170. The constitutional framers could have never intended that the protection of fundamental rights was only for the majority population. 108 If such had been the intention, then all provisions in Part III of the Constitution would have contained qualifying words such as 'majority persons' or 'majority citizens'. Instead, the provisions have employed the words 'any person‘ and ‗any citizen' making it manifest that the constitutional courts are under an obligation to protect the fundamental rights of every single citizen without waiting for the catastrophic situation when the fundamental rights of the majority of citizens get violated.

171. Such a view is well supported on two counts, namely, one that the constitutional courts have to embody in their approach a telescopic vision wherein they inculcate the ability to be futuristic and do not procrastinate till the day when the number of citizens whose fundamental rights are affected and violated grow in figures. In the case at hand, whatever be the percentage of gays, lesbians, bisexuals and transgenders, this Court is not concerned with the number of persons belonging to the LGBT community. What matters is whether this community is entitled to certain fundamental rights which they claim and whether such fundamental rights are being violated due to the presence of a law in the statute book. If the answer to both these questions is in the affirmative, then the 109 constitutional courts must not display an iota of doubt and must not hesitate in striking down such provision of law on the account of it being violative of the fundamental rights of certain citizens, however minuscule their percentage may be.

172. A second count on which the view in Suresh Koushal (supra) becomes highly unsustainable is that the language of both Articles 32 and 226 of the Constitution is not reflective of such an intention. A cursory reading of both the Articles divulges that the right to move the Supreme Court and the High Courts under Articles 32 and 226 respectively is not limited to a situation when there is violation of the fundamental rights of a large chunk of populace.

173. Such a view is also fortified by several landmark judgments of the Supreme Court such as D.K. Basu v. State of W.B.71 wherein the Court was concerned with the fundamental rights of only those persons who were put under arrest and which again formed a minuscule fraction of the total populace. Another recent case wherein the Supreme Court while discharging its constitutional duty did not hesitate to protect the fundamental right to die with dignity is Common Cause (A Regd. Society ) (supra) wherein the Supreme 71 (1997) 1 SCC 416 110 Court stepped in to protect the said fundamental right of those who may have slipped into permanent vegetative state, who again form a very minuscule part of the society.

174. Such an approach reflects the idea as also mooted by Martin Luther King Jr. who said, ―Injustice anywhere is a threat to justice everywhere‖. While propounding this view, we are absolutely conscious of the concept of reasonable classification and the fact that even single person legislation could be valid as held in Chiranjit Lal Chowdhury v. Union of India72 , which regarded the classification to be reasonable from both procedural and substantive points of view.

175. We are aware that the legislature is fully competent to enact laws which are applicable only to a particular class or group. But, for the classification to be valid, it must be founded on an intelligible differentia and the differentia must have a rational nexus with the object sought to be achieved by a particular provision of law.

176. That apart, since it is alleged that Section 377 IPC in its present form violates a fundamental right protected by Article 21 of the Constitution, that is, the right to personal liberty, it has to not only stand the test of Article 21 but it must also stand the test of Article 19 72 [1950] 1 SCR 869 111 which is to say that the restriction imposed by it has to be reasonable and also that of Article 14 which is to say that Section 377 must not be arbitrary.

177. Whether Section 377 stands the trinity test of Articles 14 , 19 and 21 as propounded in the case of Maneka Gandhi (supra) will be ascertained and determined at a later stage of this judgment when we get into the interpretative dissection of Section 377 IPC. M. Doctrine of progressive realization of rights

178. When we talk about the rights guaranteed under the Constitution and the protection of these rights, we observe and comprehend a manifest ascendance and triumphant march of such rights which, in turn, paves the way for the doctrine of progressive realization of the rights under the Constitution. This doctrine invariably reminds us about the living and dynamic nature of a Constitution. Edmund Burke, delineating upon the progressive and the perpetual growing nature of a Constitution, had said that a Constitution is ever-growing and it is perpetually continuous as it embodies the spirit of a nation. It is enriched at the present by the past experiences and influences and makes the future richer than the present.

179. In N.M. Thomas (supra), Krishna Iyer, J., in his concurring opinion, observed thus:-

And again:-

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

180. Further, Krishna Iyer, J. referred to the classic statement made by Chief Justice Marshall in McCulloch v. Maryland 73 which was also followed by Justice Brennan in Kazenbach v. Morgan74. The said observation reads thus:-

181. In Manoj Narula (supra), the Court recognized the dynamic nature of the Indian Constitution and observed that it is a living document with capabilities of enormous dynamism. It is a Constitution made for a progressive society and the working of such a Constitution depends upon the prevalent atmosphere and conditions.

182. In Government of NCT of Delhi (supra), the Court, while contemplating on what is it that makes a Constitution a dynamic and a living document, observed that it is the philosophy of 'constitutional culture' which, as a set of norms and practices, breathes life into the 73 (1816) 17 US 316 74 (1966) 384 US 641 114 words of the great document and it constantly enables the words to keep stride with the rapid and swift changes occurring in the society and the responsibility of fostering a constitutional culture rests upon the shoulders of the State. Thereafter, the Court went on to observe:-

183. We have discussed, in brief, the dynamic and progressive nature of the Constitution to accentuate that rights under the Constitution are also dynamic and progressive, for they evolve with 115 the evolution of a society and with the passage of time. The rationale behind the doctrine of progressive realization of rights is the dynamic and ever growing nature of the Constitution under which the rights have been conferred to the citizenry.

184. The constitutional courts have to recognize that the constitutional rights would become a dead letter without their dynamic, vibrant and pragmatic interpretation. Therefore, it is necessary for the constitutional courts to inculcate in their judicial interpretation and decision making a sense of engagement and a sense of constitutional morality so that they, with the aid of judicial creativity, are able to fulfill their foremost constitutional obligation, that is, to protect the rights bestowed upon the citizens of our country by the Constitution.

185. Here, it is also apposite to refer to the words of Lord Roskill in his presidential address to the Bentham Club at University College of London on February 29, 1984 on the subject 'Law Lords, Reactionaries or Reformers'75 which read as follows:-

[Emphasis supplied]

186. What the words of Lord Roskill suggest is that it is not only the interpretation of the Constitution which needs to be pragmatic, due to the dynamic nature of a Constitution, but also the legal policy of a particular epoch must be in consonance with the current and the present needs of the society, which are sensible in the prevalent times and at the same time easy to apply.

187. This also gives birth to an equally important role of the State to implement the constitutional rights effectively. And of course, when we say State, it includes all the three organs, that is, the legislature, 117 the executive as well as the judiciary. The State has to show concerned commitment which would result in concrete action. The State has an obligation to take appropriate measures for the progressive realization of economic, social and cultural rights.

188. The doctrine of progressive realization of rights, as a natural corollary, gives birth to the doctrine of non-retrogression. As per this doctrine, there must not be any regression of rights. In a progressive and an ever-improving society, there is no place for retreat. The society has to march ahead.

189. The doctrine of non-retrogression sets forth that the State should not take measures or steps that deliberately lead to retrogression on the enjoyment of rights either under the Constitution or otherwise.

190. The aforesaid two doctrines lead us to the irresistible conclusion that if we were to accept the law enunciated in Suresh Koushal 's case, it would definitely tantamount to a retrograde step in the direction of the progressive interpretation of the Constitution and denial of progressive realization of rights. It is because Suresh Koushal’s view gets wrongly embedded with the minuscule facet and assumes criminality on the bedrock being guided by a sense of social 118 morality. It discusses about health which is no more a phobia and is further moved by the popular morality while totally ignoring the concepts of privacy, individual choice and the orientation. Orientation, in certain senses, does get the neuro-impulse to express while seeing the other gender. That apart, swayed by data, Suresh Koushal fails to appreciate that the sustenance of fundamental rights does not require majoritarian sanction. Thus, the ruling becomes sensitively susceptible.

191. The Supreme Court of the United States in Obergefell, et al. v. Hodges, Director, Ohio Department of Health, et al.76, highlighting the plight of homosexuals, observed that until the mid-20th century, same-sex intimacy had long been condemned as immoral by the State itself in most Western nations and a belief was often embodied in the criminal law and for this reason, homosexuals, among others, were not deemed to have dignity in their own distinct identity. The Court further noted that truthful declaration by same-sex couples of what was in their hearts had to remain unspoken and even when a 76576 US (2015) 119 greater awareness of the humanity and integrity of homosexual persons came in the period after World War II, the argument that gays and lesbians had a just claim to dignity was in conflict with both law and widespread social conventions. The Court also observed that same-sex intimacy remained a crime in many States and that gays and lesbians were prohibited from most government employment, barred from military service, excluded under immigration laws, targeted by the police and burdened in their rights to associate.

192. The Court further observed that what the statutes in question seek to control is a personal relationship, whether or not entitled to formal recognition in the law, that is within the liberty of persons to choose without being punished as criminals. Further, the Court acknowledged that adults may choose to enter upon a relationship in the confines of their homes and their own private lives and still retain their dignity as free persons and that when sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The Court held that such liberty protected by the Constitution allows homosexual persons the right to make this choice. 120

193. In the case of Price Waterhouse v. Hopkins77, the Supreme Court of the United States, while evaluating the legal relevance of sex stereotyping, observed thus:-

194. In the case of Kimberly Hively v. Ivy Tech Community College of Indiana 78 , while holding that discrimination amongst employees based on their sexual orientation amounts to discrimination based on sex, the Court observed as under:-

Id. at *5 (proffering the example of a woman who is suspended for placing a photo of her female spouse on her desk, and a man who faces no consequences for the 77490U.S. 228 (1989) 78 830 F.3d 698 (7th Cir. 2016) 121 same act). Second, it explained that "sexual orientation discrimination is also sex discrimination because it is associational discrimination on the basis of sex," in which an employer discriminates against lesbian, gay, or bisexual employees based on who they date or marry. Id. at *6-7. Finally, the EEOC described sexual orientation discrimination as a form of discrimination based on gender stereotypes in which employees are harassed or punished for failing to live up to societal norms about appropriate masculine and feminine behaviors, mannerisms, and appearances. Id. In coming to these conclusions, the EEOC noted critically that "courts have attempted to distinguish discrimination based on sexual orientation from discrimination based on sex, even while noting that the "borders [between the two classes] are imprecise." Id. at *8 (quoting Simonton, 232 F.3d at 35).

[Underlining is ours]

195. In the case of Lawrence v. Texas79, while dealing with the issue of decriminalization of sexual conduct between homosexuals, the U.S. Supreme Court observed that the said issue neither involved minors nor persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused nor did it involve public conduct or prostitution nor the question whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The Court further observed that the issue related to two adults who, with full and mutual consent of each other, engaged in sexual practices common to a 79 539 U.S. 558 (2003) 122 homosexual lifestyle. The Court declared that the petitioners were entitled to respect for their private lives and that the State could not demean their existence or control their destiny by making their private sexual conduct a crime, for their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without the intervention of the State.

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

[Emphasis added] 80468 U.S. 609 (1984) 123

(ii) Canada

197. The Supreme Court of Canada, in Delwin Vriend and others v. Her Majesty the Queen in Right of Alberta and others81, while interpreting a breach of Section 15(1) of the Canadian Charter of Rights and Freedoms, arrived at the conclusion that 'sex' includes sexual orientation. Section 15(1) of the Charter reads thus:-

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:-

Second "whether that distinction has the effect on the claimant of imposing a burden, obligation or disadvantage not imposed upon others or of withholding or limiting access to benefits or advantages which are available to others" (para. 131). 81 [1998] 1 SCR 493 124 A discriminatory distinction was also described as one which is "capable of either promoting or perpetuating the view that the individual adversely affected by this distinction is less capable, or less worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration" (Egan, at para. 56, per L'Heureux - Dube J.). It may as well be appropriate to consider whether the unequal treatment is based on "the stereotypical application of presumed group or personal characteristics" (Miron, at para. 128, per McLachlin J.) In Egan, it was held, on the basis of "historical social, political and economic disadvantage suffered by homosexuals" and the emerging consensus among legislatures (at para. 176), as well as previous judicial decisions (at para. 177), that sexual orientation is a ground analogous to those listed in s. 15(1) . Sexual orientation is "a deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal costs" (para. 5). It is analogous to the other personal characteristics enumerated in s. 15(1) ; and therefore this step of the test is satisfied."

199. Thereafter, the Court in Delwin Vriend (supra) observed that perhaps the most important outcome is the psychological harm which may ensue from the state of affairs as the fear of discrimination (by LGBT) would logically lead them to concealment of true identity and this is harmful to their personal confidence and self-esteem. The Court held that this is a clear example of a distinction which demeans the individual and strengthens and perpetrates the view that gays and 125 lesbians are less worthy of protection as individuals in Canada‘s society and the potential harm to the dignity and perceived worth of gay and lesbian individuals constitutes a particularly cruel form of discrimination.

(iii) South Africa

200. The Constitutional Court of South Africa in National Coalition for Gay & Lesbian Equality (supra) made the following relevant observations:-

(iv) United Kingdom

201. In Euan Sutherland v. United Kingdom82, the issue before the European Commission of Human Rights was whether the difference in age limit for consent for sexual activities for homosexuals and heterosexuals, the age limit being 16 years in the case of heterosexuals and 18 years in the case of homosexuals, is justified. While considering the same, the Commission observed that no objective and reasonable justification exists for the maintenance of a higher minimum age of consent in case of male homosexuals as compared to heterosexuals and that the application discloses discriminatory treatment in the exercise of the applicant's right to respect for private life under Article 8 of the Convention. The Commission further observed that sexual orientation was usually established before the age of puberty in both boys and girls and referred to evidence that reducing the age of consent would unlikely affect the majority of men engaging in homosexual activity, either in general or within specific age groups. The Council of the British Medical Association (BMA) concluded in its Report that the age of consent 82 2001 ECHR 234 127 for homosexual men should be set at 16 since the then existing law might inhibit efforts to improve the sexual health of young homosexual and bisexual men. An equal age of consent was also supported by the Royal College of Psychiatrists, the Health Education Authority and the National Association of Probation Officers as well as by other bodies and organizations concerned with health and social welfare. It is further noted that equality of treatment in respect of the age of consent is now recognized by the great majority of Member States of the Council of Europe.

(v) Other Courts/Jurisdictions

202. In Ang Ladlad LGBT Party v. Commission of Elections83, the Supreme Court of the Republic of the Philippines observed:-

203. Further, in Toonen‘s case, the Human Rights Committee made the following relevant observations:-

204. In Dudgeon (supra), the European Court of Human Rights made the following observations with respect to homosexuality:-

[Emphasis supplied] O. Comparative analysis of Section 375 and Section 377 IPC

205. Let us, in the obtaining situation, conduct a comparative analysis of the offence of rape and unnatural offences as defined under Section 375 and Section 377 of the IPC respectively. Section 375 IPC defines the offence of rape and reads as under:- 130

Secondly. —Without her consent.

Thirdly. —With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

Fourthly. —With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly. —With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome 131 substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly. —With or without her consent, when she is under eighteen years of age.

Seventhly. —When she is unable to communicate consent.

Explanation I.—For the purposes of this section, "vagina" shall also include labia majora.

Explanation 2. — Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:

in the case of coitus per os is impossible. Thus, the most common argument against homosexuality and criminalization of carnal intercourse even between consenting adults of opposite sex is that traditionally, the essential purpose of sex is to procreate.

215. With the passage of time and evolution of the society, procreation is not the only reason for which people choose to come together, have live-in relationships, perform coitus or even marry. They do so for a whole lot of reasons including emotional companionship. Homer Clark writes:-

216. In the contemporary world where even marriage is now not equated to procreation of children, the question that would arise is whether homosexuality and carnal intercourse between consenting adults of opposite sex can be tagged as ‗against the order of nature‘. It is the freedom of choice of two consenting adults to perform sex for procreation or otherwise and if their choice is that of the latter, it cannot be said to be against the order of nature. Therefore, sex, if performed differently, as per the choice of the consenting adults, 137 does not per se make it against the order of nature.

217. Section 377 criminalises even voluntary carnal intercourse not only between homosexuals but also between heterosexuals. The major difference between the language of Section 377 and Section 375 is that of the element of absence consent which has been elaborately incorporated in the seven descriptions contained in the latter part of Section 375 IPC. It is the absence of willful and informed consent embodied in the seven descriptions to Section 375 which makes the offence of rape criminal.

218. On the other hand, Section 377 IPC contains no such descriptions/exceptions embodying the absence of willful and informed consent and criminalises even voluntary carnal intercourse both between homosexuals as well as between heterosexuals. While saying so, we gain strength and support from the fact that the legislature, in its wisdom, while enacting Section 375 IPC in its amended form after the Criminal Law (Amendment) Act, 2013 , has not employed the words ―subject to any other provision of the IPC ‖. The implication of the absence of these words simply indicates that Section 375 IPC which does not criminalize consensual carnal intercourse between heterosexuals is not subject to Section 377 IPC. 138

219. Section 377, so far as it criminalises carnal intercourse between heterosexuals is legally unsustainable in its present form for the simple reason that Section 375 IPC clearly stipulates that carnal intercourse between a man and a woman with the willful and informed consent of the woman does not amount to rape and is not penal.

220. Despite the Criminal Law (Amendment) Act, 2013 coming into force, by virtue of which Section 375 was amended, whereby the words ‗sexual intercourse‘ in Section 375 were replaced by four elaborate clauses from (a) to (d) giving a wide definition to the offence of rape, Section 377 IPC still remains in the statute book in the same form. Such an anomaly, if allowed to persist, may result in a situation wherein a heterosexual couple who indulges in carnal intercourse with the willful and informed consent of each other may be held liable for the offence of unnatural sex under Section 377 IPC, despite the fact that such an act would not be rape within the definition as provided under Section 375 IPC.

221. Drawing an analogy, if consensual carnal intercourse between a heterosexual couple does not amount to rape, it definitely should not be labelled and designated as unnatural offence under Section 139 377 IPC. If any proclivity amongst the heterosexual population towards consensual carnal intercourse has been allowed due to the Criminal Law (Amendment) Act, 2013 , such kind of proclivity amongst any two persons including LGBT community cannot be treated as untenable so long as it is consensual and it is confined within their most private and intimate spaces.

222. There is another aspect which needs to be discussed, which is whether criminalisation of carnal intercourse under Section 377 serves any useful purpose under the prevalent criminal law. Delineating on this aspect, the European Commission of Human Rights in Dudgeon (supra) opined thus:-

223. At the very least, it can be said that criminalisation of consensual carnal intercourse, be it amongst homosexuals, heterosexuals, bi-sexuals or transgenders, hardly serves any legitimate public purpose or interest. Per contra, we are inclined to believe that if Section 377 remains in its present form in the statute book, it will allow the harassment and exploitation of the LGBT community to prevail. We must make it clear that freedom of choice cannot be scuttled or abridged on the threat of criminal prosecution and made paraplegic on the mercurial stance of majoritarian perception.

P. The litmus test for survival of Section 377 IPC

224. Having discussed the various principles and concepts and bearing in mind the sacrosanctity of the fundamental rights which 141 guides the constitutional courts, we shall now proceed to deal with the constitutionality of Section 377 IPC on the bedrock of the principles enunciated in Articles 14 , 19 and 21 of the Constitution.

225. It is axiomatic that the expression ‗life or personal liberty‘ in Article 21 embodies within itself a variety of rights. In Maneka Gandhi (supra), Bhagwati, J. (as he then was) observed:-

226. In Anuj Garg (supra), while dealing with the constitutional validity of Section 30 of the Punjab Excise Act, 1914 prohibiting employment of ―any man under the age of 25 years‖ or ―any woman‖, the Court, holding it ultra vires, ruled thus:-

227. In Common Cause (A Regd. Society ) (supra), the Court, in the context of right to dignity, observed:-

228. In Puttaswamy (supra), the right to privacy has been declared to be a fundamental right by this Court as being a facet of life and personal liberty protected under Article 21 of the Constitution.

229. In view of the above authorities, we have no hesitation to say that Section 377 IPC, in its present form, abridges both human dignity as well as the fundamental right to privacy and choice of the citizenry, howsoever small. As sexual orientation is an essential and innate facet of privacy, the right to privacy takes within its sweep the right of every individual including that of the LGBT to express their choices in terms of sexual inclination without the fear of persecution or criminal prosecution.

230. The sexual autonomy of an individual to choose his/her sexual partner is an important pillar and an insegregable facet of individual 143 liberty. When the liberty of even a single person of the society is smothered under some vague and archival stipulation that it is against the order of nature or under the perception that the majority population is peeved when such an individual exercises his/her liberty despite the fact that the exercise of such liberty is within the confines of his/her private space, then the signature of life melts and living becomes a bare subsistence and resultantly, the fundamental right of liberty of such an individual is abridged.

231. While saying so, we are absolutely conscious of the fact that the citizenry may be deprived of their right to life and personal liberty if the conditions laid down in Article 21 are fulfilled and if, at the same time, the procedure established by law as laid down in Maneka Gandhi (supra) is satisfied. Article 21 requires that for depriving a person of his right to life and personal liberty, there has to be a law and the said law must prescribe a fair procedure. The seminal point is to see whether Section 377 withstands the sanctity of dignity of an individual, expression of choice, paramount concept of life and whether it allows an individual to lead to a life that one‘s natural orientation commands. That apart, more importantly, the question is whether such a gender-neutral offence, with the efflux of time, should 144 be allowed to remain in the statute book especially when there is consent and such consent elevates the status of bodily autonomy. Hence, the provision has to be tested on the principles evolved under Articles 14 , 19 and 21 of the Constitution.

232. In Sunil Batra v. Delhi Administration and others85, Krishna Iyer, J. opined that what is punitively outrageous, scandalizingly unusual or cruel and rehabilitatively counterproductive, is unarguably unreasonable and arbitrary and is shot down by Article 14 and 19 and if inflicted with procedural unfairness, falls foul of Article 21.

233. We, first, must test the validity of Section 377 IPC on the anvil of Article 14 of the Constitution. What Article 14 propounds is that ‗all like should be treated alike‘. In other words, it implies equal treatment for all equals. Though the legislature is fully empowered to enact laws applicable to a particular class, as in the case at hand in which Section 377 applies to citizens who indulge in carnal intercourse, yet the classification, including the one made under Section 377 IPC, has to satisfy the twin conditions to the effect that the classification must be founded on an intelligible differentia and the said differentia must 85AIR 1978 SC 1675 : (1978) 4 SCC 494 145 have a rational nexus with the object sought to be achieved by the provision, that is, Section 377 IPC.

234. In M. Nagaraj and others v. Union of India and others86, it has been held:-

235. In E.P. Royappa v. State of Tamil Nadu and another87, this Court observed that equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed, cabined and confined"

236. In Budhan Choudhry v. The State of Bihar , while delineating on the concept of reasonable classification, the Court observed thus:-

237. A perusal of Section 377 IPC reveals that it classifies and penalizes persons who indulge in carnal intercourse with the object to protect women and children from being subjected to carnal intercourse. That being so, now it is to be ascertained whether this classification has a reasonable nexus with the object sought to be achieved. The answer is in the negative as the non-consensual acts which have been criminalized by virtue of Section 377 IPC have already been designated as penal offences under Section 375 IPC and under the POCSO Act . Per contra, the presence of this Section in its present form has resulted in a distasteful and objectionable 147 collateral effect whereby even ‗consensual acts‘, which are neither harmful to children nor women and are performed by a certain class of people (LGBTs) owning to some inherent characteristics defined by their identity and individuality, have been woefully targeted. This discrimination and unequal treatment meted out to the LGBT community as a separate class of citizens is unconstitutional for being violative of Article 14 of the Constitution.

238. In Shayara Bano (supra), the Court observed that manifest arbitrariness of a provision of law can also be a ground for declaring a law as unconstitutional. Opining so, the Court observed thus:-

239. In view of the law laid down in Shayara Bano (supra) and given the fact that Section 377 criminalises even consensual sexual acts between adults, it fails to make a distinction between consensual and non-consensual sexual acts between competent 148 adults. Further, Section 377 IPC fails to take into account that consensual sexual acts between adults in private space are neither harmful nor contagious to the society. On the contrary, Section 377 trenches a discordant note in respect of the liberty of persons belonging to the LGBT community by subjecting them to societal pariah and dereliction. Needless to say, the Section also interferes with consensual acts of competent adults in private space. Sexual acts cannot be viewed from the lens of social morality or that of traditional precepts wherein sexual acts were considered only for the purpose of procreation. This being the case, Section 377 IPC, so long as it criminalises consensual sexual acts of whatever nature between competent adults, is manifestly arbitrary.

240. The LGBT community possess the same human, fundamental and constitutional rights as other citizens do since these rights inhere in individuals as natural and human rights. We must remember that equality is the edifice on which the entire non-discrimination jurisprudence rests. Respect for individual choice is the very essence of liberty under law and, thus, criminalizing carnal intercourse under Section 377 IPC is irrational, indefensible and manifestly arbitrary. It is true that the principle of choice can never be absolute under a 149 liberal Constitution and the law restricts one individual‘s choice to prevent harm or injury to others. However, the organisation of intimate relations is a matter of complete personal choice especially between consenting adults. It is a vital personal right falling within the private protective sphere and realm of individual choice and autonomy. Such progressive proclivity is rooted in the constitutional structure and is an inextricable part of human nature.

241. In the adverting situation, we must also examine whether Section 377, in its present form, stands the test of Article 19 of the Constitution in the sense of whether it is unreasonable and, therefore, violative of Article 19. In Chintaman Rao v. State of Madhya Pradesh89 , this Court, in the context of reasonable restrictions under Article 19 , opined thus:-

242. In S. Rangarajan v. P. Jagjivan Ram and others90, the Court observed, though in a different context, thus:-

243. In S. Khushboo (supra), this Court, while observing that ‗morality and decency‘ on the basis of which reasonable restrictions can be imposed on the rights guaranteed under Article 19 should not be amplified beyond a rational and logical limit, ruled that even though the constitutional freedom of speech and expression is not absolute and can be subjected to reasonable restrictions on grounds such as `decency and morality' among others, yet it is necessary to tolerate unpopular views in the socio-cultural space.

244. In the case of Shreya Singhal v. Union of India91 , this Court, while striking down Section 66A of the Information Technology Act, 2000, had observed that when a provision is vague and overboard in 90 (1989) 2 SCC 574 91 (2015) 5 SCC 1 151 the sense that it criminalises protected speech and speech of innocent nature, resultantly, it has a chilling effect and is liable to be struck down. The Court opined:-

245. In the obtaining situation, we need to check whether public order, decency and morality as grounds to limit the fundamental right of expression including choice can be accepted as reasonable restrictions to uphold the validity of Section 377 IPC. We are of the conscious view that Section 377 IPC takes within its fold private acts of adults including the LGBT community which are not only consensual but are also innocent, as such acts neither cause disturbance to the public order nor are they injurious to public decency or morality. The law is et domus sua cuique est tutissimum refugium – A man‘s house is his castle. Sir Edward Coke92 said:-

246. That apart, any display of affection amongst the members of the LGBT community towards their partners in the public so long as it does not amount to indecency or has the potentiality to disturb public order cannot be bogged down by majority perception. Section 377 IPC amounts to unreasonable restriction as it makes carnal intercourse between consenting adults within their castle a criminal offence which is manifestly not only overboard and vague but also has a chilling effect on an individual‘s freedom of choice.

247. In view of the test laid down in the aforesaid authorities, Section 377 IPC does not meet the criteria of proportionality and is violative of the fundamental right of freedom of expression including the right to choose a sexual partner. Section 377 IPC also assumes the characteristic of unreasonableness, for it becomes a weapon in the hands of the majority to seclude, exploit and harass the LGBT community. It shrouds the lives of the LGBT community in criminality and constant fear mars their joy of life. They constantly face social prejudice, disdain and are subjected to the shame of being their very natural selves. Thus, an archaic law which is incompatible with constitutional values cannot be allowed to be preserved.

248. Bigoted and homophobic attitudes dehumanize the 153 transgenders by denying them their dignity, personhood and above all, their basic human rights. It is important to realize that identity and sexual orientation cannot be silenced by oppression. Liberty, as the linchpin of our constitutional values, enables individuals to define and express their identity and individual identity has to be acknowledged and respected.

249. The very existence of Section 377 IPC criminalising transgenders casts a great stigma on an already oppressed and discriminated class of people. This stigma, oppression and prejudice has to be eradicated and the transgenders have to progress from their narrow claustrophobic spaces of mere survival in hiding with their isolation and fears to enjoying the richness of living out of the shadows with full realization of their potential and equal opportunities in all walks of life. The ideals and objectives enshrined in our benevolent Constitution can be achieved only when each and every individual is empowered and enabled to participate in the social mainstream and in the journey towards achieving equality in all spheres, equality of opportunities in all walks of life, equal freedoms and rights and, above all, equitable justice. This can be achieved only by inclusion of all and exclusion of none from the mainstream. 154

250. We must realize that different hues and colours together make the painting of humanity beautiful and this beauty is the essence of humanity. We need to respect the strength of our diversity so as to sustain our unity as a cohesive unit of free citizens by fostering tolerance and respect for each others‘ rights thereby progressing towards harmonious and peaceful co-existence in the supreme bond of humanity. Attitudes and mentality have to change to accept the distinct identity of individuals and respect them for who they are rather than compelling them to ‗become‘ who they are not. All human beings possess the equal right to be themselves instead of transitioning or conditioning themselves as per the perceived dogmatic notions of a group of people. To change the societal bias and root out the weed, it is the foremost duty of each one of us to ―stand up and speak up‖ against the slightest form of discrimination against transgenders that we come across. Let us move from darkness to light, from bigotry to tolerance and from the winter of mere survival to the spring of life ― as the herald of a New India ― to a more inclusive society.

251. It is through times of grave disappointment, denunciation, adversity, grief, injustice and despair that the transgenders have 155 stood firm with their formidable spirit, inspired commitment, strong determination and infinite hope and belief that has made them look for the rainbow in every cloud and lead the way to a future that would be the harbinger of liberation and emancipation from a certain bondage indescribable in words – towards the basic recognition of dignity and humanity of all and towards leading a life without pretence eschewing duality and ambivalence. It is their momentous ―walk to freedom‖ and journey to a constitutional ethos of dignity, equality and liberty and this freedom can only be fulfilled in its truest sense when each of us realize that the LGBT community possess equal rights as any other citizen in the country under the magnificent charter of rights – our Constitution.

252. Thus analysed, Section 377 IPC, so far as it penalizes any consensual sexual activity between two adults, be it homosexuals (man and a man), heterosexuals (man and a woman) and lesbians (woman and a woman), cannot be regarded as constitutional. However, if anyone, by which we mean both a man and a woman, engages in any kind of sexual activity with an animal, the said aspect of Section 377 IPC is constitutional and it shall remain a penal offence under Section 377 IPC. Any act of the description covered 156 under Section 377 IPC done between the individuals without the consent of any one of them would invite penal liability under Section 377 IPC.

Q. Conclusions

253. In view of the aforesaid analysis, we record our conclusions in seriatim:-

With the same spirit, we must recognize that the concept of identity which has a constitutional tenability cannot be pigeon-holed singularly to one‘s orientation as it may keep the individual choice at bay. At the core of the concept of identity lies self-determination, realization of one‘s own abilities visualizing the opportunities and rejection of external views with a clear conscience that is in accord with constitutional norms and values or principles that are, to put in a capsule, ―constitutionally permissible‖.

(ii) In Suresh Koushal (supra), this Court overturned the decision of the Delhi High Court in Naz Foundation (supra) 157 thereby upholding the constitutionality of Section 377 IPC and stating a ground that the LGBT community comprised only a minuscule fraction of the total population and that the mere fact that the said Section was being misused is not a reflection of the vires of the Section. Such a view is constitutionally impermissible.

(iii) Our Constitution is a living and organic document capable of expansion with the changing needs and demands of the society. The Courts must commemorate that it is the Constitution and its golden principles to which they bear their foremost allegiance and they must robe themselves with the armoury of progressive and pragmatic interpretation to combat the evils of inequality and injustice that try to creep into the society. The role of the Courts gains more importance when the rights which are affected belong to a class of persons or a minority group who have been deprived of even their basic rights since time immemorial.

(iv) The primary objective of having a constitutional democracy is to transform the society progressively and inclusively. Our Constitution has been perceived to be transformative in the 158 sense that the interpretation of its provisions should not be limited to the mere literal meaning of its words; instead they ought to be given a meaningful construction which is reflective of their intent and purpose in consonance with the changing times. Transformative constitutionalism not only includes within its wide periphery the recognition of the rights and dignity of individuals but also propagates the fostering and development of an atmosphere wherein every individual is bestowed with adequate opportunities to develop socially, economically and politically. Discrimination of any kind strikes at the very core of any democratic society. When guided by transformative constitutionalism, the society is dissuaded from indulging in any form of discrimination so that the nation is guided towards a resplendent future.

(v) Constitutional morality embraces within its sphere several virtues, foremost of them being the espousal of a pluralistic and inclusive society. The concept of constitutional morality urges the organs of the State, including the Judiciary, to preserve the heterogeneous nature of the society and to curb any attempt by the majority to usurp the rights and 159 freedoms of a smaller or minuscule section of the populace. Constitutional morality cannot be martyred at the altar of social morality and it is only constitutional morality that can be allowed to permeate into the Rule of Law. The veil of social morality cannot be used to violate fundamental rights of even a single individual, for the foundation of constitutional morality rests upon the recognition of diversity that pervades the society.

(vi) The right to live with dignity has been recognized as a human right on the international front and by number of precedents of this Court and, therefore, the constitutional courts must strive to protect the dignity of every individual, for without the right to dignity, every other right would be rendered meaningless. Dignity is an inseparable facet of every individual that invites reciprocative respect from others to every aspect of an individual which he/she perceives as an essential attribute of his/her individuality, be it an orientation or an optional expression of choice. The Constitution has ladened the judiciary with the very important duty to protect and ensure the right of every individual 160 including the right to express and choose without any impediments so as to enable an individual to fully realize his/her fundamental right to live with dignity.

(vii) Sexual orientation is one of the many biological phenomena which is natural and inherent in an individual and is controlled by neurological and biological factors. The science of sexuality has theorized that an individual exerts little or no control over who he/she gets attracted to. Any discrimination on the basis of one‘s sexual orientation would entail a violation of the fundamental right of freedom of expression.

(viii) After the privacy judgment in Puttaswamy (supra), the right to privacy has been raised to the pedestal of a fundamental right. The reasoning in Suresh Koushal (supra), that only a minuscule fraction of the total population comprises of LGBT community and that the existence of Section 377 IPC abridges the fundamental rights of a very minuscule percentage of the total populace, is found to be a discordant note. The said reasoning in Suresh Koushal (supra), in our opinion, is fallacious, for the framers of our Constitution could have never intended that the fundamental rights shall 161 be extended for the benefit of the majority only and that the Courts ought to interfere only when the fundamental rights of a large percentage of the total populace is affected. In fact, the said view would be completely against the constitutional ethos, for the language employed in Part III of the Constitution as well as the intention of the framers of our Constitution mandates that the Courts must step in whenever there is a violation of the fundamental rights, even if the right/s of a single individual is/are in peril.

(ix) There is a manifest ascendance of rights under the Constitution which paves the way for the doctrine of progressive realization of rights as such rights evolve with the evolution of the society. This doctrine, as a natural corollary, gives birth to the doctrine of non-retrogression, as per which there must not be atavism of constitutional rights. In the light of the same, if we were to accept the view in Suresh Koushal (supra), it would tantamount to a retrograde step in the direction of the progressive interpretation of the Constitution and denial of progressive realization of rights.

(x) Autonomy is individualistic. Under the autonomy principle, the individual has sovereignty over his/her body. He/she can surrender his/her autonomy wilfully to another individual and their intimacy in privacy is a matter of their choice. Such concept of identity is not only sacred but is also in recognition of the quintessential facet of humanity in a person‘s nature. The autonomy establishes identity and the said identity, in the ultimate eventuate, becomes a part of dignity in an individual.

(xi) A cursory reading of both Sections 375 IPC and 377 IPC reveals that although the former Section gives due recognition to the absence of ‗wilful and informed consent‘ for an act to be termed as rape, per contra, Section 377 does not contain any such qualification embodying in itself the absence of ‗wilful and informed consent‘ to criminalize carnal intercourse which consequently results in criminalizing even voluntary carnal intercourse between homosexuals, heterosexuals, bisexuals and transgenders. Section 375 IPC, after the coming into force of the Criminal Law (Amendment) Act, 2013 , has not used the words 163 ‗subject to any other provision of the IPC ‘. This indicates that Section 375 IPC is not subject to Section 377 IPC.

(xii) The expression ‗against the order of nature‘ has neither been defined in Section 377 IPC nor in any other provision of the IPC . The connotation given to the expression by various judicial pronouncements includes all sexual acts which are not intended for the purpose of procreation. Therefore, if coitus is not performed for procreation only, it does not per se make it ‗against the order of nature‘.

(xiii) Section 377 IPC, in its present form, being violative of the right to dignity and the right to privacy, has to be tested, both, on the pedestal of Articles 14 and 19 of the Constitution as per the law laid down in Maneka Gandhi (supra) and other later authorities.

(xiv) An examination of Section 377 IPC on the anvil of Article 14 of the Constitution reveals that the classification adopted under the said Section has no reasonable nexus with its object as other penal provisions such as Section 375 IPC and the POCSO Act already penalize non-consensual carnal intercourse. Per contra, Section 377 IPC in its present form 164 has resulted in an unwanted collateral effect whereby even ‗consensual sexual acts‘, which are neither harmful to children nor women, by the LGBTs have been woefully targeted thereby resulting in discrimination and unequal treatment to the LGBT community and is, thus, violative of Article 14 of the Constitution.

(xv) Section 377 IPC, so far as it criminalises even consensual sexual acts between competent adults, fails to make a distinction between non-consensual and consensual sexual acts of competent adults in private space which are neither harmful nor contagious to the society. Section 377 IPC subjects the LGBT community to societal pariah and dereliction and is, therefore, manifestly arbitrary, for it has become an odious weapon for the harassment of the LGBT community by subjecting them to discrimination and unequal treatment. Therefore, in view of the law laid down in Shayara Bano (supra), Section 377 IPC is liable to be partially struck down for being violative of Article 14 of the Constitution.

(xvi) An examination of Section 377 IPC on the anvil of Article 19(1)(a) reveals that it amounts to an unreasonable restriction, for public decency and morality cannot be amplified beyond a rational or logical limit and cannot be accepted as reasonable grounds for curbing the fundamental rights of freedom of expression and choice of the LGBT community. Consensual carnal intercourse among adults, be it homosexual or heterosexual, in private space, does not in any way harm the public decency or morality. Therefore, Section 377 IPC in its present form violates Article 19(1)(a) of the Constitution.

(xvii) Ergo, Section 377 IPC, so far as it penalizes any consensual sexual relationship between two adults, be it homosexuals (man and a man), heterosexuals (man and a woman) or lesbians (woman and a woman), cannot be regarded as constitutional. However, if anyone, by which we mean both a man and a woman, engages in any kind of sexual activity with an animal, the said aspect of Section 377 is constitutional and it shall remain a penal offence under Section 377 IPC. Any act of the description covered under 166 Section 377 IPC done between two individuals without the consent of any one of them would invite penal liability under Section 377 IPC.

(xviii) The decision in Suresh Koushal (supra), not being in consonance with what we have stated hereinabove, is overruled.

254. The Writ Petitions are, accordingly, disposed of. There shall be no order as to costs.

……………………………….CJI (Dipak Misra) …………………………….…..J. (A.M. Khanwilkar) New Delhi;

September 6, 2018 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL/CIVIL ORIGINAL JURISDICTION WRIT PETITION (CRIMINAL) NO. 76 OF 2016 NAVTEJ SINGH JOHAR & ORS. …PETITIONERS VERSUS UNION OF INDIA …RESPONDENT WITH WRIT PETITION (CIVIL) NO.572 OF 2016 WITH WRIT PETITION (CRIMINAL) NO.88 OF 2018 WITH WRIT PETITION (CRIMINAL) NO.100 OF 2018 WITH WRIT PETITION (CRIMINAL) NO.101 OF 2018 WITH WRIT PETITION (CRIMINAL) NO.121 OF 2018 1 JUDGMENT R.F. Nariman, J.

1. “The love that dare not speak its name” is how the love that exists between same-sex couples was described by Lord Alfred Douglas, the lover of Oscar Wilde, in his poem Two Loves published in 1894 in Victorian England.

2. The word “homosexual” is not derived from “homo” meaning man, but from “homo” meaning same.1 The word “lesbian” is derived from the name of the Greek island of Lesbos, where it was rumored that female same-sex couples proliferated. What we have before us is a relook at the constitutional validity of Section 377 of the Indian Penal Code which was enacted in the year 1860 (over 150 years ago) insofar as it criminalises consensual sex between adult same- sex couples.

3. These cases have had a chequered history. Writ petitions were filed before the Delhi High Court challenging the 1 Homo in Greek means ‘same’ – the Nicene creed that was accepted by the Catholic Church after the Council at Nicaea, held by Emperor Constantine in 325 AD, was formulated with the word ‘homo’ at the forefront. When coupled with ‘sios’ it means same substance, meaning thereby that Jesus Christ was divine as he was of the same substance as God.

constitutional validity of Section 377 of the Penal Code insofar as it criminalizes consensual sex between adult same-sex couples within the confines of their homes or other private places. A Division Bench of the Delhi High Court in Naz Foundation v. Government of NCT of Delhi (“Naz Foundation” ), 111 DRJ 1 (2009), after considering wide- ranging arguments on both sides, finally upheld the plea of the petitioners in the following words:

Union of India (“NALSA”), (2014) 5 SCC 438, which construed Articles 15 and 21 of the Constitution of India as including the right to gender identity and sexual orientation, and held that just like men and women, transgenders could enjoy all the fundamental rights that other citizens of India could enjoy. Thereafter, in Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors. (“Puttaswamy” ), (2017) 10 SCC 1, a nine-Judge Bench of this Court unanimously declared that there is a fundamental right of privacy which enured in favour of all persons, the concomitant of which was that the right to make choices that were fundamental to a person’s way of living could not be interfered with by the State without compelling necessity and/or harm caused to other individuals.

6. The impetus of this decision is what led to a three-Judge Bench order of 08.01.2018, which referred to the judgment of Puttaswamy (supra) and other arguments made by Shri Datar, to refer the correctness of Suresh Kumar Koushal’s case (supra) to a larger Bench. This is how the matter has come to us.

History of Section 377

7. In the western world, given the fact that both Judaism and Christianity outlawed sexual intercourse by same-sex couples, offences relating thereto were decided by ecclesiastical courts. It is only as a result of Henry VIII of England breaking with the Roman Catholic Church that legislation in his reign, namely the Buggery Act of 1533, prohibited “the detestable and abominable offence” of buggery committed with mankind or beast.

8. Between 1806, when reliable figures begin, and 1900, 8,921 men were indicted for sodomy, gross indecency or other ‘unnatural misdemeanours’ in England and Wales. Ninety men per year were, on average, indicted for homosexual offences in 5 this period. About a third as many were arrested and their case considered by magistrates. Most of the men convicted were imprisoned, but between 1806 and 1861, when the death penalty for sodomy was finally abolished, 404 men were sentenced to death. Fifty-six were executed, and the remainder were either imprisoned or transported to Australia for life. Two such men, James Pratt and John Smith, were the last to be executed in Britain for sodomy on 27 November, 1835.

9. During the reign of the East India Company in India, Parliament established what was called the Indian Law Commission. In 1833, Thomas Babington Macaulay was appointed to chair the Commission.2

10. The Indian Law Commission, with Macaulay as its head, submitted the Draft Penal Code to the Government of India on 14.10.1837. This draft consisted of 488 clauses. After the First Report submitted on 23.07.1846, the Second Report of Her Majesty’s Commissioners for revising and consolidating the law was submitted by C.H. Cameron and D. Eliott on 24.06.1847. 2Thomas Babington Macaulay was a Whig liberal who was a precocious genius. Apart from having a photographic memory with which he astounded persons around him, one incident which took place when Macaulay was only 5 years old told the world what was in store for it when Macaulay would reach adulthood. A lady dropped some hot coffee on the five-year old child and expressed great sorrow for doing so. The child riposted, after letting out a scream, “Madam, the agony has abated”. 6 These Commissioners concluded that the Draft Penal Code was sufficiently complete, and, with slight modifications, fit to be acted upon. The revised edition of the Penal Code was then forwarded to the Judges of the Supreme Court at Calcutta on 30.05.1851, and also to the Judges of the Sudder Court at Calcutta.

11. The revised edition of the Penal Code as prepared by Mr. Bethune, the Legislative member of the Legislative Council of India, together with the views of the Chief Justice and Mr. Justice Buller of the Supreme Court at Calcutta, as well as those of Mr. Justice Colvile were sent to the Company in London. The Court of Directors in London were anxious to see the Penal Code enacted as early as possible. They, therefore, constituted a Council in which Sir Barnes Peacock was made the fourth member.

12. This Council or Committee prepared a revised Penal Code which was then referred to a Select Committee in 1857. Given the Indian Mutiny of 1857, the Code was passed soon thereafter in October, 1860 and brought into force on 01.01.1862. Sir James Fitzjames Stephen proclaimed that: 7

Macaulay’s original draft read:-

Even in this most prudish of all periods of English history, Lord 10 Macaulay recognized a lesser sentence for the crime of “unnatural lust”, if performed with consent. Living in the era in which he lived, he clearly eschewed public discussion on this subject, stating:-

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 12 boys could be plain or ugly, which would have led to the truth of establishing the charge against Oscar Wilde. Rather than go on with the trial, Oscar Wilde hastily withdrew his action for defamation. But that was not the end. A prosecution under the Criminal Law Amendment Act of 1885 followed, in which Oscar Wilde was convicted and sent to jail for a period of two years. He never quite recovered, for after his jail sentence was served out, he died a broken and impoverished man in Paris at the early age of 46.3

23. The winds of change slowly blew over the British Isles and finally, post the Second World War, what is known as the Wolfenden Committee was appointed on 24.08.1954, inter alia to consider the law and practice relating to homosexual offences and the treatment of persons convicted of such offences by the courts. The Committee Report, even though it is of a vintage of September 1957, makes interesting reading. In paragraphs 31 and 32 of the Report, the Committee opined:-

“31. Even if it could be established that homosexuality were a disease, it is clear that many individuals, however their state is reached, present social rather than medical problems and must be dealt with by social, including penological, methods. This is especially relevant when the claim that homosexuality is an illness is taken to imply that its treatment should be a medical responsibility. Much more important than the academic question whether homosexuality is a disease is the practical question whether a doctor should carry out any part or all of the treatment. Psychiatrists deal regularly with problems of personality which are not regarded as diseases, and conversely the treatment of cases of recognized psychiatric illness may not be strictly medical but may best be carried out by non-medical supervision or environmental change. Examples would be certain cases of senile dementia or chronic schizophrenia which can best be managed at home. In fact, the treatment of behavior disorders, even when medically supervised, is rarely confined to psychotherapy or to treatment of a strictly medical kind. This is not to deny that expert advice should be sought in very many homosexual cases. We shall have something more to say on these matters in connection with the treatment of offenders.

32. The claim that homosexuality is an illness carries the further implication that the sufferer cannot help it and therefore carries a diminished responsibility for his actions. Even if it were accepted that homosexuality could properly be described as a “disease”, we should not accept this corollary. There are no prima facie grounds for supposing that because a particular person’s sexual propensity happens to lie in the direction of persons of his or her own sex it is any less controllable than that of those whose propensity is for persons of the opposite sex. We are informed that patients in mental hospitals, with few exceptions, show clearly 14 by their behavior that they can and do exercise a high degree of responsibility and self-control; for example, only a small minority need to be kept in locked wards. The existence of varying degrees of self-control is a matter of daily experience - the extent to which coughing can be controlled is an example - and the capacity for self-control can vary with the personality structure or with temporary physical or emotional conditions. The question which is important for us here is whether the individual suffers from a condition which causes diminished responsibility. This is a different question from the question whether he was responsible in the past for the causes or origins of his present condition. That is an interesting enquiry and may be of relevance in other connections; but our concern is with the behavior which flows from the individual’s present condition and with the extent to which he is responsible for that behavior, whatever may have been the causes of the condition from which it springs. Just as expert opinion can give valuable assistance in deciding on the appropriate ways of dealing with a convicted person, so can it help in assessing the additional factors that may affect his present responsibility?”

24. It then went on to note in paragraph 36 that the evidence before them showed that homosexuality existed in all levels of society and was prevalent in all trades and professions. In paragraph 53, the main arguments for retention of the existing law were set out. Insofar as societal health was concerned, the Committee rejected this for lack of evidence. It went on to state:-

25. Insofar as the damaging effects on family life were concerned, this was rejected by stating:-

26. And in rejecting the allegation that men indulging in such practices with other men may turn their attention to boys, the Committee said:-

27. Finally, the Committee stated:

arguments we have already advanced. There remains one additional counter-argument which we believe to be decisive, namely, the importance which society and the law ought to give to individual freedom of choice and action in matters of private morality. Unless a deliberate attempt is to be made by society, acting through the agency of the law, to equate the sphere of crime with that of sin, there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law’s business. To say this is not to condone or encourage private immorality. On the contrary, to emphasise the personal and private responsibility of the individual for his own actions, and that is a responsibility which a mature agent can properly be expected to carry for himself without the threat of punishment from the law.

62. We accordingly recommend that homosexual behaviour between consenting adults in private should no longer be a criminal offence.” 19

28. Change came slowly. It was only in 1967 that the Wolfenden Committee Report was acted upon by the British Parliament by enacting the Sexual Offences Act, 1967, which abolished penal offences involving consenting same-sex adults.

29. In 2017, the United Kingdom passed the Policing and Crimes Act which served as an amnesty law to pardon persons who were cautioned or convicted under legislations that outlawed homosexual acts.4 The Law in the United States

30. At the time that the United States achieved independence in 1776, the law in all the States insofar as same-sex offences were concerned, was the English law. This state of affairs continued until challenges were made in the last century to state statutes which criminalized sodomy. One such case, namely, Bowers v. Hardwick (“Bowers”), 92 L. Ed. 2d 140 (1986), reached the United States Supreme Court in the year 1986. By a 5:4 decision, the United States Supreme Court upheld a Georgia statute criminalizing sodomy and its 4 The impetus for this law was the prosecution of Alan Turing in 1952. Alan Turing was instrumental in cracking intercepted code messages that enabled the Allies to defeat Germany in many crucial engagements in the War. Turing accepted chemical castration treatment as an alternative to prison upon conviction, but committed suicide just before his 42nd birthday in 1954. 20 applicability to the commission of that act with another adult male in the bedroom of the respondent’s home. Justice White, who spoke for the majority of the Court, did this on several grounds.

31. First and foremost, he stated that there was no right to privacy that extended to homosexual sodomy. No connection between family, marriage, or procreation and homosexuality had been demonstrated to the court. The next ground for upholding such law was that proscriptions against such conduct had ancient roots. Stanley v. Georgia (“Stanley”), 22 L. Ed. 2d 542 (1969), where the Court held that the First Amendment prohibits conviction for possessing and reading obscene material in the privacy of one’s home, was brushed aside stating that Stanley itself recognized that its holding offered no protection for possession of drugs, firearms or stolen goods in the home. Therefore, such a claimed fundamental right could not possibly exist when adultery, incest and other sexual crimes are punished, even though they may be committed in the home. Another important rationale was that the Georgia law was based on a notion of morality, which is a choice that could 21 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:-

33. So much, then, for history and its “ancient roots”. Justice Blackmun’s dissent then went on to consider the famous judgment in Wisconsin v. Yoder, 32 L. Ed. 2d 15 (1972), in which the Court had upheld the fundamental right of the Amish community not to send their children to schools, stating that a way of life that is odd or even erratic but interferes with no rights or interests of others is not to be condemned because it is different. Referring to Judeo-Christian values, the Court said that the fact that certain religious groups condemn the behavior of sodomy gives the State no licence to impose their moral judgment on the entire citizenry of the United States. Ending with a John Stuart Mill type of analysis, the dissent stated:-

34. Justice Stevens, also in a powerfully worded dissent, specifically stated that the protection of privacy extends to intimate choices made by unmarried as well as married persons.

35. It took the United States 17 years to set aside this view of the law and to accept the dissenting judgments in Bowers (supra).

36. In Lawrence v. Texas, 539 U.S. 558 (2003), by a majority of 6:3, Justice Anthony Kennedy, speaking for the majority, set aside the judgment in Bowers (supra), accepting that the dissenting judgments in that case were correct. In a tilt at the history analysis of the majority judgment in Bowers (supra), the Court found that earlier sodomy laws were not directed at homosexuals at large, but instead sought to prohibit non-procreative sexual activity more generally, and were not enforced against consenting adults acting in private. After citing from Planned Parenthood of Southeastern Pa. v. Casey (“Casey”), 505 U.S. 833 (1992), the majority held – “our obligation is to define the liberty of all, not to mandate our own moral code.” The majority judgment then referred to a Model 24 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 5The majority’s decision echoes what had happened earlier in what is referred to as the celebrated flag salute case, namely, West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943). The U.S. Supreme Court had overruled its recent judgment in Minersville School District v. Gobitis, 310 U.S. 586 (1940). Justice Jackson speaking for the majority of the Court found:-

37. Before coming to our own judgments, we may quickly survey some of the judgments of the courts of other democratic nations. The European Community decisions, beginning with Dudgeon v. United Kingdom (supra) and continuing with Norris v. Ireland, Application no. 10581/83, and Modinos v. Cyprus, 16 EHRR 485 (1993), have all found provisions similar to Section 377 to be violative of Article 8 of the European Human Rights Convention, 1948 in which everyone has the right to respect for his private and family life, his home and his correspondence, and no interference can be made with these rights unless the law is necessary in a democratic society inter alia for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

38. In El-Al Israel Airlines Ltd. v. Jonathan Danielwitz, H.C.J. 721/94, the Supreme Court of Israel, speaking through 27 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:-

Thus, for example, we consider discrimination on the basis of race, religion, nationality, language, ethnic group and age to be particularly serious. In 29 this framework, the Israeli legal system attaches great importance to the need to guarantee equality between the sexes and to prevent discrimination on the basis of sex (see HCJ 153/87 Shakdiel v.

Minister of Religious Affairs [19]; Poraz v. Mayor of Tel Aviv-Jaffa [6]).” (Emphasis supplied)

39. An instructive recent judgment from Trinidad and Tobago in Jason Jones v. Attorney General of Trinidad and Tobago, Claim No. CV 2017-00720, followed our judgment in Puttaswamy (supra) in order to strike down Section 13 of the Sexual Offences Act, 1986 on the ground that the State cannot criminalise sexual relations of the same sex between consenting adults. The court concluded:-

do not counterbalance the claimant’s limit of his fundamental right of which he has given evidence. 30 Instead, the court accepts the claimant’s position that the law as it stands is not sufficiently important to justify limiting his fundamental rights and that he has proven it on a balance of probabilities.”

40. To similar effect is the judgment of the High Court of Fiji in Dhirendra Nadan v. State, Case No. HAA0085 of 2005, where a Section similar to Section 377 was held to be inconsistent with the constitutional right of privacy and invalid to the extent that the law criminalises acts constituting private consensual sexual conduct “against the course of nature” between adults.

41. The South African Supreme Court, by a decision of 1999 in The National Coalition for Gay and Lesbian Equality v. The Minister of Home Affairs, Case CCT 10/99, after referring to various judgments of other courts, also found a similar section to be inconsistent with the fundamental rights under its Constitution.

42. Another important decision is that of the United Nations Human Rights Committee in Toonen v. Australia, Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994), dated 31.03.1994. The Committee was called upon to determine whether Mr. Nicholas 31 Toonen, who resided in the state of Tasmania, had been the victim of arbitrary interference with his privacy, and whether he had been discriminated against on the basis of his sexual orientation of being a homosexual. The Committee found:-

Secondly, the Committee notes that no link has been shown between the continued criminalization of homosexual activity and the effective control of the spread of the HIV/AIDS virus.

XXX 8.7 The State party has sought the Committee's guidance as to whether sexual orientation may be considered an “other status” for the purposes of article 26. The same issue could arise under article 2 , paragraph 1, of the Covenant. The Committee confines itself to noting, however, that in its view the reference to "sex" in articles 2 , paragraph 1, and 26 is to be taken as including sexual orientation. XXX

10. Under article 2(3)(a) of the Covenant, the author, victim of a violation of articles 17 , paragraph 1, juncto 2, paragraph 1, of the Covenant, is entitled to a remedy. In the opinion of the Committee, an 33 effective remedy would be the repeal of Sections 122(a), (c) and 123 of the Tasmanian Criminal Code.”

43. As a result of these findings, the Australian Parliament, on 19.12.1994, passed the Human Rights (Sexual Conduct) Act, 1994, Section 4 of which reads as under:-

constitution enactment, namely, Section 30 of the Punjab Excise Act of 1914, which prohibited employment of any woman in any part of premises in which liquor is consumed by the public. Sinha, J. adverted to the fact that when the original 34 Act was enacted, the concept of equality between the two sexes was unknown. The Constitution changed all that when it enacted Articles 14 and 15. What is of importance is that when discrimination is made between two sets of persons, the classification must be founded on some rational criteria having regard to the societal conditions as they exist presently, and not as they existed in the early 20th century or even earlier. This was felicitously stated by the learned Judge as follows:-

The criteria which in absence of any constitutional provision and, it will bear repetition to state, having regard to the societal conditions as they prevailed in early 20th century, may not be a rational criteria in the 21st century. In the early 20th century, the hospitality sector was not open to women in general. In the last 60 years, women in India have gained entry in all spheres of public life. They have also been representing people at grass root democracy. They are now employed as drivers of heavy transport vehicles, conductors of service carriages, pilots, et. al. Women can be seen to be occupying Class IV posts to the post of a Chief Executive Officer of a Multinational Company. They 36 are now widely accepted both in police as also army services.”

45. The Court went on to hold that “proportionality” should be a standard capable of being called reasonable in a modern democratic society (See paragraph 36).

In a significant paragraph, the learned Judge held:-

46. The learned Judge then went on to further hold that the standard of judicial scrutiny of legislations, which on their face effect discrimination, is as follows:-

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:-

51. The Court’s task is to determine whether the measures furthered by the State in the form of legislative mandate, to augment the legitimate aim of protecting the interests of women are proportionate to the other bulk of well-settled gender norms such as autonomy, equality of opportunity, right to privacy, et al. The bottomline in this behalf would be a functioning modern democratic society which ensures freedom to pursue varied opportunities and options without discriminating on the basis of sex, race, caste or any other like basis. 38 In fine, there should be a reasonable relationship of proportionality between the means used and the aim pursued.”

48. The Section which had been struck down by the High Court was held to be arbitrary and unreasonable by this Court as well.

49. Close on the heels of this Court’s judgment in Suresh Kumar Koushal (supra) is this Court’s judgment in NALSA (supra). In this case, the Court had to grapple with the trauma, agony and pain of the members of the transgender community. The Court referred to Section 377 in the following words:

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:

51. Insofar as Articles 15 and 16 of the Constitution were concerned, the Court held:

52. Insofar as Article 19(1)(a) of the Constitution and transgenders were concerned, the Court held:

53. In a significant paragraph relating to the personal autonomy of an individual, this Court held:

54. The conclusion therefore was:-

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:-

56. And in paragraphs 125 and 129, he outlined the role of our Court as follows:-

Such rights are to be guaranteed to each and every human being. These TGs, even though insignificant in numbers, are still human beings and therefore they have every right to enjoy their human rights.”

57. In an unusual final order, the Court declared:-

58. Puttaswamy (supra) is the next important nail in the coffin of section 377 insofar as it pertains to consensual sex between same-sex adults. In this judgment, Chandrachud, J. referred approvingly to the NALSA (supra) judgment in paragraph 96 and went on to hold that privacy is intrinsic to freedom and liberty. In referring to Suresh Kumar Koushal (supra), Chandrachud, J. referred to the judgment as “another discordant note” which directly bears upon the evolution of constitutional jurisprudence on the right to privacy. Chandrachud, J. went on to castigate the judgment in Suresh Kumar Koushal (supra), and held:-

Naz Foundation, (2014) 1 SCC 1 : (2013) 4 SCC (Cri) 1] that the High Court had erroneously relied upon international precedents “in its anxiety to protect the so-called rights of LGBT persons” is similarly, in our view, unsustainable. The rights of the lesbian, gay, bisexual and transgender population cannot be construed to be “so-called rights”. The expression “so-called” seems to suggest the exercise of a liberty in the garb of a right which is illusory. This is an inappropriate construction of the privacy-based claims of the LGBT population. Their rights are not “so-called” but are real rights founded on sound constitutional doctrine. They inhere in the right to life. They dwell in privacy and dignity. They constitute the essence of liberty and freedom. Sexual orientation is an essential component of identity. Equal protection demands protection of the identity of every individual without discrimination.

146. The decision in Koushal [Suresh Kumar Koushal v. Naz Foundation , (2014) 1 SCC 1 :

The de minimis hypothesis is misplaced because the invasion of a fundamental right is not rendered tolerable when a few, as opposed to a large number of persons, are subjected to hostile treatment. The reason why such acts of hostile discrimination are constitutionally impermissible is because of the chilling effect which they have on the exercise of the fundamental right in the first place. For instance, pre-publication restraints such as censorship are vulnerable because they discourage people from exercising their right to free speech because of the fear of a restraint coming into operation. The chilling effect on the exercise of the right poses a grave danger to the unhindered fulfilment of one's sexual orientation, as an element of privacy and dignity. The chilling effect is due to the danger of a human being subjected to social opprobrium or disapproval, as reflected in the punishment of crime. Hence the Koushal [Suresh Kumar Koushal v. Naz Foundation , (2014) 1 SCC 1 : (2013) 4 SCC (Cri) 1] rationale that prosecution of a few is not an index of violation is flawed and cannot be accepted. Consequently, we disagree with the manner in which Koushal [Suresh Kumar Koushal v. Naz Foundation , (2014) 1 SCC 1 : (2013) 4 SCC (Cri) 1] has dealt with the privacy-dignity based claims of LGBT persons on this aspect.

147. Since the challenge to Section 377 is pending consideration before a larger Bench of this Court, we would leave the constitutional validity to be decided in an appropriate proceeding.” 48

59. In an important paragraph, the learned Judge finally held:

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:-

61. Kaul, J., in a separate judgment, also joined Chandrachud, J. in castigating Suresh Kumar Koushal’s judgment as follows:

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:

62. Close upon the heels of these three judgments are three other important recent decisions. In Common Cause v. Union of India , 2018 5 SCC 1, a case dealing with euthanasia, Dipak Misra, C.J., states as under:-

determination and individual autonomy.

168. John Rawls says that the liberal concept of autonomy focuses on choice and likewise, self- determination is understood as exercised through the process of choosing [Rawls, John, Political Liberalism, 32, 33 (New York: Columbia University Press, 1993)]. The respect for an individual human being and in particular for his right to choose how he should live his own life is individual autonomy or the right of self-determination. It is the right against non- interference by others, which gives a competent person who has come of age the right to make decisions concerning his or her own life and body without any control or interference of others. Lord Hoffman, in Reeves v. Commr. of Police of the Metropolis [Reeves v. Commr. of Police of the Metropolis, (2000) 1 AC 360 : (1993) 3 WLR 363 (HL)] has stated: (AC p. 369 B) “… Autonomy means that every individual is sovereign over himself and cannot be denied the right to certain kinds of behaviour, even if intended to cause his own death.” 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 55 that he/she does not wish to be treated, then such directive has to be given effect to.”

63. In the same case, Chandrachud J. went on to hold:

The recognition afforded to the autonomy of the individual in matters relating to end-of-life decisions 56 is ultimately a step towards ensuring that life does not despair of dignity as it ebbs away.

441. The protective mantle of privacy covers certain decisions that fundamentally affect the human life cycle. [Richard Delgado, “Euthanasia Reconsidered—The Choice of Death as an Aspect of the Right of Privacy”, Arizona Law Review (1975), Vol. 17, at p. 474.] It protects the most personal and intimate decisions of individuals that affect their life and development. [Ibid.] Thus, choices and decisions on matters such as procreation, contraception and marriage have been held to be protected. While death is an inevitable end in the trajectory of the cycle of human life of individuals are often faced with choices and decisions relating to death. Decisions relating to death, like those relating to birth, sex, and marriage, are protected by the Constitution by virtue of the right of privacy. The right to privacy resides in the right to liberty and in the respect of autonomy. [T.L. Beauchamp, “The Right to Privacy and the Right to Die”, Social Philosophy and Policy (2000), Vol. 17, at p. 276.] The right to privacy protects autonomy in making decisions related to the intimate domain of death as well as bodily integrity. Few moments could be of as much importance as the intimate and private decisions that we are faced regarding death. [Ibid.] Continuing treatment against the wishes of a patient is not only a violation of the principle of informed consent, but also of bodily privacy and bodily integrity that have been recognised as a facet of privacy by this Court.”

64. Similarly, in Shafin Jahan v. Asokan K.M. , 2018 SCC Online 343, this Court was concerned with the right of an adult 57 citizen to make her own marital choice. The learned Chief Justice referred to Articles 19 and 21 of the Constitution of India as follows:-

Choosing a faith is the substratum of individuality and sans it, the right of choice becomes a shadow. It has to be remembered that the realization of a right is more important than the conferment of the right. Such actualization indeed ostracises any kind of societal notoriety and keeps at bay the patriarchal supremacy. It is so because the individualistic faith and expression of choice are fundamental for the fructification of the right. Thus, we would like to call it indispensable preliminary condition.”

65. In another recent judgment of a three-Judge Bench, in Shakti Vahini v. Union of India , 2018 SCC Online SC 275, which dealt with honour killings, this Court held:-

66. Parliament is also alive to privacy interests and the fact that persons of the same-sex who cohabit with each other are entitled to equal treatment.

67. A recent enactment, namely the Mental Healthcare Act, 2017 , throws a great deal of light on recent parliamentary legislative understanding and acceptance of constitutional values as reflected by this Court’s judgments. Section 2(s) of the Act defines mental illness, which reads as under:

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:

In one of the first rigorous examinations of the mental health status of homosexuality, Dr. Evelyn Hooker administered a battery of standard psychological tests to homosexual and heterosexual men who were matched for age, IQ, and education. See Evelyn Hooker, The Adjustment of the Male Overt Homosexual, 21 J. Projective Techniques 17- 31 (1957). None of the men was in therapy at the time of the study. Based on the ratings of expert judges who were kept unaware of the men’s sexual orientation, Hooker determined that homosexual and heterosexual men could not be distinguished from one another on the basis of the psychological testing, and that a similar majority of the two groups appeared to be free of psychopathology. She concluded from her data that homosexuality is not inherently associated with psychopathology and that “homosexuality as a clinical entity does not exist.” Id. at 18-19. Hooker’s findings were followed over the next two decades by numerous studies, using a variety of research techniques, which similarly concluded that homosexuality is not related to psychopathology or social maladjustment.

In 1973, in recognition that scientific data do not indicate that a homosexual orientation is inherently associated with psychopathology, amicus American Psychiatric Association’s Board of Trustees voted to remove homosexuality from the Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders. That resolution stated that “homosexuality per se implies no impairment in 63 judgment, stability, reliability, or general social or vocational capabilities.” Am. Psychiatric Ass’n, Position Statement on Homosexuality and Civil Rights (Dec. 15, 1973), printed in 131 Am. J.

Psychiatry 497 (1974). That decision was upheld by a vote of the Psychiatric Association’s membership the following year. After a thorough review of the scientific evidence, amicus American Psychological Association adopted the same position in 1975, and urged all mental health professionals to help dispel the stigma of mental illness that had long been associated with homosexual orientation. See Am. Psychol. Ass’n, Minutes of the Annual Meeting of the Council of Representatives, 30 Am.

Psychologist 620, 633 (1975). Amicus National Association of Social Workers (NASW) has adopted a similar policy. See NASW, Policy Statement on Lesbian and Gay Issues (Aug. 1993) (approved by NASW Delegate Assembly), reprinted in NASW, Social Work Speaks: NASW Policy Statements 162 (3d ed. 1994).

Of course, as is the case for heterosexuals, some homosexuals have mental illnesses, psychological disturbances, or poor social adjustment. Gay men, lesbians, and bisexuals also may be at somewhat greater risk for some kinds of psychological problems because of stresses associated with the experiences of social stigma and prejudice (see pp. 23-27, infra). But research conducted over four decades has established that “homosexuality in and of itself bears no necessary relationship to psychological adjustment.” The efforts to “cure” homosexuality that were prevalent in earlier generations—which included hypnosis, administration of hormones, aversive conditioning with electric shock or nausea-inducing drugs, lobotomy, electroshock, and castration—are now regarded by the mental-health professions as regrettable.” 64

69. It also outlined the prejudice, discrimination and violence that has been encountered by gay people, as follows:

70. Expressing its approval of the position taken by the American Psychiatric Association, the Indian Psychiatric Society in its recent Position Statement on Homosexuality dated 02.07.2018 has stated:-

This is in line with the position of American Psychiatric Association and The International Classification of Diseases of the World health Organization which removed homosexuality from the list of psychiatric disorders in 1973 and 1992 respectively.

The I.P.S recognizes same-sex sexuality as a normal variant of human sexuality much like heterosexuality and bisexuality. There is no scientific evidence that sexual orientation can be altered by any treatment and that any such attempts may in fact lead to low self-esteem and stigmatization of the person.

The Indian Psychiatric Society further supports de- criminalization of homosexual behavior.”

71. The US Supreme Court, in its decision in Obergefell et al. v. Hodges, Director, Ohio Department of Health, et al., 576 US (2015), also took note of the enormous sufferings of homosexual persons in the time gap between Bowers (supra) and Lawrence v. Texas (supra), in the following words:-

Further, this is buttressed by Section 3 of the Act which reads as follows:-

Under Section 3(3) , mental illness shall not be determined on the basis of social status or membership of a cultural group or for any other reason not directly relevant to the mental health of 69 the person. More importantly, mental illness shall not be determined on the basis of non-conformity with moral, social, cultural, work or political values or religious beliefs prevailing in a person’s community. It is thus clear that Parliament has unequivocally declared that the earlier stigma attached to same-sex couples, as persons who are regarded as mentally ill, has gone for good. This is another very important step forward taken by the legislature itself which has undermined one of the basic underpinnings of the judgment in Suresh Kumar Koushal (supra).

Section 21(1)(a) is important and set out hereinbelow:

“115. Presumption of severe stress in case of attempt to commit suicide. (1) Notwithstanding anything contained in section 309 of the Indian Penal Code any person who attempts to commit suicide shall be presumed, unless proved otherwise, to have severe stress and shall not be tried and punished under the said Code.

(2) The appropriate Government shall have a duty to provide care, treatment and rehabilitation to a person, having severe stress and who attempted to 71 commit suicide, to reduce the risk of recurrence of attempt to commit suicide.”

76. Instead of the inhumane Section 309 which has remained on the statute book for over 150 years, Section 115 makes it clear that Section 309 is rendered largely ineffective, and on the contrary, instead of committing a criminal offence, any person who attempts to commit suicide shall be presumed to have severe stress and shall not be tried and punished under Section 309 of the Indian Penal Code. More importantly, the Government has an affirmative duty to provide care, treatment and rehabilitation to such a person to reduce the risk of recurrence of that person’s attempt to commit suicide. This parliamentary declaration under Section 115 again is in keeping with the present constitutional values, making it clear that humane measures are to be taken by the Government in respect of a person who attempts to commit suicide instead of prosecuting him for the offence of attempt to commit suicide.

77. And finally, Section 120 of the Act reads as under:-

78. The Latin maxim cessant ratione legis, cessat ipsa lex, meaning when the reason for a law ceases, the law itself ceases, is a rule of law which has been recognized by this Court in H.H. Shri Swamiji of Shri Amar Mutt v.

Commissioner, Hindu Religious and Charitable Endowments Dept, 1979 4 SCC 642 at paragraph 29, and State of Punjab v. Devans Modern Breweries Ltd. , (2004) 11 SCC 26 at paragraph 335. It must not be forgotten that Section 377 was the product of the Victorian era, with its attendant puritanical moral values. Victorian morality must give way to constitutional morality as has been recognized in many of our judgments. Constitutional morality is the soul of the Constitution, which is to be found in the Preamble of the Constitution, which declares its ideals and aspirations, and is also to be found in Part III of the Constitution, particularly with respect to those provisions which assure the dignity of the individual. The rationale for Section 377, namely Victorian morality, has long gone and there is no reason to continue with 73

- as Justice Holmes said in the lines quoted above in this judgment - a law merely for the sake of continuing with the law when the rationale of such law has long since disappeared.

79. Given our judgment in Puttaswamy (supra), in particular, the right of every citizen of India to live with dignity and the right to privacy including the right to make intimate choices regarding the manner in which such individual wishes to live being protected by Articles 14 , 19 and 21 , it is clear that Section 377, insofar as it applies to same-sex consenting adults, demeans them by having them prosecuted instead of understanding their sexual orientation and attempting to correct centuries of the stigma associated with such persons.

80. The Union of India, seeing the writing on the wall, has filed an affidavit in which it has not opposed the Petitioners but left the matter to be considered by the wisdom of this Court. Some of the intervenors have argued in favour of the retention of Section 377 qua consenting adults on the grounds that homosexual acts are not by themselves proscribed by Section

377. Unless there is penetration in the manner pointed out by the explanation to the Section, no offence takes place. They 74 have also added that the Section needs to be retained given the fact that it is only a parliamentary reflection of the prevailing social mores of today in large segments of society. According to them, this furthers a compelling state interest to reinforce morals in public life which is not disproportionate in nature. We are afraid that, given the march of events in constitutional law by this Court, and parliamentary recognition of the plight of such persons in certain provisions of the Mental Healthcare Act, 2017 , it will not be open for a constitutional court to substitute societal morality with constitutional morality, as has been stated by us hereinabove. Further, as stated in S. Khushboo v. Kanniammal and Anr. , (2010) 5 SCC 600, at paragraphs 46 and 50, this Court made it clear that notions of social morality are inherently subjective and the criminal law cannot be used as a means to unduly interfere with the domain of personal autonomy. Morality and criminality are not co-extensive - sin is not punishable on earth by Courts set up by the State but elsewhere; crime alone is punishable on earth. To confuse the one with the other is what causes the death knell of Section 377, insofar as it applies to consenting homosexual adults. 75

81. Another argument raised on behalf of the intervenors is that change in society, if any, can be reflected by amending laws by the elected representatives of the people. Thus, it would be open to the Parliament to carve out an exception from Section 377, but this Court should not indulge in taking upon itself the guardianship of changing societal mores. Such an argument must be emphatically rejected. The very purpose of the fundamental rights chapter in the Constitution of India is to withdraw the subject of liberty and dignity of the individual and place such subject beyond the reach of majoritarian governments so that constitutional morality can be applied by this Court to give effect to the rights, among others, of ‘discrete and insular’ minorities.6 One such minority has knocked on the doors of this Court as this Court is the custodian of the fundamental rights of citizens. These fundamental rights do not depend upon the outcome of elections. And, it is not left to majoritarian governments to prescribe what shall be orthodox in matters concerning social morality. The fundamental rights chapter is like the north star in the universe of constitutionalism 6 This phrase occurs in one of the most celebrated footnotes in the US Supreme Court’s constitutional history – namely, Footnote 4 of United States v. Carolene Products Co., 304 U.S. 144 (1938). 76 in India.7 Constitutional morality always trumps any imposition of a particular view of social morality by shifting and different majoritarian regimes.

82. Insofar as Article 14 is concerned, this Court in Shayara Bano v. Union of India , (2017) 9 SCC 1, has stated, in paragraph 101, that a statutory provision can be struck down on the ground of manifest arbitrariness, when the provision is capricious, irrational and/or without adequate determining principle, as also if it is excessive or disproportionate. We find that Section 377, in penalizing consensual gay sex, is manifestly arbitrary. Given modern psychiatric studies and legislation which recognizes that gay persons and transgenders are not persons suffering from mental disorder and cannot therefore be penalized, the Section must be held to be a provision which is capricious and irrational. Also, roping in such persons with sentences going upto life imprisonment is clearly excessive and disproportionate, as a result of which, when applied to such persons, Articles 14 and 21 of the Constitution 7 In William Shakespeare’s Julius Caesar (Act III, Scene 1), Caesar tells Cassius-

“I could be well moved, if I were as you;

If I could pray to move, prayers would move me:

States shall:

2. The rights to equality and non-

discrimination.—Everyone is entitled to enjoy all human rights without discrimination on the basis of sexual orientation or gender identity. Everyone is entitled to equality before the law and the equal protection of the law without any such discrimination whether or not the enjoyment of another human right is also affected. The law shall prohibit any such discrimination and guarantee to all persons equal and effective protection against any such discrimination.

Discrimination on the basis of sexual orientation or gender identity includes any distinction, exclusion, restriction or preference based on sexual orientation or gender identity which has the purpose or effect of nullifying or impairing equality before the law or the equal protection of the law, or the recognition, enjoyment or exercise, on an equal basis, of all human rights and fundamental freedoms.

Discrimination based on sexual orientation or gender identity may be, and commonly is, compounded by discrimination on other grounds including gender, race, age, religion, disability, health and economic status.

States shall:

discrimination on the basis of sexual orientation and gender identity in their national constitutions or other appropriate legislation, if not yet incorporated therein, including by means of amendment and 81 interpretation, and ensure the effective realisation of these principles;

(b) repeal criminal and other legal provisions that prohibit or are, in effect, employed to prohibit consensual sexual activity among people of the same-sex who are over the age of consent, and ensure that an equal age of consent applies to both same-sex and different-sex sexual activity;

(c) adopt appropriate legislative and other measures to prohibit and eliminate discrimination in the public and private spheres on the basis of sexual orientation and gender identity;

(d) take appropriate measures to secure adequate advancement of persons of diverse sexual orientations and gender identities as may be necessary to ensure such groups or individuals equal enjoyment or exercise of human rights. Such measures shall not be deemed to be discriminatory;

(e) in all their responses to discrimination on the basis of sexual orientation or gender identity, take account of the manner in which such discrimination may intersect with other forms of discrimination;

(f) take all appropriate action, including programmes of education and training, with a view to achieving the elimination of prejudicial or discriminatory attitudes or behaviours which are related to the idea of the inferiority or the superiority of any sexual orientation or gender identity or gender expression.

3. The right to recognition before the law.— Everyone has the right to recognition everywhere as a person before the law. Persons of diverse sexual orientations and gender identities shall enjoy legal capacity in all aspects of life. Each person's self- defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom. No one shall be forced to undergo medical procedures, including sex reassignment surgery, 82 sterilisation or hormonal therapy, as a requirement for legal recognition of their gender identity. No status, such as marriage or parenthood, may be invoked as such to prevent the legal recognition of a person's gender identity. No one shall be subjected to pressure to conceal, suppress or deny their sexual orientation or gender identity.

States shall:

4. The right to life.—Everyone has the right to life. No one shall be arbitrarily deprived of life, including by reference to considerations of sexual orientation or gender identity. The death penalty shall not be imposed on any person on the basis of consensual sexual activity among persons who are over the age of consent or on the basis of sexual orientation or gender identity.

States shall:

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 84 reputation. The right to privacy ordinarily includes the choice to disclose or not to disclose information relating to one's sexual orientation or gender identity, as well as decisions and choices regarding both one's own body and consensual sexual and other relations with others.

States shall:

18. Protection from medical abuses.—No person may be forced to undergo any form of medical or psychological treatment, procedure, testing, or be confined to a medical facility, based on sexual orientation or gender identity. Notwithstanding any classifications to the contrary, a person's sexual orientation and gender identity are not, in and of themselves, medical conditions and are not to be treated, cured or suppressed.

States shall:

assistance nature, which may promote, facilitate or in any other way render possible such abuses;

(f) ensure that any medical or psychological treatment or counselling does not, explicitly or implicitly, treat sexual orientation and gender identity as medical conditions to be treated, cured or suppressed.

19. The right to freedom of opinion and expression.— Everyone has the right to freedom of opinion and expression, regardless of sexual orientation or gender identity. This includes the expression of identity or personhood through speech, deportment, dress, bodily characteristics, choice of name, or any other means, as well as the freedom to seek, receive and impart information and ideas of all kinds, including with regard to human rights, sexual orientation and gender identity, through any medium and regardless of frontiers. States shall:

discriminatory in respect of issues of sexual orientation and gender identity and that the personnel recruitment and promotion policies of 87 such organisations are non-discriminatory on the basis of sexual orientation or gender identity;

(c) take all necessary legislative, administrative and other measures to ensure the full enjoyment of the right to express identity or personhood, including through speech, deportment, dress, bodily characteristics, choice of name or any other means;

(d) ensure that notions of public order, public morality, public health and public security are not employed to restrict, in a discriminatory manner, any exercise of freedom of opinion and expression that affirms diverse sexual orientations or gender identities;

(e) ensure that the exercise of freedom of opinion and expression does not violate the rights and freedoms of persons of diverse sexual orientations and gender identities;

(f) ensure that all persons, regardless of sexual orientation or gender identity, enjoy equal access to information and ideas, as well as to participation in public debate.” (Emphasis supplied)

88. These principles give further content to the fundamental rights contained in Articles 14 , 15 , 19 and 21 , and viewed in the light of these principles also, Section 377 will have to be declared to be unconstitutional.

89. Given the aforesaid, it has now to be decided as to whether the judgment in Suresh Kumar Koushal (supra) is correct. Suresh Kumar Koushal’s judgment (supra) first begins with the presumption of constitutionality attaching to pre- 88 constitutional laws, such as the Indian Penal Code . The judgment goes on to state that pre-constitutional laws, which have been adopted by Parliament and used with or without amendment, being manifestations of the will of the people of India through Parliament, are presumed to be constitutional. We are afraid that we cannot agree.

90. Article 372 of the Constitution of India continues laws in force in the territory of India immediately before the commencement of the Constitution. That the Indian Penal Code is a law in force in the territory of India immediately before the commencement of this Constitution is beyond cavil. Under Article 372(2) , the President may, by order, make such adaptations and modifications of an existing law as may be necessary or expedient to bring such law in accord with the provisions of the Constitution. The fact that the President has not made any adaptation or modification as mentioned in Article 372(2) does not take the matter very much further. The presumption of constitutionality of a statute is premised on the fact that Parliament understands the needs of the people, and that, as per the separation of powers doctrine, Parliament is 89 aware of its limitations in enacting laws – it can only enact laws which do not fall within List II of Schedule VII of the Constitution of India, and cannot transgress the fundamental rights of the citizens and other constitutional provisions in doing so. Parliament is therefore deemed to be aware of the aforesaid constitutional limitations. Where, however, a pre-constitution law is made by either a foreign legislature or body, none of these parameters obtain. It is therefore clear that no such presumption attaches to a pre-constitutional statute like the Indian Penal Code . In fact, in the majority judgment of B.P. Jeevan Reddy, J. in New Delhi Municipal Council v. State of Punjab and Ors., (1997) 7 SCC 339, the Punjab Municipal Act of 1911 was deemed to be a post-constitutional law inasmuch as it was extended to Delhi only in 1950, as a result of which the presumption of constitutionality was raised. Ahmadi, C.J.’s dissenting opinion correctly states that if a pre-constitutional law is challenged, the presumption of constitutional validity would not obtain. The relevant paragraph is extracted below:-

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 91 challenge the Delhi High Court judgment striking down the provision in part. Secondly, the fact that Parliament may or may not have chosen to follow a Law Commission Report does not guide the Court’s understanding of its character, scope, ambit and import as has been stated in Suresh Kumar Koushal (supra). It is a neutral fact which need not be taken into account at all. All that the Court has to see is whether constitutional provisions have been transgressed and if so, as a natural corollary, the death knell of the challenged provision must follow.

93. It is a little difficult to appreciate the Court stating that the ambit of Section 377 IPC is only determined with reference to the sexual act itself and the circumstances in which it is executed. It is also a little difficult to appreciate that Section 377 regulates sexual conduct regardless of gender identity and orientation.

94. After 2013, when Section 375 was amended so as to include anal and certain other kinds of sexual intercourse between a man and a woman, which would not be criminalized as rape if it was between consenting adults, it is clear that if 92 Section 377 continues to penalize such sexual intercourse, an anomalous position would result. A man indulging in such sexual intercourse would not be liable to be prosecuted for rape but would be liable to be prosecuted under Section 377. Further, a woman who could, at no point of time, have been prosecuted for rape would, despite her consent, be prosecuted for indulging in anal or such other sexual intercourse with a man in private under Section 377. This would render Section 377, as applied to such consenting adults, as manifestly arbitrary as it would be wholly excessive and disproportionate to prosecute such persons under Section 377 when the legislature has amended one portion of the law in 2013, making it clear that consensual sex, as described in the amended provision, between two consenting adults, one a man and one a woman, would not be liable for prosecution. If, by having regard to what has been said above, Section 377 has to be read down as not applying to anal and such other sex by a male-female couple, then the Section will continue to apply only to homosexual sex. If this be the case, the Section will offend Article 14 as it will discriminate between heterosexual and 93 homosexual adults which is a distinction which has no rational relation to the object sought to be achieved by the Section - namely, the criminalization of all carnal sex between homosexual and/or heterosexual adults as being against the order of nature.8 Viewed either way, the Section falls foul of Article 14.

95. The fact that only a minuscule fraction of the country’s population constitutes lesbians and gays or transgenders, and that in the last 150 years less than 200 persons have been prosecuted for committing the offence under Section 377, is neither here nor there. When it is found that privacy interests come in and the State has no compelling reason to continue an existing law which penalizes same-sex couples who cause no harm to others, on an application of the recent judgments delivered by this Court after Suresh Kumar Koushal (supra), it is clear that Articles 14 , 15 , 19 and 21 have all been transgressed without any legitimate state rationale to uphold such provision.

8 An argument was made by the Petitioners that Section 377, being vague and unintelligible, should be struck down on this ground as it is not clear as to what is meant by “against the order of nature”. Since Section 377 applies down the line to carnal sex between human beings and animals as well, which is not the subject matter of challenge here, it is unnecessary to go into this ground as the Petitioners have succeeded on other grounds raised by them.

96. For all these reasons therefore, we are of the view that, Suresh Kumar Koushal (supra) needs to be, and is hereby, overruled.

97. We may conclude by stating that persons who are homosexual have a fundamental right to live with dignity, which, in the larger framework of the Preamble of India, will assure the cardinal constitutional value of fraternity that has been discussed in some of our judgments (See ( 1) Nandini Sundar v. State of Chhattisgarh , (2011) 7 SCC 547 at paragraphs 16, 25 and 52; and ( 2) Subramaniam Swamy v. Union of India (2016) 7 SCC 221 at paragraphs 153 to 156). We further declare that such groups are entitled to the protection of equal laws, and are entitled to be treated in society as human beings without any stigma being attached to any of them. We further declare that Section 377 insofar as it criminalises homosexual sex and transgender sex between consenting adults is unconstitutional.

98. We are also of the view that the Union of India shall take all measures to ensure that this judgment is given wide publicity through the public media, which includes television, radio, print and online media at regular intervals, and initiate programs to 95 reduce and finally eliminate the stigma associated with such persons. Above all, all government officials, including and in particular police officials, and other officers of the Union of India and the States, be given periodic sensitization and awareness training of the plight of such persons in the light of the observations contained in this judgment.

……………………………..J. (R.F. Nariman) New Delhi;

September 06, 2018.

E Beyond physicality: sex, identity and stereotypes E.I Facial neutrality: through the looking glass E.2 Deconstructing the polarities of binary genders F Confronting the closet F.I Sexual privacy and autonomy- deconstructing the heteronormative framework F.2 A right to intimacy- celebration of sexual agency G Section 377 and the right to health G.I Section 377 and HIV prevention efforts G.2 Mental health H Judicial review I India’s commitments at International Law J Transcending borders - comparative law K Crime, morality and the Constitution L Constitutional morality M In summation : transformative constitutionalism 4 PART A Dr Dhananjaya Y Chandrachud, J A From denial to freedom “What makes life meaningful is love. The right that makes us human is the right to love. To criminalize the expression of that right is profoundly cruel and inhumane. To acquiesce in such criminalization, or worse, to recriminalize it, is to display the very opposite of compassion. To show exaggerated deference to a majoritarian Parliament when the matter is one of fundamental rights is to display judicial pusillanimity, for there is no doubt, that in the constitutional scheme, it is the judiciary that is the ultimate interpreter.”1 1 The lethargy of the law is manifest yet again.

2 A hundred and fifty eight years ago, a colonial legislature made it criminal, even for consenting adults of the same gender, to find fulfillment in love. The law deprived them of the simple right as human beings to live, love and partner as nature made them. The human instinct to love was caged by constraining the physical manifestation of their sexuality. Gays and lesbians2 were made subordinate to the authority of a coercive state. A charter of morality made their relationships hateful. The criminal law became a willing instrument of repression. To engage in ‘carnal intercourse’ against ‘the order of nature’ risked being tucked away for ten years in a jail. The offence would 1 Justice Leila Seth, “A mother and a judge speaks out on Section 377”, The Times of India, 26 January, 2014. 2 These terms as well as terms such as “LGBT” and “LGBTIQ” used in the judgement are to be construed in an inclusive sense to include members of all gender and sexual minorities, whose sexual activity is criminalized by the application of Section 377 of the Indian Penal Code, 1860. 5 PART A be investigated by searching the most intimate of spaces to find tell-tale signs of intercourse. Civilisation has been brutal. 3 Eighty seven years after the law was made, India gained her liberation from a colonial past. But Macaulay’s legacy - the offence under Section 377 of the Penal Code - has continued to exist for nearly sixty eight years after we gave ourselves a liberal Constitution. Gays and lesbians, transgenders and bisexuals continue to be denied a truly equal citizenship seven decades after Independence. The law has imposed upon them a morality which is an anachronism. Their entitlement should be as equal participants in a society governed by the morality of the Constitution. That in essence is what Section 377 denies to them. The shadows of a receding past confront their quest for fulfillment.

4 Section 377 exacts conformity backed by the fear of penal reprisal. There is an unbridgeable divide between the moral values on which it is based and the values of the Constitution. What separates them is liberty and dignity. We must, as a society, ask searching questions to the forms and symbols of injustice. Unless we do that, we risk becoming the cause and not just the inheritors of an unjust society. Does the Constitution allow a quiver of fear to become the quilt around the bodies of her citizens, in the intimacies which 6 PART A define their identities? If there is only one answer to this question, as I believe there is, the tragedy and anguish which Section 377 inflicts must be remedied. 5 The Constitution brought about a transfer of political power. But it reflects above all, a vision of a society governed by justice. Individual liberty is its soul. The constitutional vision of justice accommodates differences of culture, ideology and orientation. The stability of its foundation lies in its effort to protect diversity in all its facets: in the beliefs, ideas and ways of living of her citizens. Democratic as it is, our Constitution does not demand conformity. Nor does it contemplate the mainstreaming of culture. It nurtures dissent as the safety valve for societal conflict. Our ability to recognise others who are different is a sign of our own evolution. We miss the symbols of a compassionate and humane society only at our peril. Section 377 provides for rule by the law instead of the rule of law. The rule of law requires a just law which facilitates equality, liberty and dignity in all its facets. Rule by the law provides legitimacy to arbitrary state behaviour. 6 Section 377 has consigned a group of citizens to the margins. It has been destructive of their identities. By imposing the sanctions of the law on consenting adults involved in a sexual relationship, it has lent the authority of 7 PART B the state to perpetuate social stereotypes and encourage discrimination. Gays, lesbians, bisexuals and transgenders have been relegated to the anguish of closeted identities. Sexual orientation has become a target for exploitation, if not blackmail, in a networked and digital age. The impact of Section 377 has travelled far beyond the punishment of an offence. It has been destructive of an identity which is crucial to a dignified existence. 7 It is difficult to right the wrongs of history. But we can certainly set the course for the future. That we can do by saying, as I propose to say in this case, that lesbians, gays, bisexuals and transgenders have a constitutional right to equal citizenship in all its manifestations. Sexual orientation is recognised and protected by the Constitution. Section 377 of the Penal Code is unconstitutional in so far as it penalises a consensual relationship between adults of the same gender. The constitutional values of liberty and dignity can accept nothing less.

an affidavit. The Union government states that it leaves a decision on the 8 PART B validity of Section 377 ‘to the wisdom of this Court’. Implicit in this is that the government has no view of its own on the subject and rests content to abide by the decision of this Court. During the parleys in Court, the ASG however submitted that the court should confine itself to the reference by ruling upon the correctness of Suresh Kumar Koushal v. Naz Foundation3 (“Koushal” ). 9 We would have appreciated a categorical statement of position by the government, setting out its views on the validity of Section 377 and on the correctness of Koushal. The ambivalence of the government does not obviate the necessity for a judgment on the issues raised. The challenge to the constitutional validity of Section 377 must squarely be addressed in this proceeding. That is plainly the duty of the Court. Constitutional issues are not decided on concession. The statement of the Union government does not concede to the contention of the petitioners that the statutory provision is invalid. Even if a concession were to be made, that would not conclude the matter for this Court. All that the stand of the government indicates is that it is to the ‘wisdom’ of this Court that the matter is left. In reflecting upon this appeal to our wisdom, it is just as well that we as judges remind ourselves of a truth which can unwittingly be forgotten: flattery is a graveyard for the gullible. 3 (2014) 1 SCC 1 9 PART B 10 Bereft of a submission on behalf of the Union government on a matter of constitutional principle these proceedings must be dealt with in the only manner known to the constitutional court: through an adjudication which fulfills constitutional values and principles.

11 The ASG made a fair submission when he urged that the court should deal with the matter in reference. The submission, to its credit, would have the court follow a path of prudence. Prudence requires, after all, that the Court should address itself to the controversy in the reference without pursuing an uncharted course beyond it. While accepting the wisdom of the approach suggested by the ASG, it is nonetheless necessary to make some prefatory observations on the scope of the reference.

12 The correctness of the decision in Koushal is in question. Koushal [as indeed the decision of the Delhi High Court in Naz Foundation v. Government of NCT of Delhi4 (“Naz” )] dealt with the validity of Section 377 which criminalizes even a consensual relationship between adults of the same gender who engage in sexual conduct (‘carnal intercourse against the order of nature’). In dealing with the validity of the provision, it is necessary to understand the nature of the constitutional right which LGBT individuals claim. 4(2010) Cri LJ 94 10 PART B According to them, the right to be in a relationship with a consenting adult of the same gender emanates from the right to life, as a protected value under the Constitution. They ground their right on the basis of an identity resting in their sexual orientation. According to them, their liberty and dignity require both an acknowledgement as well as a protection under the law, of their sexual orientation. Representing their identity, based on sexual orientation, to the world at large and asserting it in their relationship with the community and the state is stated to be intrinsic to the free exercise of speech and expression guaranteed by the Constitution. Sexual orientation is claimed to be intrinsic to the guarantee against discrimination on the ground of sex. The statutory provision, it has been asserted, also violates the fundamental guarantee against arbitrariness because it unequally targets gay men whose sexual expression falls in the area prohibited by Section 377. 13 In answering the dispute in regard to the validity of Section 377, the court must of necessity understand and explain in a constitutional perspective, the nature of the right which is claimed. The challenge to Section 377 has to be understood from the perspective of a rights discourse. While doing so, it becomes necessary to understand the constitutional source from which the claim emerges. When a right is claimed to be constitutionally protected, it is but necessary for the court to analyze the basis of that assertion. Hence, in 11 PART C answering the reference, it is crucial for the court to place the entitlement of the LGBT population in a constitutional framework. We have approached the matter thus far from the perspective of constitutional analysis. But there is a more simple line of reasoning as well, grounded as we believe, in common- sense. Sexual acts between consenting adults of the same gender constitute one facet – albeit an important aspect – of the right asserted by gay men to lead fulfilling lives. Gay and lesbian relationships are sustained and nurtured in every aspect which makes for a meaningful life. In understanding the true nature of those relationships and the protection which the Constitution affords to them, it is necessary to adopt a perspective which leads to their acceptance as equal members of a humane and compassionate society. Forming a holistic perspective requires the court to dwell on, but not confine itself, to sexuality. Sexual orientation creates an identity on which there is a constitutional claim to the entitlement of a dignified life. It is from that broad perspective that the constitutional right needs to be adjudicated.

intercourse against the order of nature’ an offence. This provision, understood as prohibiting non-peno vaginal intercourse, reflects the imposition of a particular set of morals by a colonial power at a particular point in history. A supposedly alien law,6 Section 377 has managed to survive for over 158 years, impervious to both the anticolonial struggle as well as the formation of a democratic India, which guarantees fundamental rights to all its citizens. An inquiry into the colonial origins of Section 377 and its postulations about sexuality is useful in assessing the relevance of the provision in contemporary times.7 15 Lord Thomas Babington Macaulay, Chairman of the First Law Commission of India and principal architect of the IPC , cited two main sources from which he drew in drafting the Code: the French (Napoleonic) Penal Code, 1810 and Edward Livingston’s Louisiana Code.8 Lord Macaulay also 5 Lyrics from Leonard Cohen’s song “Democracy” (1992). 6 See Same-Sex Love in India: A Literary History (Ruth Vanita and Saleem Kidwai, eds.), Penguin India (2008) for writings spanning over more than 2,000 years of Indian literature which demonstrate that same-sex love has flourished, evolved and been embraced in various forms since ancient times. 7 Law like Love: Queer Perspectives on Law (Arvind Narrain and Alok Gupta, eds.), Yoda Press (2011). 8 K. N. Chandrasekharan Pillai and Shabistan Aquil, “Historical Introduction to the Indian Penal Code ”, in Essays on the Indian Penal Code , New Delhi, Indian Law Institute (2005); Siyuan Chen, “Codification, Macaulay and the Indian Penal Code [Book Review], Singapore Journal of Legal Studies, National University of Singapore, Faculty of Law (2011), at pages 581-584.

13 PART C drew inspiration from the English common law and the British Royal Commission’s 1843 Draft Code.9 Tracing that origin, English jurist Fitzjames Stephen observes:

9 Douglas E. Sanders, “377 and the Unnatural Afterlife of British Colonialism in Asia”, Asian Journal of Comparative Law, Vol. 4 (2009), at page 11 (“Douglas”); David Skuy, “Macaulay and the Indian Penal Code of 1862: The Myth of the Inherent Superiority and Modernity of the English Legal System Compared to India’s Legal System in the Nineteenth Century”, Modern Asian Studies, Vol. 32 (1998), at pages 513-557. 10 Barry Wright, “Macaulay’s Indian Penal Code : Historical Context and Originating Principles”, Carleton University (2011).

11 Michael Kirby, “The Sodomy Offence: England's Least Lovely Law Export?” Journal of Commonwealth Criminal Law, Inaugural Issue (2011).

12 Douglas, supra note 9, at page 4.

13 Ibid at page 2.

14 PART C Another Judeo-Christian religious interpretation refers to “sodomy”, a term used for anal intercourse that is derived from an interpretation of Genesis 18:20 of the Old Testament,14 known as the story of Sodom and Gomorrah. Briefly, when two angels took refuge in the home of Lot, the men of the town of Sodom surrounded the house and demanded that the angels be sent out so that the men may “know” them (in this interpretation, with sexual connotations). When Lot offered them his two virgin daughters instead, the men of Sodom responded by threatening Lot. The angels then blinded the “Sodomites.”15 The use of the term “sodomites” to describe those who engaged in anal intercourse emerged in the 13th Century, and the term “sodomy” was used as a euphemism for a number of sexual ‘sins’ two centuries earlier.16 16 The preservation of the Judeo-Christian condemnation of homosexuality is also attributed to the Jewish theologian, Philo of Alexandria, who is regarded as the father of the Church Fathers and who reviled homosexuals and called for their execution.17 The condemnation of homosexuality can also be traced to Roman law. Emperor Justinian’s Code of 529, for instance, stated 14 Douglas, supra note 9, at page 4.

15 Jessica Cecil, “The Destruction of Sodom and Gomorrah”, British Broadcasting Company, 11 February 2017. 16 Douglas, supra note 9, at page 4; KSN Murthy’s Criminal Law: Indian Penal Code (KVS Sarma ed), Lexis Nexis (2016).

17 Philo, translated by F.H. Colson and G.H. Whitaker, 10 Volumes, (Cambridge: Harvard University Press, 1929- 1962).

15 PART C that persons who engaged in homosexual sex were to be executed.18 From Rome, the condemnation of homosexuality spread across Europe, where it manifested itself in ecclesiastical law.19 During the Protestant Reformation, these laws shifted from the ecclesiastical to the criminal domain, beginning with Germany in 1532.20 While ecclesiastical laws against homosexual intercourse were well established in England by the 1500s,21 England’s first criminal (non- ecclesiastical) law was the Buggery Act of 1533, which condemned “the detestable and abominable vice of buggeri committed with mankind or beest.”22 “Buggery” is derived from the old French word for heretic, “bougre”, and was taken to mean anal intercourse.23 17 The Buggery Act, 1533, which was enacted by Henry VIII, made the offence of buggery punishable by death, and continued to exist for nearly 300 years before it was repealed and replaced by the Offences against the Person Act, 1828. Buggery, however, remained a capital offence in England until 1861, one year after the enactment of the IPC . The language of Section 377 18 David F. Greenberg and Marcia H. Bystryn, “Christian Intolerance of Homosexuality”, American Journal of Sociology, Vol. 88 (1982), at pages 515-548.

19 Douglas, supra note 9, at pages 5 and 8.

20 Ibid at page 5.

21 Ibid at page 2.

22 The Buggery Act, 1533.

23 Douglas, supra note 9, at page 2.

16 PART C has antecedents in the definition of buggery found in Sir Edward Coke’s late 17th Century compilation of English law:24 “...Committed by carnal knowledge against the ordinance of the Creator, and order of nature, by mankind with mankind, or with brute beast, or by womankind with brute beast.”25 18 The Criminal Law Amendment Act, 1885 made “gross indecency” a crime in the United Kingdom, and was used to prosecute homosexuals where sodomy could not be proven. In 1895, Oscar Wilde was arrested under the Act for ‘committing acts of gross indecency with male persons’.26 During Wilde’s trial, the Prosecutor, referring to homosexual love, asked him, “What is ‘the love that dare not speak its name’?” Wilde responded:

PART C does not understand. The world mocks at it, and sometimes puts one in the pillory for it.”27 Wilde was held guilty and was sentenced to two years’ hard labour and subsequently incarcerated.

Following World War II, arrests and prosecutions of homosexuals increased. Alan Turing, the renowned mathematician and cryptographer who was responsible for breaking the Nazi Enigma code during World War II, was convicted of ‘gross indecency’ in 1952. In order to avoid a prison sentence, Turing was forced to agree to chemical castration. He was injected with synthetic female hormones. Less than two years after he began the hormone treatment, Turing committed suicide. The Amendment Act (also known as the Labouchere Amendment) remained in English law until 1967. Turing was posthumously pardoned in 2013, and in 2017, the UK introduced the Policing and Crime Bill, also called the “Turing Law,” posthumously pardoning 50,000 homosexual men and providing pardons for the living. In the wake of several court cases in which homosexuality had been featured, the British Parliament in 1954 set up the Wolfenden Committee, headed by 27 H. Montgomery Hyde, John O'Connor, and Merlin Holland, The Trials of Oscar Wilde (2014), at page 201. 18 PART C John Wolfenden, to “consider…the law and practice relating to homosexual offenses and the treatment of persons convicted of such offenses by the courts”, as well as the laws relevant to prostitution and solicitation. The Wolfenden Report of 1957, which was supported by the Church of England,28 proposed that there ‘must remain a realm of private morality and immorality which is, in brief and crude terms, not the law’s business’ and recommended that homosexual acts between two consenting adults should no longer be a criminal offence.29 19 The success of the report led England and Wales to enact The Sexual Offences Act, 1967, which decriminalized private homosexual sex between two men over the age of twenty-one. Britain continued to introduce and amend laws governing same-sex intercourse to make them more equal, including the lowering of the age of consent for gay/bisexual men to sixteen in 2001.30 In May 2007, in a statement to the UN Human Rights Council, the UK, which imposed criminal prohibitions against same-sex intercourse in its former colonies across the world, committed itself to the cause of worldwide decriminalization of homosexuality.31 Today, India continues to enforce a law 28 Ibid at 25.

29 Report of the Departmental Committee on Homosexual Offences and Prostitution (1957) (“Wolfenden Report”). 30 Sexual Offences (Amendment) Act 2000, Parliament of the United Kingdom. 31 Douglas, supra note 9, at page 29.

19 PART C imposed by an erstwhile colonial government, a law that has been long done away with by the same government in its own jurisdiction.

Jeremy Bentham, who coined the term codification and argued for replacing existing laws with clear, concise, and understandable provisions that could be universally applied across the Empire.32 Ironically, in a 1785 essay, Bentham himself wrote one of the earliest known defences of homosexuality in the English language, arguing against the criminalization of homosexuality. However, this essay was only discovered 200 years after his death.33 21 The Law Commission’s 1837 draft of the Penal Code (prepared by Lord Macaulay) contained two sections (Clauses 361 and 362), which are considered the immediate precursors to Section 377:

PART C must not be less than two years, and shall also be liable to fine.

362. Whoever, intending to gratify unnatural lust, touches for that purpose any person without that person's free and intelligent consent, shall be punished with imprisonment of either description for a term which may extend to life and must not be less than seven years, and shall also be liable to fine.” Both the draft clauses are vague in their description of the acts they seek to criminalize. Lord Macaulay also omitted an explanation to the Clauses. In a note presented with the 1837 draft, Lord Macaulay elaborated:

PART C After twenty-five years of revision, the IPC entered into force on 1 January 1862, two years after Lord Macaulay’s death. The IPC was the first codified criminal code in the British Empire. Section 377 of the revised code read as follows:

Explanation.- Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.” 22 The Explanation is unique in that it requires proof of penetration – something that British Law did not. The two clauses in the Draft Code fell somewhere in between, requiring proof of “touch”.36 By the time India gained independence in 1947, Britain had introduced Penal Codes similar to the IPC in other former colonies, including Zanzibar (Tanzania) in 1867, Singapore, Malaysia, and Brunei in 1871, Ceylon (Sri Lanka) in 1885, Burma (Myanmar) in 1886,37 East Africa Protectorate (Kenya) 35 Changed from “transportation for life” by Act 26 of 1955. 36 Douglas, supra note 9, at page 16.

37 Nang Yin Kham, “An Introduction to the Law and Judicial System of Myanmar”, Centre for Asia Legal Studies Faculty of Law, National University of Singapore, Working Paper 14/02, (2014). 22 PART C in 1897, Sudan in 1889, Uganda in 1902, and Tanganyika (Tanzania) in 1920.38 Under Article 372(1) of the Indian Constitution, which provides that all laws in force prior to the commencement of the Constitution shall continue to be in force until altered or repealed, the IPC and many other pre- Independence laws were “saved” and allowed to operate in Independent India.

23 While Section 377 has been used to prosecute non-consensual sexual acts, it has also been used to prosecute consensual sexual acts. In (Meharban) Nowshirwan Irani v. Emperor39, for instance, a police officer observed Nowshirwan, a young shopkeeper, engaged in homosexual acts with a young man, Ratansi, through a keyhole in Nowshirwan’s house. The Prosecution argued that the acts were non-consensual, but could not prove coercion.40 The High Court of Sindh ultimately set aside the conviction based on insufficient evidence. Nevertheless, what should have been an intimate act between two consenting parties in their bedroom became a public scandal and the subject of judicial scrutiny.41 38 Supra note 34.

39 AIR 1934 Sind. 206.

40 Arvind Narrain, “‘That Despicable Specimen of Humanity’: Policing of Homosexuality in India”, in Challenging the Rule(s) of Law: Colonialism, Criminology and Human Rights in India (Kalpana Kannabiran and Ranbir Singh eds.), Sage (2008).

41 Arvind Narrain, “A New Language of Morality: From the Trial of Nowshirwan to the Judgement in Naz Foundation”, The Indian Journal of Constitutional Law, Vol. 4 (2010). 23 PART C In D P Minwalla v. Emperor42, Minawalla and Tajmahomed, were seen having anal intercourse in a lorry and were arrested, charged, and found guilty under Section 377. Tajmahomed was sentenced to four months rigorous imprisonment, and Minawalla, who was charged with abetment, was sentenced to a fine of Rs 100 and imprisonment until the rising of the Bench. Minawalla appealed the decision on the grounds that he was not a consenting partner, and submitted himself to a medical exam. The judge was unconvinced, however, and Minawalla’s original sentence was upheld. The Court, convinced that the acts were consensual, found the men guilty under Section 377.43 In Ratan Mia v. State of Assam44 , the Court convicted two men (one aged fifteen and a half, the other twenty) under Section 377 and treated them as equally culpable, as he was unable to cast one of them as the perpetrator and the other as the victim or abettor. Both men were originally sentenced to imprisonment for six months and a fine of Rs 100. After Nur had spent six years in prison and appealed three times,45 both men's sentences were 42 AIR 1935 Sind. 78.

43 Supra note 40.

44 (1988) Cr.L.J. 980.

45 Suparna Bhaskaran, “The Politics of Penetration: Section 377 of the Indian Penal Code” in Queering India: Same-

Sex Love and Eroticism in Indian Culture and Society (Ruth Vanita ed.), Routledge (2002). 24 PART C reduced to seven days rigorous imprisonment, in view of the fact that they were first time offenders under the age of twenty-one.46 Even though the government is not proactively enforcing a law that governs private activities, the psychological impact for homosexuals who are, for all practical purposes, felons in waiting, is damaging in its own right:

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). 25 PART C century, however, saw the LGBTIQ community emerge from the shadows worldwide, poised to agitate and demand equal civil rights. LGBTIQ movements focused on issues of intersectionality, the interplay of oppressions arising from being both queer and lower class, coloured, disabled, and so on. Despite the movement making numerous strides forward in the fight for equal rights, incidents of homosexual arrests were nevertheless extant at the turn of the 21st century.

In many cases of unfulfilled civil rights, there is a tendency to operate under the philosophy articulated by Dr. Martin Luther King, that “the arc of the moral universe is long, but it bends towards justice.” It is likely that those who subscribe to this philosophy believe that homosexuals should practice the virtue of patience, and wait for society to understand and accept their way of life. What those who purport this philosophy fail to recognize is that Dr King himself argued against the doctrine of “wait”:

The case is about an aspiration to realise constitutional rights. It is about a right which every human being has, to live with dignity. It is about enabling these citizens to realise the worth of equal citizenship. Above all, our decision will speak to the transformative power of the Constitution. For it is in the transformation of society that the Constitution seeks to assure the values of a just, humane and compassionate existence to all her citizens. 49 Martin Luther King Jr., “Letter from a Birmingham Jail” (1963).

27 PART D D An equal love “Through Love's Great Power Through love's great power to be made whole In mind and body, heart and soul – Through freedom to find joy, or be By dint of joy itself set free In love and in companionhood:

This is the true and natural good.

To undo justice, and to seek To quash the rights that guard the weak -

To sneer at love, and wrench apart The bonds of body, mind and heart With specious reason and no rhyme:

This is the true unnatural crime.”50 Article 14 is our fundamental charter of equality:

50 Vikram Seth wrote this poem the morning after the Supreme Court refused to review its decision in Koushal. 51 Naz Foundation, at para 91.

52 Koushal, at para 65.

28 PART D Section 377 does not suffer from arbitrariness or from an irrational classification.

26 A litany of our decisions – to refer to them individually would be a parade of the familiar – indicates that to be a reasonable classification under Article 14 of the Constitution, two criteria must be met: (i) the classification must be founded on an intelligible differentia; and (ii) the differentia must have a rational nexus to the objective sought to be achieved by the legislation.53 There must, in other words, be a causal connection between the basis of classification and the object of the statute. If the object of the classification is illogical, unfair and unjust, the classification will be unreasonable.54 27 Equating the content of equality with the reasonableness of a classification on which a law is based advances the cause of legal formalism. The problem with the classification test is that what constitutes a reasonable classification is reduced to a mere formula: the quest for an intelligible differentia and the rational nexus to the object sought to be achieved. In doing so, the test of classification risks elevating form over substance. The danger inherent in legal formalism lies in its inability to lay threadbare the values which guide the process of judging constitutional rights. Legal formalism 53 State of West Bengal v. Anwar Ali Sarkar , AIR (1952) SC 75. 54 Deepak Sibal v. Punjab University , (1989) 2 SCC 145. 29 PART D buries the life-giving forces of the Constitution under a mere mantra. What it ignores is that Article 14 contains a powerful statement of values – of the substance of equality before the law and the equal protection of laws. To reduce it to a formal exercise of classification may miss the true value of equality as a safeguard against arbitrariness in state action. As our constitutional jurisprudence has evolved towards recognizing the substantive content of liberty and equality, the core of Article 14 has emerged out of the shadows of classification. Article 14 has a substantive content on which, together with liberty and dignity, the edifice of the Constitution is built. Simply put, in that avatar, it reflects the quest for ensuring fair treatment of the individual in every aspect of human endeavor and in every facet of human existence.

In E P Royappa v. State of Tamil Nadu55 , the validity of state action was made subject to the test of arbitrariness:

55 (1974) 4 SCC 3 30 PART D Four decades later, the test has been refined in Shayara Bano v. Union of India56 :

PART D as ‘carnal intercourse against the order of nature.’”59 Yet Koushal upheld the classification of sexual acts in Section 377 without explaining the difference between the classes, or the justification for treating the classes differently. This lack of reasoning and analysis by the Court has been critiqued in scholarly research on the subject. The following extract sums up the criticism with telling effect:

PART D permissible and impermissible intimacies between consenting adults? Homosexuality has been documented in almost 1500 species, who “unfortunately are not blessed with rational capabilities (and the propensity to ‘nurture’ same sex thoughts) as are found in mankind.”61 An interesting article in this regard notes that, “no species has been found in which homosexual behaviour has not been shown to exist, with the exception of species that never have sex at all, such as sea urchins and aphis.”62 29 In an incisive article,63 Ambrosino discusses the shift from reproductive instinct to erotic desire and how crucial this shift is to understanding modern notions of sexuality. He analyses how the lines between homosexuality and heterosexuality are blurred, and perhaps even an outdated myth or invention when we understand the fluidity of sexual identities today:64 ““No one knows exactly why heterosexuals and homosexuals ought to be different,” wrote Wendell Ricketts, author of the 1984 study Biological Research on Homosexuality. The best answer we’ve got is something of a tautology: “heterosexuals and homosexuals are considered different because they can be divided into two groups on the basis of the belief that they can be divided into two groups.” Though the hetero/homo divide seems like an eternal, indestructible fact of nature, it simply isn’t. It’s merely one recent grammar humans have invented to talk about what sex means to us.” 61 Shamnad Basheer, Sroyon Mukherjee and Karthy Nair, “Section 377 and the ‘Order of Nature’: Nurturing ‘Indeterminacy’ in the Law”, NUJS Law Review, Vol, 2 (2009). 62 Bruce Bagemihl, Biological Exuberance: Animal Homosexuality and Natural Diversity, Stonewall Inn Editions (2000).

63 Brandon Ambrosino, “The Invention of Heterosexuality”, British Broadcasting Company, 26 March, 2017. 64 Ibid.

33 PART D He questions the elevated status of ‘normalcy’ in the following words:

65 Zaid Al Baset, “Section 377 and the Myth of Heterosexuality”, Jindal Global Law Review, Vol. 4 (2012). 66 Ibid.

34 PART D of sexual desire and becomes a pervasive norm that structures all societal structures.67 The expression ‘carnal’ is susceptible to a wide range of meanings. Among them are:

35 PART D some of them as against the order of nature. It does so, on the basis of a social hypocrisy which the law embraces as its own. It would have human beings lead sanitized lives, in which physical relationships are conditioned by a moral notion of what nature does or does not ordain. It would have human beings accept a way of life in which sexual contact without procreation is an aberration and worse still, penal. It would ask of a section of our citizens that while love, they may, the physical manifestation of their love is criminal. This is manifest arbitrariness writ large.

If it is difficult to locate any intelligible differentia between indeterminate terms such as ‘natural’ and ‘unnatural’, then it is even more problematic to say that a classification between individuals who supposedly engage in ‘natural’ intercourse and those who engage in ‘carnal intercourse against the order of nature’ can be legally valid.

In addition to the problem regarding the indeterminacy of the terms, there is a logical fallacy in ascribing legality or illegality to the ostensibly universal meanings of ‘natural’ and ‘unnatural’ as is pointed out in a scholarly article.68 Basheer, et al make this point effectively:

68 Supra note 61.

36 PART D person who walks on his hands all the time. Although this may be unnatural, it is certainly not deserving of legal censure.

…In fact, several activities that might be seen to contravene the order of nature (heart transplants, for example) are beneficial and desirable. Even if an unnatural act is harmful to the extent that it justifies criminal sanctions being imposed against it, the reason for proscribing such an act would be that the act is harmful, and not that it is unnatural.” Indeed, there is no cogent reasoning to support the idea that behaviour that may be uncommon on the basis of mere statistical probability is necessarily abnormal and must be deemed ethically or morally wrong.69 Even behaviour that may be considered wrong or unnatural cannot be criminalised without sufficient justification given the penal consequences that follow. Section 377 becomes a blanket offence that covers supposedly all types of non- procreative ‘natural’ sexual activity without any consideration given to the notions of consent and harm.

30 The meaning of ‘natural’ as understood in cases such as Khanu v. Emperor70, which interpreted natural sex to mean only sex that would lead to procreation, would lead to absurd consequences. Some of the consequences have been pointed out thus:

While it is evident that the classification is invalid, it is useful to understand its purported goal by looking at the legislative history of Section 377. In Macaulay’s first draft of the Penal Code, the predecessor to present day Section 377 was Clause 36172 which provided a severe punishment for touching another for the purpose of ‘unnatural’ lust. Macaulay abhorred the idea of any debate or discussion on this ‘heinous crime’. India’s anti-sodomy law was conceived, legislated and enforced by the British without any kind of public discussion.73 So abhorrent was homosexuality to the moral notions which he espoused, that Macaulay believed that the idea of a discussion was 71 Andrew Davis, “The Framing of Sex: Evaluating Judicial Discourse on the 'Unnatural Offences'”, Alternative Law Journal, Vol. 5 (2006).

72 Clause 361 stated “Whoever, intending to gratify unnatural lust, touches, for that purpose, any person, or any animal, or is by his own consent touched by any person, for the purpose of gratifying unnatural lust, shall be punished with imprisonment of either description for a term which may extend to fourteen years and must not be less than two years, and shall also be liable to fine.” 73 Alok Gupta, “Section 377 and the Dignity of Indian Homosexuals” The Economic and Political Weekly, Vol. 41 (2006).

38 PART D repulsive. Section 377 reveals only the hatred, revulsion and disgust of the draftsmen towards certain intimate choices of fellow human beings. The criminalization of acts in Section 377 is not based on a legally valid distinction, “but on broad moral proclamations that certain kinds of people, singled out by their private choices, are less than citizens – or less than human.”74 31 The Naz judgement has been criticised on the ground that even though it removed private acts between consenting adults from the purview of Section 377, it still retained the section along with its problematic terminology regarding the ‘order of nature’:75 “…even though the acts would not be criminal, they would still be categorized as “unnatural” in the law. This is not an idle terminological issue. As Durkheim noted over a hundred years ago, the law also works as a tool that expresses social relations.76 Hence, this expression itself is problematic from a dignitarian standpoint, otherwise so eloquently referred to by the judgement.” At this point, we look at some of the legislative changes that have taken place in India’s criminal law since the enactment of the Penal Code. The Criminal Law (Amendment) Act 2013 imported certain understandings of the concept of sexual intercourse into its expansive definition of rape in Section 375 of the Indian Penal Code, which now goes beyond penile–vaginal penetrative 74 Supra note 25.

75 John Sebastian, “The opposite of unnatural intercourse: understanding Section 377 through Section 375, Indian Law Review, Vol. 1 (2018).

76 Emile Durkheim, The Division of Labour in Society, Macmillan (1984). 39 PART D intercourse.77 It has been argued that if ‘sexual intercourse’ now includes many acts which were covered under Section 377, those acts are clearly not ‘against the order of nature’ anymore. They are, in fact, part of the changed meaning of sexual intercourse itself. This means that much of Section 377 has not only been rendered redundant but that the very word ‘unnatural’ cannot have the meaning that was attributed to it before the 2013 amendment.78 Section 375 defines the expression rape in an expansive sense, to include any one of several acts committed by a man in relation to a woman. The offence of rape is established if those acts are committed against her will or without the free consent of the woman. Section 375 is a clear indicator that in a heterosexual context, certain physical acts between a man and woman are excluded from the operation of penal law if they are consenting adults. Many of these acts which would have been within the purview of Section 377, stand 77 375. A man is said to commit “rape” if he- (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or

(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:— First.—Against her will. Secondly.—Without her consent. Thirdly.—With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. Fourthly.—With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly.—With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent Sixthly.—With or without her consent, when she is under eighteen years of age. Seventhly.—When she is unable to communicate consent. Explanation 1.—For the purposes of this section, "vagina" shall also include labia majora. Explanation 2.—Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. Exception 1.—A medical procedure or intervention shall not constitute rape. Exception 2.—Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape. 78 Supra note 75, at pages 232-249.

40 PART D excluded from criminal liability when they take place in the course of consensual heterosexual contact. Parliament has ruled against them being regarded against the ‘order of nature’, in the context of Section 375. Yet those acts continue to be subject to criminal liability, if two adult men or women were to engage in consensual sexual contact. This is a violation of Article 14. Nivedita Menon opposes the idea that ‘normal’ sexuality springs from nature and argues that this idea of ‘normal’ sexuality is a cultural and social construct:79 “Consider the possibility that rules of sexual conduct are as arbitrary as traffic rules, created by human societies to maintain a certain sort of order, and which could differ from place to place -- for example, you drive on the left in India and on the right in the USA. Further, let us say you question the sort of social order that traffic rules keep in place. Say you believe that traffic rules in Delhi are the product of a model of urban planning that privileges the rich and penalizes the poor, that this order encourages petrol-consuming private vehicles and discourages forms of transport that are energy-saving -- cycles, public transport, pedestrians. You would then question that model of the city that forces large numbers of inhabitants to travel long distances every day simply to get to school andwork. You could debate the merits of traffic rules and urban planning on the grounds of convenience, equity and sustainability of natural resources -- at least, nobody could seriously argue that any set of traffic rules is natural.” 32 The struggle of citizens belonging to sexual minorities is located within the larger history of the struggles against various forms of social subordination 79 Nivedita Menon, “How Natural is Normal? Feminism and Compulsory Heterosexuality”, In Because I have a Voice, Queer Politics in India, (Narrain and Bhan eds.) Yoda Press (2005). 41 PART E in India. The order of nature that Section 377 speaks of is not just about non- procreative sex but is about forms of intimacy which the social order finds “disturbing”.80 This includes various forms of transgression such as inter-caste and inter-community relationships which are sought to be curbed by society. What links LGBT individuals to couples who love across caste and community lines is the fact that both are exercising their right to love at enormous personal risk and in the process disrupting existing lines of social authority.81 Thus, a re-imagination of the order of nature as being not only about the prohibition of non-procreative sex but instead about the limits imposed by structures such as gender, caste, class, religion and community makes the right to love not just a separate battle for LGBT individuals, but a battle for all.82 E Beyond physicality: sex, identity and stereotypes “Only in the most technical sense is this a case about who may penetrate whom where. At a practical and symbolical level it is about the status, moral citizenship and sense of self- worth of a significant section of the community. At a more general and conceptual level, it concerns the nature of the open, democratic and pluralistic society contemplated by the Constitution.”83 80 Supra note 7.

82 Supra note 7.

83 The National Coalition for Gay and Lesbian Equality v. The Minister of Justice, 1999 (1) SA 6 (CC), Sachs J., concurring.

42 PART E 33 The Petitioners contend that (i) Section 377 discriminates on the basis of sex and violates Articles 15 and 16; and (ii) Discrimination on the ground of sexual orientation is in fact, discrimination on the ground of sex. The intervenors argue that (i) Section 377 criminalizes acts and not people; (ii) It is not discriminatory because the prohibition on anal and oral sex applies equally to both heterosexual and homosexual couples; and (iii) Article 15 prohibits discrimination on the ground of ‘sex’ which cannot be interpreted so broadly as to include ‘sexual orientation’.

34 When the constitutionality of a law is challenged on the ground that it violates the guarantees in Part III of the Constitution, what is determinative is its effect on the infringement of fundamental rights.84 This affords the guaranteed freedoms their true potential against a claim by the state that the infringement of the right was not the object of the provision. It is not the object of the law which impairs the rights of the citizens. Nor is the form of the action taken determinative of the protection that can be claimed. It is the effect of the law upon the fundamental right which calls the courts to step in and remedy the violation. The individual is aggrieved because the law hurts. The hurt to the individual is measured by the violation of a protected right. Hence, while 84 Re. the Kerala Education Bill, AIR 1958 SC 956 at para 26; Sakal Papers v Union of India , AIR 1962 SC 305 at para 42; R.C. Cooper v Union of India, (1970) 1 SCC 248 at paras 43, 49; Bennett Coleman v. Union of India , AIR (1972) 2 SCC 788 at para 39; Maneka Gandhi v Union of India , (1978) 1 SCC 248 at para 19. 43 PART E assessing whether a law infringes a fundamental right, it is not the intention of the lawmaker that is determinative, but whether the effect or operation of the law infringes fundamental rights.

Article 15 of the Constitution reads thus:

85 AIR (1951) Cal. 563.

44 PART E 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:

86 (1981) 4 SCC 335 45 PART E absolute discretion of the Managing Director. Even though the two cadres were constituted on the grounds of sex, the Court upheld the Regulations in part and opined:

This narrow view of Article 15 strips the prohibition on discrimination of its essential content. This fails to take into account the intersectional nature of sex discrimination, which cannot be said to operate in isolation of other identities, especially from the socio-political and economic context. For example, a rule that people over six feet would not be employed in the army would be able to stand an attack on its disproportionate impact on women if it was maintained that the discrimination is on the basis of sex and height. Such 46 PART E a formalistic view of the prohibition in Article 15 , rejects the true operation of discrimination, which intersects varied identities and characteristics. 37 A divergent note was struck by this Court in Anuj Garg v. Hotel Association of India87 . Section 30 of the Punjab Excise Act, 1914 prohibited the employment of women (and men under 25 years) in premises where liquor or other intoxicating drugs were consumed by the public. Striking down the law as suffering from “incurable fixations of stereotype morality and conception of sexual role”, the Court held:

In Nergesh Meerza, this Court held that where persons of a particular class, in view of the “special attributes, qualities” are treated differently in ‘public interest’, such a classification would not be discriminatory. The Court opined that since the modes of recruitment, promotional avenues and other matters were different for Air Hostesses, they constituted a class separate from male Flight Pursers. This, despite noting that “a perusal of the job functions which have been detailed in the affidavit, clearly shows that the functions of the two, though obviously different overlap on some points but the difference, if any, is one of degree rather than of kind.” 38 The Court did not embark on the preliminary enquiry as to whether the initial classification between the two cadres, being grounded in sex, was violative of the constitutional guarantee against discrimination. Referring specifically to the three significant disabilities that the Regulations imposed on Air Hostesses, the Court held that “there can be no doubt that these peculiar conditions do form part of the Regulations governing Air Hostesses but once we have held that Air Hostesses form a separate category with different and 49 PART E 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:

40 A strong stereotype underlines the judgment. The Court did not recognize that men were not subject to the same standards with respect to marriage. It holds that the burdens of health and family planning rest solely on women. This perpetuates the notion that the obligations of raising family are those solely of the woman. In dealing with the provision for termination of service on the first pregnancy, the Court opined that a substituted provision for termination on the third pregnancy would be in the “larger interest of the health of the Air Hostesses concerned as also for the good upbringing of the children.” Here again, the Court’s view rested on a stereotype. The patronizing attitude towards the role of women compounds the difficulty in accepting the logic of Nergesh Meerza. This approach, in my view, is patently incorrect. 41 A discriminatory act will be tested against constitutional values. A discrimination will not survive constitutional scrutiny when it is grounded in and perpetuates stereotypes about a class constituted by the grounds prohibited in Article 15(1). If any ground of discrimination, whether direct or indirect is founded on a stereotypical understanding of the role of the sex, it would not be distinguishable from the discrimination which is prohibited by Article 15 on the grounds only of sex. If certain characteristics grounded in stereotypes, are to be associated with entire classes of people constituted as groups by any of the grounds prohibited in Article 15(1) , that cannot establish 51 PART E a permissible reason to discriminate. Such a discrimination will be in violation of the constitutional guarantee against discrimination in Article 15(1). That such a discrimination is a result of grounds rooted in sex and other considerations, can no longer be held to be a position supported by the intersectional understanding of how discrimination operates. This infuses Article 15 with true rigour to give it a complete constitutional dimension in prohibiting discrimination.

The approach adopted the Court in Nergesh Meerza, is incorrect. A provision challenged as being ultra vires the prohibition of discrimination on the grounds only of sex under Article 15(1) is to be assessed not by the objects of the state in enacting it, but by the effect that the provision has on affected individuals and on their fundamental rights. Any ground of discrimination, direct or indirect, which is founded on a particular understanding of the role of the sex, would not be distinguishable from the discrimination which is prohibited by Article 15 on the grounds only of sex. E.I Facial neutrality: through the looking glass 42 The moral belief which underlies Section 377 is that sexual activities which do not result in procreation are against the ‘order of nature’ and ought 52 PART E to be criminalized under Section 377. The intervenors submit that Section 377, criminalizes anal and oral sex by heterosexual couples as well. Hence, it is urged that Section 377 applies equally to all conduct against the ‘order of nature’, irrespective of sexual orientation. This submission is incorrect. In NALSA this Court held that Section 377, though associated with specific sexual acts, highlights certain identities. In Naz, the Delhi High Court demonstrated effectively how Section 377 though facially neutral in its application to certain acts, targets specific communities in terms of its impact:

PART E disadvantage, exclusion and indignity for the LGBT community, and for individuals who indulge in non-heterosexual conduct. 43 Jurisprudence across national frontiers supports the principle that facially neutral action by the State may have a disproportionate impact upon a particular class. In Europe, Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 defines ‘indirect discrimination’ as: “where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary.” In Griggs v Duke Power Co.93, the US Supreme Court, whilst recognizing that African-Americans received sub-standard education due to segregated schools, opined that the requirement of an aptitude/intelligence test disproportionately affected African-American candidates. The Court held that “ The Civil Rights Act ” proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation.” 93 401 U.S. 424 (1971) 54 PART E In Bilka-Kaufhaus GmbH v. Karin Weber von Hartz94, the European Court of Justice held that denying pensions to part-time employees is more likely to affect women, as women were more likely to take up part-time jobs. The Court noted:

94 (1986) ECR 1607 95 (1989) 1 SCR 143 55 PART E withholds or limits access to opportunities, benefits, and advantages available to other members of society”,96 it would be suspect. In City Council of Pretoria v. Walker97, the Constitutional Court of South Africa observed:

97 (1998) 3 BCLR 257 56 PART E The notion that the nature of relationships is fixed and within the ‘order of nature’ is perpetuated by gender roles, thus excluding homosexuality from the narrative. The effect is described as follows:

98 Elvia R. Arriola, “Gendered Inequality: Lesbians, Gays, and Feminist Legal Theory”, Berkeley Women’s Law Journal, Vol. 9 (1994), at pages 103-143.

99 Zachary A. Kramer, “The Ultimate Gender Stereotype: Equalizing Gender-Conforming and Gender-Nonconforming Homosexuals under Title VII”, University of Illinois Law Review (2004), at page 490. 57 PART E therefore, repugnant to heterosexist societal expectations. Kramer argues that:

101 Bennett Capers, “Note, Sexual Orientation and Title VII”, Columbia Law Review (1991), at pages 1159, 1160, 1163.

58 PART E In other words, one cannot simply separate discrimination based on sexual orientation and discrimination based on sex because discrimination based on sexual orientation inherently promulgates ideas about stereotypical notions of sex and gender roles. Taking this further, Andrew Koppelman argues that:

102 Andrew Koppelman, “The Miscegenation Analogy: Sodomy Law as Sex Discrimination”, Yale Law Journal, Vol.

98 (1988), at page 147.

103 Andrew Koppelman, “Why Discrimination against Lesbians and Gay Men is Sex Discrimination”, New York University Law Review, Vol. 69 (1994).

104 Supra note 102, at page 148.

59 PART E Statutes like Section 377 give people ammunition to say “this is what a man is” by giving them a law which says “this is what a man is not.” Thus, laws that affect non-heterosexuals rest upon a normative stereotype: “the bald conviction that certain behavior-for example, sex with women-is appropriate for members of one sex, but not for members of the other sex.” 105 What this shows us is that LGBT individuals as well as those who do not conform to societal expectations of sexual behaviour defy gender stereotypes.

“The construction of gender stereotypes ultimately rests on the assumption that there are two opposite and mutually exclusive biological sexes. The assumption of heterosexuality is central to this gender binary. In a patriarchal context, some of the most serious transgressors are thus: a woman who renounces a man sexual partner or an individual assigned female at birth who renounces womanhood, thereby rejecting the patriarchal system and all other forms of male supervision and control, and an individual assigned male at birth who embraces womanhood, thereby abandoning privilege in favor of that which is deemed subservient, femininity.”106 Prohibition of sex discrimination is meant to change traditional practices which legally, and often socially and economically, disadvantage persons on the basis of gender. The case for gay rights undoubtedly seeks justice for gays. But it goes well beyond the concern for the gay community. The effort to end 105 Ibid.

106 The Relationship between Homophobia, Transphobia, and Women’s Access to Justice for the Forthcoming CEDAW General Recommendation on Women’s Access to Justice. Submitted to the United Nations Committee for the Elimination of All Forms of Discrimination against Women (2013). 60 PART E discrimination against gays should be understood as a necessary part of the larger effort to end the inequality of the sexes.

“To be a lesbian is to be perceived (labelled) as someone who has stepped out of line, who has moved out of sexual/economic dependence on a male, who is woman- identified. A lesbian is perceived as someone who can live without a man, and who is therefore (however illogically) against men. A lesbian is perceived as being outside the acceptable, routinized order of things. She is seen as someone who has no societal institutions to protect her and who is not privileged to the protection of individual males. A lesbian is perceived as a threat to the nuclear family, to male dominance and control, to the very heart of sexism.”107 Commenting on its link with the essence of Article 15 , Tarunabh Khaitan writes:

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). 61 PART E relationships premised on care and reciprocity, lay challenge to the idea that relationships, and by extension society, must be divided along hierarchical sexual roles in order to function. For members of the community, hostility and exclusion aimed at them, drive them into hiding, away from public expression and view. It is this discrimination faced by the members of the community, which results in silence, and consequently invisibility, creating barriers, systemic and deliberate, that effect their participation in the work force and thus undermines substantive equality. In the sense that the prohibition of miscegenation was aimed to preserve and perpetuate the polarities of race to protect white supremacy, the prohibition of homosexuality serves to ensure a larger system of social control based on gender and sex. 48 A report prepared by the International Commission of Jurists109 has documented the persecution faced by the affected community due to the operation of Section 377. The report documents numerous violations inflicted on people under the authority of Section 377. According to the National Crime Records Bureau, 1279 persons in 2014 and 1491 in 2015 were arrested under Section 377.110 109 International Commission of Jurists, “Unnatural Offences” Obstacles to Justice in India Based on Sexual Orientation and Gender Identity (2017).

110 Ibid, at page 16.

62 PART E The report documents instances of abuse from law enforcement agencies and how the possibility of persecution under Section 377 prevents redress.111 Even though acts such as blackmail, assault, and bodily crimes are punishable under penal laws, such methods of seeking redressal are not accessed by those communities given the fear of retaliation or prosecution. 49 The petitioners in the present batch of cases have real life narrations of suffering discrimination, prejudice and hate. In Anwesh Pokkuluri v. UOI112 , with which this case is connected, the Petitioners are a group of persons belonging to the LGBTQ community, each of whom has excelled in their fields but suffer immensely due to the operation of Section 377. To cope with the growing isolation among the community, these Petitioners, all alumni of Indian Institutes of Technology across the country, created a closed group called “Pravritti”. The group consists of persons from the LGBTQ community. They are faculty members, students, alumni and anyone who has ever stayed on the campus of any IIT in the country. The group was formed in 2012 to help members cope with loneliness and difficulties faced while accepting their identity along with holding open discussions on awareness. 111 Ibid, at pages 16 – 18.

112 Writ Petition (Criminal) No. 121 of 2018.

63 PART E 50 Out of twenty Petitioners, sixteen are gay, two are bisexual women and one is a bisexual man. One among the Petitioners is a transwoman. Three of the Petitioners explain that they suffered immense mental agony due to which they were on the verge of committing suicide. Another two stated that speaking about their sexual identity has been difficult, especially since they did not have the support of their families, who, upon learning of their sexual orientation, took them for psychiatric treatment to cure the so-called “disease.” The families of three Petitioners ignored their sexual identity. One of them qualified to become an Indian Administrative Services officer in an examination which more than 4,00,000 people write each year. But he chose to forgo his dream because of the fear that he would be discriminated against on the ground of his sexuality. Some of them have experienced depression; others faced problems focusing on their studies while growing up; one among them was forced to drop out of high school as she was residing in a girl’s hostel where the authorities questioned her identity. The parents of one of them brushed his sexuality under the carpet and suggested that he marry a woman. Some doubted whether or not they should continue their relationships given the atmosphere created by Section 377. Several work in organisations that have policies protecting the LGBT community in place. Having faced so much pain in their personal lives, the Petitioners submit that with the continued operation of Section 377, such treatment will be unabated. 64 PART E 51 In Navtej Johar v. Union of India113 , with which this case is concerned, the Petitioners have set out multiple instances of discrimination and expulsion. The following is a realistic account:

PART E inducing “a state of conscious and permanent visibility that assures the automatic functioning of power”,115 Ryan Goodman writes:

52 The Constitution envisaged a transformation in the order of relations not just between the state and the individual, but also between individuals: in a constitutional order characterized by the Rule of Law, the constitutional commitment to egalitarianism and an anti-discriminatory ethos permeates and infuses these relations. In K S Puttaswamy v. Union of India 115 Michel Foucault, Discipline And Punish: the Birth of the Prison, Pantheon Books (1977) at page 201. 116 Ryan Goodman, “Beyond the Enforcement Principle: Sodomy Laws, Social Norms, and Social Panoptics”, California Law Review, Vol. 89 (2001), at page 688. 66 PART E (“Puttaswamy”)117, this Court affirmed the individual as the bearer of the constitutional guarantee of rights. Such rights are devoid of their guarantee when despite legal recognition, the social, economic and political context enables an atmosphere of continued discrimination. The Constitution enjoins upon every individual a commitment to a constitutional democracy characterized by the principles of equality and inclusion. In a constitutional democracy committed to the protection of individual dignity and autonomy, the state and every individual has a duty to act in a manner that advances and promotes the constitutional order of values.

By criminalizing consensual sexual conduct between two homosexual adults, Section 377 has become the basis not just of prosecutions but of the persecution of members of the affected community. Section 377 leads to the perpetuation of a culture of silence and stigmatization. Section 377 perpetuates notions of morality which prohibit certain relationships as being against the ‘order of nature.’ A criminal provision has sanctioned discrimination grounded on stereotypes imposed on an entire class of persons on grounds prohibited by Article 15(1). This constitutes discrimination on the grounds only of sex and violates the guarantee of non-discrimination in Article 15(1) 117(2017) 10 SCC 1 67 PART F 53 History has been witness to a systematic stigmatization and exclusion of those who do not conform to societal standards of what is expected of them. Section 377 rests on deep rooted gender stereotypes. In the quest to assert their liberties, people criminalized by the operation of the provision, challenge not only its existence, but also a gamut of beliefs that are strongly rooted in majoritarian standards of what is ‘normal’. In this quest, the attack on the validity of Section 377 is a challenge to a long history of societal discrimination and persecution of people based on their identities. They have been subjugated to a culture of silence and into leading their lives in closeted invisibility. There must come a time when the constitutional guarantee of equality and inclusion will end the decades of discrimination practiced, based on a majoritarian impulse of ascribed gender roles. That time is now.

the core of autonomy. These values are integral to the right to life under Article 21 of the Constitution. A meaningful life is a life of freedom and self- respect and nurtured in the ability to decide the course of living. In the nine judge Bench decision in Puttaswamy, this Court conceived of the right to privacy as natural and inalienable. The judgment delivered on behalf of four judges holds:

PART F These opinions establish that the right to privacy is a natural right. The judgment of four judges in Puttaswamy held that the right to sexual orientation is an intrinsic part of the right to privacy. To define the scope of the right, it is useful to examine the discussion on the right to sexual orientation in judicial precedents of this Court.

55 Speaking for a two judge Bench in NALSA, Justice K S Radhakrishnan elucidated upon the term ‘sexual orientation’ as differentiable from an individual’s ‘gender identity’, noting that:

PART F minorities face grave dangers of discrimination for the simple reason that their views, beliefs or way of life do not accord with the ‘mainstream’. Yet in a democratic Constitution founded on the rule of law, their rights are as sacred as those conferred on other citizens to protect their freedoms and liberties. Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14 , 15 and 21 of the Constitution.”123 Rejecting the notion that the rights of the LGBT community can be construed as illusory, the court held that the right to privacy claimed by sexual minorities is a constitutionally entrenched right:

PART F cannot be denied, even if there is a miniscule fraction of the population which is affected. The majoritarian concept does not apply to Constitutional rights and the Courts are often called up on to take what may be categorized as a non- majoritarian view, in the check and balance of power envisaged under the Constitution of India. One’s sexual orientation is undoubtedly an attribute of privacy…”125 With these observations by five of the nine judges in Puttaswamy, the basis on which Koushal upheld the validity of Section 377 stands eroded and even disapproved.

56 We must now consider the impact of Section 377 on the exercise of the right to privacy by sexual minorities. Legislation does not exist in a vacuum. The social ramifications of Section 377 are enormous. While facially Section 377 only criminalizes certain “acts”, and not relationships, it alters the prism through which a member of the LGBTQ is viewed. Conduct and identity are conflated.126 The impact of criminalising non-conforming sexual relations is that individuals who fall outside the spectrum of heteronormative127 sexual identity are perceived as criminals.128 57 World over, sexual minorities have struggled to find acceptance in the heteronormative structure that is imposed by society. In her book titled 125 Puttaswamy, at para 647.

126 Supra note 116, at page 689.

127 The expression heteronormative is used to denote or relate to a world view that promotes heterosexuality as the normal or preferred sexual orientation.

128 Supra note 116, at page 689.

72 PART F ‘Epistemology of the Closet’,129 Eve Sedgwick states that “the closet is the defining structure for gay oppression in this century.” The closet is symbolic of the exclusion faced by them:

129 Eve Kosofsky Sedgwick, Epistemology of the Closet, University of California Press (1990). 130 Supra note 65, at page 102.

131 David A. J. Richards, “Sexual Autonomy and the Constitutional Right to Privacy: A Case Study in Human Rights and the Unwritten Constitution”, Hastings Law Journal, Vol. 30, at page 786. 132 Ibid.

73 PART F a denial of the distinctive human capacities for sensual experience outside of the realm of procreative sex.133 58 To deny the members of the LGBT community the full expression of the right to sexual orientation is to deprive them of their entitlement to full citizenship under the Constitution. The denial of the right to sexual orientation is also a denial of the right to privacy. The application of Section 377 causes a deprivation of the fundamental right to privacy which inheres in every citizen. This Court is entrusted with the duty to act as a safeguard against such violations of human rights. Justice Chelameswar, in his judgement in Puttaswamy, held that:

59 The exercise of the natural and inalienable right to privacy entails allowing an individual the right to a self-determined sexual orientation. Thus, it is imperative to widen the scope of the right to privacy to incorporate a right to ‘sexual privacy’ to protect the rights of sexual minorities. Emanating from the 133 Ibid.

134 Puttaswamy, at Para 350.

74 PART F inalienable right to privacy, the right to sexual privacy must be granted the sanctity of a natural right, and be protected under the Constitution as fundamental to liberty and as a soulmate of dignity. 60 Citizens of a democracy cannot be compelled to have their lives pushed into obscurity by an oppressive colonial legislation. In order to ensure to sexual and gender minorities the fulfilment of their fundamental rights, it is imperative to ‘confront the closet’ and, as a necessary consequence, confront ‘compulsory heterosexuality.’135 Confronting the closet would entail “reclaiming markers of all desires, identities and acts which challenge it.”136 It would also entail ensuring that individuals belonging to sexual minorities, have the freedom to fully participate in public life, breaking the invisible barrier that heterosexuality imposes upon them. The choice of sexuality is at the core of privacy. But equally, our constitutional jurisprudence must recognise that the public assertion of identity founded in sexual orientation is crucial to the exercise of freedoms.

61 In conceptualising a right to sexual privacy, it is important to consider how the delineation of ‘public’ and ‘private’ spaces affects the lives of the LGBTIQ community. Members of the community have argued that to base 135 Supra note 65, at page 103.

75 PART F their claims on a right to privacy is of no utility to individuals who do not possess the privilege of a private space.137 In fact, even for individuals who have access to private spaces the conflation of ‘private’ with home and family may be misplaced.138 The home is often reduced to a public space as heteronormativity within the family can force the individual to remain inside the closet.139 Thus, even the conception of a private space for certain individuals is utopian.140 62 Privacy creates “tiers of ‘reputable’ and ‘disreputable’ sex”, only granting protection to acts behind closed doors.141 Thus, it is imperative that the protection granted for consensual acts in private must also be available in situations where sexual minorities are vulnerable in public spaces on account of their sexuality and appearance.142 If one accepts the proposition that public places are heteronormative, and same-sex sexual acts partially closeted, relegating ‘homosexual‘ acts into the private sphere, would in effect reiterate the “ambient heterosexism of the public space.”143 It must be acknowledged that members belonging to sexual minorities are often subjected to 137 Danish Sheikh, “Queer Rights and the Puttaswamy Judgement”, Economic and Political Weekly, Vol. 52 (2017), at page 51.

138 Supra note 65, at page 101.

141 Supra note 137, at page 51.

142 Saptarshi Mandal, “‘Right To Privacy’ In Naz Foundation: A Counter-Heteronormative Critique”, NUJS Law Review, Vol. 2 (2009), at page 533.

143 Supra note 65, at page 100.

76 PART F harassment in public spaces.144 The right to sexual privacy, founded on the right to autonomy of a free individual, must capture the right of persons of the community to navigate public places on their own terms, free from state interference.

F.I Sexual privacy and autonomy- deconstructing the heteronormative framework 63 In the absence of a protected zone of privacy, individuals are forced to conform to societal stereotypes. Puttaswamy has characterised the right to privacy as a shield against forced homogeneity and as an essential attribute to achieve personhood:

PART F life. Privacy attaches to the person and not to the place where it is associated.”145 This Court has recognized the right of an individual to break free from the demands of society and the need to foster a plural and inclusive culture. The judgment of four judges in Puttaswamy, for instance, held that:

64 In Santosh Singh v Union of India147 , a two-judge Bench of this Court dismissed a petition under Article 32 seeking a direction to the Central Board of Secondary Education to include moral science as a compulsory subject in the school syllabus in order to inculcate moral values. One of us (Chandrachud J) underscored the importance of accepting a plurality of ideas and tolerance of radically different views:

PART F 65 In Common Cause (A Registered Society) v. Union of India (“Common Cause”)151, a Constitution Bench of this Court held that the right to die with dignity is integral to the right to life recognised by the Constitution and an individual possessing competent mental faculties is entitled to express his or her autonomy by the issuance of an advance medical directive:

PART F In order to understand how sexual choices are an essential attribute of autonomy, it is useful to refer to John Rawls’ theory on social contract. Rawls’ conception of the ‘Original Position’ serves as a constructive model to illustrate the notion of choice behind a “partial veil of ignorance.”154 Persons behind the veil are assumed to be rational and mutually disinterested individuals, unaware of their positions in society.155 The strategy employed by Rawls is to focus on a category of goods which an individual would desire irrespective of what individuals’ conception of ‘good’ might be.156 These neutrally desirable goods are described by Rawls as ‘primary social goods’ and may be listed as rights, liberties, powers, opportunities, income, wealth, and the constituents of self-respect.157 Rawls's conception of self-respect, as a primary human good, is intimately connected to the idea of autonomy.158 Self-respect is founded on an individual's ability to exercise her native capacities in a competent manner.159 66 An individual’s sexuality cannot be put into boxes or compartmentalized; it should rather be viewed as fluid, granting the individual the freedom to ascertain her own desires and proclivities. The self- 154 Thomas M. Jr. Scanlon, Rawls’ Theory of Justice, University of Pennsylvania Law Review (1973) at 1022. 155 Ibid at 1023.

156 Ibid at 1023.

157 Ibid at 1023.

158 Supra note 131, at page 971.

159 Ibid at page 972.

81 PART F determination of sexual orientation is an exercise of autonomy. Accepting the role of human sexuality as an independent force in the development of personhood is an acknowledgement of the crucial role of sexual autonomy in the idea of a free individual.160 Such an interpretation of autonomy has implications for the widening application of human rights to sexuality.161 Sexuality cannot be construed as something that the State has the prerogative to legitimize only in the form of rigid, marital procreational sex.162 Sexuality must be construed as a fundamental experience through which individuals define the meaning of their lives.163 Human sexuality cannot be reduced to a binary formulation. Nor can it be defined narrowly in terms of its function as a means to procreation. To confine it to closed categories would result in denuding human liberty of its full content as a constitutional right. The Constitution protects the fluidities of sexual experience. It leaves it to consenting adults to find fulfilment in their relationships, in a diversity of cultures, among plural ways of life and in infinite shades of love and longing. F.2 A right to intimacy- celebration of sexual agency 67 By criminalising consensual acts between individuals who wish to exercise their constitutionally-protected right to sexual orientation, the State is 160 Supra note 131, at page 1003.

82 PART F denying its citizens the right to intimacy. The right to intimacy emanates from an individual’s prerogative to engage in sexual relations on their own terms. It is an exercise of the individual’s sexual agency, and includes the individual’s right to the choice of partner as well as the freedom to decide on the nature of the relationship that the individual wishes to pursue. In Shakti Vahini v. Union of India164 , a three judge Bench of this Court issued directives to prevent honour killings at the behest of Khap Panchayats and protect persons who enter into marriages that do not have the approval of the Panchayats. The Court recognised the right to choose a life partner as a fundamental right under Articles 19 and 21 of the Constitution. The learned Chief Justice held:

164 (2018) SCC OnLine SC 275 165 Ibid, at para 44.

166 (2018) SCC OnLine SC 343 83 PART F Court upheld her right to choose of a life partner as well as her autonomy in the sphere of “intimate personal decisions.” The Chief Justice held thus:

167 Ibid, at para 54.

168 Ibid, at para 88.

169 Ibid, at para 93.

84 PART F the human propensity to experience desire must be treated with respect. In addition to respect for relationships based on consent, it is important to foster a society where individuals find the ability for unhindered expression of the love that they experience towards their partner. This “institutionalized expression to love” must be considered an important element in the full actualisation of the ideal of self-respect.170 Social institutions must be arranged in such a manner that individuals have the freedom to enter into relationships untrammelled by binary of sex and gender and receive the requisite institutional recognition to perfect their relationships.171 The law provides the legitimacy for social institutions. In a democratic framework governed by the rule of law, the law must be consistent with the constitutional values of liberty, dignity and autonomy. It cannot be allowed to become a yoke on the full expression of the human personality. By penalising sexual conduct between consenting adults, Section 377 imposes moral notions which are anachronistic to a constitutional order. While ostensibly penalising ‘acts’, it impacts upon the identity of the LGBT community and denies them the benefits of a full and equal citizenship. Section 377 is based on a stereotype about sex. Our Constitution which protects sexual orientation must 170 David A. J. Richards, “Unnatural Acts and the Constitutional Right to Privacy: A Moral Theory”, Fordham Law Review, Vol. 45 (1977), at pages 1130-1311.

171 Ibid at 1311.

85 PART G outlaw any law which lends the authority of the state to obstructing its fulfilment.

G Section 377 and the right to health “Should medicine ever fulfil its great ends, it must enter into the larger political and social life of our time; it must indicate the barriers which obstruct the normal completion of the life cycle and remove them.”

- Virchow Rudolf 68 In the evolution of its jurisprudence on the constitutional right to life under Article 21 , this Court has consistently held that the right to life is meaningless unless accompanied by the guarantee of certain concomitant rights including, but not limited to, the right to health.172 The right to health is understood to be indispensable to a life of dignity and well-being, and includes, for instance, the right to emergency medical care and the right to the maintenance and improvement of public health.173 It would be useful to refer to judgments of this Court which have recognised the right to health.

172 Dipika Jain and Kimberly Rhoten, “The Heteronormative State and the Right to Health in India”, NUJS Law Review, Vol. 6 (2013).

173 C.E.S.C. Limited v. Subhash Chandra Bose, (1992) 1 SCC 441; Consumer Education and Research Centre v.

UOI, (1995) 3 SCC 42; Paschim Banga Khet Mazdoor Samity v. State of West Bengal , (1996) 4 SCC 37; Society for Unaided Private Schools of Rajasthan v. Union of India , (2012) 6 SCC 1; Devika Biswas v. Union of India & Ors. , (2016) 10 SCC 726; Common Cause v. Union of India & Ors. , (2018) 5 SCC 1. 86 PART G In Bandhua Mukti Morcha v. Union of India174 , a three-judge Bench identified the right to health within the right to life and dignity. In doing so, this Court drew on the Directive Principles of State Policy:

174 (1984) 3 SCC 161 175 (1995) 3 SCC 42 87 PART G Article 21 read with Articles 39(c) , 41 and 43 of the Constitution and makes the life of the workman meaningful and purposeful with dignity of person. Right to life includes protection of the health and strength of the worker and is a minimum requirement to enable a person to live with human dignity.” (Emphasis supplied) In a dissenting judgment in C.E.S.C. Limited v. Subhash Chandra Bose176, K Ramaswamy J observed that:

176 (1992) 1 SCC 441 177 (1996) 2 SCC 682 88 PART G In State of Punjab v. Ram Lubhaya Bagga178 , a three-judge Bench of this Court considered a challenge to the State of Punjab’s medical reimbursement policy. A.P. Mishra J, speaking for the Bench, observed that:

It is well settled that right to life guaranteed under Article 21 is not mere animal existence. It is a right to enjoy all faculties of life. As a necessary corollary, right to life includes right to healthy life.” 178 (1998) 4 SCC 117 179 (2001) 5 ALD 522 89 PART G In Devika Biswas v. Union of India180 , while hearing a public interest petition concerning several deaths that had taken place due to unsanitary conditions in sterilization camps across the country, a two judge Bench of this Court held that:

180 (2016) 10 SCC 726 90 PART G Declaration of Human Rights, 1948 (“UDHR”). Article 25 of the UDHR recognizes the right to health:

69 Article 12 of the International Covenant on Economic, Social and Cultural Rights (“ICESCR”) recognizes the right of all persons to the enjoyment of the highest attainable standard of physical and mental health:

PART G Pursuant to General Comment No. 14, India is required to provide marginalized populations, including members of the LGBTIQ community, goods and services that are available (in sufficient quantity), accessible (physically, geographically, economically and in a non-discriminatory manner), acceptable (respectful of culture and medical ethics) and of quality (scientifically and medically appropriate and of good quality). 70 As early as 1948, the World Health Organization (“WHO”) defined the term ‘health’ broadly to mean “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.”182 Even today, for a significant number of Indian citizens this standard of health remains an elusive aspiration. Of relevance to the present case, a particular class of citizens is denied the benefits of this constitutional enunciation of the right to health because of their most intimate sexual choices. 71 Sexuality is a natural and precious aspect of life, an essential and fundamental part of our humanity.183 Sexual rights are entitlements related to sexuality and emanate from the rights to freedom, equality, privacy, autonomy, and dignity of all people.184 For people to attain the highest 182Definitioncontained in the Preamble to the WHO Constitution (1948). 183 Sexual Rights, International Planned Parenthood Federation (2008). 184 Ibid.

92 PART G standard of health, they must also have the right to exercise choice in their sexual lives and feel safe in expressing their sexual identity. However, for some citizens, discrimination, stigma, fear and violence prevent them from attaining basic sexual rights and health.

72 Individuals belonging to sexual and gender minorities experience discrimination, stigmatization, and, in some cases, denial of care on account of their sexual orientation and gender identity.185 However, it is important to note that ‘sexual and gender minorities’ do not constitute a homogenous group, and experiences of social exclusion, marginalization, and discrimination, as well as specific health needs, vary considerably.186 Nevertheless, these individuals are united by one factor - that their exclusion, discrimination and marginalization is rooted in societal heteronormativity and society’s pervasive bias towards gender binary and opposite-gender relationships, which marginalizes and excludes all non-heteronormative sexual and gender identities.187 This, in turn, has important implications for individuals’ health-seeking behaviour, how health services are provided, and the extent to which sexual health can be achieved.188 185 Alexandra Muller, “Health for All? Sexual Orientation, Gender Identity, and the Implementation of the Right to Access to Health Care in South Africa”, Health and Human Rights (2016) at pages 195–208. 186 Institute of Medicine, “The Health of Lesbian, Gay, Bisexual, and Transgender People: Building a Foundation for Better Understanding”, National Academies Press (2011). 187 Supra note 185, at pages 195–208.

93 PART G 73 The term ‘sexual health’ was first defined in a 1975 WHO Technical Report series as “the integration of the somatic, emotional, intellectual and social aspects of sexual being, in ways that are positively enriching and that enhance personality, communication and love.”189 The WHO’s current working definition of sexual health is as follows:

PART G 74 A report entitled “Sexual Health, Human Rights and the Law”,190 published by the WHO in 2015 explores the relationship between these concepts. The report notes that “human sexuality includes many different forms of behaviour and expression, and that the recognition of the diversity of sexual behaviour and expression contributes to people’s overall sense of health and well-being.”191 It emphasizes the importance of sexual health by stating that not only is it essential to the physical and emotional well-being of individuals, couples and families, but it is also fundamental to the social and economic development of communities and countries.192 The ability of individuals to progress towards sexual health and well-being depends on various factors, including “access to comprehensive information about sexuality, knowledge about the risks they face and their vulnerability to the adverse consequences of sexual activity; access to good quality sexual health care, and an environment that affirms and promotes sexual health.” 75 The International Women’s Health Coalition has located the right to sexual health within ‘sexual rights’, defined as follows:193 “Sexual rights embrace certain human rights that are already recognized in national laws, international human rights documents, and other consensus documents. They rest on the recognition that all individuals have the right—free of 190 World Health Organisation, “Sexual Health, Human Rights and the Law” (2015). 191 Ibid.

193 International Women’s Health Coalition, “Sexual Rights are Human Rights” (2014). 95 PART G coercion, violence, and discrimination of any kind—to the highest attainable standard of sexual health; to pursue a satisfying, safe, and pleasurable sexual life; to have control over and decide freely, and with due regard for the rights of others, on matters related to their sexuality, reproduction, sexual orientation, bodily integrity, choice of partner, and gender identity; and to the services, education, and information, including comprehensive sexuality education, necessary to do so.” The discussion of ‘sexual rights’ (as they pertain to sexuality and sexual orientation) within the framework of the right to health is a relatively new phenomenon:194 “..Before the 1993 World Conference on Human Rights in Vienna, and the subsequent 1994 International Conference on Population and Development in Cairo, sexuality, sexual rights, and sexual diversity had not formed part of the international health and human rights discourse. These newly emerged “sexual rights” were founded on the principles of bodily integrity, personhood, equality, and diversity.”195 (Emphasis supplied) 76 The operation of Section 377 denies consenting adults the full realization of their right to health, as well as their sexual rights. It forces consensual sex between adults into a realm of fear and shame, as persons who engage in anal and oral intercourse risk criminal sanctions if they seek health advice. This lowers the standard of health enjoyed by them and particularly by members of sexual and gender minorities, in relation to the rest of society.

194 Supra note 185, at pages 195–208.

195 Supra note 185, at pages 195–208.

96 PART G 77 The right to health is not simply the right not to be unwell, but rather the right to be well. It encompasses not just the absence of disease or infirmity, but “complete physical, mental and social well being”,196 and includes both freedoms such as the right to control one’s health and body and to be free from interference (for instance, from non-consensual medical treatment and experimentation), and entitlements such as the right to a system of healthcare that gives everyone an equal opportunity to enjoy the highest attainable level of health.

78 The jurisprudence of this Court, in recognizing the right to health and access to medical care, demonstrates the crucial distinction between negative and positive obligations. Article 21 does not impose upon the State only negative obligations not to act in such a way as to interfere with the right to health. This Court also has the power to impose positive obligations upon the State to take measures to provide adequate resources or access to treatment facilities to secure effective enjoyment of the right to health.197 79 A study of sexuality and its relationship to the right to health in South Africa points to several other studies that suggest a negative correlation between sexual orientation-based discrimination and the right to health:

PART G “For example, in a Canadian study, Brotman and colleagues found that being open about their sexual orientation in health care settings contributed to experiences of discrimination for lesbian, gay, and bisexual people.”198 “Lane and colleagues interviewed men who have sex with men in Soweto, and revealed that all men who disclosed their sexual orientation at public health facilities had experienced some form of discrimination. Such discrimination [‘ranging from verbal abuse to denial of care’199], and also the anticipation thereof, leads to delays when seeking sexual health services such as HIV counseling and testing.”200 80 Alexandra Muller describes the story of two individuals who experienced such discrimination. T, a gay man, broke both his arms while fleeing from a group of people that attacked him because of his sexuality. At the hospital, the staff learned about T’s sexual orientation, and pejoratively discussed it in his presence. He also had to endure “a local prayer group that visited the ward daily to provide spiritual support to patients” which “prayed at his bedside to rectify his “devious” sexuality. When he requested that they leave, or that he be transferred to another ward, the nurses did not intervene, and the prayer group visited regularly to continue to recite their homophobic prayers. T did not file an official complaint, fearing future ramifications in accessing care. Following his discharge, he decided not to return for follow up appointments and had his casts removed at another facility.201 198 Supra note 185, at pages 195–208.

98 PART G Another woman, P, who had been with her female partner for three years, wanted to get tested for HIV. The nurse at the hospital asked certain questions to discern potential risk behaviours. When asked why she did not use condoms or contraception, P revealed that she did not need to on account of her sexuality. The nurse immediately exclaimed that P was not at risk for HIV, and that she should “go home and not waste her time any longer.” P has not attempted to have another HIV test since.202 These examples are illustrative of a wider issue: individuals across the world are denied access to equal healthcare on the basis of their sexual orientation. That people are intimidated or blatantly denied healthcare access on a discriminatory basis around the world proves that this issue is not simply an ideological tussle playing out in classrooms and courtrooms, but an issue detrimentally affecting individuals on the ground level and violating their rights including the right to health.

81 The right to health is one of the major rights at stake in the struggle for equality amongst gender and sexual minorities:203 “The right to physical and mental health is at conflict with discriminatory policies and practices, some physicians' homophobia, the lack of adequate training for health care 202 Ibid.

203 Study Guide: Sexual Orientation and Human Rights, University of Minnesota Human RIghts Library (2003). 99 PART G personnel regarding sexual orientation issues or the general assumption that patients are heterosexuals.”204 While the enumeration of the right to equal healthcare is crucial, an individual’s sexual health is also equally significant to holistic well-being. A healthy sex life is integral to an individual’s physical and mental health, regardless of whom an individual is attracted to. Criminalising certain sexual acts, thereby shunning them from the mainstream discourse, would invariably lead to situations of unsafe sex, coercion, and a lack of sound medical advice and sexual education, if any at all.

82 A report by the Francois-Xavier Bagnoud Center for Health and Human Rights at Harvard School of Public Health defines the term ‘sexual health’ as follows:

83 Laws that criminalize same-sex intercourse create social barriers to accessing healthcare, and curb the effective prevention and treatment of 204 Ibid.

205 Center for Health and Human Rights and Open Society Foundations. “Health and Human Rights Resource Guide (2013).

100 PART G HIV/AIDS.206 Criminal laws are the strongest expression of the State’s power to punish certain acts and behaviour, and it is therefore incumbent upon the State to ensure full protection for all persons, including the specific needs of sexual minorities. The equal protection of law mandates the state to fulfill this constitutional obligation. Indeed, the state is duty bound to revisit its laws and executive decisions to ensure that they do not deny equality before the law and the equal protection of laws. That the law must not discriminate is one aspect of equality. But there is more. The law must take affirmative steps to achieve equal protection of law to all its citizens, irrespective of sexual orientation.

In regard to sexuality and health, it is important to distinguish between behaviour that is harmful to others, such as rape and coerced sex, and that which is not, such as consensual same-sex conduct between adults, conduct related to gender-expression such as cross-dressing, as well as seeking or providing sexual and reproductive health information and services. The use of criminal laws in relation to an expanding range of otherwise consensual sexual conduct has been found to be discriminatory by international and 206 Supra note 172.

101 PART G domestic courts, often together with violations of other human rights, such as the rights to privacy, self-determination, human dignity and health.207 G.I Section 377 and HIV prevention efforts 84 Section 377 has a significant detrimental impact on the right to health of those persons who are susceptible to contracting HIV – men who have sex with men (“MSM”)208 and transgender persons.209 The Global Commission on HIV and the Law has noted the impact of Section 377 on the right of health of persons afflicted with or vulnerable to contracting HIV:

PART G solidarity that is necessary to overcome this global epidemic.”210 85 Mr Anand Grover, learned Senior Counsel in his submissions, highlighted the vulnerability of MSM and transgender persons. According to a study published by the Global Commission on HIV and the Law, MSM were found to be 19 times more susceptible to be infected with HIV than other adult men.211 86 The UN Human Rights Committee has recognized the impact of the criminalization of homosexuality on the spread of HIV/AIDS. In Toonen v Australia212, a homosexual man from Tasmania, where homosexual sex was criminalized, argued that criminalization of same-sex activities between consenting adults was an infringement of his right to privacy under Article 17 of the International Covenant on Civil and Political Rights (“ICCPR”). The Committee rejected the argument of the Tasmanian authorities that the law was justified on grounds of public health and morality as it was enacted to prevent the spread of HIV/AIDS in Tasmania. The Committee observed that:

PART G Criminalization of homosexual activity thus would appear to run counter to the implementation of effective education programmes in respect of the HIV/AIDS prevention. Secondly, the Committee notes that no link has been shown between the continued criminalization of homosexual activity and the effective control of the spread of the HIV/AIDS virus.” In response to the Committee’s decision, a law was enacted to overcome the Tasmanian law criminalizing homosexual sex.

87 Section 377 has had far-reaching consequences for this “key population”, pushing them out of the public health system. MSM and transgender persons may not approach State health care providers for fear of being prosecuted for engaging in criminalized intercourse. Studies show that it is the stigma attached to these individuals that contributes to increased sexual risk behaviour and/or decreased use of HIV prevention services.213 88 The silence and secrecy that accompanies institutional discrimination may foster conditions which encourage escalation of the incidence of HIV/AIDS.214 The key population is stigmatized by health providers, employers and other service providers.215 As a result, there exist serious obstacles to effective HIV prevention and treatment as discrimination and 213 Beena Thomas, Matthew J. Mimiaga, Senthil Kumar, Soumya Swaminathan, Steven A. Safren, and Kenneth H. Mayer, “HIV in Indian MSM: Reasons for a concentrated epidemic & strategies for prevention”, Indian Journal Medical Research (2011), at pages 920–929.

104 PART G harassment can hinder access to HIV and sexual health services and prevention programmes.216 89 An incisive article, based on extensive empirical research carried out in various countries, has concluded that there is a demonstrable relationship between “laws which criminalize same-sex conduct and adverse health effects on HIV-AIDs rates as well as other health indicators for the MSM community” due to poor access to key HIV prevention tools and outreach programmes.217 According to a report published by the Joint United Nations Programme on HIV/AIDS (“UNAIDS”), in Caribbean countries where same- sex relations are criminalised, almost one in four MSMs is infected with HIV.218 In the absence of such criminal provisions, the prevalence of HIV is one in fifteen among MSMs.219 90 Closer to home, the UNAIDS project found that in the four years following the judgement in Naz, there had been an increase of more than 50% in the number of healthcare centers providing HIV services to MSM and transgender persons in India.220 If same-sex relations remain criminalised, it is 216 Ibid.

217 Supra note 172, at page 636.

218 Supra note 210, at page 45.

220 UNAIDS, “UNAIDS Calls on India and All Countries to Repeal Laws That Criminalize Adult Consensual Same Sex Sexual Conduct” (2013).

105 PART G likely that HIV interventions for MSMs will continue to be inadequate, MSMs will continue to be marginalised from health services, and the prevalence of HIV will exacerbate.221 91 To safeguard the health of persons who are at the greatest risk of HIV infection, it is imperative that access is granted to effective HIV prevention and treatment services and commodities such as clean needles, syringes, condoms and lubricants.222 A needle or a condom can only be considered a concrete representation of the entitlements of vulnerable groups: the fundamental human rights of dignity, autonomy and freedom from ill- treatment, along with the right to the highest attainable standard of physical and mental health, without regard to sexuality or legal status.223 This is the mandate of the Directive Principles contained in Part IV of the Constitution. 92 In 2017, Parliament enacted the HIV (Prevention and Control) Act, to provide for the prevention and control of the spread of HIV/AIDS and for the protection of the human rights of persons affected. Parliament recognized the importance of prevention interventions for vulnerable groups including MSMs. Section 22 of this Act provides for protection against criminal sanctions as well as any civil liability arising out of promoting actions or practices or “any 221 UNAIDS, “Judging the Epidemic: A Judicial Handbook on HIV, Human Rights and the Law” (2013) at page 165. 222 Supra note 210, at page 26.

223 Ibid, at page 26.

106 PART G strategy or mechanism or technique” undertaken for reducing the risk of HIV transmission. Illustrations (a) and (b) to Section 22 read as follows:

Neither M nor N can be held criminally or civilly liable for such actions or be prohibited, impeded, restricted or prevented from implementing or using the intervention.” Persons who engage in anal or oral intercourse face significant sexual health risks due to the operation of Section 377. Prevalence rates of HIV are high, particularly among men who have sex with men. Discrimination, stigma and a lack of knowledge on the part of many healthcare providers means that these individuals often cannot and do not access the health care they need. In order to promote sexual health and reduce HIV transmission among LGBT individuals, it is imperative that the availability, effectiveness, and quality of health services to the LGBT community be significantly improved. Under our constitutional scheme, no minority group must suffer deprivation of a constitutional right because they do not adhere to the majoritarian way of life. By the application of Section 377 of the Indian Penal Code, MSM and transgender persons are excluded from access to healthcare due to the 107 PART G societal stigma attached to their sexual identity. Being particularly vulnerable to contraction of HIV, this deprivation can only be described as cruel and debilitating. The indignity suffered by the sexual minority cannot, by any means, stand the test of constitutional validity. G.2 Mental health 93 The treatment of homosexuality as a disorder has serious consequences on the mental health and well-being of LGBT persons. The mental health of citizens “growing up in a culture that devalues and silences same-sex desire” is severely impacted.224 Global psychiatric expert Dinesh Bhugra has emphasised that radical solutions are needed to combat the high levels of mental illness among the LGBT population stating there is a “clear correlation between political and social environments” and how persecutory laws against LGBT individuals are leading to greater levels of depression, anxiety, self-harm, and suicide. Even in Britain, gay people are at greater risk of a range of mental health problems, and, it is believed, are more likely to take their own lives.

“A number of studies this year have highlighted the disproportionate levels of mental illness among LGBT people. In Britain, one of the world's most legally equal countries for this community, research in the last few months has revealed that LGBT people are nearly twice as likely to have 224 Ketki Ranade, “Process of Sexual Identity Development for Young People with Same Sex Desires: Experiences of Exclusion”, Psychological Foundations - The Journal (2008). 108 PART G attempted suicide or harmed themselves, gay men are more than twice as likely to have a mental illness than heterosexual men, and 4 in 5 transgender people have suffered depression in the last five years.”225 (Emphasis supplied) He discusses studies from various countries which indicate that in countries where laws continue to discriminate against LGBT individuals, there are high rates of mental illness. Similarly he states that there have been a series of studies showing that in America, rates of psychiatric disorders have dropped when state policies have recognised the equal rights of LGBT individuals. 94 Mr Chander Uday Singh, learned Senior Counsel appearing on behalf of an intervenor, a psychiatrist, has brought to our notice how even the mental health sector has often reflected the societal prejudice regarding homosexuality as a pathological condition.

95 Medical and scientific authority has now established that consensual same sex conduct is not against the order of nature and that homosexuality is natural and a normal variant of sexuality. Parliament has provided legislative acknowledgment of this global consensus through the enactment of the Mental Healthcare Act, 2017 . Section 3 of the Act mandates that mental illness is to be determined in accordance with ‘nationally’ or ‘internationally’ 225 Dinesh Bhugra, globally renowned psychiatrist (article annexed in compilation provided by Mr. Chander Uday Singh, learned Senior Counsel).

109 PART G accepted medical standards. The International Classification of Diseases (ICD-10) by the World Health Organisation is listed as an internationally accepted medical standard and does not consider non-peno-vaginal sex between consenting adults either a mental disorder or an illness. The Act through Section 18(2)226 and Section 21227 provides for protection against discrimination on the grounds of sexual orientation. The repercussions of prejudice, stigma and discrimination continue to impact the psychological well-being of individuals impacted by Section 377. Mental health professionals can take this change in the law as an opportunity to re- examine their own views of homosexuality.

96 Counselling practices will have to focus on providing support to homosexual clients to become comfortable with who they are and get on with their lives, rather than motivating them for change. Instead of trying to cure something that isn’t even a disease or illness, the counsellors have to adopt a more progressive view that reflects the changed medical position and 226 Section 18. Right to access mental healthcare.—(1) Every person shall have a right to access mental healthcare and treatment from mental health services run or funded by the appropriate Government. (2) The right to access mental healthcare and treatment shall mean mental health services of affordable cost, of good quality, available in sufficient quantity, accessible geographically, without discrimination on the basis of gender, sex, sexual orientation, religion, culture, caste, social or political beliefs, class, disability or any other basis and provided in a manner that is acceptable to persons with mental illness and their families and care-givers. 227 Section 21. Right to equality and non-discrimination.—(1) Every person with mental illness shall be treated as equal to persons with physical illness in the provision of all healthcare which shall include the following, namely:—

(a) there shall be no discrimination on any basis including gender, sex, sexual orientation, religion, culture, caste, social or political beliefs, class or disability. 110 PART H changing societal values. There is not only a need for special skills of counsellors but also heightened sensitivity and understanding of LGBT lives. The medical practice must share the responsibility to help individuals, families, workplaces and educational and other institutions to understand sexuality completely in order to facilitate the creation of a society free from discrimination228 where LGBT individuals like all other citizens are treated with equal standards of respect and value for human rights.

the State Legislatures under Articles 245 and 246 of the Constitution. Parliament and the State Legislatures are empowered to create offences against laws with respect to the heads of legislation, falling within the purview of their legislative authority. (See Entry 93 of List I and Entry 64 of List II of the Seventh Schedule). Criminal law is a subject which falls within the Concurrent List. Entry I of List III provides thus:

228 Vinay Chandran, “From judgement to practice: Section 377 and the medical sector”, Indian Journal of Medical Ethics, Vol. 4 (2009).

111 PART H The power to enact legislation in the field of criminal law has been entrusted to Parliament and, subject to its authority, to the State Legislatures. Both Parliament and the State Legislatures can enact laws providing for offences arising out of legislation falling within their legislative domains. The authority to enact law, however, is subject to the validity of the law being scrutinised on the touchstone of constitutional safeguards. A citizen, or, as in the present case, a community of citizens, having addressed a challenge to the validity of a law which creates an offence, the authority to determine that question is entrusted to the judicial branch in the exercise of the power of judicial review. The Court will not, as it does not, in the exercise of judicial review, second guess a value judgment made by the legislature on the need for or the efficacy of legislation. But where a law creating an offence is found to be offensive to fundamental rights, such a law is not immune to challenge. The constitutional authority which is entrusted to the legislatures to create offences is subject to the mandate of a written Constitution. Where the validity of the law is called into question, judicial review will extend to scrutinising whether the law is manifestly arbitrary in its encroachment on fundamental liberties. If a law discriminates against a group or a community of citizens by denying them full and equal participation as citizens, in the rights and liberties granted by the Constitution, it would be for the Court to adjudicate upon validity of such a law.

upon States to protect all individuals from violations of their human rights, including on the basis of their sexual orientation.229 Nevertheless, laws criminalizing same-sex relations between consenting adults remain on the statute books in more than seventy countries. Many of them, including so- called “sodomy laws”, are vestiges of colonial-era legislation that prohibits either certain types of sexual activity or any intimacy or sexual activity between persons of the same sex.230 In some cases, the language used refers to vague and indeterminate concepts, such as ‘crimes against the order of nature’, ‘morality’, or ‘debauchery’.231 There is a familiar ring to it in India, both in terms of history and text.

99 International law today has evolved towards establishing that the criminalization of consensual sexual acts between same-sex adults in private contravenes the rights to equality, privacy, and freedom from discrimination. These rights are recognised in international treaties, covenants, and 229 Dominic McGoldrick, “The Development and Status of Sexual Orientation Discrimination under International Human Rights Law”, Human Rights Law Review, Vol. 16 (2016). 230 UN Human Rights Council, “Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity” (2011). 231 UN Human Rights Council, “Promotion and Protection of all Human Rights, Civil, Political, Economic, Social and Cultural Rights, including the Right to Development” (2008). 113 PART I agreements which India has ratified, including the UDHR, ICCPR, and the ICESCR. India has a constitutional duty to honour these internationally recognized rules and principles.232 Article 51 of the Constitution, which forms part of the Directive Principles of State Policy, requires the State to endeavour to “foster respect for international law and treaty obligations in the dealings of organised peoples with one another.” 100 The human rights treaties that India has ratified require States Parties to guarantee the rights to equality before the law, equal protection of the law and freedom from discrimination. For example, Article 2 of the ICESCR requires states to ensure that:

101 The Committee on Economic, Social and Cultural Rights - the body mandated by the ICESCR to monitor States Parties’ implementation of the treaty – has stated that “other status” in article 2 (2) includes sexual orientation, and reaffirmed that “gender identity is recognized as among the 232 Vishaka v State of Rajasthan , (1997) 6 SCC 241. 114 PART I prohibited grounds of discrimination”, as “persons who are transgender, transsexual or intersex often face serious human rights violations.”233 102 The prohibition against discrimination in the ICCPR is contained in Article 26 , which guarantees equality before the law:

PART I Similarly, Article 17 of the ICCPR, which India ratified on 11 December 1977, provides that:

103 In NALSA, while dealing with the rights of transgender persons, this Court recognized the ‘Yogyakarta Principles on the Application of International Law in Relation to Issues of Sexual Orientation and Gender Identity’ – which 235 Supra note 230, at page 6.

116 PART I outline the rights that sexual minorities enjoy as human persons under the protection of international law – and held that they should be applied as a part of Indian law. Principle 33 provides thus:

PART J J Transcending borders - comparative law 105 Over the past several decades, international and domestic courts have developed a strong body of jurisprudence against discrimination based on sexual orientation. This section analyses the evolution of the perspective of the law towards sexual orientation from a comparative law perspective, and looks at how sodomy laws have been construed in various jurisdictions based on their histories.

106 In 1967, England and Wales decriminalized same-sex intercourse between consenting adult males in private, and in 1980, Scotland followed suit. The law in Northern Ireland only changed in 1982 with the decision of the ECtHR in Dudgeon v The United Kingdom (“Dudgeon”).237 The Petitioners challenged the Offences against the Person Act, 1861, the Criminal Law Amendment Act, 1885 and a sodomy law that made buggery and “gross indecency” a criminal offense, irrespective of consent. Although the law did not specifically define these terms, the Court interpreted ‘buggery’ to mean anal intercourse by a man with a man or woman and gross indecency to mean any act “involving sexual indecency between male persons.” Regarding acts prohibited by these provisions, the ECtHR observed that:

PART J “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:

PART J penalties provided for, disproportionate to the aims sought to be achieved.”239 Later, in Norris v Ireland240, the Applicant challenged Ireland's criminalization of certain homosexual acts between consenting adult men as being violative of Article 8 of the European Convention on Human Rights, which protected the right to respect for private and family life. The ECtHR held that the law violated Article 8 , regardless of whether it was actively enforced:

107 Five years after Dudgeon, the United States Supreme Court, in Bowers v. Hardwick (“Bowers”)242, held that “sodomy” laws had been a significant part of American history and did not violate the Constitution. The Supreme Court’s reasoning in Bowers is a clear departure from that of the 239 Ibid, at para 61.

241 Application No. 15070/89,16 EHRR 485. 242 478 U.S. 186 (1986).

120 PART J ECtHR in Dudgeon. In Bowers, the Supreme Court declined to accept that the question concerned the right to privacy. Instead, it stated that the issue was about "a fundamental right upon homosexuals to engage in sodomy”,243 which was held not to be protected by the US Constitution. Seventeen years later, the United States Supreme Court laid the constitutional foundation for LGBT rights in the country with its judgment in Lawrence v Texas (“Lawrence” ).244 In Lawrence, the Petitioner had been arrested under a Texas statute, which prohibited same-sex persons from engaging in sexual conduct, regardless of consent. The validity of the statute was considered. Relying on Dudgeon, the U S Supreme Court struck down the statute as violative of the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution. Overruling the judgment in Bowers, Justice Kennedy, writing for the majority, upheld Justice Stevens’ dissent in Bowers – who was also part of the majority in Lawrence – to note that:

243 Bowers, at para 190.

244 539 U.S. 558 (2003).

121 PART J decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of “liberty” protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons.”245 He also noted that the case concerned the private, personal relationships of consenting adults, and that the laws challenged did not further any legitimate state interest:

245 Bowers, at para 216.

122 PART J subject homosexual persons to discrimination both in the public and in the private spheres.” The Court thus struck down the Texas law banning “deviate sexual intercourse” between persons of the same sex (and similar laws in 13 other US states and Puerto Rico), holding that:

The 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 123 PART J Toonen challenged these laws as violative of Article 2(1)246 , Article 17247 and Article 26248 of the ICCPR, on the ground that:

246 Article 2(1): Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

247 Article 17: No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 248 Article 26: All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 249 Toonen, at para 2.4.

250 Toonen, at para. 8.5.

124 PART J The Court concluded that the legislation was violative of Article 7 of the ICCPR, holding that:

251 Toonen, at para 8.2.

253 Robert Wintemute, “Same-Sex Love and Indian Penal Code §377: An Important Human Rights Issue for India” National University of Juridical Sciences Law Review, (2011). 254 Case No. 111-97-TC (27 November 1997). 125 PART J reasoning was that “this abnormal behaviour should be the object of medical treatment ... imprisonment in jails, creates a suitable environment for the development of this dysfunction.” The Tribunal’s line of reasoning – referring to homosexual activity as ‘abnormal behaviour’, requiring medical treatment – is seriously problematic.255 That assumption is unfounded in fact and is an incorrect doctrine for a constitutional court which protects liberty and dignity. However ultimately, the Tribunal struck down the first paragraph of Article 516 of the Penal Code, holding that:

PART J 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:

PART J between consenting adults which causes no harm to anyone else. This intrusion on the innermost sphere of human life violates the constitutional right to privacy. The fact that the offences, which lie at the heart of the discrimination, also violate the rights to privacy and dignity strengthens the conclusion that the discrimination against gay men is unfair.” In its conclusion, the Court held that all persons have a right to a “sphere of private intimacy and autonomy that allows [them] to establish and nurture human relationships without interference from the outside community.”260 113 In 2005, the High Court of Fiji, in Dhirendra Nadan Thomas McCoskar v. State261 , struck down provisions of the Fijian Penal Code, which punished any person who permits a male person to have “carnal knowledge” of him, as well as acts of “gross indecency” between male persons. The High Court read down the provisions to the extent that they were inconsistent with the Constitution of Fiji, drawing a clear distinction between consensual and non- consensual sexual behavior:

PART J of keeping sexual expression in check by protecting the vulnerable and penalizing the predator.” (Emphasis supplied) In recent years, the Caribbean States of Belize and Trinidad and Tobago have also decriminalized consensual sexual acts between adults in private. In Caleb Orozco v. The Attorney General of Belize (“Caleb Orozco”)262, provisions of the Belize Criminal Code which penalized “every person who has intercourse against the order of nature with any person…” were challenged before the Supreme Court. Commenting on the concept of dignity, Justice Benjamin borrowed from the Canadian Supreme Court’s observations and noted that:263 “Human dignity means that an individual or group feels self- respect and self-worth. It is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to the individual needs, capacities or merits. It is enhanced by laws which are sensitive to the needs, capacities and merits of different individuals, taking into account the context underlying the differences.” (Emphasis supplied) Relying on the judgments in Dudgeons, National Coalition, McCoskar, Toonen, and Lawrence, the Supreme Court struck down the provision as violative of the claimant’s constitutional rights to privacy, dignity, and equality. Justice Benjamin held thus:

262 Claim No. 668 of 2010.

PART J “However, from the perspective of legal principle, the Court cannot act upon prevailing majority views or what is popularly accepted as moral…There must be demonstrated that some harm will be caused should the proscribed conduct be rendered unregulated. No evidence has been presented as to the real likelihood of such harm. The duty of the Court is to apply the provisions of the Constitution.”264 114 In Jason Jones v. The Attorney General of Trinidad and Tobago (“Jones”)265, an expatriate gay rights activist living in the United Kingdom challenged the provisions of Trinidad and Tobago’s Sexual Offences Act, which criminalized ‘buggery’ and ‘serious indecency’ before the High Court of Justice at Trinidad and Tobago. The central issue before the Court was whether the provisions were ‘saved’ under Section 6 of the Constitution, which protects laws that were in existence before the Constitution came into force and were only marginally changed since, from being struck down for breach of fundamental rights.

The High Court struck down the provisions as unconstitutional, observing that the right to choose a partner and to have a family is intrinsic to an individual’s personal autonomy and dignity:

PART J unreasonable intervention by the State. In a case such as this, she/he must be able to make decisions as to who she/he loves, incorporates in his/her life, who she/he wishes to live with and with who to make a family.”266 The High Court also held that the existence of such laws deliberately undermined the lives of homosexuals:

PART J 115 In Leung TC William Roy v. Secretary for Justice269, the High Court of Hong Kong considered the constitutional validity of provisions that prescribed different ages of consent for buggery and regular sexual intercourse. The court held that these provisions violated the petitioner’s rights to privacy and equality:

PART J engage in consensual sexual activity in private, and include the right to full citizenship, the right to form unions and the right to family life. 116 Israel was one of the first countries to recognize the rights of homosexuals against discrimination in matters of employment. In El-Al Israel Airlines Ltd v. Jonathan Danielwitz (“El-Al Israel Airlines”)272, the Supreme Court of Israel considered an airline company’s policy of giving discounted tickets to their employees and a ‘companion recognized as the husband/wife of the employee’. This benefit was also given to a partner with whom the employee was living together like husband and wife, but not married. However, the airline refused to give the discounted tickets to the Respondent and his male partner.

The Supreme Court of Israel observed thus:

PART J The Supreme Court held that giving a benefit to an employee who has a spouse of the opposite sex and denying the same benefit to an employee whose spouse is of the same sex amounts to discrimination based on sexual orientation. This violated the Petitioner’s right to equality and created an unjustifiable distinction in the context of employee benefits. 117 In Vriend v Alberta274, the appellant, a homosexual college employee, was terminated from his job. He alleged that his employer had discriminated against him because of his sexual orientation, but that he could not make a complaint under Canada’s anti-discrimination statute – the Individual’s Rights Protection Act (“IRPA”) – because it did not include sexual orientation as a protected ground. The Supreme Court of Canada held that the omission of protection against discrimination on the basis of sexual orientation was an unjustified violation of the right to equality under the Canadian Charter of Rights and Freedoms.

118 The Supreme Court held that the State had failed to provide a rational justification for the omission of sexual orientation as a protected ground under the IRPA. Commenting on the domino effect that such discriminatory measures have on the lives of homosexuals, the Supreme Court noted thus:

PART J “Perhaps most important is the psychological harm which may ensue from this state of affairs. Fear of discrimination will logically lead to concealment of true identity and this must be harmful to personal confidence and self-esteem. Compounding that effect is the implicit message conveyed by the exclusion, that gays and lesbians, unlike other individuals, are not worthy of protection. This is clearly an example of a distinction which demeans the individual and strengthens and perpetrates [sic] the view that gays and lesbians are less worthy of protection as individuals in Canada’s society. The potential harm to the dignity and perceived worth of gay and lesbian individuals constitutes a particularly cruel form of discrimination.” The next breakthrough for LGBTQ rights came from the Supreme Court of Nepal, in Sunil Babu Pant v. Nepal Government275. Sunil Pant – the first openly gay Asian national leader – filed a PIL before the Supreme Court of Nepal praying for the recognition of the rights of lesbians, gays, and third gender persons. The Supreme Court located the rights of LGBTQ persons to their sexuality within the right to privacy, holding that:

119 In 2015, in Oliari v Italy (“Oliari”)276, the Applicants before the ECtHR argued that the absence of legislation in Italy permitting same-sex marriage or any other type of civil union constituted discrimination on the basis of sexual orientation, in violation of Articles 8 , 12 , and 14 of the European Convention on Human Rights. In line with its previous case law, the Court affirmed that same-sex couples “are in need of legal recognition and protection of their relationship.”277 The ECtHR concluded that gay couples are equally capable of entering into stable and committed relationships in the same way as heterosexual couples.278 120 The ECtHR examined the domestic context in Italy, and noted a clear gap between the “social reality of the applicants”,279 who openly live their 276 [2015] ECHR 716 277 Oliari, at para 165.

279 Oliari, at para. 173.

136 PART J relationship, and the law, which fails to formally recognize same-sex partnerships. The Court held that in the absence of any evidence of a prevailing community interest in preventing legal recognition of same-sex partnerships, Italian authorities “have overstepped their margin of appreciation and failed to fulfil their positive obligation to ensure that the applicants have available a specific legal framework providing for the recognition and protection of their same-sex unions.”280 121 In 2013, in United States v. Windsor281, US Supreme Court considered the constitutionality of the Defense of Marriage Act (“DOMA”) which states that, for the purposes of federal law, the words ‘marriage’ and ‘spouse’ refer to legal unions between one man and one woman. Windsor, who had inherited the estate of her same-sex partner, was barred from claiming the federal estate tax exemption for surviving spouses since her marriage was not recognized by federal law.282 Justice Kennedy writing for the majority, held that restricting the federal interpretation of ‘marriage’ and ‘spouse’ to apply only to opposite-sex unions was unconstitutional under the Due Process Clause of the Fifth Amendment:

PART J operates to deprive same-sex couples of the benefits and responsibilities that come with federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of a class recognized and protected by state law. DOMA’s avowed purpose and practical effect are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.” Two years later, in Obergefell v. Hodges (“Obergefell”),283 while analysing precedent and decisions of other US courts recognizing same-sex marriage, Justice Kennedy observed that:

122 Justice Kennedy expressed the need to go beyond the narrow holding in Lawrence, towards a more expansive view of the rights of homosexuals:

PART J 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:

123 The recent case of Masterpiece Cakeshop v. Colorado Civil Rights Commission (“Masterpiece Cakeshop”)285 concerned a Christian baker who was accused of violating an anti-discrimination ordinance for refusing to make a wedding cake for a same-sex couple based on his religious beliefs. The Colorado Civil Rights Commission (“CCRC”) decided against the baker, and, on appeal, the Supreme Court ruled 7-2 that the CCRC violated the baker’s rights under the First Amendment, which guarantees freedom of expression. Writing for the majority, Justice Kennedy said the CCRC showed “hostility” to the baker’s religious beliefs:

PART J “It must be concluded that the State’s interest could have been weighed against Phillips’ sincere religious objections in a way consistent with the requisite religious neutrality that must be strictly observed. The official expressions of hostility to religion in some of the commissioners’ comments— comments that were not disavowed at the Commission or by the State at any point in the proceedings that led to affirmance of the order—were inconsistent with what the Free Exercise Clause requires. The Commission’s disparate consideration of Phillips’ case compared to the cases of the other bakers suggests the same. For these reasons, the order must be set aside.” The majority held that while the Constitution allows gay persons to exercise their civil rights, “religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.” The Supreme Court found merit in the baker’s First Amendment claim, noting that his dilemma was understandable, especially given that the cause of action arose in 2012, before the enactment of Colorado’s anti-discrimination law and the Obergefell judgment that legalised same-sex marriage. The court buttressed its position by noting that in several other cases, bakers had declined to decorate cakes with messages that were derogatory towards gay persons and the State Civil Rights Division had held that the bakers were within their rights to have done so. According to the majority in Masterpiece Cakeshop, the owner was similarly entitled to decline the order, and his case should have been treated no differently.

140 PART J 124 Justice Ginsburg’s dissenting opinion, which was supported by Justice Sotomayor, distinguished the baker in Masterpiece Cakeshop from the other three bakers. Justice Ginsburg noted that while the other bakers would have refused the said cake decorations to all customers, Phillips refused to bake a wedding cake (which he baked for other customers), specifically for the couple. She observed that:

125 Masterpiece Cakeshop is also distinguishable from a similar case, Lee v. Ashers Bakery Co. Ltd.286, which is currently on appeal to the United Kingdom Supreme Court. In that case, a bakery in Northern Ireland offered a 286 [2015] NICty 2.

141 PART J service whereby customers could provide messages, pictures or graphics that would be iced on a cake. Lee – a member of an LGBT organisation – ordered a cake with the words “support gay marriage” on it. The Christian owners refused, stating that preparing such an order would conflict with their religious beliefs. Lee claimed that in refusing his order, the bakery discriminated against him on grounds of sexual orientation. Both the County Court and the Court of Appeal ruled in favour of Lee, on the ground that the respondent’s refusal on the ground of his religious beliefs was contrary to the provisions of the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 and the Fair Employment and Treatment Order 1998.

From an analysis of comparative jurisprudence from across the world, the following principles emerge:

4. Such a law perpetrates stereotypes, lends authority of the state to societal stereotypes and has a chilling effect on the exercise of freedom;

5. The right to love and to a partner, to find fulfillment in a same-sex relationship is essential to a society which believes in freedom under a constitutional order based on rights;

6. Sexual orientation implicates negative and positive obligations on the state. It not only requires the state not to discriminate, but also calls for the state to recognise rights which bring true fulfillment to same-sex relationships; and

7. The constitutional principles which have led to decriminalization must continuously engage in a rights discourse to ensure that same-sex relationships find true fulfillment in every facet of life. The law cannot discriminate against same-sex relationships. It must also take positive steps to achieve equal protection.

The past two decades have witnessed several decisions by constitutional and international courts, recognizing both the decriminalization of same-sex intercourse in private, as well as broader rights recognizing sexual orientation equality. In 1996, South Africa became the first country in the world to 143 PART J constitutionally prohibit discrimination based on sexual orientation.287 As on the date of this judgment, ten countries constitutionally prohibit discrimination on grounds of sexual orientation.288 The United Kingdom, Bolivia, Ecuador, Fiji, and Malta specifically prohibit discrimination on the basis of gender identity, either constitutionally or through enacted laws.289 According the International Lesbian, Gay, Bisexual, Trans and Intersex Association, 74 countries (including India) criminalize same-sex sexual conduct, as of 2017.290 Most of these countries lie in the Sub-Saharan and Middle East region. Some of them prescribe death penalty for homosexuality.291 126 We are aware that socio-historical contexts differ from one jurisdiction to another and that we must therefore look at comparative law-making allowances for them. However, the overwhelming weight of international opinion and the dramatic increase in the pace of recognition of fundamental rights for same-sex couples reflects a growing consensus towards sexual orientation equality. We feel inclined to concur with the accumulated wisdom reflected in these judgments, not to determine the meaning of the guarantees 287 Amy Raub, “Protections Of Equal Rights Across Sexual Orientation And Gender Identity: An Analysis Of 193 National Constitutions”, Yale Journal of Law and Feminism, Vol. 28 (2017). 288 Ibid. Of these, three are in the Americas (Bolivia, Ecuador, and Mexico), four are in Europe and Central Asia (Malta, Portugal, Sweden, and the United Kingdom), two are in East Asia and the Pacific (Fiji and New Zealand), and one is in Sub-Saharan Africa (South Africa). 289 Ibid.

290 The International Lesbian, Gay, Bisexual, Trans And Intersex Association, “Sexual Orientation Laws of the World”, (2017).

144 PART K contained within the Indian Constitution, but to provide a sound and appreciable confirmation of our conclusions about those guarantees. This evolution has enabled societies governed by liberal constitutional values – such as liberty, dignity, privacy, equality and individual autonomy – to move beyond decriminalisation of offences involving consensual same-sex relationships. Decriminalisation is of course necessary to bury the ghosts of morality which flourished in a radically different age and time. But decriminalisation is a first step. The constitutional principles on which it is based have application to a broader range of entitlements. The Indian Constitution is based on an abiding faith in those constitutional values. In the march of civilizations across the spectrum of a compassionate global order, India cannot be left behind.

K Crime, morality and the Constitution 127 The question of what qualifies as a punishable offence under the law has played a central role in legal theory. Attempts have been made by legal scholars and jurists alike, to define a crime. Halsbury’s Laws of England defines a crime as “an unlawful act or default which is an offence against the 145 PART K public and renders the person guilty of the act or default liable to legal punishment.”292 As Glanville Williams observes:

PART K 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:

PART K actions which constitute a ‘public wrong’ will be classified as a crime.302 He characterised public wrongs as “a breach and violation of the public rights and duties, due to the whole community, considered as a community, in its social aggregate capacity.”303 Duff adds to the idea of public wrong by arguing that “[w]e should interpret a ‘public’ wrong, not as a wrong that injures the public, but as one that properly concerns the public, i.e. the polity as a whole.”304 Nozick and Becker also support the theory that crime is conduct that harms the public. Nozick argues that the harm caused by a crime, unlike other private law wrongs, extends beyond the immediate victim to all those who view themselves as potential victims of the crime.305 When such an act is done on purpose, it spreads fear in the general community, and it is due to this additional harm to the community [of causing fear and insecurity], that such actions are classified as crimes and pursued by the state.306 Becker preferred to describe crime as something which disrupts social stability and has “the potential for destructive disturbance of fundamental social structures.”307 302 Sir William Blackstone, Commentaries on the Laws of England, Book IV, Ch. 1 & 2. 303 Ibid.

304 Antony Duff and Sandra Marshall, “Criminalization and Sharing Wrongs”, Canadian Journal of Law and Jurisprudence, Vol. 11, (1998) at pages 7-22.

305 Robert Nozick, Anarchy, State and Utopia, Basic Books (1974) ,at page 65. 306 Supra note 301.

307 Lawrence C. Becker, “Criminal Attempts and the Theory of the Law of Crimes”, Philosophy & Public Affairs, Vol 3 (1974), at page 273.

148 PART K However, Hart questioned the theory of simply defining crime as a public wrong, for all wrongs affect society in some way or the other:

308 Supra note 294.

149 PART K According to Hart, the first three characteristics above are common to both civil and criminal law.310 However, the key differentiating factor between criminal and civil law, he observed, is the “community condemnation.” 311 Thus, he attempted to define crime as:

313 Jeremy Bentham, “Offences Against One's Self” (Louis Crompton Ed.), Columbia University. 150 PART K sodomy.314 According to Bentham, homosexuality, if viewed outside the realms of morality and religion, is neutral behaviour which gives the participants pleasure and does not cause pain to anyone else. 315 Therefore, he concluded that such an act cannot constitute an offence, and there is “no reason for punishing it at all.”316 130 Bentham tested sodomy laws on three main principles: (i) whether they produce any primary mischief, i.e., direct harm to another person; (ii) whether they produce any secondary mischief, i.e., harm to the stability and security of society; and (iii) whether they cause any danger to society.317 He argued that sodomy laws do not satisfy any of the above tests, and hence, should be repealed. On the first principle of primary mischief, Bentham said:

PART K Thus, Bentham argued that consensual homosexual acts do not harm anyone else. Instead, they are a source of pleasure to adults who choose to engage in them. Bentham was clear about the distinction between ‘willing’ partners and ‘unwilling’ partners, and the latter according to him, would not fall under his defence.

Bentham’s second argument was that there was no secondary mischief, which he described as something which may “produce any alarm in the community.” On this, Bentham argued:

PART K 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:

PART K greater evil.”323 Bentham stipulated four kinds of situations where it is not utilitarian to inflict punishment:

131 John Stuart Mill, in his treatise “On Liberty,” makes a powerful case to preclude governments from interfering in those areas of an individual’s life which are private. Mill’s theory, which came to be called the “harm principle”, suggests that the state can intrude into private life by way of sanction only if harm is caused to others or if the conduct is “other-affecting.”325 In Mill’s words:

PART K opinions of others, to do so would be wise, or even right… The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.” 326 (Emphasis supplied) Mill created a dichotomy between “self-regarding” actions (those which affect the individual himself and have no significant effect on society at large) and “other-regarding” actions (those which affect the society).327 He was aware that in a way, all actions of an individual are likely to affect “those nearly connected with him and, in a minor degree, society at large.”328 However, he argued that as long as an action does not “violate a distinct and assignable obligation to any other person or persons”, it may not be taken out of the self- regarding class of actions.329 Thus, Mill proposed that “all that portion of a person’s life and conduct which affects only himself, or, if it also affects others, only with their free, voluntary, and undeceived consent and participation” should be free from state interference.330 He further added that the state and society are not justified in interfering in the self-regarding sphere, merely because they believe certain conduct to be “foolish, perverse, or wrong.”331 326 Ibid.

155 PART K Essentially, Mill created a taxonomy on types of conduct – (a) self-regarding actions should not be the subject of sanctions either from the state or society;

(b) actions which may hurt others but do not violate any legal rights may only be the subject of public condemnation but not state sanction; (c) only action which violate the legal rights of others should be the subject of legal sanction (and public condemnation).332 The harm principle thus, operated as a negative or limiting principle, with the main objective of restricting criminal law from penalising conduct merely on the basis of its perceived immorality or unacceptability when the same is not harmful.333 While Mill’s theory was not propounded in relation to LGBTQ rights, his understanding of criminal law is well-suited to argue that sodomy laws criminalise ‘self-regarding’ actions which fall under the first category of conduct, and should not be subjected to sanctions either by the state or the society.

132 A jurisprudential debate on the interplay between criminal law and morality was set off when Lord Devlin delivered the 1959 Maccabean Lecture, 332 Mark Strasser, “Lawrence, Mill, and Same Sex Relationships: On Values, Valuing and the Constitution”, Southern California Interdisciplinary Law Journal, Vol. 15 (2006). 333 Joseph Raz, ‘Autonomy, Toleration and the Harm Principle’, in Issues in Contemporary Legal Philosophy: The Influence of HLA Hart (R. Gavison ed.), Oxford University Press (1987). 156 PART K titled “The Enforcement of Morals.”334 Lord Devlin’s lecture was an attack against the Report of the Wolfenden Committee on Homosexual Offences and Prostitution (“Wolfenden Report”), which had recommended the decriminalisation of sodomy laws in England.335 The Wolfenden Committee, headed by Sir John Wolfenden, Vice-Chancellor of Reading University, was set up in 1954 to consider the criminalisation of homosexuality and prostitution, in the wake of increased arrests and convictions in the UK for homosexuality between men.336 Among those prosecuted for ‘gross indecency’ under the Buggery Act of 1553 and Sexual Offences Act of 1967 were eminent persons like Oscar Wilde, Alan Turing and Lord Montagu of Beaulieu.337 After conducting a three-year long inquiry, carrying out empirical research, and interviewing three gay men, the Wolfenden Committee released its Report in 1957.338 The Wolfenden Report recommended that:

334 Graham Hughes, “Morals and the Criminal Law”, The Yale Law Journal, Vol.71 (1962). 335 Supra note 29.

339 Supra note 29, at paras 61 and 62.

157 PART K The Wolfenden Report stated that “it is not the purpose of law to intervene in the private lives of citizens, or to seek to enforce any particular pattern of behaviour…”340 The Wolfenden Report acknowledged that the law and public opinion have a close relationship with each other – the law ought to “follow behind public opinion” so that it garners the community support, while at the same time, the law must also fortify and lead public opinion.341 However, it made out a strong case for divorcing morality from criminal law and stated that

- “moral conviction or instinctive feeling, however strong, is not a valid basis for overriding the individual’s privacy and for bringing within the ambit of the criminal law private sexual behaviour of this kind.”342 Stating that homosexuality is not a mental illness, the Wolfenden Report clarified that homosexuality is “a sexual propensity for persons of one’s own sex…[it] is a state or condition, and as such does not, and cannot, come within the purview of criminal law.”343 133 Lord Devlin, perturbed by the Wolfenden Report’s line of reasoning, framed questions on the issue of criminal law and morality:

2. If society has the right to pass judgment, has it also the right to use the weapon of the law to enforce it?”344 Devlin believed that society depends upon a common morality for its stability and existence.345 On the basis of this belief, Devlin answered the above questions in the affirmative, stating that – society has the right to pass judgments on all matters of morality and also the right to use law to enforce such morality.346 Devlin reasoned that society would disintegrate if a common morality was not observed. Therefore, society is justified in taking steps to preserve its morality as much as it preserves the government.347 Devlin proposed that the common morality or “collective judgment of the society” should be ascertained taking into consideration the “reasonable man.”348 According to him, a reasonable man is an ordinary man whose judgment “may largely be a matter of feeling.”349 He added that if the reasonable man believed a practice to be immoral, and held this belief honestly and dispassionately, then for the purpose of law such practice should be considered immoral.350 344 Sir Patrick Arthur Devlin, “The Enforcement Of Morals” Oxford University Press (1959) at page 9. 345 Supra note 334, at page 662.

346 Animesh Sharma, “Section 377: No Jurisprudential Basis.” Economic and Political Weekly, Vol. 43 (2008) at pages 12-14.

347 Supra note 344.

159 PART K 134 Countering Devlin’s theory, Hart argued that society is not held together by a common morality, for, after all, it is not a hive mind or a monolith, governed by a singular set of morals and principles.351 Hart rebutted Devlin’s argument in the following way:

PART K “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:

PART K principle that power should be in the hands of the majority with the utterly different claim that the majority, with power in their hands, need respect no limits”358:

PART K “The strength of their prejudice is the measure of the indulgence which should be granted to it…The legislator ought to yield to the violence of a current which carries away everything that obstructs it.

But ought the legislator to be a slave to the fancies of those whom he governs? No. Between an imprudent opposition and a servile compliance, there is a middle path, honourable and safe.”361 In other words, it appears that Bentham argued that the morality of the people ought not be ignored in creating laws but also must not become their unchecked fount. And if prejudicial moralities arise from the people, they should not be unthinkingly and permanently cemented into the law, but rather addressed and conquered.

John Stuart Mill also made a strong argument against popular morality being codified into laws. He argued that ‘disgust’ cannot be classified as harm, and those “who consider as an injury to themselves any conduct which they have a distaste for”, cannot dictate the actions of others merely because such actions contradict their own beliefs or views.362 Mill believed that society is not the right judge when dealing with the question of when to interfere in conduct 361 Ibid.

362 Supra note 325.

163 PART K that is purely personal, and that when society does interfere, “the odds are that it interferes wrongly and in the wrong place.”363 135 Christopher R Leslie points out the dangers of letting morality creep into law:

136 A broad analysis of criminal theory points to the general conclusion that criminologists and legal philosophers have long been in agreement about one basic characteristic of crime: that it should injure a third person or the society. 363 Ibid.

364 Christopher. R. Leslie, “Creating criminals: The Injuries Inflicted by “Unenforced” Sodomy Laws”, Harvard Civil Rights and Civil Liberties Law Review, Vol. 35 (2000). 365 Ibid, at pages 103-181.

164 PART K An element of larger public interest emerges as the crux of crime. The conduct which Section 377 criminalises voluntary ‘carnal intercourse against the order of nature’ with a man or woman, inter alia – pertains solely to acts between consenting adults. Such conduct is purely private, or as Mill would call it, “self-regarding,” and is neither capable of causing injury to someone else nor does it pose a threat to the stability and security of society. Once the factor of consent is established, the question of such conduct causing any injury, does not arise.

Although Section 377 prima facie appears to criminalise certain acts or conduct, it creates a class of criminals, consisting of individuals who engage in consensual sexual activity. It typecasts LGBTQ individuals as sex- offenders, categorising their consensual conduct on par with sexual offences like rape and child molestation. Section 377 not only criminalises acts (consensual sexual conduct between adults) which should not constitute crime, but also stigmatises and condemns LGBTQ individuals in society. 137 We are aware of the perils of allowing morality to dictate the terms of criminal law. If a single, homogenous morality is carved out for a society, it will undoubtedly have the effect of hegemonizing or ‘othering’ the morality of minorities. The LGBTQ community has been a victim of the pre-dominant 165 PART L (Victorian) morality which prevailed at the time when the Indian Penal Code was drafted and enacted. Therefore, we are inclined to observe that it is constitutional morality, and not mainstream views about sexual morality, which should be the driving factor in determining the validity of Section 377.

L Constitutional morality 138 With the attainment of independence on 15 August 1947, Indians were finally free to shape their own destiny.367 The destiny was to be shaped through a written Constitution. Constitutions are scripts in which people inscribe the text of their professed collective destiny. They write down who they think they are, what they want to be, and the principles that will guide their interacting along that path in the future.368 The Constitution of India was burdened with the challenge of “drawing a curtain on the past”369 of social inequality and prejudices. Those who led India to freedom established into the Constitution the ideals and vision of a vibrant equitable society. The framing of India’s Constitution was a medium of liberating the society by initiating the process of establishing and promoting the shared values of liberty, equality 367 Jawaharlal Nehru, “Tryst with Destiny”, address to the Constituent Assembly of India, delivered on 14-15 August 1947.

368 Uday S. Mehta, “Constitutionalism”, In The Oxford Companion to Politics in India (Niraja Gopal Jayal and Pratap Bhanu Mehta eds.), Oxford University Press (2010), at page 15. 369 Ibid, at page 16.

166 PART L and fraternity. Throughout history, socio-cultural revolts, anti-discrimination assertions, movements, literature and leaders have worked at socializing people away from supremacist thought and towards an egalitarian existence. The Indian Constitution is an expression of these assertions. It was an attempt to reverse the socializing of prejudice, discrimination, and power hegemony in a disjointed society. All citizens were to be free from coercion or restriction by the state, or by society privately.370 Liberty was no longer to remain the privilege of the few. The judgment in Puttaswamy highlights the commitment of the constitution makers, thus:

370 Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University Press (1966), at page 65. 371 Ibid, at page 63.

167 PART L transformation in the country. It represents the aspirations of its framers. The democratic Constitution of India embodies provisions which are value-based. 140 During the framing of the Constitution, it was realized by the members of the Constituent Assembly that there was a wide gap between constitutional precept and reality. The draftspersons were clear that the imbibing of new constitutional values by the population at large would take some time. Society was not going to change overnight. Dr Ambedkar remarked in the Constituent Assembly:

141 The values of a democracy require years of practice, effort, and experience to make the society work with those values. Similar is the position of non-discrimination, equality, fraternity and secularism. While the Constitution guarantees equality before the law and equal protection of the law, it was felt that the realization of the constitutional vision requires the existence of a commitment to that vision. Dr Ambedkar described this commitment to be the presence of constitutional morality among the members of the society. The conception of constitutional morality is different from that of public or societal morality. Under a regime of public morality, the conduct of 168 PART L society is determined by popular perceptions existent in society. The continuance of certain symbols, labels, names or body shapes determine the notions, sentiments and mental attitudes of the people towards individuals and things.372 Constitutional morality determines the mental attitude towards individuals and issues by the text and spirit of the Constitution. It requires that the rights of an individual ought not to be prejudiced by popular notions of society. It assumes that citizens would respect the vision of the framers of the Constitution and would conduct themselves in a way which furthers that vision. Constitutional morality reflects that the ideal of justice is an overriding factor in the struggle for existence over any other notion of social acceptance. It builds and protects the foundations of a democracy, without which any nation will crack under its fissures. For this reason, constitutional morality has to be imbibed by the citizens consistently and continuously. Society must always bear in mind what Dr Ambedkar observed before the Constituent Assembly:

PART L 142 In the decision in Government of NCT of Delhi v. Union of India373 , the Constitution Bench of this Court dealt with the constitutive elements of constitutional morality which govern the working of a democratic system and representative form of government. Constitutional morality was described as founded on a “constitutional culture”, which requires the “existence of sentiments and dedication for realizing a social transformation which the Indian Constitution seeks to attain.” This Court held thus:

143 Constitutional morality requires in a democracy the assurance of certain minimum rights, which are essential for free existence to every member of society. The Preamble to the Constitution recognises these rights as “Liberty of thought, expression, belief, faith and worship” and “Equality of status and of opportunity.” Constitutional morality is the guarantee which seeks that all inequality is eliminated from the social structure and each individual is 373 2018 (8) SCALE 72 170 PART L assured of the means for the enforcement of the rights guaranteed. Constitutional morality leans towards making Indian democracy vibrant by infusing a spirit of brotherhood amongst a heterogeneous population, belonging to different classes, races, religions, cultures, castes and sections. Constitutional morality cannot, however, be nurtured unless, as recognised by the Preamble, there exists fraternity, which assures and maintains the dignity of each individual. In his famous, yet undelivered speech titled “Annihilation of Caste” (which has been later published as a book), Dr Ambedkar described ‘fraternity’ as “primarily a mode of associated living, of conjoint communicated experience” and “essentially an attitude of respect and reverence towards fellow men.”374 He remarked:

374 Supra note 372, at para 14.2.

171 PART L enforce them… Without fraternity equality and liberty will be no deeper than coats of paint.”375 144 Constitutional morality requires that all the citizens need to have a closer look at, understand and imbibe the broad values of the Constitution, which are based on liberty, equality and fraternity. Constitutional morality is thus the guiding spirit to achieve the transformation which, above all, the Constitution seeks to achieve. This acknowledgement carries a necessary implication: the process through which a society matures and imbibes constitutional morality is gradual, perhaps interminably so. Hence, constitutional courts are entrusted with the duty to act as external facilitators and to be a vigilant safeguard against excesses of state power and democratic concentration of power. This Court, being the highest constitutional court, has the responsibility to monitor the preservation of constitutional morality as an incident of fostering conditions for human dignity and liberty to flourish. Popular public morality cannot affect the decisions of this Court. Lord Neuberger (of the UK Supreme Court) has aptly observed:

PART L independent body of people who do not have to worry about short term popularity.”376 The flourishing of a constitutional order requires not only the institutional leadership of constitutional courts, but also the responsive participation of the citizenry.377 Constitutional morality is a pursuit of this responsive participation. The Supreme Court cannot afford to denude itself of its leadership as an institution in expounding constitutional values. Any loss of its authority will imperil democracy itself.

145 The question of morality has been central to the concerns around homosexuality and the rights of LGBT individuals. Opponents – including those of the intervenors who launched a diatribe in the course of hearing – claim that homosexuality is against popular culture and is thus unacceptable in Indian society. While dealing with the constitutionality of Section 377 of the Indian Penal Code, the Delhi High Court in Naz Foundation had held:

PART L 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:

PART L minority their rightful place in the constitutional scheme, but that we equally speak of the vision of the kind of country we want to live in and of what it means for the majority.379 The nine-judge Bench of this Court in Puttaswamy had held in clear terms that discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. The Bench held:

PART M supersede any culture or tradition.

The interpretation of a right in a matter of decriminalisation and beyond must be determined by the norms of the Constitution. 146 LGBT individuals living under the threats of conformity grounded in cultural morality have been denied a basic human existence. They have been stereotyped and prejudiced. Constitutional morality requires this Court not to turn a blind eye to their right to an equal participation of citizenship and an equal enjoyment of living. Constitutional morality requires that this Court must act as a counter majoritarian institution which discharges the responsibility of protecting constitutionally entrenched rights, regardless of what the majority may believe.380 Constitutional morality must turn into a habit of citizens. By respecting the dignity of LGBT individuals, this Court is only fulfilling the foundational promises of our Constitution.

M In summation : transformative constitutionalism 147 This case has required a decision on whether Section 377 of the Penal Code fulfills constitutional standards in penalising consensual sexual conduct between adults of the same sex. We hold and declare that in penalising such 380 Ibid.

176 PART M sexual conduct, the statutory provision violates the constitutional guarantees of liberty and equality. It denudes members of the LGBT communities of their constitutional right to lead fulfilling lives. In its application to adults of the same sex engaged in consensual sexual behaviour, it violates the constitutional guarantee of the right to life and to the equal protection of law. 148 Sexual orientation is integral to the identity of the members of the LGBT communities. It is intrinsic to their dignity, inseparable from their autonomy and at the heart of their privacy. Section 377 is founded on moral notions which are an anathema to a constitutional order in which liberty must trump over stereotypes and prevail over the mainstreaming of culture. Our Constitution, above all, is an essay in the acceptance of diversity. It is founded on a vision of an inclusive society which accommodates plural ways of life. 149 The impact of Section 377 has travelled far beyond criminalising certain acts. The presence of the provision on the statute book has reinforced stereotypes about sexual orientation. It has lent the authority of the state to the suppression of identities. The fear of persecution has led to the closeting of same sex relationships. A penal provision has reinforced societal disdain. 177 PART M 150 Sexual and gender based minorities cannot live in fear, if the Constitution has to have meaning for them on even terms. In its quest for equality and the equal protection of the law, the Constitution guarantees to them an equal citizenship. In de-criminalising such conduct, the values of the Constitution assure to the LGBT community the ability to lead a life of freedom from fear and to find fulfilment in intimate choices. 151 The choice of a partner, the desire for personal intimacy and the yearning to find love and fulfilment in human relationships have a universal appeal, straddling age and time. In protecting consensual intimacies, the Constitution adopts a simple principle: the state has no business to intrude into these personal matters. Nor can societal notions of heteronormativity regulate constitutional liberties based on sexual orientation. 152 This reference to the Constitution Bench is about the validity of Section 377 in its application to consensual sexual conduct between adults of the same sex. The constitutional principles which we have invoked to determine the outcome address the origins of the rights claimed and the source of their protection. In their range and content, those principles address issues broader than the acts which the statute penalises. Resilient and universal as they are, these constitutional values must enure with a mark of permanence. 178 PART M 153 Above all, this case has had great deal to say on the dialogue about the transformative power of the Constitution. In addressing LGBT rights, the Constitution speaks – as well – to the rest of society. In recognising the rights of the LGBT community, the Constitution asserts itself as a text for governance which promotes true equality. It does so by questioning prevailing notions about the dominance of sexes and genders. In its transformational role, the Constitution directs our attention to resolving the polarities of sex and binarities of gender. In dealing with these issues we confront much that polarises our society. Our ability to survive as a free society will depend upon whether constitutional values can prevail over the impulses of the time. 154 A hundred and fifty eight years is too long a period for the LGBT community to suffer the indignities of denial. That it has taken sixty eight years even after the advent of the Constitution is a sobering reminder of the unfinished task which lies ahead. It is also a time to invoke the transformative power of the Constitution.

155 The ability of a society to acknowledge the injustices which it has perpetuated is a mark of its evolution. In the process of remedying wrongs under a regime of constitutional remedies, recrimination gives way to restitution, diatribes pave the way for dialogue and healing replaces the hate 179 PART M of a community. For those who have been oppressed, justice under a regime committed to human freedom, has the power to transform lives. In addressing the causes of oppression and injustice, society transforms itself. The Constitution has within it the ability to produce a social catharsis. The importance of this case lies in telling us that reverberations of how we address social conflict in our times will travel far beyond the narrow alleys in which they are explored.

156 We hold and declare that:

and 180 PART M

(v) The decision in Koushal stands overruled.

Acknowledgment Before concluding, I acknowledge the efforts of counsel for the petitioners and intervenors who appeared in this case – Mr Mukul Rohatgi, Mr Arvind Datar, Mr Ashok Desai, Mr Anand Grover, Mr Shyam Divan, Mr CU Singh and Mr Krishnan Venugopal, Senior Counsel; and Mr Saurabh Kirpal, Dr Menaka Guruswamy and Ms Arundhati Katju, and Ms Jayna Kothari, learned Counsel. Their erudition has enabled us to absorb, as we reflected and wrote. Mr Tushar Mehta, learned Additional Solicitor General appeared for the Union of India. We acknowledge the assistance rendered by the counsel for the intervenors who opposed the petitioners.

…….....….............................................J [Dr Dhananjaya Y Chandrachud] New Delhi;

September 06, 2018.

1. I have had the advantage of reading the opinions prepared by the Hon’ble Chief Justice, and my brother Judges Justice 1 Nariman and Justice Chandrachud. The Judgments have dealt in-depth with the various issues that are required to be examined by this Bench, to answer the reference.

2. The present batch of Writ Petitions have been filed to challenge the constitutional validity of Section 377 of the Indian Penal Code, 1860 (“ IPC ”) on the specific ground that it criminalises consensual sexual intercourse between adult persons belonging to the same sex in private.

3. The issue as to whether the decision in Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors.1 requires re-consideration was referred to the Constitution Bench vide Order dated 8th January, 2018.

4. The Petitioners have inter alia submitted that sexual expression and intimacy between consenting adults of the same sex in private ought to receive protection under Part III of the Constitution, as sexuality lies at the core of a human being’s innate identity. Section 377 inasmuch as it criminalises consensual relationships between same sex couples is violative of the fundamental rights guaranteed by Articles 21 , 19 and 14 , in Part III of the Constitution. 1 (2014) 1 SCC 1 2 The principal contentions raised by the Petitioners during the course of hearing are:

However, if the Court is to decide and examine any issue other than the Constitutional validity of Section 377, or construe any other right in favour of the LGBT community, the Union of India would like to file a detailed Affidavit as that would have far-reaching and wide ramifications, not contemplated by the reference.

6. LEGISLATIVE BACKGROUND 6.1. The legal treatises Fleta and Britton, which date back to 1290 and 1300 respectively, documented prevailing laws in England at the time. These treatises made references to sodomy as a crime.2 6.2. The Buggery Act, 1533 was re-enacted in 1563 during the regime of Queen Elizabeth I, which penalized acts of sodomy by hanging.

In 1861, death penalty for buggery was abolished in England and Wales. However, it remained a crime “not to be mentioned by Christians”.

6.3. The 1861 Act became the charter for enactments framed in the colonies of Great Britain.

2 John Boswell, Christianity, Social Tolerance, and Homosexuality: Gay People in Western Europe from the Beginning of the Christian Era to the Fourteenth Century (University of Chicago Press, 1980), at p. 292 4 6.4. The Marginal Note of Section 377, refers to “Unnatural Offences”. Section 377 reads as under:

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

Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.” (emphasis supplied) 6.5. Section 377 does not define “carnal intercourse against the order of nature”. Even though the provision is facially neutral, the Petitioners submit that the thrust of this provision has been to target the LGBT community in light of the colonial history of anti-sodomy laws, and penalise what was perceived to be ‘deviant’ or ‘perverse’ sexual behaviour.

7. In the early 20th century, there were many psychiatric theories which regarded homosexuality as a form of psychopathology or developmental arrest.3 It was believed that normal development resulted in a child growing up to be a heterosexual adult, and that homosexuality was but a state of 3 Report of the Committee on Homosexual Offences and Prostitution, 1957, at para 30. 5 arrested development.4 Homosexuality was treated as a disorder or mental illness, which was meted out with social ostracism and revulsion.

8. Towards the end of the 20th century, this notion began to change, and the earlier theories gave way to a more enlightened perspective that characterized homosexuality as a normal and natural variant of human sexuality. Scientific studies indicated that human sexuality is complex and inherent.5 Kurt Hiller in his speech delivered at the Second International Congress for Sexual Reform held at Copenhagen in 19286, stated:

9. In 1957, the United Kingdom published the Wolfenden Committee Report (supra) which recognised how the anti- sodomy laws had created an atmosphere for blackmail, harassment and violence against homosexuals. An extract of the findings of this Committee reads as under:

10. The trend of decriminalizing anti-sodomy laws world over has gained currency during the past few decades since such laws have been recognised to be violative of human rights. In 7 2017, the International Lesbian, Gay, Bisexual, Trans and Intersex Association noted in its Annual State Sponsored Homophobia Report7 that 124 countries no longer penalise homosexuality. The change in laws in these countries was given effect to, either through legislative amendments to the statutory enactments, or by way of court judgments. Relationships between same-sex couples have been increasingly accorded protection by States across the world. As per the aforesaid Report, a total of 24 countries now allow same-sex couples to marry, while 28 countries legally recognise partnerships between same-sex couples. Several countries have enacted enabling legislations which protect LGBT persons from discrimination, and allow them to adopt children.8 For instance, the United Kingdom now outlaws discrimination in employment, education, social protection and housing on the ground of sexual orientation. Marriage between same-sex couples have been recognised in England and Wales.

7 Aengus Carroll And Lucas Ramón Mendos, Ilga Annual State Sponsored Homophobia Report 2017: A World Survey Of Sexual Orientation Laws: Criminalisation, Protection And Recognition (12th Edition, 2017), at pp. 26-36 8 Id 8 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:

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 9 to ten years. Section 377 applies irrespective of gender, age, or consent.

12.2. The expression ‘carnal intercourse’ used in Section 377 is distinct from ‘sexual intercourse’ which appears in Sections 375 and 497 of the IPC. The phrase “carnal intercourse against the order of nature” is not defined by Section 377, or in the Code.

12.3. The term ‘carnal’ has been the subject matter of judicial interpretation in various decisions. According to the New International Webster’s Comprehensive Dictionary of the English Language10, ‘carnal’ means:

The Lahore High Court in Khandu v. Emperor12 was dealing with a case wherein the accused had penetrated the nostril of a bullock with his penis. The Court, while relying on the decision of the Sindh High Court in Khanu v. Emperor (supra) held that the acts of the accused constituted coitus per os, were punishable under Section

377. In Lohana Vasantlal Devchand & Ors v. State13 the Gujarat High Court convicted two accused under Section 377 read with Section 511 of the IPC, on account of 11 AIR 1925 Sind 286 12 AIR 1934 Lah 261 : 1934 Cri LJ 1096 13 AIR 1968 Guj 252 11 having carnal intercourse per anus, and inserting the penis in the mouth of a young boy. It was held that:

14 ( 1982) 3 SCC 9 12 v. State of Bihar (supra). These cases referred to non-

consensual sexual intercourse by coercion.

13. HOMOSEXUALITY – NOT AN ABERRATION BUT A VARIATION OF SEXUALITY 13.1. Whilst a great deal of scientific research has examined possible genetic, hormonal, developmental, psychological, social and cultural influences on sexual orientation, no findings have conclusively linked sexual orientation to any one particular factor or factors. It is believed that one’s sexuality is the result of a complex interplay between nature and nurture.

Sexual orientation is an innate attribute of one’s identity, and cannot be altered. Sexual orientation is not a matter of choice. It manifests in early adolescence. Homosexuality is a natural variant of human sexuality. The U.S. Supreme Court in Lawrence et al. v. Texas15 relied upon the Brief of the Amici Curiae16 which stated:

The result of this study became the widely popularized Kinsey Scale of Sexuality. This scales rates all individuals on a spectrum of sexuality, ranging from 100% heterosexual to 100% homosexual…” (emphasis supplied) 13.3. The American Psychiatric Association in December 1973 removed ‘homosexuality’ from the Diagnostic and Statistical Manual of Psychological Disorders, and opined that the manifestation of sexual attraction towards persons of the opposite sex, or same sex, is a natural condition.18 13.4. The World Health Organization removed homosexuality from the list of diseases in the International Classification of Diseases in the publication of ICD-10 in 1992.19 18 Jack Drescher, Out of DSM: Depathologizing Homosexuality, 5(4) Behavioral Sciences (2015), at p. 565 19 The ICD-10 classification of mental and behavioural disorders: clinical descriptions and diagnostic guidelines, World Health Organization, Geneva (1992) available at http://www.who.int/classifications/icd/en/bluebook.pdf 15 13.5. In India, the Indian Psychiatric Society has also opined that sexual orientation is not a psychiatric disorder.20 It was noted that:

14.1. One of the main contentions raised by the Petitioners to challenge the Constitutional validity of Section 377 is founded on Article 14 of the Constitution. Article 14 enshrines the principle of equality as a fundamental right, and mandates that the State shall not deny to any 20 Indian Psychiatry Society: "Position statement on Homosexuality"

14.3. Section 377 operates in a vastly different manner for two classes of persons based on their “sexual orientation” i.e. the LGBT persons and heterosexual persons. Section 377 penalises all forms of non penile-vaginal intercourse. In effect, voluntary consensual relationships between LGBT persons are criminalised in totality.

17 The import and effect of Section 377 is that while a consensual heterosexual relationship is permissible, a consensual relationship between LGBT persons is considered to be ‘carnal’, and against the order of nature.

Section 377 creates an artificial dichotomy. The natural or innate sexual orientation of a person cannot be a ground for discrimination. Where a legislation discriminates on the basis of an intrinsic and core trait of an individual, it cannot form a reasonable classification based on an intelligible differentia. 14.4. In National Legal Services Authority v. Union of India & Ors.21 this Court granted equal protection of laws to transgender persons. There is therefore no justification to deny the same to LGBT persons.

14.5. A person’s sexual orientation is intrinsic to their being. It is connected with their individuality, and identity. A classification which discriminates between persons based on their innate nature, would be violative of their fundamental rights, and cannot withstand the test of constitutional morality.

21 (2014) 5 SCC 438 18 14.6. In contemporary civilised jurisprudence, with States increasingly recognising the status of same-sex relationships, it would be retrograde to describe such relationships as being ‘perverse’, ‘deviant’, or ‘unnatural’. 14.7. Section 375 defines the offence of rape. It provides for penetrative acts which if performed by a man against a woman without her consent, or by obtaining her consent under duress, would amount to rape. Penetrative acts (after the 2013 Amendment) include anal and oral sex. The necessary implication which can be drawn from the amended provision is that if such penetrative acts are done with the consent of the woman they are not punishable under Section 375.

While Section 375 permits consensual penetrative acts (the definition of ‘penetration’ includes oral and anal sex), Section 377 makes the same acts of penetration punishable irrespective of consent. This creates a dichotomy in the law.

14.8. The proscription of a consensual sexual relationship under Section 377 is not founded on any known or rational criteria. Sexual expression and intimacy of a 19 consensual nature, between adults in private, cannot be treated as “carnal intercourse against the order of nature”.

14.9. Emphasising on the second part of Article 14 which enjoins the State to provide equal protection of laws to all persons, Nariman, J. in his concurring opinion in Shayara Bano v. Union of India & Ors.22 elucidated on the doctrine of manifest arbitrariness as a facet of Article 14. Apart from the conventional twin-tests of classification discussed in the preceding paragraphs, a legislation, or part thereof, can also be struck down under Article 14 on the ground that it is manifestly arbitrary. It would be instructive to refer to the following passage from the judgment of this Court in Shayara Bano v. Union of India & Ors. (supra):

Further, the phrase “carnal intercourse against the order of nature” in Section 377 as a determining principle in a penal provision, is too open-ended, giving way to the scope for misuse against members of the LGBT community.

Thus, apart from not satisfying the twin-test under Article 14 , Section 377 is also manifestly arbitrary, and hence violative of Article 14 of the Constitution.

15. SECTION 377 IS VIOLATIVE OF ARTICLE 15 Article 15 prohibits the State from discrimination against any citizen on the grounds of religion, race, caste, sex, or place of birth. The object of this provision was to guarantee protection to those citizens who had suffered historical disadvantage, whether it be of a political, social, or economic nature.

15.1. The term ‘sex’, as it occurs in Article 15 has been given an expansive interpretation by this Court in National Legal Services Authority v. Union of India & Ors. (supra) 21 to include sexual identity. Paragraph 66 of the judgment reads thus:

The J.S. Verma Committee23 had recommended that ‘sex’ under Article 15 must include ‘sexual orientation’:

In this regard, the view taken by the Human Rights Committee of the United Nations in Nicholas Toonen v. Australia24 is relevant to cite, wherein the Committee noted that the reference to ‘sex’ in Article 2 , Paragraph 1 and Article 26 of the International Covenant on Civil and Political Rights would include ‘sexual orientation’. 15.2. In an article titled “Reading Swaraj into Article 15: A New Deal For All Minorities”25, Tarunabh Khaitan notes that the underlying commonality between the grounds specified in Article 15 is based on the ideas of ‘immutable status’ and ‘fundamental choice’. He refers to the 24 Communication No. 488/1992, U.N. Doc.CCPR/C/50/D/488/1992 (1994) 25 Tarunabh Khaitan, Reading Swaraj into Article 15: A New Deal For All Minorities, 2 NUJS Law Review (2009), at p. 419 23 following quote by John Gardener to provide context to the aforesaid commonality:

26 John Gardner, On the Ground of Her Sex (uality), 18(2) Oxford Journal of Legal Studies (1998), at p. 167 27 Supra note 25 24 The Supreme Court of Canada in its decisions in the cases of Egan v. Canada28, and Vriend v. Alberta29, interpreted Section 15(1)30 of the Canadian Charter of Rights and Freedoms which is pari materia to Article 15 of the Indian Constitution.

Section 15(1), of the Canadian Charter like Article 15 of our Constitution, does not include “sexual orientation” as a prohibited ground of discrimination.

Notwithstanding that, the Canadian Supreme Court in the aforesaid decisions has held that sexual orientation is a “ground analogous” to the other grounds specified under Section 15(1). Discrimination based on any of these grounds has adverse impact on an individual’s personal autonomy, and is undermining of his personality.

28 [1995] SCC 98 29 [1998] SCC 816 30 “15. Equality before and under law and equal protection and benefit of law (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability…” Article 15(1) , Canadian Charter of Rights and Freedoms. 25 A similar conclusion can be reached in the Indian context as well in light of the underlying aspects of immutability and fundamental choice.

The LGBT community is a sexual minority which has suffered from unjustified and unwarranted hostile discrimination, and is equally entitled to the protection afforded by Article 15.

16. SECTION 377 VIOLATES THE RIGHT TO LIFE AND LIBERTY GUARANTEED BY ARTICLE 21 Article 21 provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Such procedure established by law must be fair, just and reasonable.31 The right to life and liberty affords protection to every citizen or non-citizen, irrespective of their identity or orientation, without discrimination.

16.1. RIGHT TO LIVE WITH DIGNITY This Court has expansively interpreted the terms “life” and “personal liberty” to recognise a panoply of rights 31 Maneka Gandhi v. Union of India & Anr. , (1978) 1 SCC 248, at paragraph 48 26 under Article 21 of the Constitution, so as to comprehend the true scope and contours of the right to life under Article 21. Article 21 is “the most precious human right and forms the ark of all other rights” as held in Francis Coralie Mullin v. Administrator, Union Territory of Delhi & Ors.,32 wherein it was noted that the right to life could not be restricted to a mere animal existence, and provided for much more than only physical survival.33 Bhagwati J. observed as under:

32 (1981) 1 SCC 608 33 (1981) 1 SCC 608 at paragraph 7 27 This was re-affirmed by the Constitution bench decision in K.S. Puttaswamy & Anr. v. Union of India & Ors.34 and Common Cause (A Registered Society) v. Union of India & Anr.35 Although dignity is an amorphous concept which is incapable of being defined, it is a core intrinsic value of every human being. Dignity is considered essential for a meaningful existence.36 In National Legal Services Authority v. Union of India & Ors. (supra), this Court recognised the right of transgender persons to decide their self-identified gender. In the context of the legal rights of transgender persons, this Court held that sexual orientation and gender identity is an integral part of their personality. The relevant excerpt from Radhakrishnan, J.’s view is extracted hereinbelow:

“22. …Each person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom…” (emphasis supplied) 34 (2017) 10 SCC 1 35 (2018) 5 SCC 1 at paragraphs 156, 437, 438, 488 & 516 36 Common Cause (A Registered Society) v. Union of India and Anr. , (2018) 5 SCC 1, at paragraphs 437 and 438 28 Sexual orientation is innate to a human being. It is an important attribute of one’s personality and identity. Homosexuality and bisexuality are natural variants of human sexuality. LGBT persons have little or no choice over their sexual orientation. LGBT persons, like other heterosexual persons, are entitled to their privacy, and the right to lead a dignified existence, without fear of persecution. They are entitled to complete autonomy over the most intimate decisions relating to their personal life, including the choice of their partners. Such choices must be protected under Article 21. The right to life and liberty would encompass the right to sexual autonomy, and freedom of expression.

The following excerpt from the decision of the Constitutional Court of South Africa in National Coalition for Gay and Lesbian Equality and Anr. v. Minister of Justice and Ors.37 is also instructive in this regard:

37 [1998] ZACC 15 29 socially disconnected self. It acknowledges that people live in their bodies, their communities, their cultures, their places and their times. The expression of sexuality requires a partner, real or imagined. It is not for the state to choose or arrange the choice of partner, but for the partners to choose themselves.” (emphasis supplied) Section 377 insofar as it curtails the personal liberty of LGBT persons to engage in voluntary consensual sexual relationships with a partner of their choice, in a safe and dignified environment, is violative of Article 21. It inhibits them from entering and nurturing enduring relationships. As a result, LGBT individuals are forced to either lead a life of solitary existence without a companion, or lead a closeted life as “unapprehended felons”.38 Section 377 criminalises the entire class of LGBT persons since sexual intercourse between such persons, is considered to be carnal and “against the order of nature”. Section 377 prohibits LGBT persons from engaging in intimate sexual relations in private. 38 According to Professor Edwin Cameron, LGBT persons are reduced to the status of “unapprehended felons” owing to the ever-so-present threat of prosecution. Edwin Cameron, Sexual Orientation and the Constitution: A Test Case for Human Rights, 110 South African Law Journal (1993), at p. 450 30 The social ostracism against LGBT persons prevents them from partaking in all activities as full citizens, and in turn impedes them from realising their fullest potential as human beings.

On the issue of criminalisation of homosexuality, the dissenting opinion of Blackmun J. of the U.S. Supreme Court in Bowers v. Hardwick39 is instructive, which cites a previous decision in Paris Adult Theatre I v. Slaton40 and noted as follows:

…The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexuals persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engage in sexual practices, common to a homosexual lifestyle. The Petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. The right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter. Casey, supra at 847. The Texas statute 32 furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.” (emphasis supplied) Thus, Section 377 prevents LGBT persons from leading a dignified life as guaranteed by Article 21.

16.2. RIGHT TO PRIVACY The right to privacy has now been recognised to be an intrinsic part of the right to life and personal liberty under Article 21.41 Sexual orientation is an innate part of the identity of LGBT persons. Sexual orientation of a person is an essential attribute of privacy. Its protection lies at the core of Fundamental Rights guaranteed by Articles 14 , 15 , and 21.42 The right to privacy is broad-based and pervasive under our Constitutional scheme, and encompasses decisional autonomy, to cover intimate/personal 41 K.S. Puttaswamy & Anr. v. Union of India & Ors. , ( 2017) 10 SCC 1 42 K.S. Puttaswamy & Anr. v. Union of India & Ors. , (2017) 10 SCC 1, at paragraphs 144, 145, 479 and 647 33 decisions and preserves the sanctity of the private sphere of an individual.43 The right to privacy is not simply the “right to be let alone”, and has travelled far beyond that initial concept. It now incorporates the ideas of spatial privacy, and decisional privacy or privacy of choice.44 It extends to the right to make fundamental personal choices, including those relating to intimate sexual conduct, without unwarranted State interference.

Section 377 affects the private sphere of the lives of LGBT persons. It takes away the decisional autonomy of LGBT persons to make choices consistent with their sexual orientation, which would further a dignified existence and a meaningful life as a full person. Section 377 prohibits LGBT persons from expressing their sexual orientation and engaging in sexual conduct in private, a decision which inheres in the most intimate spaces of one’s existence.

43 K.S. Puttaswamy & Anr. v. Union of India & Ors. , (2017) 10 SCC 1, at paragraph 248, 250, 371 and 403 44 K.S. Puttaswamy & Anr. v. Union of India & Ors. , (2017) 10 SCC 1, at paragraphs 248, 249, 371 and 521 34 The Constitutional Court of South Africa in National Coalition for Gay and Lesbian Equality & Anr. v. Minister of Justice & Ors. (supra) noted as under:

45 K.S. Puttaswamy & Anr. v. Union of India & Ors. , (2017) 10 SCC 1, at paragraphs 325, 638 and 645 35 The theme of inclusiveness permeates through Part III of the Constitution. Apart from the equality code of the Constitution comprised in Articles 14 , 15(1) , 16 , and other provisions in the form of Article 17 (Abolition of Untouchability) , Article 21A (Right to Education) , Article 25 (Freedom of Conscience and Free Profession, Practice and Propagation of Religion), Article 26 (Freedom to Manage Religious Affairs) , Article 29 (Protection of Interest of Minorities) , Article 30 (Right of Minorities to Establish and Administer Educational Institutions) are aimed at creating an inclusive society where rights are guaranteed to all, regardless of their status as a minority.

16.3. RIGHT TO HEALTH The right to health, and access to healthcare are also crucial facets of the right to life guaranteed under Article 21 of the Constitution.46 LGBT persons being a sexual minority have been subjected to societal prejudice, discrimination and 46 Common Cause (A Registered Society) v. Union of India & Anr. , (2018) 5 SCC 1, at paragraph 304; C.E.S.C. Limited & Ors. v. Subhash Chandra Bose & Ors. , (1992) 1 SCC 441, at paragraph 32; Union of India v. Mool Chand Khairati Ram Trust , (2018) SCC OnLine SC 675, at paragraph 66; and, Centre for Public Interest Litigation v. Union of India & Ors. , (2013) 16 SCC 279, at paragraph 25 36 violence on account of their sexual orientation. Since Section 377 criminalises “carnal intercourse against the order of nature” it compels LGBT persons to lead closeted lives. As a consequence, LGBT persons are seriously disadvantaged and prejudiced when it comes to access to health-care facilities. This results in serious health issues, including depression and suicidal tendencies amongst members of this community.47 LGBT persons, and more specifically the MSM, and transgender persons are at a higher risk of contracting HIV as they lack safe spaces to engage in safe-sex practices. They are inhibited from seeking medical help for testing, treatment and supportive care on account of the threat of being ‘exposed’ and the resultant prosecution.48 Higher rates of prevalence of HIV-AIDS in MSM, who are in turn married to other people of the opposite sex, coupled with the difficulty in detection and 47 M.V. Lee Badgett, The Economic Cost of Stigma and the Exclusion of LGBT People: A Case Study of India, World Bank Group (2014) available at http://documents.worldbank.org/curated/en/527261468035379692/The-economic- cost-of-stigma-and-the-exclusion-of-LGBT-people-a-case-study-of-India (Last accessed on August 11, 2018) 48 Govindasamy Agoramoorthy and Minna J Hsu, India’s homosexual discrimination and health consequences, 41(4) Rev Saude Publica (2007), at pp. 567-660 available at http://www.scielo.br/pdf/rsp/v41n4/6380.pdf 37 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):

49 Supra note 16, at page 3 39

17. SECTION 377 VIOLATES THE RIGHT TO FREEDOM OF EXPRESSION OF LGBT PERSONS 17.1. Article 19(1)(a) guarantees freedom of expression to all citizens. However, reasonable restrictions can be imposed on the exercise of this right on the grounds specified in Article 19(2).

LGBT persons express their sexual orientation in myriad ways. One such way is engagement in intimate sexual acts like those proscribed under Section 377.50 Owing to the fear of harassment from law enforcement agencies and prosecution, LGBT persons tend to stay ‘in the closet’. They are forced not to disclose a central aspect of their personal identity i.e. their sexual orientation, both in their personal and professional spheres to avoid persecution in society and the opprobrium attached to homosexuality. Unlike heterosexual persons, they are inhibited from openly forming and nurturing fulfilling relationships, thereby restricting rights of full personhood and a dignified 50 Lawrence et al. v. Texas, 539 U.S. 558 (2003); and, National Coalition for Gay and Lesbian Equality & Anr. v. Minister of Justice & Ors., [1998] ZACC 15 40 existence. It also has an impact on their mental well-

17.2. In National Legal Services Authority v. Union of India & Ors. (supra), this Court noted that gender identity is an important aspect of personal identity and is inherent to a person. It was held that transgender persons have the right to express their self-identified gender by way of speech, mannerism, behaviour, presentation and clothing, etc.51 The Court also noted that like gender identity, sexual orientation is integral to one’s personality, and is a basic aspect of self-determination, dignity and freedom.52 The proposition that sexual orientation is integral to one’s personality and identity was affirmed by the Constitution Bench in K.S. Puttaswamy & Anr. v. Union of India & Ors.53 In this regard, it is instructive to refer to the decision of this Court in S. Khushboo v. Kanniammal & Anr.54 wherein the following observation was made in the 51 (2014) 5 SCC 438, at paragraphs 69-72 52 (2014) 5 SCC 438, at paragraph 22 53 (2017) 10 SCC 1, at paragraphs 144, 145, 647 54 (2010) 5 SCC 600 41 context of the phrase “decency and morality” as it occurs in Article 19(2):

Government of NCT of Delhi & Ors.55 which had declared Section 377 insofar as it criminalised consensual sexual acts of adults in private to be violative of Articles 14 , 15 and 21 of the Constitution.

The grounds on which the two-judge bench of this Court over-ruled the judgment in Naz Foundation v. Government of NCT of Delhi & Ors. (supra) were that:

55 (2009) 111 DRJ 1 (DB) 43 classification. Section 377 merely defines a particular offence, and prescribes a punishment for the same.

ii. LGBT persons constitute a “miniscule fraction” of the country’s population, and there have been very few prosecutions under this Section. Hence, it could not have been made a sound basis for declaring Section 377 to be ultra-vires Articles 14 , 15 , and 21. iii. It was held that merely because Section 377 , IPC has been used to perpetrate harassment, blackmail and torture to persons belonging to the LGBT community, cannot be a ground for challenging the vires of the Section.

iv. After noting that Section 377 was intra vires, this Court observed that the legislature was free to repeal or amend Section 377.

19. The fallacy in the Judgment of Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors. (supra) is that:

In this context, it would be instructive to refer to the decision of a Constitution Bench of this Court in A.K. Roy v. Union of India56 wherein it was held that:

consensual relationships.

Sexual orientation is immutable, since it is an innate feature of one’s identity, and cannot be changed at will. The choice of LGBT persons to enter into intimate sexual relations with persons of the same sex is an exercise of their personal choice, and an expression of their autonomy and self-determination.

discriminates against them on the basis of their “sexual orientation” which is violative of their fundamental rights guaranteed by Articles 14 , 19 , and 21 of the Constitution.

ii. The mere fact that the LGBT persons constitute a “miniscule fraction” of the country’s population cannot be a ground to deprive them of their Fundamental Rights guaranteed by Part III of the Constitution. Even though the LGBT constitute a sexual minority, members of the LGBT community are citizens of this country who are equally entitled to the enforcement of their Fundamental Rights guaranteed by Articles 14 , 15 , 19 , and 21.

Fundamental Rights are guaranteed to all citizens alike, irrespective of whether they are a numerical minority. Modern democracies are based on the twin principles of majority rule, and protection of fundamental rights guaranteed under Part III of the Constitution. Under the Constitutional scheme, while the majority is 47 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:

20. History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries. The members of this community were compelled to live a life full of fear of reprisal and persecution. This was on account of the ignorance of the majority to recognise that homosexuality is a completely natural condition, part of a range of human sexuality. The mis-application of this provision denied them the Fundamental Right to equality guaranteed by Article 14. It infringed the Fundamental Right to non-discrimination under Article 15 , and the Fundamental Right to live a life of dignity and privacy guaranteed by Article

21. The LGBT persons deserve to live a life unshackled from the shadow of being ‘unapprehended felons’.

21. CONCLUSION i. In view of the aforesaid findings, it is declared that insofar as Section 377 criminalises 50 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.

adults, all acts of carnal intercouse against minors, and acts of beastiality.

iv. The judgment in Suresh Kumar Koushal & Anr.

v. Naz Foundation & Ors.57 is hereby overruled for the reasons stated in paragraph 19.

57 (2014) 1 SCC 1 51 The Reference is answered accordingly.

In view of the above findings, the Writ Petitions are allowed.

……………..……..…………………J. (Indu Malhotra) New Delhi;

September 6, 2018.