Penal Code, 1860 – s.377 – Constitutionality of – Held: s.377, 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 – s.377 subjects the LGBT community to societal pariah and dereliction andis, 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, s.377 is liable to be partially struck down for being violative of Art.14 of the Constitution – In other words, s.377, 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, both a man and a woman, engages in any kind of sexual activity with an animal, the said aspect of s.377 is constitutional and it shall remain a penal offence under s.377 –Any act of the description covered under s.377 done between the individuals without the consent of any one of them would invite penal liability under s.377 – Constitution of India – Art.14 –Homosexual – LGBT. (Per Dipak Misra, CJI [for himself and Khanwilkar, J.])

Penal Code, 1860 – s.377 – Expression ‘against the order of nature’ – The expression ‘against the order of nature’ has neither been defined in s.377 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’. (Per Dipak Misra, CJI [for himself and Khanwilkar, J.])

Penal Code, 1860 – s.377 – Examination of s.377 on the anvil of Art.14 of the Constitution – Held: The classification adopted under s.377 has no reasonable nexus with its object as other penal provisions such as s.375 and the POCSO Act already penalize non-consensual carnal intercourse – s.377, insofar as it applies to same sexconsenting 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 – s.377 offends Art.14 as it discriminates between heterosexual andhomosexual 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/orheterosexual adults as being against the order of nature – Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity give further content to the fundamental rights contained in Arts. 14,15, 19 and 21, and in the light of these principles also, s.377 is unconstitutional. (Per R.F. Nariman, J.)

Penal Code, 1860 – s.377 – Examination of s.377 on the anvil of Art.19(1)(a) of the Constitution – Held: s.377 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 orheterosexual, in private space, does not in any way harm the public decency or morality – Therefore, s.377 in its present form violates Art.19(1)(a) of the Constitution. (Per Dipak Misra, CJI [for himself and Khanwilkar, J.])

Penal Code, 1860 – s.377 – Miniscule population of LGBT –The mere fact that the percentage of population whose fundamental right to privacy is being abridged by the existence of s.377 in its present form is low does not impose a limitation upon the Constitutional court from protecting the fundamental rights of those who are so affected by s.377. (Per Dipak Misra, CJI [for himself and Khanwilkar, J.])

Penal Code, 1860 – s.375 and s.377 – Distinction between –The major difference between the language of s.377 and s.375 is that of the element of absence consent which has been elaborately incorporated in the seven descriptions contained in the latter part of s.375 – It is the absence of willful and informed consent embodied in the seven descriptions to s.375 which makes the offence of rapecriminal – On the other hand, s.377 contains no such descriptions/exceptions embodying the absence of willful and informed consentand criminalises even voluntary carnal intercourse both betweenhomosexuals as well as between heterosexuals. (Per Dipak Misra,CJI [for himself and Khanwilkar, J.])

Penal Code, 1860 – s.377 – Expression ‘against the order of nature’ – Held: Sex, if performed differently, as per the choice of the consenting adults, does not per se make it 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.(Per Dipak Misra, CJI [for himself and Khanwilkar, J.])

Penal Code, 1860 – s.377 – History of s.377 – Laws in United Kingdom and in United States, Discussed. (Per R.F. Nariman, J.)

Penal Code, 1860 – s.377 – Constitutionality of – Held: s.377 was the product of the Victorian era, with its attendant puritanical moral values – Victorian morality must give way to constitutional morality – 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 s.377, namely Victorian morality, has long gone and there is no reason to continue with - as Justice Holmes said - a law merely for the sake of continuing with the law when the rationale of such law has long since disappeared – s.377, insofar as it applies to same-sexconsenting 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. (Per R.F.Nariman, J.)

Penal Code, 1860 – s.377 – Discrimination grounded on stereotypes – Held: s.377 is the basis of persecution of members of the LGBT community – The section rests on deep rooted gender stereotypes – It 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 Art.15(1) – This constitutes discrimination on the grounds only ofsex and violates the guarantee of non-discrimination in Art.15(1) – Constitution of India – Art.15(1). (Per Dr. D. Y. Chandrachud, J.)

Penal Code, 1860 – s.377 – Denial of sexual orientation is also a denial of the right to privacy – To deny the members of the LGBT community the full expression of right to sexual orientation is to deprive them of their entitlement to full citizenship under the Constitution – By penalising sexual conduct between consenting adults, s.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 equal citizenship – s.377 is based on a stereotype about sex – Our Constitution which protects sexual orientation must outlaw any law which lends the authority of the state to obstructing its fulfilment – Constitution of India – Art.21. (Per Dr. D.Y.Chandrachud, J.)

Penal Code, 1860 – s.377 – Creation of a class of criminals – Held: Although s.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 – s.377 not only criminalises acts (consensual sexual conduct between adults) which should not constitute crime, but alsostigmatises and condemns LGBTQ individuals in society. (PerDr. D. Y. Chandrachud, J.)

Penal Code, 1860 – s.377 – Import and effect – Held: Whilea consensual heterosexual relationship is permissible, a consensual relationship between LGBT persons is considered to be ‘carnal’,and against the order of nature – s.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 – Constitution of India – Reasonable classification. (Per Indu Malhotra, J.)

Penal Code, 1860 – s.377 – 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’. (Per Indu Malhotra, J.)

Penal Code, 1860 – s.375 and 377 – While s.375 permits consensual penetrative acts (the definition of ‘penetration’ includes oral and anal sex), s.377 makes the same acts of penetration punishable irrespective of consent – This creates a dichotomy in the law – Constitution of India – Art.14. (Per Indu Malhotra, J.)

Penal Code, 1860 – s.377 – History owes an apology to the members of LGBT 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. (Per Indu Malhotra, J.)

Penal Code, 1860 – s.377 – s.377, insofar criminalising the consensual sexual acts of adults in private, is violative of Arts.14,15, 19, and 21 of the Constitution – Such consent must be free consent, which is completely voluntary in nature, and devoid of any duress or coercion – The declaration of the said reading down of s.377 shall not, however, lead to the re-opening of any concluded prosecutions, but can certainly be relied upon in all pending matters whether they are at the trial, appellate, or revisional stages – The provisions of s.377 will continue to govern non-consensual sexualacts against adults, all acts of carnal intercouse against minors,and acts of beastiality. (Per Indu Malhotra, J.)

Constitution of India – Interpretation of Constitution – Concept of transformative Constitutionalism – Held: The Constitution would become a stale and dead testament without dynamic, vibrant and pragmatic interpretation – Constitutional provisions have to be construed and developed in such a manner that their real intent and existence percolates to all segments of the society – Our Constitution has been perceived to be transformative in the 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 – Lesbian, Gay, Bisexual and Transgender (LGBT). (Per Dipak Misra, CJI [for himself and Khanwilkar, J.])

Constitution of India – Constitutional morality – It is only constitutional morality that can be allowed to permeate into the Rule of Law – Constitutional morality embraces within its sphere several virtues, foremost of them being the espousal of a pluralistic and inclusive society – The concept of constitutional morality urges the organs of the State, including the Judiciary, to preserve the heterogeneous nature of the society and to curb any attempt by the majority to usurp the rights and freedoms of a smaller or minuscule section of the populace – Constitutional morality cannot be martyred at the altar of social morality – 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. (Per Dipak Misra,CJI [for himself and Khanwilkar, J.])

Constitution of India – Right to live with dignity – The Constitution has ladened the judiciary with the very important duty to protect and ensure the right of every individual including the right to express and choose without any impediments so as to enable an individual to fully realize his/her fundamental right to live with dignity – 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’ssexual orientation would entail a violation of the fundamental right of freedom of expression. (Per Dipak Misra, CJI [for himself and Khanwilkar, J.])

Constitution of India – Intention of constitutional framers was never to grant protection of fundamental rights only to the majority population – If such had been the intention, then all provisions in Part III of the Constitution would have contained qualifying words such as ‘majority persons’ or ‘majority citizens’ – Instead, the provisions have employed the words ‘any person’ and ‘any citizen’ making it manifest that the constitutional courts are under an obligation to protect the fundamental rights of every single citizen without waiting for the catastrophic situation when the fundamental rights of the majority of citizens get violated. (Per Dipak Misra,CJI [for himself and Khanwilkar, J.])

Constitution of India – Sexual privacy and autonomy – Right to privacy enables an individual to exercise his or her autonomy away from the glare of societal expectations – In a liberal democracy,recognition of the individual as an autonomous person is an acknowledgement of the State’s respect for the capacity of the individual to make independent choices – Autonomy and privacy are inextricably linked – Each requires the other for its full realization– Sexual choices are an essential attribute of autonomy. (Per Dr. D. Y. Chandrachud, J.)

Constitution of India – Choice of partner – The choice of whom to partner, the ability to find fulfilment in sexual intimacies and the right not to be subjected to discriminatory behaviour are intrinsic to the constitutional protection of sexual orientation. (Per Dr. D. Y. Chandrachud, J.)

Constitution of India – Right to health – Impact of s.377 on right to health – The operation of s.377 denies consenting adults the full realization of their right to health, as well as their sexualrights – 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 ofsexual and gender minorities, in relation to the rest of society – s.377 has had far-reaching consequences for this “key population”, pushing them out of the public health system – Laws that criminalize same-sex intercourse create social barriers to accessing healthcare, and curb the effective prevention and treatment of HIV/AIDS – Criminal laws are the strongest expression of the State’s power to punish certain acts and behaviour, and it is, therefore, in cumbentupon the State to ensure full protection for all persons, including the specific needs of sexual minorities – Penal Code, 1860 – s.377. (Per Dr. D. Y. Chandrachud, J.)

Constitution of India – Constitutional morality – The very purpose of 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 the Supreme Court to give effect to the rights among others of discrete and insular minorities. (Per R.F. Nariman, J.)

Constitution of India – Constitution morality – Held: The Constitution assures to every individual the right to lead a dignified life – It prohibits discrimination within society – LGBT individuals are equal citizens of India, that they cannot be discriminated against and that they have a right to express themselves through their intimate choices. (Per Dr. D. Y. Chandrachud, J.)

Constitution of India – Constitution morality and public morality – Difference between – Held: Under a regime of public morality, the conduct of society is determined by popular perception sexistent 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 – Constitutional morality, on the other hand, 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. (Per Dr. D. Y. Chandrachud, J.)

Constitution of India – Arts.14, 21 – Persons who arehomosexual 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 – 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 – All government officials, including and in particular police officials, and other officers of the Union of India and the States, begiven periodic sensitization and awareness training of the plight of such persons – LGBT – Homosexual. (Per R.F. Nariman, J.)

Constitution of India – Art.14 – A classification which discriminates between persons based on their innate nature, wouldbe violative of their fundamental rights, and cannot withstand the test of constitutional morality – s.377 insofar as it criminalises consensual sexual acts between adults in private, is not based on any sound or rational principle, since the basis of criminalisation is the “sexual orientation” of a person, over which one has “little or no choice” – Further, the phrase “carnal intercourse against the order of nature” in s.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 Art.14, s.377 is also manifestly arbitrary, and hence violative of Art.14 of the Constitution. (Per Indu Malhotra, J.)

Constitution of India – Art.15 – Term ‘sex’ as it occurs in Art.15, is not merely restricted to the biological attributes of an individual, but also includes their “sexual identity and character”– The prohibition against discrimination under Art.15 on the ground of ‘sex’ should, therefore, encompass instances where such discrimination takes place on the basis of one’s sexual orientation – 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 Art.15. (Per Indu Malhotra, J.)

Constitution of India – Art.21 – LGBT, sexual orientation of – Impediment of s.377 IPC – 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 demolish the obstruction and remove the impediment so as to allow the full blossoming of the natural and constitutional rights of individuals – Yogyakarta Principle. (Per Dipak Misra, CJI [for himself and Khanwilkar, J.])

Constitution of India – Art.21 – Right to choose partner on the basis of sexual orientation – Held: 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 heterosexualpersons, 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 Art.21 – The right to life and liberty would encompass the right to sexual autonomy, and freedom of expression – s.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 Art.21. (Per Indu Malhotra, J.)

Constitution of India – Art.21 – Right to privacy – s.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 – s.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. (Per Indu Malhotra, J.)

Constitution of India – Art.21 – Right to health – LGBT persons being a sexual minority have been subjected to societal prejudice,discrimination and violence on account of their sexual orientation – Since s.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. (Per Indu Malhotra, J.)

Constitution of India – Art.32 – Duty of constitutional Courts– Held: It is expected from the courts as the final arbiter of the Constitution to uphold the cherished principles of the Constitution and not to be remotely guided by majoritarian view or popular perception – The Court has to be guided by the conception of constitutional morality and not by the societal morality – 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, how soever small part of 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. (Per Dipak Misra, CJI [for himself and Khanwilkar, J.])

Doctrines/Principles – Doctrine of progressive realization and non-retrogression – 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 – The State has an obligation to take appropriate measures for the progressive realization of economic, social and cultural rights – 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 – 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 – The two doctrines lead to the irresistible conclusion that if the law enunciated in Suresh Koushal’s case is accepted, 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 – The observation was made in Suresh Koushal that gays, lesbians, bisexuals and transgenders constitute a very minuscule part of the population – Suresh Koushal’s view gets wrongly embedded with the minuscule facet and assumes criminality on the bedrock being guided by a sense of social 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, incertain 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 – LGBT – Penal Code, 1860 – s.377. (Per Dipak Misra,CJI [for himself and Khanwilkar, J.])

Judicial review – Scope of – Where the validity of the law is called into question, judicial review will extend to scrutinizing 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. (Per Dr. D. Y. Chandrachud, J.)

Jurisprudence – Criminal Law Theories – ‘Bentham’s Utilitarian Theory’ and ‘The Harm Principle’ – Discussed. (Per Dr. D.Y. Chandrachud, J.)

Maxim – 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 – 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 – Mental Healthcare Act, 2017 – Penal Code, 1860 – s.377. (Per R.F. Nariman, J.)

Mental Healthcare Act, 2017 – s.3 – Homosexuality, whether a mental disorder – 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 this enactment – s.3 of the Act mandates that mental illness is to be determined in accordance with ‘nationally’ or ‘internationally’ accepted medical standards – The International Classification of Diseases (ICD-10) by the World Health Organization is listed as an internationally accepted medical standard and does not consider non-peno-vaginalsex between consenting adults either a mental disorder or an illness – Penal Code, 1860 – s.377. (Per Dr. D. Y. Chandrachud, J.)

LGBT – Members of the LGBT community are entitled, as all other citizens, to the full range of constitutional rights including the liberties protected by the Constitution – Constitution of India. (Per Dr. D. Y. Chandrachud, J.)

Legislation – Constitutional validity of a legislation – While assessing whether a law infringes a fundamental right, it is not the intention of the lawmaker that is determinative, but whether the effect or operation of the law infringes fundamental rights. (Per Dr. D. Y. Chandrachud, J.)