# NAVTEJ SINGH JOHAR & ORS v. UNION OF INDIA THR. SECRETARY MINISTRY OF LAW AND JUSTICE

- **Citation:** [2018] 7 S.C.R. 379
- **Court:** Supreme Court of India
- **Decided:** 2018-09-06
- **Bench:** Dipak Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/navtej-singh-johar-ors-v-union-of-india-thr-secretary-ministry-of-law-and-33688
- **Pages:** 368

## Headnote

379
[2018] 7 S.C.R. 379
NAVTEJ SINGH JOHAR & ORS.
v.
UNION OF INDIA THR. SECRETARY
MINISTRY OF LAW AND JUSTICE
(Writ Petition (Criminal) No. 76 of 2016)
SEPTEMBER 06, 2018
[DIPAK MISRA, CJI, R. F. NARIMAN,
A. M. KHANWILKAR, DR. D.Y. CHANDRACHUD AND
INDU MALHOTRA, JJ.]
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 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, 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
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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 nonconsensual carnal intercourse - s.377, insofar as it applies to samesex 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 - s.377
offends Art.14 as it discriminates between heterosexual and
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 -
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 or
heterosexual, 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 h

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379
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE
[DIPAK MISRA, CJI ]
379
[2018] 7 S.C.R. 379
NAVTEJ SINGH JOHAR & ORS.
v.
UNION OF INDIA THR. SECRETARY
MINISTRY OF LAW AND JUSTICE
(Writ Petition (Criminal) No. 76 of 2016)
SEPTEMBER 06, 2018
[DIPAK MISRA, CJI, R. F. NARIMAN,
A. M. KHANWILKAR, DR. D.Y. CHANDRACHUD AND
INDU MALHOTRA, JJ.]
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 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, 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
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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 nonconsensual carnal intercourse - s.377, insofar as it applies to samesex 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 - s.377
offends Art.14 as it discriminates between heterosexual and
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 -
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 or
heterosexual, 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
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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 rape
criminal - On the other hand, s.377 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. (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-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. (Per R.F.
Nariman, J.)
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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 of
sex 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 also
stigmatises and condemns LGBTQ individuals in society. (Per
Dr. D. Y. Chandrachud, J.)
Penal Code, 1860 - s.377 - Import and effect - Held: While
a 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
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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 sexual
acts 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
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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
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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's
sexual 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 sexual
rights - It forces consensual sex between adults into a realm of
fear and shame, as persons who engage in anal and oral intercourse
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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 -
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, incumbent
upon 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 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 -
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
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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 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 - 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, be
given 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, would
be 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
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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 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 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
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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, howsoever 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
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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 - 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-vaginal
sex between consenting adults either a mental disorder or an illness
- Penal Code, 1860 - s.377. (Per Dr. D. Y. Chandrachud, J.)
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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.)
Disposing of the writ petitions, the Court
HELD:
Per Dipak Misra, CJI [for himself and Khanwilkar, J.] - 1.
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. [Para 86] [475-F-H; 476-A]
National Legal Services Authority v. Union of India and
others (2014) 5 SCC 269; Ashok Kumar Gupta and
another v. State of U.P. and others (1997) 5 SCC 201:
[1997] 3 SCR 269; Video Electronics Pvt. Ltd. and
another v. State of Punjab and another (1990) 3 SCC
87: [1989] 2 Suppl. SCR 731; Saurabh Chaudri and
others v. Union of India and others (2003) 11 SCC
146: [2003] 5 Suppl. SCR 152 - relied on
Childline India Foundation and another v. Allan John
Waters and others (2011) 6 SCC 261; Khanu v. Emperor
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AIR 1925 Sind 286; Lohana Vasantlal Devchand v. State
AIR 1968 Guj 252; State of Kerala v. Kundumkara
Govindan and another [1969] Cri LJ 818 (Ker); Calvin
Francis v. State of Orissa 1992 (1) OLR 316; Chief
Justice of Andhra Pradesh and others v. L.V.A. Dixitulu
and Others (1979) 2 SCC 34 : [1979] 1 SCR 26 -
referred to
Re: Same Sex Marriage [2004] 3 S.C.R. 698; State of
Missouri v. Holland 252 U.S. 416 (1920) - referred to
2.1 The concept of transformative constitutionalism has at
its kernel a pledge 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. 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. It is this ability of a Constitution to transform
which gives it the character of a living and organic document. A
Constitution continuously shapes the lives of citizens in particular
and societies in general. Its exposition and energetic appreciation
by constitutional courts constitute the lifeblood of progressive
societies. The Constitution would become a stale and dead
testament without dynamic, vibrant and pragmatic interpretation.
[Paras 96, 97] [479-C-G]
State of Kerala and another v. N.M. Thomas and others
AIR 1976 SC 490 : [1976] 1 SCR 906 - relied on
Road Accident Fund and another v. Mdeyide 2008 (1)
SA 535 (CC); Bato Star Fishing (Pty) Ltd v. Minister of
Environmental Affairs and Tourism and others [2004]
ZACC 15; President of the Republic of South Africa v.
Hugo (1997) 6 B.C.L.R. 708 (CC) - referred to
2.2 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
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social, economic and legal interests of every individual and the
process of transformative constitutionalism is dedicated to this
purpose. [Para 104] [482-A-B]
Shafin Jahan v. Asokan K.M. 2018 (5) SCALE 422 -
relied on
Albertyn & Goldblatt (1997) 6 B.C.L.R. 708 (CC);
Investigating Directorate: Serious Economic Offences
and others v. Hyundai Motor Distributors (Pty) Ltd and
others: In Re Hyundai Motor Distributors (Pty) Ltd and
others v. Smit NO and others 2001 (1) SA 545 (CC) -
referred to
3. Constitutional morality and Section 377 IPC
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 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. 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. [Paras 121, 122]
[487-F-H]
Government of NCT of Delhi v. Union of India and
Others 2018 (8) SCALE 72 - relied on
4. Perspective of human dignity
4.1 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. Dignity is that component of one's being without which
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sustenance of his/her being to the fullest or completest is
inconceivable. 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 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. [Paras 127, 132] [489-C-D; 490-F,
G-H; 491-A]
Maneka Gandhi v. Union of India and another (1978)
1 SCC 248: [1978] 2 SCR 621 - relied on
Law v. Canada (Minister of Employment and
Immigration) [1999] 1 S.C.R. 497 - referred to
4.2 It is not only the duty of the State and the Judiciary to
protect 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. 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. [Paras
134, 135] [491-F-H; 492-A]
P v. S Judgment of 30 April 1996; P v S and Cornwall
County Council Case C-13/94; Planned Parenthood of
Southeastern Pa. v. Casey 505 U.S. 833 (1992) -
referred to
5. Homosexuality is something that is based on sense of
identity. It is the reflection of a sense of emotion and expression
of eagerness to establish intimacy. It is just as much ingrained,
inherent and innate as heterosexuality. Sexual orientation, as a
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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. 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 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. [Paras 143, 144] [494-G; 495-A-B, C-D]
K.S. Puttaswamy and another v. Union of India and
others (2017) 10 SCC 1 - followed
James Egan and John Norris Nesbit v. Her Majesty The
Queen in Right of Canada and another [1995] 2 SCR
513 - referred to
6. Privacy and its concomitant aspects
6.1 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 his/her identity.