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Penal Code, 1860 – s.377 – Constitutionality of – Held: s.377,so far as it criminalises even consensual sexual acts betweencompetent adults, fails to make a distinction between non-consensualand consensual sexual acts of competent adults in private spacewhich are neither harmful nor contagious to the society – s.377subjects the LGBT community to societal pariah and dereliction andis, therefore, manifestly arbitrary, for it has become an odiousweapon for the harassment of the LGBT community by subjectingthem to discrimination and unequal treatment – Therefore, s.377 isliable to be partially struck down for being violative of Art.14 ofthe Constitution – In other words, s.377, so far as it penalizes anyconsensual 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 kindof sexual activity with an animal, the said aspect of s.377 isconstitutional and it shall remain a penal offence under s.377 –Any act of the description covered under s.377 done between theindividuals without the consent of any one of them would invitepenal liability under s.377 – Constitution of India – Art.14 –Homosexual – LGBT. (Per Dipak Misra, CJI [for himself andKhanwilkar, J.])Penal Code, 1860 – s.377 – Expression ‘against the order ofnature’ – The expression ‘against the order of nature’ has neitherbeen defined in s.377 nor in any other provision of the IPC – Theconnotation given to the expression by various judicial pronouncements includes all sexual acts which are not intended forthe purpose of procreation – Therefore, if coitus is not performedfor procreation only, it does not per se make it ‘against the order ofnature’. (Per Dipak Misra, CJI [for himself and Khanwilkar, J.])Penal Code, 1860 – s.377 – Examination of s.377 on the anvilof Art.14 of the Constitution – Held: The classification adoptedunder s.377 has no reasonable nexus with its object as other penalprovisions such as s.375 and the POCSO Act already penalize nonconsensualcarnal intercourse – s.377, insofar as it applies to samesexconsenting adults, demeans them by having them prosecutedinstead of understanding their sexual orientation and attempting tocorrect centuries of the stigma associated with such persons – s.377offends Art.14 as it discriminates between heterosexual andhomosexual adults which is a distinction which has no rationalrelation 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 HumanRights Law in relation to Sexual Orientation and Gender Identitygive further content to the fundamental rights contained in Arts 14,15, 19 and 21, and in the light of these principles also, s.377 isunconstitutional. (Per R.F. Nariman, J.)Penal Code, 1860 – s.377 – Examination of s.377 on the anvilof Art.19(1)(a) of the Constitution – Held: s.377 amounts to anunreasonable restriction, for public decency and morality cannotbe amplified beyond a rational or logical limit and cannot beaccepted as reasonable grounds for curbing the fundamental rightsof 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 publicdecency or morality – Therefore, s.377 in its present form violatesArt.19(1)(a) of the Constitution. (Per Dipak Misra, CJI [for himselfand Khanwilkar, J.])Penal Code, 1860 – s.377 – Miniscule population of LGBT –The mere fact that the percentage of population whose fundamentalright to privacy is being abridged by the existence of s.377 in itspresent form is low does not impose a limitat ion upon theConstitutional court from protecting the fundamental rights of those who are so affected by s.377. (Per Dipak Misra, CJI [for himselfand Khanwilkar, J.])Penal Code, 1860 – s.375 and s.377 – Distinction between –The major difference between the language of s.377 and s.375 isthat of the element of absence consent which has been elaboratelyincorporated in the seven descriptions contained in the latter partof s.375 – It is the absence of willful and informed consent embodiedin 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 ofnature’ – Held: Sex, if performed differently, as per the choice ofthe consenting adults, does not per se make it against the order ofnature – It is the freedom of choice of two consenting adults toperform sex for procreation or otherwise and if their choice is thatof 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 UnitedKingdom and in United States, Discussed. (Per R.F. Nariman, J.)Penal Code, 1860 – s.377 – Constitutionality of – Held: s.377was the product of the Victorian era, with its attendant puritanicalmoral values – Victorian morality must give way to constitutionalmorality – Constitutional morality is the soul of the Constitution,which is to be found in the Preamble of the Constitution, whichdeclares its ideals and aspirations, and is also to be found in PartIII of the Constitution, particularly with respect to those provisionswhich assure the dignity of the individual – The rationale for s.377,namely Victorian morality, has long gone and there is no reason tocontinue with - as Justice Holmes said - a law merely for the sake ofcontinuing with the law when the rationale of such law has longsince disappeared – s.377, insofar as it applies to same-sexconsenting adults, demeans them by having them prosecuted insteadof understanding their sexual orientation and attempting to correctcenturies of the stigma associated with such persons. (Per R.F.Nariman, J.) Penal Code, 1860 – s.377 – Discrimination grounded onstereotypes – Held: s.377 is the basis of persecution of members ofthe LGBT community – The section rests on deep rooted genderstereotypes – It perpetuates notions of morality which prohibit certainrelationships as being against the ‘order of nature’ – A criminalprovision has sanctioned discrimination grounded on stereotypesimposed on an entire class of persons on grounds prohibited byArt.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 isalso a denial of the right to privacy – To deny the members of theLGBT community the full expression of right to sexual orientation isto deprive them of their entitlement to full citizenship under theConstitution – By penalising sexual conduct between consentingadults, s.377 imposes moral notions which are anachronistic to aconstitutional order – While ostensibly penalising ‘acts’, it impactsupon the identity of the LGBT community and denies them the benefitsof equal citizenship – s.377 is based on a stereotype about sex –Our Constitution which protects sexual orientation must outlaw anylaw which lends the authority of the state to obstructing itsfulfilment– 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 certainacts or conduct, it creates a class of criminals, consisting ofindividuals who engage in consensual sexual activity – It typecastsLGBTQ individuals as sex-offenders, categorising their consensualconduct on par with sexual offences like rape and child molestation– s.377 not only criminalises acts (consensual sexual conductbetween 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 consensualrelationship between LGBT persons is considered to be ‘carnal’,and against the order of nature – s.377 creates an artificialdichotomy – The natural or innate sexual orientation of a person cannot be a ground for discrimination – Where a legislationdiscriminates on the basis of an intrinsic and core trait of anindividual, it cannot form a reasonable classification based on anintelligible differentia – Constitution of India – Reasonableclassification. (Per Indu Malhotra, J.)Penal Code, 1860 – s.377 – In contemporary civi lisedjurisprudence, with States increasingly recognising the status ofsame-sex relationships, it would be retrograde to describe suchrelationships as being ‘perverse’, ‘deviant’, or ‘unnatural’. (PerIndu Malhotra, J.)Penal Code, 1860 – s.375 and 377 – While s.375 permitsconsensual penetrative acts (the definition of ‘penetration’ includesoral and anal sex), s.377 makes the same acts of penetrationpunishable irrespective of consent – This creates a dichotomy inthe law – Constitution of India – Art.14. (Per Indu Malhotra, J.)Penal Code, 1860 – s.377 – History owes an apology to themembers of LGBT community and their families, for the delay inproviding redressal for the ignominy and ostracism that they havesuffered through the centuries – The members of this communitywere compelled to live a life full of fear of reprisal and persecution– This was on account of the ignorance of the majority to recognisethat homosexuality is a completely natural condition, part of a rangeof human sexuality. (Per Indu Malhotra, J.)Penal Code, 1860 – s.377 – s.377, insofar criminalising theconsensual sexual acts of adults in private, is violative of Arts.14,15, 19, and 21 of the Constitution – Such consent must be freeconsent, which is completely voluntary in nature, and devoid ofany duress or coercion – The declaration of the said reading downof s.377 shall not, however, lead to the re-opening of any concludedprosecutions, but can certainly be relied upon in all pending matterswhether they are at the trial, appellate, or revisional stages – Theprovisions 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 Constitutional ism – Held: TheConstitution would become a stale and dead testament without dynamic, vibrant and pragmatic interpretation – Constitutionalprovisions have to be construed and developed in such a mannerthat their real intent and existence percolates to all segments of thesociety – Our Constitution has been perceived to be transformativein the sense that the interpretation of its provisions should not belimited to the mere literal meaning of its words; instead they oughtto be given a meaningful construction which is reflective of theirintent and purpose in consonance with the changing times –Transformative constitutionalism not only includes within its wideperiphery the recognition of the rights and dignity of individualsbut also propagates the fostering and development of an atmospherewherein every individual is bestowed with adequate opportunitiesto develop socially, economically and politically – Discriminationof any kind strikes at the very core of any democratic society –When guided by transformative constitutionalism, the society isdissuaded from indulging in any form of discrimination so that thenation is guided towards a resplendent future – Lesbian, Gay,Bisexual and Transgender (LGBT). (Per Dipak Misra, CJI [forhimself and Khanwilkar, J.])Constitution of India – Constitutional morality – It is onlyconstitutional morality that can be allowed to permeate into theRule of Law – Constitutional morality embraces within its sphereseveral virtues, foremost of them being the espousal of a pluralisticand inclusive society – The concept of constitutional morality urgesthe organs of the State, including the Judiciary, to preserve theheterogeneous nature of the society and to curb any attempt by themajority to usurp the rights and freedoms of a smaller or minusculesection of the populace – Constitutional morality cannot be martyredat the altar of social morality – The veil of social morality cannotbe used to violate fundamental rights of even a single individual,for the foundation of constitutional morality rests upon therecognition of diversity that pervades the society. (Per Dipak Misra,CJI [for himself and Khanwilkar, J.])Constitution of India – Right to live with dignity – TheConstitution has ladened the judiciary with the very important dutyto protect and ensure the right of every individual including theright to express and choose without any impediments so as to enablean individual to fully realize his/her fundamental right to live with dignity – Sexual orientation is one of the many biological phenomenawhich is natural and inherent in an individual and is controlled byneurological and biological factors – The science of sexuality hastheorized 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 rightof freedom of expression. (Per Dipak Misra, CJI [for himself andKhanwilkar, J.])Constitution of India – Intention of constitutional framers wasnever to grant protection of fundamental rights only to the majoritypopulation – If such had been the intention, then all provisions inPart III of the Constitution would have contained qualifying wordssuch as ‘majority persons’ or ‘majority citizens’ – Instead, theprovisions have employed the words ‘any person’ and ‘any citizen’making it manifest that the constitutional courts are under anobligation to protect the fundamental rights of every single citizenwithout waiting for the catastrophic situation when the fundamentalrights of the majority of citizens get violated. (Per Dipak Misra,CJI [for himself and Khanwilkar, J.])Constitution of India – Sexual privacy and autonomy – Rightto privacy enables an individual to exercise his or her autonomyaway from the glare of societal expectations – In a liberal democracy,recognition of the individual as an autonomous person is anacknowledgement of the State’s respect for the capacity of theindividual to make independent choices – Autonomy and privacyare inextricably linked – Each requires the other for its full realization– Sexual choices are an essential attribute of autonomy. (PerDr. D. Y. Chandrachud, J.)Constitution of India – Choice of partner – The choice ofwhom to partner, the ability to find fulfilment in sexual intimaciesand the right not to be subjected to discriminatory behaviour areintrinsic to the constitutional protection of sexual orientation. (PerDr. D. Y. Chandrachud, J.)Constitution of India – Right to health – Impact of s.377 onright to health – The operation of s.377 denies consenting adultsthe full realization of their right to health, as well as their sexualrights – It forces consensual sex between adults into a realm offear and shame, as persons who engage in anal and oral intercourse risk criminal sanctions if they seek health advice – This lowers thestandard 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 criminalizesame-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 topunish certain acts and behaviour, and it is, therefore, incumbentupon the State to ensure full protection for all persons, includingthe specific needs of sexual minorities – Penal Code, 1860 – s.377.(Per Dr. D. Y. Chandrachud, J.)Constitution of India – Constitutional morality – The verypurpose of fundamental rights chapter in the Constitution of Indiais to withdraw the subject of liberty and dignity of the individualand place such subject beyond the reach of majoritariangovernments so that constitutional morality can be applied by theSupreme Court to give effect to the rights among others of discreteand insular minorities. (Per R.F. Nariman, J.)Constitution of India – Constitution morality – Held: TheConstitution assures to every individual the right to lead a dignifiedlife – It prohibits discrimination within society – LGBT individualsare equal citizens of India, that they cannot be discriminated againstand that they have a right to express themselves through their intimatechoices. (Per Dr. D. Y. Chandrachud, J.)Constitution of India – Constitution morality and publicmorality – Difference between – Held: Under a regime of publicmorality, the conduct of society is determined by popular perceptionsexistent in society – The continuance of certain symbols, labels,names or body shapes determine the notions, sentiments and mentalattitudes of the people towards individuals and things –Constitutional morality, on the other hand, determines the mentalattitude towards individuals and issues by the text and spirit of theConstitution – It requires that the rights of an individual ought notto be prejudiced by popular notions of society – It assumes thatcitizens would respect the vision of the framers of the Constitutionand 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 notionof 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, inthe larger framework of the Preamble of India, will assure thecardinal constitutional value of fraternity – Such groups are entitledto the protection of equal laws, and are entitled to be treated insociety as human beings without any stigma being attached to anyof them – All government officials, including and in particular policeofficials, and other officers of the Union of India and the States, begiven periodic sensitization and awareness training of the plight ofsuch persons – LGBT – Homosexual. (Per R.F. Nariman, J.)Constitution of India – Art.14 – A classification whichdiscriminates between persons based on their innate nature, wouldbe violative of their fundamental rights, and cannot withstand thetest of constitutional morality – s.377 insofar as it criminalisesconsensual sexual acts between adults in private, is not based onany sound or rational principle, since the basis of criminalisationis the “sexual orientation” of a person, over which one has “littleor no choice” – Further, the phrase “carnal intercourse againstthe order of nature” in s.377 as a determining principle in a penalprovision, is too open-ended, giving way to the scope for misuseagainst members of the LGBT community – Thus, apart from notsatisfying the twin-test under Art.14, s.377 is also manifestlyarbitrary, and hence violative of Art.14 of the Constitution. (PerIndu Malhotra, J.)Constitution of India – Art.15 – Term ‘sex’ as it occurs inArt.15, is not merely restricted to the biological attributes of anindividual, but also includes their “sexual identity and character”– The prohibition against discrimination under Art.15 on the groundof ‘sex’ should, therefore, encompass instances where suchdiscrimination takes place on the basis of one’s sexual orientation– The LGBT community is a sexual minority which has suffered fromunjustified and unwarranted hostile discrimination, and is equallyentitled 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 withimpediment, albeit through any imposition of law, the individual’snatural and constitutional right is dented – Such a situation urgesthe conscience of the final constitutional arbiter to demolish theobstruction and remove the impediment so as to allow the fullblossoming of the natural and constitutional rights of individuals –Yogyakarta Principle. (Per Dipak Misra, CJI [for himself andKhanwilkar, J.])Constitution of India – Art.21 – Right to choose partner onthe basis of sexual orientation – Held: Sexual orientation is innateto a human being – It is an important attribute of one’s personalityand identity – Homosexuality and bisexuality are natural variantsof human sexuality – LGBT persons have little or no choice overtheir sexual orientation – LGBT persons, like other heterosexualpersons, are entitled to their privacy, and the right to lead a dignifiedexistence, without fear of persecution – They are entitled to completeautonomy over the most intimate decisions relating to their personallife, including the choice of their partners – Such choices must beprotected under Art.21 – The right to life and liberty wouldencompass the right to sexual autonomy, and freedom of expression– s.377 insofar as it curtails the personal liberty of LGBT personsto engage in voluntary consensual sexual relationships with apartner of their choice, in a safe and dignified environment, isviolative of Art.21. (Per Indu Malhotra, J.)Constitution of India – Art.21 – Right to privacy – s.377 affectsthe private sphere of the lives of LGBT persons – It takes away thedecisional autonomy of LGBT persons to make choices consistentwith their sexual orientation, which would further a dignifiedexistence and a meaningful life as a full person – s.377 prohibitsLGBT persons from expressing their sexual orientation and engagingin sexual conduct in private, a decision which inheres in the mostintimate spaces of one’s existence. (Per Indu Malhotra, J.)Constitution of India – Art.21 – Right to health – LGBT personsbeing 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 ofnature” it compels LGBT persons to lead closeted lives – As aconsequence, LGBT persons are seriously disadvantaged and prejudiced when it comes to access to health-care facilities – Thisresults in serious health issues, including depression and suicidaltendencies 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 theConstitution to uphold the cherished principles of the Constitutionand not to be remotely guided by majoritarian view or popularperception – The Court has to be guided by the conception ofconstitutional morality and not by the societal morality – Wheneverthe constitutional Courts come across a situation of transgressionor dereliction in the sphere of fundamental rights, which are alsothe basic human rights of a section, howsoever small part of thesociety, then it is for the constitutional Courts to ensure, with theaid of judicial engagement and creativity, that constitutional moralityprevails over social morality. (Per Dipak Misra, CJI [for himselfand Khanwilkar, J.])Doctrines/Principles – Doctrine of progressive realization andnon-retrogression – The rationale behind the doctrine of progressiverealization of rights is the dynamic and ever growing nature of theConstitution under which the rights have been conferred to thecitizenry – The State has an obligation to take appropriate measuresfor the progressive realization of economic, social and cultural rights– The doctrine of progressive realization of rights, as a naturalcorollary, gives birth to the doctrine of non-retrogression – As perthis doctrine, there must not be any regression of rights – Thedoctrine of non-retrogression sets forth that the State should nottake measures or steps that deliberately lead to retrogression on theenjoyment of rights either under the Constitution or otherwise –The two doctrines lead to the irresistible conclusion that if the lawenunciated in Suresh Koushal’s case is accepted, it would definitelytantamount to a retrograde step in the direction of the progressiveinterpretation of the Consti tution and denial of progressiverealization of rights – The observation was made in Suresh Koushalthat gays, lesbians, bisexuals and transgenders constitute a veryminuscule part of the population – Suresh Koushal’s view getswrongly embedded with the minuscule facet and assumes criminalityon the bedrock being guided by a sense of social morality – Itdiscusses about health which is no more a phobia and is further moved by the popular morality while totally ignoring the conceptsof privacy, individual choice and the orientation – Orientation, incertain senses, does get the neuro-impulse to express while seeingthe other gender – That apart, swayed by data, Suresh Koushal failsto appreciate that the sustenance of fundamental rights does notrequire majoritarian sanction – Thus, the ruling becomes sensitivelysusceptible – 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 iscalled into question, judicial review will extend to scrutinizingwhether the law is manifestly arbitrary in its encroachment onfundamental liberties – If a law discriminates against a group or acommunity of citizens by denying them full and equal participationas citizens, in the rights and liberties granted by the Constitution, itwould be for the Court to adjudicate upon validity of such a law.(Per Dr. D. Y. Chandrachud, J.)Jurisprudence – Criminal Law Theories – ‘Bentham’sUtilitarian Theory’ and ‘The Harm Principle’ – Discussed. (PerDr. 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 arule of law – Parliament has unequivocally declared that the earlierstigma attached to same-sex couples, as persons who are regardedas 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, whethera mental disorder – Medical and scientific authority has nowestablished that consensual same sex conduct is not against theorder of nature and that homosexuality is natural and a normalvariant of sexuality – Parliament has provided legislativeacknowledgment of this global consensus through this enactment –s.3 of the Act mandates that mental illness is to be determined inaccordance with ‘nationally’ or ‘internationally’ accepted medicalstandards – The International Classification of Diseases (ICD-10)by the World Health Organization is listed as an internationallyaccepted 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 allother citizens, to the full range of constitutional rights includingthe liberties protected by the Constitution – Constitution of India.(Per Dr. D. Y. Chandrachud, J.)Legislation – Constitutional validity of a legislation – Whileassessing whether a law infringes a fundamental right, it is not theintention of the lawmaker that is determinative, but whether theeffect or operation of the law infringes fundamental rights. (PerDr. D. Y. Chandrachud, J.) |
