2018 Supreme(SC) 869

SUPREME COURT OF INDIA
DIPAK MISRA, CJI., A.M. KHANWILKAR, R.F. NARIMAN, D.Y. CHANDRACHUD, INDU MALHOTRA, JJ.
NAVTEJ SINGH JOHAR & ORS. – Petitioner(s)
VERSUS
UNION OF INDIA THR. SECRETARY MINISTRY OF LAW AND JUSTICE – Respondent(s)
WRIT PETITION (CRIMINAL) NO. 76 OF 2016
WITH
AKKAI PADMASHALI - Petitioner
VERSUS
UNION OF INDIA, THR.SECRETARY, MINISTRY OF LAW AND JUSTICE - Respondent
WRIT PETITION (CIVIL) NO. 572 OF 2016
WITH
KESHAV SURI - Petitioner
VERSUS
UNION OF INDIA - Respondent
WRIT PETITION (CRIMINAL) NO. 88 OF 2018
WITH
ARIF JAFAR – Petitioner
VERSUS
UNION OF INDIA AND ORS. – Respondents
WRIT PETITION (CRIMINAL) NO. 100 OF 2018
WITH
ASHOK ROW KAVI AND ORS. – Petitioners
VERSUS
UNION OF INDIA AND ORS. - Respondents
WRIT PETITION (CRIMINAL) NO. 101 OF 2018
WITH
ANWESH POKKULURI AND ORS. – Petitioners
VERSUS
UNION OF INDIA – Respondent
WRIT PETITION (CRIMINAL) NO. 121 OF 2018
Decided On : 06-09-2018

MAIN POINTS
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.
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.
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 right to privacy has been raised to the pedestal of a fundamental right.
doctrine of progressive realization of rights
Under the autonomy principle, the individual has sovereignty over his/her body. He/she can surrender his/her autonomy wilfully to another individual and their intimacy in privacy is a matter of their choice.
Section 375 IPC is not subject to Section 377 IPC.
Section 377 IPC is liable to be partially struck down for being violative of Article 14 of the Constitution.
Section 377 IPC in its present form violates Article 19(1)(a) of the Constitution.
The decision in Suresh Koushal (supra), not being in consonance with what we have stated hereinabove, is overruled.

Headnote:Per Dipak Misra, CJI (for himself and A.M. Khanwilkar, J.)

       (a) Constitution of India – Part III – Constitution being a living document – Has to adapt to ever-changing circumstances without losing its identity – Fundamental rights of 'liberty' and 'equality' cannot be given static interpretation – Constitutional Courts therefore evolved views for extending protection of fundamental rights to the deprived ones. (Para 82, 84, 85, 88, 94)

       (1979) 2 SCC 34; (2003) 11 SCC 146; (1997) 5 SCC 201; (1990) 3 SCC 87 – Relied upon

       (b) Constitutional Law – LGBTs – Have been object of humiliation, discrimination, separation and violence by all including their very own family members – Development of law must come to aid to realisation and attainment of their rights – a (Para 89,

       (2014) 5 SCC 438 – Relied upon

       [2004] 3 S.C.R. 698; 252 U.S. 416 (1920) – Referred

       (c) Constitutional law – ‘Transformative constitutionalism’ – Ability of the Constitution to adapt and transform with the changing needs of the times – Courts fulfilling their obligation to act as sentinel on qui vive for guarding the rights of all individuals irrespective of their sex, choice and sexual orientation – Equality, apart from recognizing individual dignity, also includes ensuring of equal opportunity to advance and develop their human potential and social, economic and legal interests of every individual – Process of transformative constitutionalism is dedicated to this purpose. (Para 95, 96, 98, 104)

       AIR 1976 SC 490 – Relied upon

       2008 (1) SA 535 (CC); [2004] ZACC 15; (1997) 6 B.C.L.R. 708 (CC); 2001 (1) SA 545 (CC) – Referred

       (d) Indian Penal code, 1860 – Section 377 – Freedom of choosing a partner – Both a constitutional and a human right – A facet of individual liberty – Need to develop a constitutional culture to protect the fundamental rights of an individual (Para 107, 108, 110)

       AIR 2018 SC 1933 : 2018 (5) SCALE 422; (2018) 7 SCC 192 – Relied upon

       (e) Constitutional law – Constitutional morality – Sweep of constitutional morality not confined to the provisions and literal text of the Constitution – Embracing virtues like that of ushering a pluralistic and inclusive society, at the same time adhering to the other principles of constitutionalism – Need to strengthen constitutional morality – Any asymmetrical attitude in the society, within the legal and constitutional framework, needs to be provided a sustainable environment allowing freedom of expression including that of choice to prosper and flourish – Necessary for survival of freedom and liberty – Constitutional morality and not social morality should guide the Courts – Fundamental rights of a section of society howsoever small in number, must not be allowed to be trampled by obscure notions of social morality which have no legal tenability – Courts duty bound to ensure that constitutional morality prevails over social morality – A provision falling foul to precept of constitutional morality – Must be declared as unconstitutional. (Para 111, 114, 117, 119, 120, 121, 124)

       (f) Constitution of India – Article 21 – Dignity – Recognized as an important aspect of right to life and a facet of liberty – Without it all other fundamental rights may not realise their complete meaning – Any impediment including by imposition of law on biological expression (with consent) dents constitutional right of the individual – Consent is the real fulcrum of any sexual relationship. (Para 127, 132)

       (2018) 5 SCC 1; (1978) 1 SCC 248 – Relied upon

       (g) Indian Penal Code, 1860 – Section 377 – Essential right of a severely deprived section of our society, i.e., an individual's choice to engage in certain acts within their private sphere – Restricted by criminalising the same – On account of age old social perception – Violates the individual's right to dignity. (Para 135, 138)

       1999 1 S.C.R. 497; C-13/94; 505 U.S. 833 (1992) – Referred

       (h) Sexual Orientation – Refers to individual's capacity for profound emotional, affectional and sexual attraction to and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender – Homosexuality, bisexuality and heterosexuality – By social perception heterosexuality regarded as natural while homosexuality treated as unnatural – Bisexuality choosing homosexuality also not accepted – The ‘act’ treated natural or unnatural in terms of social perception – There can be situations influencing emotional behaviour of an individual to seek intimacy in the same gender bringing two persons together in a biological pattern – It has to be treated as consensual activity and reflective of consensual choice. (Para 140, 141, 148)

       [1995] 2 SCR 513 – Referred

       (i) Indian Penal Code, 1860 – Section 377 – Constitution of India – Article 21 – Right to privacy – Right of choice – Autonomy, individual’s sovereignty over his/her body – Autonomy establishes identity which becomes a part of dignity in an individual – Article 12, UDHR, 1948 – Article 17, International Covenant of Civil and Political Rights. (Para 149)

       (1994) 6 SCC 632 – Relied upon

       [1981] 4 EHRR 149 – Referred

       (j) Constitution of India – Article 21 – Right to union – Union meaning companionship, physical, mental, sexual or emotional – Invasion of the act of expressing sexuality by two persons consensually and without harming one another – Would be breach of privacy which is now recognized as a facet of fundamental right under Article 21 – Guarantee of constitutional rights does not depend upon their exercise being favourably regarded by majoritarian opinion – Right to privacy and protection of sexual orientation lie at the core of fundamental rights guaranteed by Articles 14, 15 and 21 – Low percentage of population whose right to privacy is abridged by section 377 cannot be an impediment in Court protecting such right – Words ‘any person’ and ‘any citizen’ in Part III of Constitution – Right to move constitutional Courts under Articles 32 and 226 not limited to violation of fundamental rights of a large chunk of populace – Even single person legislation may be valid. (Para 155, 159, 161, 163, 169, 172, 174)

       (2017) 10 SCC 1; (1997) 1 SCC 416; (2018) 5 SCC 1; [1950] 1 SCR 869 – Relied upon

       478 U.S. 186 (1986); 413 U.S. 49 (1973); Communication No. 453/1991; Communication No. 488/1992; 1998 (12) BCLR 1517 (CC) – Referred

       (k) Constitutional law – Doctrine of progressive realization of the rights under the Constitution – Rights under the Constitution are also dynamic and progressive – Doctrine of non-retrogression (Para 178, 183, 189, 190)

       AIR 1976 SC 490; (2014) 9 SCC 1 – Relied upon

       (2009) 111 DRJ 1 – Cited with approval

       (1816) 17 US 316; (1966) 384 US 641; 576 US (2015); 490 U.S. 228 (1989); 830 F.3d 698; 539 U.S. 558 (2003); 468 U.S. 609 (1984); [1998] 1 SCR 493; 2001 ECHR 234; G. R. No.190582, Supreme Court of Philippines (2010) – Referred

       (2014) 1 SCC 1 – Overruled

       (l) Indian Penal Code, 1860 – Section 375 and 377 – Section 375 gender specific – Absence of willful and informed consent – Section 377 gender neutral – ‘Against the order of nature’ – Phrase not defined – Carnal intercourse – Purpose – Traditionally, procreation – Now, emotional companionship – Held, sex, if performed differently, as per the choice of the consenting adults, does not per se make it against the order of nature – Section 377 criminalising even voluntary carnal intercourse not only between homosexuals but also between heterosexuals – Distinction between section 375 and 377 – Element of absence of consent – Section 375 IPC not subject to Section 377 – Conflict between the two provisions – Anomalous situation of same act between heterosexual couples not being an offence u/s 375 but an offence u/s 377 – Not tenable – Criminalisation of consensual carnal intercourse, be it amongst homosexuals, heterosexuals, bi-sexuals or transgenders, hardly serves any legitimate public purpose or interest. (Para 207, 212, 213, 214, 215, 216, 217, 218, 220, 223)

       AIR 1925 Sind 286 – Cited with approval

       [1981] 4 EHRR 149 – Referred

       (m) Constitution of India – Article 21 – Expression ‘life or personal liberty’ – Section 377 IPC, in its present form, abridges both human dignity as well as the fundamental right to privacy and choice of the citizenry, howsoever small – What is punitively outrageous, scandalizingly unusual or cruel and rehabilitatively counterproductive, is unarguably unreasonable and arbitrary and is shot down by Article 14 and 19 and if inflicted with procedural unfairness, falls foul of Article 21. (Para 229, 232)

       (1978) 1 SCC 248; (2008) 3 SCC 1; (2018) 5 SCC 1; (2017) 10 SCC 1; AIR 1978 SC 1675 : (1978) 4 SCC 494 – Relied upon

       (n) Indian Penal code, 1860 – Section 377 – Constitutional validity – Article 14, Constitution of India – Intelligible differentia having rational nexus with the object sought to be achieved – Section 377 classifies and penalizes persons indulging in carnal intercourse – To protect women and children – Non-consensual such acts already criminalised u/s 375 and POSCO Act – Further, section 377 criminalises even consensual acts neither harmful to children nor women – Held, section 377 discriminates and treats LGBTs as unequal – Violative of Article 14. (Para 237)

       AIR 2007 SC 71 : (2006) 8 SCC 212; AIR 1974 SC 555 : (1974) 4 SCC 3; AIR 1955 SC 191 – Relied upon

       (o) Indian Penal code, 1860 – Section 377 – Constitutional validity – Article 14, Constitution of India – Arbitrariness – Section 377 fails to make a distinction between consensual and non-consensual sexual acts between competent adults – It also fails to take into account that consensual sexual acts between adults in private space are neither harmful nor contagious to the society – On the contrary, Section 377 encroaches upon liberty of persons belonging to the LGBT community by subjecting them to societal pariah and dereliction – Sexual acts cannot be viewed from the lens of social morality or that of traditional precepts – Section 377 IPC held manifestly arbitrary. (Para 239)

       (2017) 9 SCC 1 – Relied upon

       (p) Indian Penal code, 1860 – Section 377 – Article 19, Constitution of India – Reasonable restriction – Fundamental right of expression including choice – Section 377 hitting consensual private acts of adults including the LGBT community that neither cause disturbance to the public order nor are injurious to public decency or morality – Held, section 377 IPC amounts to unreasonable restriction. (Para 245, 246)

       AIR 1951 SC 118; (1989) 2 SCC 574; (2010) 5 SCC 600; (2015) 5 SCC 1 – Relied upon

       (q) Indian Penal Code, 1860 – Section 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) held unconstitutional – However, so far as it criminalises anyone engaging in any kind of sexual activity with an animal, held constitutional – Similarly carnal intercourse without consent would invite liability u/s 377. (Para 252)

       Per R.F. Nariman, J. (concurring)

       (r) Mental Healthcare Act, 2017 – Section 3 – Homosexuality – Not a mental illness – Mental illness shall not be determined on the basis of social status or membership of a cultural group or for any other reason not directly relevant to the mental health of the person. (Para 72, 73)

       576 US (2015) – Referred

       (s) Mental Healthcare Act, 2017 – Section 21(1)(a) – Persons with mental illness will not be discriminated in their treatment on any basis including gender, sex, sexual orientation, religion, culture, caste, social or political beliefs, class or disability – Thus LGBT persons are treated equal to any other person. (Para 74)

       (t) Indian Penal code, 1860 – Section 377 – Based on Victorian morality must give way to constitutional morality – As the basis of section 377 has gone, the section itself should also go – Maxim cessant ratione legis, cessat ipsa lex, meaning when the reason for a law ceases, the law itself ceases applied. (Para 78)

       (1979) 4 SCC 642; (2004) 11 SCC 26 – Relied upon

       (u) Indian Penal code, 1860 – Section 377 and Articles 14, 19 and 21, Constitution of India – Right to privacy – Right to make intimate choices – Section 377 infringes such right of same-sex consenting adults – Courts cannot substitute societal morality with constitutional morality – Notions of social morality are inherently subjective – Criminal law cannot be used as a means to unduly interfere with domain of personal autonomy – Sin and crime – To confuse the one with the other is what causes the death knell of Section 377, insofar as it applies to consenting homosexual adults. (Para 79, 80)

       (2017) 10 SCC 1; (2010) 5 SCC 600 – Relied upon

       (v) Constitution of India –Chapter III – Purpose – To withdraw the subject of liberty and dignity of the individual – And to place such subject beyond the reach of majoritarian governments – In order that constitutional morality can be applied by Supreme Court to give effect to the rights, among others, of ‘discrete and insular’ minorities – a (Para 81,

       304 U.S. 144 (1938) – Referred

       (w) Indian Penal Code, 1860 – Section 377 – Section 377, in penalizing consensual gay sex, held manifestly arbitrary – Hence violative of Article 14, 21 and 19(1)(a) Constitution of India – Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity. (Para 82, 83, 84, 88)

       (2017) 9 SCC 1 – Relied upon

       (x) Interpretation of statute – Constitutionality of pre-Constitutional law – Article 372, Constitution of India continues pre-constitutional laws – Ina challenge to validity of such laws e.g. Indian Penal Code enacted by foreign ruler, its constitutionality cannot be presumed as being the will of the people of India – New Delhi Municipal Council striking part of section 377 – Attaining finality not being challenged – Further certain acts between consenting adults not an offence u/s 375 but same acts declared offence u/s 377 – Creating anomalous situation – Section 377 held manifestly arbitrary and violative of Article 14, Constitution of India. (Para 90, 93, 94)

       (1997) 7 SCC 339 – Relied upon

       (2014) 1 SCC 1– Overruled

       (y) Indian Penal Code, 1860 – Section 377 – Fact that only a minuscule fraction of the country’s population constitutes lesbians and gays or transgenders, and that in the last 150 years less than 200 persons have been prosecuted for committing the offence under Section 377 – No ground to continue section 377 which penalizes same sex consenting adults for acts causing no harm to others – Held, section 377 transgresses Articles 14, 15, 19 and 21. (Para 95)

       (1997) 7 SCC 339 – Relied upon

       (z) Indian Penal Code, 1860 – Section 377 – Homosexuals – Have a fundamental right to live with dignity – Such groups are also entitled to protection of equal laws – Section 377 insofar as it criminalises homosexual sex and transgender sex between consenting adults declared unconstitutional. (Para 97)

       (2011) 7 SCC 547; (2016) 7 SCC 221 – Relied upon

       111 DRJ 1 (2009) – Cited with approval

       Per Dr. D.Y. Chandrachud, J.

       (aa) Indian Penal Code, 1860 – Section 377 – To find fulfillment of love by consenting adults of same gender made criminal by colonial rulers 159 years ago – LGBTs continue to be denied a truly equal citizenship seven decades after Independence – Societal morality versus Constitutional morality – Individual liberty – Section 377 providing for rule by the law instead of the rule of law – Tragedy and anguish inflicted by section 377 needs to be remedied. – Part of section 377 held unconstitutional. (Para 2, 3, 4, 5, 7)

       (ab) Interpretation of Constitution – Constitutional issues are not decided on concession. (Para 9)

       Interpretation of statute – Examining validity of section 377 IPC – Court must understand and explain in a constitutional perspective, the nature of the right which is claimed – constitutional source from which the claim emerges – Forming a holistic perspective requires the court to dwell on to sexuality. (Para 13)

       (ac) Indian Penal Code, 1860 – Section 377 – Has been used to prosecute non-consensual sexual acts, as well as consensual sexual acts. (Para 23)

       AIR 1934 Sind. 206; AIR 1935 Sind. 78; (1988) Cr.L.J. 980 – Referred

       (ad) Indian Penal Code, 1860 – Section 377 and Article 14, Constitution of India – Legal formalism – Substance and form – Section 377 penalizes some forms of sexual expression among heterosexuals while necessarily criminalizing every form of sexual expression and intimacy between homosexuals – While interpreting section 377 ‘ordinary intercourse’ and ‘intercourse against the order of nature’ need to be distinguished – Intelligible differentia indeterminable – Uncommon behaviour cannot be deemed ethically bbnormal and morally wrong just on the basis of mere statistical probability – Indeterminacy and vagueness of terms ‘carnal intercourse’ and ‘order of nature’ renders Section 377 violative of Article 14. (Para 27, 28, 29, 30)

       AIR (1952) SC 75; (1989) 2 SCC 145; (1974) 4 SCC 3; (2017) 9 SCC 1 – Relied upon

       AIR (1925) Sind. 286 – Referred

       (ae) Indian Penal Code, 1860 – Section 377 and 375 (as amended in 2013) – Many acts between homosexual adults even if consensual are criminal acts u/s 377 whereas the same between consenting heterosexual adults is not a crime – This makes section 377 violative of Article 14 of the Constitution of India. (Para 31)

       (af) Interpretation of statute – Validity – Determinative factor – Its effect on infringement of fundamental rights – Individual is aggrieved because the law hurts and the hurt to the individual is measured by the violation of a protected right. (Para 34)

       AIR 1958 SC 956; AIR 1962 SC 305; (1970) 1 SCC 248; AIR (1972) 2 SCC 788; (1978) 1 SCC 248 – Relied upon

       1999 (1) SA 6 (CC) – Referred

       (ag) Constitution of India – Article 15 – Discrimination on ground of sex – Both gender and biological attributes constitute distinct components of sex – Gender attributes include one’s self image, the deep psychological or emotional sense of sexual identity and character – Discrimination on the ground of ‘sex’ under Articles 15 and 16 includes discrimination on the ground of gender identity. (Para 37)

       (2008) 3 SCC 1; (2014) 5 SCC 438 – Relied upon

       [411 U.S. 677 (1973) – Cited with approval

       518 U.S. 515 (1996); 433 U.S. 321 (1977) – Referred

       AIR (1951) Cal. 563; (1981) 4 SCC 335 – Distinguished

       (ah) Indian Penal Code, 1860 – Section 377 – Facially neutral and apparently targeting not identities but acts – In its operation, however, it unfairly targets a particular community, homosexual as a class – Section 377 IPC has the effect of viewing all gay men as criminals. (Para 42)

       (2010) Cri LJ 94 – Cited with approval

       401 U.S. 424 (1971); (1986) ECR 1607; (1989) 1 SCR 143; (1998) 3 BCLR 257 – Referred

       (ai) Indian Penal Code, 1860 – Section 377 – Discrimination based on ‘sex’ and on ‘sexual orientation’ cannot be separated – Section 377 shows that LGBT individuals as well as those who do not conform to societal expectations of sexual behaviour defy gender stereotypes – Prohibition of homosexuality serves to ensure a larger system of social control based on gender and sex – Effect of Section 377 is not merely to criminalize an act, but to criminalize a specific set of identities – Constitution guarantees individual rights – These rights, however, lose the guarantee when social, economic and political context enables an atmosphere of continued discrimination – Held, section 377 violates Article 15 of the Constitution. (Para 46, 47, 51, 52)

       (2017) 10 SCC 1 – Relied upon

       (aj) Constitution of India – Article 21 – Right to sexual orientation – Intrinsic part of right to privacy – Test of popular acceptance rejected. (Para 54, 55)

       (2017) 10 SCC 1; (2014) 5 SCC 438 – Relied upon

       (ak) Indian Penal Code, 1860 – Section 377 – Deprives LGBTQ community of their fundamental right to privacy which inheres in every citizen – The right to sexual privacy must include the right of LGBTQ community to navigate public places on their own terms, free from state interference.

       (Para 58, 62)

       (al) Constitution of India – Article 21 – Autonomy and privacy – Inextricably linked – Each requires the other for its full realization – Sexual choices are essential attribute of autonomy. (Para 65)

       (2016) 8 SCC 253; (2018) 5 SCC 1; (2017) 10 SCC 1 – Relied upon

       (am) Indian Penal code, 1860 – Section 377 – Section 377 imposes moral notions which are anachronistic to a constitutional order – Denies right to intimacy which is an exercise of the individual’s sexual agency, and includes the individual’s right to the choice of partner as well as freedom to decide on nature of relationship that the individual wishes to pursue. (Para 67)

       (2018) SCC OnLine SC 275; (2018) SCC OnLine SC 343 – Relied upon

       (an) Constitution of India – Article 21 – Right to health – Sexual health – Right to health is included within the right to life and dignity – Sexual rights emanate from the rights to freedom, equality, privacy, autonomy, and dignity of all people – Positive obligation of State to provide for effective enjoyment of the right to health – Section 377 IPC denies these rights – Sexual behaviour and sexual identity and HIV – Behaviour, not sexual identity, places people at risk for HIV – Silence and secrecy accompanying institutional discrimination may escalate incidence of HIV/AIDS – Section 377 pushes LGBTQ population out of public health system.

       (Para 68, 71, 76, 78, 84, 87, 88, 92)

       (1992) 1 SCC 441; (1995) 3 SCC 42; (1996) 4 SCC 37; (2012) 6 SCC 1; (2016) 10 SCC 726; (2018) 5 SCC 1; (1984) 3 SCC 161; (1996) 2 SCC 682; (1998) 4 SCC 117 – Relied upon

       (2001) 5 ALD 522 – Cited with approval

       (ao) Mental Healthcare Act, 2017 – Section 3 – Consensual same sex conduct – Not against order of nature – Homosexuality is natural and a normal variant of sexuality – Counselors need special skills and heightened sensitivity and understanding of LGBT lives. (Para 95, 96)

       (ap) Administration of justice – Judicial review of laws enacted by legislature – Limited in scope to scrutinising whether the law is manifestly arbitrary in its encroachment on fundamental liberties. (Para 97)

       (aq) Constitution of India – Article 51 – Obligation of State to endeavour to “foster respect for international law and treaty obligations in the dealings of organised peoples with one another” – India bound by International treaties – Yogyakarta Principles – Contradiction between India’s international obligations and Section 377, IPC – Section 377 needs to be brought into conformity with both the Indian Constitution and the rules and principles of international law recognised by India. (Para 99, 100, 104)

       (1997) 6 SCC 241; (2014) 5 SCC 438 – Relied upon

       (ar) Constitution of India – Article 21 – Right to privacy and right to sexuality – Liberal constitutional values – Liberty, dignity, privacy, equality and individual autonomy – Despite socio-historical contexts differing from one jurisdiction to another, the overwhelming weight of international opinion and the dramatic increase in the pace of recognition of fundamental rights for same-sex couples reflecting a growing consensus towards sexual orientation equality cannot be ignored. (Para 126)

       App No 7525/76, (1981) ECHR 5; Application No. 10581/83, (1988) ECHR 22; Application No. 15070/89,16 EHRR 485; 478 U.S. 186 (1986); 539 U.S. 558 (2003); Communication No. 1361/2005; 1999 (1) SA 6 (CC); [2005] FJHC 500; Claim No. 668 of 2010; [1999] 1 S.C.R. 497; Claim no. CV2017-00720; Civil Appeal No. 317 of 2005; HCJ 721/94; (1998) 1 S.C.R. 493; Writ Petition No. 917 of 2007; [2015] ECHR 716; 570 U.S. 744 (2013); 576 U.S. ___ (2015); 584 U.S. ____ (2018); [2015] NICty 2 – Referred

       (as) Indian Penal Code, 1860 – Section 377 – Homosexual – Sexuality between two consenting adults of same gender – Not a crime if neither causing primary mischief, nor secondary mischief, nor any danger to society – Law and morality are closely related and morality of the people ought not be ignored in creating laws but also must not become their unchecked fount – Section 377 creates a class of criminals, consisting of individuals who engage in consensual sexual activity – Held, it is constitutional morality, and not mainstream views about sexual morality, which should be the driving factor in determining the validity of Section 377. (Para 130, 134, 136, 137)

       (at) Constitutional morality – Upholding constitutional values at every stage – Assurance of certain minimum rights – Liberty of thought, expression, belief, faith and worship – Popular morality or public disapproval of certain acts is not a valid justification for restriction of the fundamental rights under Article 21 – Held, section 377 IPC should be tested on the touchstone of constitutional morality. (Para 142, 143, 144, 145, 145)

       2018 (8) SCALE 72; (2010) Cri LJ 94 – Relied upon

       (au) Indian Penal code, 1860 – Section 377 – Transformative constitutionalism – Sexual orientation – Integral to identity and intrinsic to dignity of LGBT community and inseparable from their autonomy – Section 377 is founded on moral notions which are an anathema to a constitutional order – Held and declared that Section 377, in so far as it criminalises consensual sexual conduct between adults of the same sex, is unconstitutional – Members of the LGBT community are entitled to all constitutional rights including the liberties protected by the Constitution – their choice of partner cannot be subjected to discriminatory behaviour. (Para 148, 156)

       (2014) 1 SCC 1 (“Koushal”) – Overruled

       Per Indu Malhotra, J.

       (av) Indian Penal Code, 1860 – Section 377 – Expression “carnal intercourse against the order of nature” – Not defined – ‘Carnal intercourse’ in section 377 distinct from ‘sexual intercourse’ in section 375 and 497 – So far punishment u/s 377 have been meted out for non consensual sexual acts tets for determination of which changed from non-procreative sexual acts to imitative sexual intercourse like oral sex to sexual perversity. (Para 12)

       AIR 1925 Sind 286; AIR 1934 Lah 261 : 1934 Cri LJ 1096; AIR 1968 Guj 252; (1982) 3 SCC 9 – Referred

       (aw) Sexual orientation – An innate attribute of one’s identity which cannot be altered – It is not a matter of choice – Homosexuality is a natural variant of human sexuality – Sexual orientation is not a psychiatric disorder – Section 3 of the Mental Healthcare Act, 2017. (Para 13)

       539 U.S. 558 (2003) – Referred

       (ax) Indian Penal Code, 1860 – Section 377 r/w Article 14, Constitution of India – Two classes of persons, LGBT and heterosexual persons treated in vastly different manner – While consensual heterosexual relationship is permissible u/s 375, a consensual relationship between LGBT persons is considered to be ‘carnal’, and against the order of nature and hence impermissible u/s 377 – When equal protection of laws can be granted to transgender persons, there is no justification to deny the same to LGBT persons – Criminalization of consensual sexual acts between adults in private, not based on any sound or rational principle – Basis of such criminalisation being the “sexual orientation” of a person, over which one has “little or no choice” – Section 377 also held manifestly arbitrary. (Para 14)

       (2014) 5 SCC 438; (2017) 9 SCC 1 – Relied upon

       (ay) Indian penal Code, 1860 – Section 377 r/w Article 15, Constitution of India – Prohibition of discrimination on basis of sex – Sex includes sexual identity and sexual orientation – Criminalising a person on ground of his sexual oriental u/s 377 violates Article 15. (Para 15)

       (2014) 5 SCC 438 – Relied upon

       Communication No. 488/1992, U.N. Doc.CCPR/C/50/D/488/1992 (1994); [1995] SCC 98; [1998] SCC 816 – Referred

       (az) Indian Penal Code, 1860 – Section 377 r/w Article 21, Constitution of India – Right to liberty and dignity – Right to life and liberty would encompass the right to sexual autonomy, right to privacy and freedom of expression – Section 377 insofar as it curtails the personal liberty of LGBT persons to engage in voluntary consensual sexual relationships with a partner of their choice, in a safe and dignified environment – As an impact of section 377 LGBT people live closeted life which deprives them from access to health facilities – Section 377 declared violative of Article 21. (Para 16)

       (1978) 1 SCC 248; (1981) 1 SCC 608; (2017) 10 SCC 1; (2018) 5 SCC 1; (1992) 1 SCC 441; (2018) SCC OnLine SC 675; (2013) 16 SCC 279 – Relied upon

       [1998] ZACC 15; 478 U.S. 186 (1986); 413 U.S. 49 (1973) – Referred

       (ba) Indian Penal Code, 1860 – Section 377 r/w Article 19(1)(a), Constitution of India – Because of section 377 LGBT community forced not to disclose their sexual orientation to avoid persecution in society and the opprobrium attached to homosexuality – Section 377 being inherently subjective cannot be justified as a reasonable restriction under Article 19(2). (Para 17, 19)

       (2014) 5 SCC 438; (2017) 10 SCC 1 – Relied upon

       539 U.S. 558 (2003); [1998] ZACC 15; (1982) 1 SCC 271 – Referred

       (2014) 1 SCC 1 – Overruled

       Facts of the case:

       Non-recognition in the fullest sense and denial of expression of choice by a statutory penal provision and giving of stamp of approval by a two-Judge Bench to the said penal provision, that is, Section 377 of the Indian Penal Code, in Suresh Kumar Koushal and another v. Naz Foundation and others, (2014) 1 SCC 1 overturning the judgment of the Delhi High Court in Naz Foundation v. Government of NCT of Delhi and others, (2009) 111 DRJ 1, is the central issue involved in the present controversy.

       Writ Petition (Criminal) No. 76 of 2016 was filed for declaring “right to sexuality”, “right to sexual autonomy” and “right to choice of a sexual partner” to be part of the right to life guaranteed under Article 21 of the Constitution of India and further to declare Section 377 of the Indian Penal Code to be unconstitutional.

       Finding of the Court:

       Section 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) is unconstitutional.