Section 377 IPC Decriminalised Partially By Supreme Court For Sex Between Consenting Adults
“History owes an apology to members of this community and their family, for the delay in providing redressal for the ignominy and ostracism they suffered through the centuries. The members of this community were compelled to live a life full of fear of reprisal and persecution. This was on account of the ignorance of the majority to recognise that homosexuality is a completely natural condition, part of a range of human sexuality. The mis-application of this provision denied them the Fundamental Right to equality guaranteed by Article 14. It infringed the Fundamental Right to non-discrimination under Article 15, and the Fundamental Right to live a life of dignity and privacy guaranteed by Article 21. The LGBT persons deserve to live a life unshackled from the shadow of being ‘unapprehended felons’. ”Justice Indu Malhotra who was one of the Five Judges along with CJI Dipak Misra, Justice DY Chandrachud, Justice RF Nariman, who delivered this landmark and path breaking judgment observed this in para 20 of her judgmentWhat was for a long time just a mirage has now become a “living reality”! Yes, finally we see that the draconian 158-year-old Victorian era law – Section 377 of the IPC has been decriminalised partially by a Five Judge Constitution Bench of Supreme Court for sex between consenting adults on a batch of petitions filed by dancer Navtej Johar, journalist Sunil Mehra, chef Ritu Dalmia, hoteliers Aman Nath and Keshav Suri, business executive Ayesha Kapur and 20 students of the IITs challenging its constitutional validity in its landmark and laudable decision titled Navtej Singh Johar & Ors v Union Of India Thr Secretary Ministry Of Law And Justice in Writ Petition (Criminal) No. 76 of 2016 With Writ Petition (Civil) No. 572 of 2016 Writ Petition (Criminal) No. 88 of 2018 Writ Petition (Criminal) No. 100 of 2018 Writ Petition (Criminal) No. 101 of 2018 Writ Petition (Criminal) No. 121 of 2018 which shall be remembered always! This landmark judgment was delivered with a prayer to the LGBTQ community (Lesbian, Gay, Bisexual, Transgender, Queer) to forgive history for subjecting them to “brutal” suppression! We thus see that Constitutional morality finally trumps majoritarian suppressive notions! Even CJI Dipak Mishra himself said that, “I am what I am. So take me as I am… Denial of self-expression is like death”.
No wonder, it has not just grabbed national headlines but international headlines also! But this has not happened overnight! A long gruelling battle has been fought for this to happen by the petitioners and they deserve all the credit for it! Hailing the Supreme Court judgment, Amnesty International India said that the verdict gave hope to everyone fighting for justice and equality. Asmita Basu who is Programmes Director of Amnesty International India said that, “The judgment closes the door on a dark chapter of Indian history. It marks a new era of equality for millions of people in India.”
What a pity that Section 377 of IPC which was modelled after the 16th century Buggery Act of Britain has been continuing centuries later in same form in India till now even though it was discarded in Britain a long time back! It must be informed here that homosexual relations are legal in 25 countries besides India but 72 nations have continued to criminalise it. In Canada legal since 1969, marriage and adoption allowed. US legalized in 2003 and currently same-sex marriage, adoption legal. France legalized it in 1791 and same-sex marriage and adoption allowed. In UK legalized in 1967. Same-sex marriage and adoption allowed. In Russia legal since 1993 but no marriage allowed. In Japan legal since 1860 but no marriage or adoption. In China and Thailand legal since 1997 and 1956 but no marriage or adoption. In Nepal legal since 2007 but no marriage or adoption. In Australia legal since 1997 and marriage and adoption allowed. In 45, same sex relations between women are also outlawed. UP had the highest number of cases, 999, registered under Section 377 of the IPC during 2016. Kerala came second with 207 cases under the category of “unnatural offences”. Delhi followed with 182 cases.
Truly speaking, in India too a long, gruelling legal battle had to be fought before this battle of decriminalizing consensual same sex could see the light of the day! Let us see the chronological order in which this happened:-
1994:Delhi NGO AIDS Bhedbhav Virodhi Andolan moves High Court against Section 377.
2001:Similar petition filed in Delhi High Court by NGO Naz Foundation. 1994 petition was dismissed.
2003:Naz Foundation moves Delhi High Court but its petition dismissed.
2006:Supreme Court asks Delhi High Court to hear petition again.
July 2, 2009:Delhi High Court decriminalizes homosexuality saying it violated Article 14, 15 and 21 of the Constitution and legalized consensual same gender sex for adults.
2013:Several appeals filed in Supreme Court. A two-Judge Apex Court Bench of GS Singhvi and SJ Mukhopadhaya overturned the Delhi High Court judgment, claiming fewer than 200 people had been prosecuted under the law. Supreme Court finds Delhi High Court order “legally unsustainable”.
2014:Supreme Court delivers NALSA judgment on the listed curative petition and recognizes rights of transgender persons.
2015:MP Shashi Tharoor introduced a private member’s Bill to decriminalize homosexuality. BJP-majority Lok Sabha voted against it.
2016:Fresh petitions in Supreme Court by Navtej Johar, Ritu Dalmia, Aman Nath and Ayesha Kapur move Supreme Court against Section 377. Others join later. Supreme Court refers pleas to 5-Judge Bench.
2017:Supreme Court in Justice KS Puttaswamy ruling on right to privacy declares right to privacy a fundamental right, also observes “sexual orientation is an essential attribute of privacy”.
2018:During Constitution Bench hearing leaves it to the wisdom of Supreme Court to decide the validity of Section 377.
September 6, 2018:Constitution Bench of Supreme Court hears fresh batch of petitions against Section 377 and read down the colonial law thus decriminalizing homosexuality. It ruled consensual gay sex is not a crime. Says part of Section 377 that criminalized consensual unnatural sex are “irrational, indefensible and manifestly arbitrary”.
Needless to say, the Five Judge Bench of Apex Court led by CJI Dipak Misra, unanimously held that criminalization of private consensual conduct between adults of the same sex under Section 377 of the IPC was clearly unconstitutional. The Court, however, held that the Section would apply to “unnatural” sexual acts like bestiality. Sexual act without consent continues to be a crime under Section 377 of IPC.
To be sure, this landmark judgment begins first and foremost by quoting eminent thinkers. It begins by saying that, ‘Not for nothing, the great German thinker, Johann Wolfgang von Goethe, had said “I am what I am, so take me as I am” and similarly, Arthur Schopenhauer had pronounced, “No one can escape from their individuality”.In this regard, it would be profitable to quote a few lines from John Stuart Mill:-
“But society has now fairly got the better of individuality; and the danger which threatens human nature is not the excess, but the deficiency of personal impulses and preferences.”
The emphasis on the unique being of an individual is the salt of his/her life. Denial of self-expression is inviting death. Irreplaceability of individual and identity is grant of respect to self. This realization is one’s signature and self-determined design. One defines oneself. That is the glorious form of individuality. In the present case, our deliberation and focus on the said concept shall be from various spectrums.’
Be it noted, para 3 then points out that, “The overhauling ideals of individual autonomy and liberty, equality for all sans discrimination of any kind, recognition of identity with dignity and privacy of human beings constitute the cardinal four corners of our monumental Constitution forming the concrete substratum of our fundamental rights that has eluded certain sections of our society who are still living in the bondage of dogmatic social norms, prejudiced notions, rigid stereotypes, parochial mindset and bigoted perceptions. Social exclusion, identity seclusion and isolation from the social mainstream are still the stark realities faced by individuals today and it is only when each and every individual is liberated from the shackles of such bondage and is able to work towards full development of his/her personality that we can call ourselves a truly free society. The first step on the long path to acceptance of the diversity and variegated hues that nature has created has to be taken now by vanquishing the enemies of prejudice and injustice and undoing the wrongs done so as to make way for a progressive and inclusive realisation of social and economic rights embracing all and to begin a dialogue for ensuring equal rights and opportunities for the “less than equal” sections of the society. We have to bid adieu to the perceptions, stereotypes and prejudices deeply ingrained in the societal mindset so as to usher in inclusivity in all spheres and empower all citizens alike without any kind of alienation and discrimination.”
Going forward, para 4 then points out that, “The natural identity of an individual should be treated to be absolutely essential to his being. What nature gives is natural. That is called nature within. Thus, that part of the personality of a person has to be respected and not despised or looked down upon. The said inherent nature and the associated natural impulses in that regard are to be accepted. Non-acceptance of it by any societal norm or notion and punishment by law on some obsolete idea and idealism affects the kernel of the identity of an individual. Destruction of individual identity would tantamount to crushing of intrinsic dignity that cumulatively encapsulates the values of privacy, choice, freedom of speech and other expressions. It can be viewed from another angle. An individual in exercise of his choice may feel that he/she should be left alone but no one, and we mean, no one, should impose solitude on him/her.”
Now let us talk about para 9. It says that, “It has to be borne in mind that search for identity as a basic human ideal has reigned the mind of every individual in many a sphere like success, fame, economic prowess, political assertion, celebrity status and social superiority, etc. But search for identity, in order to have apposite space in law, sans stigmas and sans fear has to have the freedom of expression about his/her being which is keenly associated with the constitutional concept of “identity with dignity”. When we talk about identity from the constitutional spectrum, it cannot be pigeon-holed singularly to one’s orientation that may be associated with his/her birth and the feelings he/she develops when he/she grows up. Such a narrow perception may initially sound to subserve the purpose of justice but on a studied scrutiny, it is soon realized that the limited recognition keeps the individual choice at bay. The question that is required to be posed here is whether sexual orientation alone is to be protected or both orientation and choice are to be accepted as long as the exercise of these rights by an individual do not affect another’s choice or, to put it succinctly, has the consent of the other where dignity of both is maintained and privacy, as a seminal facet of Article 21, is not dented. At the core of the concept of identity lies self-determination, realization of one’s own abilities visualizing the opportunities and rejection of external views with a clear conscience that is in accord with constitutional norms and values or principles that are, to put in a capsule, “constitutionally permissible”. As long as it is lawful, one is entitled to determine and follow his/her pattern of life. And that is where the distinction between constitutional morality and social morality or ethicality assumes a distinguished podium, a different objective. 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 of this Court 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.”
It may be recalled that the landmark judgment of the Delhi High Court in 2009 was delivered by the then Delhi High Court Chief Justice AP Shah and S Muralidhar in Naz Foundation case. They had held that, “We declare Section 377 of Indian Penal Code in so far as it criminalises consensual sexual act of adults in private is violative of Articles 21, 14 and 15 of the Constitution. In our view Indian Constitutional Law does not permit the statutory criminal law to be held captive by the popular misconception of who the LGBTs (lesbian, gay, bisexual & transgender) are. It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster dignity of every individual. The provisions of Section 377 will continue to govern non-consensual penile non-vaginal sex and penile non vaginal sex involving minors.”
Let us now pay singular attention to what para 91 says. It says that, “The Supreme Court of Canada, while giving an expanisve interpretation to marriage by including same-sex unions within its encompass, in Re: Same Sex Marriage (2004) 3 SCR 698 has observed:-
“The “frozen concepts” reasoning runs contrary to one of the most fundamental principles of Canadian constitutional interpretation: that our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life.”
Transformative Constitutionalism And Rights Of LGBT
Now it is time to talk about transformative constitutionalism as explained in various paras. Para 95 says that, “For understanding the need of having a constitutional democracy and for solving the million dollar question as to why we adopted the Constitution, we perhaps need to understand the concept of transformative constitutionalism with some degree of definiteness. In this quest of ours, the ideals enshrined in the Preamble to our Constitution would be a guiding laser beam. The ultimate goal of our magnificent Constitution is to make right the upheaval which existed in the Indian society before the adopting of the Constitution. The Court in State of Kerala and another and another v. N.M. Thomas and others AIR 1976 SC 490 observed that the Indian Constitution is a great social document, almost revolutionary in its aim of transforming a medieval, hierarchical society into a modern, egalitarian democracy and its provisions can be comprehended only by a spacious, social science approach, not by pedantic, traditional legalism. The whole idea of having a Constitution is to guide the nation towards a resplendent future. Therefore, the purpose of having a Constitution is to transform the society for the better and this objective is the fundamental pillar of transformational constitutionalism.”
Now coming to para 96, it says that, “ The concept of transformative constitutionalism has at its kernel a pledge, promise and thirst to transform the Indian society so as to embrace therein, in letter and spirit, the ideals of justice, liberty, equality and fraternity as set out in the Preamble to our Constitution. The expression ‘transformative constitutionalism’ can be best understood by embracing a pragmatic lens which will help in recognizing the realities of the current day. Transformation as a singular term is diametrically opposed to something which is static and stagnant, rather it signifies change, alteration and the ability to metamorphose. Thus, the concept of transformative constitutionalism, which is an actuality with regard to all Constitutions and particularly so with regard to the Indian Constitution, is, as a matter of fact, the ability of the Constitution to adopt and transform with the changing needs of the times.”
Moving ahead, in para 97 , it is stated that, “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. Constitutional provisions have to be construed and developed in such a manner that their real intent and existence percolates to all segments of the society. That is the raison d’ etre for the Constitution.” Very rightly said!
Be it noted, para 98 then observes that, “The Supreme Court as well as other constitutional courts have time and again realized that in a society undergoing fast social and economic change, static judicial interpretation of the Constitution would stultify the spirit of the Constitution. Accordingly, the constitutional courts, while viewing the Constitution as a transformative document, have ardently fulfilled their obligation to act as the sentinel on qui vive for guarding the rights of all individuals irrespective of their sex, choice and sexual orientation.”
Of course, para 99 then goes on to illustrate that, “The purpose of transformative constitutionalism has been aptly described in the case of Road Accident Fund and another v Moleyide 2008 (1) SA 535 (CC) wherein the Constitutional Court of South Africa, speaking in the context of the transformative role of the Constitution of South Africa, had observed:-
“Our Constitution has often been described as “transformative”. One of the most important purposes of this transformation is to ensure that, by the realization of fundamental socio-economic rights, people disadvantaged by their deprived social and economic circumstances become more capable of enjoying a life of dignity, freedom and equality that lies at the heart of our constitutional democracy.”
Not stopping here, it is further stated in para 100 that, “In Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and others (2004) 2 ACC 15, the Constitutional Court of South Africa opined:-
“The achievement of equality is one of the fundamental goals that we have fashioned for ourselves in the Constitution. Our constitutional order is committed to the transformation of our society from a grossly unequal society to one “in which there is equality between men and women and people of all races”. In this fundamental way, our Constitution differs from other constitutions which assume that all are equal and in so doing simply entrench existing inequalities. Our Constitution recognises that decades of systematic racial discrimination entrenched by the apartheid legal order cannot be eliminated without positive action being taken to achieve that result. We are required to do more than that. The efforts of discrimination may continue indefinitely unless there is a commitment to end it.”
Now coming to para 103, it states that, “Again, the Supreme Court of South Africa in President of the Republic of South Africa v Hugo (1997) 6 BCLR 708 (CC) observed that the prohibition on unfair discrimination in the interim Constitution seeks not only to avoid discrimination against people who are members of disadvantaged groups but also that at the heart of the prohibition of unfair discrimination lies a recognition that the purpose of our new constitutional and democratic order is the establishment of a society in which all human beings will be accorded equal dignity and respect, regardless of their membership of particular groups.”
It would be worth pointing out here that it is very rightly noted by Apex Court in para 106 that, “The society has changed much now, not just from the year 1860 when the Indian Penal Code was brought into force but continuous progressive change. In many spheres, the sexual minorities have been accepted. They have been given space after the NALSA judgment but the offence punishable under Section 377 IPC, as submitted, creates a chilling effect. The freedom that is required to be attached to sexuality still remains in the pavilion with no nerves to move. The immobility due to fear corrodes the desire to express one’s own sexual orientation as a consequence of which the body with flesh and bones feels itself caged and a sense of fear gradually converts itself into a skeleton sans spirit.”
It must be submitted here that in para 107, it is revealed that, “The question of freedom of choosing a partner is reflective from a catena of recent judgments of this Court such as Shafin Jahan (supra) wherein the Court held that a person who has come of age and has the capability to think on his/her life partner. It is apposite to reproduce some of the observations made by the Court which are to the following effect:-
“It is obligatory to state here that expression of choice in accord with law is acceptance of individual identity. Curtailment of that expression and the ultimate action emanating therefrom on the conceptual structuralism of obeisance to the societal will destroy the individualistic entity of a person. The social values and morals have their space but they are not above the constitutionally guaranteed freedom. The said freedom is both a constitutional and a human right. Deprivation of that freedom which is ingrained in choice on the plea of faith is impermissible.”
Going forward, it is then revealed in para 108 that, “Recently, in Shakti Vahini (supra), the Court has ruled that the right to choose a life partner is a facet of individual liberty and the Court, for the protection of this right, issued preventive, remedial and punitive measures to curb the menace of honour killings. The Court observed:-
“When the ability to choose is crushed in the name of class honour and the person’s physical frame is treated with absolute indignity, a chilling effect dominates over the brains and bones of the society at large.”
After this comes para 109 which states that, “An argument is sometimes advanced that what is permissible between two adults engaged in acceptable sexual activity is different in the case of two individuals of the same sex, be it homosexuals or lesbians, and the ground of difference is supported by social standardization. Such an argument ignores the individual orientation, which is naturally natural, and disrobes the individual of his/her identity and the inherent dignity and choice attached to his/her being.”
Simply put, para 110 then goes on to state that, “The principle of transformative constitutionalism also places upon the judicial arm of the State a duty to ensure and uphold the supremacy of the Constitution, while at the same time ensuring that a sense of transformation is ushered constantly and endlessly in the society by interpreting and enforcing the Constitution as well as other provisions of law in consonance with the avowed object. The idea is to steer the country and its institutions in a democratic egalitarian direction, where there is increased protection of fundamental rights and other freedoms. It is in this way that transformative constitutionalism attains the status of an ideal model imbibing the philosophy and morals of constitutionalism and fostering greater respect for human rights. It ought to be remembered that the Constitution is not a mere parchment; it derives its strength from the ideals and values enshrined in it. However, it is only when we adhere to constitutionalism as the supreme creed and faith and develop a constitutional culture to protect the fundamental rights of an individual that we can preserve and strengthen the values of our compassionate Constitution.”
Constitutional Morality and Section 377 IPC
It would deem appropriate to now discuss some most relevant paras related with constitutional morality. In paras 112 and 114, it is explained as to what Dr BR Ambedkar meant by constitutional morality. Para 116 says that, “It is the concept of constitutional morality which strives and urges the organs of the State to maintain such a heterogeneous fibre in the society, not just in the limited sense, but also in multifarious ways. It is the responsibility of the State to curb any propensity or proclivity of popular sentiment or majoritarianism. Any attempt to push and shove a homogeneous, uniform, consistent and a standardised philosophy throughout the society would violate the principle of constitutional morality. Devotion and fidelity to constitutional morality must not be equated with the popular sentiment prevalent at a particular point of time.” Para 117 then says that, “Any asymmetrical attitude in the society, so long as it is within the legal and constitutional framework, must at least be provided an environment in which it could be sustained, if not fostered. It is only when such an approach is adopted that the freedom of expression including that of choice would be allowed to prosper and flourish and if that is achieved, freedom and liberty, which is the quintessence of constitutional morality, will be allowed to survive.”
Going a step ahead, para 119 then stipulates that, “The duty of the constitutional courts is to adjudge the validity of law on well-established principles, namely, legislative competence or violations of fundamental rights or of any other constitutional provisions. At the same time, it is expected from the courts as the final arbiter of the Constitution to uphold the cherished principles of the Constitution and not to be remotely guided by majoritarian view or popular perception. The Court has to be guided by the conception of constitutional morality and not by the societal morality.”
Of course, para 120 then goes further saying “We may hasten to add here that in the context of the issue at hand, when a penal provision is challenged as being violative of the fundamental rights of a section of the society, notwithstanding the fact whether the said section of the society is a minority or a majority, the magna cum laude and creditable principle of constitutional morality, in a constitutional democracy like ours where the rule of law prevails, must not be allowed to be trampled by obscure notions of social morality which have no legal tenability. The concept of constitutional morality would serve as an aid for the Court to arrive at a just decision which would be in consonance with the constitutional rights of the citizens, howsoever small that fragment of the populace may be. The idea of number, in this context, is meaningless; like zero on the left side of any number.”
Now coming to para 121, it says “In this regard, we have to telescopically analyse social morality vis-à-vis constitutional morality. It needs no special emphasis to state that whenever the constitutional courts come across a situation of transgression or dereliction in the sphere of fundamental rights, which are also the basic human rights of a section, howsoever small part of 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.” The Apex Court in para 122 then minces no words in making it absolutely clear that, “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.” Para 124 then spells out that, “While testing the constitutional validity of impugned provision of law, if a constitutional court is of the view that the impugned provision falls foul to the precept of constitutional morality, then the said provision has to be declared as unconstitutional for the pure and simple reason that the constitutional courts exist to uphold the Constitution.”
Perspective of human dignity
It is time now to dwell on the perspective of human dignity. To start with, para 125 states that, “While discussing about the role of human dignity in gay rights adjudication and legislation, Michele Finck [ The role of human dignity in gay rights adjudication and legislation: A comparative perspective, Michele Finck, International Journal of Constitutional Law, Volume 14, Jan 2016, page no. 26 to 53] observes:-
“As a concept devoid of a precise legal meaning, yet widely appealing at an intuitive level, dignity can be easily manipulated and transposed into a number of legal contexts. With regard to the rights of lesbian and gay individuals, dignity captures what Nussbaum described as the transition from “disgust” to “humanity”. Once looked at with disgust and considered unworthy of some rights, there is increasing consensus that homosexuals should no longer be deprived of the benefits of citizenship that are available to heterosexuals, such as the ability to contract marriage, on the sole ground of their sexual orientation. Homosexuals are increasingly considered as “full humans” disposing of equal rights and dignity functions as the vocabulary that translates such socio-cultural change into legal change.”
While underscoring the invaluable importance of dignity, para 126 makes it clear that, “The Universal Declaration of Human Rights, 1948 became the Magna Carta of people all over the world. The first Article of the UDHR was uncompromising in its generality of application: All human beings are born free and equal in dignity and rights. Justice Kirby (Human Rights Gay Rights by Michael Kirly, Published in ‘Humane Rights’ in 2016 by Future Leaders) succinctly observed:-
“This language embraced every individual in our world. It did not apply only to citizens. It did not apply only to ‘white’ people. It did not apply only to good people. Prisoners, murderers and even traitors were to be entitled to the freedoms that were declared. There were no exceptions to the principles of equality.”
It is also rightly emphasized in para 127 that, “The fundamental idea of dignity is regarded as an inseparable facet of human personality. Dignity has been duly recognized as an important aspect of the right to life under Article 21 of the Constitution. In the international sphere, the right to live with dignity had been identified as a human right way back in 1948 with the introduction of the Universal Declaration of Human Rights. The constitutional courts of our country have solemnly dealt with the task of assuring and preserving the right to dignity of each and every individual whenever the occasion arises, for without the right to live with dignity, all other fundamental rights may not realise their complete meaning.” Para 128 underscores that, “To understand a person’s dignity, one has to appreciate how the dignity of another is to be perceived. Alexis de Tocqueville [56, New York State Bar Journal (No. 3, April 1984), p. 50] tells us:-
“Whenever I find myself in the presence of another human being, of whatever station, my dominant feeling is not so much to serve him or please him as not to offend his dignity.”
Having said this, now let us see what para 129 says. It makes no bones to underline most unequivocally that, “Every individual has many possessions which assume the position of his/her definitive characteristics. There may not be any obsession with them but he/she may abhor to be denuded of them, for they are sacred to him/her and so inseparably associated that he/she may not conceive of any dissolution. He/she would like others to respect the said attributes with a singular acceptable condition that there is mutual respect. Mutual respect abandons outside interference and is averse to any kind of interdiction. It is based on the precept that the individuality of an individual is recognized, accepted and respected. Such respect for the conception of dignity has become a fundamental right under Article 21 of the Constitution and that ushers in the right of liberty of expression. Dignity and liberty as a twin concept in a society that cares for both, apart from painting a grand picture of humanity, also smoothens the atmosphere by promoting peaceful co-existence and thereby makes the administration of justice easy. In such a society, everyone becomes a part of the social engineering process where rights as inviolable and sacrosanct principles are adhered to; individual choice is not an exception and each one gets his/her space. Though no tower is built, yet the tower of individual rights with peaceful co-existence is visible.”
Dwelling on an important ruling, para 130 then observes that, “In Common Cause (A Regd. Society) (supra), one of us has observed that human dignity is beyond definition and it may, at times, defy description. To some, it may seem to be in the world of abstraction and some may even perversely treat it as an attribute of egotism or accentuated eccentricity. This feeling may come from the roots of absolute cynicism, but what really matters is that life without dignity is like a sound that is not heard. Dignity speaks, it has its sound, it is natural and human. It is a combination of thought and feeling.” The next para 131 then dwelling on another landmark ruling observes that, “In Maneka Gandhi v Union of India and another (1978) 1 SCC 248, Krishna Iyer, J. observed that life is a terrestrial opportunity for unfolding personality and when any aspect of Article 21 is viewed in a truncated manner, several other freedoms fade out automatically. It has to be borne in mind that dignity of all is a sacrosanct human right and sans dignity, human life loses its substantial meaning.”
Moving on, para 132 then further elaborates on dignity. It says “Dignity is that component of one’s being without which sustenance of his/her being to the fullest or completest is inconceivable. In the theatre of life, without possession of the attribute of identity with dignity, the entity may be allowed entry to the centre stage but would be characterized as a spineless entity or, for that matter, projected as a ruling king without the sceptre. The purpose of saying so is that the identity of every individual attains the quality of an “individual being” only if he/she has the dignity. Dignity while expressive of choice is averse to creation of any dent. When biological expression, be it an orientation or optional expression of choice, is faced with impediment, albeit through any imposition of law, the individual’s natural and constitutional right is dented. Such a situation urges the conscience of the final constitutional arbiter to demolish the obstruction and remove the impediment so as to allow the full blossoming of the natural and constitutional rights of individuals. This is the essence of dignity and we say, without any inhibition, that it is our constitutional duty to allow the individual to behave and conduct himself/herself as he/she desires and allow him/her to express himself/herself, of course, with the consent of the other. That is the right to choose without fear. It has to be ingrained as a necessary pre-requisite that consent is the real fulcrum of any sexual relationship.”
It would be pertinent to mention here that para 133 then postulates that, “In this context, we may travel a little abroad. In Law v Canada (Minister of Employment and Immigration 1999 1 SCR 497) capturing the essence of dignity, the Supreme Court of Canada has made the following observations:-
“Human dignity means that an individual or group feels self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits. It is enhanced by laws which are sensitive to the needs, capacities and merits of different individuals, taking into account the context underlying their differences. Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognise the full place of all individuals and groups within Canadian society.”
Back home, it is then enunciated clearly in para 134 that, “It is not only the duty of the State and the Judiciary to protect this basic right to dignity, but the collective at large also owes a responsibility to respect one another’s dignity, for showing respect for the dignity of another is a constitutional duty. It is an expression of the component of constitutional fraternity.” Para 135 then states that, “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 criminalizing 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.”
Reverting back to international fora, it is then revealed in para 136 that, “The European Court of Justice in P v. S (Judgment of 30 April 1996 P v S and of 30 April 1996 P v S and Cornwall County Council Case C-13/94, paras 21-22) in the context of rights of individuals who intend to or have undergone sex reassignment has observed that where a person is dismissed on the ground that he or she intends to undergo or has undergone gender reassignment, he or she is treated unfavourably by comparison with persons of the sex to which he or she was deemed to belong before undergoing gender reassignment. To tolerate such discrimination would tantamount, as regards such a person, to a failure to respect the dignity and freedom to which he or she is entitled and which the Court has a duty to safeguard.”
Going ahead, it is then revealed in para 137 that, “In Planned Parenthood of Southeastern Pa. v Casey SOS U.S. 833 (1992), the United States Supreme Court had opined that such matters which involve the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.” The most important part of para 138 then states that, “Be it clarified that expression of choice, apart from being a facet of dignity, is also an essential component of liberty. Liberty as a concept has to be given its due place in the realm of dignity, for both are connected with the life and living of a persona.”
To put things in perspective, para 140 states that, “Presently, we shall focus on the aspect of sexual orientation. Every human being has certain basic biological characteristics and acquires or develops some facets under certain circumstances. The first can generally be termed as inherent orientation that is natural to his/her being. The second can be described as a demonstration of his/her choice which gradually becomes an inseparable quality of his/her being, for the individual also leans on a different expression because of the inclination to derive satisfaction. The third one has the proclivity which he/she maintains and does not express any other inclination. The first one is homosexuality, the second, bisexuality and third, heterosexuality. The third one is regarded as natural and the first one, by the same standard, is treated to be unnatural. When the second category exercises his/her choice of homosexuality and involves in such an act, the same is also not accepted. In sum, the ‘act’ is treated either in accord with nature or against the order of nature in terms of societal perception.”
It would be imperative to mention here that para 141 then lays down that, “The Yogyakarta Principles define the expression “sexual orientation” thus:-
“Sexual Orientation is understood to refer to each person’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.”
Para 142 then states that, “In its study, the American Psychological Association has attempted to define “sexual orientation” in the following manner:-
“Sexual orientation refers to an enduring pattern of emotional, romantic and/or sexual attractions to men, women or both sexes. Sexual orientation also refers to a person’s sense of identity based on those attractions, related behaviors, and membership in a community of others who share those attractions. Research over several decades has demonstrated that sexual orientation ranges along a continuum, from exclusive attraction to the other sex to exclusive attraction to the same sex.” (American Psychological Association, “Answers to Your Questions For a Better Understanding of Sexual Orientation & Homosexuality”, 2008)
In a nutshell, para 143 then states that, “From the aforesaid, it has to be appreciated that homosexuality is something that is based on sense of identity. It is the reflection of a sense of emotion and expression of eagerness to establish intimacy. It is just as much ingrained, inherent and innate as heterosexuality. Sexual orientation, as a concept, fundamentally implies a pattern of sexual attraction. It is as natural a phenomenon as other natural biological phenomena. What the science of sexuality has led to is that an individual has the tendency to feel sexually attracted towards the same sex, for the decision is one that is controlled by neurological and biological factors. That is why it is his/her natural orientation which is innate and constitutes the core of his/her being and identity. That apart, on occasions, due to a sense of mutuality of release of passion, two adults may agree to express themselves in a different sexual behaviour which may include both the genders. To this, one can attribute a bisexual orientation which does not follow the rigidity but allows room for flexibility.”
As things stand, the Apex Court in para 144 then cites UNHCR guidelines which postulates that, “The society cannot remain unmindful to the theory which several researches, conducted both in the field of biological and psychological science, have proven and reaffirmed time and again. To compel a person having a certain sexual orientation to proselytize to another is like asking a body part to perform a function it was never designed to perform in the first place. It is pure science, a certain 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. [UNHCR GUIDELINES ON INTERNATIONAL PROTECTION NO. 9: Claims to Refugee Status based on Sexual Orientation and/or Gender identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees] More importantly, para 145 then further vindicates this by saying that, “The statement of the American Psychological Association on homosexuality which was released in July 1994 reiterates this position in the following observations:-
“The research on homosexuality is very clear. Homosexuality is neither mental illness nor moral depravity. It is simply the way a minority of our population expresses human love and sexuality. Study after study documents the mental health of gay men and lesbians. Studies of judgment, stability, reliability, and social and vocational adaptiveness all show that gay men and lesbians function every bit as
well as heterosexuals. Nor is homosexuality a matter of individual choice. Research suggests that the homosexual orientation is in place very early in the life cycle, possibly even before birth. It is found in about ten percent of the population, a figure which is surprisingly constant across cultures, irrespective of the different moral values and standards of a particular culture. Contrary to what some imply, the incidence of homosexuality in a population does not appear to change with new moral codes or social mores. Research findings suggest that efforts to repair homosexuals are nothing more than social prejudice garbed in psychological accouterments.”
(Emphasis is ours)
Continuing in the same vein, para 146 then adds that, “In the said context, the observations made by Leonard Sax to the following effect are relevant and are reproduced below:-
“Biologically, the difference between a gay man and a straight man is something like the difference between a left-handed person and a right-handed person. Being left-handed isn’t just a phase. A left-handed person won’t someday magically turn into a right-handed person….. Some children are destined at birth to be left-handed, and some boys are destined at birth to grow up to be gay.”
It cannot be lost on us that in para 147, it is then noted that, “The Supreme Court of Canada in the case of James Egan and John Norris Nesbit v Her Majesty The Queen in Right of Canada and another  2 SCR 513, while holding that sexual orientation is one of the grounds for claiming the benefit under Section 15(1) as it is analogous to the grounds already set out in the list in Section 15(1) and the said list not being finite and exhaustive can be extended to LGBTs on account of the historical, social, political and economic disadvantage suffered by LGBTs, has observed:-
“Sexual orientation is a deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal costs, and so falls within the ambit of s. 15 protection as being analogous to the enumerated grounds.”
Privacy and its concomitant aspects
Truth be told, para 149 then lays down that, “While testing the constitutional validity of Section 377 IPC, due regard must be given to the elevated right to privacy as has been recently proclaimed in Puttaswamy (supra). We shall not delve in detail upon the concept of the right to privacy as the same has been delineated at length in Puttaswamy (supra). In the case at hand, our focus is limited to dealing with the right to privacy vis-à-vis Section 377 IPC and other facets such as right to choice as part of the freedom of expression and sexual orientation. That apart, within the compartment of privacy, individual autonomy has a significant space. Autonomy is individualistic. It is expressive of self-determination and such self-determination includes sexual orientation and declaration of sexual identity. Such an orientation or choice that reflects an individual’s identity is innate to him/her. It is an inalienable part of his/her identity. The said identity under the constitutional scheme does not accept any interference as long as its expression is not against decency or morality. And the morality that is conceived of under the Constitution is constitutional morality. Under the autonomy principle, the individual has sovereignty over his/her body. He/she can surrender his/her autonomy willfully to another individual and their intimacy in privacy is a matter of their choice. Such concept of identity is not only sacred but is also in recognition of the quintessential facet of humanity in a person’s nature. The autonomy establishes identity and the said identity, in the ultimate eventuate, becomes a part of dignity in an individual. This dignity is special to the man/woman who has a right to enjoy his/her life as per the constitutional norms and should not be allowed to wither and perish like a mushroom. It is a directional shift from conceptual macrocosm to cognizable microcosm. When such culture grows, there is an affirmative move towards a more inclusive and egalitarian society. Non-acceptance of the same would tantamount to denial of human right to people and one cannot be oblivious to the saying of Nelson Mandela – “to deny people their human rights is to challenge their very humanity.”
Now let us discuss some points which are internationally acclaimed and appreciated. To start with, para 150 states that, “Article 12 of the Universal Declaration of Human Rights, (1948) makes a reference to privacy by stating:-
“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”
Para 151 then points out that, “Similarly, Article 17 of the International Covenant of Civil and Political Rights, to which India is a party, talks about privacy thus:-
“No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home and correspondence, nor to unlawful attacks on his honour and reputation.”
On similar lines, para 152 then reveals that, “The European Convention on Human Rights also seeks to protect the right to privacy by stating:-
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
- There shall be no interference by a public authority except such as is in accordance with law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the protection of health or morals or for the protection of the rights and freedoms of others.”
Now comes para 153 which states that, “In the case of Dudgeon v United Kingdom (1981) 4 EHRR 149, privacy has been defined as under:-
Perhaps the best and most succinct legal definition of privacy is that given by Warren and Brandeis – it is “the right to be left alone”.”
Back home, para 154 citing a landmark case decided by Apex Court states that, “In R. Rajagopal v State of Tamil Nadu and others (1994) 6 SCC 632, while discussing the concept of right to privacy, it has been observed that the right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21 and it is a “right to be let alone”, for a citizen has a right to safeguard the privacy of his/her own, his/her family, marriage, procreation, motherhood, child-bearing and education, among other matters.”
In essence, para 155 then points out clearly, cogently and convincingly that, “The above authorities capture the essence of the right to privacy. There can be no doubt that an individual also has a right to a union under Article 21 of the Constitution. When we say union, we do not mean the union of marriage, though marriage is a union. As a concept, union also means companionship in every sense of the word, be it physical, mental, sexual or emotional. The LGBT community is seeking realisation of its basic right to companionship so long as such a companionship is consensual, free from the vice of deceit, force, coercion and does not result in violation of the fundamental rights of others.”
Due to paucity of space, it is not possible to dwell on each and every aspect of this landmark judgment. For the sake of brevity, therefore, it is time now to come to the crux of the matter! CJI Dipak Misra and Justice AM Khanwilkar in their concluding part of judgment observed in para 253 that, “In view of the aforesaid analysis, we record our conclusions in seriatim:-
(i) The eminence of identity which has been luculently stated in the NALSA case very aptly connects human rights and the constitutional guarantee of right to life with liberty and dignity. With the same spirit,
we must recognize that the concept of identity which has a constitutional tenability cannot be pigeon-holed singularly to one’s orientation as it may keep the individual at bay. At the core of the concept of identity lies self-determination, realization of one’s own abilities visualizing the opportunities and rejection of external views with a clear conscience that is in accord with constitutional norms and values or principles that are, to put in a capsule, “constitutionally permissible”.
(ii) In Suresh Koushal (supra), this Court overturned the decision of the Delhi High Court in Naz Foundation (supra) thereby upholding the constitutionality of Section 377 IPC and stating a ground that the LGBT community comprised only a minuscule fraction of the total population and that the mere fact that the said Section was being misused is not a reflection of the vires of the Section. Such a view is constitutionally impermissible.
(iii) Our Constitution is a living and organic document capable of expansion with the changing needs and demands of the society. The Courts must commemorate that it is the Constitution and its golden principles to which they bear their foremost allegiance and they must robe themselves with the armoury of progressive and pragmatic interpretation to combat the evils of inequality and injustice that try to creep into the society. The role of the Courts gains more importance when the rights which are affected belong to a class of persons or a minority group who have been deprived of even their basic rights since time immemorial.
(iv) The primary objective of having a constitutional democracy is to transform the society progressively and inclusively. Our Constitution has been perceived to be transformative in the 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 the adequate opportunities to develop socially, economically and politically. Discrimination of any kind strikes at the very core of any democratic society. When guided by transformative constitutionalism, the society is dissuaded from indulging in any form of discrimination so that the nation is guided towards a resplendent future.
(v) Constitutional morality embraces within its sphere several virtues, foremost of them being the espousal of a pluralistic and inclusive society. The concept of constitutional morality urges the organs of the State, including the Judiciary, to preserve the heterogeneous nature of the society and to curb any attempt by the majority to usurp the rights and freedoms of a smaller or minuscule section of the populace. Constitutional morality cannot be martyred at the altar of social morality and it is only constitutional morality that can be allowed to permeate into the Rule of Law. The veil of social morality cannot be used to violate fundamental rights of even a single individual, for the foundation of constitutional morality rests upon the recognition of diversity that pervades the society.
(vi) The right to live with dignity has been recognized as a human right on the international front and by number of precedents of this Court and, therefore, the constitutional courts must strive to protect the dignity of every individual, for without the right to dignity, every other right would be rendered meaningless. Dignity is an inseparable facet of every individual that invites reciprocative respect from others to every aspect of an individual which he/she perceives as an essential attribute of his/her individuality, be it an orientation or an optional expression of choice. The Constitution has ladened the judiciary with the very important duty to protect and ensure the right of every individual including the right to express and choose without any impediments so as to enable an individual to fully realize his/her fundamental right to live with dignity.
(vii) Sexual orientation is one of the many biological phenomena which is natural and inherent in an individual and is controlled by neurological and biological factors. The science of sexuality has theorized that an individual exerts little or no control over who he/she gets attracted to. Any discrimination on the basis of one’s sexual orientation would entail a violation of the fundamental right of freedom of expression.
(viii) After the privacy judgment in Puttaswamy (supra), the right to privacy has been raised to the pedestal of a fundamental right. The reasoning in Suresh Koushal (supra), that only a minuscule fraction of the total population comprises of LGBT community and that the existence of Section 377 abridges the fundamental rights of a very minuscule percentage of the total populace, is found to be a discordant note. The said reasoning in Suresh Koushal (supra), in our opinion, is fallacious, for the framers of our Constitution could have never intended that the fundamental rights shall be extended for the benefit of the majority only and that the Courts ought to interfere only when the fundamental rights of a large percentage of the total populace is affected. In fact, the said view would be completely against the constitutional ethos, for the language employed in Part III of the Constitution as well as the intention of the framers of our Constitution mandates that the Courts must step in when ever there is violation of the fundamental rights, even if the right/s of a single individual is/are in peril.
(ix) There is a manifest ascendance of rights under the Constitution which paves the way for the doctrine of progressive realization of rights as such rights evolve with the evolution of the society. This doctrine, as a natural corollary, gives birth to the doctrine of non-retrogression, as per which there must not be atavism of constitutional rights. In the light of the same, if we were to accept the view in Suresh Koushal (supra), it would tantamount to a retrograde step in the direction of the progressive interpretation of the Constitution and denial of progressive realization of rights.
(x) Autonomy is individualistic. Under the autonomy principle, the individual has sovereignty over his/her body. He/she can surrender his/her autonomy willfully to another individual and their intimacy in privacy is a matter of their choice. Such concept of identity is not only sacred but is also in recognition of the quintessential facet of humanity in a person’s nature. The autonomy establishes identity and the said identity, in the ultimate eventuate, becomes a part of dignity in an individual.
(xi) A cursory reading of both Sections 375 IPC and 377 IPC reveals that although the former Section gives due recognition to the absence of “willful and informed consent” for an act to be termed as rape, per contra, Section 377 does not contain any such qualification embodying in itself the absence of “willful and informed consent” to criminalize carnal intercourse which consequently results in criminalizing even voluntary carnal intercourse between homosexuals, heterosexuals, bisexuals and transgenders. Section 375 IPC, after the coming into force of the Criminal Law (Amendment) Act, 2013, has not used the words “subject to any other provision of the IPC”. This indicates that Section 375 IPC is not subject to Section 377 IPC.
(xii) The expression “against the order of nature” has neither been defined in Section 377 IPC nor in any other provision of the IPC. The connotation given to the expression by various judicial pronouncements includes all sexual acts which are not intended for the purpose of procreation. Therefore, if coitus is not performed for procreation only, it does not per se make it “against the order of nature”.
(xiii) Section 377 IPC, in its present form, being violative of the right to dignity and the right to privacy, has to be tested, both, on the pedestal of Articles 14 and 19 of the Constitution as per the law laid down in Maneka Gandhi (supra) and other latest authorities.
(xiv) An examination of Section 377 IPC on the anvil of Article 14 of the Constitution reveals that the classification adopted under the said Section has no reasonable nexus with its object as other penal provisions such as Section 375 IPC and the POCSO Act already penalize non-consensual carnal intercourse. Per contra, Section 377 IPC in its present form has resulted in an unwanted collateral effect whereby even “consensual sexual acts”, which are neither harmful to children nor women, by the LGBTs have been woefully targeted thereby resulting in discrimination and unequal treatment to the LGBT community and is, thus violative of Article 14 of the Constitution.
(xv) Section 377 IPC, so far as it criminalises even consensual sexual acts between competent adults, fails to make a distinction between non-consensual and consensual sexual acts of competent adults in private space which are neither harmful nor contagious to the society. Section 377 IPC subjects the LGBT community to societal pariah and dereliction and is, therefore, manifestly arbitrary, for it has become an odious weapon for the harassment of the LGBT community by subjecting them to discrimination.
(xvi) An examination of Section 377 IPC on the anvil of Article 19(1)(a) reveals that it amounts to an unreasonable restriction, for public decency and morality cannot be amplified beyond a rational or logical limit and cannot be accepted as reasonable grounds for curbing the fundamental rights of freedom of expression and choice of the LGBT community. Consensual carnal intercourse among adults, be it homosexual or heterosexual, in private space, does not in any way harm the public decency or morality. Therefore, Section 377 IPC in its present form violates Article 19(1)(a) of the Constitution.
(xvii) Ergo, Section 377 IPC, so far as it penalizes any consensual sexual relationship between two adults, be it homosexuals (man and a man), heterosexuals (man and a woman) or lesbians (woman and a woman), cannot be regarded as constitutional. However, if anyone, by which we mean both a man and a woman, engages in any kind of sexual activity with an animal, the said aspect of Section 377 is constitutional and it shall remain a penal offence under Section 377 IPC. Any act of the description covered under Section 377 IPC done between two individuals without the consent of any one of them would invite penal liability under Section 377 IPC.
(xviii) The decision in Suresh Koushal (supra), not being in consonance with what we have started hereinabove, is overruled.
As it turned out, Justice RF Nariman in para 1 of his judgment begins by saying that, “The love that dare not speak its name” is how the love that exists between same-sex couples was described by Lord Alfred Douglas, the lover of Oscar Wilde, in his poem Two Loves published in 1894 in Victorian England. In para 2, Justice Nariman clarifies that, “The word “homosexual” is not derived from “homo” meaning man, but from “homo” meaning same. The word “lesbian” is derived from the name of the Greek island of Lesbos, where it was rumored that female same-sex couples proliferated. What we have before us is a relook at the constitutional validity of Section 377 of the Indian Penal Code which was enacted in the year 1860 (over 150 years ago) in so far as it criminalises consensual sex between adult same-sex couples.”
In para 17, Justice Nariman rightly points out that it is interesting to note that Lord Macaulay’s Draft was substantially different from what was enacted as Section 377
and also spelled out the original Section 361 and 362 meant to punish unnatural lust. How many of us are aware of this.
By Sanjeev Sirohi