PART A

Dr Dhananjaya Y Chandrachud, J

A From denial to freedom

“What makes life meaningful is love. The right that

makes us human is the right to love. To criminalize the
expression of that right is profoundly cruel and
inhumane. To acquiesce in such criminalization, or
worse, to recriminalize it, is to display the very
opposite of compassion. To show exaggerated
deference to a majoritarian Parliament when the
matter is one of fundamental rights is to display judicial
pusillanimity, for there is no doubt, that in the
constitutional scheme, it is the judiciary that is the
ultimate interpreter.”1

1 The lethargy of the law is manifest yet again.

2 A hundred and fifty eight years ago, a colonial legislature made it

criminal, even for consenting adults of the same gender, to find fulfillment in

love. The law deprived them of the simple right as human beings to live, love

and partner as nature made them. The human instinct to love was caged by

constraining the physical manifestation of their sexuality. Gays and lesbians2

were made subordinate to the authority of a coercive state. A charter of

morality made their relationships hateful. The criminal law became a willing

instrument of repression. To engage in ‘carnal intercourse’ against ‘the order

of nature’ risked being tucked away for ten years in a jail. The offence would

1 Justice Leila Seth, “A mother and a judge speaks out on Section 377”, The Times of India, 26 January, 2014.
2 These terms as well as terms such as “LGBT” and “LGBTIQ” used in the judgement are to be construed in an
inclusive sense to include members of all gender and sexual minorities, whose sexual activity is criminalized by
the application of Section 377 of the Indian Penal Code, 1860.

5
 PART A

be investigated by searching the most intimate of spaces to find tell-tale signs

of intercourse. Civilisation has been brutal.

3 Eighty seven years after the law was made, India gained her liberation

from a colonial past. But Macaulay’s legacy - the offence under Section 377 of

the Penal Code - has continued to exist for nearly sixty eight years after we

gave ourselves a liberal Constitution. Gays and lesbians, transgenders and

bisexuals continue to be denied a truly equal citizenship seven decades after

Independence. The law has imposed upon them a morality which is an

anachronism. Their entitlement should be as equal participants in a society

governed by the morality of the Constitution. That in essence is what Section

377 denies to them. The shadows of a receding past confront their quest for

fulfillment.

4 Section 377 exacts conformity backed by the fear of penal reprisal.

There is an unbridgeable divide between the moral values on which it is based

and the values of the Constitution. What separates them is liberty and dignity.

We must, as a society, ask searching questions to the forms and symbols of

injustice. Unless we do that, we risk becoming the cause and not just the

inheritors of an unjust society. Does the Constitution allow a quiver of fear to

become the quilt around the bodies of her citizens, in the intimacies which

6
 PART A

define their identities? If there is only one answer to this question, as I believe

there is, the tragedy and anguish which Section 377 inflicts must be remedied.

5 The Constitution brought about a transfer of political power. But it

reflects above all, a vision of a society governed by justice. Individual liberty is

its soul. The constitutional vision of justice accommodates differences of

culture, ideology and orientation. The stability of its foundation lies in its effort

to protect diversity in all its facets: in the beliefs, ideas and ways of living of

her citizens. Democratic as it is, our Constitution does not demand conformity.

Nor does it contemplate the mainstreaming of culture. It nurtures dissent as

the safety valve for societal conflict. Our ability to recognise others who are

different is a sign of our own evolution. We miss the symbols of a

compassionate and humane society only at our peril.

Section 377 provides for rule by the law instead of the rule of law. The rule of

law requires a just law which facilitates equality, liberty and dignity in all its

facets. Rule by the law provides legitimacy to arbitrary state behaviour.

6 Section 377 has consigned a group of citizens to the margins. It has

been destructive of their identities. By imposing the sanctions of the law on

consenting adults involved in a sexual relationship, it has lent the authority of

7
 PART B

the state to perpetuate social stereotypes and encourage discrimination.

Gays, lesbians, bisexuals and transgenders have been relegated to the

anguish of closeted identities. Sexual orientation has become a target for

exploitation, if not blackmail, in a networked and digital age. The impact of

Section 377 has travelled far beyond the punishment of an offence. It has

been destructive of an identity which is crucial to a dignified existence.

7 It is difficult to right the wrongs of history. But we can certainly set the

course for the future. That we can do by saying, as I propose to say in this

case, that lesbians, gays, bisexuals and transgenders have a constitutional

right to equal citizenship in all its manifestations. Sexual orientation is

recognised and protected by the Constitution. Section 377 of the Penal Code

is unconstitutional in so far as it penalises a consensual relationship between

adults of the same gender. The constitutional values of liberty and dignity can

accept nothing less.

B “To the wisdom of the Court”

Union Government before the Court

8 After the hearing commenced, the Additional Solicitor General tendered

an affidavit. The Union government states that it leaves a decision on the

8
 PART B

validity of Section 377 ‘to the wisdom of this Court’. Implicit in this is that the

government has no view of its own on the subject and rests content to abide

by the decision of this Court. During the parleys in Court, the ASG however

submitted that the court should confine itself to the reference by ruling upon

the correctness of Suresh Kumar Koushal v. Naz Foundation3 (“Koushal”).

9 We would have appreciated a categorical statement of position by the

government, setting out its views on the validity of Section 377 and on the

correctness of Koushal. The ambivalence of the government does not obviate

the necessity for a judgment on the issues raised. The challenge to the

constitutional validity of Section 377 must squarely be addressed in this

proceeding. That is plainly the duty of the Court. Constitutional issues are not

decided on concession. The statement of the Union government does not

concede to the contention of the petitioners that the statutory provision is

invalid. Even if a concession were to be made, that would not conclude the

matter for this Court. All that the stand of the government indicates is that it is

to the ‘wisdom’ of this Court that the matter is left. In reflecting upon this

appeal to our wisdom, it is just as well that we as judges remind ourselves of a

truth which can unwittingly be forgotten: flattery is a graveyard for the gullible.

3
(2014) 1 SCC 1

9
 PART B

10 Bereft of a submission on behalf of the Union government on a matter of

constitutional principle these proceedings must be dealt with in the only

manner known to the constitutional court: through an adjudication which fulfills

constitutional values and principles.

11 The ASG made a fair submission when he urged that the court should

deal with the matter in reference. The submission, to its credit, would have the

court follow a path of prudence. Prudence requires, after all, that the Court

should address itself to the controversy in the reference without pursuing an

uncharted course beyond it. While accepting the wisdom of the approach

suggested by the ASG, it is nonetheless necessary to make some prefatory

observations on the scope of the reference.

12 The correctness of the decision in Koushal is in question. Koushal [as

indeed the decision of the Delhi High Court in Naz Foundation v.

Government of NCT of Delhi4 (“Naz”)] dealt with the validity of Section 377

which criminalizes even a consensual relationship between adults of the same

gender who engage in sexual conduct (‘carnal intercourse against the order of

nature’). In dealing with the validity of the provision, it is necessary to

understand the nature of the constitutional right which LGBT individuals claim.

4
(2010) Cri LJ 94

10
 PART B

According to them, the right to be in a relationship with a consenting adult of

the same gender emanates from the right to life, as a protected value under

the Constitution. They ground their right on the basis of an identity resting in

their sexual orientation. According to them, their liberty and dignity require

both an acknowledgement as well as a protection under the law, of their

sexual orientation. Representing their identity, based on sexual orientation, to

the world at large and asserting it in their relationship with the community and

the state is stated to be intrinsic to the free exercise of speech and expression

guaranteed by the Constitution. Sexual orientation is claimed to be intrinsic to

the guarantee against discrimination on the ground of sex. The statutory

provision, it has been asserted, also violates the fundamental guarantee

against arbitrariness because it unequally targets gay men whose sexual

expression falls in the area prohibited by Section 377.

13 In answering the dispute in regard to the validity of Section 377, the

court must of necessity understand and explain in a constitutional perspective,

the nature of the right which is claimed. The challenge to Section 377 has to

be understood from the perspective of a rights discourse. While doing so, it

becomes necessary to understand the constitutional source from which the

claim emerges. When a right is claimed to be constitutionally protected, it is

but necessary for the court to analyze the basis of that assertion. Hence, in
11
 PART C

answering the reference, it is crucial for the court to place the entitlement of

the LGBT population in a constitutional framework. We have approached the

matter thus far from the perspective of constitutional analysis. But there is a

more simple line of reasoning as well, grounded as we believe, in common-

sense. Sexual acts between consenting adults of the same gender constitute

one facet – albeit an important aspect – of the right asserted by gay men to

lead fulfilling lives. Gay and lesbian relationships are sustained and nurtured

in every aspect which makes for a meaningful life. In understanding the true

nature of those relationships and the protection which the Constitution affords

to them, it is necessary to adopt a perspective which leads to their acceptance

as equal members of a humane and compassionate society. Forming a

holistic perspective requires the court to dwell on, but not confine itself, to

sexuality. Sexual orientation creates an identity on which there is a

constitutional claim to the entitlement of a dignified life. It is from that broad

perspective that the constitutional right needs to be adjudicated.

C From “The Ashes of the Gay”

“Democracy
It's coming through a hole in the air,
…
It's coming from the feel
that this ain't exactly real,
or it's real, but it ain't exactly there.
From the wars against disorder,
from the sirens night and day,

12
 PART C

from the fires of the homeless,

from the ashes of the gay:
Democracy is coming…”5

14 Section 377 of the Indian Penal Code, 1860 (“IPC”) has made ‘carnal

intercourse against the order of nature’ an offence. This provision, understood

as prohibiting non-peno vaginal intercourse, reflects the imposition of a

particular set of morals by a colonial power at a particular point in history. A

supposedly alien law,6 Section 377 has managed to survive for over 158

years, impervious to both the anticolonial struggle as well as the formation of

a democratic India, which guarantees fundamental rights to all its citizens. An

inquiry into the colonial origins of Section 377 and its postulations about

sexuality is useful in assessing the relevance of the provision in contemporary

times.7

15 Lord Thomas Babington Macaulay, Chairman of the First Law

Commission of India and principal architect of the IPC, cited two main sources

from which he drew in drafting the Code: the French (Napoleonic) Penal

Code, 1810 and Edward Livingston’s Louisiana Code.8 Lord Macaulay also

5 Lyrics from Leonard Cohen’s song “Democracy” (1992).

6 See Same-Sex Love in India: A Literary History (Ruth Vanita and Saleem Kidwai, eds.), Penguin India (2008) for
writings spanning over more than 2,000 years of Indian literature which demonstrate that same-sex love has
flourished, evolved and been embraced in various forms since ancient times.
7 Law like Love: Queer Perspectives on Law (Arvind Narrain and Alok Gupta, eds.), Yoda Press (2011).
8 K. N. Chandrasekharan Pillai and Shabistan Aquil, “Historical Introduction to the Indian Penal Code”, in Essays on
the Indian Penal Code, New Delhi, Indian Law Institute (2005); Siyuan Chen, “Codification, Macaulay and the
Indian Penal Code [Book Review], Singapore Journal of Legal Studies, National University of Singapore, Faculty
of Law (2011), at pages 581-584.

13
 PART C

drew inspiration from the English common law and the British Royal

Commission’s 1843 Draft Code.9 Tracing that origin, English jurist Fitzjames

Stephen observes:

“The Indian Penal Code may be described as the criminal law

of England freed from all technicalities and superfluities,
systematically arranged and modified in some few particulars
(they are surprisingly few) to suit the circumstances of British
India.”10

In order to understand the colonial origins of Section 377, it is necessary to go

further back to modern English law’s conception of anal and oral intercourse,

which was firmly rooted in Judeo-Christian morality and condemned non-

procreative sex.11 Though Jesus himself does not reference homosexuality or

homosexual sex,12 the “Holiness Code”13 found in Leviticus provides thus:

“You shall not lie with a male as with a woman. It is an

abomination. [18:22]

If a man also lie with mankind, as he lieth with a woman, both

of them have committed an abomination: they shall surely be
put to death; their blood shall be upon them. [19:13]

If a man lies with a male as with a woman, both of them have

committed an abomination; they shall be put to death, their
blood is upon them. [20:13]”

9
Douglas E. Sanders, “377 and the Unnatural Afterlife of British Colonialism in Asia”, Asian Journal of Comparative
Law, Vol. 4 (2009), at page 11 (“Douglas”); David Skuy, “Macaulay and the Indian Penal Code of 1862: The Myth
of the Inherent Superiority and Modernity of the English Legal System Compared to India’s Legal System in the
Nineteenth Century”, Modern Asian Studies, Vol. 32 (1998), at pages 513-557.
10
Barry Wright, “Macaulay’s Indian Penal Code: Historical Context and Originating Principles”, Carleton University
(2011).
11 Michael Kirby, “The Sodomy Offence: England's Least Lovely Law Export?” Journal of Commonwealth Criminal
Law, Inaugural Issue (2011).
12 Douglas, supra note 9, at page 4.
13
Ibid at page 2.

14
 PART C

Another Judeo-Christian religious interpretation refers to “sodomy”, a term

used for anal intercourse that is derived from an interpretation of Genesis

18:20 of the Old Testament,14 known as the story of Sodom and Gomorrah.

Briefly, when two angels took refuge in the home of Lot, the men of the town

of Sodom surrounded the house and demanded that the angels be sent out so

that the men may “know” them (in this interpretation, with sexual

connotations). When Lot offered them his two virgin daughters instead, the

men of Sodom responded by threatening Lot. The angels then blinded the

“Sodomites.”15 The use of the term “sodomites” to describe those who

engaged in anal intercourse emerged in the 13th Century, and the term

“sodomy” was used as a euphemism for a number of sexual ‘sins’ two

centuries earlier.16

16 The preservation of the Judeo-Christian condemnation of homosexuality

is also attributed to the Jewish theologian, Philo of Alexandria, who is

regarded as the father of the Church Fathers and who reviled homosexuals

and called for their execution.17 The condemnation of homosexuality can also

be traced to Roman law. Emperor Justinian’s Code of 529, for instance, stated

14
Douglas, supra note 9, at page 4.
15 Jessica Cecil, “The Destruction of Sodom and Gomorrah”, British Broadcasting Company, 11 February 2017.
16 Douglas, supra note 9, at page 4; KSN Murthy’s Criminal Law: Indian Penal Code (KVS Sarma ed), Lexis Nexis
(2016).
17 Philo, translated by F.H. Colson and G.H. Whitaker, 10 Volumes, (Cambridge: Harvard University Press, 1929-
1962).

15
 PART C

that persons who engaged in homosexual sex were to be executed.18 From

Rome, the condemnation of homosexuality spread across Europe, where it

manifested itself in ecclesiastical law.19 During the Protestant Reformation,

these laws shifted from the ecclesiastical to the criminal domain, beginning

with Germany in 1532.20

While ecclesiastical laws against homosexual intercourse were well

established in England by the 1500s,21 England’s first criminal (non-

ecclesiastical) law was the Buggery Act of 1533, which condemned “the

detestable and abominable vice of buggeri committed with mankind or

beest.”22 “Buggery” is derived from the old French word for heretic, “bougre”,

and was taken to mean anal intercourse.23

17 The Buggery Act, 1533, which was enacted by Henry VIII, made the

offence of buggery punishable by death, and continued to exist for nearly 300

years before it was repealed and replaced by the Offences against the Person

Act, 1828. Buggery, however, remained a capital offence in England until

1861, one year after the enactment of the IPC. The language of Section 377

18 David F. Greenberg and Marcia H. Bystryn, “Christian Intolerance of Homosexuality”, American Journal of
Sociology, Vol. 88 (1982), at pages 515-548.
19 Douglas, supra note 9, at pages 5 and 8.
20 Ibid at page 5.
21 Ibid at page 2.
22 The Buggery Act, 1533.
23
Douglas, supra note 9, at page 2.

16
 PART C

has antecedents in the definition of buggery found in Sir Edward Coke’s late

17th Century compilation of English law:24

“...Committed by carnal knowledge against the ordinance of

the Creator, and order of nature, by mankind with mankind, or
with brute beast, or by womankind with brute beast.”25

18 The Criminal Law Amendment Act, 1885 made “gross indecency” a

crime in the United Kingdom, and was used to prosecute homosexuals where

sodomy could not be proven. In 1895, Oscar Wilde was arrested under the

Act for ‘committing acts of gross indecency with male persons’.26 During

Wilde’s trial, the Prosecutor, referring to homosexual love, asked him, “What

is ‘the love that dare not speak its name’?” Wilde responded:

“The love that dare not speak its name” in this century is such
a great affection of an elder for a younger man as there was
between David and Jonathan, such as Plato made the very
basis of his philosophy, and such as you find in the sonnets of
Michelangelo and Shakespeare. It is that deep spiritual
affection that is as pure as it is perfect. It dictates and
pervades great works of art, like those of Shakespeare and
Michelangelo, and those two letters of mine, such as they are.
It is in this century misunderstood, so much misunderstood
that it may be described as “the love that dare not speak its
name,” and on that account of it I am placed where I am now.
It is beautiful, it is fine, it is the noblest form of affection. There
is nothing unnatural about it. It is intellectual, and it repeatedly
exists between an older and a younger man, when the older
man has intellect, and the younger man has all the joy, hope
and glamour of life before him. That it should be so, the world

24 Ibid at 7.
25 Human Rights Watch. This Alien Legacy: The Origins of “Sodomy” Laws in British Colonialism (2008).
26
Douglas, supra note 9, at page 15.

17
 PART C

does not understand. The world mocks at it, and sometimes

puts one in the pillory for it.”27

Wilde was held guilty and was sentenced to two years’ hard labour and

subsequently incarcerated.

Following World War II, arrests and prosecutions of homosexuals increased.

Alan Turing, the renowned mathematician and cryptographer who was

responsible for breaking the Nazi Enigma code during World War II, was

convicted of ‘gross indecency’ in 1952. In order to avoid a prison sentence,

Turing was forced to agree to chemical castration. He was injected with

synthetic female hormones. Less than two years after he began the hormone

treatment, Turing committed suicide. The Amendment Act (also known as the

Labouchere Amendment) remained in English law until 1967. Turing was

posthumously pardoned in 2013, and in 2017, the UK introduced the Policing

and Crime Bill, also called the “Turing Law,” posthumously pardoning 50,000

homosexual men and providing pardons for the living.

In the wake of several court cases in which homosexuality had been featured,

the British Parliament in 1954 set up the Wolfenden Committee, headed by

27
H. Montgomery Hyde, John O'Connor, and Merlin Holland, The Trials of Oscar Wilde (2014), at page 201.

18
 PART C

John Wolfenden, to “consider…the law and practice relating to homosexual

offenses and the treatment of persons convicted of such offenses by the

courts”, as well as the laws relevant to prostitution and solicitation. The

Wolfenden Report of 1957, which was supported by the Church of England,28

proposed that there ‘must remain a realm of private morality and immorality

which is, in brief and crude terms, not the law’s business’ and recommended

that homosexual acts between two consenting adults should no longer be a

criminal offence.29

19 The success of the report led England and Wales to enact The Sexual

Offences Act, 1967, which decriminalized private homosexual sex between

two men over the age of twenty-one. Britain continued to introduce and

amend laws governing same-sex intercourse to make them more equal,

including the lowering of the age of consent for gay/bisexual men to sixteen in

2001.30 In May 2007, in a statement to the UN Human Rights Council, the UK,

which imposed criminal prohibitions against same-sex intercourse in its former

colonies across the world, committed itself to the cause of worldwide

decriminalization of homosexuality.31 Today, India continues to enforce a law

28 Ibid at 25.
29 Report of the Departmental Committee on Homosexual Offences and Prostitution (1957) (“Wolfenden Report”).
30 Sexual Offences (Amendment) Act 2000, Parliament of the United Kingdom.
31
Douglas, supra note 9, at page 29.

19
 PART C

imposed by an erstwhile colonial government, a law that has been long done

away with by the same government in its own jurisdiction.

C.I “Arc of the moral universe”

20 Lord Macaulay was greatly influenced by English philosopher and jurist

Jeremy Bentham, who coined the term codification and argued for replacing

existing laws with clear, concise, and understandable provisions that could be

universally applied across the Empire.32 Ironically, in a 1785 essay, Bentham

himself wrote one of the earliest known defences of homosexuality in the

English language, arguing against the criminalization of homosexuality.

However, this essay was only discovered 200 years after his death.33

21 The Law Commission’s 1837 draft of the Penal Code (prepared by Lord

Macaulay) contained two sections (Clauses 361 and 362), which are

considered the immediate precursors to Section 377:

“OF UNNATURAL OFFENCES

361. Whoever, intending to gratify unnatural lust, touches, for

that purpose, any person, or any animal, or is by his own
consent touched by any person, for the purpose of gratifying
unnatural lust, shall be punished with imprisonment of either
description for a term which may extend to fourteen years and

32 Douglas, supra note 9, at page 9.

33
Ibid.

20
 PART C

must not be less than two years, and shall also be liable to
fine.

362. Whoever, intending to gratify unnatural lust, touches for

that purpose any person without that person's free and
intelligent consent, shall be punished with imprisonment of
either description for a term which may extend to life and
must not be less than seven years, and shall also be liable to
fine.”

Both the draft clauses are vague in their description of the acts they seek to

criminalize. Lord Macaulay also omitted an explanation to the Clauses. In a

note presented with the 1837 draft, Lord Macaulay elaborated:

“Clauses 361 and 362 relate to an odious class of offences

respecting which it is desirable that as little as possible be
said. We leave without comment to the judgment of his
Lordship in Council the two Clauses which we have provided
for these offences. We are unwilling to insert, either in the
text, or in the notes, anything which could give rise to
public discussion on this revolting subject; as we are
decidedly of opinion that the injury which would be done
to the morals of the community by such discussion would
far more than compensate for any benefits which might be
derived from legislative measures framed with the greatest
precision.”34 (Emphasis supplied)

So abominable did Macaulay consider these offences that he banished the

thought of providing a rationale for their being made culpable. The prospect of

a public discussion was revolting.

34 Enze Han, Joseph O'Mahoney, “British Colonialism and the Criminalization of Homosexuality: Queens, Crime and
Empire”, Routledge (2018).

21
 PART C

After twenty-five years of revision, the IPC entered into force on 1 January

1862, two years after Lord Macaulay’s death. The IPC was the first codified

criminal code in the British Empire. Section 377 of the revised code read as

follows:

“Of Unnatural Offences

377. Unnatural Offences.- Whoever voluntarily has carnal

intercourse against the order of nature with any man, woman
or animal, shall be punished with [imprisonment for life]35, or
with imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine.

Explanation.- Penetration is sufficient to constitute the carnal

intercourse necessary to the offence described in this
section.”

22 The Explanation is unique in that it requires proof of penetration –

something that British Law did not. The two clauses in the Draft Code fell

somewhere in between, requiring proof of “touch”.36

By the time India gained independence in 1947, Britain had introduced Penal

Codes similar to the IPC in other former colonies, including Zanzibar

(Tanzania) in 1867, Singapore, Malaysia, and Brunei in 1871, Ceylon (Sri

Lanka) in 1885, Burma (Myanmar) in 1886,37 East Africa Protectorate (Kenya)

35 Changed from “transportation for life” by Act 26 of 1955.

36 Douglas, supra note 9, at page 16.
37 Nang Yin Kham, “An Introduction to the Law and Judicial System of Myanmar”, Centre for Asia Legal Studies
Faculty of Law, National University of Singapore, Working Paper 14/02, (2014).

22
 PART C

in 1897, Sudan in 1889, Uganda in 1902, and Tanganyika (Tanzania) in

1920.38 Under Article 372(1) of the Indian Constitution, which provides that all

laws in force prior to the commencement of the Constitution shall continue to

be in force until altered or repealed, the IPC and many other pre-

Independence laws were “saved” and allowed to operate in Independent

India.

23 While Section 377 has been used to prosecute non-consensual sexual

acts, it has also been used to prosecute consensual sexual acts. In

(Meharban) Nowshirwan Irani v. Emperor39, for instance, a police officer

observed Nowshirwan, a young shopkeeper, engaged in homosexual acts

with a young man, Ratansi, through a keyhole in Nowshirwan’s house. The

Prosecution argued that the acts were non-consensual, but could not prove

coercion.40 The High Court of Sindh ultimately set aside the conviction based

on insufficient evidence. Nevertheless, what should have been an intimate act

between two consenting parties in their bedroom became a public scandal

and the subject of judicial scrutiny.41

38 Supra note 34.

39
AIR 1934 Sind. 206.
40 Arvind Narrain, “‘That Despicable Specimen of Humanity’: Policing of Homosexuality in India”, in Challenging the
Rule(s) of Law: Colonialism, Criminology and Human Rights in India (Kalpana Kannabiran and Ranbir Singh
eds.), Sage (2008).
41 Arvind Narrain, “A New Language of Morality: From the Trial of Nowshirwan to the Judgement in Naz Foundation”,
The Indian Journal of Constitutional Law, Vol. 4 (2010).

23
 PART C

In D P Minwalla v. Emperor42, Minawalla and Tajmahomed, were seen

having anal intercourse in a lorry and were arrested, charged, and found guilty

under Section 377. Tajmahomed was sentenced to four months rigorous

imprisonment, and Minawalla, who was charged with abetment, was

sentenced to a fine of Rs 100 and imprisonment until the rising of the Bench.

Minawalla appealed the decision on the grounds that he was not a consenting

partner, and submitted himself to a medical exam. The judge was

unconvinced, however, and Minawalla’s original sentence was upheld. The

Court, convinced that the acts were consensual, found the men guilty under

Section 377.43

In Ratan Mia v. State of Assam44, the Court convicted two men (one aged

fifteen and a half, the other twenty) under Section 377 and treated them as

equally culpable, as he was unable to cast one of them as the perpetrator and

the other as the victim or abettor. Both men were originally sentenced to

imprisonment for six months and a fine of Rs 100. After Nur had spent six

years in prison and appealed three times,45 both men's sentences were

42 AIR 1935 Sind. 78.

43 Supra note 40.
44 (1988) Cr.L.J. 980.
45 Suparna Bhaskaran, “The Politics of Penetration: Section 377 of the Indian Penal Code” in Queering India: Same-
Sex Love and Eroticism in Indian Culture and Society (Ruth Vanita ed.), Routledge (2002).

24
 PART C

reduced to seven days rigorous imprisonment, in view of the fact that they

were first time offenders under the age of twenty-one.46

Even though the government is not proactively enforcing a law that governs

private activities, the psychological impact for homosexuals who are, for all

practical purposes, felons in waiting, is damaging in its own right:

“...The true impact of Section 377 on queer lives is felt outside

the courtroom and must not be measured in terms of legal
cases. Numerous studies, including both documented and
anecdotal evidence, tell us that Section 377 is the basis for
routine and continuous violence against sexual minorities by
the police, the medical establishment, and the state. There
are innumerable stories that can be cited – from the everyday
violence faced by hijras [a distinct transgender category] and
kothis [effeminate males] on the streets of Indian cities to the
refusal of the National Human Rights Commission to hear the
case of a young man who had been given electro-shock
therapy for nearly two years. A recent report by the People’s
Union for Civil Liberties (Karnataka), showed that Section 377
was used by the police to justify practices such as illegal
detention, sexual abuse and harassment, extortion and outing
of queer people to their families.”47

Before the end of the 19th century, gay rights movements were few and far

between. Indeed, when Alfred Douglas, Oscar Wilde’s lover, wrote in his

1890s poem entitled “Two Loves” of “the love that dare not speak its name”,

he was alluding to society’s moral disapprobation of homosexuality.48 The 20th

46 Ibid.
47 Douglas, supra note 9, at page 21; “Introduction” to Because I Have a Voice: Queer Politics in India, (Gautam
Bhan and Arvind Narrain eds), Yoda Press (2005) at pages 7, 8.
48
Melba Cuddy-Keane, Adam Hammond and Alexandra Peat, “Q” in Modernism: Keywords, Wiley-Blackwell (2014).

25
 PART C

century, however, saw the LGBTIQ community emerge from the shadows

worldwide, poised to agitate and demand equal civil rights. LGBTIQ

movements focused on issues of intersectionality, the interplay of oppressions

arising from being both queer and lower class, coloured, disabled, and so on.

Despite the movement making numerous strides forward in the fight for equal

rights, incidents of homosexual arrests were nevertheless extant at the turn of

the 21st century.

In many cases of unfulfilled civil rights, there is a tendency to operate under

the philosophy articulated by Dr. Martin Luther King, that “the arc of the moral

universe is long, but it bends towards justice.” It is likely that those who

subscribe to this philosophy believe that homosexuals should practice the

virtue of patience, and wait for society to understand and accept their way of

life. What those who purport this philosophy fail to recognize is that Dr King

himself argued against the doctrine of “wait”:

“For years now I have heard the word “wait.” It rings in the ear
of every Negro with a piercing familiarity. This “wait” has
almost always meant “never.” It has been a tranquilizing
thalidomide, relieving the emotional stress for a moment, only
to give birth to an ill-formed infant of frustration. We must
come to see with the distinguished jurist of yesterday that
“justice too long delayed is justice denied.” We have waited
for more than three hundred and forty years for our God-given
and constitutional rights . . . when you are harried by day and
haunted by night by the fact that you are a Negro, living
constantly at tiptoe stance, never knowing what to expect
next, and plagued with inner fears and outer resentments;

26
 PART C

when you are forever fighting a degenerating sense of

“nobodyness” -- then you will understand why we find it
difficult to wait. There comes a time when the cup of
endurance runs over and men are no longer willing to be
plunged into an abyss of injustice where they experience the
bleakness of corroding despair. I hope, sirs, you can
understand our legitimate and unavoidable impatience.”
(Letter from a Birmingham Jail)49

24 Indian citizens belonging to sexual minorities have waited. They have

waited and watched as their fellow citizens were freed from the British yoke

while their fundamental freedoms remained restrained under an antiquated

and anachronistic colonial-era law – forcing them to live in hiding, in fear, and

as second-class citizens. In seeking an adjudication of the validity of Section

377, these citizens urge that the acts which the provision makes culpable

should be decriminalised. But this case involves much more than merely

decriminalising certain conduct which has been proscribed by a colonial law.

The case is about an aspiration to realise constitutional rights. It is about a

right which every human being has, to live with dignity. It is about enabling

these citizens to realise the worth of equal citizenship. Above all, our decision

will speak to the transformative power of the Constitution. For it is in the

transformation of society that the Constitution seeks to assure the values of a

just, humane and compassionate existence to all her citizens.

49
Martin Luther King Jr., “Letter from a Birmingham Jail” (1963).

27
 PART D

D An equal love

“Through Love's Great Power

Through love's great power to be made whole

In mind and body, heart and soul –
Through freedom to find joy, or be
By dint of joy itself set free
In love and in companionhood:
This is the true and natural good.
To undo justice, and to seek
To quash the rights that guard the weak -
To sneer at love, and wrench apart
The bonds of body, mind and heart
With specious reason and no rhyme:
This is the true unnatural crime.”50

Article 14 is our fundamental charter of equality:

“The State shall not deny to any person equality before the
law or the equal protection of the laws within the territory of
India.” (Emphasis supplied)

25 In Naz, the Delhi High Court held that Section 377 violates Article 14 of

the Constitution since the classification on which it is based does not bear any

nexus to the object which the provision seeks to achieve.51 In Koushal, this

Court rejected the Naz formulation on the ground that “those who indulge in

carnal intercourse in the ordinary course and those who ... [do so] against the

order of nature constitute different classes.”52 Koushal held on that logic that

50 Vikram Seth wrote this poem the morning after the Supreme Court refused to review its decision in Koushal.
51 Naz Foundation, at para 91.
52
Koushal, at para 65.

28
 PART D

Section 377 does not suffer from arbitrariness or from an irrational

classification.

26 A litany of our decisions – to refer to them individually would be a

parade of the familiar – indicates that to be a reasonable classification under

Article 14 of the Constitution, two criteria must be met: (i) the classification

must be founded on an intelligible differentia; and (ii) the differentia must have

a rational nexus to the objective sought to be achieved by the legislation.53

There must, in other words, be a causal connection between the basis of

classification and the object of the statute. If the object of the classification is

illogical, unfair and unjust, the classification will be unreasonable.54

27 Equating the content of equality with the reasonableness of a

classification on which a law is based advances the cause of legal formalism.

The problem with the classification test is that what constitutes a reasonable

classification is reduced to a mere formula: the quest for an intelligible

differentia and the rational nexus to the object sought to be achieved. In doing

so, the test of classification risks elevating form over substance. The danger

inherent in legal formalism lies in its inability to lay threadbare the values

which guide the process of judging constitutional rights. Legal formalism

53 State of West Bengal v. Anwar Ali Sarkar, AIR (1952) SC 75.

54
Deepak Sibal v. Punjab University, (1989) 2 SCC 145.

29
 PART D

buries the life-giving forces of the Constitution under a mere mantra. What it

ignores is that Article 14 contains a powerful statement of values – of the

substance of equality before the law and the equal protection of laws. To

reduce it to a formal exercise of classification may miss the true value of

equality as a safeguard against arbitrariness in state action. As our

constitutional jurisprudence has evolved towards recognizing the substantive

content of liberty and equality, the core of Article 14 has emerged out of the

shadows of classification. Article 14 has a substantive content on which,

together with liberty and dignity, the edifice of the Constitution is built. Simply

put, in that avatar, it reflects the quest for ensuring fair treatment of the

individual in every aspect of human endeavor and in every facet of human

existence.

In E P Royappa v. State of Tamil Nadu55, the validity of state action was

made subject to the test of arbitrariness:

“Equality is a dynamic concept with many aspects and

dimensions and it cannot be “cribbed cabined and confined”
within traditional and doctrinaire limits. From a positivistic
point of view, equality is antithetic to arbitrariness. In fact
equality and arbitrariness are sworn enemies; one belongs to
the rule of law in a republic while the other, to the whim and
caprice of an absolute monarch. Where an act is arbitrary it is
implicit in it that it is unequal both according to political logic
and constitutional law and is therefore violative of Art.14…”

55
(1974) 4 SCC 3

30
 PART D

Four decades later, the test has been refined in Shayara Bano v. Union of

India56:

“The expression ‘arbitrarily’ means: in an unreasonable

manner, as fixed or done capriciously or at pleasure, without
adequate determining principle, not founded in the nature of
things, non-rational, not done or acting according to reason or
judgment, depending on the will alone.”

28 The wording of Section 377 does not precisely map on to a distinction

between homosexuals and heterosexuals but a precise interpretation would

mean that it penalizes some forms of sexual expression among heterosexuals

while necessarily criminalizing every form of sexual expression and intimacy

between homosexuals.57 For Section 377 to withstand the scrutiny of Article

14, it was necessary for the Court in Koushal to establish the difference

between ‘ordinary intercourse’ and ‘intercourse against the order of nature’,

the legitimate objective being pursued and the rational nexus between the

goal and the classification. However, the Koushal approach has been

criticised on the ground that while dealing with Article 14, it fell “short of the

minimum standards of judicial reasoning that may be expected from the

Supreme Court.”58 On a review of the prosecutions under Section 377,

Koushal conceded that “no uniform test [could] be culled out to classify acts

56(2017) 9 SCC 1
57Gautam Bhatia, “Equal moral membership: Naz Foundation and the refashioning of equality under a transformative
constitution”, Indian Law Review, Vol. 1 (2017), at pages 115-144.
58 Shubhankar Dam, “Suresh Kumar Koushal and Another v. NAZ Foundation and Others (Civil Appeal No. 10972 of

2013)” Public Law, International Survey Section (2014).

31
 PART D

as ‘carnal intercourse against the order of nature.’”59 Yet Koushal upheld the

classification of sexual acts in Section 377 without explaining the difference

between the classes, or the justification for treating the classes differently.

This lack of reasoning and analysis by the Court has been critiqued in

scholarly research on the subject. The following extract sums up the criticism

with telling effect:

“The Court says – without an iota of evidence – that there are

two classes of persons – those who engage in sexual
intercourse in the “ordinary course”, and those who don’t.
What is ordinary course? Presumably, heterosexuality. Why
is this ordinary course? Perhaps because there are more
heterosexuals than homosexuals around, although the Court
gives no evidence for that. Well, there are also more black-
haired people in India than brown-haired people. Is sex with a
brown-haired person against the order of nature because it
happens less often?... Where is the rational nexus? What is
the legitimate governmental objective? Even if we accept that
there is an intelligible differentia here, on what basis do
you criminalize – and thus deny equal protection of laws – to
one class of persons? The Court gives no answer.
Alternatively, “ordinary sex” is penal-vaginal, and every other
kind of sex is “against the ordinary course of nature”. Again,
no evidence to back that claim up apart from the say-so of the
judge.”60

At the very outset, we must understand the problem with the usage of the

term ‘order of nature’. What is ‘natural’ and what is ‘unnatural’? And who

decides the categorization into these two ostensibly distinct and water-tight

compartments? Do we allow the state to draw the boundaries between

59 Koushal, at para 60.

60 Gautam Bhatia, “The Unbearable Wrongness of Koushal vs Naz Foundation”, Indian Constitutional Law and
Philosophy (2013).

32
 PART D

permissible and impermissible intimacies between consenting adults?

Homosexuality has been documented in almost 1500 species, who

“unfortunately are not blessed with rational capabilities (and the propensity to

‘nurture’ same sex thoughts) as are found in mankind.”61 An interesting article

in this regard notes that, “no species has been found in which homosexual

behaviour has not been shown to exist, with the exception of species that

never have sex at all, such as sea urchins and aphis.”62

29 In an incisive article,63 Ambrosino discusses the shift from reproductive

instinct to erotic desire and how crucial this shift is to understanding modern

notions of sexuality. He analyses how the lines between homosexuality and

heterosexuality are blurred, and perhaps even an outdated myth or invention

when we understand the fluidity of sexual identities today:64

““No one knows exactly why heterosexuals and homosexuals

ought to be different,” wrote Wendell Ricketts, author of the
1984 study Biological Research on Homosexuality. The best
answer we’ve got is something of a tautology: “heterosexuals
and homosexuals are considered different because they can
be divided into two groups on the basis of the belief that they
can be divided into two groups.”

Though the hetero/homo divide seems like an eternal,

indestructible fact of nature, it simply isn’t. It’s merely one
recent grammar humans have invented to talk about what sex
means to us.”

61
Shamnad Basheer, Sroyon Mukherjee and Karthy Nair, “Section 377 and the ‘Order of Nature’: Nurturing
‘Indeterminacy’ in the Law”, NUJS Law Review, Vol, 2 (2009).
62 Bruce Bagemihl, Biological Exuberance: Animal Homosexuality and Natural Diversity, Stonewall Inn Editions
(2000).
63 Brandon Ambrosino, “The Invention of Heterosexuality”, British Broadcasting Company, 26 March, 2017.
64
Ibid.

33
 PART D

He questions the elevated status of ‘normalcy’ in the following words:

“Normal” is a loaded word, of course, and it has been misused

throughout history. Hierarchical ordering leading to slavery was
at one time accepted as normal, as was a geocentric
cosmology. It was only by questioning the foundations of the
consensus view that “normal” phenomena were dethroned
from their privileged positions.”

There are obvious shortcomings of the human element in the judgment of

natural and unnatural:

“Why judge what is natural and ethical to a human being by his

or her animal nature? Many of the things human beings value,
such as medicine and art, are egregiously unnatural. At the
same time, humans detest many things that actually are
eminently natural, like disease and death. If we consider some
naturally occurring phenomena ethical and others unethical,
that means our minds (the things looking) are determining what
to make of nature (the things being looked at). Nature doesn’t
exist somewhere “out there,” independently of us – we’re
always already interpreting it from the inside.”

It has been argued that “the ‘naturalness’ and omnipresence of

heterosexuality is manufactured by an elimination of historical specificities

about the organisation, regulation and deployment of sexuality across time

and space.”65 It is thus this “closeting of history” that produces the “hegemonic

heterosexual” - the ideological construction of a particular alignment of sex,

gender and desire that posits itself as natural, inevitable and eternal.66

Heterosexuality becomes the site where the male sexed masculine man’s

desire for the female sexed feminine woman is privileged over all other forms

65 Zaid Al Baset, “Section 377 and the Myth of Heterosexuality”, Jindal Global Law Review, Vol. 4 (2012).
66
Ibid.

34
 PART D

of sexual desire and becomes a pervasive norm that structures all societal

structures.67

The expression ‘carnal’ is susceptible to a wide range of meanings. Among

them are:

“sexual, sensual, erotic, lustful, lascivious, libidinous, lecherous, licentious,

lewd, prurient, salacious, coarse, gross, lubricious, venereal.”

That’s not all. The word incorporates meanings such as: “physical,

bodily, corporeal and of the flesh.” The late Middle English origin of ‘carnal’

derives from Christian Latin ‘carnalis’, from caro, carn – ‘flesh’. At one end of

the spectrum ‘carnal’ embodies something which relates to the physical

feelings and desires of the body. In another sense, the word implies ‘a

relation to the body or flesh as the state of basic physical appetites’. In a

pejorative sense, it conveys grossness or lewdness. The simple question

which we need to ask ourselves is whether liberty and equality can be made

to depend on such vagueness of expression and indeterminacy of content.

Section 377 is based on a moral notion that intercourse which is lustful is to

be frowned upon. It finds the sole purpose of intercourse in procreation. In

doing so, it imposes criminal sanctions upon basic human urges, by targeting

67
Ibid.

35
 PART D

some of them as against the order of nature. It does so, on the basis of a

social hypocrisy which the law embraces as its own. It would have human

beings lead sanitized lives, in which physical relationships are conditioned by

a moral notion of what nature does or does not ordain. It would have human

beings accept a way of life in which sexual contact without procreation is an

aberration and worse still, penal. It would ask of a section of our citizens that

while love, they may, the physical manifestation of their love is criminal. This

is manifest arbitrariness writ large.

If it is difficult to locate any intelligible differentia between indeterminate terms

such as ‘natural’ and ‘unnatural’, then it is even more problematic to say that a

classification between individuals who supposedly engage in ‘natural’

intercourse and those who engage in ‘carnal intercourse against the order of

nature’ can be legally valid.

In addition to the problem regarding the indeterminacy of the terms, there is a

logical fallacy in ascribing legality or illegality to the ostensibly universal

meanings of ‘natural’ and ‘unnatural’ as is pointed out in a scholarly article.68

Basheer, et al make this point effectively:

“From the fact that something occurs naturally, it does not

necessarily follow that it is socially desirable. Similarly, acts
that are commonly perceived to be ‘unnatural’ may not
necessarily deserve legal sanction. Illustratively, consider a

68
Supra note 61.

36
 PART D

person who walks on his hands all the time. Although this
may be unnatural, it is certainly not deserving of legal
censure.

…In fact, several activities that might be seen to contravene

the order of nature (heart transplants, for example) are
beneficial and desirable. Even if an unnatural act is harmful to
the extent that it justifies criminal sanctions being imposed
against it, the reason for proscribing such an act would be
that the act is harmful, and not that it is unnatural.”

Indeed, there is no cogent reasoning to support the idea that behaviour that

may be uncommon on the basis of mere statistical probability is necessarily

abnormal and must be deemed ethically or morally wrong.69 Even behaviour

that may be considered wrong or unnatural cannot be criminalised without

sufficient justification given the penal consequences that follow. Section 377

becomes a blanket offence that covers supposedly all types of non-

procreative ‘natural’ sexual activity without any consideration given to the

notions of consent and harm.

30 The meaning of ‘natural’ as understood in cases such as Khanu v.

Emperor70, which interpreted natural sex to mean only sex that would lead to

procreation, would lead to absurd consequences. Some of the consequences

have been pointed out thus:

“The position of the court was thus that ‘natural’ sexual

intercourse is restricted not only to heterosexual coitus, but
further only to acts that might possibly result in conception.

69 Sex, Morality and the Law, (Lori Gruen and George Panichas eds.), Routledge (1996).
70
AIR (1925) Sind. 286

37
 PART D

Such a formulation of the concept of ‘natural’ sex excludes

not only the use of contraception, which is likely to have fallen
outside the hegemonic view of normative sexuality at the
time, but also heterosexual coitus where one or both partners
are infertile, or during the ‘safe’ period of a woman’s
menstrual cycle. It is perhaps unnecessary to state that the
formulation also excludes oral sex between heterosexual
partners and any homosexual act whatsoever.”71

The indeterminacy and vagueness of the terms ‘carnal intercourse’ and ‘order

of nature’ renders Section 377 constitutionally infirm as violating the equality

clause in Article 14.

While it is evident that the classification is invalid, it is useful to understand its

purported goal by looking at the legislative history of Section 377. In

Macaulay’s first draft of the Penal Code, the predecessor to present day

Section 377 was Clause 36172 which provided a severe punishment for

touching another for the purpose of ‘unnatural’ lust. Macaulay abhorred the

idea of any debate or discussion on this ‘heinous crime’. India’s anti-sodomy

law was conceived, legislated and enforced by the British without any kind of

public discussion.73 So abhorrent was homosexuality to the moral notions

which he espoused, that Macaulay believed that the idea of a discussion was

71 Andrew Davis, “The Framing of Sex: Evaluating Judicial Discourse on the 'Unnatural Offences'”, Alternative Law
Journal, Vol. 5 (2006).
72
Clause 361 stated “Whoever, intending to gratify unnatural lust, touches, for that purpose, any person, or any
animal, or is by his own consent touched by any person, for the purpose of gratifying unnatural lust, shall be
punished with imprisonment of either description for a term which may extend to fourteen years and must not be
less than two years, and shall also be liable to fine.”
73 Alok Gupta, “Section 377 and the Dignity of Indian Homosexuals” The Economic and Political Weekly, Vol. 41
(2006).

38
 PART D

repulsive. Section 377 reveals only the hatred, revulsion and disgust of the

draftsmen towards certain intimate choices of fellow human beings. The

criminalization of acts in Section 377 is not based on a legally valid distinction,

“but on broad moral proclamations that certain kinds of people, singled out by

their private choices, are less than citizens – or less than human.”74

31 The Naz judgement has been criticised on the ground that even though

it removed private acts between consenting adults from the purview of Section

377, it still retained the section along with its problematic terminology

regarding the ‘order of nature’:75

“…even though the acts would not be criminal, they would still
be categorized as “unnatural” in the law. This is not an idle
terminological issue. As Durkheim noted over a hundred
years ago, the law also works as a tool that expresses social
relations.76 Hence, this expression itself is problematic from a
dignitarian standpoint, otherwise so eloquently referred to by
the judgement.”

At this point, we look at some of the legislative changes that have taken place

in India’s criminal law since the enactment of the Penal Code. The Criminal

Law (Amendment) Act 2013 imported certain understandings of the concept of

sexual intercourse into its expansive definition of rape in Section 375 of the

Indian Penal Code, which now goes beyond penile–vaginal penetrative

74 Supra note 25.

75 John Sebastian, “The opposite of unnatural intercourse: understanding Section 377 through Section 375, Indian
Law Review, Vol. 1 (2018).
76
Emile Durkheim, The Division of Labour in Society, Macmillan (1984).

39
 PART D

intercourse.77 It has been argued that if ‘sexual intercourse’ now includes

many acts which were covered under Section 377, those acts are clearly not

‘against the order of nature’ anymore. They are, in fact, part of the changed

meaning of sexual intercourse itself. This means that much of Section 377 has

not only been rendered redundant but that the very word ‘unnatural’ cannot

have the meaning that was attributed to it before the 2013 amendment.78

Section 375 defines the expression rape in an expansive sense, to include

any one of several acts committed by a man in relation to a woman. The

offence of rape is established if those acts are committed against her will or

without the free consent of the woman. Section 375 is a clear indicator that in

a heterosexual context, certain physical acts between a man and woman are

excluded from the operation of penal law if they are consenting adults. Many

of these acts which would have been within the purview of Section 377, stand

77 375. A man is said to commit “rape” if he- (a) penetrates his penis, to any extent, into the vagina, mouth, urethra
or anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or
a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with
him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the
vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,
under the circumstances falling under any of the following seven descriptions:— First.—Against her will.
Secondly.—Without her consent. Thirdly.—With her consent, when her consent has been obtained by putting her
or any person in whom she is interested, in fear of death or of hurt. Fourthly.—With her consent, when the man
knows that he is not her husband and that her consent is given because she believes that he is another man to
whom she is or believes herself to be lawfully married. Fifthly.—With her consent when, at the time of giving such
consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through
another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences
of that to which she gives consent Sixthly.—With or without her consent, when she is under eighteen years of
age. Seventhly.—When she is unable to communicate consent. Explanation 1.—For the purposes of this section,
"vagina" shall also include labia majora. Explanation 2.—Consent means an unequivocal voluntary agreement
when the woman by words, gestures or any form of verbal or non-verbal communication, communicates
willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the
act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
Exception 1.—A medical procedure or intervention shall not constitute rape. Exception 2.—Sexual intercourse or
sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.
78
Supra note 75, at pages 232-249.

40
 PART D

excluded from criminal liability when they take place in the course of

consensual heterosexual contact. Parliament has ruled against them being

regarded against the ‘order of nature’, in the context of Section 375. Yet those

acts continue to be subject to criminal liability, if two adult men or women were

to engage in consensual sexual contact. This is a violation of Article 14.

Nivedita Menon opposes the idea that ‘normal’ sexuality springs from nature

and argues that this idea of ‘normal’ sexuality is a cultural and social

construct:79

“Consider the possibility that rules of sexual conduct are as

arbitrary as traffic rules, created by human societies to
maintain a certain sort of order, and which could differ from
place to place -- for example, you drive on the left in India and
on the right in the USA. Further, let us say you question the
sort of social order that traffic rules keep in place. Say you
believe that traffic rules in Delhi are the product of a model of
urban planning that privileges the rich and penalizes the poor,
that this order encourages petrol-consuming private vehicles
and discourages forms of transport that are energy-saving --
cycles, public transport, pedestrians. You would then question
that model of the city that forces large numbers of inhabitants
to travel long distances every day simply to get to school
andwork. You could debate the merits of traffic rules and
urban planning on the grounds of convenience, equity and
sustainability of natural resources -- at least, nobody could
seriously argue that any set of traffic rules is natural.”

32 The struggle of citizens belonging to sexual minorities is located within

the larger history of the struggles against various forms of social subordination

79 Nivedita Menon, “How Natural is Normal? Feminism and Compulsory Heterosexuality”, In Because I have a Voice,
Queer Politics in India, (Narrain and Bhan eds.) Yoda Press (2005).

41
 PART E

in India. The order of nature that Section 377 speaks of is not just about non-

procreative sex but is about forms of intimacy which the social order finds

“disturbing”.80 This includes various forms of transgression such as inter-caste

and inter-community relationships which are sought to be curbed by society.

What links LGBT individuals to couples who love across caste and community

lines is the fact that both are exercising their right to love at enormous

personal risk and in the process disrupting existing lines of social authority.81

Thus, a re-imagination of the order of nature as being not only about the

prohibition of non-procreative sex but instead about the limits imposed by

structures such as gender, caste, class, religion and community makes the

right to love not just a separate battle for LGBT individuals, but a battle for

all.82

E Beyond physicality: sex, identity and stereotypes

“Only in the most technical sense is this a case about who

may penetrate whom where. At a practical and symbolical
level it is about the status, moral citizenship and sense of self-
worth of a significant section of the community. At a more
general and conceptual level, it concerns the nature of the
open, democratic and pluralistic society contemplated by the
Constitution.”83

80 Supra note 7.
81 Ibid.
82 Supra note 7.
83 The National Coalition for Gay and Lesbian Equality v. The Minister of Justice, 1999 (1) SA 6 (CC), Sachs J.,
concurring.

42
 PART E

33 The Petitioners contend that (i) Section 377 discriminates on the basis

of sex and violates Articles 15 and 16; and (ii) Discrimination on the ground of

sexual orientation is in fact, discrimination on the ground of sex. The

intervenors argue that (i) Section 377 criminalizes acts and not people; (ii) It is

not discriminatory because the prohibition on anal and oral sex applies equally

to both heterosexual and homosexual couples; and (iii) Article 15 prohibits

discrimination on the ground of ‘sex’ which cannot be interpreted so broadly

as to include ‘sexual orientation’.

34 When the constitutionality of a law is challenged on the ground that it

violates the guarantees in Part III of the Constitution, what is determinative is

its effect on the infringement of fundamental rights.84 This affords the

guaranteed freedoms their true potential against a claim by the state that the

infringement of the right was not the object of the provision. It is not the object

of the law which impairs the rights of the citizens. Nor is the form of the action

taken determinative of the protection that can be claimed. It is the effect of the

law upon the fundamental right which calls the courts to step in and remedy

the violation. The individual is aggrieved because the law hurts. The hurt to

the individual is measured by the violation of a protected right. Hence, while

84 Re. the Kerala Education Bill, AIR 1958 SC 956 at para 26; Sakal Papers v Union of India, AIR 1962 SC 305 at
para 42; R.C. Cooper v Union of India, (1970) 1 SCC 248 at paras 43, 49; Bennett Coleman v. Union of India,
AIR (1972) 2 SCC 788 at para 39; Maneka Gandhi v Union of India, (1978) 1 SCC 248 at para 19.

43
 PART E

assessing whether a law infringes a fundamental right, it is not the intention of

the lawmaker that is determinative, but whether the effect or operation of the

law infringes fundamental rights.

Article 15 of the Constitution reads thus:

“15. (1) The State shall not discriminate against any citizen on
grounds only of religion, race, caste, sex, place of birth or any
of them.” (Emphasis supplied)

Article 15 prohibits the State from discriminating on grounds only of sex. Early

judicial pronouncements adjudged whether discrimination aimed only at sex is

covered by Article 15 or whether the guarantee is attracted even to a

discrimination on the basis of sex and some other grounds (‘Sex plus’). The

argument was that since Article 15 prohibited discrimination on only specified

grounds, discrimination resulting from a specified ground coupled with other

considerations is not prohibited. The view was that if the discrimination is

justified on the grounds of sex and another factor, it would not be covered by

the prohibition in Article 15.

35 One of the earliest cases decided in 1951 was by the Calcutta High

Court in Sri Sri Mahadev Jiew v. Dr. B B Sen85. Under Order XXV, R. 1 of

the Code of Civil Procedure, men could be made liable for paying a security
85
AIR (1951) Cal. 563.

44
 PART E

cost if they did not possess sufficient movable property in India only if they

were residing outside India. However, women were responsible for paying

such security, regardless of whether or not they were residing in India. In

other words, the law drew a distinction between resident males who did not

have sufficient immovable property, and resident females who did not have

sufficient immovable property. Upholding the provision, the Calcutta High

Court held:

“31. Article 15(1) of the Constitution pro-vides, inter alia, --

The State shall not discriminate against any citizen on
grounds only of sex. The word ‘only’ in this Article is of great
importance and significance which should not be missed. The
impugned law must be shown to discriminate because of sex
alone. If other factors in addition to sex come into play in
making the discriminatory law, then such discrimination
does not, in my judgment, come within the provision of
Article 15(1) of the Constitution.” (Emphasis supplied)

This interpretation was upheld by this Court in Air India v. Nergesh Meerza

(“Nergesh Meerza”).86 Regulations 46 and 47 of the Air India Employees’

Service Regulations were challenged for causing a disparity between the pay

and promotional opportunities of men and women in-flight cabin crew. Under

Regulation 46, while the retirement age for male Flight Pursers was fifty eight,

Air Hostesses were required to retire at thirty five, or on marriage (if they

married within four years of joining service), or on their first

pregnancy, whichever occurred earlier. This period could be extended in the

86
(1981) 4 SCC 335

45
 PART E

absolute discretion of the Managing Director. Even though the two cadres

were constituted on the grounds of sex, the Court upheld the Regulations in

part and opined:

“68. Even otherwise, what Articles 15(1) and 16(2) prohibit

is that discrimination should not be made only and only
on the ground of sex. These Articles of the Constitution
do not prohibit the State from making discrimination on
the ground of sex coupled with other considerations.”
(Emphasis supplied)

36 This formalistic interpretation of Article 15 would render the

constitutional guarantee against discrimination meaningless. For it would

allow the State to claim that the discrimination was based on sex and another

ground (‘Sex plus’) and hence outside the ambit of Article 15. Latent in the

argument of the discrimination, are stereotypical notions of the differences

between men and women which are then used to justify the discrimination.

This narrow view of Article 15 strips the prohibition on discrimination of its

essential content. This fails to take into account the intersectional nature of

sex discrimination, which cannot be said to operate in isolation of other

identities, especially from the socio-political and economic context. For

example, a rule that people over six feet would not be employed in the army

would be able to stand an attack on its disproportionate impact on women if it

was maintained that the discrimination is on the basis of sex and height. Such

46
 PART E

a formalistic view of the prohibition in Article 15, rejects the true operation of

discrimination, which intersects varied identities and characteristics.

37 A divergent note was struck by this Court in Anuj Garg v. Hotel

Association of India87. Section 30 of the Punjab Excise Act, 1914 prohibited

the employment of women (and men under 25 years) in premises where liquor

or other intoxicating drugs were consumed by the public. Striking down the

law as suffering from “incurable fixations of stereotype morality and

conception of sexual role”, the Court held:

“42… one issue of immediate relevance in such cases is

the effect of the traditional cultural norms as also the
state of general ambience in the society which women
have to face while opting for an employment which is
otherwise completely innocuous for the male
counterpart...”
“43…It is state’s duty to ensure circumstances of safety
which inspire confidence in women to discharge the duty
freely in accordance to the requirements of the profession
they choose to follow. Any other policy inference (such as
the one embodied under section 30) from societal
conditions would be oppressive on the women and
against the privacy rights.” (Emphasis supplied)

The Court recognized that traditional cultural norms stereotype gender roles.

These stereotypes are premised on assumptions about socially ascribed roles

of gender which discriminate against women. The Court held that “insofar as

governmental policy is based on the aforesaid cultural norms, it is

87
(2008) 3 SCC 1

47
 PART E

constitutionally invalid.” In the same line, the Court also cited with approval,

the judgments of the US Supreme Court in Frontiero v. Richardson88, and

United States v. Virginia89, and Justice Marshall’s dissent in Dothard v.

Rawlinson90, The Court grounded the anti-stereotyping principle as firmly

rooted in the prohibition under Article 15.

In National Legal Services Authority v. Union of India (“NALSA”)91, while

dealing with the rights of transgender persons under the Constitution, this

Court opined:

“66. Articles 15 and 16 sought to prohibit discrimination

on the basis of sex, recognizing that sex discrimination
is a historical fact and needs to be addressed.
Constitution makers, it can be gathered, gave emphasis
to the fundamental right against sex discrimination so as
to prevent the direct or indirect attitude to treat people
differently, for the reason of not being in conformity with
stereotypical generalizations of binary genders. Both
gender and biological attributes constitute distinct
components of sex. Biological characteristics, of course,
include genitals, chromosomes and secondary sexual
features, but gender attributes include one’s self image, the
deep psychological or emotional sense of sexual identity and
character. The discrimination on the ground of ‘sex’ Under

88 411 U.S. 677 (1973). The case concerned a statute that allowed service-members to claim additional benefits if
their spouse was dependent on them. A male claimant would automatically be entitled to such benefits while a
female claimant would have to prove that her spouse was dependent on her for more than half his support. The
Court struck down this statute stating that the legislation violated the equal protection clause of the American
Constitution.
89 518 U.S. 515 (1996). The case concerned the Virginia Military Institute (VMI), which had a stated objected of
producing “citizen-soldiers.” However, it did not admit women. The Court held that such a provision was
unconstitutional and that there were no “fixed notions concerning the roles and abilities of males and females.”
90 433 U.S. 321 (1977).The case concerned an effective bar on females for the position of guards or correctional
counsellors in the Alabama State Penitentiary system. Justice Marshall’s dissent held that prohibition of women in
‘contact positions’ violated the Title VII guarantee.
91
(2014) 5 SCC 438

48
 PART E

Articles 15 and 16, therefore, includes discrimination on the

ground of gender identity.” (Emphasis supplied)

This approach, in my view, is correct.

In Nergesh Meerza, this Court held that where persons of a particular class,

in view of the “special attributes, qualities” are treated differently in ‘public

interest’, such a classification would not be discriminatory. The Court opined

that since the modes of recruitment, promotional avenues and other matters

were different for Air Hostesses, they constituted a class separate from male

Flight Pursers. This, despite noting that “a perusal of the job functions which

have been detailed in the affidavit, clearly shows that the functions of the two,

though obviously different overlap on some points but the difference, if any, is

one of degree rather than of kind.”

38 The Court did not embark on the preliminary enquiry as to whether the

initial classification between the two cadres, being grounded in sex, was

violative of the constitutional guarantee against discrimination. Referring

specifically to the three significant disabilities that the Regulations imposed on

Air Hostesses, the Court held that “there can be no doubt that these peculiar

conditions do form part of the Regulations governing Air Hostesses but once

we have held that Air Hostesses form a separate category with different and

49
 PART E

separate incidents the circumstances pointed out by the petitioners cannot

amount to discrimination so as to violate Article 14 of the Constitution on this

ground.”

39 The basis of the classification was that only men could become male

Flight Pursers and only women could become Air Hostesses. The very

constitution of the cadre was based on sex. What this meant was, that to pass

the non-discrimination test found in Article 15, the State merely had to create

two separate classes based on sex and constitute two separate cadres. That

would not be discriminatory.

The Court went a step ahead and opined:

“80…Thus, the Regulation permits an AH to marry at the age

of 23 if she has joined the service at the age of 19 which is by
all standards a very sound and salutary provision. Apart from
improving the health of the employee, it helps a good in
the promotion and boosting up of our family planning
programme. Secondly, if a woman marries near about the
age of 20 to 23 years, she becomes fully mature and
there is every chance of such a marriage proving a
success, all things being equal. Thirdly, it has been
rightly pointed out to us by the Corporation that if the bar
of marriage within four years of service is removed then
the Corporation will have to incur huge expenditure in
recruiting additional AHs either on a temporary or on ad
hoc basis to replace the working AHs if they conceive
and any period short of four years would be too little a
time for the Corporation to phase out such an ambitious
plan.” (Emphasis supplied)

50
 PART E

40 A strong stereotype underlines the judgment. The Court did not

recognize that men were not subject to the same standards with respect to

marriage. It holds that the burdens of health and family planning rest solely on

women. This perpetuates the notion that the obligations of raising family are

those solely of the woman. In dealing with the provision for termination of

service on the first pregnancy, the Court opined that a substituted provision for

termination on the third pregnancy would be in the “larger interest of the

health of the Air Hostesses concerned as also for the good upbringing of the

children.” Here again, the Court’s view rested on a stereotype. The patronizing

attitude towards the role of women compounds the difficulty in accepting the

logic of Nergesh Meerza. This approach, in my view, is patently incorrect.

41 A discriminatory act will be tested against constitutional values. A

discrimination will not survive constitutional scrutiny when it is grounded in

and perpetuates stereotypes about a class constituted by the grounds

prohibited in Article 15(1). If any ground of discrimination, whether direct or

indirect is founded on a stereotypical understanding of the role of the sex, it

would not be distinguishable from the discrimination which is prohibited by

Article 15 on the grounds only of sex. If certain characteristics grounded in

stereotypes, are to be associated with entire classes of people constituted as

groups by any of the grounds prohibited in Article 15(1), that cannot establish

51
 PART E

a permissible reason to discriminate. Such a discrimination will be in violation

of the constitutional guarantee against discrimination in Article 15(1). That

such a discrimination is a result of grounds rooted in sex and other

considerations, can no longer be held to be a position supported by the

intersectional understanding of how discrimination operates. This infuses

Article 15 with true rigour to give it a complete constitutional dimension in

prohibiting discrimination.

The approach adopted the Court in Nergesh Meerza, is incorrect.

A provision challenged as being ultra vires the prohibition of discrimination on

the grounds only of sex under Article 15(1) is to be assessed not by the

objects of the state in enacting it, but by the effect that the provision has on

affected individuals and on their fundamental rights. Any ground of

discrimination, direct or indirect, which is founded on a particular

understanding of the role of the sex, would not be distinguishable from the

discrimination which is prohibited by Article 15 on the grounds only of sex.

E.I Facial neutrality: through the looking glass

42 The moral belief which underlies Section 377 is that sexual activities

which do not result in procreation are against the ‘order of nature’ and ought

52
 PART E

to be criminalized under Section 377. The intervenors submit that Section

377, criminalizes anal and oral sex by heterosexual couples as well. Hence, it

is urged that Section 377 applies equally to all conduct against the ‘order of

nature’, irrespective of sexual orientation. This submission is incorrect. In

NALSA this Court held that Section 377, though associated with specific

sexual acts, highlights certain identities. In Naz, the Delhi High Court

demonstrated effectively how Section 377 though facially neutral in its

application to certain acts, targets specific communities in terms of its impact:

“Section 377 IPC is facially neutral and it apparently

targets not identities but acts, but in its operation it does
end up unfairly targeting a particular community. The fact
is that these sexual acts which are criminalised are
associated more closely with one class of persons,
namely, the homosexuals as a class. Section 377 IPC has
the effect of viewing all gay men as criminals. When everything
associated with homosexuality is treated as bent, queer,
repugnant, the whole gay and lesbian community is marked
with deviance and perversity. They are subject to extensive
prejudice because what they are or what they are
perceived to be, not because of what they do. The result is
that a significant group of the population is, because of its
sexual nonconformity, persecuted, marginalised and
turned in on itself.”92 (Emphasis supplied)

To this end, it chronicled the experiences of the victims of Section 377, relying

on the extensive records and affidavits submitted by the Petitioners that

brought to fore instances of custodial rape and torture, social boycott,

degrading and inhuman treatment and incarceration. The court concluded that

while Section 377 criminalized conduct, it created a systemic pattern of

92
Naz, at para 94.

53
 PART E

disadvantage, exclusion and indignity for the LGBT community, and for

individuals who indulge in non-heterosexual conduct.

43 Jurisprudence across national frontiers supports the principle that

facially neutral action by the State may have a disproportionate impact upon a

particular class. In Europe, Directive 2006/54/EC of the European

Parliament and of the Council of 5 July 2006 defines ‘indirect

discrimination’ as: “where an apparently neutral provision, criterion or practice

would put persons of one sex at a particular disadvantage compared with

persons of the other sex, unless that provision, criterion or practice is

objectively justified by a legitimate aim, and the means of achieving that aim

are appropriate and necessary.”

In Griggs v Duke Power Co.93, the US Supreme Court, whilst recognizing

that African-Americans received sub-standard education due to segregated

schools, opined that the requirement of an aptitude/intelligence test

disproportionately affected African-American candidates. The Court held that

“The Civil Rights Act” proscribes not only overt discrimination but also

practices that are fair in form, but discriminatory in operation.”

93
401 U.S. 424 (1971)

54
 PART E

In Bilka-Kaufhaus GmbH v. Karin Weber von Hartz94, the European Court

of Justice held that denying pensions to part-time employees is more likely to

affect women, as women were more likely to take up part-time jobs. The Court

noted:

“Article 119 of the EEC Treaty is infringed by a department

store company which excludes part-time employees from its
occupational pension scheme, where that exclusion affects
a far greater number of women than men, unless the
undertaking shows that the exclusion is based on objectively
justified factors unrelated to any discrimination on grounds of
sex.” (Emphasis supplied)

The Canadian Supreme Court endorsed the notion of a disparate impact

where an action has a disproportionate impact on a class of persons. In

Andrews v. Law Society of British Columbia95, the Court noted:

“Discrimination is a distinction which, whether intentional or

not but based on grounds relating to personal characteristics
of the individual or group, has an effect which imposes
disadvantages not imposed upon others or which withholds or
limits access to advantages available to other members of
society. Distinctions based on personal characteristics
attributed to an individual solely on the basis of
association with a group will rarely escape the charge of
discrimination, while those based on an individual's merits
and capacities will rarely be so classed.” (Emphasis supplied)

Thus, when an action has “the effect of imposing burdens, obligations, or

disadvantages on such individual or group not imposed upon others, or which

94 (1986) ECR 1607

95
(1989) 1 SCR 143

55
 PART E

withholds or limits access to opportunities, benefits, and advantages available

to other members of society”,96 it would be suspect.

In City Council of Pretoria v. Walker97, the Constitutional Court of South

Africa observed:

“The concept of indirect discrimination, … was developed

precisely to deal with situations where discrimination lay
disguised behind apparently neutral criteria or where
persons already adversely hit by patterns of historic
subordination had their disadvantage entrenched or
intensified by the impact of measures not overtly
intended to prejudice them.

In many cases, particularly those in which indirect

discrimination is alleged, the protective purpose would
be defeated if the persons complaining of discrimination
had to prove not only that they were unfairly
discriminated against but also that the unfair
discrimination was intentional. This problem would be
particularly acute in cases of indirect discrimination
where there is almost always some purpose other than
a discriminatory purpose involved in the conduct or
action to which objection is taken.”
(Emphasis supplied)

E.2 Deconstructing the polarities of binary genders

44 Section 377 criminalizes behaviour that does not conform to the

heterosexual expectations of society. In doing so it perpetuates a symbiotic

relationship between anti-homosexual legislation and traditional gender roles.

96 Ibid.
97
(1998) 3 BCLR 257

56
 PART E

The notion that the nature of relationships is fixed and within the ‘order of

nature’ is perpetuated by gender roles, thus excluding homosexuality from the

narrative. The effect is described as follows:

“Cultural homophobia thus discourages social behavior that

appears to threaten the stability of heterosexual gender roles.
These dual normative standards of social and sexual
behavior construct the image of a gay man as abnormal
because he deviates from the masculine gender role by
subjecting himself in the sexual act to another man.”98

If individuals as well as society hold strong beliefs about gender roles – that

men (to be characteristically reductive) are unemotional, socially dominant,

breadwinners that are attracted to women and women are emotional, socially

submissive, caretakers that are attracted to men – it is unlikely that such

persons or society at large will accept that the idea that two men or two

women could maintain a relationship. If such a denial is further grounded in a

law, such as Article 377 the effect is to entrench the belief that homosexuality

is an aberration that falls outside the ‘normal way of life.’

45 An instructive article by Zachary A. Kramer,99 notes that a heterosexist

society both expects and requires men and women to engage in only

opposite-sex sexual relationships. The existence of same-sex relationships is,

98 Elvia R. Arriola, “Gendered Inequality: Lesbians, Gays, and Feminist Legal Theory”, Berkeley Women’s Law
Journal, Vol. 9 (1994), at pages 103-143.
99 Zachary A. Kramer, “The Ultimate Gender Stereotype: Equalizing Gender-Conforming and Gender-Nonconforming
Homosexuals under Title VII”, University of Illinois Law Review (2004), at page 490.

57
 PART E

therefore, repugnant to heterosexist societal expectations. Kramer argues

that:

“Discrimination against gays and lesbians reinforces

traditional sex roles. The primary thrust of such discrimination
is the gender-based stigmatization of gays and lesbians,
deriving from the idea that homosexuality departs from
traditional gender roles and that “real” men and women
should not be attracted to a member of the same sex. This
portrayal relies heavily on what Bennett Capers calls the
“binary gender system.”100

46 Bennett Capers defines the binary gender system as based in

“heterosexism,” which he defines as the “institutionalized valorization of

heterosexual activity.” Capers, in fact suggests that:

“The sanctioning of discrimination based on sexual orientation

perpetuates the subordination not only of lesbians and gays
but of women as well.

Heterosexism, then, in its reliance on a bipolar system of sex

and gender, reinforces sexism in two ways. First, by
penalizing persons who do not conform to a bipolar gender
system and rewarding men and women who do, the
heterosexist hegemony perpetuates a schema that valorizes
passive, dependent women, thus contributing to sexism.
Second, heterosexism reinforces sexism because it
subordinates the female sex through its hierarchical polarity.
Because heterosexism perpetuates sexism, the extension of
substantial rights to lesbians and gays, who by definition
challenge heterosexism and the concept of a binary gender
system, would result in a challenge to sexism and to male
power.” 101

100 Ibid.
101 Bennett Capers, “Note, Sexual Orientation and Title VII”, Columbia Law Review (1991), at pages 1159, 1160,
1163.

58
 PART E

In other words, one cannot simply separate discrimination based on sexual

orientation and discrimination based on sex because discrimination based on

sexual orientation inherently promulgates ideas about stereotypical notions of

sex and gender roles. Taking this further, Andrew Koppelman argues that:

“Similarly, sodomy laws discriminate on the basis of sex-for

example, permitting men, but not women, to have sex with
women-in order to impose traditional sex roles. The Court has
deemed this purpose impermissible in other contexts because
it perpetuates the subordination of women. The same
concern applies with special force to the sodomy laws,
because their function is to maintain the polarities of gender
on which the subordination of women depends.”102

Koppelman thus suggests that the taboo against homosexuals “polices the

boundaries that separate the dominant from the dominated in a social

hierarchy.”103 He expands on this idea, using the analogy of miscegenation, or

the interbreeding of races:

“Do statutes that outlaw homosexual sex impose traditional

sex roles? One possible answer is that of McLaughlin
[McLaughlin v. Florida]: The crime is by definition one of
engaging in activity inappropriate to one's sex. But these
statutes' inconsistency with the Constitution's command of
equality is deeper. Like the miscegenation statutes, the
sodomy statutes reflect and reinforce the morality of a
hierarchy based on birth. Just as the prohibition of
miscegenation preserved the polarities of race on which white
supremacy rested, so the prohibition of sodomy preserves the
polarities of gender on which rests the subordination of
women.”104

102 Andrew Koppelman, “The Miscegenation Analogy: Sodomy Law as Sex Discrimination”, Yale Law Journal, Vol.
98 (1988), at page 147.
103 Andrew Koppelman, “Why Discrimination against Lesbians and Gay Men is Sex Discrimination”, New York
University Law Review, Vol. 69 (1994).
104
Supra note 102, at page 148.

59
 PART E

Statutes like Section 377 give people ammunition to say “this is what a man

is” by giving them a law which says “this is what a man is not.” Thus, laws that

affect non-heterosexuals rest upon a normative stereotype: “the bald

conviction that certain behavior-for example, sex with women-is appropriate

for members of one sex, but not for members of the other sex.” 105

What this shows us is that LGBT individuals as well as those who do not

conform to societal expectations of sexual behaviour defy gender stereotypes.

“The construction of gender stereotypes ultimately rests on the

assumption that there are two opposite and mutually exclusive
biological sexes. The assumption of heterosexuality is central
to this gender binary. In a patriarchal context, some of the
most serious transgressors are thus: a woman who renounces
a man sexual partner or an individual assigned female at birth
who renounces womanhood, thereby rejecting the patriarchal
system and all other forms of male supervision and control,
and an individual assigned male at birth who embraces
womanhood, thereby abandoning privilege in favor of that
which is deemed subservient, femininity.”106

Prohibition of sex discrimination is meant to change traditional practices which

legally, and often socially and economically, disadvantage persons on the

basis of gender. The case for gay rights undoubtedly seeks justice for gays.

But it goes well beyond the concern for the gay community. The effort to end

105 Ibid.
106 The Relationship between Homophobia, Transphobia, and Women’s Access to Justice for the Forthcoming
CEDAW General Recommendation on Women’s Access to Justice. Submitted to the United Nations Committee
for the Elimination of All Forms of Discrimination against Women (2013).

60
 PART E

discrimination against gays should be understood as a necessary part of the

larger effort to end the inequality of the sexes.

“To be a lesbian is to be perceived (labelled) as someone

who has stepped out of line, who has moved out of
sexual/economic dependence on a male, who is woman-
identified. A lesbian is perceived as someone who can live
without a man, and who is therefore (however illogically)
against men. A lesbian is perceived as being outside the
acceptable, routinized order of things. She is seen as
someone who has no societal institutions to protect her and
who is not privileged to the protection of individual males. A
lesbian is perceived as a threat to the nuclear family, to male
dominance and control, to the very heart of sexism.”107

Commenting on its link with the essence of Article 15, Tarunabh Khaitan

writes:

“But the salience of a case on discrimination against a

politically disempowered minority, based purely on the
prejudices of a majority, goes beyond the issue of LGBTQ
rights. Indian constitutional democracy is at a
crossroads…Inclusiveness and pluralism lie at the heart of
Article 15, which can be our surest vehicle for the Court to
lend its institutional authority to the salience of these ideas in
our constitutional identity.”108

47 Relationships that tend to undermine the male/female divide are

inherently required for the maintenance of a socially imposed gender

inequality. Relationships which question the divide are picked up for target

and abuse. Section 377 allows this. By attacking these gender roles,

members of the affected community, in their move to build communities and

107 Suzanne Pharr, Homophobia: A weapon of Sexism, Chardon Press (1988), at page18.
108 Tarunabh Khaitan, “Inclusive Pluralism or Majoritarian Nationalism: Article 15, Section 377 and Who We Really
Are”, Indian Constitutional Law and Philosophy (2018).

61
 PART E

relationships premised on care and reciprocity, lay challenge to the idea that

relationships, and by extension society, must be divided along hierarchical

sexual roles in order to function. For members of the community, hostility and

exclusion aimed at them, drive them into hiding, away from public expression

and view. It is this discrimination faced by the members of the community,

which results in silence, and consequently invisibility, creating barriers,

systemic and deliberate, that effect their participation in the work force and

thus undermines substantive equality. In the sense that the prohibition of

miscegenation was aimed to preserve and perpetuate the polarities of race to

protect white supremacy, the prohibition of homosexuality serves to ensure a

larger system of social control based on gender and sex.

48 A report prepared by the International Commission of Jurists109 has

documented the persecution faced by the affected community due to the

operation of Section 377. The report documents numerous violations inflicted

on people under the authority of Section 377. According to the National Crime

Records Bureau, 1279 persons in 2014 and 1491 in 2015 were arrested under

Section 377.110

109 International Commission of Jurists, “Unnatural Offences” Obstacles to Justice in India Based on Sexual
Orientation and Gender Identity (2017).
110
Ibid, at page 16.

62
 PART E

The report documents instances of abuse from law enforcement agencies and

how the possibility of persecution under Section 377 prevents redress.111

Even though acts such as blackmail, assault, and bodily crimes are

punishable under penal laws, such methods of seeking redressal are not

accessed by those communities given the fear of retaliation or prosecution.

49 The petitioners in the present batch of cases have real life narrations of

suffering discrimination, prejudice and hate. In Anwesh Pokkuluri v. UOI112,

with which this case is connected, the Petitioners are a group of persons

belonging to the LGBTQ community, each of whom has excelled in their fields

but suffer immensely due to the operation of Section 377. To cope with the

growing isolation among the community, these Petitioners, all alumni of Indian

Institutes of Technology across the country, created a closed group called

“Pravritti”. The group consists of persons from the LGBTQ community. They

are faculty members, students, alumni and anyone who has ever stayed on

the campus of any IIT in the country. The group was formed in 2012 to help

members cope with loneliness and difficulties faced while accepting their

identity along with holding open discussions on awareness.

111 Ibid, at pages 16 – 18.

112
Writ Petition (Criminal) No. 121 of 2018.

63
 PART E

50 Out of twenty Petitioners, sixteen are gay, two are bisexual women and

one is a bisexual man. One among the Petitioners is a transwoman. Three of

the Petitioners explain that they suffered immense mental agony due to which

they were on the verge of committing suicide. Another two stated that

speaking about their sexual identity has been difficult, especially since they

did not have the support of their families, who, upon learning of their sexual

orientation, took them for psychiatric treatment to cure the so-called “disease.”

The families of three Petitioners ignored their sexual identity. One of them

qualified to become an Indian Administrative Services officer in an

examination which more than 4,00,000 people write each year. But he chose

to forgo his dream because of the fear that he would be discriminated against

on the ground of his sexuality. Some of them have experienced depression;

others faced problems focusing on their studies while growing up; one among

them was forced to drop out of high school as she was residing in a girl’s

hostel where the authorities questioned her identity. The parents of one of

them brushed his sexuality under the carpet and suggested that he marry a

woman. Some doubted whether or not they should continue their relationships

given the atmosphere created by Section 377. Several work in organisations

that have policies protecting the LGBT community in place. Having faced so

much pain in their personal lives, the Petitioners submit that with the

continued operation of Section 377, such treatment will be unabated.

64
 PART E

51 In Navtej Johar v. Union of India113, with which this case is concerned,

the Petitioners have set out multiple instances of discrimination and expulsion.

The following is a realistic account:

“While society, friends and family are accepting of my

sexuality, I cannot be fully open about my identity and my
relationships because I constantly fear arrest and violence by
the police…Without the existence of this section, the social
prejudice and shame that I have faced would have been
considerably lessened…the fact that gay people, like me, are
recognized only as criminals is deeply upsetting and denies
me the dignity and respect that I feel I deserve.114

Apart from the visible social manifestations of Section 377, the retention of the

provision perpetuates a certain culture. The stereotypes fostered by section

377 have an impact on how other individuals and non-state institutions treat

the community. While this behaviour is not sanctioned by Section 377, the

existence of the provision nonetheless facilitates it by perpetuating

homophobic attitudes and making it almost impossible for victims of abuse to

access justice. Thus, the social effects of such a provision, even when it is

enforced with zeal, is to sanction verbal harassment, familial fear, restricted

access to public spaces and the lack of safe spaces. This results in a denial of

the self. Identities are obliterated, denying the entitlement to equal

participation and dignity under the Constitution. Section 377 deprives them of

an equal citizenship. Referring to the effect of Foucault’s panopticon in

113 Writ Petition (Criminal) No. 76 of 2016.

114
Written Submission on Behalf of the Voices Against 377, in W.P. (CRL.) No. 76/2016 at page 18.

65
 PART E

inducing “a state of conscious and permanent visibility that assures the

automatic functioning of power”,115 Ryan Goodman writes:

“The state's relationship to lesbian and gay individuals under

a regime of sodomy laws constructs a similar, yet dispersed,
structure of observation and surveillance. The public is
sensitive to the visibility of lesbians and gays as socially
and legally constructed miscreants. Admittedly certain
individuals, namely those who are certified with various
levels of state authority, are more directly linked to the
extension of law's power. Yet the social effects of
sodomy laws are not tied to these specialized agents
alone. On the ground level, private individuals also
perform roles of policing and controlling lesbian and gay
lives in a mimetic relation to the modes of justice
itself.”116 (Emphasis supplied)

The effect of Section 377, thus, is not merely to criminalize an act, but to

criminalize a specific set of identities. Though facially neutral, the effect of the

provision is to efface specific identities. These identities are the soul of the

LGBT community.

52 The Constitution envisaged a transformation in the order of relations not

just between the state and the individual, but also between individuals: in a

constitutional order characterized by the Rule of Law, the constitutional

commitment to egalitarianism and an anti-discriminatory ethos permeates and

infuses these relations. In K S Puttaswamy v. Union of India

115 Michel Foucault, Discipline And Punish: the Birth of the Prison, Pantheon Books (1977) at page 201.
116 Ryan Goodman, “Beyond the Enforcement Principle: Sodomy Laws, Social Norms, and Social Panoptics”,
California Law Review, Vol. 89 (2001), at page 688.

66
 PART E

(“Puttaswamy”)117, this Court affirmed the individual as the bearer of the

constitutional guarantee of rights. Such rights are devoid of their guarantee

when despite legal recognition, the social, economic and political context

enables an atmosphere of continued discrimination. The Constitution enjoins

upon every individual a commitment to a constitutional democracy

characterized by the principles of equality and inclusion. In a constitutional

democracy committed to the protection of individual dignity and autonomy, the

state and every individual has a duty to act in a manner that advances and

promotes the constitutional order of values.

By criminalizing consensual sexual conduct between two homosexual adults,

Section 377 has become the basis not just of prosecutions but of the

persecution of members of the affected community. Section 377 leads to the

perpetuation of a culture of silence and stigmatization. Section 377

perpetuates notions of morality which prohibit certain relationships as being

against the ‘order of nature.’ A criminal provision has sanctioned

discrimination grounded on stereotypes imposed on an entire class of persons

on grounds prohibited by Article 15(1). This constitutes discrimination on the

grounds only of sex and violates the guarantee of non-discrimination in Article

15(1)

117
(2017) 10 SCC 1

67
 PART F

53 History has been witness to a systematic stigmatization and exclusion of

those who do not conform to societal standards of what is expected of them.

Section 377 rests on deep rooted gender stereotypes. In the quest to assert

their liberties, people criminalized by the operation of the provision, challenge

not only its existence, but also a gamut of beliefs that are strongly rooted in

majoritarian standards of what is ‘normal’. In this quest, the attack on the

validity of Section 377 is a challenge to a long history of societal discrimination

and persecution of people based on their identities. They have been

subjugated to a culture of silence and into leading their lives in closeted

invisibility. There must come a time when the constitutional guarantee of

equality and inclusion will end the decades of discrimination practiced, based

on a majoritarian impulse of ascribed gender roles. That time is now.

F Confronting the closet

54 The right to privacy is intrinsic to liberty, central to human dignity and

the core of autonomy. These values are integral to the right to life under

Article 21 of the Constitution. A meaningful life is a life of freedom and self-

respect and nurtured in the ability to decide the course of living. In the nine

judge Bench decision in Puttaswamy, this Court conceived of the right to

privacy as natural and inalienable. The judgment delivered on behalf of four

judges holds:

68
 PART F

“Privacy is a concomitant of the right of the individual to

exercise control over his or her personality. It finds an origin
in the notion that there are certain rights which are natural to
or inherent in a human being. Natural rights are inalienable
because they are inseparable from the human personality.
The human element in life is impossible to conceive without
the existence of natural rights…”118

Justice Bobde, in his exposition on the form of the ‘right to privacy’ held thus:

“Privacy, with which we are here concerned, eminently

qualifies as an inalienable natural right, intimately connected
to two values whose protection is a matter of universal moral
agreement: the innate dignity and autonomy of man.”119

Justice Nariman has written about the inalienable nature of the right to

privacy:

“…Fundamental rights, on the other hand, are contained in

the Constitution so that there would be rights that the citizens
of this country may enjoy despite the governments that they
may elect. This is all the more so when a particular
fundamental right like privacy of the individual is an
“inalienable” right which inheres in the individual because he
is a human being. The recognition of such right in the
fundamental rights chapter of the Constitution is only a
recognition that such right exists notwithstanding the shifting
sands of majority governments…”120

Justice Sapre, in his opinion, has also sanctified ‘privacy’ as a natural right:

“In my considered opinion, “right to privacy of any individual”

is essentially a natural right, which inheres in every human
being by birth... It is indeed inseparable and inalienable…it is
born with the human being…”121

118 Puttaswamy, at para 42.

119 Puttaswamy, at para 392.
120 Puttaswamy, at para 490.
121
Puttaswamy at para 557.

69
 PART F

These opinions establish that the right to privacy is a natural right. The

judgment of four judges in Puttaswamy held that the right to sexual

orientation is an intrinsic part of the right to privacy. To define the scope of the

right, it is useful to examine the discussion on the right to sexual orientation in

judicial precedents of this Court.

55 Speaking for a two judge Bench in NALSA, Justice K S Radhakrishnan

elucidated upon the term ‘sexual orientation’ as differentiable from an

individual’s ‘gender identity’, noting that:

“Sexual orientation refers to an individual’s enduring physical,

romantic and/or emotional attraction to another person.
Sexual orientation includes transgender and gender-variant
people with heavy sexual orientation and their sexual
orientation may or may not change during or after gender
transmission, which also includes homo-sexuals, bysexuals,
heterosexuals, asexual etc. Gender identity and sexual
orientation, as already indicated, are different concepts. Each
person’s self-defined sexual orientation and gender identity is
integral to their personality and is one of the most basic
aspects of self-determination, dignity and freedom…”122

Puttaswamy rejected the “test of popular acceptance” employed by this Court

in Koushal and affirmed that sexual orientation is a constitutionally

guaranteed freedom:

“…The guarantee of constitutional rights does not depend

upon their exercise being favourably regarded by majoritarian
opinion. The test of popular acceptance does not furnish a
valid basis to disregard rights which are conferred with the
sanctity of constitutional protection. Discrete and insular

122
NALSA, at para 22.

70
 PART F

minorities face grave dangers of discrimination for the simple

reason that their views, beliefs or way of life do not accord
with the ‘mainstream’. Yet in a democratic Constitution
founded on the rule of law, their rights are as sacred as those
conferred on other citizens to protect their freedoms and
liberties. Sexual orientation is an essential attribute of privacy.
Discrimination against an individual on the basis of sexual
orientation is deeply offensive to the dignity and self-worth of
the individual. Equality demands that the sexual orientation of
each individual in society must be protected on an even
platform. The right to privacy and the protection of sexual
orientation lie at the core of the fundamental rights
guaranteed by Articles 14, 15 and 21 of the Constitution.”123

Rejecting the notion that the rights of the LGBT community can be construed

as illusory, the court held that the right to privacy claimed by sexual minorities

is a constitutionally entrenched right:

“…The rights of the lesbian, gay, bisexual and transgender

population cannot be construed to be “so-called rights”. The
expression “so-called” seems to suggest the exercise of a
liberty in the garb of a right which is illusory. This is an
inappropriate construction of the privacy based claims of the
LGBT population. Their rights are not “so-called” but are real
rights founded on sound constitutional doctrine. They inhere
in the right to life. They dwell in privacy and dignity. They
constitute the essence of liberty and freedom. Sexual
orientation is an essential component of identity. Equal
protection demands protection of the identity of every
individual without discrimination.”124

Justice Kaul, concurring with the recognition of sexual orientation as an

aspect of privacy, noted that:

“…The sexual orientation even within the four walls of the

house thus became an aspect of debate. I am in agreement
with the view of Dr. D.Y. Chandrachud, J., who in paragraphs
144 to 146 of his judgment, states that the right of privacy

123 Puttaswamy, at para 144.

124
Puttaswamy, at para 145.

71
 PART F

cannot be denied, even if there is a miniscule fraction of the

population which is affected. The majoritarian concept does
not apply to Constitutional rights and the Courts are often
called up on to take what may be categorized as a non-
majoritarian view, in the check and balance of power
envisaged under the Constitution of India. One’s sexual
orientation is undoubtedly an attribute of privacy…”125

With these observations by five of the nine judges in Puttaswamy, the basis

on which Koushal upheld the validity of Section 377 stands eroded and even

disapproved.

56 We must now consider the impact of Section 377 on the exercise of the

right to privacy by sexual minorities. Legislation does not exist in a vacuum.

The social ramifications of Section 377 are enormous. While facially Section

377 only criminalizes certain “acts”, and not relationships, it alters the prism

through which a member of the LGBTQ is viewed. Conduct and identity are

conflated.126 The impact of criminalising non-conforming sexual relations is

that individuals who fall outside the spectrum of heteronormative127 sexual

identity are perceived as criminals.128

57 World over, sexual minorities have struggled to find acceptance in the

heteronormative structure that is imposed by society. In her book titled

125 Puttaswamy, at para 647.

126 Supra note 116, at page 689.
127 The expression heteronormative is used to denote or relate to a world view that promotes heterosexuality as the

normal or preferred sexual orientation.

128
Supra note 116, at page 689.

72
 PART F

‘Epistemology of the Closet’,129 Eve Sedgwick states that “the closet is the

defining structure for gay oppression in this century.” The closet is symbolic

of the exclusion faced by them:

“Closets exist and they hide social information. They hide

certain socially proscribed sexual desires, certain unnamable
sexual acts deemed ‘unnatural‘ by the cultural context and
law, certain identities which dare not speak their name and
certain forms of behaviour which can make an individual
susceptible to stigma and oppression. The closet does not
simply hide this susceptibility; it hides stigma and oppression
itself. It marks the silencing of different voices, a silence
which is achieved by a gross violation of lives that inhabit the
closet, through both violence and pain inflicted by significant
others both within and without the closet and instances of
self-inflicted pain and violence. The closet also hides
pleasure, myriad sexual expressions and furtive encounters
that gratify the self. The closet also conceals the possibility of
disease and death.”130

The existing heteronormative framework – which recognises only sexual

relations that conform to social norms – is legitimized by the taint of

‘unnaturalness’ that Section 377 lends to sexual relations outside this

framework. The notion of ‘unnatural acts’, viewed in myopic terms of a “fixed

procreational model of sexual functioning”, is improperly applied to sexual

relations between consenting adults.131 Sexual activity between adults and

based on consent must be viewed as a “natural expression” of human sexual

competences and sensitivities.132 The refusal to accept these acts amounts to

129 Eve Kosofsky Sedgwick, Epistemology of the Closet, University of California Press (1990).
130 Supra note 65, at page 102.
131 David A. J. Richards, “Sexual Autonomy and the Constitutional Right to Privacy: A Case Study in Human Rights

and the Unwritten Constitution”, Hastings Law Journal, Vol. 30, at page 786.
132
Ibid.

73
 PART F

a denial of the distinctive human capacities for sensual experience outside of

the realm of procreative sex.133

58 To deny the members of the LGBT community the full expression of the

right to sexual orientation is to deprive them of their entitlement to full

citizenship under the Constitution. The denial of the right to sexual orientation

is also a denial of the right to privacy. The application of Section 377 causes a

deprivation of the fundamental right to privacy which inheres in every citizen.

This Court is entrusted with the duty to act as a safeguard against such

violations of human rights. Justice Chelameswar, in his judgement in

Puttaswamy, held that:

“To sanctify an argument that whatever is not found in the text

of the Constitution cannot become a part of the Constitution
would be too primitive an understanding of the Constitution
and contrary to settled cannons of constitutional
interpretation. Such an approach regarding the rights and
liberties of citizens would be an affront to the collective
wisdom of our people and the wisdom of the members of the
Constituent Assembly...”134

59 The exercise of the natural and inalienable right to privacy entails

allowing an individual the right to a self-determined sexual orientation. Thus, it

is imperative to widen the scope of the right to privacy to incorporate a right to

‘sexual privacy’ to protect the rights of sexual minorities. Emanating from the

133 Ibid.
134
Puttaswamy, at Para 350.

74
 PART F

inalienable right to privacy, the right to sexual privacy must be granted the

sanctity of a natural right, and be protected under the Constitution as

fundamental to liberty and as a soulmate of dignity.

60 Citizens of a democracy cannot be compelled to have their lives pushed

into obscurity by an oppressive colonial legislation. In order to ensure to

sexual and gender minorities the fulfilment of their fundamental rights, it is

imperative to ‘confront the closet’ and, as a necessary consequence, confront

‘compulsory heterosexuality.’135 Confronting the closet would entail

“reclaiming markers of all desires, identities and acts which challenge it.”136 It

would also entail ensuring that individuals belonging to sexual minorities,

have the freedom to fully participate in public life, breaking the invisible barrier

that heterosexuality imposes upon them. The choice of sexuality is at the core

of privacy. But equally, our constitutional jurisprudence must recognise that

the public assertion of identity founded in sexual orientation is crucial to the

exercise of freedoms.

61 In conceptualising a right to sexual privacy, it is important to consider

how the delineation of ‘public’ and ‘private’ spaces affects the lives of the

LGBTIQ community. Members of the community have argued that to base

135 Supra note 65, at page 103.

136
Ibid.

75
 PART F

their claims on a right to privacy is of no utility to individuals who do not

possess the privilege of a private space.137 In fact, even for individuals who

have access to private spaces the conflation of ‘private’ with home and family

may be misplaced.138 The home is often reduced to a public space as

heteronormativity within the family can force the individual to remain inside

the closet.139 Thus, even the conception of a private space for certain

individuals is utopian.140

62 Privacy creates “tiers of ‘reputable’ and ‘disreputable’ sex”, only

granting protection to acts behind closed doors.141 Thus, it is imperative that

the protection granted for consensual acts in private must also be available in

situations where sexual minorities are vulnerable in public spaces on account

of their sexuality and appearance.142 If one accepts the proposition that public

places are heteronormative, and same-sex sexual acts partially closeted,

relegating ‘homosexual‘ acts into the private sphere, would in effect reiterate

the “ambient heterosexism of the public space.”143 It must be acknowledged

that members belonging to sexual minorities are often subjected to

137 Danish Sheikh, “Queer Rights and the Puttaswamy Judgement”, Economic and Political Weekly, Vol. 52 (2017), at
page 51.
138 Supra note 65, at page 101.
139
Ibid.
140 Ibid.
141 Supra note 137, at page 51.
142 Saptarshi Mandal, “‘Right To Privacy’ In Naz Foundation: A Counter-Heteronormative Critique”, NUJS Law

Review, Vol. 2 (2009), at page 533.

143
Supra note 65, at page 100.

76
 PART F

harassment in public spaces.144 The right to sexual privacy, founded on the

right to autonomy of a free individual, must capture the right of persons of the

community to navigate public places on their own terms, free from state

interference.

F.I Sexual privacy and autonomy- deconstructing the heteronormative

framework

63 In the absence of a protected zone of privacy, individuals are forced to

conform to societal stereotypes. Puttaswamy has characterised the right to

privacy as a shield against forced homogeneity and as an essential attribute

to achieve personhood:

“…Recognizing a zone of privacy is but an acknowledgment

that each individual must be entitled to chart and pursue the
course of development of personality. Hence privacy is a
postulate of human dignity itself. Thoughts and behavioural
patterns which are intimate to an individual are entitled to a
zone of privacy where one is free of social expectations. In
that zone of privacy, an individual is not judged by others.
Privacy enables each individual to take crucial decisions
which find expression in the human personality. It enables
individuals to preserve their beliefs, thoughts, expressions,
ideas, ideologies, preferences and choices against societal
demands of homogeneity. Privacy is an intrinsic recognition of
heterogeneity, of the right of the individual to be different and
to stand against the tide of conformity in creating a zone of
solitude. Privacy protects the individual from the searching
glare of publicity in matters which are personal to his or her

144 Supra note 137, at page 53.

77
 PART F

life. Privacy attaches to the person and not to the place where
it is associated.”145

This Court has recognized the right of an individual to break free from the

demands of society and the need to foster a plural and inclusive culture. The

judgment of four judges in Puttaswamy, for instance, held that:

“Privacy constitutes the foundation of all liberty because it is

in privacy that the individual can decide how liberty is best
exercised. Individual dignity and privacy are inextricably
linked in a pattern woven out of a thread of diversity into the
fabric of a plural culture.”146

64 In Santosh Singh v Union of India147, a two-judge Bench of this Court

dismissed a petition under Article 32 seeking a direction to the Central Board

of Secondary Education to include moral science as a compulsory subject in

the school syllabus in order to inculcate moral values. One of us

(Chandrachud J) underscored the importance of accepting a plurality of ideas

and tolerance of radically different views:

“Morality is one and, however important it may sound to

some, it still is only one element in the composition of values
that a just society must pursue. There are other equally
significant values which a democratic society may wish for
education to impart to its young. Among those is the
acceptance of a plurality and diversity of ideas, images and
faiths which unfortunately faces global threats. Then again,
equally important is the need to foster tolerance of those who
hold radically differing views, empathy for those whom the
economic and social milieu has cast away to the margins, a

145 Puttaswamy, at para 297.

146 Puttaswamy, at para 297.
147
(2016) 8 SCC 253

78
 PART F

sense of compassion and a realisation of the innate humanity

which dwells in each human being. Value based education
must enable our young to be aware of the horrible
consequences of prejudice, hate and discrimination that
continue to threaten people and societies the world over…”148

The right to privacy enables an individual to exercise his or her autonomy,

away from the glare of societal expectations. The realisation of the human

personality is dependent on the autonomy of an individual. In a liberal

democracy, recognition of the individual as an autonomous person is an

acknowledgment of the State’s respect for the capacity of the individual to

make independent choices. The right to privacy may be construed to signify

that not only are certain acts no longer immoral, but that there also exists an

affirmative moral right to do them.149 As noted by Richards, this moral right

emerges from the autonomy to which the individual is entitled:

“Autonomy, in the sense fundamental to the theory of human

rights, is an empirical assumption that persons as such have
a range of capacities that enables them to develop, and act
upon plans of action that take as their object one's life and the
way it is lived. The consequence of these capacities of
autonomy is that humans can make independent decisions
regarding what their life shall be, self-critically reflecting, as a
separate being, which of one's first-order desires will be
developed and which disowned, which capacities cultivated
and which left barren, with whom one will or will not identify,
or what one will define and pursue as needs and aspirations.
In brief, autonomy gives to persons the capacity to call their
life their own. The development of these capacities for
separation and individuation is, from birth, the central
developmental task of becoming a person.”150

148 Ibid at para 22.

149 Supra note 131, at pages 1000-1001.
150 Supra note 131, at pages 964-965; M. Mahler, “The Psychological Birth of The Human Infant: Symbiosis And

Individuation” (1975); L. Kaplan, Oneness And Separateness: From Infant To Individual (1978).

79
 PART F

65 In Common Cause (A Registered Society) v. Union of India

(“Common Cause”)151, a Constitution Bench of this Court held that the right

to die with dignity is integral to the right to life recognised by the Constitution

and an individual possessing competent mental faculties is entitled to express

his or her autonomy by the issuance of an advance medical directive:

“The protective mantle of privacy covers certain decisions that

fundamentally affect the human life cycle. It protects the most
personal and intimate decisions of individuals that affect their
life and development. Thus, choices and decisions on matters
such as procreation, contraception and marriage have been
held to be protected. While death is an inevitable end in the
trajectory of the cycle of human life individuals are often faced
with choices and decisions relating to death. Decisions
relating to death, like those relating to birth, sex, and
marriage, are protected by the Constitution by virtue of the
right of privacy…”152

Autonomy and privacy are inextricably linked. Each requires the other for its

full realization. Their interrelationship has been recognised in Puttaswamy:

“…Privacy postulates the reservation of a private space for

the individual, described as the right to be left alone. The
concept is founded on the autonomy of the individual. The
ability of an individual to make choices lies at the core of the
human personality. The notion of privacy enables the
individual to assert and control the human element which is
inseparable from the personality of the individual. The
inviolable nature of the human personality is manifested in the
ability to make decisions on matters intimate to human life.
The autonomy of the individual is associated over matters
which can be kept private. These are concerns over which
there is a legitimate expectation of privacy...”153

151 (2018) 5 SCC 1

152 Ibid, at para 441.
153
Puttaswamy, at para 297.

80
 PART F

In order to understand how sexual choices are an essential attribute of

autonomy, it is useful to refer to John Rawls’ theory on social contract. Rawls’

conception of the ‘Original Position’ serves as a constructive model to

illustrate the notion of choice behind a “partial veil of ignorance.”154 Persons

behind the veil are assumed to be rational and mutually disinterested

individuals, unaware of their positions in society.155 The strategy employed by

Rawls is to focus on a category of goods which an individual would desire

irrespective of what individuals’ conception of ‘good’ might be.156 These

neutrally desirable goods are described by Rawls as ‘primary social goods’

and may be listed as rights, liberties, powers, opportunities, income, wealth,

and the constituents of self-respect.157 Rawls's conception of self-respect, as

a primary human good, is intimately connected to the idea of autonomy.158

Self-respect is founded on an individual's ability to exercise her native

capacities in a competent manner.159

66 An individual’s sexuality cannot be put into boxes or

compartmentalized; it should rather be viewed as fluid, granting the individual

the freedom to ascertain her own desires and proclivities. The self-

154
Thomas M. Jr. Scanlon, Rawls’ Theory of Justice, University of Pennsylvania Law Review (1973) at 1022.
155 Ibid at 1023.
156 Ibid at 1023.
157 Ibid at 1023.
158 Supra note 131, at page 971.
159
Ibid at page 972.

81
 PART F

determination of sexual orientation is an exercise of autonomy. Accepting the

role of human sexuality as an independent force in the development of

personhood is an acknowledgement of the crucial role of sexual autonomy in

the idea of a free individual.160 Such an interpretation of autonomy has

implications for the widening application of human rights to sexuality.161

Sexuality cannot be construed as something that the State has the

prerogative to legitimize only in the form of rigid, marital procreational sex.162

Sexuality must be construed as a fundamental experience through which

individuals define the meaning of their lives.163 Human sexuality cannot be

reduced to a binary formulation. Nor can it be defined narrowly in terms of its

function as a means to procreation. To confine it to closed categories would

result in denuding human liberty of its full content as a constitutional right. The

Constitution protects the fluidities of sexual experience. It leaves it to

consenting adults to find fulfilment in their relationships, in a diversity of

cultures, among plural ways of life and in infinite shades of love and longing.

F.2 A right to intimacy- celebration of sexual agency

67 By criminalising consensual acts between individuals who wish to

exercise their constitutionally-protected right to sexual orientation, the State is

160 Supra note 131, at page 1003.
161 Ibid.
162 Ibid.
163
Ibid.

82
 PART F

denying its citizens the right to intimacy. The right to intimacy emanates from

an individual’s prerogative to engage in sexual relations on their own terms. It

is an exercise of the individual’s sexual agency, and includes the individual’s

right to the choice of partner as well as the freedom to decide on the nature of

the relationship that the individual wishes to pursue.

In Shakti Vahini v. Union of India164, a three judge Bench of this Court

issued directives to prevent honour killings at the behest of Khap Panchayats

and protect persons who enter into marriages that do not have the approval of

the Panchayats. The Court recognised the right to choose a life partner as a

fundamental right under Articles 19 and 21 of the Constitution. The learned

Chief Justice held:

“…when two adults consensually choose each other as life

partners, it is a manifestation of their choice which is
recognized under Articles 19 and 21 of the Constitution. Such
a right has the sanction of the constitutional law and once that
is recognized, the said right needs to be protected and it
cannot succumb to the conception of class honour or group
thinking which is conceived of on some notion that remotely
does not have any legitimacy.”165

In Shafin Jahan v. Asokan166, this Court set aside a Kerala High Court

judgement which annulled the marriage of a twenty-four year old woman with

a man of her choice in a habeas corpus petition instituted by her father. The

164 (2018) SCC OnLine SC 275

165 Ibid, at para 44.
166
(2018) SCC OnLine SC 343

83
 PART F

Court upheld her right to choose of a life partner as well as her autonomy in

the sphere of “intimate personal decisions.” The Chief Justice held thus:

“…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 …”167
(Emphasis supplied)
One of us (Chandrachud J) recognised the right to choose a partner as an

important facet of autonomy:

“…The choice of a partner whether within or outside

marriage lies within the exclusive domain of each individual.
Intimacies of marriage lie within a core zone of privacy, which
is inviolable. The absolute right of an individual to choose a
life partner is not in the least affected by matters of
faith...Social approval for intimate personal decisions is not
the basis for recognising them...”168 (Emphasis supplied)

The judgement in Shafin Jahan delineates a space where an individual

enjoys the autonomy of making intimate personal decisions:

“The strength of the Constitution, therefore, lies in the

guarantee which it affords that each individual will have a
protected entitlement in determining a choice of partner to
share intimacies within or outside marriage.”169

In furtherance of the Rawlsian notion of self-respect as a primary good,

individuals must not be denied the freedom to form relationships based on

sexual intimacy. Consensual sexual relationships between adults, based on

167 Ibid, at para 54.

168 Ibid, at para 88.
169
Ibid, at para 93.

84
 PART F

the human propensity to experience desire must be treated with respect. In

addition to respect for relationships based on consent, it is important to foster

a society where individuals find the ability for unhindered expression of the

love that they experience towards their partner. This “institutionalized

expression to love” must be considered an important element in the full

actualisation of the ideal of self-respect.170 Social institutions must be

arranged in such a manner that individuals have the freedom to enter into

relationships untrammelled by binary of sex and gender and receive the

requisite institutional recognition to perfect their relationships.171 The law

provides the legitimacy for social institutions. In a democratic framework

governed by the rule of law, the law must be consistent with the constitutional

values of liberty, dignity and autonomy. It cannot be allowed to become a

yoke on the full expression of the human personality. By penalising sexual

conduct between consenting adults, Section 377 imposes moral notions

which are anachronistic to a constitutional order. While ostensibly penalising

‘acts’, it impacts upon the identity of the LGBT community and denies them

the benefits of a full and equal citizenship. Section 377 is based on a

stereotype about sex. Our Constitution which protects sexual orientation must

170 David A. J. Richards, “Unnatural Acts and the Constitutional Right to Privacy: A Moral Theory”, Fordham Law
Review, Vol. 45 (1977), at pages 1130-1311.
171
Ibid at 1311.

85
 PART G

outlaw any law which lends the authority of the state to obstructing its

fulfilment.

G Section 377 and the right to health

“Should medicine ever fulfil its great ends, it must enter into
the larger political and social life of our time; it must indicate
the barriers which obstruct the normal completion of the life
cycle and remove them.”
- Virchow Rudolf

68 In the evolution of its jurisprudence on the constitutional right to life

under Article 21, this Court has consistently held that the right to life is

meaningless unless accompanied by the guarantee of certain concomitant

rights including, but not limited to, the right to health.172 The right to health is

understood to be indispensable to a life of dignity and well-being, and

includes, for instance, the right to emergency medical care and the right to the

maintenance and improvement of public health.173

It would be useful to refer to judgments of this Court which have recognised

the right to health.

172
Dipika Jain and Kimberly Rhoten, “The Heteronormative State and the Right to Health in India”, NUJS Law
Review, Vol. 6 (2013).
173 C.E.S.C. Limited v. Subhash Chandra Bose, (1992) 1 SCC 441; Consumer Education and Research Centre v.
UOI, (1995) 3 SCC 42; Paschim Banga Khet Mazdoor Samity v. State of West Bengal, (1996) 4 SCC 37; Society
for Unaided Private Schools of Rajasthan v. Union of India, (2012) 6 SCC 1; Devika Biswas v. Union of India &
Ors., (2016) 10 SCC 726; Common Cause v. Union of India & Ors., (2018) 5 SCC 1.

86
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In Bandhua Mukti Morcha v. Union of India174, a three-judge Bench

identified the right to health within the right to life and dignity. In doing so, this

Court drew on the Directive Principles of State Policy:

“It is the fundamental right of every one in this country … to

live with human dignity, free from exploitation. This right to
live with human dignity enshrined in Article 21 derives
its life breath from the Directive Principles of State
Policy and particularly Clauses (e) and (f) of Article 39
and Articles 41 and 42 and at the least, therefore, it
must include protection of the health and strength of
workers men and women, and of the tender age of
children against abuse, opportunities and facilities for
children to develop in a healthy manner and in
conditions of freedom and dignity, educational
facilities, just and humane conditions of work and
maternity relief. These are the minimum requirements
which must exist in order to enable a person to live with
human dignity and no State neither the Central Government
nor any State Government-has the right to take any action
which will deprive a person of the enjoyment of these basic
essentials.” (Emphasis supplied)

In Consumer Education & Research Centre v. Union of India (“CERC”)175,

a Bench of three judges dealt with the right to health of workers in asbestos

industries. While laying down mandatory guidelines to be followed for the well-

being of workers, the Court held that:

“The right to health to a worker is an integral facet of

meaningful right to life to have not only a meaningful
existence but also robust health and vigour without which
worker would lead life of misery. Lack of health denudes his
livelihood...Therefore, it must be held that the right to
health and medical care is a fundamental right under

174 (1984) 3 SCC 161

175
(1995) 3 SCC 42

87
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Article 21 read with Articles 39(c), 41 and 43 of the

Constitution and makes the life of the workman
meaningful and purposeful with dignity of person. Right
to life includes protection of the health and strength of the
worker and is a minimum requirement to enable a person to
live with human dignity.” (Emphasis supplied)

In a dissenting judgment in C.E.S.C. Limited v. Subhash Chandra Bose176,

K Ramaswamy J observed that:

“Health is thus a state of complete physical, mental and

social well-being and not merely the absence of disease
or infirmity. In the light of Articles. 22 to 25 of the
Universal Declaration of Human Rights, International
Convention on Economic, Social and Cultural Rights, and
in the light of socio-economic justice assured in our
constitution, right to health is a fundamental human right
to workmen. The maintenance of health is a most imperative
constitutional goal whose realisation requires interaction by
many social and economic factors” (Emphasis supplied)

In Kirloskar Brothers Ltd. V. Employees' State Insurance Corporation177,

a three-judge Bench of this Court considered the applicability of the

Employees' State Insurance Act, 1948 to the regional offices of the Appellant,

observing that:

“Health is thus a state of complete physical, mental and social

well-being. Right to health, therefore, is a fundamental and
human right to the workmen. The maintenance of health is
the most imperative constitutional goal whose realisation
requires interaction of many social and economic factors.”

176 (1992) 1 SCC 441

177
(1996) 2 SCC 682

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In State of Punjab v. Ram Lubhaya Bagga178, a three-judge Bench of this

Court considered a challenge to the State of Punjab’s medical reimbursement

policy. A.P. Mishra J, speaking for the Bench, observed that:

“Pith and substance of life is the health, which is the nucleus

of all activities of life including that of an employee or other
viz. the physical, social, spiritual or any conceivable human
activities. If this is denied, it is said everything crumbles.

This Court has time and again emphasised to the

Government and other authorities for focussing and giving
priority and other authorities for focussing and giving priority
to the health of its, citizen, which not only makes one's life
meaningful, improves one's efficiency, but in turn gives
optimum out put.”

In Smt M Vijaya v. The Chairman and Managing Director Singareni

Collieries Co. Ltd.179, a five judge Bench of the Andhra Pradesh High Court

considered a case where a girl was infected with HIV due to the negligence of

hospital authorities. The Court observed that:

“Article 21 of the Constitution of India provides that no person

shall be deprived of his life or personal liberty except
according to procedure established by law. By reason of
numerous judgments of the Apex Court the horizons of Article
21 of the Constitution have been expanded recognising
various rights of the citizens i.e...right to health...

It is well settled that right to life guaranteed under Article 21 is

not mere animal existence. It is a right to enjoy all faculties of
life. As a necessary corollary, right to life includes right to
healthy life.”

178 (1998) 4 SCC 117

179
(2001) 5 ALD 522

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In Devika Biswas v. Union of India180, while hearing a public interest petition

concerning several deaths that had taken place due to unsanitary conditions

in sterilization camps across the country, a two judge Bench of this Court held

that:

“It is well established that the right to life under Article 21 of

the Constitution includes the right to lead a dignified and
meaningful life and the right to health is an integral facet of
this right...That the right to health is an integral part of the
right to life does not need any repetition.”

In his concurring judgment in Common Cause v. Union of India, Sikri J,

noted the inextricable link between the right to health and dignity:

“There is a related, but interesting, aspect of this dignity which

needs to be emphasised. Right to health is a part of Article
21 of the Constitution. At the same time, it is also a harsh
reality that everybody is not able to enjoy that right because
of poverty etc. The State is not in a position to translate into
reality this right to health for all citizens. Thus, when citizens
are not guaranteed the right to health, can they be denied
right to die in dignity?” (Emphasis supplied)

In addition to the constitutional recognition granted to the right to health, the

right to health is also recognised in international treaties, covenants, and

agreements which India has ratified, including the International Covenant on

Economic, Social and Cultural Rights, 1966 (“ICESCR”) and the Universal

180
(2016) 10 SCC 726

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Declaration of Human Rights, 1948 (“UDHR”). Article 25 of the UDHR

recognizes the right to health:

"Everyone has the right to a standard of living adequate for

the health and well-being of himself and of his family,
including food, clothing, housing and medical care and
necessary social services."

69 Article 12 of the International Covenant on Economic, Social and

Cultural Rights (“ICESCR”) recognizes the right of all persons to the

enjoyment of the highest attainable standard of physical and mental health:

“The States Parties to the present Covenant recognize the

right of everyone to the enjoyment of the highest attainable
standard of physical and mental health.”

Article 12.2 requires States Parties to take specific steps to improve the health

of their citizens, including creating conditions to ensure equal and timely

access to medical services. In its General Comment No. 14,181 the UN

Economic and Social Council stated that States must take measures to

respect, protect and fulfil the health of all persons. States are obliged to

ensure the availability and accessibility of health-related information,

education, facilities, goods and services, without discrimination, especially for

vulnerable and marginalized populations.

181 UN Economic and Social Council (ECOSOC), Committee on Economic, Social and Cultural Rights, General
Comment No. 14: The Right to the Highest Attainable Standard of Health, UN Doc. E/C.12/2004 (2000).

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Pursuant to General Comment No. 14, India is required to provide

marginalized populations, including members of the LGBTIQ community,

goods and services that are available (in sufficient quantity), accessible

(physically, geographically, economically and in a non-discriminatory manner),

acceptable (respectful of culture and medical ethics) and of quality

(scientifically and medically appropriate and of good quality).

70 As early as 1948, the World Health Organization (“WHO”) defined the

term ‘health’ broadly to mean “a state of complete physical, mental and social

well-being and not merely the absence of disease or infirmity.”182 Even today,

for a significant number of Indian citizens this standard of health remains an

elusive aspiration. Of relevance to the present case, a particular class of

citizens is denied the benefits of this constitutional enunciation of the right to

health because of their most intimate sexual choices.

71 Sexuality is a natural and precious aspect of life, an essential and

fundamental part of our humanity.183 Sexual rights are entitlements related to

sexuality and emanate from the rights to freedom, equality, privacy,

autonomy, and dignity of all people.184 For people to attain the highest

182Definitioncontained in the Preamble to the WHO Constitution (1948).

183 Sexual Rights, International Planned Parenthood Federation (2008).
184
Ibid.

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standard of health, they must also have the right to exercise choice in their

sexual lives and feel safe in expressing their sexual identity. However, for

some citizens, discrimination, stigma, fear and violence prevent them from

attaining basic sexual rights and health.

72 Individuals belonging to sexual and gender minorities experience

discrimination, stigmatization, and, in some cases, denial of care on account

of their sexual orientation and gender identity.185 However, it is important to

note that ‘sexual and gender minorities’ do not constitute a homogenous

group, and experiences of social exclusion, marginalization, and

discrimination, as well as specific health needs, vary considerably.186

Nevertheless, these individuals are united by one factor - that their exclusion,

discrimination and marginalization is rooted in societal heteronormativity and

society’s pervasive bias towards gender binary and opposite-gender

relationships, which marginalizes and excludes all non-heteronormative

sexual and gender identities.187 This, in turn, has important implications for

individuals’ health-seeking behaviour, how health services are provided, and

the extent to which sexual health can be achieved.188

185
Alexandra Muller, “Health for All? Sexual Orientation, Gender Identity, and the Implementation of the Right to
Access to Health Care in South Africa”, Health and Human Rights (2016) at pages 195–208.
186 Institute of Medicine, “The Health of Lesbian, Gay, Bisexual, and Transgender People: Building a Foundation for

Better Understanding”, National Academies Press (2011).

187 Supra note 185, at pages 195–208.
188
Ibid.

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73 The term ‘sexual health’ was first defined in a 1975 WHO Technical

Report series as “the integration of the somatic, emotional, intellectual and

social aspects of sexual being, in ways that are positively enriching and that

enhance personality, communication and love.”189 The WHO’s current working

definition of sexual health is as follows:

“…a state of physical, emotional, mental and social well-being

in relation to sexuality; it is not merely the absence of
disease, dysfunction or infirmity. Sexual health requires a
positive and respectful approach to sexuality and sexual
relationships, as well as the possibility of having pleasurable
and safe sexual experiences, free of coercion, discrimination
and violence. For sexual health to be attained and
maintained, the sexual rights of all persons must be
respected, protected and fulfilled.”

The WHO further states that “sexual health cannot be defined, understood or

made operational without a broad consideration of sexuality, which underlies

important behaviours and outcomes related to sexual health.” It defines

sexuality thus:

“…a central aspect of being human throughout life

encompasses sex, gender identities and roles, sexual
orientation, eroticism, pleasure, intimacy and reproduction.
Sexuality is experienced and expressed in thoughts,
fantasies, desires, beliefs, attitudes, values, behaviours,
practices, roles and relationships. While sexuality can include
all of these dimensions, not all of them are always
experienced or expressed. Sexuality is influenced by the
interaction of biological, psychological, social, economic,
political, cultural, legal, historical, religious and spiritual
factors.”

189
World Health Organization, “Gender and human rights: Defining sexual health”, (2002).

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74 A report entitled “Sexual Health, Human Rights and the Law”,190

published by the WHO in 2015 explores the relationship between these

concepts. The report notes that “human sexuality includes many different

forms of behaviour and expression, and that the recognition of the diversity of

sexual behaviour and expression contributes to people’s overall sense of

health and well-being.”191 It emphasizes the importance of sexual health by

stating that not only is it essential to the physical and emotional well-being of

individuals, couples and families, but it is also fundamental to the social and

economic development of communities and countries.192 The ability of

individuals to progress towards sexual health and well-being depends on

various factors, including “access to comprehensive information about

sexuality, knowledge about the risks they face and their vulnerability to the

adverse consequences of sexual activity; access to good quality sexual health

care, and an environment that affirms and promotes sexual health.”

75 The International Women’s Health Coalition has located the right to

sexual health within ‘sexual rights’, defined as follows:193

“Sexual rights embrace certain human rights that are already

recognized in national laws, international human rights
documents, and other consensus documents. They rest on
the recognition that all individuals have the right—free of

190 World Health Organisation, “Sexual Health, Human Rights and the Law” (2015).
191 Ibid.
192 Ibid.
193
International Women’s Health Coalition, “Sexual Rights are Human Rights” (2014).

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coercion, violence, and discrimination of any kind—to the

highest attainable standard of sexual health; to pursue a
satisfying, safe, and pleasurable sexual life; to have control
over and decide freely, and with due regard for the rights of
others, on matters related to their sexuality, reproduction,
sexual orientation, bodily integrity, choice of partner, and
gender identity; and to the services, education, and
information, including comprehensive sexuality education,
necessary to do so.”

The discussion of ‘sexual rights’ (as they pertain to sexuality and sexual

orientation) within the framework of the right to health is a relatively new

phenomenon:194

“..Before the 1993 World Conference on Human Rights in

Vienna, and the subsequent 1994 International Conference
on Population and Development in Cairo, sexuality, sexual
rights, and sexual diversity had not formed part of the
international health and human rights discourse. These
newly emerged “sexual rights” were founded on the
principles of bodily integrity, personhood, equality, and
diversity.”195 (Emphasis supplied)

76 The operation of Section 377 denies consenting adults the full

realization of their right to health, as well as their sexual rights. It forces

consensual sex between adults into a realm of fear and shame, as persons

who engage in anal and oral intercourse risk criminal sanctions if they seek

health advice. This lowers the standard of health enjoyed by them and

particularly by members of sexual and gender minorities, in relation to the rest

of society.

194 Supra note 185, at pages 195–208.

195
Supra note 185, at pages 195–208.

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77 The right to health is not simply the right not to be unwell, but rather the

right to be well. It encompasses not just the absence of disease or infirmity,

but “complete physical, mental and social well being”,196 and includes both

freedoms such as the right to control one’s health and body and to be free

from interference (for instance, from non-consensual medical treatment and

experimentation), and entitlements such as the right to a system of healthcare

that gives everyone an equal opportunity to enjoy the highest attainable level

of health.

78 The jurisprudence of this Court, in recognizing the right to health and

access to medical care, demonstrates the crucial distinction between negative

and positive obligations. Article 21 does not impose upon the State only

negative obligations not to act in such a way as to interfere with the right to

health. This Court also has the power to impose positive obligations upon the

State to take measures to provide adequate resources or access to treatment

facilities to secure effective enjoyment of the right to health.197

79 A study of sexuality and its relationship to the right to health in South

Africa points to several other studies that suggest a negative correlation

between sexual orientation-based discrimination and the right to health:

196 Preamble to the Constitution of the World Health Organisation.
197 Jayna Kothari, “Social Rights and the Indian Constitution”, Law, Social Justice and Global Development Journal
(2004).

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“For example, in a Canadian study, Brotman and colleagues

found that being open about their sexual orientation in health
care settings contributed to experiences of discrimination for
lesbian, gay, and bisexual people.”198

“Lane and colleagues interviewed men who have sex with

men in Soweto, and revealed that all men who disclosed their
sexual orientation at public health facilities had experienced
some form of discrimination. Such discrimination [‘ranging
from verbal abuse to denial of care’199], and also the
anticipation thereof, leads to delays when seeking sexual
health services such as HIV counseling and testing.”200

80 Alexandra Muller describes the story of two individuals who experienced

such discrimination. T, a gay man, broke both his arms while fleeing from a

group of people that attacked him because of his sexuality. At the hospital, the

staff learned about T’s sexual orientation, and pejoratively discussed it in his

presence. He also had to endure “a local prayer group that visited the ward

daily to provide spiritual support to patients” which “prayed at his bedside to

rectify his “devious” sexuality. When he requested that they leave, or that he

be transferred to another ward, the nurses did not intervene, and the prayer

group visited regularly to continue to recite their homophobic prayers. T did

not file an official complaint, fearing future ramifications in accessing care.

Following his discharge, he decided not to return for follow up appointments

and had his casts removed at another facility.201

198 Supra note 185, at pages 195–208.

199 Ibid.
200 Ibid.
201
Ibid.

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Another woman, P, who had been with her female partner for three years,

wanted to get tested for HIV. The nurse at the hospital asked certain

questions to discern potential risk behaviours. When asked why she did not

use condoms or contraception, P revealed that she did not need to on account

of her sexuality. The nurse immediately exclaimed that P was not at risk for

HIV, and that she should “go home and not waste her time any longer.” P has

not attempted to have another HIV test since.202

These examples are illustrative of a wider issue: individuals across the world

are denied access to equal healthcare on the basis of their sexual orientation.

That people are intimidated or blatantly denied healthcare access on a

discriminatory basis around the world proves that this issue is not simply an

ideological tussle playing out in classrooms and courtrooms, but an issue

detrimentally affecting individuals on the ground level and violating their rights

including the right to health.

81 The right to health is one of the major rights at stake in the struggle for

equality amongst gender and sexual minorities:203

“The right to physical and mental health is at conflict with

discriminatory policies and practices, some physicians'
homophobia, the lack of adequate training for health care

202 Ibid.
203
Study Guide: Sexual Orientation and Human Rights, University of Minnesota Human RIghts Library (2003).

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personnel regarding sexual orientation issues or the general

assumption that patients are heterosexuals.”204

While the enumeration of the right to equal healthcare is crucial, an

individual’s sexual health is also equally significant to holistic well-being. A

healthy sex life is integral to an individual’s physical and mental health,

regardless of whom an individual is attracted to. Criminalising certain sexual

acts, thereby shunning them from the mainstream discourse, would invariably

lead to situations of unsafe sex, coercion, and a lack of sound medical advice

and sexual education, if any at all.

82 A report by the Francois-Xavier Bagnoud Center for Health and Human

Rights at Harvard School of Public Health defines the term ‘sexual health’ as

follows:

“A state of physical, emotional, mental, and social well-being

in relation to sexuality. Like health generally, it is not merely
the absence of disease, but encompasses positive and
complex experiences of sexuality as well as freedom to
determine sexual relationships, as well as the possibility of
having pleasurable sexual experiences, free of coercion,
discrimination and violence.”205

83 Laws that criminalize same-sex intercourse create social barriers to

accessing healthcare, and curb the effective prevention and treatment of

204 Ibid.
205 Center for Health and Human Rights and Open Society Foundations. “Health and Human Rights Resource Guide
(2013).

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HIV/AIDS.206 Criminal laws are the strongest expression of the State’s power

to punish certain acts and behaviour, and it is therefore incumbent upon the

State to ensure full protection for all persons, including the specific needs of

sexual minorities. The equal protection of law mandates the state to fulfill this

constitutional obligation. Indeed, the state is duty bound to revisit its laws and

executive decisions to ensure that they do not deny equality before the law

and the equal protection of laws. That the law must not discriminate is one

aspect of equality. But there is more. The law must take affirmative steps to

achieve equal protection of law to all its citizens, irrespective of sexual

orientation.

In regard to sexuality and health, it is important to distinguish between

behaviour that is harmful to others, such as rape and coerced sex, and that

which is not, such as consensual same-sex conduct between adults, conduct

related to gender-expression such as cross-dressing, as well as seeking or

providing sexual and reproductive health information and services. The use of

criminal laws in relation to an expanding range of otherwise consensual

sexual conduct has been found to be discriminatory by international and

206
Supra note 172.

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domestic courts, often together with violations of other human rights, such as

the rights to privacy, self-determination, human dignity and health.207

G.I Section 377 and HIV prevention efforts

84 Section 377 has a significant detrimental impact on the right to health of

those persons who are susceptible to contracting HIV – men who have sex

with men (“MSM”)208 and transgender persons.209 The Global Commission on

HIV and the Law has noted the impact of Section 377 on the right of health of

persons afflicted with or vulnerable to contracting HIV:

“The law and its institutions can protect the dignity of all
people living with HIV, and in so doing fortify those most
vulnerable to HIV, so-called “key populations”, such as sex
workers, MSM, transgender people, prisoners and migrants.
The law can open the doors to justice when these people’s
rights are trampled…. But the law can also do grave harm to
the bodies and spirits of people living with HIV. It can
perpetuate discrimination and isolate the people most
vulnerable to HIV from the programmes that would help them
to avoid or cope with the virus. By dividing people into
criminals and victims or sinful and innocent, the legal
environment can destroy the social, political, and economic

207
Eszter Kismodi, Jane Cottingham, Sofia Gruskin & Alice M. Miller, “Advancing sexual health through human
rights: The role of the law”, Taylor and Francis, (2015), at pages 252-267.
208 The term “men who have sex with men” (MSM) denotes all men who have sex with men, regardless of their
sexual identity, sexual orientation and whether or not they also have sex with females. MSM is an epidemiological
term which focuses on sexual behaviours for the purpose of HIV and STI surveillance. The assumption is that
behaviour, not sexual identity, places people at risk for HIV. See Regional Office for South-East Asia, World
Health Organization, “HIV/AIDS among men who have sex with men and transgender populations in South-East
Asia: the current situation and national responses” (2010).
209 Transgender people continue to be included under the umbrella term “MSM”. However, it has increasingly been
recognized that Transgender people have unique needs and concerns, and it would be more useful to view them
as a separate group. See Regional Office for South-East Asia, World Health Organization, “HIV/AIDS among men
who have sex with men and transgender populations in South-East Asia: the current situation and national
responses” (2010).

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solidarity that is necessary to overcome this global

epidemic.”210

85 Mr Anand Grover, learned Senior Counsel in his submissions,

highlighted the vulnerability of MSM and transgender persons. According to a

study published by the Global Commission on HIV and the Law, MSM were

found to be 19 times more susceptible to be infected with HIV than other adult

men.211

86 The UN Human Rights Committee has recognized the impact of the

criminalization of homosexuality on the spread of HIV/AIDS. In Toonen v

Australia212, a homosexual man from Tasmania, where homosexual sex was

criminalized, argued that criminalization of same-sex activities between

consenting adults was an infringement of his right to privacy under Article 17

of the International Covenant on Civil and Political Rights (“ICCPR”). The

Committee rejected the argument of the Tasmanian authorities that the law

was justified on grounds of public health and morality as it was enacted to

prevent the spread of HIV/AIDS in Tasmania. The Committee observed that:

“... the criminalization of homosexual practices cannot be

considered a reasonable means or proportionate measure to
achieve the aim of preventing the spread of AIDS/HIV …

210 United Nations Development Programme, “Global Commission on HIV and the Law: Risks, Rights and Health”
(2012), at pages 11-12.
211 Ibid at page 45; HIV prevalence amongst MSM is 4.3% and amongst transgender persons it is 7.5% as opposed

to the overall adult HIV prevalence of 0.26%.

212
Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994), decision dated 31/03/1994.

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Criminalization of homosexual activity thus would appear to

run counter to the implementation of effective education
programmes in respect of the HIV/AIDS prevention.
Secondly, the Committee notes that no link has been shown
between the continued criminalization of homosexual activity
and the effective control of the spread of the HIV/AIDS virus.”

In response to the Committee’s decision, a law was enacted to overcome the

Tasmanian law criminalizing homosexual sex.

87 Section 377 has had far-reaching consequences for this “key

population”, pushing them out of the public health system. MSM and

transgender persons may not approach State health care providers for fear of

being prosecuted for engaging in criminalized intercourse. Studies show that

it is the stigma attached to these individuals that contributes to increased

sexual risk behaviour and/or decreased use of HIV prevention services.213

88 The silence and secrecy that accompanies institutional discrimination

may foster conditions which encourage escalation of the incidence of

HIV/AIDS.214 The key population is stigmatized by health providers,

employers and other service providers.215 As a result, there exist serious

obstacles to effective HIV prevention and treatment as discrimination and

213 Beena Thomas, Matthew J. Mimiaga, Senthil Kumar, Soumya Swaminathan, Steven A. Safren, and Kenneth H.
Mayer, “HIV in Indian MSM: Reasons for a concentrated epidemic & strategies for prevention”, Indian Journal
Medical Research (2011), at pages 920–929.
214 Ibid.
215
Ibid.

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harassment can hinder access to HIV and sexual health services and

prevention programmes.216

89 An incisive article, based on extensive empirical research carried out in

various countries, has concluded that there is a demonstrable relationship

between “laws which criminalize same-sex conduct and adverse health

effects on HIV-AIDs rates as well as other health indicators for the MSM

community” due to poor access to key HIV prevention tools and outreach

programmes.217 According to a report published by the Joint United Nations

Programme on HIV/AIDS (“UNAIDS”), in Caribbean countries where same-

sex relations are criminalised, almost one in four MSMs is infected with

HIV.218 In the absence of such criminal provisions, the prevalence of HIV is

one in fifteen among MSMs.219

90 Closer to home, the UNAIDS project found that in the four years

following the judgement in Naz, there had been an increase of more than 50%

in the number of healthcare centers providing HIV services to MSM and

transgender persons in India.220 If same-sex relations remain criminalised, it is

216
Ibid.
217 Supra note 172, at page 636.
218 Supra note 210, at page 45.
219 Ibid.
220 UNAIDS, “UNAIDS Calls on India and All Countries to Repeal Laws That Criminalize Adult Consensual Same Sex

Sexual Conduct” (2013).

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likely that HIV interventions for MSMs will continue to be inadequate, MSMs

will continue to be marginalised from health services, and the prevalence of

HIV will exacerbate.221

91 To safeguard the health of persons who are at the greatest risk of HIV

infection, it is imperative that access is granted to effective HIV prevention

and treatment services and commodities such as clean needles, syringes,

condoms and lubricants.222 A needle or a condom can only be considered a

concrete representation of the entitlements of vulnerable groups: the

fundamental human rights of dignity, autonomy and freedom from ill-

treatment, along with the right to the highest attainable standard of physical

and mental health, without regard to sexuality or legal status.223 This is the

mandate of the Directive Principles contained in Part IV of the Constitution.

92 In 2017, Parliament enacted the HIV (Prevention and Control) Act, to

provide for the prevention and control of the spread of HIV/AIDS and for the

protection of the human rights of persons affected. Parliament recognized the

importance of prevention interventions for vulnerable groups including MSMs.

Section 22 of this Act provides for protection against criminal sanctions as

well as any civil liability arising out of promoting actions or practices or “any
221 UNAIDS, “Judging the Epidemic: A Judicial Handbook on HIV, Human Rights and the Law” (2013) at page 165.
222 Supra note 210, at page 26.
223
Ibid, at page 26.

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strategy or mechanism or technique” undertaken for reducing the risk of HIV

transmission. Illustrations (a) and (b) to Section 22 read as follows:

“(a) A supplies condoms to B who is a sex worker or to C,

who is a client of B. Neither A nor B nor C can be held
criminally or civilly liable for such actions or be prohibited,
impeded, restricted or prevented from implementing or using
the strategy.
(b) M carries on an intervention project on HIV or AIDS and
sexual health information, education and counselling for men,
who have sex with men, provides safer sex information,
material and condoms to N, who has sex with other men.
Neither M nor N can be held criminally or civilly liable for such
actions or be prohibited, impeded, restricted or prevented
from implementing or using the intervention.”

Persons who engage in anal or oral intercourse face significant sexual health

risks due to the operation of Section 377. Prevalence rates of HIV are high,

particularly among men who have sex with men. Discrimination, stigma and a

lack of knowledge on the part of many healthcare providers means that these

individuals often cannot and do not access the health care they need. In order

to promote sexual health and reduce HIV transmission among LGBT

individuals, it is imperative that the availability, effectiveness, and quality of

health services to the LGBT community be significantly improved.

Under our constitutional scheme, no minority group must suffer deprivation of

a constitutional right because they do not adhere to the majoritarian way of

life. By the application of Section 377 of the Indian Penal Code, MSM and

transgender persons are excluded from access to healthcare due to the

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 PART G

societal stigma attached to their sexual identity. Being particularly vulnerable

to contraction of HIV, this deprivation can only be described as cruel and

debilitating. The indignity suffered by the sexual minority cannot, by any

means, stand the test of constitutional validity.

G.2 Mental health

93 The treatment of homosexuality as a disorder has serious

consequences on the mental health and well-being of LGBT persons. The

mental health of citizens “growing up in a culture that devalues and silences

same-sex desire” is severely impacted.224 Global psychiatric expert Dinesh

Bhugra has emphasised that radical solutions are needed to combat the high

levels of mental illness among the LGBT population stating there is a “clear

correlation between political and social environments” and how persecutory

laws against LGBT individuals are leading to greater levels of depression,

anxiety, self-harm, and suicide. Even in Britain, gay people are at greater risk

of a range of mental health problems, and, it is believed, are more likely to

take their own lives.

“A number of studies this year have highlighted the

disproportionate levels of mental illness among LGBT people.
In Britain, one of the world's most legally equal countries for
this community, research in the last few months has revealed
that LGBT people are nearly twice as likely to have

224 Ketki Ranade, “Process of Sexual Identity Development for Young People with Same Sex Desires: Experiences
of Exclusion”, Psychological Foundations - The Journal (2008).

108
 PART G

attempted suicide or harmed themselves, gay men are more

than twice as likely to have a mental illness than
heterosexual men, and 4 in 5 transgender people have
suffered depression in the last five years.”225
(Emphasis supplied)

He discusses studies from various countries which indicate that in countries

where laws continue to discriminate against LGBT individuals, there are high

rates of mental illness. Similarly he states that there have been a series of

studies showing that in America, rates of psychiatric disorders have dropped

when state policies have recognised the equal rights of LGBT individuals.

94 Mr Chander Uday Singh, learned Senior Counsel appearing on behalf of

an intervenor, a psychiatrist, has brought to our notice how even the mental

health sector has often reflected the societal prejudice regarding

homosexuality as a pathological condition.

95 Medical and scientific authority has now established that consensual

same sex conduct is not against the order of nature and that homosexuality is

natural and a normal variant of sexuality. Parliament has provided legislative

acknowledgment of this global consensus through the enactment of the

Mental Healthcare Act, 2017. Section 3 of the Act mandates that mental

illness is to be determined in accordance with ‘nationally’ or ‘internationally’

225 Dinesh Bhugra, globally renowned psychiatrist (article annexed in compilation provided by Mr. Chander Uday
Singh, learned Senior Counsel).

109
 PART G

accepted medical standards. The International Classification of Diseases

(ICD-10) by the World Health Organisation is listed as an internationally

accepted medical standard and does not consider non-peno-vaginal sex

between consenting adults either a mental disorder or an illness. The Act

through Section 18(2)226 and Section 21227 provides for protection against

discrimination on the grounds of sexual orientation.

The repercussions of prejudice, stigma and discrimination continue to impact

the psychological well-being of individuals impacted by Section 377. Mental

health professionals can take this change in the law as an opportunity to re-

examine their own views of homosexuality.

96 Counselling practices will have to focus on providing support to

homosexual clients to become comfortable with who they are and get on with

their lives, rather than motivating them for change. Instead of trying to cure

something that isn’t even a disease or illness, the counsellors have to adopt a

more progressive view that reflects the changed medical position and

226
Section 18. Right to access mental healthcare.—(1) Every person shall have a right to access mental
healthcare and treatment from mental health services run or funded by the appropriate Government. (2) The right
to access mental healthcare and treatment shall mean mental health services of affordable cost, of good quality,
available in sufficient quantity, accessible geographically, without discrimination on the basis of gender, sex,
sexual orientation, religion, culture, caste, social or political beliefs, class, disability or any other basis and
provided in a manner that is acceptable to persons with mental illness and their families and care-givers.
227 Section 21. Right to equality and non-discrimination.—(1) Every person with mental illness shall be treated as
equal to persons with physical illness in the provision of all healthcare which shall include the following, namely:—
(a) there shall be no discrimination on any basis including gender, sex, sexual orientation, religion, culture, caste,
social or political beliefs, class or disability.

110
 PART H

changing societal values. There is not only a need for special skills of

counsellors but also heightened sensitivity and understanding of LGBT lives.

The medical practice must share the responsibility to help individuals, families,

workplaces and educational and other institutions to understand sexuality

completely in order to facilitate the creation of a society free from

discrimination228 where LGBT individuals like all other citizens are treated with

equal standards of respect and value for human rights.

H Judicial review

97 The Constitution entrusts the function of making laws to Parliament and

the State Legislatures under Articles 245 and 246 of the Constitution.

Parliament and the State Legislatures are empowered to create offences

against laws with respect to the heads of legislation, falling within the purview

of their legislative authority. (See Entry 93 of List I and Entry 64 of List II of the

Seventh Schedule). Criminal law is a subject which falls within the Concurrent

List. Entry I of List III provides thus:

“1. Criminal law, including all matters included in the Indian

Penal Code at the commencement of this Constitution but
excluding offences against laws with respect to any of the
matters specified in List I or List II and excluding the use of
naval, military or air forces or any other armed forces of the
Union in aid of the civil power.”

228 Vinay Chandran, “From judgement to practice: Section 377 and the medical sector”, Indian Journal of Medical
Ethics, Vol. 4 (2009).

111
 PART H

The power to enact legislation in the field of criminal law has been entrusted

to Parliament and, subject to its authority, to the State Legislatures. Both

Parliament and the State Legislatures can enact laws providing for offences

arising out of legislation falling within their legislative domains. The authority

to enact law, however, is subject to the validity of the law being scrutinised on

the touchstone of constitutional safeguards. A citizen, or, as in the present

case, a community of citizens, having addressed a challenge to the validity of

a law which creates an offence, the authority to determine that question is

entrusted to the judicial branch in the exercise of the power of judicial review.

The Court will not, as it does not, in the exercise of judicial review, second

guess a value judgment made by the legislature on the need for or the

efficacy of legislation. But where a law creating an offence is found to be

offensive to fundamental rights, such a law is not immune to challenge. The

constitutional authority which is entrusted to the legislatures to create offences

is subject to the mandate of a written Constitution. Where the validity of the

law is called into question, judicial review will extend to scrutinising whether

the law is manifestly arbitrary in its encroachment on fundamental liberties. If

a law discriminates against a group or a community of citizens by denying

them full and equal participation as citizens, in the rights and liberties granted

by the Constitution, it would be for the Court to adjudicate upon validity of

such a law.

112
 PART I

I India’s commitments at International Law

98 International human rights treaties and jurisprudence impose obligations

upon States to protect all individuals from violations of their human rights,

including on the basis of their sexual orientation.229 Nevertheless, laws

criminalizing same-sex relations between consenting adults remain on the

statute books in more than seventy countries. Many of them, including so-

called “sodomy laws”, are vestiges of colonial-era legislation that prohibits

either certain types of sexual activity or any intimacy or sexual activity

between persons of the same sex.230 In some cases, the language used

refers to vague and indeterminate concepts, such as ‘crimes against the order

of nature’, ‘morality’, or ‘debauchery’.231 There is a familiar ring to it in India,

both in terms of history and text.

99 International law today has evolved towards establishing that the

criminalization of consensual sexual acts between same-sex adults in private

contravenes the rights to equality, privacy, and freedom from discrimination.

These rights are recognised in international treaties, covenants, and

229
Dominic McGoldrick, “The Development and Status of Sexual Orientation Discrimination under International
Human Rights Law”, Human Rights Law Review, Vol. 16 (2016).
230 UN Human Rights Council, “Discriminatory laws and practices and acts of violence against individuals based on
their sexual orientation and gender identity” (2011).
231 UN Human Rights Council, “Promotion and Protection of all Human Rights, Civil, Political, Economic, Social and
Cultural Rights, including the Right to Development” (2008).

113
 PART I

agreements which India has ratified, including the UDHR, ICCPR, and the

ICESCR. India has a constitutional duty to honour these internationally

recognized rules and principles.232 Article 51 of the Constitution, which forms

part of the Directive Principles of State Policy, requires the State to endeavour

to “foster respect for international law and treaty obligations in the dealings of

organised peoples with one another.”

100 The human rights treaties that India has ratified require States Parties to

guarantee the rights to equality before the law, equal protection of the law and

freedom from discrimination. For example, Article 2 of the ICESCR requires

states to ensure that:

“The rights enunciated in the present Covenant will be

exercised without discrimination of any kind as to race,
colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status.”

101 The Committee on Economic, Social and Cultural Rights - the body

mandated by the ICESCR to monitor States Parties’ implementation of the

treaty – has stated that “other status” in article 2 (2) includes sexual

orientation, and reaffirmed that “gender identity is recognized as among the

232
Vishaka v State of Rajasthan, (1997) 6 SCC 241.

114
 PART I

prohibited grounds of discrimination”, as “persons who are transgender,

transsexual or intersex often face serious human rights violations.”233

102 The prohibition against discrimination in the ICCPR is contained in

Article 26, which guarantees equality before the law:

“All persons are equal before the law and are entitled without
any discrimination to the equal protection of the law. In this
respect, the law shall prohibit any discrimination and
guarantee to all persons equal and effective protection
against discrimination on any ground such as race, colour,
sex, language, religion, political or other opinion, national or
social origin, property, birth or other status.”

India is also required to protect the right to privacy, which includes within its

ambit the right to engage in consensual same-sex sexual relations.234 Article

12 of the UDHR recognises the right to privacy:

“Article 12: 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.”

233 Committee on Economic, Social and Cultural Rights, “General Comment 20: Non-discrimination in economic,
social and cultural rights” (2009), at para 32.
234
Toonen.

115
 PART I

Similarly, Article 17 of the ICCPR, which India ratified on 11 December 1977,

provides that:

“The obligations imposed by this article require the State to

adopt legislative and other measures to give effect to the
prohibition against such interferences and attacks as well as
to the protection of the right.”

In its General Comment No. 16, the Human Rights Committee confirmed that

any interference with privacy, even if provided for by law, “should be in

accordance with the provisions, aims and objectives of the Covenant and

should be, in any event, reasonable in the particular circumstances.”235

In their general comments, concluding observations and views on

communications, human rights treaty bodies have affirmed that States are

obliged to protect individuals from discrimination on grounds of sexual

orientation and/or gender identity, as these factors do not limit an individual’s

entitlement to enjoy the full range of human rights to which they are entitled.236

103 In NALSA, while dealing with the rights of transgender persons, this

Court recognized the ‘Yogyakarta Principles on the Application of International

Law in Relation to Issues of Sexual Orientation and Gender Identity’ – which

235 Supra note 230, at page 6.

236
Ibid.

116
 PART I

outline the rights that sexual minorities enjoy as human persons under the

protection of international law – and held that they should be applied as a part

of Indian law. Principle 33 provides thus:

“Everyone has the right to be free from criminalisation and

any form of sanction arising directly or indirectly from that
person’s actual or perceived sexual orientation, gender
identity, gender expression or sex characteristics.”

While the Yogyakarta Principles are not legally binding, NALSA nevertheless

signifies an affirmation of the right to non-discrimination on the grounds of

gender identity, as well as the relevance of international human rights norms

in addressing violations of these rights.

104 There is a contradiction between India’s international obligations and

Section 377 of the Indian Penal Code, insofar as it criminalizes consensual

sexual acts between same-sex adults in private. In adjudicating the validity of

this provision, the Indian Penal Code must be brought into conformity with

both the Indian Constitution and the rules and principles of international law

that India has recognized. Both make a crucial contribution towards

recognizing the human rights of sexual and gender minorities.

117
 PART J

J Transcending borders - comparative law

105 Over the past several decades, international and domestic courts have

developed a strong body of jurisprudence against discrimination based on

sexual orientation. This section analyses the evolution of the perspective of

the law towards sexual orientation from a comparative law perspective, and

looks at how sodomy laws have been construed in various jurisdictions based

on their histories.

106 In 1967, England and Wales decriminalized same-sex intercourse

between consenting adult males in private, and in 1980, Scotland followed

suit. The law in Northern Ireland only changed in 1982 with the decision of the

ECtHR in Dudgeon v The United Kingdom (“Dudgeon”).237 The Petitioners

challenged the Offences against the Person Act, 1861, the Criminal Law

Amendment Act, 1885 and a sodomy law that made buggery and “gross

indecency” a criminal offense, irrespective of consent. Although the law did

not specifically define these terms, the Court interpreted ‘buggery’ to mean

anal intercourse by a man with a man or woman and gross indecency to mean

any act “involving sexual indecency between male persons.” Regarding acts

prohibited by these provisions, the ECtHR observed that:

237
App No 7525/76, (1981) ECHR 5.

118
 PART J

“Although it is not homosexuality itself which is prohibited but

the particular acts of gross indecency between males and
buggery, there can be no doubt but that male homosexual
practices whose prohibition is the subject of the applicant’s
complaints come within the scope of the offences punishable
under the impugned legislation.”

The ECtHR concluded that Dudgeon had suffered and continued to suffer an

unjustified interference with his right to respect for his private life. Hence, the

Court struck down the laws under challenge as violative of Article 8 of the

European Convention on Human Rights, in so far as they criminalised “private

homosexual relations between adult males capable of valid consent.” In

observing that these laws were not proportionate to their purported need, the

Court observed:

“On the issue of proportionality, the Court considers that such

justifications as there are for retaining the law in force
unamended are outweighed by the detrimental effects which
the very existence of the legislative provisions in question can
have on the life of a person of homosexual orientation like the
applicant. Although members of the public who regard
homosexuality as immoral may be shocked, offended or
disturbed by the commission by others of private homosexual
acts, this cannot on its own warrant the application of penal
sanctions when it is consenting adults alone who are
involved.”238

The ECtHR thus concluded:

“To sum up, the restriction imposed on Mr. Dudgeon under

Northern Ireland law, by reason of its breadth and absolute
character, is, quite apart from the severity of the possible

238
Ibid, at para 60.

119
 PART J

penalties provided for, disproportionate to the aims sought to

be achieved.”239

Later, in Norris v Ireland240, the Applicant challenged Ireland's criminalization

of certain homosexual acts between consenting adult men as being violative

of Article 8 of the European Convention on Human Rights, which protected

the right to respect for private and family life. The ECtHR held that the law

violated Article 8, regardless of whether it was actively enforced:

“A law which remains on the statute books even though it is

not enforced in a particular class of cases for a considerable
time, may be applied again in such cases at any time, if for
example, there is a change of policy. The applicant can
therefore be said to ‘run the risk of being directly affected’ by
the legislation in question.”

This decision was affirmed in Modinos v Cyprus241, where the Criminal Code

of Cyprus, which penalized homosexual conduct, was alleged to constitute an

unjustified interference with the Applicant’s private life.

107 Five years after Dudgeon, the United States Supreme Court, in

Bowers v. Hardwick (“Bowers”)242, held that “sodomy” laws had been a

significant part of American history and did not violate the Constitution. The

Supreme Court’s reasoning in Bowers is a clear departure from that of the

239 Ibid, at para 61.

240 Application No. 10581/83, (1988) ECHR 22.
241 Application No. 15070/89,16 EHRR 485.
242
478 U.S. 186 (1986).

120
 PART J

ECtHR in Dudgeon. In Bowers, the Supreme Court declined to accept that

the question concerned the right to privacy. Instead, it stated that the issue

was about "a fundamental right upon homosexuals to engage in sodomy”,243

which was held not to be protected by the US Constitution.

Seventeen years later, the United States Supreme Court laid the constitutional

foundation for LGBT rights in the country with its judgment in Lawrence v

Texas (“Lawrence”).244 In Lawrence, the Petitioner had been arrested under

a Texas statute, which prohibited same-sex persons from engaging in sexual

conduct, regardless of consent. The validity of the statute was considered.

Relying on Dudgeon, the U S Supreme Court struck down the statute as

violative of the Due Process Clause of the Fourteenth Amendment to the U.S.

Constitution. Overruling the judgment in Bowers, Justice Kennedy, writing for

the majority, upheld Justice Stevens’ dissent in Bowers – who was also part

of the majority in Lawrence – to note that:

“Our prior cases make two propositions abundantly clear.

First, the fact that the governing majority in a State has
traditionally viewed a particular practice as immoral is not a
sufficient reason for upholding a law prohibiting the practice;
neither history nor tradition could save a law prohibiting
miscegenation from constitutional attack. Second, individual

243 Bowers, at para 190.

244
539 U.S. 558 (2003).

121
 PART J

decisions by married persons, concerning the intimacies of

their physical relationship, even when not intended to produce
offspring, are a form of “liberty” protected by the Due Process
Clause of the Fourteenth Amendment. Moreover, this
protection extends to intimate choices by unmarried as well
as married persons.”245

He also noted that the case concerned the private, personal relationships of

consenting adults, and that the laws challenged did not further any legitimate

state interest:

“The present case does not involve minors. It does not

involve persons who might be injured or coerced or who are
situated in relationships where consent might not easily be
refused. It does not involve public conduct or prostitution. It
does not involve whether the government must give formal
recognition to any relationship that homosexual persons seek
to enter [eg, a right to marry or to register a ‘civil union’]. The
case does involve two adults who, with full and mutual
consent from each other, engaged in sexual practices
common to a homosexual lifestyle. The petitioners are
entitled to respect for their private lives. The State cannot
demean their existence or control their destiny by making
their private sexual conduct a crime. Their right to liberty
under the Due Process Clause gives them the full right to
engage in their conduct without intervention of the
government. ... The Texas statute furthers no legitimate state
interest which can justify its intrusion into the personal and
private life of the individual....”

108 Justice Kennedy also identified the harm caused by the operation of the

criminal law:

“When homosexual conduct is made criminal by the law of

the State, that declaration in and of itself is an invitation to

245
Bowers, at para 216.

122
 PART J

subject homosexual persons to discrimination both in the

public and in the private spheres.”

The Court thus struck down the Texas law banning “deviate sexual

intercourse” between persons of the same sex (and similar laws in 13 other

US states and Puerto Rico), holding that:

“The laws involved in Bowers and here are, to be sure,

statutes that purport to do no more than prohibit a particular
sexual act. Their penalties and purposes, though, have
more far-reaching consequences, touching upon the
most private human conduct, sexual behavior, and in the
most private of places, the home. The statutes do seek to
control a personal relationship that, whether or not entitled to
formal recognition in the law, is within the liberty of persons to
choose without being punished as criminals.”
(Emphasis supplied)

109 In Toonen, the UN Human Rights Committee held that laws used to

criminalize private, adult, consensual same-sex sexual relations violate the

right to privacy and the right to non-discrimination. Mr Toonen – a member of

the Tasmanian Gay Law Reform Group – had complained to the Committee

about a Tasmanian law that criminalized ‘unnatural sexual intercourse’,

‘intercourse against nature’ and ‘indecent practice between male persons’.

The law allowed police officers to investigate intimate aspects of his private

life and to detain him if they had reason to believe that he was involved in

sexual activities with his long-term partner in the privacy of their home. Mr

123
 PART J

Toonen challenged these laws as violative of Article 2(1)246, Article 17247 and

Article 26248 of the ICCPR, on the ground that:

“[The provisions] have created the conditions for

discrimination in employment, constant stigmatization,
vilification, threats of physical violence and the violation of
basic democratic rights.”249

The Committee rejected the argument that criminalization may be justified as

“reasonable” on grounds of protection of public health or morals, noting that

the use of criminal law in such circumstances is neither necessary nor

proportionate:250

“As far as the public health argument of the Tasmanian

authorities is concerned, the Committee notes that the
criminalization of homosexual practices cannot be considered
a reasonable means or proportionate measure to achieve the
aim of preventing the spread of AIDS/HIV.”

246 Article 2(1): Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within
its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any
kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property,
birth or other status.
247 Article 17: No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or

correspondence, nor to unlawful attacks on his honour and reputation.

248
Article 26: All persons are equal before the law and are entitled without any discrimination to the equal protection
of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and
effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or other status.
249 Toonen, at para 2.4.
250
Toonen, at para. 8.5.

124
 PART J

The Court concluded that the legislation was violative of Article 7 of the

ICCPR, holding that:

“… It is undisputed that adult consensual sexual activity in

private is covered by the concept of “privacy”, and that Mr.
Toonen is actually and currently affected by the continued
existence of the Tasmanian laws.”251

110 In X v. Colombia252, the Committee clarified that there is no “Global

South exception” to Toonen.253 The Egyptian and Tunisian members of the

Committee, who dissented from the majority’s decision requiring equal

treatment of unmarried same-sex and different-sex couples, concurred with

the principle laid down in Toonen:

“[T]here is no doubt that [A]rticle 17…is violated by

discrimination on grounds of sexual orientation. The
Committee…has rightly and repeatedly found that protection
against arbitrary or unlawful interference with privacy
precludes prosecution and punishment for homosexual
relations between consenting adults.”

111 The Constitutional Tribunal of Ecuador was the first Constitutional Court

in the Global South to decriminalise sodomy laws.254 The constitutionality of

Article 516 of the Penal Code, which penalised “cases of homosexualism, that

do not constitute rape”, was challenged before the Tribunal. The Tribunal’s

251 Toonen, at para 8.2.

252 Communication No. 1361/2005.
253 Robert Wintemute, “Same-Sex Love and Indian Penal Code §377: An Important Human Rights Issue for India”

National University of Juridical Sciences Law Review, (2011).

254
Case No. 111-97-TC (27 November 1997).

125
 PART J

reasoning was that “this abnormal behaviour should be the object of medical

treatment ... imprisonment in jails, creates a suitable environment for the

development of this dysfunction.” The Tribunal’s line of reasoning – referring

to homosexual activity as ‘abnormal behaviour’, requiring medical treatment –

is seriously problematic.255 That assumption is unfounded in fact and is an

incorrect doctrine for a constitutional court which protects liberty and dignity.

However ultimately, the Tribunal struck down the first paragraph of Article 516

of the Penal Code, holding that:

“Homosexuals are above all holders of all the rights of the

human person and therefore, have the right to exercise them
in conditions of full equality ... that is to say that their rights
enjoy legal protection, as long as in the exteriorisation of their
behaviour they do not harm the rights of others, as is the case
with all other persons.”

112 The adverse impact of sodomy laws on the lives of homosexual adults

was also considered by the Constitutional Court of South Africa in National

Coalition for Gay and Lesbian Equality v. Minister of Justice (“National

Coalition”)256, in which the constitutionality of the common law offence of

sodomy and other legislations which penalised unnatural sexual acts between

men was at issue. The Constitutional Court unanimously found that the

sodomy laws, all of which purported to proscribe sexual intimacy between

255 The Tribunal’s decision was criticized by LGBT rights activists for its description of homosexuality as “abnormal
conduct.” However, a year after this decision, Ecuador became the third country in the world to include sexual
orientation as a constitutionally protected category against discrimination.
256
1999 (1) SA 6 (CC).

126
 PART J

homosexual adult men, violated their right to equality and discriminated

against them on the basis of their sexual orientation.

Justice Ackerman, concurring with the ECtHR’s observation in Norris, noted

that:

“The discriminatory prohibitions on sex between men

reinforces already existing societal prejudices and severely
increases the negative effects of such prejudices on their
lives.”257

Justice Ackerman quoted from Edwin Cameron’s “Sexual Orientation and the

Constitution: A Test Case for Human Rights”258:

“Even when these provisions are not enforced, they reduce

gay men… to what one author has referred to as
‘unapprehended felons’, thus entrenching stigma and
encouraging discrimination in employment and
insurance and in judicial decisions about custody and
other matters bearing on orientation.”259
(Emphasis supplied)

Commenting on the violation of individuals’ rights to privacy and dignity, the

Court held that:

“Gay people are a vulnerable minority group in our society.

Sodomy laws criminalise their most intimate relationships.
This devalues and degrades gay men and therefore
constitutes a violation of their fundamental right to dignity.
Furthermore, the offences criminalise private conduct

257 National Coalition, at para 23.

258 (1993) 110 SALJ 450.
259
National Coalition, at para 23.

127
 PART J

between consenting adults which causes no harm to anyone

else. This intrusion on the innermost sphere of human life
violates the constitutional right to privacy. The fact that the
offences, which lie at the heart of the discrimination, also
violate the rights to privacy and dignity strengthens the
conclusion that the discrimination against gay men is unfair.”

In its conclusion, the Court held that all persons have a right to a “sphere of

private intimacy and autonomy that allows [them] to establish and nurture

human relationships without interference from the outside community.”260

113 In 2005, the High Court of Fiji, in Dhirendra Nadan Thomas McCoskar

v. State261, struck down provisions of the Fijian Penal Code, which punished

any person who permits a male person to have “carnal knowledge” of him, as

well as acts of “gross indecency” between male persons. The High Court read

down the provisions to the extent that they were inconsistent with the

Constitution of Fiji, drawing a clear distinction between consensual and non-

consensual sexual behavior:

“What the constitution requires is that the Law acknowledges

difference, affirms dignity and allows equal respect to every
citizen as they are. The acceptance of difference celebrates
diversity. The affirmation of individual dignity offers respect to
the whole of society. The promotion of equality can be a
source of interactive vitality…A country so founded will put
sexual expression in private relationships into its proper
perspective and allow citizens to define their own good
moral sensibilities leaving the law to its necessary duties

260 National Coalition, at para 32.

261
[2005] FJHC 500.

128
 PART J

of keeping sexual expression in check by protecting the

vulnerable and penalizing the predator.”
(Emphasis supplied)

In recent years, the Caribbean States of Belize and Trinidad and Tobago have

also decriminalized consensual sexual acts between adults in private. In

Caleb Orozco v. The Attorney General of Belize (“Caleb Orozco”)262,

provisions of the Belize Criminal Code which penalized “every person who

has intercourse against the order of nature with any person…” were

challenged before the Supreme Court. Commenting on the concept of dignity,

Justice Benjamin borrowed from the Canadian Supreme Court’s observations

and noted that:263

“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 the
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 the differences.” (Emphasis supplied)

Relying on the judgments in Dudgeons, National Coalition, McCoskar,

Toonen, and Lawrence, the Supreme Court struck down the provision as

violative of the claimant’s constitutional rights to privacy, dignity, and equality.

Justice Benjamin held thus:

262 Claim No. 668 of 2010.

263
Law v Canada (Minister of Employment and Immigration) [1999] 1 S.C.R. 497.

129
 PART J

“However, from the perspective of legal principle, the Court

cannot act upon prevailing majority views or what is popularly
accepted as moral…There must be demonstrated that some
harm will be caused should the proscribed conduct be
rendered unregulated. No evidence has been presented as to
the real likelihood of such harm. The duty of the Court is to
apply the provisions of the Constitution.”264

114 In Jason Jones v. The Attorney General of Trinidad and Tobago

(“Jones”)265, an expatriate gay rights activist living in the United Kingdom

challenged the provisions of Trinidad and Tobago’s Sexual Offences Act,

which criminalized ‘buggery’ and ‘serious indecency’ before the High Court of

Justice at Trinidad and Tobago. The central issue before the Court was

whether the provisions were ‘saved’ under Section 6 of the Constitution, which

protects laws that were in existence before the Constitution came into force

and were only marginally changed since, from being struck down for breach of

fundamental rights.

The High Court struck down the provisions as unconstitutional, observing that

the right to choose a partner and to have a family is intrinsic to an individual’s

personal autonomy and dignity:

“To this court, human dignity is a basic and inalienable right

recognized worldwide in all democratic societies. Attached to
that right is the concept of autonomy and the right of an
individual to make decisions for herself/himself without any

264 Caleb Orozco, at para 81.

265
Claim no. CV2017-00720.

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unreasonable intervention by the State. In a case such as

this, she/he must be able to make decisions as to who she/he
loves, incorporates in his/her life, who she/he wishes to live
with and with who to make a family.”266

The High Court also held that the existence of such laws deliberately

undermined the lives of homosexuals:

“A citizen should not have to live under the constant threat,

the proverbial “Sword of Damocles,” that at any moment
she/he may be persecuted or prosecuted. That is the threat
that exists at present. It is a threat that is sanctioned by the
State and that sanction is an important sanction because it
justifies in the mind of others in society who are differently
minded, that the very lifestyle, life and existence of a person
who chooses to live in the way that the claimant does is
criminal and is deemed to be of a lesser value than anyone
else…The Parliament has taken the deliberate decision to
criminalise the lifestyle of persons like the claimant whose
ultimate expression of love and affection is crystallised in an
act which is statutorily unlawful, whether or not enforced.”267
(Emphasis supplied)

The High Court compared the impugned provisions to racial segregation, the

Holocaust, and apartheid, observing that:

“To now deny a perceived minority their right to humanity and

human dignity would be to continue this type of thinking, this
type of perceived superiority, based on the genuinely held
beliefs of some.”268

266 Jones, at para 91.

267 Ibid.
268
Jones, at para 171.

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115 In Leung TC William Roy v. Secretary for Justice269, the High Court

of Hong Kong considered the constitutional validity of provisions that

prescribed different ages of consent for buggery and regular sexual

intercourse. The court held that these provisions violated the petitioner’s rights

to privacy and equality:

“Denying persons of a minority class the right to sexual

expression in the only way available to them, even if that way
is denied to all, remains discriminatory when persons of a
majority class are permitted the right to sexual expression in a
way natural to them. During the course of submissions, it
was described as ‘disguised discrimination’. It is, I think, an
apt description. It is disguised discrimination founded on a
single base: sexual orientation.”270

The Court concluded that the difference in the ages of consent was

unjustifiable, noting that:

“No evidence has been placed before us to explain why the

minimum age requirement for buggery is 21 whereas as far
as sexual intercourse between a man and a woman is
concerned, the age of consent is only 16. There is, for
example, no medical reason for this and none was suggested
in the course of argument.”271

Courts around the world have not stopped at decriminalizing sodomy laws;

they have gone a step further and developed a catena of broader rights and

protections for homosexuals. These rights go beyond the mere freedom to

269 Civil Appeal No. 317 of 2005.

270 Ibid, at para 48.
271
Ibid, at para 51.

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engage in consensual sexual activity in private, and include the right to full

citizenship, the right to form unions and the right to family life.

116 Israel was one of the first countries to recognize the rights of

homosexuals against discrimination in matters of employment. In El-Al Israel

Airlines Ltd v. Jonathan Danielwitz (“El-Al Israel Airlines”)272, the Supreme

Court of Israel considered an airline company’s policy of giving discounted

tickets to their employees and a ‘companion recognized as the husband/wife

of the employee’. This benefit was also given to a partner with whom the

employee was living together like husband and wife, but not married.

However, the airline refused to give the discounted tickets to the Respondent

and his male partner.

The Supreme Court of Israel observed thus:

“The principle of equality demands that the existence of a rule

that treats people differently is justified by the nature and
substance of the issue…therefore, a particular law will create
discrimination when two individuals who are different from
one another (factual inequality), are treated differently by the
law, even though the factual difference between them
does not justify different treatment in the
circumstances.”273 (Emphasis supplied)

272 HCJ 721/94.

273
El-A Israel Airlines, at para 14.

133
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The Supreme Court held that giving a benefit to an employee who has a

spouse of the opposite sex and denying the same benefit to an employee

whose spouse is of the same sex amounts to discrimination based on sexual

orientation. This violated the Petitioner’s right to equality and created an

unjustifiable distinction in the context of employee benefits.

117 In Vriend v Alberta274, the appellant, a homosexual college employee,

was terminated from his job. He alleged that his employer had discriminated

against him because of his sexual orientation, but that he could not make a

complaint under Canada’s anti-discrimination statute – the Individual’s Rights

Protection Act (“IRPA”) – because it did not include sexual orientation as a

protected ground. The Supreme Court of Canada held that the omission of

protection against discrimination on the basis of sexual orientation was an

unjustified violation of the right to equality under the Canadian Charter of

Rights and Freedoms.

118 The Supreme Court held that the State had failed to provide a rational

justification for the omission of sexual orientation as a protected ground under

the IRPA. Commenting on the domino effect that such discriminatory

measures have on the lives of homosexuals, the Supreme Court noted thus:
274 (1998) 1 S.C.R. 493.

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“Perhaps most important is the psychological harm which

may ensue from this state of affairs. Fear of discrimination will
logically lead to concealment of true identity and this must be
harmful to personal confidence and self-esteem.
Compounding that effect is the implicit message conveyed by
the exclusion, that gays and lesbians, unlike other individuals,
are not worthy of protection. This is clearly an example of a
distinction which demeans the individual and strengthens and
perpetrates [sic] the view that gays and lesbians are less
worthy of protection as individuals in Canada’s society. The
potential harm to the dignity and perceived worth of gay and
lesbian individuals constitutes a particularly cruel form of
discrimination.”

The next breakthrough for LGBTQ rights came from the Supreme Court of

Nepal, in Sunil Babu Pant v. Nepal Government275. Sunil Pant – the first

openly gay Asian national leader – filed a PIL before the Supreme Court of

Nepal praying for the recognition of the rights of lesbians, gays, and third

gender persons. The Supreme Court located the rights of LGBTQ persons to

their sexuality within the right to privacy, holding that:

“The right to privacy is a fundamental right of any individual.

The issue of sexual activity falls under the definition of
privacy. No one has the right to question how do two adults
perform the sexual intercourse and whether this intercourse is
natural or unnatural.”

The Court held that all individuals have an inherent right to marriage,

regardless of their sexual orientation:

275
Writ Petition No. 917 of 2007.

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“Looking at the issue of same sex marriage, we hold that it is

an inherent right of an adult to have marital relation with
another adult with his/her free consent and according to
her/his will.”

In concluding, the Court directed the Nepalese government to enact new

legislation or amend existing legislation to ensure that persons of all sexual

orientations and gender identities could enjoy equal rights.

119 In 2015, in Oliari v Italy (“Oliari”)276, the Applicants before the ECtHR

argued that the absence of legislation in Italy permitting same-sex marriage or

any other type of civil union constituted discrimination on the basis of sexual

orientation, in violation of Articles 8, 12, and 14 of the European Convention

on Human Rights. In line with its previous case law, the Court affirmed that

same-sex couples “are in need of legal recognition and protection of their

relationship.”277 The ECtHR concluded that gay couples are equally capable

of entering into stable and committed relationships in the same way as

heterosexual couples.278

120 The ECtHR examined the domestic context in Italy, and noted a clear

gap between the “social reality of the applicants”,279 who openly live their

276 [2015] ECHR 716

277 Oliari, at para 165.
278 Ibid.
279
Oliari, at para. 173.

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relationship, and the law, which fails to formally recognize same-sex

partnerships. The Court held that in the absence of any evidence of a

prevailing community interest in preventing legal recognition of same-sex

partnerships, Italian authorities “have overstepped their margin of appreciation

and failed to fulfil their positive obligation to ensure that the applicants have

available a specific legal framework providing for the recognition and

protection of their same-sex unions.”280

121 In 2013, in United States v. Windsor281, US Supreme Court considered

the constitutionality of the Defense of Marriage Act (“DOMA”) which states

that, for the purposes of federal law, the words ‘marriage’ and ‘spouse’ refer to

legal unions between one man and one woman. Windsor, who had inherited

the estate of her same-sex partner, was barred from claiming the federal

estate tax exemption for surviving spouses since her marriage was not

recognized by federal law.282 Justice Kennedy writing for the majority, held

that restricting the federal interpretation of ‘marriage’ and ‘spouse’ to apply

only to opposite-sex unions was unconstitutional under the Due Process

Clause of the Fifth Amendment:

“Its [the DOMA’s] unusual deviation from the tradition of

recognizing and accepting state definitions of marriage

280 Oliari, at para 185.

281 570 U.S. 744 (2013).
282
Section 3, Defense of Marriage Act.

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operates to deprive same-sex couples of the benefits and

responsibilities that come with federal recognition of their
marriages. This is strong evidence of a law having the
purpose and effect of disapproval of a class recognized and
protected by state law. DOMA’s avowed purpose and
practical effect are to impose a disadvantage, a separate
status, and so a stigma upon all who enter into same-sex
marriages made lawful by the unquestioned authority of the
States.”

Two years later, in Obergefell v. Hodges (“Obergefell”),283 while analysing

precedent and decisions of other US courts recognizing same-sex marriage,

Justice Kennedy observed that:

“A first premise of the Court’s relevant precedents is that the

right to personal choice regarding marriage is inherent in the
concept of individual autonomy… Like choices concerning
contraception, family relationships, procreation, and
childrearing, all of which are protected by the Constitution,
decisions concerning marriage are among the most intimate
that an individual can make.”284

122 Justice Kennedy expressed the need to go beyond the narrow holding

in Lawrence, towards a more expansive view of the rights of homosexuals:

“Lawrence invalidated laws that made same- sex intimacy a

criminal act... But while Lawrence confirmed a dimension
of freedom that allows individuals to engage in intimate
association without criminal liability, it does not follow
that freedom stops there. Outlaw to outcast may be a
step forward, but it does not achieve the full promise of
liberty.” (Emphasis supplied)

283 576 U.S. ___ (2015).

284
Obergefell, at page 12.

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By a 5-4 majority, the US Supreme Court ruled that the fundamental right to

marry is guaranteed to same-sex couples by the Due Process Clause and the

Equal Protection Clause of the Fourteenth Amendment to the US Constitution.

Commenting on the right to marriage, Justice Kennedy noted:

“No union is more profound than marriage, for it embodies the

highest ideals of love, fidelity, devotion, sacrifice, and family.
… It would misunderstand these men and women to say they
disrespect the idea of marriage. Their plea is that they do
respect it, respect it so deeply that they seek to find its
fulfilment for themselves. Their hope is not to be condemned
to live in loneliness, excluded from one of civilization’s oldest
institutions. They ask for equal dignity in the eyes of the law.
The Constitution grants them that right.”

123 The recent case of Masterpiece Cakeshop v. Colorado Civil Rights

Commission (“Masterpiece Cakeshop”)285 concerned a Christian baker who

was accused of violating an anti-discrimination ordinance for refusing to make

a wedding cake for a same-sex couple based on his religious beliefs. The

Colorado Civil Rights Commission (“CCRC”) decided against the baker, and,

on appeal, the Supreme Court ruled 7-2 that the CCRC violated the baker’s

rights under the First Amendment, which guarantees freedom of expression.

Writing for the majority, Justice Kennedy said the CCRC showed “hostility” to

the baker’s religious beliefs:

285
584 U.S. ____ (2018).

139
 PART J

“It must be concluded that the State’s interest could have

been weighed against Phillips’ sincere religious objections in
a way consistent with the requisite religious neutrality that
must be strictly observed. The official expressions of hostility
to religion in some of the commissioners’ comments—
comments that were not disavowed at the Commission or by
the State at any point in the proceedings that led to
affirmance of the order—were inconsistent with what the Free
Exercise Clause requires. The Commission’s disparate
consideration of Phillips’ case compared to the cases of the
other bakers suggests the same. For these reasons, the order
must be set aside.”

The majority held that while the Constitution allows gay persons to exercise

their civil rights, “religious and philosophical objections to gay marriage are

protected views and in some instances protected forms of expression.” The

Supreme Court found merit in the baker’s First Amendment claim, noting that

his dilemma was understandable, especially given that the cause of action

arose in 2012, before the enactment of Colorado’s anti-discrimination law and

the Obergefell judgment that legalised same-sex marriage.

The court buttressed its position by noting that in several other cases, bakers

had declined to decorate cakes with messages that were derogatory towards

gay persons and the State Civil Rights Division had held that the bakers were

within their rights to have done so. According to the majority in Masterpiece

Cakeshop, the owner was similarly entitled to decline the order, and his case

should have been treated no differently.

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 PART J

124 Justice Ginsburg’s dissenting opinion, which was supported by Justice

Sotomayor, distinguished the baker in Masterpiece Cakeshop from the other

three bakers. Justice Ginsburg noted that while the other bakers would have

refused the said cake decorations to all customers, Phillips refused to bake a

wedding cake (which he baked for other customers), specifically for the

couple. She observed that:

“Phillips declined to make a cake he found offensive where

the offensiveness of the product was determined solely
by the identity of the customer requesting it. The three
other bakeries declined to make cakes where their objection
to the product was due to the demeaning message the
requested product would literally display.” (Emphasis
supplied)

“When a couple contacts a bakery for a wedding cake, the

product they are seeking is a cake celebrating their
wedding—not a cake celebrating heterosexual weddings or
same-sex weddings—and that is the service Craig and
Mullins were denied.”

Justice Ginsburg concluded that a proper application of the Colorado Anti-

Discrimination Act would require upholding the lower courts’ rulings.

125 Masterpiece Cakeshop is also distinguishable from a similar case, Lee

v. Ashers Bakery Co. Ltd.286, which is currently on appeal to the United

Kingdom Supreme Court. In that case, a bakery in Northern Ireland offered a

286
[2015] NICty 2.

141
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service whereby customers could provide messages, pictures or graphics that

would be iced on a cake. Lee – a member of an LGBT organisation – ordered

a cake with the words “support gay marriage” on it. The Christian owners

refused, stating that preparing such an order would conflict with their religious

beliefs. Lee claimed that in refusing his order, the bakery discriminated

against him on grounds of sexual orientation. Both the County Court and the

Court of Appeal ruled in favour of Lee, on the ground that the respondent’s

refusal on the ground of his religious beliefs was contrary to the provisions of

the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 and

the Fair Employment and Treatment Order 1998.

From an analysis of comparative jurisprudence from across the world, the

following principles emerge:

1. Sexual orientation is an intrinsic element of liberty, dignity, privacy,

individual autonomy and equality;

2. Intimacy between consenting adults of the same-sex is beyond the

legitimate interests of the state;

3. Sodomy laws violate equality by targeting a segment of the population for

their sexual orientation;

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4. Such a law perpetrates stereotypes, lends authority of the state to societal

stereotypes and has a chilling effect on the exercise of freedom;

5. The right to love and to a partner, to find fulfillment in a same-sex

relationship is essential to a society which believes in freedom under a

constitutional order based on rights;

6. Sexual orientation implicates negative and positive obligations on the state.

It not only requires the state not to discriminate, but also calls for the state

to recognise rights which bring true fulfillment to same-sex relationships;

and

7. The constitutional principles which have led to decriminalization must

continuously engage in a rights discourse to ensure that same-sex

relationships find true fulfillment in every facet of life. The law cannot

discriminate against same-sex relationships. It must also take positive

steps to achieve equal protection.

The past two decades have witnessed several decisions by constitutional and

international courts, recognizing both the decriminalization of same-sex

intercourse in private, as well as broader rights recognizing sexual orientation

equality. In 1996, South Africa became the first country in the world to

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constitutionally prohibit discrimination based on sexual orientation.287 As on

the date of this judgment, ten countries constitutionally prohibit discrimination

on grounds of sexual orientation.288 The United Kingdom, Bolivia, Ecuador,

Fiji, and Malta specifically prohibit discrimination on the basis of gender

identity, either constitutionally or through enacted laws.289 According the

International Lesbian, Gay, Bisexual, Trans and Intersex Association, 74

countries (including India) criminalize same-sex sexual conduct, as of 2017.290

Most of these countries lie in the Sub-Saharan and Middle East region. Some

of them prescribe death penalty for homosexuality.291

126 We are aware that socio-historical contexts differ from one jurisdiction to

another and that we must therefore look at comparative law-making

allowances for them. However, the overwhelming weight of international

opinion and the dramatic increase in the pace of recognition of fundamental

rights for same-sex couples reflects a growing consensus towards sexual

orientation equality. We feel inclined to concur with the accumulated wisdom

reflected in these judgments, not to determine the meaning of the guarantees

287 Amy Raub, “Protections Of Equal Rights Across Sexual Orientation And Gender Identity: An Analysis Of 193
National Constitutions”, Yale Journal of Law and Feminism, Vol. 28 (2017).
288 Ibid. Of these, three are in the Americas (Bolivia, Ecuador, and Mexico), four are in Europe and Central Asia

(Malta, Portugal, Sweden, and the United Kingdom), two are in East Asia and the Pacific (Fiji and New Zealand),
and one is in Sub-Saharan Africa (South Africa).
289 Ibid.
290 The International Lesbian, Gay, Bisexual, Trans And Intersex Association, “Sexual Orientation Laws of the World”,

(2017).
291
Ibid.

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contained within the Indian Constitution, but to provide a sound and

appreciable confirmation of our conclusions about those guarantees.

This evolution has enabled societies governed by liberal constitutional values

– such as liberty, dignity, privacy, equality and individual autonomy – to move

beyond decriminalisation of offences involving consensual same-sex

relationships. Decriminalisation is of course necessary to bury the ghosts of

morality which flourished in a radically different age and time. But

decriminalisation is a first step. The constitutional principles on which it is

based have application to a broader range of entitlements. The Indian

Constitution is based on an abiding faith in those constitutional values. In the

march of civilizations across the spectrum of a compassionate global order,

India cannot be left behind.

K Crime, morality and the Constitution

127 The question of what qualifies as a punishable offence under the law

has played a central role in legal theory. Attempts have been made by legal

scholars and jurists alike, to define a crime. Halsbury’s Laws of England

defines a crime as “an unlawful act or default which is an offence against the

145
 PART K

public and renders the person guilty of the act or default liable to legal

punishment.”292 As Glanville Williams observes:

“A crime is an act capable of being followed by criminal

proceedings, having a criminal outcome…criminal law is that
branch of law which deals with conduct…by prosecution in
the criminal courts.”293

Henry Hart, in his essay titled “The Aims of Criminal Law”, 294 comments on

the difficulty of a definition in this branch of law. A crime is a crime because it

is called a crime:

“If one were to judge from the notions apparently underlying

many judicial opinions, and the overt language even of some
of them, the solution of the puzzle is simply that a crime is
anything which is called a crime, and a criminal penalty is
simply the penalty provided for doing anything which has
been given that name.”295

However, Hart confesses that such a simplistic definition would be “a betrayal

of intellectual bankruptcy.”296 Roscoe Pound articulates the dilemma in

defining what constitutes an offence:

“A final answer to the question ‘what is a crime?’, is

impossible, because law is a living, changing thing, which
may at one time be uniform, and at another time give much
room for judicial discretion, which may at one time be more

292
Halsbury’s Laws of England. 3rd edition, Vol. 3, Butterworths (1953) at page. 271.
293 Glanville Williams, ‘The Definition of Crime’, Current Legal Problems, Vol. 8 (1955).
294 Henry M. Hart, “The Aims of the Criminal Law”, Law and Contemporary Problems, Vol. 23 (1958), at pages 401–

441.
295 Ibid.
296
Ibid.

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 PART K

specific in its prescription and at another time much more

general.”297

Early philosophers sought to define crime by distinguishing it from a civil

wrong. In his study of rhetoric, Aristotle observed that:

“Justice in relation to the person is defined in two ways. For it

is defined either in relation to the community or to one of its
members what one should or should not do. Accordingly, it is
possible to perform just and unjust acts in two ways, either
towards a defined individual or towards the community.”298

Kant, in the Metaphysics of Morals,299 observed that:

“A transgression of public law that makes someone who

commits it unfit to be a citizen is called a crime simply
(crimen) but is also called a public crime (crimen publicum);
so the first (private crime) is brought before a civil court, the
latter before a criminal court.”300

Another method of defining crime is from the nature of injury caused, “of being

public, as opposed to private, wrongs.”301 This distinction was brought out by

Blackstone and later by Duff, in their theories on criminal law. Blackstone, in

his “Commentaries on the Laws of England” put forth the idea that only

297 Roscoe Pound, Interpretation of Legal History, Harvard University Press (1946).
298 H.C. Lawson-Tancred, The Art of Rhetoric/ Aristotle, Penguin (2004).
299 Immanuel Kant: The Metaphysics of Morals (Mary Gregor ed.), Cambridge University Press (1996).
300 Ibid, at pages 353, 331.
301
Grant Lamond, “What is a Crime?”, Oxford Journal of Legal Studies, Vol.27 (2007).

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 PART K

actions which constitute a ‘public wrong’ will be classified as a crime.302 He

characterised public wrongs as “a breach and violation of the public rights and

duties, due to the whole community, considered as a community, in its social

aggregate capacity.”303 Duff adds to the idea of public wrong by arguing that

“[w]e should interpret a ‘public’ wrong, not as a wrong that injures the public,

but as one that properly concerns the public, i.e. the polity as a whole.”304

Nozick and Becker also support the theory that crime is conduct that harms

the public. Nozick argues that the harm caused by a crime, unlike other

private law wrongs, extends beyond the immediate victim to all those who

view themselves as potential victims of the crime.305 When such an act is

done on purpose, it spreads fear in the general community, and it is due to

this additional harm to the community [of causing fear and insecurity], that

such actions are classified as crimes and pursued by the state.306 Becker

preferred to describe crime as something which disrupts social stability and

has “the potential for destructive disturbance of fundamental social

structures.”307

302 Sir William Blackstone, Commentaries on the Laws of England, Book IV, Ch. 1 & 2.
303 Ibid.
304
Antony Duff and Sandra Marshall, “Criminalization and Sharing Wrongs”, Canadian Journal of Law and
Jurisprudence, Vol. 11, (1998) at pages 7-22.
305 Robert Nozick, Anarchy, State and Utopia, Basic Books (1974) ,at page 65.
306 Supra note 301.
307 Lawrence C. Becker, “Criminal Attempts and the Theory of the Law of Crimes”, Philosophy & Public Affairs, Vol 3

(1974), at page 273.

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However, Hart questioned the theory of simply defining crime as a public

wrong, for all wrongs affect society in some way or the other:

“Can crimes be distinguished from civil wrongs on the ground

that they constitute injuries to society generally which society
is interested in preventing? The difficulty is that society is
interested also in the due fulfilment of contracts and the
avoidance of traffic accidents and most of the other stuff of
civil litigation.” 308

128 Hart preferred to define crime in terms of the methodology of criminal

law and the characteristics of this method. He described criminal law as

possessing the following features:

“1. The method operates by means of a series of directions,

or commands, formulated in general terms, telling people
what they must or must not do…

2. The commands are taken as valid and binding upon all

those who fall within their terms when the time comes for
complying with them, whether or not they have been
formulated in advance in a single authoritative set of words…

3. The commands are subject to one or more sanctions for

disobedience which the community is prepared to enforce…

4. What distinguishes a criminal from a civil sanction and

all that distinguishes it, it is ventured, is the judgment of
community condemnation which accompanies and justifies
its imposition.”309 (Numbering and emphasis supplied)

308 Supra note 294.

309
Ibid.

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According to Hart, the first three characteristics above are common to both

civil and criminal law.310 However, the key differentiating factor between

criminal and civil law, he observed, is the “community condemnation.” 311 Thus,

he attempted to define crime as:

“Conduct which, if duly shown to have taken place, will incur a

formal and solemn pronouncement of the moral
condemnation of the community.” 312

Perhaps it is difficult to carve out a single definition of crime due to the multi-

dimensional nature of criminal law. The process of deconstructing the

criminalisation of consensual sexual acts by adults will be facilitated by

examining some criminal theories and their interplay with Section 377.

Criminal Law Theories

Bentham’s Utilitarian Theory

129 Utilitarianism has provided some of the most powerful critiques of

existing laws. Bentham was one of the earliest supporters for reform in

sodomy laws. In his essay, “Offences Against One’s Self”,313 Bentham

rebutted all the justifications given by the state for enacting laws on

310 Ibid.
311 Ibid.
312 Ibid.
313
Jeremy Bentham, “Offences Against One's Self” (Louis Crompton Ed.), Columbia University.

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sodomy.314 According to Bentham, homosexuality, if viewed outside the

realms of morality and religion, is neutral behaviour which gives the

participants pleasure and does not cause pain to anyone else. 315 Therefore,

he concluded that such an act cannot constitute an offence, and there is “no

reason for punishing it at all.”316

130 Bentham tested sodomy laws on three main principles: (i) whether they

produce any primary mischief, i.e., direct harm to another person; (ii) whether

they produce any secondary mischief, i.e., harm to the stability and security of

society; and (iii) whether they cause any danger to society.317 He argued that

sodomy laws do not satisfy any of the above tests, and hence, should be

repealed. On the first principle of primary mischief, Bentham said:

“As to any primary mischief, it is evident that it produces no

pain in anyone. On the contrary it produces pleasure, and that
a pleasure which, by their perverted taste, is by this
supposition preferred to that pleasure which is in general
reputed the greatest. The partners are both willing. If either of
them be unwilling, the act is not that which we have here in
view: it is an offence totally different in its nature of effects: it
is a personal injury; it is a kind of rape.” 318

314 Ibid.
315 Ibid.
316 Ibid.
317 Ibid.
318
Ibid.

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 PART K

Thus, Bentham argued that consensual homosexual acts do not harm anyone

else. Instead, they are a source of pleasure to adults who choose to engage in

them. Bentham was clear about the distinction between ‘willing’ partners and

‘unwilling’ partners, and the latter according to him, would not fall under his

defence.

Bentham’s second argument was that there was no secondary mischief,

which he described as something which may “produce any alarm in the

community.” On this, Bentham argued:

“As to any secondary mischief, it produces not any pain of

apprehension. For what is there in it for any body to be afraid
of? By the supposition, those only are the objects of it who
choose to be so, who find a pleasure, for so it seems they do,
in being so.”319

Bentham’s explanation was that only those adults who choose will be the

objects of homosexual sexual acts. It does not involve any activity which will

create anxiety among the rest of the society. Therefore, homosexuality does

not cause secondary harm either.

Lastly, Bentham tested sodomy laws on whether they cause danger to

society. The only danger that Bentham could apprehend was the supposed

319
Ibid.

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danger of encouraging others to engage in homosexual practices. However,

Bentham argues that since homosexual activities in themselves do not cause

any harm, there is no danger even if they have a domino effect on other

individuals:

“As to any danger exclusive of pain, the danger, if any, must

consist in the tendency of the example. But what is the
tendency of this example? To dispose others to engage in the
same practises: but this practise for anything that has yet
appeared produces not pain of any kind to anyone.” 320

Thus, according to Bentham, sodomy laws fail on all three grounds- they

neither cause primary mischief, nor secondary mischief, nor any danger to

society.

Bentham also critiqued criminal laws by analysing the utility of the punishment

prescribed by them. He succinctly described the objective of law through the

principles of utility- “The general object which all laws have, or ought to

have…is to augment the total happiness of the community; [and] to

exclude…everything that tends to subtract from that happiness.”321 According

to Bentham, “all punishment in itself is evil”322 because it reduces the level of

happiness in society, and should be prescribed only if it “excludes some

320 Ibid.
321 Ibid.
322
Ibid.

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 PART K

greater evil.”323 Bentham stipulated four kinds of situations where it is not

utilitarian to inflict punishment:

“1. Where it is groundless: where there is no mischief for it to

prevent; the act not being mischievous upon the whole.
2. Where it must be inefficacious: where it cannot act so as to
prevent the mischief.
3. Where it is unprofitable, or too expensive: where the
mischief it would produce would be greater than what it
prevented.
4. Where it is needless: where the mischief may be
prevented, or cease of itself, without it: that is, at a cheaper
rate.”324

The Harm Principle

131 John Stuart Mill, in his treatise “On Liberty,” makes a powerful case to

preclude governments from interfering in those areas of an individual’s life

which are private. Mill’s theory, which came to be called the “harm principle”,

suggests that the state can intrude into private life by way of sanction only if

harm is caused to others or if the conduct is “other-affecting.”325 In Mill’s

words:

“The only purpose for which power can be rightfully exercised

over any member of a civilised community, against his will, is
to prevent harm to others. His own good, either physical or
moral, is not a sufficient warrant. He cannot rightfully be
compelled to do or forbear because it will be better for him to
do so, because it will make him happier, because, in the

323 Ibid.
324 Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, The Library of Economics and
Liberty (1823).
325
John Stuart Mill, On Liberty, (Elizabeth Rapaport ed), Hackett Publishing Co, Inc (1978).

154
 PART K

opinions of others, to do so would be wise, or even right…

The only part of the conduct of any one, for which he is
amenable to society, is that which concerns others. In the part
which merely concerns himself, his independence is, of right,
absolute. Over himself, over his own body and mind, the
individual is sovereign.” 326 (Emphasis supplied)

Mill created a dichotomy between “self-regarding” actions (those which affect

the individual himself and have no significant effect on society at large) and

“other-regarding” actions (those which affect the society).327 He was aware

that in a way, all actions of an individual are likely to affect “those nearly

connected with him and, in a minor degree, society at large.”328 However, he

argued that as long as an action does not “violate a distinct and assignable

obligation to any other person or persons”, it may not be taken out of the self-

regarding class of actions.329 Thus, Mill proposed that “all that portion of a

person’s life and conduct which affects only himself, or, if it also affects others,

only with their free, voluntary, and undeceived consent and participation”

should be free from state interference.330 He further added that the state and

society are not justified in interfering in the self-regarding sphere, merely

because they believe certain conduct to be “foolish, perverse, or wrong.”331

326
Ibid.
327 Ibid.
328 Ibid.
329 Ibid.
330 Ibid.
331
Ibid.

155
 PART K

Essentially, Mill created a taxonomy on types of conduct – (a) self-regarding

actions should not be the subject of sanctions either from the state or society;

(b) actions which may hurt others but do not violate any legal rights may only

be the subject of public condemnation but not state sanction; (c) only action

which violate the legal rights of others should be the subject of legal sanction

(and public condemnation).332 The harm principle thus, operated as a negative

or limiting principle, with the main objective of restricting criminal law from

penalising conduct merely on the basis of its perceived immorality or

unacceptability when the same is not harmful.333

While Mill’s theory was not propounded in relation to LGBTQ rights, his

understanding of criminal law is well-suited to argue that sodomy laws

criminalise ‘self-regarding’ actions which fall under the first category of

conduct, and should not be subjected to sanctions either by the state or the

society.

132 A jurisprudential debate on the interplay between criminal law and

morality was set off when Lord Devlin delivered the 1959 Maccabean Lecture,

332 Mark Strasser, “Lawrence, Mill, and Same Sex Relationships: On Values, Valuing and the Constitution”, Southern
California Interdisciplinary Law Journal, Vol. 15 (2006).
333 Joseph Raz, ‘Autonomy, Toleration and the Harm Principle’, in Issues in Contemporary Legal Philosophy: The

Influence of HLA Hart (R. Gavison ed.), Oxford University Press (1987).

156
 PART K

titled “The Enforcement of Morals.”334 Lord Devlin’s lecture was an attack

against the Report of the Wolfenden Committee on Homosexual Offences and

Prostitution (“Wolfenden Report”), which had recommended the

decriminalisation of sodomy laws in England.335 The Wolfenden Committee,

headed by Sir John Wolfenden, Vice-Chancellor of Reading University, was

set up in 1954 to consider the criminalisation of homosexuality and

prostitution, in the wake of increased arrests and convictions in the UK for

homosexuality between men.336 Among those prosecuted for ‘gross

indecency’ under the Buggery Act of 1553 and Sexual Offences Act of 1967

were eminent persons like Oscar Wilde, Alan Turing and Lord Montagu of

Beaulieu.337 After conducting a three-year long inquiry, carrying out empirical

research, and interviewing three gay men, the Wolfenden Committee

released its Report in 1957.338 The Wolfenden Report recommended that:

“Homosexual behaviour between consenting adults should no

longer be a criminal offence... Unless a deliberate attempt is
to be made by society, acting through the agency of the law,
to equate the sphere of crime with that of sin, there must
remain a realm of private morality and immorality which is, in
brief and crude terms, not the law’s business.”339

334
Graham Hughes, “Morals and the Criminal Law”, The Yale Law Journal, Vol.71 (1962).
335 Supra note 29.
336 Ibid.
337 Ibid.
338 Ibid.
339
Supra note 29, at paras 61 and 62.

157
 PART K

The Wolfenden Report stated that “it is not the purpose of law to intervene in

the private lives of citizens, or to seek to enforce any particular pattern of

behaviour…”340 The Wolfenden Report acknowledged that the law and public

opinion have a close relationship with each other – the law ought to “follow

behind public opinion” so that it garners the community support, while at the

same time, the law must also fortify and lead public opinion.341 However, it

made out a strong case for divorcing morality from criminal law and stated that

- “moral conviction or instinctive feeling, however strong, is not a valid basis

for overriding the individual’s privacy and for bringing within the ambit of the

criminal law private sexual behaviour of this kind.”342 Stating that

homosexuality is not a mental illness, the Wolfenden Report clarified that

homosexuality is “a sexual propensity for persons of one’s own sex…[it] is a

state or condition, and as such does not, and cannot, come within the purview

of criminal law.”343

133 Lord Devlin, perturbed by the Wolfenden Report’s line of reasoning,

framed questions on the issue of criminal law and morality:

“1. Has society the right to pass judgments on all matters of

morals?

340 Ibid, at para 14.

341 Ibid, at para 16.
342 Ibid, at para 54.
343
Ibid, at para 18.

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 PART K

2. If society has the right to pass judgment, has it also the

right to use the weapon of the law to enforce it?”344

Devlin believed that society depends upon a common morality for its stability

and existence.345 On the basis of this belief, Devlin answered the above

questions in the affirmative, stating that – society has the right to pass

judgments on all matters of morality and also the right to use law to enforce

such morality.346 Devlin reasoned that society would disintegrate if a common

morality was not observed. Therefore, society is justified in taking steps to

preserve its morality as much as it preserves the government.347 Devlin

proposed that the common morality or “collective judgment of the society”

should be ascertained taking into consideration the “reasonable man.”348

According to him, a reasonable man is an ordinary man whose judgment “may

largely be a matter of feeling.”349 He added that if the reasonable man

believed a practice to be immoral, and held this belief honestly and

dispassionately, then for the purpose of law such practice should be

considered immoral.350

344 Sir Patrick Arthur Devlin, “The Enforcement Of Morals” Oxford University Press (1959) at page 9.
345 Supra note 334, at page 662.
346
Animesh Sharma, “Section 377: No Jurisprudential Basis.” Economic and Political Weekly, Vol. 43 (2008) at
pages 12-14.
347 Supra note 344.
348 Ibid.
349 Ibid.
350
Ibid.

159
 PART K

134 Countering Devlin’s theory, Hart argued that society is not held together

by a common morality, for, after all, it is not a hive mind or a monolith,

governed by a singular set of morals and principles.351 Hart rebutted Devlin’s

argument in the following way:

“…apart from one vague reference to ‘history’ showing the

‘the loosening of moral bonds is often the first stage of
disintegration,’ no evidence is produced to show that
deviation from accepted sexual morality, even by adults in
private is something which, like treason, threatens the
existence of society. No reputable historian has maintained
this thesis, and there is indeed much evidence against
it…Lord Devlin’s belief in it [that homosexuality is a cause of
societal disintegration], and his apparent indifference to the
question of evidence, are at points traceable to an
undiscussed assumption. This is that all morality – sexual
morality together with the morality that forbids acts injurious to
others such as killing, stealing, and dishonesty -- forms a
single seamless web, so that those who deviate from any part
are likely to perhaps bound to deviate from the whole. It is of
course clear (and one of the oldest insights of political theory)
that society could not exist without a morality which mirrored
and supplemented the law’s proscription of conduct injurious
to others. But there is again no evidence to support, and
much to refute, the theory that those who deviate from
conventional sexual morality are in other ways hostile to
society.”352

Despite countering Devlin, Hart was not completely opposed to a relationship

between law and morality, and in fact, he emphasised that the two are closely

related:

351 Supra note 346, at pages 12-14.

352 Hart, H. L. A, “The Changing Sense of Morality” In Political Thought (Michael Rosen and Jonathan Wolff eds.),
Oxford University Press (1999) at pages 140-141.

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 PART K

“The law of every modem state shows at a thousand points

the influence of both the accepted social morality and wider
moral ideals. These influences enter into law either abruptly
and avowedly through legislation, or silently and piecemeal
through the judicial process…The further ways in which law
mirrors morality are myriad, and still insufficiently studied:
statutes may be a mere legal shell and demand by their
express terms to be filled out with the aid of moral principles;
the range of enforceable contracts may be limited by
reference to conceptions of morality and fair- ness; liability for
both civil and criminal wrongs may be adjusted to prevailing
views of moral responsibility.” 353

However, unlike Devlin, Hart did not propose that morality is a necessary

condition for the validity of law.354 Hart argued, in summary, that “law is

morally relevant,” but “not morally conclusive.”355 Hart vehemently disagreed

with Devlin's view that if laws are not based on some collective morality and

enacted to buttress that morality, society will disintegrate.356 Hart draws this

distinction by conceding that certain sexual acts (including homosexual acts)

were considered ‘immoral’ by mainstream Western society but adding that

private sexual acts are an issue of “private morality” over which society has no

interest and the law, no control.357

Hart further expounded his warning about the imposition of majoritarian

morals, propounding that “[l]t is fatally easy to confuse the democratic

353
H.L.A. Hart, Law, Liberty And Morality (1979).
354 William Starr, “Law and Morality in H.L.A. Hart’s Legal Philosophy”, Marquette Law Review, Vol. 67 (1984).
355 Ibid.
356 Supra note 352.
357 Peter August Bittlinger, “Government enforcement of morality: a critical analysis of the Devlin-Hart controversy”,

Doctoral Dissertations 1896-February 2014 (1975) at pages 69-70.

161
 PART K

principle that power should be in the hands of the majority with the utterly

different claim that the majority, with power in their hands, need respect no

limits”358:

“Whatever other arguments there may be for the enforcement

of morality, no one should think even when popular morality is
supported by an “overwhelming majority” or marked by
widespread "intolerance, indignation, and disgust" that loyalty
to democratic principles requires him to admit that its
imposition on a minority is justified.”359

In this way, Hart avoided the specious generalization that the law must be

severely quarantined from morality but still made it clear that laws like Section

377, which impose a majoritarian view of right and wrong upon a minority in

order to protect societal cohesion, are jurisprudentially and democratically

impermissible.

Bentham had a different view on morality and weighed morality against

utilitarian principles. Bentham argued that if the punishment is not utilitarian

(i.e. does not serve as a deterrent, is unprofitable, or unnecessary), the

‘immoral’ action would have to go unpunished.360 He opined that legislators

should not be overly swayed by the society’s morality:

358 Ibid at page 91.

359 Ibid at page 93.
360
Supra note 334.

162
 PART K

“The strength of their prejudice is the measure of the

indulgence which should be granted to it…The legislator
ought to yield to the violence of a current which carries away
everything that obstructs it.

But ought the legislator to be a slave to the fancies of those

whom he governs? No. Between an imprudent opposition and
a servile compliance, there is a middle path, honourable and
safe.”361

In other words, it appears that Bentham argued that the morality of the people

ought not be ignored in creating laws but also must not become their

unchecked fount. And if prejudicial moralities arise from the people, they

should not be unthinkingly and permanently cemented into the law, but rather

addressed and conquered.

John Stuart Mill also made a strong argument against popular morality being

codified into laws. He argued that ‘disgust’ cannot be classified as harm, and

those “who consider as an injury to themselves any conduct which they have

a distaste for”, cannot dictate the actions of others merely because such

actions contradict their own beliefs or views.362 Mill believed that society is not

the right judge when dealing with the question of when to interfere in conduct

361 Ibid.
362
Supra note 325.

163
 PART K

that is purely personal, and that when society does interfere, “the odds are

that it interferes wrongly and in the wrong place.”363

135 Christopher R Leslie points out the dangers of letting morality creep into

law:

“Current generations enshrine their morality by passing laws

and perpetuate their prejudices by handing these laws down
to their children. Soon, statutes take on lives of their own, and
their very existence justifies their premises and consequent
implications. The underlying premises of ancient laws are
rarely discussed, let alone scrutinized.”364

Leslie further adds that “sodomy laws do not merely express societal

disapproval; they go much further by creating a criminal class”365:

“Sodomy laws are kept on the books, even though state

governments do not intend to actively enforce them, because
the laws send a message to society that homosexuality is
unacceptable. Even without actual criminal prosecution, the
laws carry meaning… In short, the primary importance of
sodomy laws today is the government’s message to diminish
the societal status of gay men and lesbians.”366

136 A broad analysis of criminal theory points to the general conclusion that

criminologists and legal philosophers have long been in agreement about one

basic characteristic of crime: that it should injure a third person or the society.

363 Ibid.
364 Christopher. R. Leslie, “Creating criminals: The Injuries Inflicted by “Unenforced” Sodomy Laws”, Harvard Civil
Rights and Civil Liberties Law Review, Vol. 35 (2000).
365 Ibid, at pages 103-181.
366
Ibid.

164
 PART K

An element of larger public interest emerges as the crux of crime. The

conduct which Section 377 criminalises voluntary ‘carnal intercourse against

the order of nature’ with a man or woman, inter alia – pertains solely to acts

between consenting adults. Such conduct is purely private, or as Mill would

call it, “self-regarding,” and is neither capable of causing injury to someone

else nor does it pose a threat to the stability and security of society. Once the

factor of consent is established, the question of such conduct causing any

injury, does not arise.

Although Section 377 prima facie appears to criminalise certain acts or

conduct, it creates a class of criminals, consisting of individuals who engage

in consensual sexual activity. It typecasts LGBTQ individuals as sex-

offenders, categorising their consensual conduct on par with sexual offences

like rape and child molestation. Section 377 not only criminalises acts

(consensual sexual conduct between adults) which should not constitute

crime, but also stigmatises and condemns LGBTQ individuals in society.

137 We are aware of the perils of allowing morality to dictate the terms of

criminal law. If a single, homogenous morality is carved out for a society, it will

undoubtedly have the effect of hegemonizing or ‘othering’ the morality of

minorities. The LGBTQ community has been a victim of the pre-dominant

165
 PART L

(Victorian) morality which prevailed at the time when the Indian Penal Code

was drafted and enacted. Therefore, we are inclined to observe that it is

constitutional morality, and not mainstream views about sexual morality, which

should be the driving factor in determining the validity of Section 377.

L Constitutional morality

138 With the attainment of independence on 15 August 1947, Indians were

finally free to shape their own destiny.367 The destiny was to be shaped

through a written Constitution. Constitutions are scripts in which people

inscribe the text of their professed collective destiny. They write down who

they think they are, what they want to be, and the principles that will guide

their interacting along that path in the future.368 The Constitution of India was

burdened with the challenge of “drawing a curtain on the past”369 of social

inequality and prejudices. Those who led India to freedom established into the

Constitution the ideals and vision of a vibrant equitable society. The framing of

India’s Constitution was a medium of liberating the society by initiating the

process of establishing and promoting the shared values of liberty, equality

367 Jawaharlal Nehru, “Tryst with Destiny”, address to the Constituent Assembly of India, delivered on 14-15 August
1947.
368 Uday S. Mehta, “Constitutionalism”, In The Oxford Companion to Politics in India (Niraja Gopal Jayal and Pratap

Bhanu Mehta eds.), Oxford University Press (2010), at page 15.

369
Ibid, at page 16.

166
 PART L

and fraternity. Throughout history, socio-cultural revolts, anti-discrimination

assertions, movements, literature and leaders have worked at socializing

people away from supremacist thought and towards an egalitarian existence.

The Indian Constitution is an expression of these assertions. It was an attempt

to reverse the socializing of prejudice, discrimination, and power hegemony in

a disjointed society. All citizens were to be free from coercion or restriction by

the state, or by society privately.370 Liberty was no longer to remain the

privilege of the few. The judgment in Puttaswamy highlights the commitment

of the constitution makers, thus:

“The vision of the founding fathers was enriched by the

histories of suffering of those who suffered oppression and a
violation of dignity both here and elsewhere.”

139 Understanding the vision of India at a time when there was little else

older than that vision, is of paramount importance for the reason that though

the people may not have played any role in the actual framing of the

Constitution, the Preamble professes that the Constitution has been adopted

by the people themselves. Constitutional historian Granville Austin has said

that the Indian Constitution is essentially a social document.371 The Indian

Constitution does not provide merely a framework of governance. It embodies

a vision. It is goal-oriented and its purpose is to bring about a social

370 Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University Press (1966), at page 65.
371
Ibid, at page 63.

167
 PART L

transformation in the country. It represents the aspirations of its framers. The

democratic Constitution of India embodies provisions which are value-based.

140 During the framing of the Constitution, it was realized by the members

of the Constituent Assembly that there was a wide gap between constitutional

precept and reality. The draftspersons were clear that the imbibing of new

constitutional values by the population at large would take some time. Society

was not going to change overnight. Dr Ambedkar remarked in the Constituent

Assembly:

“Democracy in India is only a top-dressing on an Indian soil,

which is essentially undemocratic.”

141 The values of a democracy require years of practice, effort, and

experience to make the society work with those values. Similar is the position

of non-discrimination, equality, fraternity and secularism. While the

Constitution guarantees equality before the law and equal protection of the

law, it was felt that the realization of the constitutional vision requires the

existence of a commitment to that vision. Dr Ambedkar described this

commitment to be the presence of constitutional morality among the members

of the society. The conception of constitutional morality is different from that of

public or societal morality. Under a regime of public morality, the conduct of

168
 PART L

society is determined by popular perceptions existent in society. The

continuance of certain symbols, labels, names or body shapes determine the

notions, sentiments and mental attitudes of the people towards individuals and

things.372 Constitutional morality determines the mental attitude towards

individuals and issues by the text and spirit of the Constitution. It requires that

the rights of an individual ought not to be prejudiced by popular notions of

society. It assumes that citizens would respect the vision of the framers of the

Constitution and would conduct themselves in a way which furthers that

vision. Constitutional morality reflects that the ideal of justice is an overriding

factor in the struggle for existence over any other notion of social acceptance.

It builds and protects the foundations of a democracy, without which any

nation will crack under its fissures. For this reason, constitutional morality has

to be imbibed by the citizens consistently and continuously. Society must

always bear in mind what Dr Ambedkar observed before the Constituent

Assembly:

“Constitutional morality is not a natural sentiment. It has to be

cultivated. We must realize that our people have yet to learn
it.”

372 Babasaheb.R. Ambedkar, Annihilation of Caste, Navayana Publishing (2014); See also Martha C. Nussbaum,
“Disgust or Equality? Sexual Orientation and Indian Law”, Journal of Indian Law and Society, Vol. 6 (2010).

169
 PART L

142 In the decision in Government of NCT of Delhi v. Union of India373,

the Constitution Bench of this Court dealt with the constitutive elements of

constitutional morality which govern the working of a democratic system and

representative form of government. Constitutional morality was described as

founded on a “constitutional culture”, which requires the “existence of

sentiments and dedication for realizing a social transformation which the

Indian Constitution seeks to attain.” This Court held thus:

“If the moral values of our .Constitution were not upheld at

every stage, the text of the Constitution may not be enough to
protect its democratic values.”

This Court held that constitutional morality acts a check against the “tyranny of

the majority” and as a “threshold against an upsurge in mob rule.” It was held

to be a balance against popular public morality.

143 Constitutional morality requires in a democracy the assurance of certain

minimum rights, which are essential for free existence to every member of

society. The Preamble to the Constitution recognises these rights as “Liberty

of thought, expression, belief, faith and worship” and “Equality of status and of

opportunity.” Constitutional morality is the guarantee which seeks that all

inequality is eliminated from the social structure and each individual is

373
2018 (8) SCALE 72

170
 PART L

assured of the means for the enforcement of the rights guaranteed.

Constitutional morality leans towards making Indian democracy vibrant by

infusing a spirit of brotherhood amongst a heterogeneous population,

belonging to different classes, races, religions, cultures, castes and sections.

Constitutional morality cannot, however, be nurtured unless, as recognised by

the Preamble, there exists fraternity, which assures and maintains the dignity

of each individual. In his famous, yet undelivered speech titled “Annihilation of

Caste” (which has been later published as a book), Dr Ambedkar described

‘fraternity’ as “primarily a mode of associated living, of conjoint communicated

experience” and “essentially an attitude of respect and reverence towards

fellow men.”374 He remarked:

“An ideal society should be mobile, should be full of channels

for conveying a change taking place in one part to other parts.
In an ideal society there should be many interests consciously
communicated and shared. There should be varied and free
points of contact with other modes of association. In other
words there must be social endosmosis. This is fraternity,
which is only another name for democracy.”

In his last address to the Constituent Assembly, he defined fraternity as “a

sense of common brotherhood of all Indians.” As on the social and economic

plane, Indian society was based on graded inequality, Dr Ambedkar had

warned in clear terms:

“Without fraternity, liberty [and] equality could not become a

natural course of things. It would require a constable to

374
Supra note 372, at para 14.2.

171
 PART L

enforce them… Without fraternity equality and liberty will be

no deeper than coats of paint.”375

144 Constitutional morality requires that all the citizens need to have a

closer look at, understand and imbibe the broad values of the Constitution,

which are based on liberty, equality and fraternity. Constitutional morality is

thus the guiding spirit to achieve the transformation which, above all, the

Constitution seeks to achieve. This acknowledgement carries a necessary

implication: the process through which a society matures and imbibes

constitutional morality is gradual, perhaps interminably so. Hence,

constitutional courts are entrusted with the duty to act as external facilitators

and to be a vigilant safeguard against excesses of state power and

democratic concentration of power. This Court, being the highest

constitutional court, has the responsibility to monitor the preservation of

constitutional morality as an incident of fostering conditions for human dignity

and liberty to flourish. Popular public morality cannot affect the decisions of

this Court. Lord Neuberger (of the UK Supreme Court) has aptly observed:

“[W]e must always remember that Parliament has democratic

legitimacy – but that has disadvantages as well as
advantages. The need to offer oneself for re-election
sometimes makes it hard to make unpopular, but correct,
decisions. At times it can be an advantage to have an

375
Constituent Assembly Debates (25 November 1949).

172
 PART L

independent body of people who do not have to worry about

short term popularity.”376

The flourishing of a constitutional order requires not only the institutional

leadership of constitutional courts, but also the responsive participation of the

citizenry.377 Constitutional morality is a pursuit of this responsive participation.

The Supreme Court cannot afford to denude itself of its leadership as an

institution in expounding constitutional values. Any loss of its authority will

imperil democracy itself.

145 The question of morality has been central to the concerns around

homosexuality and the rights of LGBT individuals. Opponents – including

those of the intervenors who launched a diatribe in the course of hearing –

claim that homosexuality is against popular culture and is thus unacceptable in

Indian society. While dealing with the constitutionality of Section 377 of the

Indian Penal Code, the Delhi High Court in Naz Foundation had held:

“Thus popular morality or public disapproval of certain acts is

not a valid justification for restriction of the fundamental rights
under Article 21. Popular morality, as distinct from a
constitutional morality derived from constitutional values, is
based on shifting and subjecting notions of right and wrong. If
there is any type of “morality” that can pass the test of
compelling state interest, it must be “constitutional” morality

376 Lord Neuberger, “UK Supreme Court decisions on private and commercial law: The role of public policy and
public interest”, Centre for Commercial Law Studies Conference (2015).
377 Marc Galanter, “Fifty Years on”, in BN Kirpal et al, Supreme but Not Infallible: Essays in Honour of the Supreme
Court of India, Oxford University Press (2000), at page 57.

173
 PART L

and not public morality… In our scheme of things,

constitutional morality must outweigh the argument of public
morality, even if it be the majoritarian view.”

The invocation of constitutional morality must be seen as an extension of Dr

Ambedkar’s formulation of social reform and constitutional transformation.

Highlighting the significance of individual rights in social transformation, he

had observed:

“The assertion by the individual of his own opinions and

beliefs, his own independence and interest—over and against
group standards, group authority, and group interests—is the
beginning of all reform. But whether the reform will continue
depends upon what scope the group affords for such
individual assertion.”378

After the enactment of the Constitution, every individual assertion of rights is

to be governed by the principles of the Constitution, by its text and spirit. The

Constitution assures to every individual the right to lead a dignified life. It

prohibits discrimination within society. It is for this reason that constitutional

morality requires this court to issue a declaration - which we now do - that

LGBT individuals are equal citizens of India, that they cannot be discriminated

against and that they have a right to express themselves through their

intimate choices. In upholding constitutional morality, we affirm that the

protection of the rights of LGBT individuals are not only about guaranteeing a

378
Supra note 373, at para 12.1.

174
 PART L

minority their rightful place in the constitutional scheme, but that we equally

speak of the vision of the kind of country we want to live in and of what it

means for the majority.379 The nine-judge Bench of this Court in Puttaswamy

had held in clear terms that discrimination against an individual on the basis of

sexual orientation is deeply offensive to the dignity and self-worth of the

individual. The Bench held:

“The purpose of elevating certain rights to the stature of

guaranteed fundamental rights is to insulate their exercise
from the disdain of majorities, whether legislative or popular.
The guarantee of constitutional rights does not depend upon
their exercise being favourably regarded by majoritarian
opinion. The test of popular acceptance does not furnish a
valid basis to disregard rights which are conferred with the
sanctity of constitutional protection. Discrete and insular
minorities face grave dangers of discrimination for the simple
reason that their views, beliefs or way of life does not accord
with the ‘mainstream’. Yet in a democratic Constitution
founded on the rule of law, their rights are as sacred as those
conferred on other citizens to protect their freedoms and
liberties.”

Constitutional morality will impact upon any law which deprives the LGBT

individuals of their entitlement to a full and equal citizenship. After the

Constitution came into force, no law can be divorced from constitutional

morality. Society cannot dictate the expression of sexuality between

consenting adults. That is a private affair. Constitutional morality will

379
Supra note 41.

175
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supersede any culture or tradition.

The interpretation of a right in a matter of decriminalisation and beyond must

be determined by the norms of the Constitution.

146 LGBT individuals living under the threats of conformity grounded in

cultural morality have been denied a basic human existence. They have been

stereotyped and prejudiced. Constitutional morality requires this Court not to

turn a blind eye to their right to an equal participation of citizenship and an

equal enjoyment of living. Constitutional morality requires that this Court must

act as a counter majoritarian institution which discharges the responsibility of

protecting constitutionally entrenched rights, regardless of what the majority

may believe.380 Constitutional morality must turn into a habit of citizens. By

respecting the dignity of LGBT individuals, this Court is only fulfilling the

foundational promises of our Constitution.

M In summation : transformative constitutionalism

147 This case has required a decision on whether Section 377 of the Penal

Code fulfills constitutional standards in penalising consensual sexual conduct

between adults of the same sex. We hold and declare that in penalising such

380
Ibid.

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sexual conduct, the statutory provision violates the constitutional guarantees

of liberty and equality. It denudes members of the LGBT communities of their

constitutional right to lead fulfilling lives. In its application to adults of the

same sex engaged in consensual sexual behaviour, it violates the

constitutional guarantee of the right to life and to the equal protection of law.

148 Sexual orientation is integral to the identity of the members of the LGBT

communities. It is intrinsic to their dignity, inseparable from their autonomy

and at the heart of their privacy. Section 377 is founded on moral notions

which are an anathema to a constitutional order in which liberty must trump

over stereotypes and prevail over the mainstreaming of culture. Our

Constitution, above all, is an essay in the acceptance of diversity. It is founded

on a vision of an inclusive society which accommodates plural ways of life.

149 The impact of Section 377 has travelled far beyond criminalising certain

acts. The presence of the provision on the statute book has reinforced

stereotypes about sexual orientation. It has lent the authority of the state to

the suppression of identities. The fear of persecution has led to the closeting

of same sex relationships. A penal provision has reinforced societal disdain.

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150 Sexual and gender based minorities cannot live in fear, if the

Constitution has to have meaning for them on even terms. In its quest for

equality and the equal protection of the law, the Constitution guarantees to

them an equal citizenship. In de-criminalising such conduct, the values of the

Constitution assure to the LGBT community the ability to lead a life of freedom

from fear and to find fulfilment in intimate choices.

151 The choice of a partner, the desire for personal intimacy and the

yearning to find love and fulfilment in human relationships have a universal

appeal, straddling age and time. In protecting consensual intimacies, the

Constitution adopts a simple principle: the state has no business to intrude

into these personal matters. Nor can societal notions of heteronormativity

regulate constitutional liberties based on sexual orientation.

152 This reference to the Constitution Bench is about the validity of Section

377 in its application to consensual sexual conduct between adults of the

same sex. The constitutional principles which we have invoked to determine

the outcome address the origins of the rights claimed and the source of their

protection. In their range and content, those principles address issues broader

than the acts which the statute penalises. Resilient and universal as they are,

these constitutional values must enure with a mark of permanence.

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153 Above all, this case has had great deal to say on the dialogue about the

transformative power of the Constitution. In addressing LGBT rights, the

Constitution speaks – as well – to the rest of society. In recognising the rights

of the LGBT community, the Constitution asserts itself as a text for

governance which promotes true equality. It does so by questioning prevailing

notions about the dominance of sexes and genders. In its transformational

role, the Constitution directs our attention to resolving the polarities of sex and

binarities of gender. In dealing with these issues we confront much that

polarises our society. Our ability to survive as a free society will depend upon

whether constitutional values can prevail over the impulses of the time.

154 A hundred and fifty eight years is too long a period for the LGBT

community to suffer the indignities of denial. That it has taken sixty eight years

even after the advent of the Constitution is a sobering reminder of the

unfinished task which lies ahead. It is also a time to invoke the transformative

power of the Constitution.

155 The ability of a society to acknowledge the injustices which it has

perpetuated is a mark of its evolution. In the process of remedying wrongs

under a regime of constitutional remedies, recrimination gives way to

restitution, diatribes pave the way for dialogue and healing replaces the hate

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of a community. For those who have been oppressed, justice under a regime

committed to human freedom, has the power to transform lives. In addressing

the causes of oppression and injustice, society transforms itself. The

Constitution has within it the ability to produce a social catharsis. The

importance of this case lies in telling us that reverberations of how we address

social conflict in our times will travel far beyond the narrow alleys in which

they are explored.

156 We hold and declare that:

(i) Section 377 of the Penal Code, in so far as it criminalises consensual

sexual conduct between adults of the same sex, is unconstitutional;

(ii) Members of the LGBT community are entitled, as all other citizens, to

the full range of constitutional rights including the liberties protected by

the Constitution;

(iii) The choice of whom to partner, the ability to find fulfilment in sexual

intimacies and the right not to be subjected to discriminatory behaviour

are intrinsic to the constitutional protection of sexual orientation;

(iv) Members of the LGBT community are entitled to the benefit of an equal

citizenship, without discrimination, and to the equal protection of law;

and

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(v) The decision in Koushal stands overruled.

Acknowledgment

Before concluding, I acknowledge the efforts of counsel for the petitioners and

intervenors who appeared in this case – Mr Mukul Rohatgi, Mr Arvind Datar,

Mr Ashok Desai, Mr Anand Grover, Mr Shyam Divan, Mr CU Singh and Mr

Krishnan Venugopal, Senior Counsel; and Mr Saurabh Kirpal, Dr Menaka

Guruswamy and Ms Arundhati Katju, and Ms Jayna Kothari, learned Counsel.

Their erudition has enabled us to absorb, as we reflected and wrote. Mr

Tushar Mehta, learned Additional Solicitor General appeared for the Union of

India. We acknowledge the assistance rendered by the counsel for the

intervenors who opposed the petitioners.

…….....….............................................J
[Dr Dhananjaya Y Chandrachud]

New Delhi;
September 06, 2018.

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