Judges: Dipak Misra, C.J.I., A.M. Khanwilkar, Rohinton Fali Nariman, Dr. D.Y. Chandrachud and Indu Malhotra, JJ.

Facts:

Writ Petition (Criminal) No. 76 of 2016 was filed for declaring "right to sexuality", "right to sexual autonomy" and "right to choice of a sexual partner" to be part of the right to life guaranteed Under Article 21 of the Constitution of India and further to declare

Section 377 of the Indian Penal Code (IPC) to be unconstitutional. When the said Writ Petition was listed before a three-Judge Bench on 08.01.2018, the Court referred to a two-Judge Bench decision rendered in Suresh Kumar Koushal and Anr. v. Naz Foundation and Ors. MANU/SC/1278/2013 wherein this Court had overturned the decision rendered by the Division Bench of the Delhi High Court in Naz Foundation v. Government of NCT of Delhi and Ors. MANU/DE/0869/2009.

The three-Judge Bench while dealing with the issues observed that the decision in Suresh Kumar Koushal's case (supra) requires re-consideration and so, expressed the opinion that the issues raised should be answered by a larger Bench. Accordingly, the has been placed before present bench.

Issues:

(i) Whether the law laid down in Suresh Kumar Koushal and Anr. v. Naz Foundation and Ors. MANU/SC/1278/2013 is correct or not?

(ii) Whether criminalizing 'consensual acts of adults in private' falling Under Section 377 of Indian Penal Code is constitutionally valid?

Laws:

Indian Penal Code, 1860 - Section 377 - Of Unnatural Offences : Unnatural offences

Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], 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.

Contentions:

Petitioners

(i) Homosexuality, bisexuality and other sexual orientations are equally natural and reflective of expression of choice and inclination founded on consent of two persons who are eligible in law to express such consent.

(ii) It is neither a physical nor a mental illness, rather they are natural variations of expression and free thinking process and to make it a criminal offence is offensive of the well established principles pertaining to individual dignity and decisional autonomy inherent in the personality of a person, a great discomfort to gender identity, destruction of the right to privacy which is a pivotal facet of Article 21 of the Constitution, unpalatable to the highly cherished idea of freedom and a trauma to the conception of expression of biological desire which revolves around the pattern of mosaic of true manifestation of identity.

(iii) That apart, the phrase "order of nature" is limited to the procreative concept that may have been conceived as natural by a systemic conservative approach and such limitations do not really take note of inborn traits or developed orientations or, for that matter, consensual acts which relate to responses to series of free exercise of assertions of one's bodily autonomy.

(iv) Their growth of personality, relation building endeavour to enter into a live-in relationship or to form an association with a sense of commonality have become a mirage and the essential desires are crippled which violates Article 19(1)(a) of the Constitution. It is urged that the American Psychological Association has opined that sexual orientation is a natural condition and attraction towards the same sex or opposite sex are both naturally equal, the only difference being that the same sex attraction arises in far lesser numbers.

(v) The rights of the lesbian, gay, bisexual and transgender (LGBT) community, who comprise 7-8% of the total Indian population, need to be recognized and protected, for sexual orientation is an integral and innate facet of every individual's identity. A person belonging to the said community does not become an alien to the concept of individual and his individualism cannot be viewed with a stigma. The impact of sexual orientation on an individual's life is not limited to their intimate lives but also impacts their family, professional, social and educational life. Such individuals (sexual minorities in societies) need protection more than the heterosexuals so as to enable them to achieve their full potential and to live freely without fear, apprehension or trepidation in such a manner that they are not discriminated against by the society openly or insidiously or by the State in multifarious ways in matters such as employment, choice of partner, testamentary rights, insurability, medical treatment in hospitals and other similar rights arising from live-in relationships which, after the decision in Indra Sarma v. V.K.V. Sarma MANU/SC/1230/2013 , is recognized even by the "Protection of Women from Domestic Violence Act, 2005" for various kinds of live-in relationships. The same protection, as per the Petitioners, must be accorded to same sex relationships.

(vi) Individuals belonging to the LGBT group suffer discrimination and abuse throughout their lives due to the existence of Section 377 Indian Penal Code which is nothing but a manifestation of a mindset of societal values prevalent during the Victorian era where sexual activities were considered mainly for procreation.

(vii) The rights of the LGBT group are not fully realized and they remain incomplete citizens because their expression as regards sexuality is not allowed to be pronounced owing to the criminality attached to the sexual acts between these persons which deserves to be given a burial and, therefore, the rights of the LGBT community also need equal, if not more, constitutional protection.

(viii) Accordingly, Section 377 of the Indian Penal Code be read down qua the LGBT community so as to confine it only to the offence of bestiality and non-consensual acts in view of the fact that with the coming into force of the Criminal Law (Amendment) Act, 2013 and the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), the scope of sexual assault has been widened to include non peno-vaginal sexual assault and also criminalize non-consensual sexual acts between children thereby plugging important gaps in the law governing sexual violence in India.

(ix) Section 377, despite being a pre-constitutional law, was retained post the Constitution coming into effect by virtue of Article 372 of the Constitution, but it must be noted that the presumption of constitutionality is merely an evidentiary burden initially on the person seeking to challenge the vires of a statute and once any violation of fundamental rights or suspect classification is prima facie shown, then such presumption has no role. In the case at hand, the Petitioners face a violation of their fundamental rights to an extent which is manifestly clear and it is a violation which strikes at the very root or substratum of their existence.

(x) Section 377, if retained in its present form, would involve the violation of, not one but, several fundamental rights of the LGBTs, namely, right to privacy, right to dignity, equality, liberty and right to freedom of expression.

(xi) Sexual orientation which is a natural corollary of gender identity is protected Under Article 21 of the Constitution and any discrimination meted out to the LGBT community on the basis of sexual orientation would run counter to the mandate provided under the Constitution.

(xii) Section 377 is an anathema to the concept of fraternity as enshrined in the Preamble to our Constitution and the Indian Constitution mandates that we must promote fraternity amongst the citizens sans which unity shall remain a distant dream.

(xiii) Section 377 is violative of Article 14 of the Constitution as the said Section is vague in the sense that carnal intercourse against the order of nature is neither defined in the Section nor in the Indian Penal Code or, for that matter, any other law. There is no intelligible differentia or reasonable classification between natural and unnatural sex as long as it is consensual.

(xiv) Section 377 is manifestly arbitrary and over-broad. It violates Article 15 of the Constitution since there is discrimination inherent in it based on the sex of a person's sexual partner as Under Section 376(c) to (e), a person can be prosecuted for acts done with an opposite sex partner without her consent, whereas the same acts if done with a same-sex partner are criminalized even if the partner consents.

(xv) Section 377 violates the rights of LGBT persons Under Article 19(1)(c) and denies them the right to form associations. Similarly, such persons are hesitant to register companies to provide benefits to sexual minorities due to the fear of state action and social stigma. Further, a conviction Under Section 377 Indian Penal Code renders such persons ineligible for appointment as a director of a company.

(xvi) The decision in Suresh Koushal (supra), as per the Petitioners, is per incuriam as the view observed therein has failed to take into account the amendment to Section 375 Indian Penal Code which has rendered sexual 'carnal intercourse against the order of nature' between man and woman as permissible. Section 377, on the other hand, has continued to render same sex carnal intercourse as an offence, even if it is consensual. Further, the Petitioners have assailed the decision of this Court in Suresh Koushal's case on the ground that the view in the said decision on classification is contrary to the 'impact or effect test', for the result, in ultimate eventuality, leads to discrimination. Thus, the view in Suresh Koushal (supra) needs to be overruled.

(xvii) LGBT persons are deprived of their rights due to the presence of Section 377 as they fear prosecution and persecution upon revealing their sexual identities and, therefore, this class of persons never approached this Court as Petitioners, rather they have always relied upon their teachers, parents, mental health professionals and other organizations such as NGOs to speak on their behalf.

(xviii) Suresh Koushal (supra) led this Court to assume that LGBT persons constitute only a minuscule fraction whereas most of the studies indicate that they constitute at least 7-8% of the population and that apart, rights are not determined on the basis of percentage of populace but on a real scrutiny of the existence of right and denial of the same. It is the stand of the Petitioners that majority perception or view cannot be the guiding factor for sustaining the constitutionality of a provision or to declare a provision as unconstitutional.

Respondents

(i) Section 377 rightly makes the acts stated therein punishable as Section 377 has been incorporated after taking note of the legal systems and principles which prevailed in ancient India and now in 2018, the said Section is more relevant legally, medically, morally and constitutionally.

(ii) Persons indulging in unnatural sexual acts which have been made punishable Under Section 377 Indian Penal Code are more susceptible and vulnerable to contracting HIV/AIDS and the percentage of prevalence of AIDS in homosexuals is much greater than heterosexuals and that the right to privacy may not be extended in order to enable people to indulge in unnatural offences and thereby contact AIDS.

(iii) If Section 377 is declared unconstitutional, then the family system which is the bulwark of social culture will be in shambles, the institution of marriage will be detrimentally affected and rampant homosexual activities for money would tempt and corrupt young Indians into this trade.

(iv) Argument of the Petitioners that consensual acts of adults in private have been decriminalized in many parts of the world and, therefore, it deserves to be decriminalized in India as well does not hold good for several reasons inasmuch as the political, economic and cultural heritage of those countries are very different from India which is a multicultural and multi-linguistic country.

(v) Since fundamental rights are not absolute, there is no unreasonableness in Section 377 Indian Penal Code and decriminalizing the same would run foul to all religions practised in the country, and, while deciding the ambit and scope of constitutional morality, Article 25 also deserves to be given due consideration.In the attempt that Section 377 is struck down, it would render the victims complaining of forced acts covered under the existing Section 377 Indian Penal Code remediless as the said Section not only impinges on carnal intercourse against the order of nature between two consenting adults but also applies to forced penile non-vaginal sexual intercourse between adults.

(vi) In the event consenting acts between two same sex adults are excluded from the ambit of Section 377 Indian Penal Code, then a married woman would be rendered remediless under the Indian Penal Code against her bi-sexual husband and his consenting male partner indulging in any sexual acts.

(vii) The alleged misuse of Section 377 Indian Penal Code as highlighted by the Petitioners can be curbed by adding an explanation to Section 377 Indian Penal Code defining 'aggrieved person' which shall include only non-consenting partner or aggrieved person or wife or husband or any person on their behalf on the lines of Section 198(1) of Code of Criminal Procedure, 1973.

(viii) The constitutionality of any legislation is always to be presumed and if there is any vagueness in the definition of any section, the courts have to give such a definition which advances the purpose of the legislation and that the courts must make every effort to uphold the constitutional validity of a statute if that requires giving a stretched construction.

(ix) Homosexuality is against the order of nature and Section 377 rightly forbids it. Prohibition against carnal intercourse involving penetration into non-sexual parts of the body does not constitute discrimination as laws based on biological reality can never be unconstitutional, for if a male is treated as a male, a female as a female and a transgender as a transgender, it does not amount to discrimination.

(x) Section 377 Indian Penal Code in its present form does not violate Article 14 of the Constitution as it merely defines a particular offence and its punishment and it is well within the power of the State to determine who should be regarded as a class for the purpose of a legislation and this, as per the applicant, is reasonable classification in the context of Section 377 Indian Penal Code.

(xi) Section 377 Indian Penal Code is not violative of Article 15 of the Constitution as the said Article prohibits discrimination on the grounds of only religion, race, caste, sex, place of birth or any of them but not sexual orientation. The word 'sexual orientation', as per the applicant, is alien to our Constitution and the same cannot be imported within it for testing the constitutional validity of a provision or legislation. As per the applicant, if the word 'sex' has to be replaced by 'sexual orientation', it would require a constitutional amendment.

(xii) There is no requirement to reconsider the decision of this Court in Suresh Koushal (supra) wherein it was held that there is a presumption of constitutionality of a legislation and the Court must adopt self-restraint and thereby refrain from giving birth to judicial legislation. In the applicant's view, the legislative wisdom of the Parliament must be respected and it must be left to the Parliament to amend Section 377 Indian Penal Code, if so desired.

(xiii) The decriminalization of Section 377 Indian Penal Code will open a floodgate of social issues which the legislative domain is not capable of accommodating as same sex marriages would become social experiments with unpredictable outcome.

(xiv) Decriminalization of Section 377 Indian Penal Code will have cascading effect on existing laws such as Section 32(d) of the Parsi Marriage and Divorce Act, 1936; Section 27(7)(1A) A of the Special Marriage Act, 1954 which permits a wife to present a petition for divorce to the district court on the ground,--(i) that her husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; Section 10(2) of the Indian Divorce Act, 1869 and Section 13(2) of the Hindu Marriage Act, 1955.

Analysis:

Dipak Misra, C.J.I. (for himself and A.M. Khanwilkar, J.)

(i) The eminence of identity which has been luculently stated in the NALSA case very aptly connects human rights and the constitutional guarantee of right to life and liberty with dignity. With the same spirit, we must recognize that the concept of identity which has a constitutional tenability cannot be pigeon-holed singularly to one's orientation as it may keep the individual choice at bay. At the core of the concept of identity lies self-determination, realization of one's own abilities visualizing the opportunities and rejection of external views with a clear conscience that is in accord with constitutional norms and values or principles that are, to put in a capsule, "constitutionally permissible".

(ii) In Suresh Koushal (supra), this Court overturned the decision of the Delhi High Court in Naz Foundation (supra) thereby upholding the constitutionality of Section 377 Indian Penal Code and stating a ground that the LGBT community comprised only a minuscule fraction of the total population and that the mere fact that the said Section was being misused is not a reflection of the vires of the Section. Such a view is constitutionally impermissible.

(iii) Our Constitution is a living and organic document capable of expansion with the changing needs and demands of the society. The Courts must commemorate that it is the Constitution and its golden principles to which they bear their foremost allegiance and they must robe themselves with the armoury of progressive and pragmatic interpretation to combat the evils of inequality and injustice that try to creep into the society. The role of the Courts gains more importance when the rights which are affected belong to a class of persons or a minority group who have been deprived of even their basic rights since time immemorial.

(iv) The primary objective of having a constitutional democracy is to transform the society progressively and inclusively. Our Constitution has been perceived to be transformative in the sense that the interpretation of its provisions should not be limited to the mere literal meaning of its words; instead they ought to be given a meaningful construction which is reflective of their intent and purpose in consonance with the changing times. Transformative constitutionalism not only includes within its wide periphery the recognition of the rights and dignity of individuals but also propagates the fostering and development of an atmosphere wherein every individual is bestowed with adequate opportunities to develop socially, economically and politically. Discrimination of any kind strikes at the very core of any democratic society. When guided by transformative constitutionalism, the society is dissuaded from indulging in any form of discrimination so that the nation is guided towards a resplendent future.

(v) Constitutional morality embraces within its sphere several virtues, foremost of them being the espousal of a pluralistic and inclusive society. The concept of constitutional morality urges the organs of the State, including the Judiciary, to preserve the heterogeneous nature of the society and to curb any attempt by the majority to usurp the rights and freedoms of a smaller or minuscule Section of the populace. Constitutional morality cannot be martyred at the altar of social morality and it is only constitutional morality that can be allowed to permeate into the Rule of Law. The veil of social morality cannot be used to violate fundamental rights of even a single individual, for the foundation of constitutional morality rests upon the recognition of diversity that pervades the society.

(vi) The right to live with dignity has been recognized as a human right on the international front and by number of precedents of this Court and, therefore, the constitutional courts must strive to protect the dignity of every individual, for without the right to dignity, every other right would be rendered meaningless. Dignity is an inseparable facet of every individual that invites reciprocative respect from others to every aspect of an individual which he/she perceives as an essential attribute of his/her individuality, be it an orientation or an optional expression of choice. The Constitution has ladened the judiciary with the very important duty to protect and ensure the right of every individual including the right to express and choose without any impediments so as to enable an individual to fully realize his/her fundamental right to live with dignity.

(vii) Sexual orientation is one of the many biological phenomena which is natural and inherent in an individual and is controlled by neurological and biological factors. The science of sexuality has theorized that an individual exerts little or no control over who he/she gets attracted to. Any discrimination on the basis of one's sexual orientation would entail a violation of the fundamental right of freedom of expression.

(viii) After the privacy judgment in Puttaswamy (supra), the right to privacy has been raised to the pedestal of a fundamental right. The reasoning in Suresh Koushal (supra), that only a minuscule fraction of the total population comprises of LGBT community and that the existence of Section 377 Indian Penal Code abridges the fundamental rights of a very minuscule percentage of the total populace, is found to be a discordant note. The said reasoning in Suresh Koushal (supra), in our opinion, is fallacious, for the framers of our Constitution could have never intended that the fundamental rights shall be extended for the benefit of the majority only and that the Courts ought to interfere only when the fundamental rights of a large percentage of the total populace is affected. In fact, the said view would be completely against the constitutional ethos, for the language employed in Part III of the Constitution as well as the intention of the framers of our Constitution mandates that the Courts must step in whenever there is a violation of the fundamental rights, even if the right/s of a single individual is/are in peril.

(ix) There is a manifest ascendance of rights under the Constitution which paves the way for the doctrine of progressive realization of rights as such rights evolve with the evolution of the society. This doctrine, as a natural corollary, gives birth to the doctrine of non-retrogression, as per which there must not be atavism of constitutional rights. In the light of the same, if we were to accept the view in Suresh Koushal (supra), it would tantamount to a retrograde step in the direction of the progressive interpretation of the Constitution and denial of progressive realization of rights.

(x) Autonomy is individualistic. Under the autonomy principle, the individual has sovereignty over his/her body. He/she can surrender his/her autonomy wilfully to another individual and their intimacy in privacy is a matter of their choice. Such concept of identity is not only sacred but is also in recognition of the quintessential facet of humanity in a person's nature. The autonomy establishes identity and the said identity, in the ultimate eventuate, becomes a part of dignity in an individual.

(xi) A cursory reading of both Sections 375 Indian Penal Code and 377 Indian Penal Code reveals that although the former Section gives due recognition to the absence of 'wilful and informed consent' for an act to be termed as rape, per contra, Section 377 does not contain any such qualification embodying in itself the absence of 'wilful and informed consent' to criminalize carnal intercourse which consequently results in criminalizing even voluntary carnal intercourse between homosexuals, heterosexuals, bisexuals and transgenders. Section 375 Indian Penal Code, after the coming into force of the Criminal Law (Amendment) Act, 2013, has not used the words 'subject to any other provision of the Indian Penal Code. This indicates that Section 375 Indian Penal Code is not subject to Section 377 Indian Penal Code.

(xii) The expression 'against the order of nature' has neither been defined in Section 377 Indian Penal Code nor in any other provision of the Indian Penal Code. The connotation given to the expression by various judicial pronouncements includes all sexual acts which are not intended for the purpose of procreation. Therefore, if coitus is not performed for procreation only, it does not per se make it 'against the order of nature'.

(xiii) Section 377 Indian Penal Code, in its present form, being violative of the right to dignity and the right to privacy, has to be tested, both, on the pedestal of Articles 14 and 19 of the Constitution as per the law laid down in Maneka Gandhi (supra) and other later authorities.

(xiv) An examination of Section 377 Indian Penal Code on the anvil of Article 14 of the Constitution reveals that the classification adopted under the said Section has no reasonable nexus with its object as other penal provisions such as Section 375 Indian Penal Code and the POCSO Act already penalize non-consensual carnal intercourse. Per contra, Section 377 Indian Penal Code in its present form has resulted in an unwanted collateral effect whereby even 'consensual sexual acts', which are neither harmful to children nor women, by the LGBTs have been woefully targeted thereby resulting in discrimination and unequal treatment to the LGBT community and is, thus, violative of Article 14 of the Constitution.

(xv) Section 377 Indian Penal Code, so far as it criminalises even consensual sexual acts between competent adults, fails to make a distinction between non-consensual and consensual sexual acts of competent adults in private space which are neither harmful nor contagious to the society. Section 377 Indian Penal Code subjects the LGBT community to societal pariah and dereliction and is, therefore, manifestly arbitrary, for it has become an odious weapon for the harassment of the LGBT community by subjecting them to discrimination and unequal treatment. Therefore, in view of the law laid down in Shayara Bano (supra), Section 377 Indian Penal Code is liable to be partially struck down for being violative of Article 14 of the Constitution.

(xvi) An examination of Section 377 Indian Penal Code on the anvil of Article 19(1)(a) reveals that it amounts to an unreasonable restriction, for public decency and morality cannot be amplified beyond a rational or logical limit and cannot be accepted as reasonable grounds for curbing the fundamental rights of freedom of expression and choice of the LGBT community. Consensual carnal intercourse among adults, be it homosexual or heterosexual, in private space, does not in any way harm the public decency or morality. Therefore, Section 377 Indian Penal Code in its present form violates Article 19(1)(a) of the Constitution.

Justice Rohinton Fali Nariman

(i) Suresh Kumar Koushal needs to be, and is hereby, overruled.

(ii) Persons who are homosexual have a fundamental right to live with dignity, which, in the larger framework of the Preamble of India, will assure the cardinal constitutional value of fraternity that has been discussed in some of our judgments (Nandini Sundar v. State of Chhattisgarh, MANU/SC/0724/2011; Subramaniam Swamy v. Union of India MANU/SC/0621/2016).

(iii) Such groups are entitled to the protection of equal laws, and are entitled to be treated in society as human beings without any stigma being attached to any of them. We further declare that Section 377 insofar as it criminalises homosexual sex and transgender sex between consenting adults is unconstitutional.

(iv) Union of India shall take all measures to ensure that this judgment is given wide publicity through the public media, which includes television, radio, print and online media at regular intervals, and initiate programs to reduce and finally eliminate the stigma associated with such persons. Above all, all government officials, including and in particular police officials, and other officers of the Union of India and the States, be given periodic sensitization and awareness training of the plight of such persons in the light of the observations contained in this judgment.

Dr. D.Y. Chandrachud

(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

(v) The decision in Koushal stands overruled.

Justice Indu Malhotra

(i) Insofar as Section 377 criminalises consensual sexual acts of adults (i.e. persons above the age of 18 years who are competent to consent) in private, is violative of Articles 14, 15, 19, and 21 of the Constitution.

(ii) It is, however, clarified that such consent must be free consent, which is completely voluntary in nature, and devoid of any duress or coercion.

(iii) The declaration of the aforesaid reading down of Section 377 shall not, however, lead to the reopening of any concluded prosecutions, but can certainly be relied upon in all pending matters whether they are at the trial, appellate, or revisional stages.

(iv) The provisions of Section 377 will continue to govern non-consensual sexual acts against adults, all acts of carnal intercourse against minors, and acts of beastiality.

(v) The judgment in Suresh K. Koushal and Anr. v. Naz Foundation and Ors. MANU/SC/1278/2013 is hereby overruled.

Conclusion:

(i) Section 377 Indian Penal Code, so far as it penalizes any consensual sexual relationship between two adults, be it homosexuals (man and a man), heterosexuals (man and a woman) or lesbians (woman and a woman), cannot be regarded as constitutional. However, if anyone, by which we mean both a man and a woman, engages in any kind of sexual activity with an animal, the said aspect of Section 377 is constitutional and it shall remain a penal offence Under Section 377 Indian Penal Code. Any act of the description covered Under Section 377 Indian Penal Code done between two individuals without the consent of any one of them would invite penal liability Under Section 377 Indian Penal Code.

(ii) The decision in Suresh Koushal is overruled.

(iii) Writ Petitions are, accordingly, disposed of

Important precedents:

(i) National Legal Services Authority v. Union of India and Ors. MANU/SC/0309/2014

(ii) Suresh Kumar Koushal and Anr. v. Naz Foundation and Ors. MANU/SC/1278/2013

(iii) Naz Foundation v. Government of NCT of Delhi and Ors. MANU/DE/0869/2009