Below is the full text of the judgment of the Supreme Court regarding Section 377.
A. Introduction
Not for nothing, the great German thinker, Johann Wolfgang von Goethe, had said, .I am what I am, so take me as I am. and similarly, Arthur Schopenhauer had pronounced, .No one can escape from their individuality.. In this regard, it is profitable to quote a few lines from John Stuart Mill:-
.But society has now fairly got the better of individuality; and the danger which threatens human nature is not the excess, but the deficiency of personal impulses and preferences..
The emphasis on the unique being of an individual is the salt of his/her life. Denial of self-expression is inviting death. Irreplaceability of individuality and identity is grant of respect to self. This realization is one‘s signature and self-determined design. One defines oneself. That is the glorious form of individuality. In the present case, our deliberation and focus on the said concept shall be from various spectrums.
2. Shakespeare through one of his characters in a play says .What‘s in a name? That which we call a rose by any other name
would smell as sweet.. The said phrase, in its basic sense, conveys that what really matters is the essential qualities of the substance and the fundamental characteristics of an entity but not the name by which it or a person is called. Getting further deeper into the meaning, it is understood that the name may be a convenient concept for identification but the essence behind the same is the core of identity. Sans identity, the name only remains a denotative term. Therefore, the identity is pivotal to one‘s being. Life bestows honour on it and freedom of living, as a facet of life, expresses genuine desire to have it. The said desire, one is inclined to think, is satisfied by the conception of constitutional recognition, and hence, emphasis is laid
on the identity of an individual which is conceived under the
Constitution. And the sustenance of identity is the filament of life. It is
equivalent to authoring one‘s own life script where freedom broadens
everyday. Identity is equivalent to divinity.
3. The overarching ideals of individual autonomy and liberty,
equality for all sans discrimination of any kind, recognition of identity
with dignity and privacy of human beings constitute the cardinal four
corners of our monumental Constitution forming the concrete
substratum of our fundamental rights that has eluded certain sections
of our society who are still living in the bondage of dogmatic social
norms, prejudiced notions, rigid stereotypes, parochial mindset and
bigoted perceptions. Social exclusion, identity seclusion and isolation
from the social mainstream are still the stark realities faced by
individuals today and it is only when each and every individual is
liberated from the shackles of such bondage and is able to work
towards full development of his/her personality that we can call
ourselves a truly free society. The first step on the long path to
acceptance of the diversity and variegated hues that nature has
created has to be taken now by vanquishing the enemies of prejudice
and injustice and undoing the wrongs done so as to make way for a
progressive and inclusive realisation of social and economic rights
embracing all and to begin a dialogue for ensuring equal rights and
opportunities for the .less than equal. sections of the society. We
have to bid adieu to the perceptions, stereotypes and prejudices
deeply ingrained in the societal mindset so as to usher in inclusivity in
all spheres and empower all citizens alike without any kind of
alienation and discrimination.
4. The natural identity of an individual should be treated to be
absolutely essential to his being. What nature gives is natural. That
is called nature within. Thus, that part of the personality of a person
has to be respected and not despised or looked down upon. The said
inherent nature and the associated natural impulses in that regard are
to be accepted. Non-acceptance of it by any societal norm or notion
and punishment by law on some obsolete idea and idealism affects
the kernel of the identity of an individual. Destruction of individual
identity would tantamount to crushing of intrinsic dignity that
cumulatively encapsulates the values of privacy, choice, freedom of
speech and other expressions. It can be viewed from another angle.
An individual in exercise of his choice may feel that he/she should be
left alone but no one, and we mean, no one, should impose solitude
on him/her.
5. The eminence of identity has been luculently stated in National
Legal Services Authority v. Union of India and others1, popularly
1 (2014) 5 SCC 438
known as NALSA case, wherein the Court was dwelling upon the
status of identity of the transgenders. Radhakrishnan, J., after
referring to catena of judgments and certain International Covenants,
opined that gender identity is one of the most fundamental aspects of
life which refers to a person‘s intrinsic sense of being male, female or
transgender or transsexual person. A person‘s sex is usually
assigned at birth, but a relatively small group of persons may be born
with bodies which incorporate both or certain aspects of both male
and female physiology. The learned Judge further observed that at
times, genital anatomy problems may arise in certain persons in the
sense that their innate perception of themselves is not in conformity
with the sex assigned to them at birth and may include pre-and post-
operative transsexual persons and also persons who do not choose
to undergo or do not have access to operation and also include
persons who cannot undergo successful operation. Elaborating
further, he said:-
.Gender identity refers to each person‘s deeply felt
internal and individual experience of gender, which
may or may not correspond with the sex assigned at
birth, including the personal sense of the body which
may involve a freely chosen, modification of bodily
appearance or functions by medical, surgical or other
means and other expressions of gender, including
dress, speech and mannerisms. Gender identity,
therefore, refers to an individual‘s self-identification as
a man, woman, transgender or other identified
category..
6. Adverting to the concept of discrimination, he stated:-
.The discrimination on the ground of .sex. under
Articles 15 and 16, therefore, includes discrimination
on the ground of gender identity. The expression .sex.
used in Articles 15 and 16 is not just limited to
biological sex of male or female, but intended to
include people who consider themselves to be neither
male nor female..
7. Dealing with the legality of transgender identity, Radhakrishnan,
J. ruled:-
.The self-identified gender can be either male or
female or a third gender. Hijras are identified as
persons of third gender and are not identified either as
male or female. Gender identity, as already indicated,
refers to a person‘s internal sense of being male,
female or a transgender, for example hijras do not
identify as female because of their lack of female
genitalia or lack of reproductive capability. This
distinction makes them separate from both male and
female genders and they consider themselves neither
man nor woman, but a .third gender...
8. Sikri, J., in his concurring opinion, dwelling upon the rights of
transgenders, laid down that gender identification is an essential
component which is required for enjoying civil rights by the
community. It is only with this recognition that many rights attached to
the sexual recognition as .third gender. would be available to the said
community more meaningfully viz. the right to vote, the right to own
property, the right to marry, the right to claim a formal identity through
a passport and a ration card, a driver‘s licence, the right to education,
employment, health and so on. Emphasising on the aspect of human
rights, he observed:-
.…there seems to be no reason why a transgender
must be denied of basic human rights which includes
right to life and liberty with dignity, right to privacy and
freedom of expression, right to education and
empowerment, right against violence, right against
exploitation and right against discrimination. The
Constitution has fulfilled its duty of providing rights to
transgenders. Now it is time for us to recognise this
and to extend and interpret the Constitution in such a
manner to ensure a dignified life for transgender
people. All this can be achieved if the beginning is
made with the recognition of TG as third gender..
The aforesaid judgment, as is manifest, lays focus on
inalienable .gender identity. and correctly connects with human rights
and the constitutionally guaranteed right to life and liberty with dignity.
It lays stress on the judicial recognition of such rights as an
inextricable component of Article 21 of the Constitution and decries
any discrimination as that would offend Article 14, the .fon juris. of
our Constitution.
9. It has to be borne in mind that search for identity as a basic
human ideal has reigned the mind of every individual in many a
sphere like success, fame, economic prowess, political assertion,
celebrity status and social superiority, etc. But search for identity, in
order to have apposite space in law, sans stigmas and sans fear has
to have the freedom of expression about his/her being which is
keenly associated with the constitutional concept of .identity with
dignity.. When we talk about identity from the constitutional spectrum,
it cannot be pigeon-holed singularly to one‘s orientation that may be
associated with his/her birth and the feelings he/she develops when
he/she grows up. Such a narrow perception may initially sound to
subserve the purpose of justice but on a studied scrutiny, it is soon
realized that the limited recognition keeps the individual choice at
bay. The question that is required to be posed here is whether sexual
orientation alone is to be protected or both orientation and choice are
to be accepted as long as the exercise of these rights by an individual
do not affect another‘s choice or, to put it succinctly, has the consent
of the other where dignity of both is maintained and privacy, as a
seminal facet of Article 21, is not dented. At the core of the concept of
identity lies self-determination, realization of one‘s own abilities
visualizing the opportunities and rejection of external views with a
clear conscience that is in accord with constitutional norms and
values or principles that are, to put in a capsule, .constitutionally
permissible.. As long as it is lawful, one is entitled to determine and
follow his/her pattern of life. And that is where the distinction between
constitutional morality and social morality or ethicality assumes a
distinguished podium, a different objective. Non-recognition in the
fullest sense and denial of expression of choice by a statutory penal
provision and giving of stamp of approval by a two-Judge Bench of
this Court to the said penal provision, that is, Section 377 of the
Indian Penal Code, in Suresh Kumar Koushal and another v. Naz
Foundation and others2 overturning the judgment of the Delhi High
Court in Naz Foundation v. Government of NCT of Delhi and
others3, is the central issue involved in the present controversy.
B. The Reference
2 (2014) 1 SCC 1
3 (2009) 111 DRJ 1
10. 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 (for short, .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 Koushal (supra) wherein this Court had
overturned the decision rendered by the Division Bench of the Delhi
High Court in Naz Foundation (supra). It was submitted by Mr.
Arvind Datar, learned senior counsel appearing for the writ
petitioners, on the said occasion that the two-Judge Bench in Suresh
Koushal (supra) had been guided by social morality leaning on
majoritarian perception whereas the issue, in actuality, needed to be
debated upon in the backdrop of constitutional morality. A contention
was also advanced that the interpretation placed in Suresh Kumar
(supra) upon Article 21 of the Constitution is extremely narrow and, in
fact, the Court has been basically guided by Article 14 of the
Constitution. Reliance was placed on the pronouncement in NALSA
case wherein this Court had emphasized on .gender identity and
sexual orientation.. Attention of this Court was also invited to a nine-
Judge Bench decision in K.S. Puttaswamy and another v. Union of
India and others4 wherein the majority, speaking through
Chandrachud, J., has opined that sexual orientation is an essential
component of rights guaranteed under the Constitution which are not
4 (2017) 10 SCC 1
formulated on majoritarian favour or acceptance. Kaul, J, in his
concurring opinion, referred to the decision in Mosley v. News
Group Newspapers Ltd.5 to highlight that the emphasis for
individual‘s freedom to conduct his sex life and personal relationships
as he wishes, subject to the permitted exceptions, countervails public
interest.
11. The further submission that was advanced by Mr. Datar was
that privacy of the individual having been put on such a high pedestal
and sexual orientation having been emphasized in the NALSA case,
Section 377 IPC cannot be construed as a reasonable restriction as
that would have the potentiality to destroy the individual autonomy
and sexual orientation. It is an accepted principle of interpretation of
statutes that a provision does not become unconstitutional merely
because there can be abuse of the same. Similarly, though a
provision on the statute book is not invoked on many occasions, yet it
does not fall into the sphere of the doctrine of desuetude. However,
Suresh Koushal's case has been guided by the aforesaid doctrine of
desuetude.
5 [2008] EWHC 1777 (QB)
12. Appreciating the said submissions, the three-Judge Bench
stated that:-
.Certain other aspects need to be noted. Section 377
IPC uses the phraseology .carnal intercourse against
the order of nature.. The determination of order of
nature is not a constant phenomenon. Social morality
also changes from age to age. The law copes with life
and accordingly change takes place. The morality that
public perceives, the Constitution may not conceive of.
The individual autonomy and also individual orientation
cannot be atrophied unless the restriction is regarded
as reasonable to yield to the morality of the
Constitution. What is natural to one may not be natural
to the other but the said natural orientation and choice
cannot be allowed to cross the boundaries of law and
as the confines of law cannot tamper or curtail the
inherent right embedded in an individual under Article
21 of the Constitution. A section of people or
individuals who exercise their choice should never
remain in a state of fear. When we say so, we may not
be understood to have stated that there should not be
fear of law because fear of law builds civilised society.
But that law must have the acceptability of the
Constitutional parameters. That is the litmus test.
It is necessary to note, in the course of hearing
on a query being made and Mr. Datar very fairly stated
that he does not intend to challenge that part of
Section 377 which relates to carnal intercourse with
animals and that apart, he confines to consenting acts
between two adults. As far as the first aspect is
concerned, that is absolutely beyond debate. As far as
the second aspect is concerned, that needs to be
debated. The consent between two adults has to be
the primary pre-condition. Otherwise the children
would become prey, and protection of the children in
all spheres has to be guarded and protected. Taking all
the apsects in a cumulative manner, we are of the
view, the decision in Suresh Kumar Koushal's case
(supra) requires re-consideration..
The three-Judge Bench expressed the opinion that the issues
raised should be answered by a larger Bench and, accordingly,
referred the matter to the larger Bench. That is how the matter has
been placed before us.
C. Submissions on behalf of the petitioners
13. We have heard Mr. Mukul Rohatgi, learned senior counsel
assisted by Mr. Saurabh Kirpal, learned counsel appearing for the
petitioners in Writ Petition (Criminal) No. 76 of 2016, Ms. Jayna
Kothari, learned counsel for the petitioner in Writ Petition (Civil) No.
572 of 2016, Mr. Arvind P. Datar, learned senior counsel for the
petitioner in Writ Petition (Criminal) No. 88 of 2018, Mr. Anand
Grover, learned senior counsel for the petitioners in Writ Petition
(Criminal) Nos. 100 of 2018 and 101 of 2018 and Dr. Menaka
Guruswamy, learned counsel for the petitioner in Writ Petition
(Criminal) No. 121 of 2018. We have also heard Mr. Ashok Desai, Mr.
Chander Uday Singh, Mr. Shyam Divan and Mr. Krishnan Venugopal,
learned senior counsel appearing for various intervenors in the
matter. A compilation of written submissions has been filed by the
petitioners as well as the intervenors.
14. We have heard Mr. Tushar Mehta, learned Additional Solicitor
General for the Union of India, Mr. K. Radhakrishnan, learned senior
counsel appearing in Interlocutory Application No. 94284 of 2018 in
Writ Petition (Criminal) No. 76 of 2016, Mr. Mahesh Jethmalani,
learned senior counsel appearing in Interlocutory Application No.
91147 in Writ Petition (Criminal) No. 76 of 2016, Mr. Soumya
Chakraborty, learned senior counsel appearing in Interlocutory
Application No. 94348 of 2018 in Writ Petition (Criminal) No. 76 of
2016, Mr. Manoj V. George, learned counsel appearing for Apostolic
Alliance of Churches & Utkal Christian Council and Dr. Harshvir
Pratap Sharma, learned counsel appearing in Interlocutory
Application No. 93411 of 2018 in Writ Petition (Criminal) No. 76 of
2016.
15. It is submitted on behalf of the petitioners and the intervenors
that 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 and 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. 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. It is further
argued that 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.
16. The petitioners have highlighted that 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.
As per the petitioners, 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. Sarma6, is
recognized even by the .Protection of Women from Domestic
6 (2013) 15 SCC 755
Violence Act, 2005. for various kinds of live-in relationships. The
same protection, as per the petitioners, must be accorded to same
sex relationships.
17. It is urged by the learned counsel for the petitioners that
individuals belonging to the LGBT group suffer discrimination and
abuse throughout their lives due to the existence of Section 377 IPC
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. The said community remains in a
constant state of fear which is not conducive for their growth. It is
contended that they suffer at the hands of law and are also deprived
of the citizenry rights which are protected under the Constitution. The
law should have treated them as natural victims and sensitized the
society towards their plight and laid stress on such victimisation,
however, the reverse is being done due to which a sense of
estrangement and alienation has developed and continues to prevail
amongst the members belonging to the LGBT group. Compulsory
alienation due to stigma and threat is contrary to the fundamental
principle of liberty.
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