“No one can escape from their individuality.” – Arthur Schopenhauer

I am what I am, so take me as I am

-Johann Wolfgang von Goethe

Today, the Constitution Bench comprising of Chief Justice of India Dipak Misra, R.F Nariman, Dr. D.Y. Chandrachud, A.M Khanwilkar and Indu Malhotra by delivering 4 concurring opinions (Justice Khanwilkar concurred with Chief Justice Dipak Misra) declared Section 377 as “partially unconstitutional”while overruling the decision given in Suresh Kumar Koushal v. Naz Foundation(2014) 1 SCC 1 decriminalised consensual sex between consenting adults from LGBTIQ (Lesbian, Gay, Bisexual, Transexual, Intersex & Queer) community.

In the matter of Navtej Singh Johar & Ors. v. Union of India through Secretary Ministry of Law and Justice, the bench of Hon’ble Chief Justice of India Dipak Misra and Hon’ble Justice A.M. Khanwilkar, while talking of the rights of the lesbian, gay, bisexual and transgender (LGBT) community, who comprise 7-8% of the total Indian population, decriminalised consensual sexual relationship between two adults regardless of the fact whether they are homosexuals or heterosexuals. However, it was also enunciated that if anyone (which includes both a man and a woman) engages in any kind of sexual activity with an animal, the said aspect of Section 377 is constitutional and it shall remain a penal offence under Section 377 IPC.

Copy of Judgement: Judgement – 06 Sep 2018

Submissions in favour of decriminalisation

  • 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.
  • Making 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
    • A trauma to the conception of expression of biological desire which revolves around the pattern of mosaic of true manifestation of identity.
  • Individuals belonging to the LGBT group suffer discrimination and abuse throughout their lives due to the existence of Section 377 IPC
  • The said community remains in a constant state of fear which is not conducive for their growth.
  • They suffer at the hands of law and are also deprived of the citizenry rights which are protected under the Constitution.
  • Compulsory alienation due to stigma and threat is contrary to the fundamental principle of liberty.
  • 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.
  • 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.
  • Sexual orientation which is a natural corollary of gender identity is protected under Article 21 of the Constitution.
  • Any discrimination meted out to the LGBT community on the basis of sexual orientation would run counter to the mandate provided under the Constitution.
  • 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 IPC or, for that matter, any other law.
  • It is the case of the petitioners that Section 377 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.
  • Section 377 has a chilling effect on Article 19(1)(a) of the Constitution which protects the fundamental right of freedom of expression including that of LGBT persons to express their sexual identity and orientation, through speech, choice of romantic/sexual partner, expression of romantic/sexual desire, acknowledgment of relationships or any other means and that Section 377 constitutes an unreasonable exception and is thereby not covered under Article 19(2) of the Constitution.
  • The petitioners have also contended that 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 IPC renders such persons ineligible for appointment as a director of a company.
  • It is averred that Section 377 IPC, by creating a taint of criminality, deprives the LGBT persons of their right to reputation which is a facet of the right to life and liberty of a citizen under Article 21 of the Constitution

Submissions against the decriminalisation

  • There is no personal liberty to abuse one‘s organs and that the offensive acts proscribed by Section 377 IPC are committed by abusing the organs.
  • Acts like abusing the organs, are undignified and derogatory to the constitutional concept of dignity and if any infraction is caused to the concept of dignity, then it would amount to constitutional wrong and constitutional immorality.
  • 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.
  • Persons indulging in unnatural sexual acts which have been made punishable under Section 377 IPC 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.
  • 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.
  • The argument 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.
  • Since fundamental rights are not absolute, there is no unreasonableness in Section 377 IPC 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 IPC 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.
  • in the event consenting acts between two same sex adults are excluded from the ambit of Section 377 IPC, then a married woman would be rendered remediless under the IPC against her bi-sexual husband and his consenting male partner indulging in any sexual acts
  • If the right to privacy is allowed its full scope and swing, then that itself would rule out prosecution in all cases of consensual unnatural sex between all couples, whether heterosexual or homosexual, and without having to engage in reading down, much less striking down of, the provisions of Section 377 IPC in its present form. This is so because the State cannot compel individuals engaging in consensual sexual acts from testifying against one another as it involves a breach of privacy unless the consent itself is under challenge and one cannot be a consenting victim of a crime so long as the consent is legally valid.
  • 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.
  • The purpose of criminal law is to protect the citizens from something that is injurious and since carnal intercourse between two persons is offensive and injurious, it is well within the State’s jurisdiction to put reasonable restrictions to forbid such aberrant human behaviour by means of legislation, for it is the duty of the State that people with abnormal conduct are prohibited from imperiling the life, health and security of the community.
  • Unrestrained pleasure, and that too of a lascivious nature, is not conducive for the growth of a civilized society, such inordinate gratification needs to be curbed and, thus, prohibition against carnal intercourse as defined in Section 377 IPC does not violate the constitutional rights of a person.
  • The interest of a citizen or a section of the society, howsoever important, is secondary to the interest of the country or community as a whole and while judging the reasonability of restrictions imposed on fundamental rights, due consideration must also be given to the Directive Principles stated in Part IV.
  • Fundamental rights may not be overstretched and the Directive Principles of State Policy which are fundamental in the governance of the country cannot be neglected, for they are not less significant than what is fundamental in the life of an individual.
  • Section 377 IPC 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 IPC.
  • Section 377 IPC 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‘ 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.
  • If the prayers of the petitioners are allowed, it would amount to judicial legislation, for the Courts cannot add or delete words into a statute. It is stated that the words ‘consent’ and/or ‘without consent’ are not mentioned in Section 377 IPC and, therefore, the Courts cannot make such an artificial distinction.
  • Decriminalization of Section 377 IPC 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.
  • Decriminalization of Section 377 IPC 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.

The Hon’ble Supreme Court observed:

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. (Para 2)

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. (Para 3)

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. 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. (Para 4)

A democratic Constitution like ours is an organic and breathing document with senses which are very much alive to its surroundings, for it has been created in such a manner that it can adapt to the needs and developments taking place in the society.  (Para 82)

The Court, as the final arbiter of the Constitution, has to keep in view the necessities of the needy and the weaker sections. The role of the Court assumes further importance when the class or community whose rights are in question are those who have been the object of humiliation, discrimination, separation and violence by not only the State and the society at large but also at the hands of their very own family members. The development of law cannot be a mute spectator to the struggle for the realisation and attainment of the rights of such members of the society. (Para 89)

The concept of transformative constitutionalism has at its kernel a pledge, promise and thirst to transform the Indian society so as to embrace therein, in letter and spirit, the ideals of justice, liberty, equality and fraternity as set out in the Preamble to our Constitution. (Para 96)

In the garb of social morality, the members of the LGBT community must not be outlawed or given a step-motherly treatment of malefactor by the society. If this happens or if such a treatment to the LGBT community is allowed to persist, then the constitutional courts, which are under the obligation to protect the fundamental rights, would be failing in the discharge of their duty. A failure to do so would reduce the citizenry rights to a cipher. (Para 122)

The concept of dignity gains importance in the present scenario, for a challenge has been raised to a provision of law which encroaches upon this essential right of a severely deprived section of our society. An individual’s choice to engage in certain acts within their private sphere has been restricted by criminalising the same on account of the age old social perception. To harness such an essential decision, which defines the individualism of a person, by tainting it with criminality would violate the individual’s right to dignity by reducing it to mere letters without any spirit. (Para 135)

From the aforesaid, it has to be appreciated that homosexuality is something that is based on sense of identity. It is the reflection of a sense of emotion and expression of eagerness to establish intimacy. It is just as much ingrained, inherent and innate as heterosexuality. Sexual orientation, as a concept, fundamentally implies a pattern of sexual attraction. It is as natural a phenomenon as other natural biological phenomena. What the science of sexuality has led to is that an individual has the tendency to feel sexually attracted towards the same sex, for the decision is one that is controlled by neurological and biological factors. That is why it is his/her natural orientation which is innate and constitutes the core of his/her being and identity. That apart, on occasions, due to a sense of mutuality of release of passion, two adults may agree to express themselves in a different sexual behaviour which may include both the genders. To this, one can attribute a bisexual orientation which does not follow the rigidity but allows room for flexibility. (Para 143)

The society cannot remain unmindful to the theory which several researches, conducted both in the field of biological and psychological science, have proven and reaffirmed time and again. To compel a person having a certain sexual orientation to proselytize to another is like asking a body part to perform a function it was never designed to perform in the first place. It is pure science, a certain manner in which the brain and genitals of an individual function and react. Whether one’s sexual orientation is determined by genetic, hormonal, developmental, social and/or cultural influences (or a combination thereof), most people experience little or no sense of choice about their sexual orientation. (Para 144)

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. This dignity is special to the man/woman who has a right to enjoy his/her life as per the constitutional norms and should not be allowed to wither and perish like a mushroom. It is a directional shift from conceptual macrocosm to cognizable microcosm. When such culture grows, there is an affirmative move towards a more inclusive and egalitarian society. Non-acceptance of the same would tantamount to denial of human rights to people and one cannot be oblivious of the saying of Nelson Mandela ― ―to deny people their human rights is to challenge their very humanity. (Para 149)

In the contemporary world where even marriage is now not equated to procreation of children, the question that would arise is whether homosexuality and carnal intercourse between consenting adults of opposite sex can be tagged as ̳against the order of nature‘. It is the freedom of choice of two consenting adults to perform sex for procreation or otherwise and if their choice is that of the latter, it cannot be said to be against the order of nature. Therefore, sex, if performed differently, as per the choice of the consenting adults, does not per se make it against the order of nature. (Para 216)

If consensual carnal intercourse between a heterosexual couple does not amount to rape, it definitely should not be labelled and designated as unnatural offence under Section 377 IPC. If any proclivity amongst the heterosexual population towards consensual carnal intercourse has been allowed due to the Criminal Law (Amendment) Act, 2013, such kind of proclivity amongst any two persons including LGBT community cannot be treated as untenable so long as it is consensual and it is confined within their most private and intimate spaces. (Para 221)

At the very least, it can be said that criminalisation of consensual carnal intercourse, be it amongst homosexuals, heterosexuals, bi-sexuals or transgenders, hardly serves any legitimate public purpose or interest. Per contra, we are inclined to believe that if Section 377 remains in its present form in the statute book, it will allow the harassment and exploitation of the LGBT community to prevail. We must make it clear that freedom of choice cannot be scuttled or abridged on the threat of criminal prosecution and made paraplegic on the mercurial stance of majoritarian perception. (Para 223)

The sexual autonomy of an individual to choose his/her sexual partner is an important pillar and an insegregable facet of individual liberty. When the liberty of even a single person of the society is smothered under some vague and archival stipulation that it is against the order of nature or under the perception that the majority population is peeved when such an individual exercises his/her liberty despite the fact that the exercise of such liberty is within the confines of his/her private space, then the signature of life melts and living becomes a bare subsistence and resultantly, the fundamental right of liberty of such an individual is abridged. (Para 230)

The LGBT community possess the same human, fundamental and constitutional rights as other citizens do since these rights in here in individuals as natural and human rights. (Para 240)

We are of the conscious view that Section 377 IPC takes within its fold private acts of adults including the LGBT community which are not only consensual but are also innocent, as such acts neither cause disturbance to the public order nor are they injurious to public decency or morality. (Para 245)

The very existence of Section 377 IPC criminalising transgenders casts a great stigma on an already oppressed and discriminated class of people. (Para 249)

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. (Para 253 (x))

Section 377 IPC, so far as it criminalises even consensual sexual acts between competent adults, fails to make a distinction between non-consensual and consensual sexual acts of competent adults in private space which are neither harmful nor contagious to the society. Section 377 IPC subjects the LGBT community to societal pariah and dereliction and is, therefore, manifestly arbitrary, for it has become an odious weapon for the harassment of the LGBT community by subjecting them to discrimination and unequal treatment. (Para 253 (xv))

An examination of Section 377 IPC on the anvil of Article 19(1)(a) reveals that it amounts to an unreasonable restriction, for public decency and morality cannot be amplified beyond a rational or logical limit and cannot be accepted as reasonable grounds for curbing the fundamental rights of freedom of expression and choice of the LGBT community. Consensual carnal intercourse among adults, be it homosexual or heterosexual, in private space, does not in any way harm the public decency or morality. Therefore, Section 377 IPC in its present form violates Article 19(1)(a) of the Constitution. (Para 253 (xvi))

Ergo, Section 377 IPC, so far as it penalizes any consensual sexual relationship between two adults, be it homosexuals (man and a man), heterosexuals (man and a woman) or lesbians (woman and a woman), cannot be regarded as constitutional. However, if anyone, by which we mean both a man and a woman, engages in any kind of sexual activity with an animal, the said aspect of Section 377 is constitutional and it shall remain a penal offence under Section 377 IPC. Any act of the description covered under Section 377 IPC done between two individuals without the consent of any one of them would invite penal liability under Section 377 IPC. (Para 253 (xvii))  

-Tushar Kaushik

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