NAVTEJ SINGH JOHAR & Ors. v. UNION OF INDIA THR. SECRETARY

Judgment

) Penal Code, 1860 – s.377 – In contemporary civilised jurisprudence, with States increasingly recognising the status of same-sex relationships, it would be retrograde to describe such relationships as being ‘perverse’, ‘deviant’, or ‘unnatural’. (Per Indu Malhotra, J.) Penal Code, 1860 – s.375 and 377 – While s.375 permits consensual penetrative acts (the definition of ‘penetration’ includes oral and anal sex), s.377 makes the same acts of penetration punishable irrespective of consent – This creates a dichotomy in the law – Constitution of India – Art.14. (Per Indu Malhotra, J.) Penal Code, 1860 – s.377 – History owes an apology to the members of LGBT community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries – The members of this community were compelled to live a life full of fear of reprisal and persecution – This was on account of the ignorance of the majority to recognise that homosexuality is a completely natural condition, part of a range of human sexuality. (Per Indu Malhotra, J.) Penal Code, 1860 – s.377 – s.377, insofar criminalising the consensual sexual acts of adults in private, is violative of Arts.14, 15, 19, and 21 of the Constitution – Such consent must be free consent, which is completely voluntary in nature, and devoid of any duress or coercion – The declaration of the said reading down of s.377 shall not, however, lead to the re-opening of any concluded prosecutions, but can certainly be relied upon in all pending matters whether they are at the trial, appellate, or revisional stages – The provisions of s.377 will continue to govern non-consensual sexual acts against adults, all acts of carnal intercouse against minors, and acts of beastiality. (Per Indu Malhotra, J.) Constitution of India – Interpretation of Constitution – Concept of transformative Constitutionalism – Held: The Constitution would become a stale and dead testament without A B C D E F G H 384 SUPREME COURT REPORTS [2018] 7 S.C.R. dynamic, vibrant and pragmatic interpretation – Constitutional provisions have to be construed and developed in such a manner that their real intent and existence percolates to all segments of the society – 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 – Lesbian, Gay, Bisexual and Transgender (LGBT). (Per Dipak Misra, CJI [for himself and Khanwilkar, J.]) Constitution of India – Constitutional morality – It is only constitutional morality that can be allowed to permeate into the Rule of Law – 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 – 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. (Per Dipak Misra, CJI [for himself and Khanwilkar, J.]) Constitution of India – Right to live with dignity – 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 A B C D E F G H NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE [DIPAK MISRA, CJI ] 385 dignity – 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. (Per Dipak Misra, CJI [for himself and Khanwilkar, J.]) Constitution of India – Intention of constitutional framers was never to grant protection of fundamental rights only to the majority population – If such had been the intention, then all provisions in Part III of the Constitution would have contained qualifying words such as ‘majority persons’ or ‘majority citizens’ – Instead, the provisions have employed the words ‘any person’ and ‘any citizen’ making it manifest that the constitutional courts are under an obligation to protect the fundamental rights of every single citizen without waiting for the catastrophic situation when the fundamental rights of the majority of citizens get violated. (Per Dipak Misra, CJI [for himself and Khanwilkar, J.]) Constitution of India – Sexual privacy and autonomy – Right to privacy enables an individual to exercise his or her autonomy away from the glare of societal expectations – In a liberal democracy, recognition of the individual as an autonomous person is an acknowledgement of the State’s respect for the capacity of the individual to make independent choices – Autonomy and privacy are inextricably linked – Each requires the other for its full realization – Sexual choices are an essential attribute of autonomy. (Per Dr. D. Y. Chandrachud, J.) Constitution of India – Choice of partner – 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. (Per Dr. D. Y. Chandrachud, J.) Constitution of India – Right to health – Impact of s.377 on right to health – The operation of s.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 A B C D E F G H 386 SUPREME COURT REPORTS [2018] 7 S.C.R. A B C D E F G H 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 – s.377 has had far-reaching consequences for this “key population”, pushing them out of the public health system – Laws that criminalize same-sex intercourse create social barriers to accessing healthcare, and curb the effective prevention and treatment of HIV/AIDS – 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 – Penal Code, 1860 – s.377. (Per Dr. D. Y. Chandrachud, J.) Constitution of India – Constitutional morality – The very purpose of fundamental rights chapter in the Constitution of India is to withdraw the subject of liberty and dignity of the individual and place such subject beyond the reach of majoritarian governments so that constitutional morality can be applied by the Supreme Court to give effect to the rights among others of discrete and insular minorities. (Per R.F. Nariman, J.) Constitution of India – Constitution morality – Held: The Constitution assures to every individual the right to lead a dignified life – It prohibits discrimination within society – 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. (Per Dr. D. Y. Chandrachud, J.) Constitution of India – Constitution morality and public morality – Difference between – Held: Under a regime of public morality, the conduct of 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 – Constitutional morality, on the other hand, 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 NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE [DIPAK MISRA, CJI ] 387 overriding factor in the struggle for existence over any other notion of social acceptance. (Per Dr. D. Y. Chandrachud, J.) A Constitution of India – Arts.14, 21 – 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 – 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 – 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 – LGBT – Homosexual. (Per R.F. Nariman, J.) Constitution of India – Art.14 – A classification which discriminates between persons based on their innate nature, would be violative of their fundamental rights, and cannot withstand the test of constitutional morality – s.377 insofar as it criminalises consensual sexual acts between adults in private, is not based on any sound or rational principle, since the basis of criminalisation is the “sexual orientation” of a person, over which one has “little or no choice” – Further, the phrase “carnal intercourse against the order of nature” in s.377 as a determining principle in a penal provision, is too open-ended, giving way to the scope for misuse against members of the LGBT community – Thus, apart from not satisfying the twin-test under Art.14, s.377 is also manifestly arbitrary, and hence violative of Art.14 of the Constitution. (Per Indu Malhotra, J.) Constitution of India – Art.15 – Term ‘sex’ as it occurs in Art.15, is not merely restricted to the biological attributes of an individual, but also includes their “sexual identity and character” – The prohibition against discrimination under Art.15 on the ground of ‘sex’ should, therefore, encompass instances where such discrimination takes place on the basis of one’s sexual orientation – The LGBT community is a sexual minority which has suffered from unjustified and unwarranted hostile discrimination, and is equally entitled to the protection afforded by Art.15. (Per Indu Malhotra, J.) Constitution of India – Art.21 – LGBT, sexual orientation of – Impediment of s.377 IPC – When biological expression, be it an B C D E F G H 388 SUPREME COURT REPORTS [2018] 7 S.C.R. A B C D E F G H orientation or optional expression of choice, is faced with impediment, albeit through any imposition of law, the individual’s natural and constitutional right is dented – Such a situation urges the conscience of the final constitutional arbiter to demolish the obstruction and remove the impediment so as to allow the full blossoming of the natural and constitutional rights of individuals – Yogyakarta Principle. (Per Dipak Misra, CJI [for himself and Khanwilkar, J.]) Constitution of India – Art.21 – Right to choose partner on the basis of sexual orientation – Held: Sexual orientation is innate to a human being – It is an important attribute of one’s personality and identity – Homosexuality and bisexuality are natural variants of human sexuality – LGBT persons have little or no choice over their sexual orientation – LGBT persons, like other heterosexual persons, are entitled to their privacy, and the right to lead a dignified existence, without fear of persecution – They are entitled to complete autonomy over the most intimate decisions relating to their personal life, including the choice of their partners – Such choices must be protected under Art.21 – The right to life and liberty would encompass the right to sexual autonomy, and freedom of expression – s.377 insofar as it curtails the personal liberty of LGBT persons to engage in voluntary consensual sexual relationships with a partner of their choice, in a safe and dignified environment, is violative of Art.21. (Per Indu Malhotra, J.) Constitution of India – Art.21 – Right to privacy – s.377 affects the private sphere of the lives of LGBT persons – It takes away the decisional autonomy of LGBT persons to make choices consistent with their sexual orientation, which would further a dignified existence and a meaningful life as a full person – s.377 prohibits LGBT persons from expressing their sexual orientation and engaging in sexual conduct in private, a decision which inheres in the most intimate spaces of one’s existence. (Per Indu Malhotra, J.) Constitution of India – Art.21 – Right to health – LGBT persons being a sexual minority have been subjected to societal prejudice, discrimination and violence on account of their sexual orientation – Since s.377 criminalises “carnal intercourse against the order of nature” it compels LGBT persons to lead closeted lives – As a consequence, LGBT persons are seriously disadvantaged and NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE [DIPAK MISRA, CJI ] 389 prejudiced when it comes to access to health-care facilities – This results in serious health issues, including depression and suicidal tendencies amongst members of this community. (Per Indu Malhotra, J.) Constitution of India – Art.32 – Duty of constitutional Courts – Held: It is expected from the courts as the final arbiter of the Constitution to uphold the cherished principles of the Constitution and not to be remotely guided by majoritarian view or popular perception – The Court has to be guided by the conception of constitutional morality and not by the societal morality – Whenever the constitutional Courts come across a situation of transgression or dereliction in the sphere of fundamental rights, which are also the basic human rights of a section, howsoever small part of the society, then it is for the constitutional Courts to ensure, with the aid of judicial engagement and creativity, that constitutional morality prevails over social morality. (Per Dipak Misra, CJI [for himself and Khanwilkar, J.]) Doctrines/Principles – Doctrine of progressive realization and non-retrogression – The rationale behind the doctrine of progressive realization of rights is the dynamic and ever growing nature of the Constitution under which the rights have been conferred to the citizenry – The State has an obligation to take appropriate measures for the progressive realization of economic, social and cultural rights – The doctrine of progressive realization of rights, as a natural corollary, gives birth to the doctrine of non-retrogression – As per this doctrine, there must not be any regression of rights – The doctrine of non-retrogression sets forth that the State should not take measures or steps that deliberately lead to retrogression on the enjoyment of rights either under the Constitution or otherwise – The two doctrines lead to the irresistible conclusion that if the law enunciated in Suresh Koushal’s case is accepted, it would definitely tantamount to a retrograde step in the direction of the progressive interpretation of the Constitution and denial of progressive realization of rights – The observation was made in Suresh Koushal that gays, lesbians, bisexuals and transgenders constitute a very minuscule part of the population – Suresh Koushal’s view gets wrongly embedded with the minuscule facet and assumes criminality on the bedrock being guided by a sense of social morality – It discusses about health which is no more a phobia and is further A B C D E F G H 390 SUPREME COURT REPORTS [2018] 7 S.C.R. A B C D E F G H moved by the popular morality while totally ignoring the concepts of privacy, individual choice and the orientation – Orientation, in certain senses, does get the neuro-impulse to express while seeing the other gender – That apart, swayed by data, Suresh Koushal fails to appreciate that the sustenance of fundamental rights does not require majoritarian sanction – Thus, the ruling becomes sensitively susceptible – LGBT – Penal Code, 1860 – s.377. (Per Dipak Misra, CJI [for himself and Khanwilkar, J.]) Judicial review – Scope of – Where the validity of the law is called into question, judicial review will extend to scrutinizing 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. (Per Dr. D. Y. Chandrachud, J.) Jurisprudence – Criminal Law Theories – ‘Bentham’s Utilitarian Theory’ and ‘The Harm Principle’ – Discussed. (Per Dr. D.Y. Chandrachud, J.) Maxim – The latin maxim ‘cessant ratione legis, cessat ipsa lex’, meaning when the reason for a law ceases, the law itself ceases is a rule of law – Parliament has unequivocally declared that the earlier stigma attached to same-sex couples, as persons who are regarded as mentally ill, has gone for good – Mental Healthcare Act, 2017 – Penal Code, 1860 – s.377. (Per R.F. Nariman, J.) Mental Healthcare Act, 2017 – s.3 – Homosexuality, whether a mental disorder – 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 this enactment – s.3 of the Act mandates that mental illness is to be determined in accordance with ‘nationally’ or ‘internationally’ accepted medical standards – The International Classification of Diseases (ICD-10) by the World Health Organization 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 – Penal Code, 1860 – s.377. (Per Dr. D. Y. Chandrachud, J.) NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE [DIPAK MISRA, CJI ] 391 LGBT – 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 – Constitution of India. (Per Dr. D. Y. Chandrachud, J.) Legislation – Constitutional validity of a legislation – While 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. (Per Dr. D. Y. Chandrachud, J.) Disposing of the writ petitions, the Court HELD: Per Dipak Misra, CJI [for himself and Khanwilkar, J.] – 1. The Constitution has been conceived of and designed in a manner which acknowledges the fact that ‘change is inevitable’. It is the duty of the courts to realize the constitutional vision of equal rights in consonance with the current demands and situations and not to read and interpret the same as per the standards of equality that existed decades ago. The judiciary cannot remain oblivious to the fact that the society is constantly evolving and many a variation may emerge with the changing times. There is a constant need to transform the constitutional idealism into reality by fostering respect for human rights, promoting inclusion of pluralism, bringing harmony, that is, unity amongst diversity, abandoning the idea of alienation or some unacceptable social notions built on medieval egos and establishing the cult of egalitarian liberalism founded on reasonable principles that can withstand scrutiny. [Para 86] [475-F-H; 476-A] National Legal Services Authority v. Union of India and others (2014) 5 SCC 269; Ashok Kumar Gupta and another v. State of U.P. and others (1997) 5 SCC 201: [1997] 3 SCR 269; Video Electronics Pvt. Ltd. and another v. State of Punjab and another (1990) 3 SCC 87: [1989] 2 Suppl. SCR 731; Saurabh Chaudri and others v. Union of India and others (2003) 11 SCC 146: [2003] 5 Suppl. SCR 152 – relied on Childline India Foundation and another v. Allan John Waters and others (2011) 6 SCC 261; Khanu v. Emperor A B C D E F G H 392 SUPREME COURT REPORTS [2018] 7 S.C.R. A B C D E F G H AIR 1925 Sind 286; Lohana Vasantlal Devchand v. State AIR 1968 Guj 252; State of Kerala v. Kundumkara Govindan and another [1969] Cri LJ 818 (Ker); Calvin Francis v. State of Orissa 1992 (1) OLR 316; Chief Justice of Andhra Pradesh and others v. L.V.A. Dixitulu and Others (1979) 2 SCC 34 : [1979] 1 SCR 26 – referred to Re: Same Sex Marriage [2004] 3 S.C.R. 698; State of Missouri v. Holland 252 U.S. 416 (1920) – referred to

2.1 The concept of transformative constitutionalism has at its kernel a pledge 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. Transformation as a singular term is diametrically opposed to something which is static and stagnant, rather it signifies change, alteration and the ability to metamorphose. Thus, the concept of transformative constitutionalism, which is an actuality with regard to all Constitutions and particularly so with regard to the Indian Constitution, is, as a matter of fact, the ability of the Constitution to adapt and transform with the changing needs of the times. It is this ability of a Constitution to transform which gives it the character of a living and organic document. A Constitution continuously shapes the lives of citizens in particular and societies in general. Its exposition and energetic appreciation by constitutional courts constitute the lifeblood of progressive societies. The Constitution would become a stale and dead testament without dynamic, vibrant and pragmatic interpretation. [Paras 96, 97] [479-C-G] State of Kerala and another v. N.M. Thomas and others AIR 1976 SC 490 : [1976] 1 SCR 906 – relied on Road Accident Fund and another v. Mdeyide 2008 (1) SA 535 (CC); Bato Star Fishing (Pty) Ltd v. Minister of Environmental Affairs and Tourism and others [2004] ZACC 15; President of the Republic of South Africa v. Hugo (1997) 6 B.C.L.R. 708 (CC) – referred to

2.2 Equality does not only imply recognition of individual dignity but also includes within its sphere ensuring of equal opportunity to advance and develop their human potential and NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE [DIPAK MISRA, CJI ] 393 social, economic and legal interests of every individual and the process of transformative constitutionalism is dedicated to this purpose. [Para 104] [482-A-B] Shafin Jahan v. Asokan K.M. 2018 (5) SCALE 422 – relied on Albertyn & Goldblatt (1997) 6 B.C.L.R. 708 (CC); Investigating Directorate: Serious Economic Offences and others v. Hyundai Motor Distributors (Pty) Ltd and others: In Re Hyundai Motor Distributors (Pty) Ltd and others v. Smit NO and others 2001 (1) SA 545 (CC) – referred to

#3. Constitutional morality and Section 377 IPC Whenever the constitutional courts come across a situation of transgression or dereliction in the sphere of fundamental rights, which are also the basic human rights of a section, howsoever small part of the society, then it is for the constitutional courts to ensure, with the aid of judicial engagement and creativity, that constitutional morality prevails over social morality. 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. [Paras 121, 122] [487-F-H] Government of NCT of Delhi v. Union of India and Others 2018 (8) SCALE 72 – relied on

#4. Perspective of human dignity

4.1 The fundamental idea of dignity is regarded as an inseparable facet of human personality. Dignity has been duly recognized as an important aspect of the right to life under Article 21 of the Constitution. In the international sphere, the right to live with dignity had been identified as a human right way back in 1948 with the introduction of the Universal Declaration of Human Rights. Dignity is that component of one’s being without which A B C D E F G H 394 SUPREME COURT REPORTS [2018] 7 S.C.R. A B C D E F G H sustenance of his/her being to the fullest or completest is inconceivable. Dignity while expressive of choice is averse to creation of any dent. When biological expression, be it an orientation or optional expression of choice, is faced with impediment, albeit through any imposition of law, the individual’s natural and constitutional right is dented. Such a situation urges the conscience of the final constitutional arbiter to demolish the obstruction and remove the impediment so as to allow the full blossoming of the natural and constitutional rights of individuals. This is the essence of dignity. [Paras 127, 132] [489-C-D; 490-F, G-H; 491-A] Maneka Gandhi v. Union of India and another (1978) 1 SCC 248: [1978] 2 SCR 621 – relied on Law v. Canada (Minister of Employment and Immigration) [1999] 1 S.C.R. 497 – referred to

4.2 It is not only the duty of the State and the Judiciary to protect basic right to dignity, but the collective at large also owes a responsibility to respect one another’s dignity, for showing respect for the dignity of another is a constitutional duty. It is an expression of the component of constitutional fraternity. 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. [Paras 134, 135] [491-F-H; 492-A] P v. S Judgment of 30 April 1996; P v S and Cornwall County Council Case C-13/94; Planned Parenthood of Southeastern Pa. v. Casey 505 U.S. 833 (1992) – referred to

#5. 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 NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE [DIPAK MISRA, CJI ] 395 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. 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. [Paras 143, 144] [494-G; 495-A-B, C-D] K.S. Puttaswamy and another v. Union of India and others (2017) 10 SCC 1 – followed James Egan and John Norris Nesbit v. Her Majesty The Queen in Right of Canada and another [1995] 2 SCR 513 – referred to

#6. Privacy and its concomitant aspects

6.1 Within the compartment of privacy, individual autonomy has a significant space. Autonomy is individualistic. It is expressive of self-determination and such self-determination includes sexual orientation and declaration of sexual identity. Such an orientation or choice that reflects an individual’s autonomy is innate to him/ her. It is an inalienable part of his/her identity. The said identity under the constitutional scheme does not accept any interference as long as its expression is not against decency or morality. And the morality that is conceived of under the Constitution is constitutional morality. Under the autonomy principle, the individual has sovereignty over his/her body. He/she can A B C D E F G H 396 SUPREME COURT REPORTS [2018] 7 S.C.R. A B C D E F G H 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. [Para 149] [497-C-E] R. Rajagopal v. State of Tamil Nadu and others (1994) 6 SCC 632 : [1994] 4 Suppl. SCR 353 – relied on

6.2 There can be no doubt that an individual also has a right to a union under Article 21 of the Constitution. As a concept, union also means companionship in every sense of the word, be it physical, mental, sexual or emotional. The LGBT community is seeking realisation of its basic right to companionship, so long as such a companionship is consensual, free from the vice of deceit, force, coercion and does not result in violation of the fundamental rights of others. [Para 155] [498-G; 499-A] Bowers, Attorney General of Georgia v. Hardwick et al. 478 U.S. 186 (1986); Paris Adult Theatre I v. Slaton 413 U.S. 49 (1973); A.R. Coeriel and M.A.R. Aurik v. The Netherlands Communication No. 453/1991; Toonen v. Australia Communication No. 488/1992, U.C. Doc CCPR/C/50/D 488/ 1992, March 31, 1994; Dudgeon v. United Kingdom [1981] 4 EHRR 149 – referred to

6.3 The observation made in Suresh Koushal that gays, lesbians, bisexuals and transgenders constitute a very minuscule part of the population is perverse due to the very reason that such an approach would be violative of the equality principle enshrined under Article 14 of the Constitution. The mere fact that the percentage of population whose fundamental right to privacy is being abridged by the existence of Section 377 in its present form is low does not impose a limitation upon this Court from protecting the fundamental rights of those who are so affected by Section 377 IPC. The constitutional framers could have never intended that the protection of fundamental rights was only for the majority population. If such had been the intention, then all provisions in Part III of the Constitution would have contained NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE [DIPAK MISRA, CJI ] 397 qualifying words such as ‘majority persons’ or ‘majority citizens’. Instead, the provisions have employed the words ‘any person’ and ‘any citizen’ making it manifest that the constitutional courts are under an obligation to protect the fundamental rights of every single citizen without waiting for the catastrophic situation when the fundamental rights of the majority of citizens get violated. A second count on which the view in Suresh Koushal becomes highly unsustainable is that the language of both Articles 32 and 226 of the Constitution is not reflective of such an intention. A cursory reading of both the Articles divulges that the right to move the Supreme Court and the High Courts under Articles 32 and 226 respectively is not limited to a situation when there is violation of the fundamental rights of a large chunk of populace. [Paras 169, 170, 172] [503-D-F; 504-C-D] D.K. Basu v. State of W.B. (1997) 1 SCC 416 : [1996] 10 Suppl. SCR 284; Chiranjit Lal Chowdhury v. Union of India [1950] 1 SCR 869 – relied on

7.1 The Doctrine of progressive realization of rights invariably reminds about the living and dynamic nature of a Constitution. The rationale behind the doctrine of progressive realization of rights is the dynamic and ever growing nature of the Constitution under which the rights have been conferred to the citizenry. The constitutional courts have to recognize that the constitutional rights would become a dead letter without their dynamic, vibrant and pragmatic interpretation. Therefore, it is necessary for the constitutional courts to inculcate in their judicial interpretation and decision making a sense of engagement and a sense of constitutional morality so that they, with the aid of judicial creativity, are able to fulfill their foremost constitutional obligation, that is, to protect the rights bestowed upon the citizens of our country by the Constitution. The doctrine of progressive realization of rights, as a natural corollary, gives birth to the doctrine of non-retrogression. As per this doctrine, there must not be any regression of rights. In a progressive and an ever- improving society, there is no place for retreat. The society has to march ahead. The doctrine of non-retrogression sets forth that the State should not take measures or steps that deliberately lead to retrogression on the enjoyment of rights either under the A B C D E F G H 398 SUPREME COURT REPORTS [2018] 7 S.C.R. A Constitution or otherwise. [Paras 178, 183, 184, 188, 189] [505- D-E; 507-G-H; 508-A-B; 509-C] McCulloch v. Maryland (1816) 17 US 316; Kazenbach v. Morgan (1966) 384 US 641 – referred to

7.2 The two doctrines lead to the irresistible conclusion that if the law enunciated in Suresh Koushal’s case is accepted, it would definitely tantamount to a retrograde step in the direction of the progressive interpretation of the Constitution and denial of progressive realization of rights. It is because Suresh Koushal’s view gets wrongly embedded with the minuscule facet and assumes criminality on the bedrock being guided by a sense of social morality. It discusses about health which is no more a phobia and is further moved by the popular morality while totally ignoring the concepts of privacy, individual choice and the orientation. Orientation, in certain senses, does get the neuro-impulse to express while seeing the other gender. That apart, swayed by data, Suresh Koushal fails to appreciate that the sustenance of fundamental rights does not require majoritarian sanction. [Para 190] [509-D-F] Obergefell, et al. v. Hodges, Director, Ohio Department of Health, et al. 576 US (2015), Price Waterhouse v. Hopkins 490 U.S. 228 (1989); Kimberly Hively v. Ivy Tech Community College of Indiana 830 F.3d 698; Lawrence v. Texas 539 U.S. 558 (2003); Roberts v. United States Jaycees 468 U.S. 609 (1984); Delwin Vriend and others v. Her Majesty the Queen in Right of Alberta and others [1998] 1 SCR 493; Euan Sutherland v. United Kingdom 2001 ECHR 234; Ang Ladlad LGBT Party v. Commission of Elections G. R. No.190582, Supreme Court of Philippines (2010) – referred to Black’s Law Dictionary, 2nd edn. – referred to

#8. Comparative analysis of Section 375 and Section 377 IPC

8.1 A cursory reading of Section 375 IPC divulges that it is a gender specific provision for the protection of women as only a man can commit the offence of rape. The Section has been divided into two parts. The former part, comprising of Clauses (a) to (d), simply describes what acts committed by a man with a woman B C D E F G H NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE [DIPAK MISRA, CJI ] 399 would amount to rape provided that the said acts are committed in the circumstances falling under any of the seven descriptions as stipulated by the latter part of the Section. It is in this way that the latter part of Section 375 IPC becomes important as it lays down the circumstances, either of which must be present, for an act committed by a man with a woman to come within the sweep of the offence of rape. [Paras 206, 207] [517-B; 518-F-H]

8.2 Explanation 2 to Section 375 IPC gives the definition of consent for the purpose of Section 375 to the effect that consent means an unequivocal voluntary agreement by the woman through words, gestures or any form of verbal or non-verbal communication whereby she communicates her willingness to participate in any of the sexual acts described in the former part of Section 375 IPC. The element of absence of consent is firmly ingrained in all the descriptions contained in the latter part of Section 375 IPC and the absence of a willful and informed consent is sine qua non to designate the acts contained in the former part of Section 375 IPC as rape. [Paras 209, 210] [519-F-G, H; 520- A]

8.3 Section 377 IPC, unlike Section 375, is a gender-neutral provision as it uses the word ‘whoever’. Another expression which has been employed in Section 377 is ‘against the order of nature’. The phrase ‘against the order of nature’ has neither been defined in Section 377 IPC nor in any other provision of the IPC. The foundation on which Section 377 IPC makes carnal intercourse an offence is the precept that such carnal intercourse is against the order of nature. [Paras 212, 213] [520-D, E-F]

8.4. With the passage of time and evolution of the society, procreation is not the only reason for which people choose to come together, have live-in relationships, perform coitus or even marry. They do so for a whole lot of reasons including emotional companionship. 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. Section 377 criminalises even voluntary carnal intercourse not only between homosexuals but also between A B C D E F G H 400 SUPREME COURT REPORTS [2018] 7 S.C.R. A B C D E F G H heterosexuals. The major difference between the language of Section 377 and Section 375 is that of the element of absence consent which has been elaborately incorporated in the seven descriptions contained in the latter part of Section 375 IPC. It is the absence of willful and informed consent embodied in the seven descriptions to Section 375 which makes the offence of rape criminal. On the other hand, Section 377 IPC contains no such descriptions/exceptions embodying the absence of willful and informed consent and criminalises even voluntary carnal intercourse both between homosexuals as well as between heterosexuals. The legislature, in its wisdom, while enacting Section 375 IPC in its amended form after the Criminal Law (Amendment) Act, 2013, has not employed the words “subject to any other provision of the IPC”. The implication of the absence of these words simply indicates that Section 375 IPC which does not criminalize consensual carnal intercourse between heterosexuals is not subject to Section 377 IPC. [Paras 215, 216, 217, 218] [521-A, C-H]

#9. Despite the Criminal Law (Amendment) Act, 2013 coming into force, by virtue of which Section 375 was amended, whereby the words ‘sexual intercourse’ in Section 375 were replaced by four elaborate clauses from (a) to (d) giving a wide definition to the offence of rape, Section 377 IPC still remains in the statute book in the same form. Such an anomaly, if allowed to persist, may result in a situation wherein a heterosexual couple who indulges in carnal intercourse with the willful and informed consent of each other may be held liable for the offence of unnatural sex under Section 377 IPC, despite the fact that such an act would not be rape within the definition as provided under Section 375 IPC. Drawing an analogy, 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. [Paras 220, 221] [522-B-E] NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE [DIPAK MISRA, CJI ] 401

#10. The litmus test for survival of Section 377 IPC

10.1 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] [525-A-B] Sunil Batra v. Delhi Administration and others [1979] 1 SCR 392 – relied on

10.2 What Article 14 propounds is that ‘all like should be treated alike’. In other words, it implies equal treatment for all equals. Though the legislature is fully empowered to enact laws applicable to a particular class, as in the case at hand in which Section 377 applies to citizens who indulge in carnal intercourse, yet the classification, including the one made under Section 377 IPC, has to satisfy the twin conditions to the effect that the classification must be founded on an intelligible differentia and the said differentia must have a rational nexus with the object sought to be achieved by the provision, that is, Section 377 IPC. A perusal of Section 377 IPC reveals that it classifies and penalizes persons who indulge in carnal intercourse, with the object to protect women and children from being subjected to carnal intercourse. This classification does not have a reasonable nexus with the object sought to be achieved as the non-consensual acts which have been criminalized by virtue of Section 377 IPC have already been designated as penal offences under Section 375 IPC and under the POCSO Act. Per contra, the presence of this Section in its present form has resulted in a distasteful and objectionable collateral effect whereby even ‘consensual acts’, which are neither harmful to children nor women and are performed by a certain class of people (LGBTs) owning to some inherent characteristics defined by their identity and individuality, have been woefully targeted. This discrimination and unequal treatment meted out to the LGBT community as a separate class of citizens A B C D E F G H 402 SUPREME COURT REPORTS [2018] 7 S.C.R. A is unconstitutional for being violative of Article 14 of the Constitution. [Para 233, 237] [525-G; 526-A-B; 527-B-D] M. Nagaraj and others v. Union of India and Others AIR 2007 SC 71 : (2006) 8 SCC 212: [2006] 7 Suppl. SCR 336; E.P. Royappa v. State of Tamil Nadu and another (1974) 4 SCC 3: [1974] 2 SCR 348; Budhan Choudhry v. The State of Bihar AIR 1955 SC 191 : [1955] SCR 1045 – relied on

10.3 Section 377 fails to make a distinction between consensual and non-consensual sexual acts between competent adults. Further, Section 377 IPC fails to take into account that consensual sexual acts between adults in private space are neither harmful nor contagious to the society. On the contrary, Section 377 trenches a discordant note in respect of the liberty of persons belonging to the LGBT community by subjecting them to societal pariah and dereliction. The Section also interferes with consensual acts of competent adults in private space. Sexual acts cannot be viewed from the lens of social morality or that of traditional precepts wherein sexual acts were considered only for the purpose of procreation. This being the case, Section 377 IPC, so long as it criminalises consensual sexual acts of whatever nature between competent adults, is manifestly arbitrary. The LGBT community possess the same human, fundamental and constitutional rights as other citizens do since these rights inhere in individuals as natural and human rights. The organisation of intimate relations is a matter of complete personal choice especially between consenting adults. It is a vital personal right falling within the private protective sphere and realm of individual choice and autonomy. Such progressive proclivity is rooted in the constitutional structure and is an inextricable part of human nature. [Paras 238, 239, 240] [527-H; 528-A-D, E-H] Chintaman Rao v. State of Madhya Pradesh AIR 1951 SC 118 : [1950] SCR 759; S. Rangarajan v. P. Jagjivan Ram and Others (1989) 2 SCC 574 : [1989] 2 SCR 204; Shreya Singhal v. Union of India (2015) 5 SCC 1 : [2015] 5 SCR 963 – relied on B C D E F G H NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE [DIPAK MISRA, CJI ] 403

11.1 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. The law is et domus sua cuique est tutissimum refugium – A man’s house is his castle. That apart, any display of affection amongst the members of the LGBT community towards their partners in the public so long as it does not amount to indecency or has the potentiality to disturb public order cannot be bogged down by majority perception. Section 377 IPC amounts to unreasonable restriction as it makes carnal intercourse between consenting adults within their castle a criminal offence which is manifestly not only overboard and vague but also has a chilling effect on an individual’s freedom of choice. [Paras 245, 246] [530-B, D]

11.2 Section 377 IPC does not meet the criteria of proportionality and is violative of the fundamental right of freedom of expression including the right to choose a sexual partner. Section 377 IPC also assumes the characteristic of unreasonableness, for it becomes a weapon in the hands of the majority to seclude, exploit and harass the LGBT community. It shrouds the lives of the LGBT community in criminality and constant fear mars their joy of life. They constantly face social prejudice, disdain and are subjected to the shame of being their very natural selves. Thus, an archaic law which is incompatible with constitutional values cannot be allowed to be preserved. The very existence of Section 377 IPC criminalising transgenders casts a great stigma on an already oppressed and discriminated class of people. This stigma, oppression and prejudice has to be eradicated and the transgenders have to progress from their narrow claustrophobic spaces of mere survival in hiding with their isolation and fears to enjoying the richness of living out of the shadows with full realization of their potential and equal opportunities in all walks of life. [Paras 247, 249] [530-E-G; 531- A-B] Shayara Bano v. Union of India and Others (2017) 9 SCC 1: [2017] 3 SCR 630 – relied on A B C D E F G H 404 SUPREME COURT REPORTS [2018] 7 S.C.R. Suresh Kumar Koushal and another v. Naz Foundation and others (2014) 1 SCC 1 : [2013] 17 SCR 1019 – overruled Naz Foundation v. Government of NCT of Delhi and others (2009) 111 DRJ 1; Indra Sarma v. V.K.V. Sarma (2013) 15 SCC 755 : [2013] 14 SCR 1019; Shakti Vahini v. Union of India and others (2018) 7 SCC 192; Manoj Narula v. Union of India (2014) 9 SCC 1 : [2014] 9 SCR 965; Francis Coralie Mullin v. Administrator, Union Territory of Delhi and others (1981) 1 SCC 608 : [1981] 2 SCR 516; Common Cause (A Registered Society) v. Union of India and another (2018) 5 SCC 1; Anuj Garg and others v. Hotel Association of India and others (2008) 3 SCC 1 : [2007] 12 SCR 991; S. Khushboo v. Kanniammal and another (2010) 5 SCC 600 : [2010] 5 SCR 322; Kishore Samrite v. State of U.P. and others (2013) 2 SCC 398 : [2012] 9 SCR 733; Umesh Kumar v. State of Andhra Pradesh and another (2013) 10 SCC 591 : [2013] 14 SCR 213; Iqbal Singh Marwah and another v. Meenakshi Marwah and another (2005) 4 SCC 370 : [2005] 2 SCR 708; K.A. Abbas v. Union of India and another (1970) 2 SCC 780 : [1971] 2 SCR 446; Rt. Rev. Msgr. Mark Netto v. State of Kerala and others (1979) 1 SCC 23 : [1979] 1 SCR 609; Fazal Rab Choudhary v. State of Bihar (1982) 3 SCC 9; Jagmohan Singh v. State of U.P. (1973) 1 SCC 20 : [1973] 2 SCR 541; State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat and others (2005) 8 SCC 534 : [2005] 4 Suppl. SCR 582; Kesavananda Bharati v. Union of India (1973) 4 SCC 225 : [1973] Suppl. SCR1; Sakshi v. Union of India and others (2004) 5 SCC 518 : [2004] 2 Suppl. SCR 723; Union of India and another v. Deoki Nandan Aggarwal (1992) Supp. 1 SCC 323 : [1991] 3 SCR 873 – referred to Mosley v. News Group Newspapers Ltd. [2008] EWHC 1777 (QB) – referred to A B C D E F G H NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE [DIPAK MISRA, CJI ] 405 Per R. F. Nariman, J. 1.1 At one point of time, the thinking in Victorian England and in America was that homosexuality was a mental disorder. The definition of ‘mental illness’ in the Mental Healthcare Act, 2017 throw s to the winds all earlier misconceptions of mental illness including the fact that same- sex couples who indulge in anal sex are persons with mental illness. [Para 68] [577-E-F] Lawrence v. Texas 539 U.S. 558 (2003); Obergefell etal v. Hodges, Director, Ohio Department of Health, et al., 576 US (2015) – referred to

1.2 Mental illness in our statute has to keep pace with international notions and accepted medical standards including the latest edition of the International Classification of Diseases of the World Health Organization under Section 3(1) of the Act. Under Section 3(3), mental illness shall not be determined on the basis of social status or membership of a cultural group or for any other reason not directly relevant to the mental health of the person. More importantly, mental illness shall not be determined on the basis of non-conformity with moral, social, cultural, work or political values or religious beliefs prevailing in a person’s community. It is thus clear that Parliament has unequivocally declared that the earlier stigma attached to same-sex couples, as persons who are regarded as mentally ill, has gone for good. The latin maxim cessant ratione legis, cessat ipsa lex, meaning when the reason for a law ceases, the law itself ceases is a rule of law. [Paras 73, 78] [583-C-D; 585-C-D] H.H. Shri Swamiji of Shri Amar Mutt v. Commissioner, Hindu Religious and Charitable Endowments Dept (1979) 4 SCC 642 : [1980] 1 SCR 368; State of Punjab v. Devans Modern Breweries Ltd. (2004) 11 SCC 26 : [2003] 5 Suppl. SCR 930 – relied on Suresh Kumar Koushal and Anr. v. Naz Foundation and Ors. (2014) 1 SCC 1 : [2013] 17 SCR 116 – overruled

1.3 Section 377 was the product of the Victorian era, with its attendant puritanical moral values. Victorian morality must give way to constitutional morality. Constitutional morality is the soul of the Constitution, which is to be found in the Preamble of A B C D E F G H 406 SUPREME COURT REPORTS [2018] 7 S.C.R. A B C D E F G H the Constitution, which declares its ideals and aspirations, and is also to be found in Part III of the Constitution, particularly with respect to those provisions which assure the dignity of the individual. The rationale for Section 377, namely Victorian morality, has long gone and there is no reason to continue with - as Justice Holmes said - a law merely for the sake of continuing with the law when the rationale of such law has long since disappeared. Section 377, insofar as it applies to same-sex consenting adults, demeans them by having them prosecuted instead of understanding their sexual orientation and attempting to correct centuries of the stigma associated with such persons. [Paras 78, 79] [585-D-F, G-H] K.S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors. (2017) 10 SCC 1 – followed. S. Khushboo v. Kanniammal and Anr. (2010) 5 SCC 600 : [2010] 5 SCR 322 – relied on

#2. Section 377, in penalizing consensual gay sex, is manifestly arbitrary. Given modern psychiatric studies and legislation which recognizes that gay persons and transgenders are not persons suffering from mental disorder and cannot therefore be penalized, the Section must be held to be a provision which is capricious and irrational. Also, roping in such persons with sentences going upto life imprisonment is clearly excessive and disproportionate, as a result of which, when applied to such persons, Articles 14 and 21 of the Constitution would clearly be violated. The object sought to be achieved by the provision, namely to enforce Victorian mores upon the citizenry of India, would be out of tune with the march of constitutional events that has since taken place, rendering the said object itself discriminatory when it seeks to single out same-sex couples and transgenders for punishment. [Para 82] [587-C-E] Shayara Bano v. Union of India (2017) 9 SCC 1; Shreya Singhal v. Union of India (2015) 5 SCC 1 : [2015] 5 SCR 963 – relied on

#3. The International Commission of Jurists and the International Service for Human Rights on behalf of a coalition of human rights organizations had undertaken a project to develop NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE [DIPAK MISRA, CJI ] 407 a set of international legal principles on the application of international law to human rights violations based on sexual orientation and gender identity to bring greater clarity and coherence to States’ human rights obligations. A distinguished group of human rights experts drafted, developed, discussed and refined these Principles. Following an experts’ meeting held at Gadjah Mada University in Yogyakarta, Indonesia from 6th to 9th November, 2006, 29 distinguished experts from 25 countries with diverse backgrounds and expertise relevant to issues of human rights law unanimously adopted the Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity. These principles give further content to the fundamental rights contained in Articles 14, 15, 19 and 21, and viewed in the light of these principles also, Section 377 will have to be declared to be unconstitutional. [Paras 85, 86, 88] [588-B-E; 598-F-F-G]

4.1 The view of Suresh Kumar Koushal is not correct. Suresh Kumar Koushal’s judgment first begins with the presumption of constitutionality attaching to pre-constitutional laws, such as the Indian Penal Code. The judgment goes on to state that pre-constitutional laws, which have been adopted by Parliament and used with or without amendment, being manifestations of the will of the people of India through Parliament, are presumed to be constitutional. [Para 89] [595-G-H; 596-A]

4.2 Article 372 of the Constitution of India continues laws in force in the territory of India immediately before the commencement of the Constitution. The Indian Penal Code is a law in force in the territory of India immediately before the commencement of this Constitution. Under Article 372(2), the President may, by order, make such adaptations and modifications of an existing law as may be necessary or expedient to bring such law in accord with the provisions of the Constitution. The fact that the President has not made any adaptation or modification as mentioned in Article 372(2) does not take the matter very much further. The presumption of constitutionality of a statute is premised on the fact that Parliament understands the needs of the people, and that, as per the separation of powers doctrine, Parliament is aware of its limitations in enacting laws – it can only A B C D E F G H 408 SUPREME COURT REPORTS [2018] 7 S.C.R. A B C D E F G H enact laws which do not fall within List II of Schedule VII of the Constitution of India, and cannot transgress the fundamental rights of the citizens and other constitutional provisions in doing so. Parliament is, therefore, deemed to be aware of the aforesaid constitutional limitations. Where, however, a pre-constitution law is made by either a foreign legislature or body, none of these parameters obtain. It is, therefore, clear that no such presumption attaches to a pre-constitutional statute like the Indian Penal Code. [Para 90] [596-B-E] New Delhi Municipal Council v. State of Punjab and Ors. (1997) 7 SCC 339 : [1996] 10 Suppl. SCR 472 – disapproved

4.3 In Suresh Kumar Koushal, the Court held that the fact that the legislature has chosen not to amend the law, despite the 172nd Law Commission Report specifically recommending deletion of Section 377, may indicate that Parliament has not thought it proper to delete the said provision, is another reason for not invalidating Section 377. This view is not accepted when the Union of India admittedly did not challenge the Delhi High Court judgment striking down the provision in part. Secondly, the fact that Parliament may or may not have chosen to follow a Law Commission Report does not guide the Court’s understanding of its character, scope, ambit and import as was stated in Suresh Kumar Koushal. It is a neutral fact which need not be taken into account at all. All that the Court has to see is whether constitutional provisions have been transgressed and if so, as a natural corollary, the death knell of the challenged provision must follow. [Para 92] [597-D-F]

5.1 After 2013, when Section 375 was amended so as to include anal and certain other kinds of sexual intercourse between a man and a woman, which would not be criminalized as rape if it was between consenting adults, it is clear that if Section 377 continues to penalize such sexual intercourse, an anomalous position would result. A man indulging in such sexual intercourse would not be liable to be prosecuted for rape but would be liable to be prosecuted under Section 377. Further, a woman who could, at no point of time, have been prosecuted for rape would, despite her consent, be prosecuted for indulging in anal or such other NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE [DIPAK MISRA, CJI ] 409 sexual intercourse with a man in private under Section 377. This would render Section 377, as applied to such consenting adults, as manifestly arbitrary as it would be wholly excessive and disproportionate to prosecute such persons under Section 377 when the legislature has amended one portion of the law in 2013, making it clear that consensual sex, as described in the amended provision, between two consenting adults, one a man and one a woman, would not be liable for prosecution. If, by having regard to what has been said above, Section 377 has to be read down as not applying to anal and such other sex by a male-female couple, then the Section will continue to apply only to homosexual sex. If this be the case, the Section will offend Article 14 as it will discriminate between heterosexual and homosexual adults which is a distinction which has no rational relation to the object sought to be achieved by the Section - namely, the criminalization of all carnal sex between homosexual and/or heterosexual adults as being against the order of nature. Viewed either way, the Section falls foul of Article 14. [Para 94] [597-G-H; 598-A-D]

5.2 The fact that only a minuscule fraction of the country’s population constitutes lesbians and gays or transgenders, and that in the last 150 years less than 200 persons have been prosecuted for committing the offence under Section 377, is neither here nor there. When it is found that privacy interests come in and the State has no compelling reason to continue an existing law which penalizes same-sex couples who cause no harm to others, on an application of the recent judgments delivered by this Court after Suresh Kumar Koushal, it is clear that Articles 14, 15, 19 and 21 have all been transgressed without any legitimate state rationale to uphold such provision. [Para 95] [598- E-F]

#6. 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. 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. Section 377 insofar as it criminalises homosexual sex and transgender sex between consenting adults is unconstitutional. The Union of India shall A B C D E F G H 410 SUPREME COURT REPORTS [2018] 7 S.C.R. 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. [Paras 97, 98] [599-A-D] Nandini Sundar v. State of Chhattisgarh, (2011) 7 SCC 547 : [2011] 8 SCR 1028; Subramaniam Swamy v. Union of India (2016) 7 SCC 221 : [2016] 3 SCR 865; National Legal Services Authority v. Union of India (2014) 5 SCC 438; Anuj Garg and Ors. v. Hotel Association of India and Ors. (2008) 3 SCC 1 : [2007] 12 SCR 991; Common Cause v. Union of India (2018) 5 SCC 1; Shafin Jahan v. Asokan K.M. 2018 SCC Online 343; Shakti Vahini v. Union of India 2018 SCC Online SC 275 – relied on. Naz Foundation v. Government of NCT of Delhi 111 DRJ 1 (2009) – referred to Bowers v. Hardwick 92 L. Ed. 2D 140 (1986); Stanley v. Georgia, 22 L. Ed. 2D 542 (1969); Wisconsin v. Yoder, 32 L. Ed. 2D 15 (1972); Lawrence v. Texas, 539 U.S. 558 (2003); Planned Parenthood of Southeaster Pa. v. Casey 505 U.S. 833 (1992); Dudgeon v. United Kingdom, 45 Eur. Ct. H. R. (1981); Romer v. Evans 517 U.S. 620 (1996); Modinos v. Cyprus 16 EHRR 485 (1993); El-Al Israel Airlines Ltd. v. Jonathan Danielwitz H.C.J. 721/94; Jason Jones v. Attorney General of Trinidad and Tobago Claim No. CV 2017- 00720; Dhirendra Nadan v. State Case No. HAA0085 of 2005; The National Coalition for Gay and Lesbian Equality v. The Minister of Home Affairs Case CCT 10/99; Toonen v. Australia Communication No. 488/ 1992, U.N. Doc CCPR/C/50/D/488/1992 (1994); Obergefell et al. v. Hodges, Director, Ohio Department of Health, et al., 576 US (2015) – referred to A B C D E F G H NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE [DIPAK MISRA, CJI ] 411 Per Dr. D.Y. Chandrachud, J. 1. 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. 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. [Para 34] [625-F-G; 626-A-B] National Legal Services Authority v. Union of India (2014) 5 SCC 438 – relied on Air India v. Nergesh Meerza (1981) 4 SCC 335 : [1982] 1 SCR 438 – disapproved Sri Sri Mahadev Jiew v. Dr. B. B. Sen AIR (1951) Cal. 563; Air India v. Nergesh Meerza (1981) 4 SCC 335 : [1982] 1 SCR 438; Anuj Garg v. Hotel Association of India (2008) 3 SCC 1 : [2007] 12 SCR 991; The National Coalition for Gay and Lesbian Equality v. The Minister of Justice 1999 (1) SA 6 (CC); Re. the Kerala Education Bill AIR 1958 SC 956 : [1959] SCR 995; Sakal Papers v. Union of India, AIR 1962 SC 305 : [1962] SCR 842; R.C. Cooper v. Union of India (1970) 1 SCC 248 : [1970] 3 SCR 530; Bennett Coleman v. Union of India AIR (1972) 2 SCC 788 : [1973] 2 SCR 757; Maneka Gandhi v. Union of India (1978) 1 SCC 248 : [1978] 2 SCR 621; (Meharban) Nowshirwan Irani v. Emperor AIR 1934 Sind. 206; D P Minwalla v. Emperor AIR 1935 Sind. 78; Ratan Mia v. State of Assam (1988) Cr.L.J. 980; E P Royappa v. State of Tamil Nadu (1974) 4 SCC 3 : [1974] 2 SCR 348; Shayara Bano v. Union of India (2017) 9 SCC 1; Khanu v. Emperor AIR (1925) Sind. 286 – referred to A B C D E F G H 412 SUPREME COURT REPORTS [2018] 7 S.C.R. A B C D E F G H Griggs v Duke Power Co. 401 U.S. 424 (1971); The National Coalition for Gay and Lesbian Equality v. The Minister of Justice, 1999 (1) SA 6 (CC), Sachs J., concurring – referred to Lyrics from Leonard Cohen’s song “Democract” (1992); Same-Sex Love in India : A Literary Hisotyr (Ruth Vanita and Saleem Kidwai, eds.) Penguin India (2008) for writings spanning over more than 2,000 years of Indian literature which emonstrate that same-sex love has flourised, evolved and been embraced in various forms since ancient times; Law like Love : Queer Perspectives on Law (Arvind Narrain and Alok Gupta, eds.), Yoda Press (2011); 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; 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; Barry Wright, “Macaulay’s Indian Penal Code: Historical Context and Originating Principles”, Carleton University (2011); Michael Kirby, “The Sodomy Offence: England’s Least Lovely Law Export?” Journal of Commonwealth Criminal Law, Inaugural Issue (2011); Jessica Cecil, “The Destruction of Sodom and Gomorrah”, British Broadcasting Company, 11 February 2017; KSN Murthy’s Criminal Law: Indian Penal Code (KVS Sarma ed), Lexis Nexis (2016) England; Philo, translated by F.H. Colson and G.H. Whitaker, 10 Volumes, (Cambridge : Harvard University Press, 1929-1962); David F. NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE [DIPAK MISRA, CJI ] 413 Greenberg and Marcia H. Bystryn, “Christian Intolerance of Homosexuality”, American Journal of Sociology, Vol. 88 (1982), at pages 515-548; Human Rights Watch. This Alien Legacy : The Origins of “Sodomy” Laws in British Colonialism (2008); H. Montgomery Hyde, John O’Connor, and Merlin Holland, The Trials of Oscar Wilde (2014), at page 201; Report of the Departmental Committee on Homosexual Offences and Prostitution (1957) (“Wolfenden Report”); Sexual Offences (Amendment) Act 2000, Parliament of the United Kingdom; Enze Han, Joseph O’Mahoney, “British Colonialism and the Criminalization of Homosexuality: Queens, Crime and Empire”, Routledge (2018); 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); 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); 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); Sex, Morality and the Law, (Lori Gruen and George Paichas eds.) Routledge (1996); Andrew Davis, “The Framing of Sex : Evaluating Judicial Discourse on the ‘Unnatural Offences’”, Alternative Law Journal, Vol. 5 (2006); Alok Gupta, “Section 377 and the Dignity of Indian Homosexuals” The Economic and Political Weekly, Vol. 41 (2006); John Sebastian, “The opposite of unnatural intercourse : understanding Section 377 through Section 375; Indian Law Review, Vol. 1 (2018); Emile Durkheim, The Division of Labour in Society, Macmillan (1984); Nivedita Menon, “How Natural is Normal? Compulsory Heterosexuality”, In Because I have a Voice, Queer Politics in India, (Narrain and Bhan eds.) Yoda Press (2005) – referred to Feminism A B C D E F G H 414 SUPREME COURT REPORTS [2018] 7 S.C.R.

#2. 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. 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. [Para 41] [631-B, E] K S Puttaswamy v. Union of India (2017) 10 SCC 1 – followed. Sanwesh Pokkuluri v. UOI Writ Petition (Criminal) No. 121 of 2018; Navtej Johar v. Union of India Writ Petition (Criminal) No. 76 of 2016 – referred to Bilka-Kaufhaus GmbH v. Karin Weber von Hartz (1986) ECR 1607; Andrews v. Law Society of British Columbia (1989) 1 SCR 143; City Council of Pretoria v. Walker (1998) 3 BCLR – referred to Elvia R. Arriola, “Gendered Inequality : Lesbians, Gays, and Feminist Legal Theory”, Berkeley Women’s Law Journal, Vol. 9 (1994), at pages 103-143; 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; Bennett Capers, “Note, Sexual Orientation and Title VII”, Columbia Law Review (1991), at pages 1159, 1160, 1163; Andrew Koppelman, “The Miscegenation Analogy: Sodomy Law as Sex Discrimination”, Yale Law Journal, Vol. 98 (1988), at page 147; Andrew Koppelman, “Why Discrimination against Lesbians and Gay Men is Sex Discrimination”, New York University Law Review, Vol. 69 (1994); Suzanne Pharr, Homophobia: A weapon of Sexism, Chardon Press (1988), at page 18; Tarunabh A B C D E F G H NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE [DIPAK MISRA, CJI ] 415 Khaitan, “Inclusive Pluralism or Majoritarian Nationalism: Article 15, Section 377 and Who We Really Are”, Indian Constitutional Law and Philosophy (2018); International Commission of Jurists, “Unnatural Offences” Obstacles to Justice in India Based on Sexual Orientation and Gender Identity (2017) – referred to

#3. 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 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). [Para 52] [642-A-B]

4.1 The application of Section 377 causes a deprivation of the fundamental right to privacy which inheres in every citizen. 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 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. 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.’ [Paras 58, 59, 60] [647-A, D, E-F] Eve Kosofsky Sedgwick, Epistemology of the Closet, University of California Press (1990); 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 – referred to A B C D E F G H 416 SUPREME COURT REPORTS [2018] 7 S.C.R. A B C

4.2 Privacy creates “tiers of ‘reputable’ and ‘disreputable’ sex”, only granting protection to acts behind closed doors. 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. 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.” It must be acknowledged that members belonging to sexual minorities are often subjected to harassment in public spaces. 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. [Para 62] [648-C-E]

#5. Sexual privacy and autonomy- deconstructing the D heteronormative framework 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-determination of sexual orientation is an exercise of autonomy. 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. [Para 66] [648-E-F; 652-C, E-F] Common Cause (A Registered Society) v. Union of India (2018) 5 SCC 1 – followed. Santosh Singh v Union of India (2016) 8 SCC 253 : [2016] 5 SCR 761 – relied on. M. Mahler, “The Psychological Birth of the Human infant. Symbiosis And Individuation” (1975); L. Kaplan, Oneness and Separateness: From infant to E F G H NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE [DIPAK MISRA, CJI ] 417 Individual (1978); Thomas M. Jr. Scanlon, Rawls’ Theory of Justice, University of Pennsylvania Law Review (1973) at 1022; 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 – referred to

#6. A right to intimacy- celebration of sexual agency

6.1 By criminalising consensual acts between individuals who wish to exercise their constitutionally-protected right to sexual orientation, the State is 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. [Para 67] [653-A-B] Shakti Vahini v. Union of India (2018) SCC OnLine SC 275; Shafin Jahan v. Asokan (2018) SCC OnLine SC 343 – referred to. “The Jain and Kimberly Rhoten, Dipika Heteronormative State and the Right to Health in India”, NUJS Law Review, Vol. 6 (2013) – referred to

6.2 Consensual sexual relationships between adults, based on 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 love that they experience towards their partner. 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. 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 outlaw any law which lends the authority of the state to obstructing its fulfilment. [Para 67] [654-D-F; 655-A-B] A B C D E F G H 418 SUPREME COURT REPORTS [2018] 7 S.C.R. A

#7. Section 377 and the right to health

7.1 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. 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 Declaration of Human Rights, 1948 (“UDHR”). Article 12 of the ICESCR recognizes the right of all persons 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, 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. 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). [Paras 68, 69] [655-D-F; 658-F-G; 659-A-E] 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 – relied on. B C D E F G H NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE [DIPAK MISRA, CJI ] 419 Bandhua Mukti Morcha v. Union of India (1984) 3 SCC 161 : [1984] 2 SCR 67; Consumer Education & Research Centre v. Union of India (1995) 3 SCC 42 : [1995] 1 SCR 626; C.E.S.C. Limited v. Subhash Chandra Bose (1992) 1 SCC 441 : [1991] 2 Suppl. SCR 267 ; Kirloskar Brothers Ltd. v. Employees’ State Insurance Corporation (1996) 2 SCC 682 : [1996] 1 SCR 884; State of Punjab v. Ram Lubhaya Bagga (1998) 4 SCC 117 : [1998] 1 SCR 1120; Smt M Vijaya v. The Chairman and Managing Director Singareni Collieries Co. Ltd., (2001) 5 ALD 522; Devika Biswas v. Union of India (2016) 10 SCC 726 – referred to.

7.2 Sexuality is a natural and precious aspect of life, an essential and fundamental part of our humanity. Sexual rights are entitlements related to sexuality and emanate from the rights to freedom, equality, privacy, autonomy, and dignity of all people. For people to attain the highest standard of health, they must also have the right to exercise choice in their sexual lives and feel safe in expressing their sexual identity. [Para 71] [659-F-G; 660-A]

7.3 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. 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. [Paras 73, 76] [660-E; 662-E-F] 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); Definition contained in the Preamble to the WHO Constitution (1948); Sexual Rights, International A B C D E F G H 420 SUPREME COURT REPORTS [2018] 7 S.C.R. A B C D E F G H Planned Parenthood Federation (2008); 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; Institute of Medicine, “The Health of Lesbian, Gay, Bisexual, and Transgender for Better People Understanding”, National Academies Press (2011); World Health Organization, “Gender and human rights : Defining sexual health”, (2002); World Health Organisation, “Sexual Health, Human Rights and the Law” (2015); International Women’s Health Coalition, “Sexual Rights are Human Rights” (2014) – referred to : Building a Foundation

7.4 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”, 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. 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. 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. [Paras 77, 78, 81] [662-G; 663-A- B; 664-F-G] NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE [DIPAK MISRA, CJI ] 421

7.5 Laws that criminalize same-sex intercourse create social barriers to accessing healthcare, and curb the effective prevention and treatment of HIV/AIDS. 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. [Para 83] [665-C-E] Study Guide: Sexual Orientation and Human Rights, University of Minnesota Human RIghts Library (2003); Center for Health and Human Rights and Open Society Foundations. “Health and Human Rights Resource Guide(2013)”. UNAIDS, “UNAIDS Calls on India and All Countries to Repeal Laws That Criminalize Adult Consensual Same Sex Sexual Conduct”(2013) – referred to

#8. Section 377 and HIV prevention efforts 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”) and transgender persons. 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. 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. 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 A B C D E F G H 422 SUPREME COURT REPORTS [2018] 7 S.C.R. A B C D E F G H with the right to the highest attainable standard of physical and mental health, without regard to sexuality or legal status. This is the mandate of the Directive Principles contained in Part IV of the Constitution. 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. 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. [Paras 84, 87, 91, 92] [666-A-B; 667-E-F; 668-E-F; 669-A-B, F-G] 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; 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); United Nations Development Programme, “Global Commission on HIV and the Law : Risks, Rights and Health” (2012), at pages 11-12; Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994), decision dated 31/03/ 1994; 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; UNAIDS, “Judging the Epidemic : A Judicial Handbook on HIV, Human Rights and the Law” (2013) at page 165 – referred to

#9. Mental health

9.1 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 NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE [DIPAK MISRA, CJI ] 423 impacted. 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’ 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) and Section 21 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. [Paras 93, 95] [670-C; 671-C-D, E]

9.2 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 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 discrimination where LGBT individuals like all other citizens are treated with equal standards of respect and value for human rights. [Para 96] [671-F; 672-A-C]

#10. Judicial review 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. Where the validity of the law is called A B C D E F G H 424 SUPREME COURT REPORTS [2018] 7 S.C.R. A B C D E F G H 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. [Para 97] [672-G; 673-B-C] Ketki Ranade, “Process of Sexual Identity Development for Young People with Same Sex Desires: Experiences of Exclusion”, Psychological Foundations - The Journal (2008); Vinay Chandran, “From judgment to practice: Section 377 and the medical sector”, Indian Journal of Medical Ethics, Vol. 4 (2009) – referred to

#11. India’s commitments at International Law

11.1 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. 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 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. [Paras 98, 99] [673-C-D; F-G] Vishaka v State of Rajasthan, (1997) 6 SCC 241 – relied Dominic McGoldrick, “The Development and Status of Sexual Orientation Discrimination under International Human Rights Law”, Human Rights Law Review, Vol. 16 (2016); UN Human Rights Council, “Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity” (2011); UN Human Rights Council, “Promotion and Protection of all Human Rights, Civil, NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE [DIPAK MISRA, CJI ] 425 Political, Economic, Social and Cultural Rights, including the Right to Development” (2008) – referred to

11.2 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. [Para 104] [676-A-B]

#12. 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 constitutionally prohibit discrimination based on sexual orientation. The United Kingdom, Bolivia, Ecuador, Fiji, and Malta specifically prohibit discrimination on the basis of gender identity, either constitutionally or through enacted laws. According the International Lesbian, Gay, Bisexual, Trans and Intersex Association, 74 countries (including India) criminalize same-sex sexual conduct, as of 2017. Most of these countries lie in the Sub-Saharan and Middle East region. Some of them prescribe death penalty for homosexuality [Para 125] [693-F; 694-A-B] Government of NCT of Delhi v. Union of India 2018 (8) SCALE 72 – referred to. Dudgeon v The United Kingdom App No 7525/76, (1981) ECHR 5; Norris v Ireland Application No. 10581/83, (1988) ECHR 22; Modinos v Cyprus Application No. 15070/89,16 EHRR 485; Bowers v. Hardwick 478 U.S. 186 (1986). Lawrence v Texas 539 U.S. 558 (2003); X v. Colombia Communication No. 1361/2005; National Coalition for Gay and Lesbian Equality v. Minister of Justice 1999 (1) SA 6 (CC); Dhirendra Nadan Thomas McCoskar v. State [2005] FJHC 500; Caleb Orozco v. The Attorney General of A B C D E F G H 426 SUPREME COURT REPORTS [2018] 7 S.C.R. Belize Claim No. 668 of 2010; Jason Jones v. The Attorney General of Trinidad and Tobago Claim no. CV2017-00720; Leung TC William Roy v. Secretary for Justice Civil Appeal No. 317 of 2005 El-Al Israel Airlines Ltd v. Jonathan Danielwitz HCJ 721/94; Vriend v Alberta (1998) 1 S.C.R. 493; Sunil Babu Pant v. Nepal Government Writ Petition No. 917 of 2007; Oliari v Italy [2015] ECHR 716; United States v. Windsor 570 U.S. 44 (2013); Obergefell v. Hodges 576 U.S.(2015); Masterpiece Cakeshop v. Colorado Civil Rights Commission 584 U.S. (2018) Lee v. Ashers Bakery Co. Ltd. [2015] NICty 2 – referred to. 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); Committee on Economic, Social and Cultural Rights, “General Comment 20 : Non- discrimination in economic, social and cultural rights” (2009), at para 32; 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); The International Lesbian, Gay, Bisexual, Trans And Intersex Association, “Sexual Orientation Laws of the World”, (2017); Halsbury’s Laws of England. 3rd edition, Vol. 3, Butterworths (1953) at page. 271; Glanville Williams, ‘The Definition of Crime’, Current Legal Problems, Vol. 8 (1955) – referred to

#13. Crime, morality and the Constitution: Criminal Law Theories

13.1 Bentham’s Utilitarian Theory – 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”, Bentham rebutted all the justifications given by the state for enacting laws on sodomy. 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 A B C D E F G H NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE [DIPAK MISRA, CJI ] 427 anyone else. Therefore, he concluded that such an act cannot constitute an offence, and there is “no reason for punishing it at all. According to Bentham, sodomy 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.” According to Bentham, “all punishment in itself is evil because it reduces the level of happiness in society, and should be prescribed only if it “excludes some greater evil”. [Paras 129, 130] [694-F; 698-B; 699-G; 700-A-B] Henry M. Hart, “The Aims of the Criminal Law”, Law and Contemporary Problems, Vol. 23 (1958), at pages 401–441; Roscoe Pound, Interpretation of Legal History, Harvard University Press (1946); H.C. Lawson-Tancred, The Art of Rhetoric/Aristotle, Penguin (2004); Immanuel Kant: The Metaphysics of Morals (Mary Gregor ed.), Cambridge University Press (1996); Grant Lamond, “What is a Crime?”, Oxford Journal of Legal Studies, Vol.27 (2007); Sir William Blackstone, Commentaries on the Laws of England, Book IV, Ch. 1 & 2; Antony Duff and Sandra Marshall, “Criminalization and Sharing Wrongs”, Canadian Journal of Law and Jurisprudence, Vol. 11, (1998) at pages 7-22; Robert Nozick, Anarchy, State and Utopia, Basic Books (1974),at page 65; Lawrence C. Becker, “Criminal Attempts and the Theory of the Law of Crimes”, Philosophy & Public Affairs, Vol 3 (1974), at page 273; Jeremy Bentham, “Offences Against One’s Self” (Louis Crompton Ed.), Columbia University – referred to

13.2 The Harm Principle – 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, called the “harm principle”, suggests that the state can intrude into private life by way of sanction only if A B C D E F G H 428 SUPREME COURT REPORTS [2018] 7 S.C.R. A B C D E F G H harm is caused to others or if the conduct is “other-affecting. 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. 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. 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 England not be subjected to sanctions either by the state or the society. [Para 131] [700-C, E; 701-F] Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, The Library of Economics and Liberty (1823); John Stuart Mill, On Liberty, (Elizabeth Rapaport ed), Hackett Publishing Co, Inc (1978); Mark Strasser, “Lawrence, Mill, and Same Sex Relationships : On Values, Valuing and the Constitution”, Southern California Interdisciplinary Law Journal, Vol. 15 (2006); 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); Graham Hughes, “Morals and the Criminal Law”, The Yale Law Journal, Vol.71 (1962); Sir Patrick Arthur Devlin, “The Enforcement Of Morals” Oxford University Press (1959) at page 9; Animesh Sharma, “Section 377 : No Jurisprudential Basis.” Economic and Political Weekly, Vol. 43 (2008) at pages 12-14; 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; H.L.A. Hart, Law, Liberty And Morality (1979); William Starr, “Law and Morality in H.L.A. Hart’s Legal Philosophy”, Marquette Law Review, Vol. 67 (1984); 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 – referred to NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE [DIPAK MISRA, CJI ] 429

13.3 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. 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. 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. [Para 136] [707-B-F]

14.1 The conception of constitutional morality is different from that of public or societal morality. Under a regime of public morality, the conduct of society is determined by popular perceptions existent in society. Constitutional morality determines the mental attitude towards individuals and issues by the text and spirit of the Constitution. 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. 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. [Paras 141, 143] [709-E-F, G; 710-A, F-G] Naz Foundation v. Government of NCT of Delhi (2010) Cri LJ 94 – referred to. A B C D E F G H 430 SUPREME COURT REPORTS [2018] 7 S.C.R.

14.2 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 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. 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. [Paras 145, 146] [713-F-H; 714-A-B]

#15. Transformative constitutionalism

15.1 In penalising consensual sexual conduct between adults of the same sex, Section 377 violates the constitutional guarantees of liberty and equality. It denudes members of the LGBT communities of their constitutional right to lead fulfilling lives. 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. 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. [Paras 147, 150 and 151] [714-C-D, G-H; 715-A-B] A B C D E F G H NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE [DIPAK MISRA, CJI ] 431 Suresh Kumar Koushal v. Naz Foundation (2014) 1 SCC 1 : [2013] 17 SCR 116 – overruled Christopher. R. Leslie, “Creating criminals: The Injuries Inflicted by “Unenforced” Sodomy Laws”, Harvard Civil Rights and Civil Liberties Law Review, Vol. 35 (2000); Jawaharlal Nehru, “Tryst with Destiny”, address to the Constituent Assembly of India, delivered on 14-15 August 1947; 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; Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University Press (1966), at page 65; Constituent Assembly Debates (25 November 1949); 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); 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 – referred to Per Indu Malhotra, J. 1. The essential ingredient required to constitute an offence under Section 377 is “carnal intercourse against the order of nature”, which is punishable with life imprisonment, or imprisonment of either description up to ten years. Section 377 applies irrespective of gender, age, or consent. The expression ‘carnal intercourse’ used in Section 377 is distinct from ‘sexual intercourse’ which appears in Sections 375 and 497 of the IPC. The phrase “carnal intercourse against the order of nature” is not defined by Section 377, or in the Code. [Paras 12.1, 12.2] [721-F-G] Khanu v. Emperor AIR 1925 Sind 286; Khandu v. Emperor AIR 1934 Lah 261 : 1934 Cri LJ 1096; Lohana Vasantlal Devchand & Ors v. State AIR 1968 Guj 252; Fazal Rab Choudhary v. State of Bihar (1982) 3 SCC 9 – referred to A B C D E F G H 432 SUPREME COURT REPORTS [2018] 7 S.C.R. A B C D E F G H The New International Webster’s Comprehensive Dictionary of the English Language (Deluxe Encyclopedic Edition, 1996) – referred to

#2. Whilst a great deal of scientific research has examined possible genetic, hormonal, developmental, psychological, social and cultural influences on sexual orientation, no findings have conclusively linked sexual orientation to any one particular factor or factors. It is believed that one’s sexuality is the result of a complex interplay between nature and nurture. Sexual orientation is an innate attribute of one’s identity, and cannot be altered. Sexual orientation is not a matter of choice. It manifests in early adolescence. Homosexuality is a natural variant of human sexuality. [Para 13.1] [723-D-F] Lawrence et al. v. Texas 539 U.S. 558 (2003) – referred Brief for the Amici Curiae American Psychological Association, American Psychiatric Association, National Association of Social Workers, and Texas Chapter of the National Association of Social Workers in Lawrence et al. v. Texas 539 U.S. 558(2003); KK Gulia and HN Mallick, Homosexuality: a dilemma in discourse, 54 Indian Journal of Physiology and Pharmacology (2010), at pp. 5, 6 and 8; Jack Drescher, Out of DSM: Depathologizing Homosexuality, 5(4) Behavioral Sciences (2015), at p. 565; The ICD-10 classification of mental and behavioural disorders: clinical descriptions and diagnostic guidelines, World Health Organization, Geneva (1992); Indian Psychiatry Society: “Position statement on Homosexuality” IPS / Statement / 02/07/2018 – referred to

#3. SECTION 377 IF APPLIED TO CONSENTING ADULTS IS VIOLATIVE OF ARTICLE 14

3.1 The twin-test of classification under Article 14 provides that: (i) there should be a reasonable classification based on intelligible differentia; and, (ii) this classification should have a rational nexus with the objective sought to be achieved. Section NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE [DIPAK MISRA, CJI ] 433 377 operates in a vastly different manner for two classes of persons based on their “sexual orientation” i.e. the LGBT persons and heterosexual persons. Section 377 penalises all forms of non penile-vaginal intercourse. In effect, voluntary consensual relationships between LGBT persons are criminalised in totality. The import and effect of Section 377 is that while a consensual heterosexual relationship is permissible, a consensual relationship between LGBT persons is considered to be ‘carnal’, and against the order of nature. Section 377 creates an artificial dichotomy. The natural or innate sexual orientation of a person cannot be a ground for discrimination. Where a legislation discriminates on the basis of an intrinsic and core trait of an individual, it cannot form a reasonable classification based on an intelligible differentia. [Paras 14.2, 14.3] [726-D-G] National Legal Services Authority v. Union of India & Ors. (2014) 5 SCC 438 – relied on

3.2 A person’s sexual orientation is intrinsic to their being. It is connected with their individuality, and identity. A classification which discriminates between persons based on their innate nature, would be violative of their fundamental rights, and cannot withstand the test of constitutional morality. [Para 14.5] [727-B]

3.3 In contemporary civilised jurisprudence, with States increasingly recognising the status of same-sex relationships, it would be retrograde to describe such relationships as being ‘perverse’, ‘deviant’, or ‘unnatural’. [Para 14.6] [727-B-C]

3.4 While Section 375 permits consensual penetrative acts (the definition of ‘penetration’ includes oral and anal sex), Section 377 makes the same acts of penetration punishable irrespective of consent. This creates a dichotomy in the law. The proscription of a consensual sexual relationship under Section 377 is not founded on any known or rational criteria. Sexual expression and intimacy of a consensual nature, between adults in private, cannot be treated as “carnal intercourse against the order of nature”. [Paras 14.7, 14.8] [727-E-F] Shayara Bano v. Union of India & Ors. (2017) 9 SCC 1 – relied on A B C D E F G H 434 SUPREME COURT REPORTS [2018] 7 S.C.R. A

#4. SECTION 377 IS VIOLATIVE OF ARTICLE 15 Sex as it occurs in Article 15, is not merely restricted to the biological attributes of an individual, but also includes their “sexual identity and character”. The prohibition against discrimination under Article 15 on the ground of ‘sex’ should, therefore, encompass instances where such discrimination takes place on the basis of one’s sexual orientation. Race, caste, sex, and place of birth are aspects over which a person has no control, ergo they are immutable. On the other hand, religion is a fundamental choice of a person. Discrimination based on any of these grounds would undermine an individual’s personal autonomy. [Paras 15.1, 15.2] [729-C; 730-F-G] Egan v. Canada [1995] SCC 98; Vriend v. Alberta [1998] SCC 816 – referred to Nicholas Toonen v. Australia Communication No. 488/ 1992, U.N. Doc.CCPR/C/50/D/488/1992 (1994); Reading Swaraj into Article 15: A New Deal For All Minorities by Tarunabh Khaitan, 2 NUJS Law Review (2009), at p. 419; John Gardner, On the Ground of Her Sex (uality), 18(2) Oxford Journal of Legal Studies (1998), at p. 167 – referred to

4.2 Section 15(1), of the Canadian Charter like Article 15 of our Constitution, does not include “sexual orientation” as a prohibited ground of discrimination. Notwithstanding that, the Canadian Supreme Court in a decision has held that sexual orientation is a “ground analogous” to the other grounds specified under Section 15(1). Discrimination based on any of these grounds has adverse impact on an individual’s personal autonomy, and is undermining of his personality. A similar conclusion would be in the Indian context as well in light of the underlying aspects of immutability and fundamental choice. The LGBT community is a sexual minority which has suffered from unjustified and unwarranted hostile discrimination, and is equally entitled to the protection afforded by Article 15. [Para 15.2] [731-B-D]

#5. SECTION 377 VIOLATES THE RIGHT TO LIFE AND LIBERTY GUARANTEED BY ARTICLE 21

5.1 Sexual orientation is innate to a human being. It is an B C D E F G H NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE [DIPAK MISRA, CJI ] 435 important attribute of one’s personality and identity. Homosexuality and bisexuality are natural variants of human sexuality. LGBT persons have little or no choice over their sexual orientation. LGBT persons, like other heterosexual persons, are entitled to their privacy, and the right to lead a dignified existence, without fear of persecution. They are entitled to complete autonomy over the most intimate decisions relating to their personal life, including the choice of their partners. Such choices must be protected under Article 21. [Para 16.1] [733-D-E] Maneka Gandhi v. Union of India & Anr. (1978) 1 SCC 248 : [1978] 2 SCR 621; Francis Coralie Mullin v. Administrator, Union Territory of Delhi & Ors. (1981) 1 SCC 608 : [1981] 2 SCR 516; K.S. Puttaswamy & Anr. v. Union of India & Ors. (2017) 10 SCC 1; Common Cause (A Registered Society) v. Union of India & Anr. (2018) 5 SCC 1 – relied on National Coalition for Gay and Lesbian Equality and Anr. v. Minister of Justice and Ors. [1998] ZACC 15 – referred to

5.2 Section 377 insofar as it curtails the personal liberty of LGBT persons to engage in voluntary consensual sexual relationships with a partner of their choice, in a safe and dignified environment, is violative of Article 21. It inhibits them from entering and nurturing enduring relationships. As a result, LGBT individuals are forced to either lead a life of solitary existence without a companion, or lead a closeted life as “unapprehended felons”. Thus, Section 377 prevents LGBT persons from leading a dignified life as guaranteed by Article 21. [Para 16.1] [734-B-C] “unapprehended felons” - according to Professor Edwin Cameron, LGBT persons are reduced to the status of “unapprehended felons” owing to the ever-so- present threat of prosecution; Edwin Cameron, Sexual Orientation and the Constitution: A Test Case for Human Rights, 110 South African Law Journal (1993), at p. 450; Bowers v. Hardwick 478 U.S. 186 (1986); Paris Adult Theatre I v. Slaton 413 U.S. 49 (1973) – referred to. A B C D E F G H 436 SUPREME COURT REPORTS [2018] 7 S.C.R. A

#6. RIGHT TO PRIVACY

6.1 The right to privacy has now been recognised to be an intrinsic part of the right to life and personal liberty under Article 21. Sexual orientation of a person is an essential attribute of privacy. Its protection lies at the core of Fundamental Rights guaranteed by Articles 14, 15, and 21. The right to privacy is broad-based and pervasive under our Constitutional scheme, and encompasses decisional autonomy, to cover intimate/personal decisions and preserves the sanctity of the private sphere of an individual. [Para 16.2] [736-C-E]

6.2 The right to privacy is not simply the “right to be let alone”, and has travelled far beyond that initial concept. It now incorporates the ideas of spatial privacy, and decisional privacy or privacy of choice. It extends to the right to make fundamental personal choices, including those relating to intimate sexual conduct, without unwarranted State interference. Section 377 affects the private sphere of the lives of LGBT persons. It takes away the decisional autonomy of LGBT persons to make choices consistent with their sexual orientation, which would further a dignified existence and a meaningful life as a full person. Section 377 prohibits LGBT persons from expressing their sexual orientation and engaging in sexual conduct in private, a decision which inheres in the most intimate spaces of one’s existence. [Para 16.2] [736-E-G; 737-A]

6.3 A subjective notion of public or societal morality which discriminates against LGBT persons, and subjects them to criminal sanction, simply on the basis of an innate characteristic runs counter to the concept of Constitutional morality, and cannot form the basis of a legitimate State interest. [Para 16.2] [737-E]

#7. RIGHT TO HEALTH The right to health, and access to healthcare are also crucial facets of the right to life guaranteed under Article 21 of the Constitution. LGBT persons being a sexual minority have been subjected to societal prejudice, discrimination and violence on account of their sexual orientation. Since Section 377 criminalises “carnal intercourse against the order of nature” it compels LGBT persons to lead closeted lives. As a consequence, LGBT persons B C D E F G H NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE [DIPAK MISRA, CJI ] 437 are seriously disadvantaged and prejudiced when it comes to access to health-care facilities. This results in serious health issues, including depression and suicidal tendencies amongst members of this community. [Para 16.3] [738-A-C] Common Cause (A Registered Society) v. Union of India & Anr. (2018) 5 SCC 1; C.E.S.C. Limited & Ors. v. Subhash Chandra Bose & Ors. (1992) 1 SCC 441 : [1991] 2 Suppl. SCR 267; Union of India v. Mool Chand Khairati Ram Trust, (2018) SCC OnLine SC 675; Centre for Public Interest Litigation v. Union of India & Ors. (2013) 16 SCC 279 : [2013] 9 SCR 1103 – relied on The Economic Cost of Stigma and the Exclusion of LGBT People: A Case Study of India, by M.V. Lee Badgett, World Bank Group (2014); India’s homosexual discrimination and health consequences by Govindasamy Agoramoorthy and Minna J Hsu, 41(4) Rev Saude Publica (2007), at pp. 567-660 – referred to

#8. SECTION 377 VIOLATES THE RIGHT TO FREEDOM OF EXPRESSION OF LGBT PERSONS LGBT persons express their sexual orientation in myriad ways. One such way is engagement in intimate sexual acts like those proscribed under Section 377. Owing to the fear of harassment from law enforcement agencies and prosecution, LGBT persons tend to stay ‘in the closet’. They are forced not to disclose a central aspect of their personal identity i.e. their sexual orientation, both in their personal and professional spheres to avoid persecution in society and the opprobrium attached to homosexuality. Unlike heterosexual persons, they are inhibited from openly forming and nurturing fulfilling relationships, thereby restricting rights of full personhood and a dignified existence. It also has an impact on their mental well-being. Section 377 cannot be justified as a reasonable restriction under Article 19(2) on the basis of public or societal morality, since it is inherently subjective. [Paras 17.1, 17.2] [740-B, C-E; 741-E-F] National Legal Services Authority v. Union of India & Ors. (2014) 5 SCC 438; S. Khushboo v. Kanniammal & A B C D E F G H 438 SUPREME COURT REPORTS [2018] 7 S.C.R.