CASE DETAILS v. UNION OF INDIA

Judgment

) (Concurring with S. Ravindra Bhat, J.): Marriage is a social institution, and in our country, it is conditioned by culture, religion, customs and usages – The institutional space of marriage is conditioned and occupied synchronously by legislative interventions, customary practises, and religious beliefs – Given the nature of marriage as an institution, the right to choose a spouse and the right of a consenting couple to be recognized within the institution of SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v. UNION OF INDIA 1211 marriage, cannot but be said to be restricted – There is no unqualifi ed right to marriage guaranteed by the Constitution, that qualifi es it as a fundamental freedom – Right to a civil union or an abiding cohabitational relationship conferring a legally enforceable status cannot be situated within Part III of the Constitution of India – The right to marriage is a statutory right, and to the extent it is demonstrable, a right fl owing from a legally enforceable customary practice – In the exercise of such a right, statutory or customary, the State is bound to extend the protection of law to individuals, so that they can exercise their choices without fear and coercion – The claim of the right to marry, de-hors the existing statutory framework, is nothing but a claim to create a legally and socially enforceable status – Marriage laws do not stand in isolation, they interact in multifarious ways with succession, inheritance and adoption laws, to name a few – Creation of social institutions and consequent re-ordering of societal relationships are ‘polycentric decisions’, which have “multiplicity of variable and interlocking factors, decisions on each one of which presupposes a decision on all others”, decisions that cannot be rendered by one stroke of the judicial gavel. [Paras 4, 5, 12, 14] – Held (per Dr. Dhananjaya Y. Chandrachud, CJI): There is no universal conception of the institution of marriage, nor is it static – Marriage has attained signifi cance as a legal institution largely because of regulation by the State – By recognizing a relationship in the form of marriage, the State grants material benefi ts exclusive to marriage – The State has an interest in regulating the ‘intimate zone’ to democratize personal relationships – The Constitution does not expressly recognize a fundamental right to marry – An institution cannot be elevated to the realm of a fundamental right based on the content accorded to it by law – However, several facets of the marital relationship are refl ections of constitutional values including the right to human dignity and the right to life and personal liberty [Para 340] – Held (per Sanjay Kishan Kaul, J.): Marriage as an institution developed historically and served various social functions – It was only later in its long history that it came to be legally recognized and codifi ed – However, these laws regulated only one type of socio-historical union, i.e., the heterosexual union. [Para 8] LGBTQ community / Queer persons – Is queerness ‘un-Indian’ – Is it urban or elite – Historical prevalence of non-heterosexual unions: Held (per Dr. Dhananjaya Y. Chandrachud, CJI): Queerness is a natural phenomenon known to India since ancient times – It is not urban or elite.[Para 340] – Held (per S. Ravindra Bhat, J.) (for himself and 1212 SUPREME COURT REPORTS [2023] 16 S.C.R. Hima Kohli, J.) (Concurring): Queerness is a natural phenomenon that is neither urban or elite [Para 2] – Held (per Sanjay Kishan Kaul, J.) (also concurring): Non-heterosexual unions were well-known to ancient Indian civilisation as attested by various texts, practices, and depictions of art – Same-sex unions were recognised in antiquity, not simply as unions that facilitate sexual activity, but as relationships that foster love, emotional support, and mutual care – It would be misconceived to claim that non- heterosexual unions are only a facet of the modern social milieu – There was existence of non-heterosexual unions, despite continued eff orts towards their erasure by the heteronormative majority. [Paras 5, 6, 9] LGBTQ community / Queer persons – Rights of – Right to union or relationship – Discriminatory impacts on queer couples – Restrictions – Discrimination on the basis of sexual orientation – Issue whether legal recognition in the form of marriage can be given to non-heterosexual relationships – Judicial review and separation of powers – Court, if vested with the authority to decide the issue –Words and Phrases – “Sex” and “Sexual orientation” – Constitution of India – Arts. 15, 21 and 245 and 246 r/w Entry 5 of List III to Seventh Schedule: Held [per S. Ravindra Bhat, J. (for himself and Hima Kohli, J.)]: The court may feel the wisdom of a measure or norm that is lacking; nevertheless, its role is not to venture into functions which the Constitution has authorised other departments and organs to discharge – It is one thing for this Court, to commend to the State, to eliminate the discriminatory impact of the intersections with laws and publicly administered policies and institutions, upon non-heterosexual couples, and entirely another, to indirectly hold that through a confl ation of positive obligations cast on the State, that such individuals’ right to choice to cohabit and form abiding relationships, extends to the right (or some entitlement) to a legally recognised union that must be actualized by State policy/legislation – Queer persons are not precluded from celebrating their commitment to each other, or relationship, in whichever way they wish, within the social realm – Queer and LGBTQ+ couples too have the right to union or relationship (under Article 21) – “be it mental, emotional or sexual” fl owing from the right to privacy, right to choice, and autonomy – This, however, does not extend to a right to claim entitlement to any legal status for the said union or relationship – There are almost intractable diffi culties in creating, through judicial diktat, a civil right to marry or a civil union, no less, of the kind that is sought by the petitioners (members of LGBTQIA+ community) – “Ordering a social institution” or SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v. UNION OF INDIA 1213 re-arranging existing social structures, by creating an entirely new kind of parallel framework for non-heterosexual couples, would require conception of an entirely diff erent code, and a new universe of rights and obligations – However, equality and non-discrimination are basic foundational rights – The indirect discriminatory impacts in relation to earned or compensatory benefi ts, or social welfare entitlements for which marital status is a relevant eligibility factor, for queer couples who in their exercise of choice form relationships, have to be suitably redressed and removed by the State – These measures need to be taken with expedition – This court cannot within the judicial framework engage in this complex task; the State has to study the impact of these policies, and entitlements – Union shall set up a high-powered committee chaired by the Union Cabinet Secretary, to undertake a comprehensive examination of all relevant factors – In the conduct of such exercise, the concerned representatives of all stakeholders, and views of all States and Union Territories shall be taken into account [Paras 69, 136, 139 and 149] – Held (per Pamidighantam Sri Narasimha, J.) (Concurring): The rights of LGBTQ+ persons, hitherto recognized by the Court, are the right to gender identity, sexual orientation, the right to choose a partner, cohabit and enjoy physical & mental intimacy – In the exercise of these rights, they have full freedom from physical threat and from coercive action, and the State is bound to aff ord them full protection of the law in case these rights are in peril – The question of marriage equality of same sex/LGBTQ+ couples did not arise for consideration in any of the previous decisions of this Court, including the decision in Navtej Singh Johar and NALSA – Consequently, there cannot be a binding precedent on this count – It would not be constitutionally permissible to identify a right to a union or an abiding cohabitational relationship mirroring the institution of marriage – In positively mandating the State to grant recognition or legal status to ‘unions’ from which benefi ts will fl ow, the doctrine of separation of powers will be violated. [Paras 4, 16, 17] – Held (per Dr. Dhananjaya Y. Chandrachud, CJI) (Dissenting): This Court is vested with the authority to hear this case – The freedom of all persons including queer couples to enter into a union is protected by Part III of the Constitution – Under Article 32, the Supreme Court has the power to issue directions, orders, or writs for the enforcement of the rights in Part III of the Constitution –Under Articles 245 and 246 of the Constitution read with Entry 5 of List III to the Seventh Schedule, it lies within the domain of Parliament and the State legislatures to enact laws recognizing and regulating queer marriage – The failure of the State to recognise the bouquet of entitlements which fl ow from a union would result in a disparate impact on queer couples who cannot marry under the current legal 1214 SUPREME COURT REPORTS [2023] 16 S.C.R. regime – The State has an obligation to recognize such unions and grant them benefi t under law – In Art.15(1), the word ‘sex’ must be read to include ‘sexual orientation’ not only because of the causal relationship between homophobia and sexism but also because the word ‘sex’ is used as a marker of identity which cannot be read independent of the social and historical context – The right to enter into a union cannot be restricted based on sexual orientation – Such a restriction will be violative of Art.15 – Thus, this freedom is available to all persons regardless of gender identity or sexual orientation – The decisions in Navtej and Justice KS Puttaswamy (9J) recognize the right of queer couples to exercise the choice to enter into a union – This relationship is protected from external threat – Discrimination on the basis of sexual orientation will violate Art.15 – The right to enter into a union is also grounded in Article 19(1)(e) – Union Government, State Governments, and Governments of Union Territories not to discriminate against the freedom of queer persons to enter into union with benefi ts under law – Assurance of the Solicitor General that the Union Government will constitute a Committee chaired by the Cabinet Secretary for the purpose of defi ning and elucidating the scope of the entitlements of queer couples who are in unions – The Committee shall inter alia consider the following: (i) enabling partners in a queer relationship (a) to be treated as a part of the same family for the purposes of a ration card; and (b) to have the facility of a joint bank account with the option to name the partner as a nominee, in case of death; and (ii) legal consequences such as succession rights, maintenance, fi nancial benefi ts such as under the Income Tax Act 1961, rights fl owing from employment such as gratuity and family pension and insurance – The report of the Committee be implemented at the administrative level by the Union Government and the governments of the States and Union Territories. [Paras 226, 340] – Held (per Sanjay Kishan Kaul, J.) (Dissenting): Non-heterosexual unions are entitled to protection under our Constitutional schema – Non-heterosexual unions and heterosexual unions/marriages ought to be considered as two sides of the same coin, both in terms of recognition and consequential benefi ts – This moment presents an opportunity of reckoning with this historical injustice and casts a collective duty upon all constitutional institutions to take affi rmative steps to remedy the discrimination – Legal recognition of non-heterosexual unions represents a step forward towards marriage equality – At the same time, marriage is not an end in itself – Our Constitution contemplates a holistic understanding of equality, which applies to all spheres of life – The practice of equality necessitates acceptance and protection of individual choices – The capacity of non-heterosexual couples for love, commitment and responsibility is no less SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v. UNION OF INDIA 1215 worthy of regard than heterosexual couples – Let this autonomy be preserved, so long as it does not infringe on the rights of others. [Paras 10, 19, 33] LGBTQ / Queer persons – Transgenders and Intersex persons – Entitlement to marriage – Transgender persons in heterosexual persons can marry under existing law – Transgender Persons (Protection of Rights) Act, 2019 – s.3 – Constitution of India – Art.15: Held (per Dr. Dhananjaya Y. Chandrachud, CJI): The gender of a person is not the same as their sexuality – A person is a transgender person by virtue of their gender identity – A transgender person may be heterosexual or homosexual or of any other sexuality – If a transgender person is in a heterosexual relationship and wishes to marry their partner (and if each of them meets the other requirements set out in the applicable law), such a marriage would be recognized by the laws governing marriage –This is because one party would be the bride or the wife in the marriage and the other party would be the bridegroom or the husband – The laws governing marriage are framed in the context of a heterosexual relationship – Since a transgender person can be in a heterosexual relationship like a cis-male or cis-female, a union between a transwoman and a transman, or a transwoman and a cisman, or a transman and a ciswoman can be registered under Marriage laws – The transgender community consists of inter alia transgender men and transgender women – A transgender man has the right to marry a cisgender woman under the laws governing marriage in the country, including personal laws – Similarly, a transgender woman has the right to marry a cisgender man – A transgender man and a transgender woman can also marry – Intersex persons who identify as a man or a woman and seek to enter into a heterosexual marriage would also have a right to marry – Any other interpretation of the laws governing marriage would be contrary to s.3 of the Transgender Persons Act and Article 15 of the Constitution – Transgender persons in heterosexual relationships have the right to marry under existing law including personal laws which regulate marriage – Intersex persons who identify as either male or female have the right to marry under existing law including personal laws which regulate marriage. [Paras 277, 340] – Held [per S. Ravindra Bhat, J. (for himself and Hima Kohli, J.)] (Concurring): Transgender persons in heterosexual relationships have the freedom and entitlement to marry under the existing statutory provisions. [Para 149]. LGBTQ community / Queer persons – Right of queer persons to adopt children – By s.57(2) of the JJ Act, consent of both the spouses 1216 SUPREME COURT REPORTS [2023] 16 S.C.R. for adoption is necessary (“shall be required”) – In furtherance of s.57(5) which delegates power to prescribe any other criteria, the Central Adoption Resource Authority (CARA) notifi ed regulations with Regulation 5(3) in express terms excluding unmarried couples from adopting by prescribing the condition that the couple must have been in two years of a ‘stable marital relationship’ – Whether the regulations relating to adoption were ultra vires the parent enactment – the JJ Act, and arbitrary for classifying couples on the basis of marital status, for the purpose of joint adoption – Juvenile Justice (Care and Protection of Children) Act, 2015 – Constitution of India – Art. 15 – Adoption: Held [per S. Ravindra Bhat, J. (for himself and Hima Kohli, J.)] (with Pamidighantam Sri Narasimha, J. concurring) (Majority opinion): This is not a case of delegated legislation being ultra vires the parent Act – The legislative choice, of limiting joint adoption only to married couples needs to be understood in the broader context of the JJ Act, and its purpose – which is the best interest of the child are paramount – The parent Act, and delegated legislation, both are clear that a prospective adoptive parent can be a single person (whether unmarried, widower, etc.) and on them, there exists no restriction other than on a single male being barred from adopting a girl child – The restriction of ‘consent’ of partner, applies only in the case of a couple –This is because the child will enter into a family unit – consisting of two parents, as a result of the adoption and will in reality, enjoy the home that is made of both partners – Acceptance, therefore, of the other partner, is imperative; it would not be in the best interest of the child if one of the partners was unwilling to take on the responsibility – Also, it is not a case for reading down or other interpretive construction – All marriages may not provide a stable home, and a couple tied together in marriage are not a ‘morally superior choice’, or per se make better parents – However, the fact that Parliament has made the legislative choice of including only ‘married’ couples for joint adoption (i.e., where two parents are legally responsible), arises from the reality of all other laws wherein protections and entitlements, fl ow from the institution of marriage – To read down ‘marital’ status as proposed, may have deleterious impacts – Reading down of the provision as sought for would result in the anomalous outcome that heterosexual couples who live together, but choose not to marry, may adopt a child together and would now be indirect benefi ciaries, without the legal protection that other statutes off er – making it unworkable – Regulation 5(3) of the CARA Regulations cannot be held void on the grounds urged – At the SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v. UNION OF INDIA 1217 same time, CARA and the Central Government should appropriately consider the realities of de facto families, where single individuals are permitted to adopt and thereafter start living in a non-matrimonial relationship – In an unforeseen eventuality, the adopted child in question, could face exclusion from the benefi ts otherwise available to adopted children of married couples – This aspect needs further consideration, for which the court is not the appropriate forum – No matter how much one empathizes with the outcome sought, the means to arriving at such a destination, must also be legally sound, and keep intact, the grand architecture of our Constitutional scheme – It is not that unmarried couples – whether queer or heterosexual– are not capable or suitable, to be adoptive parents – Given the objective of s.57 and other allied provisions of the JJ Act, which is benefi cial for children, the State as parens patriae needs to explore every possibility and not rule out any policy or legislative choice to ensure that the maximum welfare and benefi ts reach the largest number of children in need of safe and secure homes. [Paras 123, 124, 125, 127, 128, 130, 133, 149, 166] – Held (per Dr. Dhananjaya Y. Chandrachud, CJI) (Dissenting): Unmarried couples (including queer couples) can jointly adopt a child – Regulation 5(3), though facially neutral, indirectly discriminates against atypical unions (such as the relationship between non-heterosexual partners) which have not been recognised by the State – Regulation 5(3) is ultra vires the JJ Act, Articles 14, and 15 – Regulation 5(3) is read down to exclude the word “marital” – The reference to a ‘couple’ in Regulation 5 includes both married and unmarried couples as well as queer couples – The principle in Regulation 5(2)(a) that the consent of spouses in a marriage must be obtained if they wish to adopt a child together is equally applicable to unmarried couples who seek to jointly adopt a child – However, while framing regulations, the State may impose conditions which will subserve the best interest and welfare of the child. [Para 340]. Special Marriage Act, 1954 (SMA) – Challenge to SMA and allied laws, on the ground of under classifi cation – Not tenable – Prayer for reading of their provisions in a ‘gender neutral’ manner so as to enable same-sex marriage – Not sustainable – Judicial Review –Scope: Held (per Dr. Dhananjaya Y. Chandrachud, CJI): The SMA was enacted to enable persons of diff erent religions and castes to marry – If the SMA is held void for excluding same-sex couples, it would take India back to the pre-independence era where two persons of diff erent religions and caste were unable to celebrate love in the form of marriage – Such a 1218 SUPREME COURT REPORTS [2023] 16 S.C.R. judicial verdict would not only have the eff ect of taking the nation back to the era when it was clothed in social inequality and religious intolerance but would also push the courts to choose between eradicating one form of discrimination and prejudice at the cost of permitting another – If this Court reads words into the provisions of the SMA and provisions of other allied laws, it would in eff ect be entering into the realm of the legislature – This Court cannot either strike down the constitutional validity of SMA or read words into the SMA because of its institutional limitations – This Court cannot read words into the provisions of the SMA and provisions of other allied laws because that would amount to judicial legislation – The Court in the exercise of the power of judicial review must steer clear of matters, particularly those impinging on policy, which fall in the legislative domain – Whether a change should be brought into the legislative regime of the SMA is for Parliament to determine. [Paras 204, 207, 208 and 340] – Held [per S. Ravindra Bhat, J. (for himself and Hima Kohli, J.)] (Concurring) : The challenge to the SMA on the ground of under classifi cation is not made out – Further, the petitioner’s prayer to read various provisions in a ‘gender neutral’ manner so as to enable same-sex marriage, is unsustainable – Exclusion or under inclusion, per se, cannot be characterised as discriminatory, unless the excluded category of persons, things or matters, which are the subject matter of the law (or policy) belong to the same class (the included class) – If one looks at the enacted provisions, especially Sections 19-21 and 21A, Sections 24, 25, 27, 31, 37 and 38, of SMA, there can be no doubt that the sole intention was to enable marriage (as it was understood then, i.e., for heterosexual couples) of persons professing or belonging to diff erent faiths, an option hitherto available, subject to various limitations – There was no idea to exclude non-heterosexual couples, because at that time, even consensual physical intimacy of such persons, was outlawed by Section 377 IPC – So, while the Act sought to provide an avenue for those marriages that did not enjoy support in society, or did not have the benefi t of custom to solemnise, it would be quite a stretch to say that this included same sex marriages – Therefore, the challenge to the constitutionality of the statute, must fail – As long as an objective is clearly discernible, it cannot be attacked merely because it does not make a better classifi cation – The original rationale for SMA was to facilitate inter-faith marriages – That reason is as valid today as it was at the time of birthing that law – It cannot be condemned on the ground of irrelevance, due to passage of time – The provisions of SMA are incapable of being “reading down”, or interpreted by “reading up” in the manner suggested by the petitioners – The general SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v. UNION OF INDIA 1219 pattern of provisions – including the specifi c provisions, enabling or entitling women, certain benefi ts and the eff ect of Sections 19, 20, 21 and 21A of SMA is that even if for arguments’ sake, it were accepted that Section 4 of SMA could be read in gender neutral terms, the interplay of other provisions- which could apply to such non-heterosexual couples in such cases, would lead to anomalous results, rendering the SMA unworkable – Gender neutral interpretation of existing laws would complicate an already exhausting path to justice for women and leave room for the perpetrator to victimise them – A law which was consciously created and fought for, by women cannot, by an interpretive sleight be diluted. [Paras 79, 82, 85, 87, 101, 102, 149] – Held (per Pamidighantam Sri Narasimha, J.) (Also concurring): The constitutional challenge to the Special Marriage Act, 1954 and the Foreign Marriage Act, 1969 must fail – Semantic impossibilities of gender-neutral constructions of the Special Marriage Act, 1954 and the Foreign Marriage Act, 1969. [Para 4] – Held (per Sanjay Kishan Kaul, J.): If the intent of the SMA is to facilitate inter-faith marriages, then there would be no rational nexus with the classifi cation it makes, i.e., excluding non-heterosexual relationships – An objective to exclude non-heterosexual relationships would be unconstitutional, especially after this Court in Navtej has elaborately proscribed discrimination on the basis of sexual orientation – Therefore, the SMA is violative of Article 14 of the Constitution – However, there are multifarious interpretive diffi culties in reading down the SMA to include marriages between non-heterosexual relationships – Entitlements devolving from marriage are spread out across a proverbial ‘spider’s web’ of legislations and regulations – Tinkering with the scope of marriage under the SMA can have a cascading eff ect across these disparate laws. [Para 17] LGBTQ community / Queer persons – Discrimination and violence against – Directions sought to obviate the same: Held [per S. Ravindra Bhat, J. (for himself and Hima Kohli, J.)]: The State shall ensure - consistent with the previous judgments in K.S. Puttaswamy, Navtej Johar, Shakti Vahini and Shafi n Jahan- that the choice exercised by queer and LGBTQ couples to cohabit is not interfered with and they do no face any threat of violence or coercion – Respondents shall take suitable steps to ensure that queer couples and transgender persons are not subjected to any involuntary medical or surgical treatment – Above directions in relation to transgender persons to be read as part of and not in any manner whittling down the directions in NALSA so far as they apply to transgender persons – This court is alive to the feelings of being left out, 1220 SUPREME COURT REPORTS [2023] 16 S.C.R. experienced by the queer community;however, addressing their concerns would require a comprehensive study of its implications involving a multidisciplinary approach and polycentric resolution, for which the court is not an appropriate forum to provide suitable remedies. [Para 149] – Held (per Pamidighantam Sri Narasimha, J.): One is not oblivious to the concerns of the LGBTQ+ partners with respect to denial of access to certain benefi ts and privileges that are otherwise available only to married couples – The general statutory scheme for the fl ow of benefi ts gratuitous or earned; property or compensation; leave or compassionate appointment, proceed on a certain defi nitional understanding of partner, dependant, caregiver, and family – In that defi nitional understanding, it is no doubt true, that certain classes of individuals, same-sex partners, live-in relationships and non-intimate care givers including siblings are left out – The impact of some of these defi nitions is iniquitous and in some cases discriminatory – The policy considerations and legislative frameworks underlying these defi nitional contexts are too diverse to be captured and evaluated within a singular judicial proceeding – A review of the impact of legislative framework on the fl ow of such benefi ts requires a deliberative and consultative exercise, which exercise the legislature and executive are constitutionally suited, and tasked, to undertake.[Para 19] – Held (per Dr. Dhananjaya Y. Chandrachud, CJI): The State must enable the LGBTQ community to exercise its rights under the Constitution – Queer persons have the right to freedom from coercion from their natal families, agencies of the State including the police, and other persons – Union Government, State Governments, and Governments of Union Territories, inter alia, were directed (i) that the queer community is not discriminated against; (ii) that there is no discrimination in access to goods and services to the queer community, which are available to the public; (iii) to sensitise the public about queer identity; (iv) to establish hotline numbers for the queer community; (v) to establish and publicise ‘safe houses’ for queer community; (vi) to ensure that inter-sex children are not forced to undergo operations with regard only to their sex; (vii) that no person shall be forced to undergo hormonal therapy or sterilisation or any other medical procedure either as a condition or prerequisite to grant legal recognition to their gender identity – Further, directions to appropriate Government under the Mental Healthcare Act to formulate modules covering the mental health of queer persons in their programmes under Section 29(1) and that programmes to reduce suicides and attempted suicides [envisaged by Section 29(2)] must include provisions which tackle queer identity – Also, directions issued SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v. UNION OF INDIA 1221 to the police machinery such as (i) there shall be no harassment of queer couples by summoning them to the police station or visiting their places of residence solely to interrogate them about their gender identity or sexual orientation; (ii) not to force queer persons to return to their natal families and (iii) before registering an FIR against a queer couple or one of the parties in a queer relationship (where the FIR is sought to be registered in relation to their relationship), they shall conduct a preliminary investigation. [Paras 339, 340] – Held (per Sanjay Kishan Kaul, J.): There is a need for a separate anti-discrimination law which inter alia prohibits discrimination on the basis of sexual orientation – Such a law should recognize discrimination in an intersectional manner i.e. discrimination must be looked at as a confl uence of factors – as identities and individual instances of oppression that ‘intersect’ and create a distinct form of disadvantage. [Paras 27, 28]. LIST OF CITATIONS AND OTHER REFERENCES In the judgment of S. Ravindra Bhatt, J. Delhi Transport Corporation v. DTC Mazdoor Congress [1990] Supp. 1 SCR 142; Cellular Operators Association of India v. Telecom Regulatory Authority of India [2016] 9 SCR 1; Kharak Singh v. State of UP, [1964] 1 SCR 332; Bijoe Emmanuel v. State of Kerala [1986] 3 SCR 518; Union of India (UOI) v. Naveen Jindal & Ors. [2004] 1 SCR 1038; State of Gujarat and Another v. Shri Ambica Mills Ltd [1974] 3 SCR 760; Venugopala Ravi Varma Rajah v. Union of India [1969] 3 SCR 827; Ajoy Kumar Banerjee & Ors. v. Union of India & Ors. [1984] 3 SCR 252 – relied on. All India Bank Employees Association v. National Industrial Tribunal [1962] 3 SCR 269; Maneka Gandhi v. Union of India (UOI) & Ors. [1978] 2 SCR 621; In Re the Special Courts Bill, 1978 [1979] 2 SCR 476; Central Bank of India v. Ravindra [2001] Supp 4 SCR 323 – followed. Vishaka & Ors v. State of Rajasthan [1997] Supp 3 SCR 404; Common Cause (A Regd. Society) v. Union of India (UOI) & Ors. [2018] 6 SCR 1; National Legal Services Authority v. Union of India & Ors. [2014] 5 SCR 119; Motor and General Traders v. State of AP [1984] 1 SCR 594; Rattan Arya v. State of T.N. [1986] 2 SCR 596; Satyawati Sharma v. Union of India 2008 (6) SCR 566; Dharani Sugars and Chemicals Ltd v. Union of India [2019] 6 SCR 307; X v. Principal Secretary, Health and Family Welfare Department [2022] 7 SCR 686 – distinguished. 1222 SUPREME COURT REPORTS [2023] 16 S.C.R. Navtej Johar & Ors. v. Union of India [2018] 7 SCR 379; K.S. Puttaswamy v. Union of India [2017] 10 SCR 569; Shafi n Jahan v. Asokan K.M & Ors. [2018] 4 SCR 955;Shakti Vahini v. Union of India [2018] 3 SCR 770; Deepika Singh v. Central Administrative Tribunal [2022] 7 SCR 557 – explained. Mohd. Ahmad Khan v. Shah Bano Begum [1985] 3 SCR 844; Danial Latifi v. Union of India [2001] Suppl. 3 SCR 419; Revanasiddappa v. Mallikarjuna 2023 INSC 783: 2023 SCC OnLine SC 1087; Independent Thought v. Union of India & Anr. [2017] 13 SCR 821; Shayara Bano v. Union of India & Anr. [2017] 9 SCR 797; Laxmi Kant Pandey v. UOI [1985] Supp. 3 SCR 71; Suchita Srivastava & Ors. v. Chandigarh Administration [2009] 13 SCR 989; Devika Biswas v. Union of India [2016] 5 SCR 773; Asha Ranjan v. State of Bihar [2017] 1 SCR 945; In re [Gang-Rape Ordered by Village Kangaroo Court in W.B., (2014) 4 SCC 786: 2014] 4 SCR 264; Indian Young Lawyers Association & Ors. v. the State of Kerala & Ors. [2018] 9 SCR 561; Francis Coralie Mullin v. Administrator, Union Territory of Delhi [1981] 2 SCR 516; Prem Shankar Shukla v. Delhi Admn [1980] 3 SCR 855; Jeeja Ghosh v. Union of India, [2016] 4 SCR 638; Anuj Garg v. Hotel Association of India [2007] 12 SCR 991; Kesavananda Bharati v. State of Kerala [1973] Supp SCR 1; State Of Gujarat and Another v. Shri Ambica Mills Ltd [1974] 3 SCR 760; M. Nagaraj v. Union of India [2006] Supp 7 SCR 336; Rajive Raturi v. Union of India & Ors [2017] 12 SCR 827; Suresh Kumar Koushal v. Naz Foundation (2014) 1 SCC 1: [2013] 17 SCR 1019; Lata Singh v. State of U.P. [2006] 3 Suppl. SCR 350; Laxmibai Chandaragi v. State of Karnataka 2021 (3) SCC 360: [2021] 1 SCR 518; Joseph Shine v. Union of India [2018] 11 SCR 765; Sivasankaran v. Santhimeenal [2021] 6 SCR 169; Indra Sarma v. V.K.V. Sarma [2013] 14 SCR 1019; Andhra Pradesh Public Service Commission v. Baloji Badhvanath,[2009] 5 SCR 668; State of Kerela v. N.M. Thomas, (1976) 2 SCC 310: [1976] 1 SCR 906; Indra Sawhney v. Union of India, (1992) Supp (3) SCC 217: [1992] 2 Suppl. SCR 454; Arumugam Servai v. State of Tamil Nadu [2011] 5 SCR 488; Rustom Cavasjee Cooper v. Union of India [1970] 3 SCR 530; Sakal Papers (P) Ltd v. Union of India [1962] 3 SCR 842; Bennet Coleman v. Union of India [1973] 2 SCR 757; Express Newspapers (P) Ltd. v. Union of India, [1959] 1 SCR 12; Ratilal Panachand Gandhi v. State of Bombay [1954] 1 SCR 1055; D.S. Nakara v. Union of India [1983] 2 SCR 165; Kedar Nath Bajoria v. State of West Bengal [1954] 1 SCR 30; Chandan Banerjee SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v. UNION OF INDIA 1223 v. Krishna Prasad Ghosh [2021] 11 SCR 720; Transport & Dock Workers Union v. Mumbai Port Trust [2010] 14 SCR 873; Union of India v. M.V. Valliappan [1999] 3 SCR 1146; State of J&K v. Triloki Nath Khosa [1974] 1 SCR 771; Dharani Sugars and Chemicals Ltd v. Union of India, [2019] 6 SCR 307; Badshah v. Sou. Urmila Badshah Godse [2013] 10 SCR 259; All Kerala Online Lottery Dealers Association v. State of Kerala & Ors., [2015] 10 SCR 880; State (Through CBI/New Delhi) v. S.J. Choudhary (1996) 2 SCC 428: [1996] 2 SCR 556; Githa Hariharan v. Union of India [1999] 1 SCR 669; SIL Import, USA v. Exim Aides Silk Exporter [1999] 2 SCR 958; BR Enterprises v. State of U.P. [1999] 2 SCR 1111; Association of Old Settlers of Sikkim & Ors. v. Union of India [2023] 10 SCR 289; S.R. Chaudhuri v. State of Punjab & Ors (2001) 7 SCC 126: [2001] 1 Suppl. SCR 621; Shailesh Dhairyawan v. Mohan Balkrishna Lulla [2015] 12 SCR 70; Ebix Singapore Private Limited and Ors. v. Committee of Creditors of Educomp Solutions Ltd & Ors. [2021] 14 SCR 321; Workmen of Dimakuchi Estate v. Management of Dimakuchi Tea Estate [1958] SCR 1156; M. Nizamuden v. Chemplast Sanmar Ltd & Ors (2010) 4 SCC 240: [2010] 3 SCR 315; Girodhar G. Yadalam v. Commissioner of Wealth Tax & Ors [2015] 15 SCR 543; K.H. Nazar v. Mathew K. Jacob, (2020) 14 SCC 126: [2019 ] 14 SCR 928; New India Assurance Co. Ltd. v. Nusli Neville Wadia [2007] 13 SCR 598; Bipinchandra Parshottamdas Patel v. State of Gujarat 2003 (4) SCC 642: [2003] 3 SCR 533; Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. & Ors. [1987] 2 SCR 1; Bank of India v. Vijay Transport & Ors. [1988] 1 SCR 961; R.L. Arora v. State of Uttar Pradesh [1964] 6 SCR 784; B.R. Kapur v. State of Tamil Nadu [2001] 3 Suppl. SCR 191; AK Gopalan v. State of Madras, [1950] 1 SCR 88; Lt. Col Nitisha v. Union of India [2021] 4 SCR 633; Om Kumar and Ors v. Union of India [2000] Supp 4 SCR 693; S.K. Nausad Rahaman & Ors. v. Union of India (UOI) & Ors 2022 (12) SCC 1; Ravinder Kumar Dhariwal v. Union of India 2021 (13) SCR 823; K. Bhagirathi G. Shenoy and Ors. v. K.P. Ballakuraya & Anr. [1999] 2 SCR 438; Indira Nehru Gandhi v. Raj Narain, (1975) Supp. SCC 1: [1976] 2 SCR 347; Port of Bombay v. Dilipkumar Raghavendranath Nadkarni [1983] 1 SCR 828; State of A.P. v. Challa Ramkrishna Reddy [2000] 3 SCR 644; Shabnam v. Union of India [2015] 8 SCR 289; Aruna Ramchandra Shanbaug v. Union of India, [2011] 4 SCR 1057; Gian Kaur v. State of Punjab [1996] 3 SCR 697; Sheela Barse v. Union of India (1993) 4 SCC 204: [1993] 1 Suppl. SCR 561; State of 1224 SUPREME COURT REPORTS [2023] 16 S.C.R. Punjab v. Ajaib Singh [1995] 1 SCR 496; Manubhai Pragji Vashi etc. [1995] Supp 2 SCR 733; PUCL v. UOI (W.P.© 196/2001); State of H.P. v. Umed Ram Sharma [1986] 1 SCR 251- referred to. Arun Kumar v. Inspector General of Registration (2019) Online SCC Madras 8779 – approved. Naz Foundation v. State (NCT of Delhi) (2009) 111 DRJ 1 (DB) - referred to. Obergefell v. Hodges 576 US 644 (2015); Loving v. Virginia, 388 US 1; Royal College of Nursing of the United Kingdom v. Department of Health and Social Security, 1981 (1) All ER 545 [HL]; Comdel Commodities Ltd. v. Siporex Trade S.A., 1990 (2) All ER 552 [HL]; McCartan Turkington Breen (A Firm) v. Times Newspapers Ltd., [2000] 4 All ER 913; R v Ireland, R v Burstow 1997 (4) All ER 225; Birmingham City Council v. Oakley [2001] 1 All ER 385 [HL]; Goodes v East Sussex County Council (2000 [3] All ER 603); Southwark London Borough Council v. Mills (1999 [4] All ER 449; Ghaidan v Godin – Mendoza, (2004) UKHL 30; Minister of Home Aff airs v. Fourie & Anr, [(CCT 60/04) [2005] ZACC 19; 2006 (1) SA 524- referred to. Aharon Barak “Human Dignity - The Constitutional Value and the Constitutional Right” Cambridge University Press (2015); Aharon Barak- Purposive Interpretation in Law; Principles of Statutory Interpretation by G.P.Singh, Lexis Nexis, First Edition (2015) – referred to. In the judgment of P. S. Narasimha, J. Navtej Singh Johar & Ors. v. Union of India (2018) 10 SCC 1: [2018] 7 SCR 379; NALSA v. Union of India (2014) 5 SCC 438: [2014] 5 SCR 119 - held inapplicable. Shafi n Jahan v. Asokan K.M. (2018) 16 SCC 368: [2018] 4 SCR 955; Shakti Vahini v. Union of India (2018) 7 SCC 192: [2018] 3 SCR 770 - explained. Indian Ex-Service Movement v. Union of India (2022) 7 SCC 323 - referred to. In the judgment of D.Y. Chandrachud, CJI Powers, Privileges and Immunities of State Legislatures, In re (1965) 1 SCR 413 – followed. SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v. UNION OF INDIA 1225 Navtej Singh Johar v. Union of India [2018] 7 SCR 379; National Legal Services Authority v. Union of India AIR 2014 SC 1863:[2014] 5 SCR 119; Justice KS Puttaswamy (9J) v. Union of India AIR 2017 SC 4161: [2017] 10 SCR 569; Indian Young Lawyers Assn. v. State of Kerala & Ors. (2019) 11 SCC 1: [2018] 9 SCR 561; Lalita Kumari v. Government of U.P (2014) 2 SCC 1: [2013] 14 SCR 713; Common Cause v. Union of India (2018) 5 SCC 1: [2018] 6 SCR 1; Common Cause v. Union of India 2023 SCC OnLine SC 99; State of Himachal Pradesh v. Umed Ram Sharma, (1986) 2 SCC 68: [1986] 1 SCR 251; Deepika Singh v. Central Administrative Tribunal 2022 SCC OnLine SC 1088; Sheela Barse v. Union of India (1993) 4 SCC 204: [1993] 1 Suppl. SCR 561; PUCL v. Union of India (WP (Civil) No. 196/2001) – relied on. Shabnam Hashmi v. Union of India (2014) 4 SCC 1: [2014] 2 SCR 1101 – distinguished. Suresh Kumar Koushal v. Naz Foundation (2014) 1 SCC 1: [2013] 17 SCR 116; Shakti Vahini v. Union of India (2018) 7 SCC 192: [2018] 3 SCR 770; Shafi n Jahan v. Asokan K.M. (2018) 16 SCC 368: [2018] 4 SCR 955; Laxmibai Chandaragi B. v. State of Karnataka (2021) 3 SCC 360: [2021] 1 SCR 518; Union of India v. Naveen Jindal (2004) 2 SCC 510: [2004] 1 SCR 1038; Vishaka v. State of Rajasthan (1997) 6 SCC 241: [1997] 3 Suppl. SCR 404; D.K Basu v. Union of India (1997) 1 SCC 416: [1996] 10 Suppl. SCR 284; Saroj Rani v. Sudarshan Kumar Chadha (1984) 4 SCC 90: [1985] 1 SCR 303; Madhu Kishwar v. State of Bihar (1996) 5 SCC 125: [1996] 1 Suppl. SCR 442; Daryao v. State of U.P, (1962) 1 SCR 574; State of W.B. v. Committee for Protection of Democratic Rights, (2010) 3 SCC 571: [2010] 2 SCR 979; Rai Sahib Ram Jawaya Kapur v. State of Punjab, [1955] 2 SCR 225; Kalpana Mehta v. Union of India, (2018) 7 SCC 1: [2018] 4 SCR 1; S P Sampath Kumar v. Union of India, (1987) 1 SCC 124: [1987] 1 SCR 435; State of W.B. v. Committee for Protection of Democratic Rights, (2010) 3 SCC 571: [2010] 2 SCR 979; Common Cause v. Union of India, (2018) 5 SCC 1: [2018] 6 SCR 1; State of Madras v. V.G. Row, (1952) 1 SCC 410: [1952] SCR 597; Romesh Thapar v. State of Madras 1950 SCC 436; Laxmi Raj Shetty v. State of T.N., (1988) 3 SCC 319: [1988] 3 SCR 706; Independent Thought v. Union of India (2017) 10 SCC 800: [2017] 13 SCR 821; Lata Singh v. State of U.P., (2006) 5 SCC 475: [2006] 3 Suppl. SCR 350; Gang-Rape Ordered by Village Kangaroo 1226 SUPREME COURT REPORTS [2023] 16 S.C.R. Court in W.B., In re, (2014) 4 SCC 786: [2014] 4 SCR 264; Vikas Yadav v. State of U.P., (2016) 9 SCC 541: [2016] 8 SCR 872; Shilpa Sailesh v. Varun Sreenivasan, 2023 SCC OnLine SC 544; Shayara Bano v. Union of India (2017) 9 SCC 1: [2017] 9 SCR 797; Indra Sarma v. VKV Sarma (2013) 15 SCC 755: [2013] 14 SCR 1019; State of Kerala v. NM Thomas, [1976] 1 SCR 906; Olega Tellis v. Bombay Municipal Corporation, 1985 SCC (3) 545: [1985] 2 Suppl. SCR 51; Hussainara Khatoon v. Home Secretary, (1980) 1 SCC 81: [1979] 3 SCR 169; Unnikrishnan v. State of AP, (1993) 1 SCC 645: [1993] 1 SCR 594; Mohd. Hanif Qureshi v. State of AP, [1959] SCR 629; Minerva Mills v. Union of India 1980 AIR 1789: [1981] 1 SCR 206; Indibily Creative Private limited v. Government of West Bengal (2020) 12 SCC 436: [2019] 5 SCR 679; RC Cooper v. Union of India (1970) 1 SCC 248: [1970] 3 SCR 530; Deepak Gulati v. State of Haryana, (2013) 7 SCC 675:[2013] 6 SCR 544; M. Pentiah v. Veeramallappa Muddal, [1961] 2 SCR 295; Tinsukhia Electric Supply Co. Ltd. v. State of Assam, (1989) 3 SCC 709: [1989] 2 SCR 544; MC Mehta v. Union of India, (2019) 17 SCC 490: [2018] 12 SCR 565; Shantistar Builders v. Narayan Khimalal Totame (1990) 1 SCC 520; D.C Saxena v. Hon’ble Chief Justice of India, (1996) 5 SCC 216: [1996] 3 Suppl. SCR 677; Maneka Gandhi v. Union of India, (1978) 1 SCC 248: [1978] 2 SCR 621; Pradeep Jain v. Union of India (1984) 3 SCC 654: [1984] 3 SCR 942; Common Cause v. Union of India (2018) 5 SCC 1: [2018] 6 SCR 1; Union of India v. Moolchand Kharaiti Ram Trust (2018) 8 SCC 321: [2018] 7 SCR 939; Madhu Kishwar v. State of Bihar (1996) 5 SCC 125: [1996] 1 Suppl. SCR 442; Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1: [2008] 4 SCR 1; Indian Medical Assn. v. Union of India, (2011) 7 SCC 179: [2011] 6 SCR 599; Indra Sawhney v. Union of India 1992 Supp (3) SCC 217: [1992] 2 Suppl. SCR 454; Akshay N Patel v. Reserve Bank of India Civil Appeal No. 6522 of 2021; Modern Dental College & Research Centre v. State of Madhya Pradesh, (2016) 4 SCC 346: [2016] 3 SCR 575; Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani, (1989) 2 SCC 691: [1989] 2 SCR 697; Praga Tools Corpn. v. C.A. Imanual (1969) 1 SCC 585: [1969] 3 SCR 773; Kanailal Sur v. Paramnidhi Sadhu Khan AIR 1957 SC 907; J K Industries Limited v. Union of India (2007) 13 SCC 673: [2007] 12 SCR 136; Indian Express Newspapers (Bombay) P Ltd. v. Union of India, (1985) 1 SCC 641: [1985] 2 SCR 287; Gaurav Jain v. Union of India (1997) 8 SCC 114: [1997] 2 Suppl. SCR 105; Karan v. State of M.P. SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v. UNION OF INDIA 1227 (2023) 5 SCC 504; Barun Chandra Thakur v. Bholu, 2022 SCC OnLine SC 870; Shilpa Mittal v. State (NCT of Delhi) (2020) 2 SCC 787: [2020] 2 SCR 478; Anwar Ali Sarkar v. State of West Bengal [1952] SCR 284; Lt. Col. Nitisha v. Union of India 2021 SCC OnLine SC 261; State of Kerala v. NM Thomas (1976) SCC 2 310:[1976] 1 SCR 906; Gita Hariharan v. Reserve Bank of India (1999) 2 SCC 228: [1999] 1 SCR 669; State Bank of Travancore v. Mohammed Khan (1981) 4 SCC 82: [1982] 1 SCR 338; Indra Das v. State of Assam, (2011) 3 SCC 380: [2011] 4 SCR 289; Union of India v. Association of Democratic Reforms (2002) 5 SCC 294: [2002] 3 SCR 696; SC Advocates-on-Record Association v. Union of India (1993) 4 SCC 441: [1993] 2 Suppl. SCR 659; State of Punjab v. Ajaib Singh (1995) 2 SCC 486: [1995] 1 SCR 496; MC Mehta v. Union of India (2004) 6 SCC 588: [2004] 2 Suppl. SCR 504; Noise Pollution (I), in re (2005) 5 SCC 727; State of Maharashtra v. Manubhai Pragji Vashi (1995) 5 SCC 730: [1995] 2 Suppl. SCR 733 – referred to. Mansur Rahman v. Superintendent of Police 2018 SCC OnLine Mad 3250; Sushma v. Commissioner of Police, W.P. No. 7248 of 2021, (Madras High Court); Chinmayee Jena v. State of Orissa 2020 SCC OnLine Ori 602 – approved. Meharban Nowshirwan Irani v. Emperor, AIR 1934 Sind. 206; Queen Empress v. Khairati, ILR (1884) 6 All 204; Naz Foundation v. Government of NCTD (2009) 160 DLT 277; Arunkumar v. Inspector General of Registration, AIR 2019 Mad 265; Latha v. Commissioner of 2021 SCC OnLine Mad 7495; Veera Yadav v. The Chief Secretary, Government of Bihar, CW No. 5627 of 2020; Patna High Court, and Vithal Manik Khatri v. Sagar Sanjay Kamble, Crl. W.P. No. 4037 of 2021 Bombay High Court; National Coalition for Gay and Lesbian Equality v. Minister of Home Aff airs [2000] 4 LRC 292; D P Minwalla v. Emperor, AIR 1935 Sind. 78; Mary Sonia Zachariah v. Union of India 1995 SCC OnLine Ker 288 – referred to. Ghaidan v. Godin-Mendoza [2004] UKHL 30; Griswold v. Connecticut 381 US 479 (1965); Minister of Home Aff airs v. Fourie (2006) 1 SA 524; Obergefell v. Hodges, Director, Department of Health 576 US 644 (2015); Sodomy Case, 1999 (1) SA 6 (CC), Home Aff airs case, 2000 (2) SA 1 (CC); Du Troit, 2003 (2) SA 198 (CC); Satchwell, 2002 (6) SA 1 (CC); Day-Brite Lighting Inc. v. Missouri 342 US 421 (1952); Lochner v. New York 198 US 45 (1905); Marbury v. Madison 5 US 137 (1803); Goodridge v. Department 1228 SUPREME COURT REPORTS [2023] 16 S.C.R. of Public Health 798 N.E.2d 941 (Mass. 20003); Skinner v. Oklahoma, 316 U.S 535; Zablocki v. Redhail, 434 U.S 374; Loving v. Virginia, 388 US 1; Safl ey, 482 U.S. 78, 95(1987); Roberts v. United States Jaycees, 468 U.S 609 (1984); Lawrence v. Texas, 539 U.S 558 (2003) – referred to. Maya Sharma, Loving Women: Being Lesbian in Underprivileged India (2nd edn, Yoda Press 2021); e-Committee Supreme Court of India, Sensitisation Module for the Judiciary on LGBTQIA+ community; Shreya Raman, ‘Denied Visibility in Offi cial Data, Millions of Transgender Indians Cant Access Benefi ts’ (India Spend, 11 June 2021); Shakthi Shalini, “The Unspoken: A qualitative research on natal family violence” 23; Lakshya Arora, ‘PM Bhujang, Muthusamy Sivakami, Understanding discrimination against LGBTQIA+ patients in hospitals using human rights perspective: an exploratory qualitative study’ Sex Reprod Health Matters’ 2022 29(2) https://www.ncbi.nlm.nih.gov/pmc/articles/PMC9423841/; Sejal Singh and Laura E. Durso, ‘Widespread discrimination continues to shape LGBT people’s lifes in both subtle and signifi cant ways’ (American Progress, 2 May 2017); Bindisha Sarang, ‘Why its doubly diffi cult for gay renters to fi nd homes’, (First Post, November 13, 2013) https://www.fi rstpost.com/ living/why-its-doubly-diffi cult-for-gay-renters-to-fi nd-homes-1224225. html; International Commission of Jurists, Unnatural Off ences: Obstacles to Justice in India Based on Sexual Orientation and Gender Identity (ICJ, 2017); Sukanya Shantha, ‘Misgendering, sexual violence, and harassment: What it is like to be a transgender person in an Indian prison’ (The wire, 11 Feb 2021) https://thewire.in/lgbtqia/transgender-prisoners-india; Centering Familial Violence in the Lives of Queer and Trans Persons in the Marriage Equality Debates, A report on the fi ndings from a closed door public hearing on April 1, 2023 organised by PUCL and National Network of LBI Women and Transpersons; HM Seervai, The Privy Purse Case: A Criticisum, (1972) 74 Bom LR (journal) 37; Vikram Aditya Narayan and Jahnavi Sindhu, ‘A historical argument for proportionality under the Indian Constitution’ (2018) Vol. 2(1) ILR 51; Constituent Assembly Debates, Volume 7, 9 December 1948; MJC Vile, Constitutionalism and the Separation of Powers (2nd ed. Liberty Fund 1967); Robert M Cover, ‘The Origins of Judicial Activism in the Protection of Minorities’, 1982 Yale law journal, Vol 1(7) June 1982; Mathew EK Hall, Judicial Review as a Limit on Government Domination: Reframing, resolving, and replacing SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v. UNION OF INDIA 1229 the counter-majoritarian diffi culty, 2016 Perspectives on politics, Volume 14(2) June 2016 , 391; Gayatri Reddy, With Respect to Sex: Negotiating Hijra Identity in South India (The University of Chicago Press 2005); Ruth Vanita, ‘’Wedding of Two Souls”: Same-Sex Marriage and Hindu Traditions’ 2004 Journal of Feminist Studies in Religion, Vol 20(2); Ruth Vanita, Love’s Rite: Same-Sex Marriage in India and the West (Palgrave Macmillan, 2005); Maya Sharma, Loving Women: Being Lesbian in Unprivileged India (Yoda Press, 2006); Satyanarayan Pattnaik, ‘Two Orissa girls defy norms, get married’ (Times of India, 5 November 2006); India Today ‘UP: In love for 7 years, two women divorce husbands to marry each other’ (India Today, 1 January 2019); Deccan Herald ‘Two girls from Kanpur elope, ‘marry’ each other in Delhi’ (Deccan Herald, 19 September 2015); Paul Boyce and Rohit K Dasgupta, ‘Utopia or Elsewhere: Queer Modernities in Small Town West Bengal’ in Tereza Kuldova and Mathew A Varghese (eds.), Urban Utopias (Palgrave Macmillan, 2017); AIDS Bhedbhav Virodhi Andolan, ‘Less Than Gay’ (1991); Agaja Puthan Purayil, ‘“Families We Choose”: Kinship Patterns among Migrant Transmen in Bangalore, India’ in Douglas A Vakoch (ed.), Transgender India: Understanding Third Gender Identities and Experiences (Springer 2022); Rosalind O’Hanlon, Issues of Widowhood in Colonial Western India (Institute of Commonwealth Studies, University of London, 1989); Flavia Agnes ‘Controversy over Age of Consent’ (2013) EPW Vol 48(29); Social Reform’ and the Women’s Quest in Janaki Nair (ed), Women and Law in Colonial India: A social history (1996);Constituent Assembly of India (Legislative) Debates, Volume II, Speech by Pandit Lakshmi Kanta Maitra on 1 March 1949; Constituent Assembly of India (Legislative) Debates, Volume VI, Speech by Pandit Mukut Bihari Lal Bhargava on 12 December 1949; Laurence Drew, Sex, ‘Procreation and the State Interest in Marriage, (2002) Columbia Law Review, Vol. 102(4); Brian H Bix, State Interest and Marriage- The Theoretical perspective, (2003) 32 HOFSTRA L. REV. 93; Jonathan Rauch, ‘Conventional Wisdom’, (Reasons, February 2000); Martha C. Nussbam, A right to marry? (2010) California Law Review Vol 98(3); Martha C Nussbaum, Capabilities as fundamental entitlements: Sen and Social Justice, (2003) Feminist Economics 9 (203) 33; Gary Jeff rey Jacobson, Rights and American Constitutional identity, (2011) Vol. 43 (4) 409; Bert-Jaap Koops et al., “A Typology of Privacy”, (2017) University of Pennsylvania Journal of International Law (2017), 1230 SUPREME COURT REPORTS [2023] 16 S.C.R. Vol. 38(2) 566; Tammy R Pettinato, “Transforming Marriage: The Transformation of Intimacy and the Democratizing Potential of Love” JL & Fam. Stud. 9, 101; Frances Olsen, “Constitutional law: Feminist Critique of the public/private distinction” Vol. 10 (1993), Constitutional Commentary, p. 319 (1990); Margaret Trawick, Notes on Love in a Tamil Family (University of California Press 1992); Kenneth L Karst, The freedom of intimate association, (1980) The Yale Law Journal, Vol. 89 (4) 624-692; Evan Gerstmann, Same-sex marriage and the Constitution, (Cambridge University Press 2017); Kath Weston, Families We Choose: Lesbians, Gays, Kinship (Columbia University Press 1997);P. Ramanatha Aiyar’s Law Lexicon (1997 edition); Black’s Law Dictionary (5th edn.; 1979); Ralph Linton, The Study of Man: An introduction (1936); Irving S. Falodare, A Clarifi cation of “Ascribed Status” and “Achieved Status”, The Sociological Quarterly, Vol. 10, No. 1 (Winter, 1969), pp 53-61; “Sex.” Merriam-Webster.com Dictionary, Merriam-Webster; ‘Intersex people,’ Offi ce of the United Nations High Commissioner for Human Rights; H.R. Vasujith Ram, ‘Combatting Exclusions through Law: Rights of Transgender People in India’, in Zoya Hasan, and others (eds), The Empire of Disgust: Prejudice, Discrimination, and Policy in India and the US (Delhi, 2018; online edn., OUP 2019); D Paul Sullins, Child Attention-Defi cit Hyperactivity Disorder (ADHD) in same-sex parent families in the United States: Prevalence and Comorbidities, British Journal of Medicine & Medical Research 6(10):987-998, 2015; Douglas W.Allen, High School graduation rates among children of same sex households, Rev Econ Household (2013) 11:635-658; Henry M.W Bos & Frank Van Balen, Children in planned lesbian families: Stigmatisation, psychological adjustment and protective factors, Culture, Health and Sexuality: An International Journal for Research, Intervention and Care, 10:3, 221-236; Solirios Sarantakos, Children in three contexts: Family, education, and social development, Children Australia Volume 21, No. 3, 1996; American Psychological Association, ‘Lesbian and Gay Parenting; Biasutti, CM; Nascimento CRR, Gato J, Bortolozzo ML, Same-sex parenting in Brazil and Portugal: An integrative review. Research, Society and Development, [S. l.], v. 11, n. 16; Kabátek J, Perales F. Academic Achievement of Children in Same- and Diff erent-Sex-Parented Families: A Population-Level Analysis of Linked Administrative Data From the Netherlands. Demography. 2021 Apr 1;58(2):393-418; Deni Mazrekaj, SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v. UNION OF INDIA 1231 Kristof De Witte, Sofi e Cabus, School outcomes of children raised by same-sex parents: Evidence from administrative Panel Data, American Sociological Review Volume 85 Issue 5 – referred to. In the judgment of Sanjay Kishan Kaul, J. Navtej Singh Johar & Ors. vs. Union of India, Through Secretary, Ministry of Law & Justice [2018] 7 SCR 379 – relied on. D.S. Nakara v. Union of India, [1983] 2 SCR 165; Deepak Sibal v. Punjab University, (1989) 2 SCC 145: [1989] 1 SCR 689; Central Inland Water Transport Corpn. v Brojo Nath Ganguly, (1986) 3 SCC 156: [1986] 2 SCR 278 – referred to. Maqbool Fida Husain v. Rajkumar Pandey, 2008 Cri LJ 4107 – referred to. BVerfGE 7, 198 (Lüth-decision) [Federal Constitutional Court of Germany] and Du Plessis v. De Klerk 1996 (3) SA 850 – referred to. Ruth Vanita and Saleem Kidwai, Same-sex love in India: Readings from Literature & History (Palgrave, 2001), pp. 15 and 68; Devdutt Pattnaik, The Man who was a Woman & Other Queer Tales (Routledge, 2002); Manjari Shrivastava, Lesbianism in Nineteenth Century Erotic Urdu Poetry “Rekhti”, Proceedings of the Indian History Congress, 68, 965; Stephanie Coontz, Marriage, a History: How Love Conquered Marriage (Penguin, 2005), p. 3-5; William N. Eskridge, Public Values in Statutory Interpretation, 137(4) UPenn Law Rev. 1007, 1009; Shreya Atrey, Intersectional discrimination (Oxford University Press, 2019), p. 41; Tarunabh Khaitan, A Theory of Discrimination Law (Oxford University Press, 2015), p. 212-213; Nan. D. Hunter, ‘Marriage, Law and Gender: A Feminist Inquiry’ in Sex Wars: Sexual Dissent and Political Culture (Lisa Duggan and Nan. D. Hunter eds, Routledge, 2006) p. 109 – 110; William Eskridge, Equality Practice: Civil Unions and the Future of Gay Rights, (Routledge, 2002) p. 322; Abbie E. Goldberg et al, The Division of Labor in Lesbian, Gay, and Heterosexual New Adoptive Parents, 74(4) Journal of Marriage and Family, p. 812; Charlotte J. Patterson et al, Division of Labor Among Lesbian and Heterosexual Parenting Couples: Correlates of Specialized Versus Shared Patterns, 11 Journal of Adult Development, p. 179; Rosemary Auchmuty, When Equality is not Equity: Homosexual Inclusion in Undue Infl uence Law, 11 Feminist Legal Studies, 163, 183 – referred to. 1232 SUPREME COURT REPORTS [2023] 16 S.C.R. OTHER CASE DETAILS INCLUDING IMPUGNED ORDER AND APPEARANCES CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.1011 of 2022 (UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA) With W.P.(c) No.93 of 2023, T.C. (C) Nos.5, 8, 9, 11, 12 of 2023, W.P. (C) Nos.1020, 1105, 1141, 1142, 1150 of 2022, W.P. (C) Nos. 159, 129, 260 of 2023, T.C. (C) No.6 of 2023, W.P. (C) No.319 of 2023, T.C. (C) Nos.7, 10, 13 of 2023 and W.P. (C) No.478 of 2023. Appearances: R Venkataramani, AG, Tushar Mehta, SG, K M Nataraj, Ms. Aishwarya Bhati, A.S.Gs., Saurabh Mishra, Bharat Singh, A.A.Gs., Ankita Choudhary, D.A.G., Mukul Rohatgi, Dr. Menaka Guruswamy, Saurabh Kirpal, Raju Ramchandran, K V Viswanathan, Ms. Geeta Luthra, Anand Grover, Dr. Abhishek Manu Singhvi, Ms. Jayna Kothari, Maninder Singh, Mrs. Manisha Lavkumar Rakesh Dwivedi, Kapil Sibal, Arvind P. Datar, Atmaram N S Nadkarni, Mahabir Singh, Navin Pahwa, Jaideep Gupta, V. Giri, Ranjit Kumar, Harshvir Pratap Sharma, Manan Kumar Mishra, S. Prabakaran, R. Balasubramanian, Sr. Advs., Ms. Arundhati Katju, Govind Manoharan, Ms. Shristi Bortkahur, Dhanurdhar Rana, Ms. Ritika Meena, Utkarsh Pratap, Ms. Diksha Tiwari, Lavkesh Bhambhani, Ms. Apurva Singh, Anchit Singla, Sharad Kumar Puri, Ms. Tanvi Nigam, Mrs. Priya Puri, Ms. Tahira Karanjawala, Ms. Niharika Karanjawala, Ms. Sanya Dua, Shreyas Maheshwari, Raghav Kacker, Abhishek Grover, Ms. Ranjeeta Rohtagi, Keshav Sehgal, Nikhil Arora, Cyrus Jal, Ms. Kalyani Bhide, M/s. Karanjawala & Co., Ms. Amritananda Chakravorty, Ms. Anindita Pujari, Mihir Samson, Ms. Sherya Munoth, Ms. Sitamsni Cherukumlli, Ms. Aswathi Menon, Ms. Sitamsini Cherukumalli, Mukunda Mamidipudi, Ms. Asawari Sodhi, Abhineet Arvind, Maitreya Saha, Ms. Radhika Mohapatra, Ms. Bhabna Das, Ms. Arundhati Katju, Sai Kaushal, Ms. Tara Narula, Ms. Shivani Luthra Lohiya, Ms. Aparajita Sinha, Nitin Saluja, Ms. Tamanna Pankaj, Ms. Asmita Narula, Ms. Shivangi Sharma, Ms. Apoorva Maheshwari, Ms. Sonal Chopra, Manas Agrawal, Dhanurdhar Singh Rana, Rahul Sangwan, Karthik Sundar, M.G. Aravind Raj, Sivagnanam Karthikeyan, Siddharth Sridhar, Navjot SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v. UNION OF INDIA 1233 Singh, Ms. Shally Bhasin, Chaitanya Safaya, Anand Amit, Ms. Varshini Sudhinder, A. Selvin Raja, Manu Srinath, M P Srivignesh, Lakshman Raja T., Mithun Kumaar N., Ms. Karuna Nundy, Rahul Narayan, Ms. Muskan Tibrewala, Amanpreet Singh, Nitish Chaudhary, Ms. Ramya Soni, Ms. Nupur Kumar, Paras Nath Singh, Rohin Bhatt, Ms. Neeha Nagpal, Malak Manish Bhatt, Himanshu Suman, Dhanurdhar Singh Rana, Shadan Farasat, Amit Bhandari, Aman Sharma, Gautam Bhatia, Utkarsh Saxena, Abhinav Shekhri, Shourya Dasgupta, Aman Naqvi, Ms. Hrishika Jain, Ms. Natasha Maheshwari, Ms. Mreganka Kukreja, Abhishkar Singhvi, Kumar Dushyant Singh, Rohit Sharma, Ms. Aparna Mehrotra, Raghav Gupta, Nikhil Purohit, Ashok Kumar, Raghav Awasthi, Namit Saxena, Awnish Maithani, Shivam Raghuwanshi, Ms. Ruchira Goel, Ms. Vrinda Grover, Aakarsh Kamra, Suraj Sanap, Aavishkar Singh, Shivam Singh, Ms. Mugdha Pande, Dhruva Gandhi, Harpreet Singh Gupta, Shiva Sharma, Ms. Shivika Sharma, Ms. Shaswati Parhi, Ms. Serena Jethmalani, Kailas Bajirao Autade, Shaurya Sahay, Kanu Agrawal, Udai Khanna, Ms. Ruchi Gour Narula, Madhav Sinhal, Arkaj Kumar, Padmesh Mishra, Chitvan Singhal, Abhishek Kumar Pandey, Raman Yadav, Arvind Kumar Sharma, Ms. Swati Ghildiyal, Ms. Devyani Bhatt, Ankit Yadav, Ms. Aishwarya Gupta, Sunny Choudhary, Ms. Sansriti Pathak, Yashraj Singh Bundela, Abhimanyu Singh, Sandeep Sharma, Karan Bishnoi, M. R. Shamshad, Arijit Sarkar, Ms. Nabeela Jamil, Ms. Aparajita Jamwal, Ms. Sumedha Ray Sarkar, Ms. Manisha Singh, Ms. Rupali Samuel, Rishabh Parikh, Niaz A Farooqui, Aman Jha, Ms. Ruchi Kohli, Rahul Unnikrishnan, Ankit Anandraj Shah, Gaurav Prakash Shah, Ms. Srishti Mishra, Rishi Tutu, Ms. M. Jannani, R. C. Kohli, Mrs. Swarupama Chaturvedi, Ms. Saumya Kapoor, Ms. Katyayani Anand, Anuj Saluja, Anubhav Dubey, Prabhas Bajaj, Navneet R, Ajay Sabharwal, Rangasaran Mohan, Ms. Megha Sharma, Ms. Akanksha Gupta, Ashish Singh, Shoumendu Mukherji, Atulesh Kumar, S Santosh Rebello, Ms. Manisha Agarwal Narain, J Sai Deepak, V Shyamohan, Ms. Shaktiki Sharma, Avinash Sharma, Abhishek Avadhani, Ms. Anshika Bajpai, Akshat Gogna, Pranav Krishna for M/s. Kmnp Law, Ms. Priya Aristotle, Dr. Joseph Aristotle S, George Varghese, Ms. Sheela Washington, Ms. Manisha Agrawal Narain, Surya Kant, Ms. Priyanka Tyagi, Amit Kr. Singh, Varun Maheshwari, Manan Soni, Dr. Sasmit Patra, Joby P. Varghese, Upmanyu Sharma, Abhinav Shrivastava, Shivang Rawat, Ms. Radhika Jalan, Ms. Sanjivani Aggarwal, Pradeep Shekhawat, Ms. Jyoti Aggarwal, Ms. Filza Moonis, Prashanth R Dixit, Shekhar G Devasa, Ms. Thashmitha Muthanna, 1234 SUPREME COURT REPORTS [2023] 16 S.C.R. Manish Tiwari, Niroop Sukirthy, Prajwal Hallur, M/s. Devasa & Co., Group Captain Karan Singh Bhati, Ms. Archana Pathak Dave, Ms. Apurva Mahntiyan, Kumar Prashant, Parmod Kumar Vishnoi, P. V. Yogeswaran, Ashish Kumar Upadhyay, Y. Lokesh, Anirudh Sharma, V. Kandha Prabhu, Ms. Maitri Goal, Anubhav Chaturvedi, N. B. V. Srinivasa Reddy, Akshat Srivastava, Gourave Kumar Agarwal, Dr. AP Singh, VP Singh, Mrs. Richa Singh, Mrs. Geeta Chauhan, Sadashiv, Dhawal Uniyal, Kumar Kartikay, Sudhakar Kulwant, Sahitya Srivastava, Ms. Anmol Sharma, Ms. Anurag Rana, Pushpinder Singh, Siddharth Dharmadhikari, Aaditya Aniruddha Pande, Bharat Bagla, Ms. Shreya Saxena, Ms. Yamini Singh, Sourav Singh, Hamza Lakdawala, Ms. Racheeta Chawla, Ms. Manicka Priya S, Supratik Sarkar, Mukund P. Unny, Kaleeswaram Raj, Ms. Thulasi K Raj, Mohammed Sadique T.A., Pulkit Srivastava, Somanadri Goud Katam, Abhilash. M.R., Sayooj Mohandas. M, Sandeep Singh, Abhay Anil Anturkar, Sarthak Mehrotra, Dhruv Tank, Ms. Surbhi Kapoor, Gaichangpou Gangmei, Santosh Kumar, Praneet Pranav, Amit Sharma, Vikash Chandra Shukla, Alabhya Dhamija, Aishvary Vikra, Abhinav Gupta, Nitesh Ranjan, Ms. Sindoora VNL, Ms. Aditi Tripathi, Prabhsimar Singh, Ms. Manju Jetley, Siddhartha Sinha, Prashant Rawat, Ms. Priya Mishra, Nring Chamwibo Zeliang, Ms. Anu Priya Nisha Minz, Tathagat Sharma, Ms. Marbiang Khongwir, Shivam Singhania, Ms. Chubalemla Chang, Nitansh Jaiswal, Abhishek Singh, Aditya Mishra, Prang Newmai, S. Rajurkar, Ms. Charu Mathur, Ms. Meera Kaura, Tejas Patel, Saket, Ms. Muskaan Gandhi, Abhinav Chandan, Pawan Aneja, Akshay, Ms. Anindita Mitra, Mohd. Zahid Hussain, Ms. Anjul Dwivedi, Dr. Ram Sankar, Sai Gridhar, Vishwajeet Mishra, Krishna Pandey, T S. Nanda Kumar, Anand Kumar V, Aditya Kishor Tyagi, Ms. RV Shaarumathi, Jai Singh G, Ms. Sunatha Bagadhi for M/s. Ram Sankar & Co Alex Joseph, Ejaz Maqbool, Ms. Tanvi Dubey, Anukrit Gupta, Sanpreet Singh, Sanjay Kumar Dubey, Sumit Chatterjee, Yash, Ms. Anushree Malviya, Ms. Shrestha Narayan, Milind Kumar, Suhaan Mukerji, Abhishek Manchanda, Ms. Nisha Tomar, Gautam Bhatia, Sayandeep Pahari, Tanmay Sinha, Shashank Shekhar Jha, Advs. for the appearing parties. By Courts Motion, Intervenor-in-person Som Thomas, in-person Ms. Tanushree Bhalla, In-person SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v. UNION OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI] 1235 JUDGMENT / ORDER OF THE SUPREME COURT JUDGMENT DR. DHANANJAYA Y CHANDRACHUD, CJI Table of Contents* A. Background ...............................................................................8 i. The decision of this Court in Navtej Singh Johar ...... 8 ii. Societal violence against the queer community .........11 B. Submissions .......................................................................... 18 C. Reliefs sought in the proceedingsw .................................... 64 D. Analysis ................................................................................. 68 i. This Court is vested with the authority to hear this case ............................................................................... 68 a. Article 32 vests this Court with the power to enforce the rights in Part III of the Constitution ............... 68 b. Judicial review and separation of powers ............ 72 c. The power of this Court to enforce rights under Article 32 is diff erent from the power of the legislature to enact laws ............................................................. 74 d. The power of judicial review must be construed in terms of the Constitution of India and not in terms of the position of law in other jurisdictions .............. 76 e. The role of courts in the democratic process ....... 78 ii. Is queerness ‘un-Indian’? Who is an Indian? What practices are Indian? .................................................. 81 a. Queerness is a natural phenomenon which is known to India since ancient times .................................. 81 b. Queerness is not urban or elite ............................. 83 * Ed Note: Pagination is as per the original judgement. 1236 SUPREME COURT REPORTS [2023] 16 S.C.R. c. The rise of Victorian morality in colonial India and the reasons for the re-assertion of the queer identity .... 91 d. Who is an Indian and what practices are Indian? . 95 iii. Understanding the institution of marriage ............... 95 a. There is no universal conception of marriage ............... 95 b. The conception of marriage is not static ..................... 100 I Sati ..................................................................... 101 II. Widow remarriage .............................................. 101 III. Child marriage and the age of consent ............... 102 IV. Other violence in marriage ................................. 103 V. Inter-caste and interfaith marriage ..................... 104 VI. Divorce ............................................................... 107 VII. The implications of the discussion in this segment ...108 c. The implications of this discussion for the right of queer persons to marry ..........................................................110 iv. The significance of marriage as a socio-legal institution ....................................................................111 v. The nature of fundamental rights: positive and negative postulates ................................................................... 122 vi. Approaches to identifying unenumerated rights ... 126 vii. The scope of the State’s regulation of the ‘intimate zone’ ............................................................................ 128 viii. The right to marry .................................................... 133 a. Have the courts recognised the right to marry? .......... 133 b. There is no fundamental right to marry ...................... 136 c. The challenge to the SMA .......................................... 140 SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v. UNION OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI] 1237 I. The scheme of the SMA ..................................... 140 II. The decision of the South African Constitutional Court in Fourie ............................................................. 143 III. The decision of the UK House of Lords in Ghaidan .............................................................. 147 IV. Institutional limitations with respect to the interpretation of SMA ........................................ 150 d. The challenge to the FMA .......................................... 155 ix. The right to enter into a union ......................................... 157 a. The goal of self-development and what it means to be human ......................................................................... 157 b. The rights under Article 19 ......................................... 161 I The right to freedom of speech and expression and to form intimate associations ................................. 161 II. The right to settle in any part of India ................ 165 c. Facets of the right to life and liberty under Article 21 .................................................................... 167 I. The atypical family ............................................ 167 II. The right to dignity, autonomy, and privacy ...... 170 III. The right to health .............................................. 172 d. The right to freedom of conscience under Article 25 .... 174 x. Restrictions on the right to enter into a union ................ 179 a. The right to enter into a union cannot be restricted based on sexual orientation ................................................... 179 b. Recognizing the right of queer persons to enter into a union will not lead to social chaos ........................................ 183 1238 SUPREME COURT REPORTS [2023] 16 S.C.R. xi. The right of transgender persons to marry ..................... 184 a. Sex, gender, sexual orientation ................................... 185 b. The judgment of this Court in NALSA and the Transgender Persons Act ................................................................. 186 c. Transgender persons in heterosexual relationships can marry under existing law ............................................ 191 I. The right against discrimination under the Transgender Persons Act ......................................................... 191 II. Remedies for the infringement of Section 3 ...... 194 III. Harmonious interpretation of the laws governing marriage and the Transgender Persons Act ........ 197 xii. The conditions for the exercise of the rights of LGBTQ persons ................................................................................ 200 a. The right of queer persons under the Mental Healthcare Act ............................................................................... 200 b. The right of LGBTQ persons to freedom from coercion from their families, the agencies of the state, and other persons 202 xiii. The right of queer persons to adopt children .................. 204 a. Challenge to the Adoption Regulations ...................... 204 I. Regulation 5(3) of the Adoption Regulations exceeds the scope of the JJ Act ........................................ 208 II. Regulation 5(3) of the Adoption Regulations violates Article 14 of the Constitution..............................211 III. Regulation 5(3) of the Adoption Regulations violates Article 15 of the Constitution............................. 215 b. Challenge to the CARA Circular ................................ 224 E. Response to the opinion of Justice Ravindra Bhat ......... 227 F. Directions to obviate discrimination ................................ 239 G. Conclusions and orders of enforcement .......................... 242 SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v. UNION OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI] 1239

1. The Transfer Petitions in these proceedings are allowed.

2. The terms ‘LBGTQ’ and ‘queer’ are used interchangeably and as umbrella expressions to capture the various sexual orientations and gender identities that exist.

3. The term ‘union between queer persons’ or similar terms have been used to mean relationship between parties where one or both of them have an atypical gender identity or sexual orientation.

i. The decision of this Court in Navtej Singh Johar

4. Section 377 of the Indian Penal Code 18601 criminalizes “carnal intercourse against the order of nature.” History is replete with instances of the State having used the provision to rip-off the dignity and autonomy of individuals who engaged in sexual activity with persons of the same sex.2 A colonial provision which refl ected Victorian morality continued in the statute after Independence. Section 377 was also weaponized against gender non-conforming persons.3 Intimate relationships and activities were subject to public ridicule and judicial scrutiny. By criminalizing sexual behavior of homosexual and gender non-conforming persons, the State stripped them of their identity and personhood. Those who defi ed the mandate of the law and dodged prosecution were socially ostracized.

5. In Naz Foundation v. Government of NCTD4, a Division Bench of the High Court of Delhi read down Section 377 of the IPC to exclude consensual homosexual sexual activity between adults. On appeal, a two- Judge Bench of this Court in Suresh Kumar Koushal v. Naz Foundation5 reversed the judgment of the High Court of Delhi. A writ petition seeking to declare the right to sexuality, the right to sexual autonomy, and the right to choice of a sexual partner as a part of the rights guaranteed under “IPC” * Ed. Note: PART A 1 2 Meharban Nowshirwan Irani v. Emperor, AIR 1934 Sind. 206 3 Queen Empress v. Khairati, ILR (1884) 6 All 204 4 5 (2009) 160 DLT 277 (2014) 1 SCC 1 1240 SUPREME COURT REPORTS [2023] 16 S.C.R. Article 21 of the Constitution and to declare Section 377 of the IPC to be unconstitutional was listed before a three-Judge Bench of this Court. The petitioners argued that the matter must be referred to a fi ve-Judge Bench in view of the decisions of this Court in National Legal Services Authority v. Union of India6 and Justice KS Puttaswamy (9J) v. Union of India.7 In NALSA (supra), this Court held that the state must recognize persons who fall outside the male-female binary as ‘third gender persons’ and that they are entitled to all constitutionally guaranteed rights. It also directed the Union and State Governments to grant legal recognition to the self- identifi ed gender of transgender persons, including when they identify as male and female. In Justice KS Puttaswamy (9J) (supra), this Court held that the Constitution protects the right of a person to exercise their sexual orientation. The three-Judge Bench referred the judgment of this Court in Suresh Kumar Koushal (supra) to a larger Bench. The three-Judge Bench also observed that the “order of nature” referred to in Section 377 of the IPC is not a constant but is guided by social morality as opposed to constitutional values, and that a section of the population should not remain in a constant state of fear while exercising their choices.

6. This Court answered the reference in Navtej Singh Johar v. Union of India8, holding that Section 377 is unconstitutional to the extent that it criminalizes consensual sexual activities by the LGBTQ community. It held that: (i) Section 377 violated Article 14 because it discriminated between heterosexual persons and non-heterosexual persons, although both groups engage in consensual sexual activities 9; (ii) While Article 14 permits reasonable classifi cation based on intelligible diff erentia, a classifi cation based on an ‘intrinsic and core trait’ is not reasonable; Section 377 classifi ed individuals on the basis of the core trait of ‘sexual orientation’10; (ii) Article 15 prohibits discrimination based on ‘sex’ which includes within its meaning sexual orientation as well11 and Section 377 indirectly discriminated between