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Section 377: Full text of SC's judgement on decriminalising homosexuality

The court also partly struck down Section 377 as violative of the right to equality

BS Web Team 

LGBTQ
Representative image. Photo: wikimedia.org

Below is the full text of the judgment of the regarding

A. Introduction

Not for nothing, the great German thinker, Johann Wolfgang von Goethe, had said, .I am what I am, so take me as I am. and similarly, Arthur Schopenhauer had pronounced, .No one can escape from their individuality.. In this regard, it is profitable to quote a few lines from John Stuart Mill:-

.But society has now fairly got the better of individuality; and the danger which threatens human nature is not the excess, but the deficiency of personal impulses and preferences..

The emphasis on the unique being of an individual is the salt of his/her life. Denial of self-expression is inviting death. Irreplaceability of individuality and identity is grant of respect to self. This realization is one‘s signature and self-determined design. One defines oneself. That is the glorious form of individuality. In the present case, our deliberation and focus on the said concept shall be from various spectrums.

2. Shakespeare through one of his characters in a play says .What‘s in a name? That which we call a rose by any other name

would smell as sweet.. The said phrase, in its basic sense, conveys that what really matters is the essential qualities of the substance and the fundamental characteristics of an entity but not the name by which it or a person is called. Getting further deeper into the meaning, it is understood that the name may be a convenient concept for identification but the essence behind the same is the core of identity. Sans identity, the name only remains a denotative term. Therefore, the identity is pivotal to one‘s being. Life bestows honour on it and freedom of living, as a facet of life, expresses genuine desire to have it. The said desire, one is inclined to think, is satisfied by the conception of constitutional recognition, and hence, emphasis is laid

on the identity of an individual which is conceived under the

Constitution. And the sustenance of identity is the filament of life. It is

equivalent to authoring one‘s own life script where freedom broadens

everyday. Identity is equivalent to divinity.

3. The overarching ideals of individual autonomy and liberty,

equality for all sans discrimination of any kind, recognition of identity

with dignity and privacy of human beings constitute the cardinal four

corners of our monumental Constitution forming the concrete

substratum of our fundamental rights that has eluded certain sections

of our society who are still living in the bondage of dogmatic social

norms, prejudiced notions, rigid stereotypes, parochial mindset and

bigoted perceptions. Social exclusion, identity seclusion and isolation

from the social mainstream are still the stark realities faced by

individuals today and it is only when each and every individual is

liberated from the shackles of such bondage and is able to work

towards full development of his/her personality that we can call

ourselves a truly free society. The first step on the long path to

acceptance of the diversity and variegated hues that nature has

created has to be taken now by vanquishing the enemies of prejudice

and injustice and undoing the wrongs done so as to make way for a

progressive and inclusive realisation of social and economic rights

embracing all and to begin a dialogue for ensuring equal rights and

opportunities for the .less than equal. sections of the society. We

have to bid adieu to the perceptions, stereotypes and prejudices

deeply ingrained in the societal mindset so as to usher in inclusivity in

all spheres and empower all citizens alike without any kind of

alienation and discrimination.

4. The natural identity of an individual should be treated to be

absolutely essential to his being. What nature gives is natural. That

is called nature within. Thus, that part of the personality of a person

has to be respected and not despised or looked down upon. The said

inherent nature and the associated natural impulses in that regard are

to be accepted. Non-acceptance of it by any societal norm or notion

and punishment by on some obsolete idea and idealism affects

the kernel of the identity of an individual. Destruction of individual

identity would tantamount to crushing of intrinsic dignity that

cumulatively encapsulates the values of privacy, choice, freedom of

speech and other expressions. It can be viewed from another angle.

An individual in exercise of his choice may feel that he/she should be

left alone but no one, and we mean, no one, should impose solitude

on him/her.

5. The eminence of identity has been luculently stated in

Legal Services Authority v. Union of India and others1, popularly

1 (2014) 5 SCC 438

known as NALSA case, wherein the Court was dwelling upon the

status of identity of the transgenders. Radhakrishnan, J., after

referring to catena of judgments and certain International Covenants,

opined that identity is one of the most fundamental aspects of

life which refers to a person‘s intrinsic sense of being male, female or

transgender or transsexual person. A person‘s is usually

assigned at birth, but a relatively small group of persons may be born

with bodies which incorporate both or certain aspects of both male

and female physiology. The learned Judge further observed that at

times, genital anatomy problems may arise in certain persons in the

sense that their innate perception of themselves is not in conformity

with the assigned to them at birth and may include pre-and post-

operative transsexual persons and also persons who do not choose

to undergo or do not have access to operation and also include

persons who cannot undergo successful operation. Elaborating

further, he said:-

.identity refers to each person‘s deeply felt

internal and individual experience of gender, which

may or may not correspond with the assigned at

birth, including the personal sense of the body which

may involve a freely chosen, modification of bodily

appearance or functions by medical, surgical or other

means and other expressions of gender, including

dress, speech and mannerisms. identity,

therefore, refers to an individual‘s self-identification as

a man, woman, transgender or other identified

category..



6. Adverting to the concept of discrimination, he stated:-

.The discrimination on the ground of .sex. under

Articles 15 and 16, therefore, includes discrimination

on the ground of gender identity. The expression .sex.

used in Articles 15 and 16 is not just limited to

biological sex of male or female, but intended to

include people who consider themselves to be neither

male nor female..



7. Dealing with the legality of transgender identity, Radhakrishnan,

J. ruled:-

.The self-identified gender can be either male or

female or a third gender. Hijras are identified as

persons of third gender and are not identified either as

male or female. Gender identity, as already indicated,

refers to a person‘s internal sense of being male,

female or a transgender, for example hijras do not

identify as female because of their lack of female

genitalia or lack of reproductive capability. This

distinction makes them separate from both male and

female genders and they consider themselves neither

man nor woman, but a .third gender...



8. Sikri, J., in his concurring opinion, dwelling upon the rights of

transgenders, laid down that gender identification is an essential

component which is required for enjoying civil rights by the

community. It is only with this recognition that many rights attached to

the sexual recognition as .third gender. would be available to the said

community more meaningfully viz. the right to vote, the right to own

property, the right to marry, the right to claim a formal identity through

a passport and a ration card, a driver‘s licence, the right to education,

employment, health and so on. Emphasising on the aspect of human

rights, he observed:-

.…there seems to be no reason why a transgender

must be denied of basic which includes

right to life and liberty with dignity, right to privacy and

freedom of expression, right to education and

empowerment, right against violence, right against

exploitation and right against discrimination. The

Constitution has fulfilled its duty of providing rights to

transgenders. Now it is time for us to recognise this

and to extend and interpret the Constitution in such a

manner to ensure a dignified life for transgender

people. All this can be achieved if the beginning is

made with the recognition of TG as third gender..



The aforesaid judgment, as is manifest, lays focus on

inalienable .gender identity. and correctly connects with

and the constitutionally guaranteed right to life and liberty with dignity.

It lays stress on the judicial recognition of such rights as an

inextricable component of Article 21 of the Constitution and decries

any discrimination as that would offend Article 14, the .fon juris. of

our Constitution.

9. It has to be borne in mind that search for identity as a basic

human ideal has reigned the mind of every individual in many a

sphere like success, fame, economic prowess, political assertion,

celebrity status and social superiority, etc. But search for identity, in

order to have apposite space in law, sans stigmas and sans fear has

to have the freedom of expression about his/her being which is

keenly associated with the constitutional concept of .identity with

dignity.. When we talk about identity from the constitutional spectrum,

it cannot be pigeon-holed singularly to one‘s orientation that may be

associated with his/her birth and the feelings he/she develops when

he/she grows up. Such a narrow perception may initially sound to

subserve the purpose of justice but on a studied scrutiny, it is soon

realized that the limited recognition keeps the individual choice at

bay. The question that is required to be posed here is whether sexual

orientation alone is to be protected or both orientation and choice are

to be accepted as long as the exercise of these rights by an individual

do not affect another‘s choice or, to put it succinctly, has the consent

of the other where dignity of both is maintained and privacy, as a

seminal facet of Article 21, is not dented. At the core of the concept of

identity lies self-determination, realization of one‘s own abilities

visualizing the opportunities and rejection of external views with a

clear conscience that is in accord with constitutional norms and

values or principles that are, to put in a capsule, .constitutionally

permissible.. As long as it is lawful, one is entitled to determine and

follow his/her pattern of life. And that is where the distinction between

constitutional morality and social morality or ethicality assumes a

distinguished podium, a different objective. Non-recognition in the

fullest sense and denial of expression of choice by a statutory penal

provision and giving of stamp of approval by a two-Judge Bench of

this Court to the said penal provision, that is, of the

Indian Penal Code, in Suresh Kumar Koushal and another v. Naz

Foundation and others2 overturning the judgment of the Delhi High

Court in Naz Foundation v. Government of NCT of Delhi and

others3, is the central issue involved in the present controversy.

B. The Reference

2 (2014) 1 SCC 1

3 (2009) 111 DRJ 1

10. Writ Petition (Criminal) No. 76 of 2016 was filed for declaring

.right to sexuality., .right to sexual autonomy. and .right to choice of a

sexual partner. to be part of the right to life guaranteed under Article

21 of the Constitution of India and further to declare of

the (for short, .IPC.) to be unconstitutional. When

the said Writ Petition was listed before a three-Judge Bench on

08.01.2018, the Court referred to a two-Judge Bench decision

rendered in Suresh Koushal (supra) wherein this Court had

overturned the decision rendered by the Division Bench of the Delhi

High Court in Naz Foundation (supra). It was submitted by Mr.

Arvind Datar, learned senior counsel appearing for the writ

petitioners, on the said occasion that the two-Judge Bench in Suresh

Koushal (supra) had been guided by social morality leaning on

majoritarian perception whereas the issue, in actuality, needed to be

debated upon in the backdrop of constitutional morality. A contention

was also advanced that the interpretation placed in Suresh Kumar

(supra) upon Article 21 of the Constitution is extremely narrow and, in

fact, the Court has been basically guided by Article 14 of the

Constitution. Reliance was placed on the pronouncement in NALSA

case wherein this Court had emphasized on .gender identity and

sexual orientation.. Attention of this Court was also invited to a nine-

Judge Bench decision in K.S. Puttaswamy and another v. Union of

India and others4 wherein the majority, speaking through

Chandrachud, J., has opined that sexual orientation is an essential

component of rights guaranteed under the Constitution which are not

4 (2017) 10 SCC 1

formulated on majoritarian favour or acceptance. Kaul, J, in his

concurring opinion, referred to the decision in Mosley v. News

Group Newspapers Ltd.5 to highlight that the emphasis for

individual‘s freedom to conduct his sex life and personal relationships

as he wishes, subject to the permitted exceptions, countervails public

interest.

11. The further submission that was advanced by Mr. Datar was

that privacy of the individual having been put on such a high pedestal

and sexual orientation having been emphasized in the NALSA case,

cannot be construed as a reasonable restriction as

that would have the potentiality to destroy the individual autonomy

and sexual orientation. It is an accepted principle of interpretation of

statutes that a provision does not become unconstitutional merely

because there can be abuse of the same. Similarly, though a

provision on the statute book is not invoked on many occasions, yet it

does not fall into the sphere of the doctrine of desuetude. However,

Suresh Koushal's case has been guided by the aforesaid doctrine of

desuetude.

5 [2008] EWHC 1777 (QB)

12. Appreciating the said submissions, the three-Judge Bench

stated that:-

.Certain other aspects need to be noted. Section 377

IPC uses the phraseology .carnal intercourse against

the order of nature.. The determination of order of

nature is not a constant phenomenon. Social morality

also changes from age to age. The copes with life

and accordingly change takes place. The morality that

public perceives, the Constitution may not conceive of.

The individual autonomy and also individual orientation

cannot be atrophied unless the restriction is regarded

as reasonable to yield to the morality of the

Constitution. What is natural to one may not be natural

to the other but the said natural orientation and choice

cannot be allowed to cross the boundaries of and

as the confines of law cannot tamper or curtail the

inherent right embedded in an individual under Article

21 of the Constitution. A section of people or

individuals who exercise their choice should never

remain in a state of fear. When we say so, we may not

be understood to have stated that there should not be

fear of law because fear of law builds civilised society.

But that law must have the acceptability of the

Constitutional parameters. That is the litmus test.



It is necessary to note, in the course of hearing

on a query being made and Mr. Datar very fairly stated

that he does not intend to challenge that part of

Section 377 which relates to carnal intercourse with

animals and that apart, he confines to consenting acts

between two adults. As far as the first aspect is

concerned, that is absolutely beyond debate. As far as

the second aspect is concerned, that needs to be

debated. The consent between two adults has to be

the primary pre-condition. Otherwise the children

would become prey, and protection of the children in

all spheres has to be guarded and protected. Taking all

the apsects in a cumulative manner, we are of the

view, the decision in Suresh Kumar Koushal's case

(supra) requires re-consideration..



The three-Judge Bench expressed the opinion that the issues

raised should be answered by a larger Bench and, accordingly,

referred the matter to the larger Bench. That is how the matter has

been placed before us.

C. Submissions on behalf of the petitioners

13. We have heard Mr. Mukul Rohatgi, learned senior counsel

assisted by Mr. Saurabh Kirpal, learned counsel appearing for the

petitioners in Writ Petition (Criminal) No. 76 of 2016, Ms. Jayna

Kothari, learned counsel for the petitioner in Writ Petition (Civil) No.

572 of 2016, Mr. Arvind P. Datar, learned senior counsel for the

petitioner in Writ Petition (Criminal) No. 88 of 2018, Mr. Anand

Grover, learned senior counsel for the petitioners in Writ Petition

(Criminal) Nos. 100 of 2018 and 101 of 2018 and Dr. Menaka

Guruswamy, learned counsel for the petitioner in Writ Petition

(Criminal) No. 121 of 2018. We have also heard Mr. Ashok Desai, Mr.

Chander Uday Singh, Mr. Shyam Divan and Mr. Krishnan Venugopal,

learned senior counsel appearing for various intervenors in the

matter. A compilation of written submissions has been filed by the

petitioners as well as the intervenors.

14. We have heard Mr. Tushar Mehta, learned Additional Solicitor

General for the Union of India, Mr. K. Radhakrishnan, learned senior

counsel appearing in Interlocutory Application No. 94284 of 2018 in

Writ Petition (Criminal) No. 76 of 2016, Mr. Mahesh Jethmalani,

learned senior counsel appearing in Interlocutory Application No.

91147 in Writ Petition (Criminal) No. 76 of 2016, Mr. Soumya

Chakraborty, learned senior counsel appearing in Interlocutory

Application No. 94348 of 2018 in Writ Petition (Criminal) No. 76 of

2016, Mr. Manoj V. George, learned counsel appearing for Apostolic

Alliance of Churches & Utkal Christian Council and Dr. Harshvir

Pratap Sharma, learned counsel appearing in Interlocutory

Application No. 93411 of 2018 in Writ Petition (Criminal) No. 76 of

2016.

15. It is submitted on behalf of the petitioners and the intervenors

that homosexuality, bisexuality and other sexual orientations are

equally natural and reflective of expression of choice and inclination

founded on consent of two persons who are eligible in law to express

such consent and it is neither a physical nor a mental illness, rather

they are natural variations of expression and free thinking process

and to make it a criminal offence is offensive of the well established

principles pertaining to individual dignity and decisional autonomy

inherent in the personality of a person, a great discomfort to gender

identity, destruction of the right to privacy which is a pivotal facet of

Article 21 of the Constitution, unpalatable to the highly cherished idea

of freedom and a trauma to the conception of expression of biological

desire which revolves around the pattern of mosaic of true

manifestation of identity. That apart, the phrase .order of nature. is

limited to the procreative concept that may have been conceived as

natural by a systemic conservative approach and such limitations do

not really take note of inborn traits or developed orientations or, for

that matter, consensual acts which relate to responses to series of

free exercise of assertions of one‘s bodily autonomy. It is further

argued that their growth of personality, relation building endeavour to

enter into a live-in relationship or to form an association with a sense

of commonality have become a mirage and the essential desires are

crippled which violates Article 19(1)(a) of the Constitution. It is urged

that the American Psychological Association has opined that sexual

orientation is a natural condition and attraction towards the same sex

or opposite sex are both naturally equal, the only difference being

that the same sex attraction arises in far lesser numbers.

16. The petitioners have highlighted that the rights of the lesbian,

gay, bisexual and transgender (LGBT) community, who comprise 7-

8% of the total Indian population, need to be recognized and

protected, for sexual orientation is an integral and innate facet of

every individual‘s identity. A person belonging to the said community

does not become an alien to the concept of individual and his

individualism cannot be viewed with a stigma. The impact of sexual

orientation on an individual‘s life is not limited to their intimate lives

but also impacts their family, professional, social and educational life.

As per the petitioners, such individuals (sexual minorities in societies)

need protection more than the heterosexuals so as to enable them to

achieve their full potential and to live freely without fear,

apprehension or trepidation in such a manner that they are not

discriminated against by the society openly or insidiously or by the

State in multifarious ways in matters such as employment, choice of

partner, testamentary rights, insurability, medical treatment in

hospitals and other similar rights arising from live-in relationships

which, after the decision in Indra Sarma v. V.K.V. Sarma6, is

recognized even by the .Protection of Women from Domestic

6 (2013) 15 SCC 755

Violence Act, 2005. for various kinds of live-in relationships. The

same protection, as per the petitioners, must be accorded to same

sex relationships.

17. It is urged by the learned counsel for the petitioners that

individuals belonging to the group suffer discrimination and

abuse throughout their lives due to the existence of

which is nothing but a manifestation of a mindset of societal values

prevalent during the Victorian era where sexual activities were

considered mainly for procreation. The said community remains in a

constant state of fear which is not conducive for their growth. It is

contended that they suffer at the hands of law and are also deprived

of the citizenry rights which are protected under the Constitution. The

law should have treated them as natural victims and sensitized the

society towards their plight and laid stress on such victimisation,

however, the reverse is being done due to which a sense of

estrangement and alienation has developed and continues to prevail

amongst the members belonging to the group. Compulsory

alienation due to stigma and threat is contrary to the fundamental

principle of liberty.

Read the full judgment here

First Published: Thu, September 06 2018. 16:36 IST
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