Navtej Singh Johar v.Union of India Through Secretary, Ministry of Law and Justice (2018) 10 SCC 1

*Navtej Singh Johar v.Union of India Through Secretary, Ministry of Law and Justice  (2018) 10 SCC 1

indiankanoon.org link

casemine.com link

legitquest.com link

*Not Printed

Writ Petition (Criminal) No. 76 of 2016 With Writ Petition (Civil) No. 572 of 2016, Writ Petition (Criminal) Nos. 88, 100, 101 and 121 of 2018 decided on 06/09/2018

Headnote

(A) Penal Code (45 of 1860) , S.377— Constitution of India , Art.19(1)(a), Art.21— Unnatural offences – Constitutional validity in view of Arts. 19(1)(a), 21 – S. 377 abridges both human dignity, right to privacy and choice of citizenry – Sexual orientation is essential and innate facet of privacy – Consensual private acts of adults neither cause disturbance to public order nor injurious to public morality or decency – S. 377 held violative of right of freedom of expression and liable to be partially struck down.

AIR 2014 SC 563, Overruled.

S. 377 takes within its fold private acts of adults including LGBT community which are not only consensual but are also innocent, as such acts neither cause disturbance to public order nor are they injurious to public decency or morality. Law is ‘et domus sua cuique est tutissimum refugium’ – man’s house is his castle. S. 377 does not meet criteria of proportionality and is violative of fundamental right of freedom of expression including right to choose sexual partner. S. 377 also assumes characteristic of unreasonableness, for it becomes weapon in hands of majority to seclude, exploit and harass LGBT community. It shrouds lives of LGBT community in criminality and constant fear mars their joy of life. They constantly face social prejudice, disdain and are subjected to shame of being their very natural selves. Thus, archaic law which is incompatible with constitutional values cannot be allowed to be preserved. Bigoted and homophobic attitudes dehumanize transgenders by denying them their dignity, personhood and above all, their basic human rights. It is important to realize that identity and sexual orientation cannot be silenced by oppression. Liberty, as linchpin of our constitutional values, enables individuals to define and express their identity and individual identity has to be acknowledged and respected. Very existence of S. 377 criminalizing transgenders casts great stigma on already oppressed and discriminated class of people. This stigma, oppression and prejudice has to be eradicated and transgenders have to progress from their narrow claustrophobic spaces of mere survival in hiding with their isolation and fears to enjoying richness of living out of shadows with full realization of their potential and equal opportunities in all walks of life. Ideals and objectives enshrined in our benevolent Constitution can be achieved only when each and every individual is empowered and enabled to participate in social mainstream and in journey towards achieving equality in all spheres, equality of opportunities in all walks of life, equal freedoms and rights and, above all, equitable justice. This can be achieved only by inclusion of all and exclusion of none from mainstream. It is through times of grave disappointment, denunciation, adversity, grief, injustice and despair that transgenders have stood firm with their formidable spirit, inspired commitment, strong determination and infinite hope and belief that has made them look for rainbow in every cloud and lead way to future that would be harbinger of liberation and emancipation from certain bondage indescribable in words – towards basic recognition of dignity and humanity of all and towards leading life without pretence eschewing duality and ambivalence. It is their momentous walk to freedom and journey to constitutional ethos of dignity, equality and liberty and this freedom can only be fulfilled in its truest sense when each of us realize that LGBT community possess equal rights as any other citizen in country under magnificent charter of rights i.e. our Constitution. Thus analysed, S. 377, so far as it penalizes any consensual sexual activity between two adults, be it homosexuals (man and man), heterosexuals (man and woman) and lesbians (woman and woman), cannot be regarded as constitutional. However, if anyone, by which we mean both man and woman, engages in any kind of sexual activity with animal, said aspect of S. 377 is constitutional and it shall remain penal offence under S. 377. Any act of description covered under S. 377 done between individuals without consent of any one of them would invite penal liability under S. 377. Thus, right to live with dignity has been recognized as human right on international front and by number of precedents of Supreme Court and, therefore, constitutional courts must strive to protect dignity of every individual, for without right to dignity, every other right would be rendered meaningless. Dignity is inseparable facet of every individual that invites reciprocative respect from others to every aspect of individual which he/she perceives as essential attribute of his/her individuality, be it orientation or optional expression of choice. Constitution has ladened judiciary with very important duty to protect and ensure right of every individual including right to express and choose without any impediments so as to enable individual to fully realize his/her fundamental right to live with dignity. Examination of S. 377 on anvil of Art. 19(1)(a) reveals that it amounts to unreasonable restriction, for public decency and morality cannot be amplified beyond rational or logical limit and cannot be accepted as reasonable grounds for curbing fundamental rights of freedom of expression and choice of LGBT community. Consensual carnal intercourse among adults, be it homosexual or heterosexual, in private space, does not in any way harm public decency or morality. Therefore, S. 377 in its present form violates Art. 19(1)(a). Ergo, S. 377, so far as it penalizes any consensual sexual relationship between two adults, be it homosexuals (man and man), heterosexuals (man and woman) or lesbians (woman and woman), cannot be regarded as constitutional. However, if anyone, by which we mean both man and woman, engages in any kind of sexual activity with animal, said aspect of S. 377 is constitutional and it shall remain penal offence. Any act of description covered under S. 377 done between two individuals without consent of any one of them would invite penal liability.(Para 245, 247, 248, 249, 251, 252, 253(vi), 253(vii), 253(xvi), 253(xvii)

S. 377 provides for rule by law instead of rule of law. Rule of law requires just law which facilitates equality, liberty and dignity in all its facets. Rule by law provides legitimacy to arbitrary state behaviour. S. 377 has consigned group of citizens to margins. It has been destructive of their identities. By imposing sanctions of law on consenting adults involved in sexual relationship, it has lent authority of state to perpetuate social stereotypes and encourage discrimination. Gays, lesbians, bisexuals and transgenders have been relegated to anguish of closeted identities. Sexual orientation has become target for exploitation, if not blackmail, in networked and digital age. Impact of S. 377 has travelled far beyond punishment of offence. It has been destructive of identity which is crucial to dignified existence. It is difficult to right wrongs of history. But one can certainly set course for future. Lesbians, gays, bisexuals and transgenders have constitutional right to equal citizenship in all its manifestations. Sexual orientation is recognized and protected by Constitution. S. 377 is unconstitutional in sofar as it penalizes consensual relationship between adults of same gender. Constitutional values of liberty and dignity can accept nothing less. Legislation does not exist in vacuum. Social ramifications of S. 377 are enormous. While facially S. 377 only criminalizes certain ‘acts’, and not relationships, it alters prism through which member of LGBTQ is viewed. Conduct and identity are conflated. Impact of criminalizing non-conforming sexual relations is that individuals who fall outside spectrum of heteronormative sexual identity are perceived as criminals. Existing heteronormative framework which recognizes only sexual relations that conform to social norms is legitimized by taint of ‘unnaturalness’ that S. 377 lends to sexual relations outside this framework. Notion of ‘unnatural acts’, viewed in myopic terms of ‘fixed procreational model of sexual functioning’, is improperly applied to sexual relations between consenting adults. Sexual activity between adults and based on consent must be viewed as ‘natural expression’ of human sexual competences and sensitivities. Refusal to accept these acts amounts to denial of distinctive human capacities for sensual experience outside of realm of procreative sex. To deny members of LGBT community full expression of right to sexual orientation is to deprive them of their entitlement to full citizenship under Constitution. Exercise of natural and inalienable right to privacy entails allowing individual right to self-determined sexual orientation. Thus, it is imperative to widen scope of right to privacy to incorporate right to ‘sexual privacy’ to protect rights of sexual minorities. Emanating from inalienable right to privacy, right to sexual privacy must be granted sanctity of natural right, and be protected under Constitution as fundamental to liberty and as soulmate of dignity. Privacy creates ‘tiers of ‘reputable’ and ‘disreputable’ sex’, only granting protection to acts behind closed doors. Thus, it is imperative that protection granted for consensual acts in private must also be available in situations where sexual minorities are vulnerable in public spaces on account of their sexuality and appearance. If one accepts proposition that public places are heteronormative, and same-sex sexual acts partially closeted, relegating ‘homosexual’ acts into private sphere, would in effect reiterate ‘ambient heterosexism of public space.’ It must be acknowledged that members belonging to sexual minorities are often subjected to harassment in public spaces. Right to sexual privacy, founded on right to autonomy of free individual, must capture right of persons of community to navigate public places on their own terms, free from state interference. By criminalising consensual acts between individuals who wish to exercise their constitutionally-protected right to sexual orientation, State is denying its citizens right to intimacy. Right to intimacy emanates from individual’s prerogative to engage in sexual relations on their own terms. It is exercise of individual’s sexual agency, and includes individual’s right to choice of partner as well as freedom to decide on nature of relationship that individual wishes to pursue. Operation of S. 377 denies consenting adults full realization of their right to health, as well as their sexual rights. It forces consensual sex between adults into realm of fear and shame, as persons who engage in anal and oral intercourse risk criminal sanctions if they seek health advice. This lowers standard of health enjoyed by them and particularly by members of sexual and gender minorities, in relation to rest of society. Under our constitutional scheme, no minority group must suffer deprivation of constitutional right because they do not adhere to majoritarian way of life. By application of S. 377, homosexual and transgender persons are excluded from access to health care due to societal stigma attached to their sexual identity. Being particularly vulnerable to contraction of HIV, this deprivation can only be described as cruel and debilitating. Indignity suffered by sexual minority cannot, by any means, stand test of constitutional validity. Sexual and gender based minorities cannot live in ear, if Constitution has to have meaning for them on even terms. In its quest for equality and equal protection of law, Constitution guarantees to them equal citizenship. In de-criminalizing such conduct, values of Constitution assure to LGBT community ability to lead life of freedom from fear and to find fulfilment in intimate choices. Thus, to conclude, S. 377 insofar as it criminalizes consensual sexual conduct between adults of same sex, is unconstitutional. Members of LGBT community are entitled, as all other citizens, to full range of constitutional rights including liberties protected by Constitution. Choice of whom to partner, ability to find fulfilment in sexual intimacies and right not to be subjected to discriminatory behaviour are intrinsic to constitutional protection of sexual orientation. Members of LGBT community are entitled to benefit of equal citizenship, without discrimination, and to equal protection of law.

Sexual orientation is innate to human being. It is important attribute of one’s personality and identity. Homosexuality and bisexuality are natural variants of human sexuality. LGBT persons have little or no choice over their sexual orientation. LGBT persons, like other heterosexual persons, are entitled to their privacy, and right to lead dignified existence, without fear of persecution. They are entitled to complete autonomy over most intimate decisions relating to their personal life, including choice of their partners. Such choices must be protected under Art. 21. Right to life and liberty would encompass right to sexual autonomy, and freedom of expression. S. 377 insofar as it curtails personal liberty of LGBT persons to engage in voluntary consensual sexual relationships with partner of their choice, in safe and dignified environment, is violative of Art. 21. It inhibits them from entering and nurturing enduring relationships. As result, LGBT individuals are forced to either lead life of solitary existence without companion, or lead closeted life as ‘unapprehended felons’. S. 377 criminalizes entire class of LGBT persons since sexual intercourse between such persons, is considered to be carnal and ‘against order of nature’. S. 377 prohibits LGBT persons from engaging in intimate sexual relations in private. Social ostracism against LGBT persons prevents them from partaking in all activities as full citizens, and in turn impedes them from realizing their fullest potential as human beings. Thus, S. 377 prevents LGBT persons from leading dignified life as guaranteed by Art. 21. Right to privacy is not simply ‘right to be let alone’, and has travelled far beyond that initial concept. It now incorporates ideas of spatial privacy, and decisional privacy or privacy of choice. It extends to right to make fundamental personal choices, including those relating to intimate sexual conduct, without unwarranted State interference. S. 377 affects private sphere of lives of LGBT persons. It takes away decisional autonomy of LGBT persons to make choices consistent with their sexual orientation, which would further dignified existence and meaningful life as full person. S. 377 prohibits LGBT persons from expressing their sexual orientation and engaging in sexual conduct in private, decision which inheres in most intimate spaces of one’s existence. Subjective notion of public or societal morality which discriminates against LGBT persons, and subjects them to criminal sanction, simply on basis of innate characteristic runs counter to concept of Constitutional morality, and cannot form basis of legitimate State interest. Further, LGBT persons, and more specifically homosexuals, and transgender persons are at higher risk of contracting HIV as they lack safe spaces to engage in safe-sex practices. They are inhibited from seeking medical help for testing, treatment and supportive care on account of threat of being ‘exposed’ and resultant prosecution. Higher rates of prevalence of HIV-AIDS in homosexuals, who are in turn married to other people of opposite sex, coupled with difficulty in detection and treatment, makes them highly susceptible to contraction and further transmission of virus. LGBT persons express their sexual orientation in myriad ways. One such way is engagement in intimate sexual acts like those proscribed under S. 377. Owing to fear of harassment from law enforcement agencies and prosecution, LGBT persons tend to stay ‘in closet’. They are forced not to disclose central aspect of their personal identity i.e. their sexual orientation, both in their personal and professional spheres to avoid persecution in society and opprobrium attached to homosexuality. Unlike heterosexual persons, they are inhibited from openly forming and nurturing fulfilling relationships, thereby restricting rights of full personhood and dignified existence. It also has impact on their mental well-being. Consensual relationships between adults cannot be classified along with offences of bestiality, sodomy and non-consensual relationships. Sexual orientation is immutable, since it is innate feature of one’s identity, and cannot be changed at will. Choice of LGBT persons to enter into intimate sexual relations with persons of same sex is exercise of their personal choice, and expression of their autonomy and self-determination. S. 377 insofar as it criminalizes voluntary sexual relations between LGBT persons of same sex in private, discriminates against them on basis of their ‘sexual orientation’ which is violative of their fundamental rights guaranteed by Arts. 14, 19, and 21 of Constitution. Mere fact that LGBT persons constitute ‘miniscule fraction’ of country’s population cannot be ground to deprive them of their Fundamental Rights guaranteed by Part III of Constitution. Even though LGBT constitute sexual minority, members of LGBT community are citizens of this country who are equally entitled to enforcement of their Fundamental Rights guaranteed by Arts. 14, 15, 19, and 21. Even though S. 377 is facially neutral, it has been misused by subjecting members of LGBT community to hostile discrimination, making them vulnerable and living in fear of ever-present threat of prosecution on account of their sexual orientation. Criminalization of ‘carnal intercourse against order of nature’ has effect of criminalizing entire class of LGBT persons since any kind of sexual intercourse in case of such persons would be considered to be against ‘order of nature’, as per existing interpretation. Thus, insofar as S. 377 criminalizes consensual sexual acts of adults (i.e. persons above age of 18 years who are competent to consent) in private, is violative of Arts. 14, 15, 19, and 21. It is, however, clarified that such consent must be free consent, which is completely voluntary in nature, and devoid of any duress or coercion. Provisions of S. 377 will continue to govern non-consensual sexual acts against adults, all acts of carnal intercourse against minors and acts of bestiality. AIR 2014 SC 563, Overruled.(Para 525, 526, 528, 530)

(B) Penal Code (45 of 1860) , S.377— Constitution of India , Art.14— Unnatural offences – Constitutional validity in view of Art. 14 – Non-consensual acts criminalized under S. 377 already designated as penal offences under S. 375 of Code and Protection of Children from Sexual Offences Act, 2012 – Criminalization of ‘Consensual acts’ which are not harmful, resulting in discrimination and unequal treatment to LGBT, as separate class of citizens – Is violative of Art. 14.

AIR 2014 SC 563, Overruled.

Perusal of S. 377 reveals that it classifies and penalizes persons who indulge in carnal intercourse with object to protect women and children from being subjected to carnal intercourse. Non-consensual acts which have been criminalized by virtue of S. 377 have already been designated as penal offences under S. 375 and under POCSO Act. Presence of this section in its present form has resulted in distasteful and objectionable collateral effect whereby even ‘consensual acts’, which are neither harmful to children nor women and are performed by certain class of people (LGBTs) owning to some inherent characteristics defined by their identity and individuality, have been woefully targeted. This discrimination and unequal treatment meted out to LGBT community as separate class of citizens is unconstitutional for being violative of Art. 14 of Constitution. In view of law laid down in AIR 2017 SC 4609 and given fact that S. 377 criminalizes even consensual sexual acts between adults, it fails to make distinction between consensual and non-consensual sexual acts between competent adults. Further, S. 377 fails to take into account that consensual sexual acts between adults in private space are neither harmful nor contagious to society. On contrary, S. 377 trenches discordant note in respect of liberty of persons belonging to LGBT community by subjecting them to societal pariah and dereliction. Needless to say, section also interferes with consensual acts of competent adults in private space. Sexual acts cannot be viewed from lens of social morality or that of traditional precepts wherein sexual acts were considered only for purpose of procreation. This being case, S. 377 IPC, so long as it criminalizes consensual sexual acts of whatever nature between competent adults, is manifestly arbitrary. LGBT community possess same human, fundamental and constitutional rights as other citizens do since these rights inheret in individuals as natural and human rights. One must remember that equality is edifice on which entire non-discrimination jurisprudence rests. Respect for individual choice is very essence of liberty under law and, thus, criminalizing carnal intercourse under S. 377 is irrational, indefensible and manifestly arbitrary. It is true that principle of choice can never be absolute under liberal Constitution and law restricts one individual’s choice to prevent harm or injury to others. However, organization of intimate relations is matter of complete personal choice especially between consenting adults. It is vital personal right falling within private protective sphere and realm of individual choice and autonomy. Such progressive proclivity is rooted in constitutional structure and is inextricable part of human nature. Thus, examination of S. 377 on anvil of Art. 14 of Constitution reveals that classification adopted under said section has no reasonable nexus with its object as other penal provisions such as S. 375 and POCSO Act already penalize non-consensual carnal intercourse. Per contra, S. 377 in its present form has resulted in unwanted collateral effect whereby even ‘consensual sexual acts’, which are neither harmful to children nor women, by LGBTs have been woefully targeted thereby resulting in discrimination and unequal treatment to LGBT community and is, thus, violative of Art. 14. S. 377, so far as it criminalizes even consensual sexual acts between competent adults, fails to make distinction between non-consensual and consensual sexual acts of competent adults in private space which are neither harmful nor contagious to society. S. 377 subjects LGBT community to societal pariah and dereliction and is, therefore, manifestly arbitrary, for it has become odious weapon for harassment of LGBT community by subjecting them to discrimination and unequal treatment. Therefore, in view of law laid down in AIR 2017 SC 4609, S. 377 is liable to be partially struck down for being violative of Article 14 of Constitution.S. 377, in penalizing consensual gay sex, is manifestly arbitrary. Given modern psychiatric studies and legislation which recognizes that gay persons and transgenders are not persons suffering from mental disorder and cannot therefore be penalized, S. 377 must be held to be provision which is capricious and irrational. Also, roping in such persons with sentences going upto life imprisonment is clearly excessive and disproportionate, as result of which, when applied to such persons, Arts. 14 and 21 of Constitution would clearly be violated. object sought to be achieved by provision, namely to enforce Victorian mores upon citizenry of India, would be out of tune with march of constitutional events that has since taken place, rendering said object itself discriminatory when it seeks to single out same-sex couples and transgenders for punishment. After 2013, when S. 375 was amended so as to include anal and certain other kinds of sexual intercourse between man and woman, which would not be criminalized as rape if it was between consenting adults, it is clear that if S. 377 continues to penalize such sexual intercourse, anomalous position would result. Man indulging in such sexual intercourse would not be liable to be prosecuted for rape but would be liable to be prosecuted under S. 377. Further, woman who could, at no point of time, have been prosecuted for rape would, despite her consent, be prosecuted for indulging in anal or such other sexual intercourse with man in private under S. 377. This would render S. 377, as applied to such consenting adults, as manifestly arbitrary as it would be wholly excessive and disproportionate to prosecute such persons under S. 377 when legislature has amended one portion of law in 2013, making it clear that consensual sex, as described in amended provision, between two consenting adults, one man and one woman, would not be liable for prosecution. If, by having regard to what has been said above, S. 377 has to be read down as not applying to anal and such other sex by male-female couple, then section will continue to apply only to homosexual sex. If this be case, section will offend Art. 14 as it will discriminate between heterosexual and homosexual adults which is distinction which has no rational relation to object sought to be achieved by section namely, criminalization of all carnal sex between homosexual and/or heterosexual adults as being against order of nature. Viewed either way, section falls foul of Art. 14. fact that only minuscule fraction of country’s population constitutes lesbians and gays or transgenders, and that in last 150 years less than 200 persons have been prosecuted for committing offence under S. 377, is neither here nor there. When it is found that privacy interests come in and State has no compelling reason to continue existing law which penalizes same-sex couples who cause no harm to others, on application of recent judgments delivered by Supreme Court after AIR 2014 SC 563 it is clear that Arts. 14, 15, 19 and 21 have all been transgressed without any legitimate state rationale to uphold such provision. Expression ‘carnal’ is susceptible to wide range of meanings. Among them are ‘sexual, sensual, erotic, lustful, lascivious, libidinous, lecherous, licentious, lewd, prurient, salacious, coarse, gross, lubricious, venereal.’ That’s not all. Word incorporates meanings such as ‘physical, bodily, corporeal and of flesh.’ Late Middle English origin of ‘carnal’ derives from Christian Latin ‘carnalis’, from caro, carn – ‘flesh’. At one end of spectrum ‘carnal’ embodies something which relates to physical feelings and desires of body. In another sense, word implies ‘a relation to body or flesh as state of basic physical appetites’. In pejorative sense, it conveys grossness or lewdness. Simple question which we need to ask ourselves is whether liberty and equality can be made to depend on such vagueness of expression and indeterminacy of content. S. 377 is based on moral notion that intercourse which is lustful is to be frowned upon. It finds sole purpose of intercourse in procreation. In doing so, it imposes criminal sanctions upon basic human urges, by targeting some of them as against order of nature. It does so, on basis of social hypocrisy which law embraces as its own. It would have human beings lead sanitized lives, in which physical relationships are conditioned by moral notion of what nature does or does not ordain. It would have human beings accept way of life in which sexual contact without procreation is aberration and worse still, penal. It would ask of a section of our citizens that while love, they may, physical manifestation of their love is criminal. This is manifest arbitrariness writ large. If it is difficult to locate any intelligible differentia between indeterminate terms such as ‘natural’ and ‘unnatural’, then it is even more problematic to say that classification between individuals who supposedly engage in ‘natural’ intercourse and those who engage in ‘carnal intercourse against order of nature’ can be legally valid. There is no cogent reasoning to support idea that behaviour that may be uncommon on basis of mere statistical probability is necessarily abnormal and must be deemed ethically or morally wrong. Even behaviour that may be considered wrong or unnatural cannot be criminalized without sufficient justification given penal consequences that follow. S. 377 becomes blanket offence that covers supposedly all types of non-procreative ‘natural’ sexual activity without any consideration given to notions of consent and harm. Indeterminacy and vagueness of terms ‘carnal intercourse’ and ‘order of nature’ renders S. 377 constitutionally infirm as violating equality clause in Art. 14. S. 375 defines expression rape in expansive sense, to include any one of several acts committed by man in relation to woman. offence of rape is established if those acts are committed against her will or without free consent of woman. S. 375 is clear indicator that in heterosexual context, certain physical acts between man and woman are excluded from operation of penal law if they are consenting adults. Many of these acts which would have been within purview of S. 377, stand excluded from criminal liability when they take place in course of consensual heterosexual contact. Parliament has ruled against them being regarded against ‘order of nature’, in context of S. 375. Yet those acts continue to be subject to criminal liability, if two adult men or women were to engage in consensual sexual contact. This is violation of Article 14.(Para 382, 383, 384)

S. 377 operates in vastly different manner for two classes of persons based on their ‘sexual orientation’ i.e. LGBT persons and heterosexual persons. S. 377 penalises all forms of non penile-vaginal intercourse. In effect, voluntary consensual relationships between LGBT persons are criminalised in totality. import and effect of S. 377 is that while consensual heterosexual relationship is permissible, consensual relationship between LGBT persons is considered to be ‘carnal’, and against order of nature. S. 377 creates artificial dichotomy. Natural or innate sexual orientation of person cannot be ground for discrimination. Where legislation discriminates on basis of intrinsic and core trait of individual, it cannot form reasonable classification based on intelligible differentia. person’s sexual orientation is intrinsic to their being. It is connected with their individuality, and identity. classification which discriminates between persons based on their innate nature, would be violative of their fundamental rights, and cannot withstand test of constitutional morality. In contemporary civilised jurisprudence, with States increasingly recognising status of same-sex relationships, it would be retrograde to describe such relationships as being ‘perverse’, ‘deviant’, or ‘unnatural’. S. 375 defines offence of rape. It provides for penetrative acts which if performed by man against woman without her consent, or by obtaining her consent under duress, would amount to rape. Penetrative acts (after 2013 Amendment to Penal Code) include anal and oral sex. Necessary implication which can be drawn from amended provision is that if such penetrative acts are done with consent of woman they are not punishable under S. 375. While S. 375 permits consensual penetrative acts (the definition of ‘penetration’ includes oral and anal sex), S. 377 makes same acts of penetration punishable irrespective of consent. This creates dichotomy in law. Proscription of consensual sexual relationship under S. 377 is not founded on any known or rational criteria. Sexual expression and intimacy of consensual nature, between adults in private, cannot be treated as ‘carnal intercourse against order of nature’. S. 377 insofar as it criminalises consensual sexual acts between adults in private, is not based on any sound or rational principle, since basis of criminalisation is ‘sexual orientation’ of person, over which one has ‘little or no choice’. Further, phrase ‘carnal intercourse against order of nature’. S. 377 insofar as it criminalises consensual sexual acts between adults in private, is not based on any sound or rational principle, since basis of criminalisation is ‘sexual orientation’ of person, over which one has ‘little or no choice’. Further, phrase ‘carnal intercourse against order of nature’ in S. 377 as determining principle in penal provision, is too open-ended, giving way to scope for misuse against members of LGBT community. Thus, apart from not satisfying twin-test under Art. 14, S. 377 is also manifestly arbitrary, and hence violative of Art. 14 of Constitution.(Para 523)

(C) Penal Code (45 of 1860) , S.377, S.375— Unnatural offences and rape – S. 375 giving recognition to absence of ‘willful and informed consent’ for act to be termed rape – However, S. 377 containing no such qualification regarding absence of ‘willful and informed consent’ to criminalize carnal intercourse between any two adults – S. 375 after amendment Act of 2013, not using words ‘subject to any other provision of IPC’ – Indicating that S. 375 is not subject to S. 377 – Criminalisation of consensual carnal intercourse between two adults, unsustainable.

S. 377 criminalizes even voluntary carnal intercourse not only between homosexuals but also between heterosexuals. major difference between language of S. 377 and S. 375 is that of element of absence consent which has been elaborately incorporated in seven descriptions contained in latter part of S. 375. It is absence of willful and informed consent embodied in seven descriptions to S. 375 which makes offence of rape criminal. On other hand, S. 377 contains no such descriptions/exceptions embodying absence of willful and informed consent and criminalises even voluntary carnal intercourse both between homosexuals as well as between heterosexuals. While saying so, strength and support is gained from fact that legislature, in its wisdom, while enacting S. 375 in its amended form after Criminal Law (Amendment) Act, 2013, has not employed words ‘subject to any other provision of IPC’. Implication of absence of these words simply indicates that S. 375 which does not criminalize consensual carnal intercourse between heterosexuals is not subject to S. 377 IPC. S. 377, so far as it criminalises carnal intercourse between heterosexuals is legally unsustainable in its present form for simple reason that S. 375 clearly stipulates that carnal intercourse between man and woman with willful and informed consent of woman does not amount to rape and is not penal. Despite Criminal Law (Amendment) Act, 2013 coming into force, by virtue of which S. 375 was amended, whereby words ‘sexual intercourse’ in S. 375 were replaced by four elaborate clauses from (a) to (d) giving wide definition to offence of rape, S. 377 still remains in statute book in same form. Such anomaly, if allowed to persist, may result in situation wherein heterosexual couple who indulges in carnal intercourse with willful and informed consent of each other may be held liable for offence of unnatural sex under S. 377, despite fact that such act would not be rape within definition as provided under S. 375. Drawing analogy, if consensual carnal intercourse between heterosexual couple does not amount to rape, it definitely should not be labelled and designated as unnatural offence under S. 377 IPC. If any proclivity amongst heterosexual population towards consensual carnal intercourse has been allowed due to Criminal Law (Amendment) Act, 2013, such kind of proclivity amongst any two persons including LGBT community cannot be treated as untenable so long as it is consensual and it is confined within their most private and intimate spaces. Further, at very least, it can be said that criminalisation of consensual carnal intercourse, be it amongst homosexuals, heterosexuals, bi-sexuals or transgenders, hardly serves any legitimate public purpose or interest. Per contra, it is believed that if S. 377 remains in its present form in statute book, it will allow harassment and exploitation of LGBT community to prevail. Freedom of choice cannot be scuttled or abridged on threat of criminal prosecution and made paraplegic on mercurial stance of majoritarian perception. Thus, cursory reading of both Ss. 375 and 377 reveals that although former section gives due recognition to absence of ‘wilful and informed consent’ for act to be termed as rape, per contra, S. 377 does not contain any such qualification embodying in itself absence of ‘wilful and informed consent’ to criminalize carnal intercourse which consequently results in criminalizing even voluntary carnal intercourse between homosexuals, heterosexuals, bisexuals and transgenders. S. 375, after coming into force of Criminal Law (Amendment) Act, 2013, has not used words ‘subject to any other provision of IPC’. This indicates that S. 375 is not subject to S. 377.

(D) Penal Code (45 of 1860) , S.377— Unnatural offences – Words ‘against order of nature’ – Includes all sexual acts between two adults not intended for purpose of procreation.

Interpretation of Statutes – Words ‘against order of nature’ occurring in S. 377 of Penal Code – What amounts to – Homosexuality and carnal intercourse performed between consenting adults as per their choice – Does not make it against order of nature and includes all sexual acts not intended for purpose of procreation.

In contemporary world where even marriage is now not equated to procreation of children, question that would arise is whether homosexuality and carnal intercourse between consenting adults of opposite sex can be tagged as ‘against order of nature’. It is freedom of choice of two consenting adults to perform sex for procreation or otherwise and if their choice is that of latter, it cannot be said to be against order of nature. Therefore, sex, if performed differently, as per choice of consenting adults, does not per se make it against order of nature. Thus, expression ‘against order of nature’ has neither been defined in S. 377 nor in any other provision of IPC. connotation given to expression by various judicial pronouncements includes all sexual acts which are not intended for purpose of procreation. Therefore, if coitus is not performed for procreation only, it does not per se make it ‘against order of nature’.(Para 216, 253(xii))

(E) Doctrines – Doctrine of progressive realization of rights – Gives birth to doctrine of non-retrogression, which states that there must not be atavism of constitutional rights.

Rationale behind doctrine of progressive realization of rights is dynamic and ever growing nature of Constitution under which rights have been conferred to citizenry. Constitutional courts have to recognize that constitutional rights would become dead letter without their dynamic, vibrant and pragmatic interpretation. Therefore, it is necessary for constitutional courts to inculcate in their judicial interpretation and decision making sense of engagement and sense of constitutional morality so that they, with aid of judicial creativity, are able to fulfill their foremost constitutional obligation, that is, to protect rights bestowed upon citizens of our country by Constitution. It is not only interpretation of Constitution which needs to be pragmatic, due to dynamic nature of Constitution, but also legal policy of particular epoch must be in consonance with current and present needs of society, which are sensible in prevalent times and at same time easy to apply. This also gives birth to equally important role of State to implement constitutional rights effectively. And of course, when it is State, it includes all three organs, that is, legislature, executive as well as judiciary. State has to show concerned commitment which would result in concrete action. State has obligation to take appropriate measures for progressive realization of economic, social and cultural rights. Doctrine of progressive realization of rights, as natural corollary, gives birth to doctrine of non-retrogression. As per this doctrine, there must not be any regression of rights. In progressive and ever-improving society, there is no place for retreat. society has to march ahead. Doctrine of non-retrogression sets forth that State should not take measures or steps that deliberately lead to retrogression on enjoyment of rights either under Constitution or otherwise. Thus, There is manifest ascendance of rights under Constitution which paves way for doctrine of progressive realization of rights as such rights evolve with evolution of of society. This doctrine, as natural corollary, gives birth to doctrine of non-retrogression, as per which there must not be atavism of constitutional rights. In light of same, accepting view in AIR 2014 SC 563, it would tantamount to retrograde step in direction of progressive interpretation of Constitution and denial of progressive realization of rights.(Para 183, 184, 186, 187, 188, 189, 253(ix))

(F) Penal Code (45 of 1860) , S.377— Constitution of India , Art.15— Unnatural offences – Whether violative of Art. 15 – Any ground of discrimination, whether direct or indirect, founded on stereotypical understanding of role of sex, is included in discrimination prohibited under Art. 15 on grounds only of sex – S. 377 discriminating on basis of sex, held violative of Art. 15.

AIR 1981 SC 1829, Overruled.

Discriminatory act will be tested against constitutional values. Discrimination will not survive constitutional scrutiny when it is grounded in and perpetuates stereotypes about class constituted by grounds prohibited in Art. 15(1). If any ground of discrimination, whether direct or indirect is founded on stereotypical understanding of role of sex, it would not be distinguishable from discrimination which is prohibited by Art. 15 on grounds only of sex. If certain characteristics grounded in stereotypes, are to be associated with entire classes of people constituted as groups by any of grounds prohibited in Art. 15(1), that cannot establish permissible reason to discriminate. Such discrimination will be in violation of constitutional guarantee against discrimination in Art. 15(1). That such discrimination is result of grounds rooted in sex and other considerations, can no longer be held to be position supported by intersectional understanding of how discrimination operates. This infuses Art. 15 with true rigour to give it complete constitutional dimension in prohibiting discrimination. Provision challenged as being ultra vires prohibition of discrimination on grounds only of sex under Art. 15(1) is to be assessed not by objects of state in enacting it, but by effect that provision has on affected individuals and on their fundamental rights. Any ground of discrimination, direct or indirect, which is founded on particular understanding of role of sex, would not be distinguishable from discrimination which is prohibited by Art. 15 on grounds only of sex. By criminalizing consensual sexual conduct between two homosexual adults, S. 377 has become basis not just of prosecutions but of persecution of members of affected community. S. 377 leads to perpetuation of culture of silence and stigmatization. S. 377 perpetuates notions of morality which prohibit certain relationships as being against ‘order of nature.’ Criminal provision has sanctioned discrimination grounded on stereotypes imposed on entire class of persons on grounds prohibited by Art. 15(1). This constitutes discrimination on grounds only of sex and violates guarantee of non-discrimination in Art. 15(1). Sex as it occurs in Art. 15, is not merely restricted to biological attributes of individual, but also includes their ‘sexual identity and character’. Prohibition against discrimination under Article 15 on ground of ‘sex’ should therefore encompass instances where such discrimination takes place on basis of one’s sexual orientation. S. 15(1), of Canadian Charter like Art. 15 of Constitution, does not include ‘sexual orientation’ as prohibited ground of discrimination. Notwithstanding that, Canadian Supreme Court has held that sexual orientation is ‘ground analogous’ to other grounds specified under S. 15(1). Discrimination based on any of these grounds has adverse impact on individual’s personal autonomy, and is undermining of his personality. Similar conclusion can be reached in Indian context as well in light of underlying aspects of immutability and fundamental choice. LGBT community is sexual minority which has suffered from unjustified and unwarranted hostile discrimination, and is equally entitled to protection afforded by Art. 15.(Para 524)

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s