Holding

Section 377 of the Indian Penal Code, 1860, insofar as it criminalises consensual sexual acts between adults in private, is unconstitutional as it violates Articles 14, 15, 19 and 21 of the Constitution of India.

Summary

The Supreme Court of India considered the constitutional validity of Section 377 of the Indian Penal Code, 1860, which criminalized 'carnal intercourse against the order of nature' with any man, woman, or animal. The petitioners challenged the provision insofar as it criminalized consensual sexual acts between adults of the same sex, arguing that it violated fundamental rights under Articles 14, 15, 19, and 21 of the Constitution. The Court overruled its earlier decision in Suresh Kumar Koushal v. Naz Foundation, which had upheld the provision. The majority held that Section 377, to the extent it penalizes consensual sexual acts between competent adults in private, is manifestly arbitrary and violates the right to equality, non-discrimination, freedom of expression, and the right to life and personal liberty including dignity and privacy. The Court emphasized that sexual orientation is an innate attribute of identity and that constitutional morality must prevail over social morality. Consequently, Section 377 was read down to decriminalize consensual same-sex relationships between adults, while retaining its application to non-consensual acts, acts with minors, and bestiality. The Court also directed the Union to take measures to reduce stigma and sensitize officials.

Issues considered

Whether Section 377 IPC, insofar as it criminalises consensual sexual acts between adults in private, violates Article 14 (right to equality) of the Constitution?
Whether Section 377 IPC violates Article 15 (prohibition of discrimination) on the ground of sex, including sexual orientation?
Whether Section 377 IPC violates Article 19(1)(a) (freedom of speech and expression) and is not a reasonable restriction under Article 19(2)?
Whether Section 377 IPC violates Article 21 (right to life and personal liberty) including the right to privacy, dignity, and autonomy?
Whether the decision in Suresh Kumar Koushal v. Naz Foundation (2014) requires reconsideration in light of subsequent constitutional jurisprudence?
Whether the doctrine of progressive realization of rights and non-retrogression applies to the interpretation of fundamental rights in the context of sexual orientation?
Whether the Yogyakarta Principles on the application of international human rights law in relation to sexual orientation and gender identity are relevant to the interpretation of fundamental rights under the Indian Constitution?

Legislation cited

Constitution of Indias. 14, s. 15, s. 19, s. 21, s. 226, s. 32, s. 372
Criminal Law (Amendment) Act, 2013
HIV (Prevention and Control) Act, 2017s. 22
Indian Penal Code, 1860s. 375, s. 376, s. 377, s. 497, s. 511
Mental Healthcare Act, 2017s. 115, s. 120, s. 18, s. 21, s. 2(s), s. 3, s. 30
Protection of Children from Sexual Offences Act, 2012

Subjects

Constitutional LawFundamental RightsSection 377 IPCLGBT RightsRight to PrivacyRight to EqualityRight to LifeRight to DignityFreedom of ExpressionSexual OrientationManifest ArbitrarinessConstitutional MoralityTransformative ConstitutionalismNon-DiscriminationRight to HealthJudicial Review

Judgment

[2018]
NAVTEJ SINGH JOHAR v. UOI 7 S.C.R.
THR. 379
SECY. MINISTRY OF LAW & JUSTICE 379
[DIPAK MISRA, CJI ]

NAVTEJ SINGH JOHAR & ORS. A
v.
UNION OF INDIA THR. SECRETARY
MINISTRY OF LAW AND JUSTICE
(Writ Petition (Criminal) No. 76 of 2016) B
SEPTEMBER 06, 2018
[DIPAK MISRA, CJI, R. F. NARIMAN,
A. M. KHANWILKAR, DR. D.Y. CHANDRACHUD AND
INDU MALHOTRA, JJ.]
C
Penal Code, 1860 – s.377 – Constitutionality of – Held: s.377,
so far as it criminalises even consensual sexual acts between
competent adults, fails to make a distinction between non-consensual
and consensual sexual acts of competent adults in private space
which are neither harmful nor contagious to the society – s.377
D
subjects the LGBT community to societal pariah and dereliction and
is, therefore, manifestly arbitrary, for it has become an odious
weapon for the harassment of the LGBT community by subjecting
them to discrimination and unequal treatment – Therefore, s.377 is
liable to be partially struck down for being violative of Art.14 of
the Constitution – In other words, s.377, so far as it penalizes any E
consensual sexual activity between two adults, be it homosexuals
(man and a man), heterosexuals (man and a woman) and lesbians
(woman and a woman), cannot be regarded as constitutional –
However, if anyone, both a man and a woman, engages in any kind
of sexual activity with an animal, the said aspect of s.377 is
F
constitutional and it shall remain a penal offence under s.377 –
Any act of the description covered under s.377 done between the
individuals without the consent of any one of them would invite
penal liability under s.377 – Constitution of India – Art.14 –
Homosexual – LGBT. (Per Dipak Misra, CJI [for himself and
Khanwilkar, J.]) G
Penal Code, 1860 – s.377 – Expression ‘against the order of
nature’ – The expression ‘against the order of nature’ has neither
been defined in s.377 nor in any other provision of the IPC – The
connotation given to the expression by various judicial
H
379
380 SUPREME COURT REPORTS [2018] 7 S.C.R.

A pronouncements includes all sexual acts which are not intended for
the purpose of procreation – Therefore, if coitus is not performed
for procreation only, it does not per se make it ‘against the order of
nature’. (Per Dipak Misra, CJI [for himself and Khanwilkar, J.])
Penal Code, 1860 – s.377 – Examination of s.377 on the anvil
B of Art.14 of the Constitution – Held: The classification adopted
under s.377 has no reasonable nexus with its object as other penal
provisions such as s.375 and the POCSO Act already penalize non-
consensual carnal intercourse – s.377, insofar as it applies to same-
sex consenting adults, demeans them by having them prosecuted
instead of understanding their sexual orientation and attempting to
C correct centuries of the stigma associated with such persons – s.377
offends Art.14 as it discriminates between heterosexual and
homosexual adults which is a distinction which has no rational
relation to the object sought to be achieved by the Section - namely,
the criminalization of all carnal sex between homosexual and/or
D heterosexual adults as being against the order of nature –
Yogyakarta Principles on the Application of International Human
Rights Law in relation to Sexual Orientation and Gender Identity
give further content to the fundamental rights contained in Arts 14,
15, 19 and 21, and in the light of these principles also, s.377 is
unconstitutional. (Per R.F. Nariman, J.)
E
Penal Code, 1860 – s.377 – Examination of s.377 on the anvil
of Art.19(1)(a) of the Constitution – Held: s.377 amounts to an
unreasonable restriction, for public decency and morality cannot
be amplified beyond a rational or logical limit and cannot be
accepted as reasonable grounds for curbing the fundamental rights
F of freedom of expression and choice of the LGBT community –
Consensual carnal intercourse among adults, be it homosexual or
heterosexual, in private space, does not in any way harm the public
decency or morality – Therefore, s.377 in its present form violates
Art.19(1)(a) of the Constitution. (Per Dipak Misra, CJI [for himself
G and Khanwilkar, J.])
Penal Code, 1860 – s.377 – Miniscule population of LGBT –
The mere fact that the percentage of population whose fundamental
right to privacy is being abridged by the existence of s.377 in its
present form is low does not impose a limitation upon the
H Constitutional court from protecting the fundamental rights of those
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 381
[DIPAK MISRA, CJI ]

who are so affected by s.377. (Per Dipak Misra, CJI [for himself A
and Khanwilkar, J.])
Penal Code, 1860 – s.375 and s.377 – Distinction between –
The major difference between the language of s.377 and s.375 is
that of the element of absence consent which has been elaborately
incorporated in the seven descriptions contained in the latter part B
of s.375 – It is the absence of willful and informed consent embodied
in the seven descriptions to s.375 which makes the offence of rape
criminal – On the other hand, s.377 contains no such descriptions/
exceptions embodying the absence of willful and informed consent
and criminalises even voluntary carnal intercourse both between
homosexuals as well as between heterosexuals. (Per Dipak Misra, C
CJI [for himself and Khanwilkar, J.])
Penal Code, 1860 – s.377 – Expression ‘against the order of
nature’ – Held: Sex, if performed differently, as per the choice of
the consenting adults, does not per se make it against the order of
nature – It is the freedom of choice of two consenting adults to D
perform sex for procreation or otherwise and if their choice is that
of the latter, it cannot be said to be against the order of nature.
(Per Dipak Misra, CJI [for himself and Khanwilkar, J.])
Penal Code, 1860 – s.377 – History of s.377 – Laws in United
Kingdom and in United States, Discussed. (Per R.F. Nariman, J.) E

Penal Code, 1860 – s.377 – Constitutionality of – Held: s.377
was the product of the Victorian era, with its attendant puritanical
moral values – Victorian morality must give way to constitutional
morality – Constitutional morality is the soul of the Constitution,
which is to be found in the Preamble of the Constitution, which F
declares its ideals and aspirations, and is also to be found in Part
III of the Constitution, particularly with respect to those provisions
which assure the dignity of the individual – The rationale for s.377,
namely Victorian morality, has long gone and there is no reason to
continue with - as Justice Holmes said - a law merely for the sake of G
continuing with the law when the rationale of such law has long
since disappeared – s.377, insofar as it applies to same-sex
consenting adults, demeans them by having them prosecuted instead
of understanding their sexual orientation and attempting to correct
centuries of the stigma associated with such persons. (Per R.F.
Nariman, J.) H
382 SUPREME COURT REPORTS [2018] 7 S.C.R.

A Penal Code, 1860 – s.377 – Discrimination grounded on
stereotypes – Held: s.377 is the basis of persecution of members of
the LGBT community – The section rests on deep rooted gender
stereotypes – It perpetuates notions of morality which prohibit certain
relationships as being against the ‘order of nature’ – A criminal
provision has sanctioned discrimination grounded on stereotypes
B
imposed on an entire class of persons on grounds prohibited by
Art.15(1) – This constitutes discrimination on the grounds only of
sex and violates the guarantee of non-discrimination in Art.15(1) –
Constitution of India – Art.15(1). (Per Dr. D. Y. Chandrachud, J.)
Penal Code, 1860 – s.377 – Denial of sexual orientation is
C also a denial of the right to privacy – To deny the members of the
LGBT community the full expression of right to sexual orientation is
to deprive them of their entitlement to full citizenship under the
Constitution – By penalising sexual conduct between consenting
adults, s.377 imposes moral notions which are anachronistic to a
D constitutional order – While ostensibly penalising ‘acts’, it impacts
upon the identity of the LGBT community and denies them the benefits
of equal citizenship – s.377 is based on a stereotype about sex –
Our Constitution which protects sexual orientation must outlaw any
law which lends the authority of the state to obstructing its
fulfilment– Constitution of India – Art.21. (Per Dr. D.Y.
E Chandrachud, J.)
Penal Code, 1860 – s.377 – Creation of a class of criminals –
Held: Although s.377 prima facie appears to criminalise certain
acts or conduct, it creates a class of criminals, consisting of
individuals who engage in consensual sexual activity – It typecasts
F LGBTQ individuals as sex-offenders, categorising their consensual
conduct on par with sexual offences like rape and child molestation
– s.377 not only criminalises acts (consensual sexual conduct
between adults) which should not constitute crime, but also
stigmatises and condemns LGBTQ individuals in society. (Per
G Dr. D. Y. Chandrachud, J.)
Penal Code, 1860 – s.377 – Import and effect – Held: While
a consensual heterosexual relationship is permissible, a consensual
relationship between LGBT persons is considered to be ‘carnal’,
and against the order of nature – s.377 creates an artificial
H dichotomy – The natural or innate sexual orientation of a person
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 383
[DIPAK MISRA, CJI ]

cannot be a ground for discrimination – Where a legislation A
discriminates on the basis of an intrinsic and core trait of an
individual, it cannot form a reasonable classification based on an
intelligible differentia – Constitution of India – Reasonable
classification. (Per Indu Malhotra, J.)
Penal Code, 1860 – s.377 – In contemporary civilised B
jurisprudence, with States increasingly recognising the status of
same-sex relationships, it would be retrograde to describe such
relationships as being ‘perverse’, ‘deviant’, or ‘unnatural’. (Per
Indu Malhotra, J.)
Penal Code, 1860 – s.375 and 377 – While s.375 permits C
consensual penetrative acts (the definition of ‘penetration’ includes
oral and anal sex), s.377 makes the same acts of penetration
punishable irrespective of consent – This creates a dichotomy in
the law – Constitution of India – Art.14. (Per Indu Malhotra, J.)
Penal Code, 1860 – s.377 – History owes an apology to the D
members of LGBT community and their families, for the delay in
providing redressal for the ignominy and ostracism that they have
suffered through the centuries – The members of this community
were compelled to live a life full of fear of reprisal and persecution
– This was on account of the ignorance of the majority to recognise
that homosexuality is a completely natural condition, part of a range E
of human sexuality. (Per Indu Malhotra, J.)
Penal Code, 1860 – s.377 – s.377, insofar criminalising the
consensual sexual acts of adults in private, is violative of Arts.14,
15, 19, and 21 of the Constitution – Such consent must be free
consent, which is completely voluntary in nature, and devoid of F
any duress or coercion – The declaration of the said reading down
of s.377 shall not, however, lead to the re-opening of any concluded
prosecutions, but can certainly be relied upon in all pending matters
whether they are at the trial, appellate, or revisional stages – The
provisions of s.377 will continue to govern non-consensual sexual G
acts against adults, all acts of carnal intercouse against minors,
and acts of beastiality. (Per Indu Malhotra, J.)
Constitution of India – Interpretation of Constitution –
Concept of transformative Constitutionalism – Held: The
Constitution would become a stale and dead testament without
H
384 SUPREME COURT REPORTS [2018] 7 S.C.R.

A dynamic, vibrant and pragmatic interpretation – Constitutional
provisions have to be construed and developed in such a manner
that their real intent and existence percolates to all segments of the
society – Our Constitution has been perceived to be transformative
in the sense that the interpretation of its provisions should not be
limited to the mere literal meaning of its words; instead they ought
B
to be given a meaningful construction which is reflective of their
intent and purpose in consonance with the changing times –
Transformative constitutionalism not only includes within its wide
periphery the recognition of the rights and dignity of individuals
but also propagates the fostering and development of an atmosphere
C wherein every individual is bestowed with adequate opportunities
to develop socially, economically and politically – Discrimination
of any kind strikes at the very core of any democratic society –
When guided by transformative constitutionalism, the society is
dissuaded from indulging in any form of discrimination so that the
nation is guided towards a resplendent future – Lesbian, Gay,
D
Bisexual and Transgender (LGBT). (Per Dipak Misra, CJI [for
himself and Khanwilkar, J.])
Constitution of India – Constitutional morality – It is only
constitutional morality that can be allowed to permeate into the
Rule of Law – Constitutional morality embraces within its sphere
E several virtues, foremost of them being the espousal of a pluralistic
and inclusive society – The concept of constitutional morality urges
the organs of the State, including the Judiciary, to preserve the
heterogeneous nature of the society and to curb any attempt by the
majority to usurp the rights and freedoms of a smaller or minuscule
F section of the populace – Constitutional morality cannot be martyred
at the altar of social morality – The veil of social morality cannot
be used to violate fundamental rights of even a single individual,
for the foundation of constitutional morality rests upon the
recognition of diversity that pervades the society. (Per Dipak Misra,
CJI [for himself and Khanwilkar, J.])
G
Constitution of India – Right to live with dignity – The
Constitution has ladened the judiciary with the very important duty
to protect and ensure the right of every individual including the
right to express and choose without any impediments so as to enable
an individual to fully realize his/her fundamental right to live with
H
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 385
[DIPAK MISRA, CJI ]

dignity – Sexual orientation is one of the many biological phenomena A
which is natural and inherent in an individual and is controlled by
neurological and biological factors – The science of sexuality has
theorized that an individual exerts little or no control over who he/
she gets attracted to – Any discrimination on the basis of one’s
sexual orientation would entail a violation of the fundamental right
B
of freedom of expression. (Per Dipak Misra, CJI [for himself and
Khanwilkar, J.])
Constitution of India – Intention of constitutional framers was
never to grant protection of fundamental rights only to the majority
population – If such had been the intention, then all provisions in
Part III of the Constitution would have contained qualifying words C
such as ‘majority persons’ or ‘majority citizens’ – Instead, the
provisions have employed the words ‘any person’ and ‘any citizen’
making it manifest that the constitutional courts are under an
obligation to protect the fundamental rights of every single citizen
without waiting for the catastrophic situation when the fundamental D
rights of the majority of citizens get violated. (Per Dipak Misra,
CJI [for himself and Khanwilkar, J.])
Constitution of India – Sexual privacy and autonomy – Right
to privacy enables an individual to exercise his or her autonomy
away from the glare of societal expectations – In a liberal democracy, E
recognition of the individual as an autonomous person is an
acknowledgement of the State’s respect for the capacity of the
individual to make independent choices – Autonomy and privacy
are inextricably linked – Each requires the other for its full realization
– Sexual choices are an essential attribute of autonomy. (Per
Dr. D. Y. Chandrachud, J.) F

Constitution of India – Choice of partner – The choice of
whom to partner, the ability to find fulfilment in sexual intimacies
and the right not to be subjected to discriminatory behaviour are
intrinsic to the constitutional protection of sexual orientation. (Per
Dr. D. Y. Chandrachud, J.) G
Constitution of India – Right to health – Impact of s.377 on
right to health – The operation of s.377 denies consenting adults
the full realization of their right to health, as well as their sexual
rights – It forces consensual sex between adults into a realm of
fear and shame, as persons who engage in anal and oral intercourse H
386 SUPREME COURT REPORTS [2018] 7 S.C.R.

A risk criminal sanctions if they seek health advice – This lowers the
standard of health enjoyed by them and particularly by members of
sexual and gender minorities, in relation to the rest of society –
s.377 has had far-reaching consequences for this “key population”,
pushing them out of the public health system – Laws that criminalize
same-sex intercourse create social barriers to accessing healthcare,
B
and curb the effective prevention and treatment of HIV/AIDS –
Criminal laws are the strongest expression of the State’s power to
punish certain acts and behaviour, and it is, therefore, incumbent
upon the State to ensure full protection for all persons, including
the specific needs of sexual minorities – Penal Code, 1860 – s.377.
C (Per Dr. D. Y. Chandrachud, J.)
Constitution of India – Constitutional morality – The very
purpose of fundamental rights chapter in the Constitution of India
is to withdraw the subject of liberty and dignity of the individual
and place such subject beyond the reach of majoritarian
D governments so that constitutional morality can be applied by the
Supreme Court to give effect to the rights among others of discrete
and insular minorities. (Per R.F. Nariman, J.)
Constitution of India – Constitution morality – Held: The
Constitution assures to every individual the right to lead a dignified
E life – It prohibits discrimination within society – LGBT individuals
are equal citizens of India, that they cannot be discriminated against
and that they have a right to express themselves through their intimate
choices. (Per Dr. D. Y. Chandrachud, J.)
Constitution of India – Constitution morality and public
F morality – Difference between – Held: Under a regime of public
morality, the conduct of society is determined by popular perceptions
existent in society – The continuance of certain symbols, labels,
names or body shapes determine the notions, sentiments and mental
attitudes of the people towards individuals and things –
Constitutional morality, on the other hand, determines the mental
G attitude towards individuals and issues by the text and spirit of the
Constitution – It requires that the rights of an individual ought not
to be prejudiced by popular notions of society – It assumes that
citizens would respect the vision of the framers of the Constitution
and would conduct themselves in a way which furthers that vision –
H Constitutional morality reflects that the ideal of justice is an
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 387
[DIPAK MISRA, CJI ]

overriding factor in the struggle for existence over any other notion A
of social acceptance. (Per Dr. D. Y. Chandrachud, J.)
Constitution of India – Arts.14, 21 – Persons who are
homosexual have a fundamental right to live with dignity, which, in
the larger framework of the Preamble of India, will assure the
cardinal constitutional value of fraternity – Such groups are entitled B
to the protection of equal laws, and are entitled to be treated in
society as human beings without any stigma being attached to any
of them – All government officials, including and in particular police
officials, and other officers of the Union of India and the States, be
given periodic sensitization and awareness training of the plight of
such persons – LGBT – Homosexual. (Per R.F. Nariman, J.) C

Constitution of India – Art.14 – A classification which
discriminates between persons based on their innate nature, would
be violative of their fundamental rights, and cannot withstand the
test of constitutional morality – s.377 insofar as it criminalises
consensual sexual acts between adults in private, is not based on D
any sound or rational principle, since the basis of criminalisation
is the “sexual orientation” of a person, over which one has “little
or no choice” – Further, the phrase “carnal intercourse against
the order of nature” in s.377 as a determining principle in a penal
provision, is too open-ended, giving way to the scope for misuse E
against members of the LGBT community – Thus, apart from not
satisfying the twin-test under Art.14, s.377 is also manifestly
arbitrary, and hence violative of Art.14 of the Constitution. (Per
Indu Malhotra, J.)
Constitution of India – Art.15 – Term ‘sex’ as it occurs in F
Art.15, is not merely restricted to the biological attributes of an
individual, but also includes their “sexual identity and character”
– The prohibition against discrimination under Art.15 on the ground
of ‘sex’ should, therefore, encompass instances where such
discrimination takes place on the basis of one’s sexual orientation
– The LGBT community is a sexual minority which has suffered from G
unjustified and unwarranted hostile discrimination, and is equally
entitled to the protection afforded by Art.15. (Per Indu Malhotra, J.)
Constitution of India – Art.21 – LGBT, sexual orientation of –
Impediment of s.377 IPC – When biological expression, be it an
H
388 SUPREME COURT REPORTS [2018] 7 S.C.R.

A orientation or optional expression of choice, is faced with
impediment, albeit through any imposition of law, the individual’s
natural and constitutional right is dented – Such a situation urges
the conscience of the final constitutional arbiter to demolish the
obstruction and remove the impediment so as to allow the full
blossoming of the natural and constitutional rights of individuals –
B
Yogyakarta Principle. (Per Dipak Misra, CJI [for himself and
Khanwilkar, J.])
Constitution of India – Art.21 – Right to choose partner on
the basis of sexual orientation – Held: Sexual orientation is innate
to a human being – It is an important attribute of one’s personality
C and identity – Homosexuality and bisexuality are natural variants
of human sexuality – LGBT persons have little or no choice over
their sexual orientation – LGBT persons, like other heterosexual
persons, are entitled to their privacy, and the right to lead a dignified
existence, without fear of persecution – They are entitled to complete
D autonomy over the most intimate decisions relating to their personal
life, including the choice of their partners – Such choices must be
protected under Art.21 – The right to life and liberty would
encompass the right to sexual autonomy, and freedom of expression
– s.377 insofar as it curtails the personal liberty of LGBT persons
to engage in voluntary consensual sexual relationships with a
E partner of their choice, in a safe and dignified environment, is
violative of Art.21. (Per Indu Malhotra, J.)
Constitution of India – Art.21 – Right to privacy – s.377 affects
the private sphere of the lives of LGBT persons – It takes away the
decisional autonomy of LGBT persons to make choices consistent
F with their sexual orientation, which would further a dignified
existence and a meaningful life as a full person – s.377 prohibits
LGBT persons from expressing their sexual orientation and engaging
in sexual conduct in private, a decision which inheres in the most
intimate spaces of one’s existence. (Per Indu Malhotra, J.)
G Constitution of India – Art.21 – Right to health – LGBT persons
being a sexual minority have been subjected to societal prejudice,
discrimination and violence on account of their sexual orientation
– Since s.377 criminalises “carnal intercourse against the order of
nature” it compels LGBT persons to lead closeted lives – As a
H consequence, LGBT persons are seriously disadvantaged and
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 389
[DIPAK MISRA, CJI ]

prejudiced when it comes to access to health-care facilities – This A
results in serious health issues, including depression and suicidal
tendencies amongst members of this community. (Per Indu Malhotra, J.)
Constitution of India – Art.32 – Duty of constitutional Courts
– Held: It is expected from the courts as the final arbiter of the
Constitution to uphold the cherished principles of the Constitution B
and not to be remotely guided by majoritarian view or popular
perception – The Court has to be guided by the conception of
constitutional morality and not by the societal morality – Whenever
the constitutional Courts come across a situation of transgression
or dereliction in the sphere of fundamental rights, which are also
the basic human rights of a section, howsoever small part of the C
society, then it is for the constitutional Courts to ensure, with the
aid of judicial engagement and creativity, that constitutional morality
prevails over social morality. (Per Dipak Misra, CJI [for himself
and Khanwilkar, J.])
Doctrines/Principles – Doctrine of progressive realization and D
non-retrogression – The rationale behind the doctrine of progressive
realization of rights is the dynamic and ever growing nature of the
Constitution under which the rights have been conferred to the
citizenry – The State has an obligation to take appropriate measures
for the progressive realization of economic, social and cultural rights E
– The doctrine of progressive realization of rights, as a natural
corollary, gives birth to the doctrine of non-retrogression – As per
this doctrine, there must not be any regression of rights – The
doctrine of non-retrogression sets forth that the State should not
take measures or steps that deliberately lead to retrogression on the
enjoyment of rights either under the Constitution or otherwise – F
The two doctrines lead to the irresistible conclusion that if the law
enunciated in Suresh Koushal’s case is accepted, it would definitely
tantamount to a retrograde step in the direction of the progressive
interpretation of the Constitution and denial of progressive
realization of rights – The observation was made in Suresh Koushal G
that gays, lesbians, bisexuals and transgenders constitute a very
minuscule part of the population – Suresh Koushal’s view gets
wrongly embedded with the minuscule facet and assumes criminality
on the bedrock being guided by a sense of social morality – It
discusses about health which is no more a phobia and is further
H
390 SUPREME COURT REPORTS [2018] 7 S.C.R.

A moved by the popular morality while totally ignoring the concepts
of privacy, individual choice and the orientation – Orientation, in
certain senses, does get the neuro-impulse to express while seeing
the other gender – That apart, swayed by data, Suresh Koushal fails
to appreciate that the sustenance of fundamental rights does not
require majoritarian sanction – Thus, the ruling becomes sensitively
B
susceptible – LGBT – Penal Code, 1860 – s.377. (Per Dipak Misra,
CJI [for himself and Khanwilkar, J.])
Judicial review – Scope of – Where the validity of the law is
called into question, judicial review will extend to scrutinizing
whether the law is manifestly arbitrary in its encroachment on
C fundamental liberties – If a law discriminates against a group or a
community of citizens by denying them full and equal participation
as citizens, in the rights and liberties granted by the Constitution, it
would be for the Court to adjudicate upon validity of such a law.
(Per Dr. D. Y. Chandrachud, J.)
D Jurisprudence – Criminal Law Theories – ‘Bentham’s
Utilitarian Theory’ and ‘The Harm Principle’ – Discussed. (Per
Dr. D.Y. Chandrachud, J.)
Maxim – The latin maxim ‘cessant ratione legis, cessat ipsa lex’,
meaning when the reason for a law ceases, the law itself ceases is a
E rule of law – Parliament has unequivocally declared that the earlier
stigma attached to same-sex couples, as persons who are regarded
as mentally ill, has gone for good – Mental Healthcare Act, 2017 –
Penal Code, 1860 – s.377. (Per R.F. Nariman, J.)
Mental Healthcare Act, 2017 – s.3 – Homosexuality, whether
F a mental disorder – Medical and scientific authority has now
established that consensual same sex conduct is not against the
order of nature and that homosexuality is natural and a normal
variant of sexuality – Parliament has provided legislative
acknowledgment of this global consensus through this enactment –
G s.3 of the Act mandates that mental illness is to be determined in
accordance with ‘nationally’ or ‘internationally’ accepted medical
standards – The International Classification of Diseases (ICD-10)
by the World Health Organization is listed as an internationally
accepted medical standard and does not consider non-peno-vaginal
sex between consenting adults either a mental disorder or an illness
H – Penal Code, 1860 – s.377. (Per Dr. D. Y. Chandrachud, J.)
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 391
[DIPAK MISRA, CJI ]

LGBT – Members of the LGBT community are entitled, as all A
other citizens, to the full range of constitutional rights including
the liberties protected by the Constitution – Constitution of India.
(Per Dr. D. Y. Chandrachud, J.)
Legislation – Constitutional validity of a legislation – While
assessing whether a law infringes a fundamental right, it is not the B
intention of the lawmaker that is determinative, but whether the
effect or operation of the law infringes fundamental rights. (Per
Dr. D. Y. Chandrachud, J.)
Disposing of the writ petitions, the Court
HELD: C

Per Dipak Misra, CJI [for himself and Khanwilkar, J.] – 1.
The Constitution has been conceived of and designed in a manner
which acknowledges the fact that ‘change is inevitable’. It is the
duty of the courts to realize the constitutional vision of equal
rights in consonance with the current demands and situations D
and not to read and interpret the same as per the standards of
equality that existed decades ago. The judiciary cannot remain
oblivious to the fact that the society is constantly evolving and
many a variation may emerge with the changing times. There is
a constant need to transform the constitutional idealism into reality E
by fostering respect for human rights, promoting inclusion of
pluralism, bringing harmony, that is, unity amongst diversity,
abandoning the idea of alienation or some unacceptable social
notions built on medieval egos and establishing the cult of
egalitarian liberalism founded on reasonable principles that can
withstand scrutiny. [Para 86] [475-F-H; 476-A] F
National Legal Services Authority v. Union of India and
others (2014) 5 SCC 269; Ashok Kumar Gupta and
another v. State of U.P. and others (1997) 5 SCC 201:
[1997] 3 SCR 269; Video Electronics Pvt. Ltd. and
another v. State of Punjab and another (1990) 3 SCC G
87: [1989] 2 Suppl. SCR 731; Saurabh Chaudri and
others v. Union of India and others (2003) 11 SCC
146: [2003] 5 Suppl. SCR 152 – relied on
Childline India Foundation and another v. Allan John
Waters and others (2011) 6 SCC 261; Khanu v. Emperor H
392 SUPREME COURT REPORTS [2018] 7 S.C.R.

A AIR 1925 Sind 286; Lohana Vasantlal Devchand v. State
AIR 1968 Guj 252; State of Kerala v. Kundumkara
Govindan and another [1969] Cri LJ 818 (Ker); Calvin
Francis v. State of Orissa 1992 (1) OLR 316; Chief
Justice of Andhra Pradesh and others v. L.V.A. Dixitulu
and Others (1979) 2 SCC 34 : [1979] 1 SCR 26 –
B
referred to
Re: Same Sex Marriage [2004] 3 S.C.R. 698; State of
Missouri v. Holland 252 U.S. 416 (1920) – referred to
2.1 The concept of transformative constitutionalism has at
C its kernel a pledge to transform the Indian society so as to
embrace therein, in letter and spirit, the ideals of justice, liberty,
equality and fraternity as set out in the Preamble to our
Constitution. Transformation as a singular term is diametrically
opposed to something which is static and stagnant, rather it
signifies change, alteration and the ability to metamorphose.
D Thus, the concept of transformative constitutionalism, which is
an actuality with regard to all Constitutions and particularly so
with regard to the Indian Constitution, is, as a matter of fact, the
ability of the Constitution to adapt and transform with the changing
needs of the times. It is this ability of a Constitution to transform
E which gives it the character of a living and organic document. A
Constitution continuously shapes the lives of citizens in particular
and societies in general. Its exposition and energetic appreciation
by constitutional courts constitute the lifeblood of progressive
societies. The Constitution would become a stale and dead
testament without dynamic, vibrant and pragmatic interpretation.
F [Paras 96, 97] [479-C-G]
State of Kerala and another v. N.M. Thomas and others
AIR 1976 SC 490 : [1976] 1 SCR 906 – relied on
Road Accident Fund and another v. Mdeyide 2008 (1)
SA 535 (CC); Bato Star Fishing (Pty) Ltd v. Minister of
G Environmental Affairs and Tourism and others [2004]
ZACC 15; President of the Republic of South Africa v.
Hugo (1997) 6 B.C.L.R. 708 (CC) – referred to
2.2 Equality does not only imply recognition of individual
dignity but also includes within its sphere ensuring of equal
H opportunity to advance and develop their human potential and
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 393
[DIPAK MISRA, CJI ]

social, economic and legal interests of every individual and the A
process of transformative constitutionalism is dedicated to this
purpose. [Para 104] [482-A-B]
Shafin Jahan v. Asokan K.M. 2018 (5) SCALE 422 –
relied on
Albertyn & Goldblatt (1997) 6 B.C.L.R. 708 (CC); B
Investigating Directorate: Serious Economic Offences
and others v. Hyundai Motor Distributors (Pty) Ltd and
others: In Re Hyundai Motor Distributors (Pty) Ltd and
others v. Smit NO and others 2001 (1) SA 545 (CC) –
referred to C
3. Constitutional morality and Section 377 IPC
Whenever the constitutional courts come across a situation
of transgression or dereliction in the sphere of fundamental rights,
which are also the basic human rights of a section, howsoever
small part of the society, then it is for the constitutional courts to D
ensure, with the aid of judicial engagement and creativity, that
constitutional morality prevails over social morality. In the garb
of social morality, the members of the LGBT community must
not be outlawed or given a step-motherly treatment of malefactor
by the society. If this happens or if such a treatment to the LGBT E
community is allowed to persist, then the constitutional courts,
which are under the obligation to protect the fundamental rights,
would be failing in the discharge of their duty. A failure to do so
would reduce the citizenry rights to a cipher. [Paras 121, 122]
[487-F-H]
F
Government of NCT of Delhi v. Union of India and
Others 2018 (8) SCALE 72 – relied on
4. Perspective of human dignity
4.1 The fundamental idea of dignity is regarded as an
inseparable facet of human personality. Dignity has been duly G
recognized as an important aspect of the right to life under Article
21 of the Constitution. In the international sphere, the right to
live with dignity had been identified as a human right way back in
1948 with the introduction of the Universal Declaration of Human
Rights. Dignity is that component of one’s being without which
H
394 SUPREME COURT REPORTS [2018] 7 S.C.R.

A sustenance of his/her being to the fullest or completest is
inconceivable. Dignity while expressive of choice is averse to
creation of any dent. When biological expression, be it an
orientation or optional expression of choice, is faced with
impediment, albeit through any imposition of law, the individual’s
natural and constitutional right is dented. Such a situation urges
B
the conscience of the final constitutional arbiter to demolish the
obstruction and remove the impediment so as to allow the full
blossoming of the natural and constitutional rights of individuals.
This is the essence of dignity. [Paras 127, 132] [489-C-D; 490-F,
G-H; 491-A]
C Maneka Gandhi v. Union of India and another (1978)
1 SCC 248: [1978] 2 SCR 621 – relied on
Law v. Canada (Minister of Employment and
Immigration) [1999] 1 S.C.R. 497 – referred to
4.2 It is not only the duty of the State and the Judiciary to
D protect basic right to dignity, but the collective at large also owes
a responsibility to respect one another’s dignity, for showing
respect for the dignity of another is a constitutional duty. It is an
expression of the component of constitutional fraternity. The
concept of dignity gains importance in the present scenario, for a
E challenge has been raised to a provision of law which encroaches
upon this essential right of a severely deprived section of our
society. An individual’s choice to engage in certain acts within
their private sphere has been restricted by criminalising the same
on account of the age old social perception. To harness such an
essential decision, which defines the individualism of a person,
F by tainting it with criminality would violate the individual’s right
to dignity by reducing it to mere letters without any spirit. [Paras
134, 135] [491-F-H; 492-A]
P v. S Judgment of 30 April 1996; P v S and Cornwall
County Council Case C-13/94; Planned Parenthood of
G Southeastern Pa. v. Casey 505 U.S. 833 (1992) –
referred to
5. Homosexuality is something that is based on sense of
identity. It is the reflection of a sense of emotion and expression
of eagerness to establish intimacy. It is just as much ingrained,
H inherent and innate as heterosexuality. Sexual orientation, as a
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 395
[DIPAK MISRA, CJI ]

concept, fundamentally implies a pattern of sexual attraction. It A
is as natural a phenomenon as other natural biological phenomena.
What the science of sexuality has led to is that an individual has
the tendency to feel sexually attracted towards the same sex, for
the decision is one that is controlled by neurological and biological
factors. That is why it is his/her natural orientation which is innate
B
and constitutes the core of his/her being and identity. That apart,
on occasions, due to a sense of mutuality of release of passion,
two adults may agree to express themselves in a different sexual
behaviour which may include both the genders. To this, one can
attribute a bisexual orientation which does not follow the rigidity
but allows room for flexibility. To compel a person having a certain C
sexual orientation to proselytize to another is like asking a body
part to perform a function it was never designed to perform in
the first place. It is pure science, a certain manner in which the
brain and genitals of an individual function and react. Whether
one’s sexual orientation is determined by genetic, hormonal,
D
developmental, social and/or cultural influences (or a combination
thereof), most people experience little or no sense of choice about
their sexual orientation. [Paras 143, 144] [494-G; 495-A-B, C-D]
K.S. Puttaswamy and another v. Union of India and
others (2017) 10 SCC 1 – followed
E
James Egan and John Norris Nesbit v. Her Majesty The
Queen in Right of Canada and another [1995] 2 SCR
513 – referred to
6. Privacy and its concomitant aspects
F
6.1 Within the compartment of privacy, individual autonomy
has a significant space. Autonomy is individualistic. It is expressive
of self-determination and such self-determination includes sexual
orientation and declaration of sexual identity. Such an orientation
or choice that reflects an individual’s autonomy is innate to him/
her. It is an inalienable part of his/her identity. The said identity G
under the constitutional scheme does not accept any interference
as long as its expression is not against decency or morality. And
the morality that is conceived of under the Constitution is
constitutional morality. Under the autonomy principle, the
individual has sovereignty over his/her body. He/she can
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396 SUPREME COURT REPORTS [2018] 7 S.C.R.

A surrender his/her autonomy wilfully to another individual and their
intimacy in privacy is a matter of their choice. Such concept of
identity is not only sacred but is also in recognition of the
quintessential facet of humanity in a person’s nature. The
autonomy establishes identity and the said identity, in the ultimate
eventuate, becomes a part of dignity in an individual. [Para 149]
B
[497-C-E]
R. Rajagopal v. State of Tamil Nadu and others (1994)
6 SCC 632 : [1994] 4 Suppl. SCR 353 – relied on
6.2 There can be no doubt that an individual also has a
C right to a union under Article 21 of the Constitution. As a concept,
union also means companionship in every sense of the word, be
it physical, mental, sexual or emotional. The LGBT community
is seeking realisation of its basic right to companionship, so long
as such a companionship is consensual, free from the vice of
deceit, force, coercion and does not result in violation of the
D fundamental rights of others. [Para 155] [498-G; 499-A]
Bowers, Attorney General of Georgia v. Hardwick et
al. 478 U.S. 186 (1986); Paris Adult Theatre I v. Slaton
413 U.S. 49 (1973); A.R. Coeriel and M.A.R. Aurik v.
The Netherlands Communication No. 453/1991;
E Toonen v. Australia Communication No. 488/1992,
U.C. Doc CCPR/C/50/D 488/ 1992, March 31, 1994;
Dudgeon v. United Kingdom [1981] 4 EHRR 149 –
referred to
6.3 The observation made in Suresh Koushal that gays,
F lesbians, bisexuals and transgenders constitute a very minuscule
part of the population is perverse due to the very reason that
such an approach would be violative of the equality principle
enshrined under Article 14 of the Constitution. The mere fact
that the percentage of population whose fundamental right to
privacy is being abridged by the existence of Section 377 in its
G
present form is low does not impose a limitation upon this Court
from protecting the fundamental rights of those who are so affected
by Section 377 IPC. The constitutional framers could have never
intended that the protection of fundamental rights was only for
the majority population. If such had been the intention, then all
H provisions in Part III of the Constitution would have contained
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 397
[DIPAK MISRA, CJI ]

qualifying words such as ‘majority persons’ or ‘majority citizens’. A
Instead, the provisions have employed the words ‘any person’
and ‘any citizen’ making it manifest that the constitutional courts
are under an obligation to protect the fundamental rights of every
single citizen without waiting for the catastrophic situation when
the fundamental rights of the majority of citizens get violated. A
B
second count on which the view in Suresh Koushal becomes highly
unsustainable is that the language of both Articles 32 and 226 of
the Constitution is not reflective of such an intention. A cursory
reading of both the Articles divulges that the right to move the
Supreme Court and the High Courts under Articles 32 and 226
respectively is not limited to a situation when there is violation C
of the fundamental rights of a large chunk of populace. [Paras
169, 170, 172] [503-D-F; 504-C-D]
D.K. Basu v. State of W.B. (1997) 1 SCC 416 : [1996]
10 Suppl. SCR 284; Chiranjit Lal Chowdhury v. Union
of India [1950] 1 SCR 869 – relied on D
7.1 The Doctrine of progressive realization of rights
invariably reminds about the living and dynamic nature of a
Constitution. The rationale behind the doctrine of progressive
realization of rights is the dynamic and ever growing nature of
the Constitution under which the rights have been conferred to E
the citizenry. The constitutional courts have to recognize that
the constitutional rights would become a dead letter without their
dynamic, vibrant and pragmatic interpretation. Therefore, it is
necessary for the constitutional courts to inculcate in their judicial
interpretation and decision making a sense of engagement and a
sense of constitutional morality so that they, with the aid of judicial F
creativity, are able to fulfill their foremost constitutional obligation,
that is, to protect the rights bestowed upon the citizens of our
country by the Constitution. The doctrine of progressive
realization of rights, as a natural corollary, gives birth to the
doctrine of non-retrogression. As per this doctrine, there must G
not be any regression of rights. In a progressive and an ever-
improving society, there is no place for retreat. The society has
to march ahead. The doctrine of non-retrogression sets forth that
the State should not take measures or steps that deliberately
lead to retrogression on the enjoyment of rights either under the
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398 SUPREME COURT REPORTS [2018] 7 S.C.R.

A Constitution or otherwise. [Paras 178, 183, 184, 188, 189] [505-
D-E; 507-G-H; 508-A-B; 509-C]
McCulloch v. Maryland (1816) 17 US 316; Kazenbach
v. Morgan (1966) 384 US 641 – referred to
7.2 The two doctrines lead to the irresistible conclusion
B that if the law enunciated in Suresh Koushal’s case is accepted, it
would definitely tantamount to a retrograde step in the direction
of the progressive interpretation of the Constitution and denial
of progressive realization of rights. It is because Suresh Koushal’s
view gets wrongly embedded with the minuscule facet and
C assumes criminality on the bedrock being guided by a sense of
social morality. It discusses about health which is no more a phobia
and is further moved by the popular morality while totally ignoring
the concepts of privacy, individual choice and the orientation.
Orientation, in certain senses, does get the neuro-impulse to
express while seeing the other gender. That apart, swayed by
D data, Suresh Koushal fails to appreciate that the sustenance of
fundamental rights does not require majoritarian sanction. [Para
190] [509-D-F]
Obergefell, et al. v. Hodges, Director, Ohio Department
of Health, et al. 576 US (2015), Price Waterhouse v.
E Hopkins 490 U.S. 228 (1989); Kimberly Hively v. Ivy
Tech Community College of Indiana 830 F.3d 698;
Lawrence v. Texas 539 U.S. 558 (2003); Roberts v.
United States Jaycees 468 U.S. 609 (1984); Delwin
Vriend and others v. Her Majesty the Queen in Right of
F Alberta and others [1998] 1 SCR 493; Euan Sutherland
v. United Kingdom 2001 ECHR 234; Ang Ladlad LGBT
Party v. Commission of Elections G. R. No.190582,
Supreme Court of Philippines (2010) – referred to
Black’s Law Dictionary, 2nd edn. – referred to
G 8. Comparative analysis of Section 375 and Section 377 IPC
8.1 A cursory reading of Section 375 IPC divulges that it is
a gender specific provision for the protection of women as only a
man can commit the offence of rape. The Section has been divided
into two parts. The former part, comprising of Clauses (a) to (d),
H simply describes what acts committed by a man with a woman
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 399
[DIPAK MISRA, CJI ]

would amount to rape provided that the said acts are committed A
in the circumstances falling under any of the seven descriptions
as stipulated by the latter part of the Section. It is in this way that
the latter part of Section 375 IPC becomes important as it lays
down the circumstances, either of which must be present, for an
act committed by a man with a woman to come within the sweep
B
of the offence of rape. [Paras 206, 207] [517-B; 518-F-H]
8.2 Explanation 2 to Section 375 IPC gives the definition of
consent for the purpose of Section 375 to the effect that consent
means an unequivocal voluntary agreement by the woman through
words, gestures or any form of verbal or non-verbal
communication whereby she communicates her willingness to C
participate in any of the sexual acts described in the former part
of Section 375 IPC. The element of absence of consent is firmly
ingrained in all the descriptions contained in the latter part of
Section 375 IPC and the absence of a willful and informed consent
is sine qua non to designate the acts contained in the former part D
of Section 375 IPC as rape. [Paras 209, 210] [519-F-G, H; 520-
A]
8.3 Section 377 IPC, unlike Section 375, is a gender-neutral
provision as it uses the word ‘whoever’. Another expression
which has been employed in Section 377 is ‘against the order of E
nature’. The phrase ‘against the order of nature’ has neither been
defined in Section 377 IPC nor in any other provision of the IPC.
The foundation on which Section 377 IPC makes carnal
intercourse an offence is the precept that such carnal intercourse
is against the order of nature. [Paras 212, 213] [520-D, E-F]
F
8.4. With the passage of time and evolution of the society,
procreation is not the only reason for which people choose to
come together, have live-in relationships, perform coitus or even
marry. They do so for a whole lot of reasons including emotional
companionship. It is the freedom of choice of two consenting
adults to perform sex for procreation or otherwise and if their G
choice is that of the latter, it cannot be said to be against the
order of nature. Therefore, sex, if performed differently, as per
the choice of the consenting adults, does not per se make it against
the order of nature. Section 377 criminalises even voluntary carnal
intercourse not only between homosexuals but also between H
400 SUPREME COURT REPORTS [2018] 7 S.C.R.

A heterosexuals. The major difference between the language of
Section 377 and Section 375 is that of the element of absence
consent which has been elaborately incorporated in the seven
descriptions contained in the latter part of Section 375 IPC. It is
the absence of willful and informed consent embodied in the seven
descriptions to Section 375 which makes the offence of rape
B
criminal. On the other hand, Section 377 IPC contains no such
descriptions/exceptions embodying the absence of willful and
informed consent and criminalises even voluntary carnal
intercourse both between homosexuals as well as between
heterosexuals. The legislature, in its wisdom, while enacting
C Section 375 IPC in its amended form after the Criminal Law
(Amendment) Act, 2013, has not employed the words “subject
to any other provision of the IPC”. The implication of the absence
of these words simply indicates that Section 375 IPC which does
not criminalize consensual carnal intercourse between
heterosexuals is not subject to Section 377 IPC. [Paras 215, 216,
D
217, 218] [521-A, C-H]
9. Despite the Criminal Law (Amendment) Act, 2013
coming into force, by virtue of which Section 375 was amended,
whereby the words ‘sexual intercourse’ in Section 375 were
replaced by four elaborate clauses from (a) to (d) giving a wide
E definition to the offence of rape, Section 377 IPC still remains in
the statute book in the same form. Such an anomaly, if allowed to
persist, may result in a situation wherein a heterosexual couple
who indulges in carnal intercourse with the willful and informed
consent of each other may be held liable for the offence of unnatural
F sex under Section 377 IPC, despite the fact that such an act would
not be rape within the definition as provided under Section 375
IPC. Drawing an analogy, if consensual carnal intercourse between
a heterosexual couple does not amount to rape, it definitely should
not be labelled and designated as unnatural offence under Section
377 IPC. If any proclivity amongst the heterosexual population
G towards consensual carnal intercourse has been allowed due to
the Criminal Law (Amendment) Act, 2013, such kind of proclivity
amongst any two persons including LGBT community cannot be
treated as untenable so long as it is consensual and it is confined
within their most private and intimate spaces. [Paras 220, 221]
H [522-B-E]
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10. The litmus test for survival of Section 377 IPC A
10.1 When the liberty of even a single person of the society
is smothered under some vague and archival stipulation that it is
against the order of nature or under the perception that the
majority population is peeved when such an individual exercises
his/her liberty despite the fact that the exercise of such liberty is B
within the confines of his/her private space, then the signature of
life melts and living becomes a bare subsistence and resultantly,
the fundamental right of liberty of such an individual is abridged.
[Para 230] [525-A-B]
Sunil Batra v. Delhi Administration and others [1979] C
1 SCR 392 – relied on
10.2 What Article 14 propounds is that ‘all like should be
treated alike’. In other words, it implies equal treatment for all
equals. Though the legislature is fully empowered to enact laws
applicable to a particular class, as in the case at hand in which D
Section 377 applies to citizens who indulge in carnal intercourse,
yet the classification, including the one made under Section 377
IPC, has to satisfy the twin conditions to the effect that the
classification must be founded on an intelligible differentia and
the said differentia must have a rational nexus with the object
sought to be achieved by the provision, that is, Section 377 IPC. E
A perusal of Section 377 IPC reveals that it classifies and penalizes
persons who indulge in carnal intercourse, with the object to
protect women and children from being subjected to carnal
intercourse. This classification does not have a reasonable nexus
with the object sought to be achieved as the non-consensual acts F
which have been criminalized by virtue of Section 377 IPC have
already been designated as penal offences under Section 375 IPC
and under the POCSO Act. Per contra, the presence of this Section
in its present form has resulted in a distasteful and objectionable
collateral effect whereby even ‘consensual acts’, which are
neither harmful to children nor women and are performed by a G
certain class of people (LGBTs) owning to some inherent
characteristics defined by their identity and individuality, have
been woefully targeted. This discrimination and unequal treatment
meted out to the LGBT community as a separate class of citizens
H
402 SUPREME COURT REPORTS [2018] 7 S.C.R.

A is unconstitutional for being violative of Article 14 of the
Constitution. [Para 233, 237] [525-G; 526-A-B; 527-B-D]
M. Nagaraj and others v. Union of India and Others
AIR 2007 SC 71 : (2006) 8 SCC 212: [2006] 7 Suppl.
SCR 336; E.P. Royappa v. State of Tamil Nadu and
B another (1974) 4 SCC 3: [1974] 2 SCR 348; Budhan
Choudhry v. The State of Bihar AIR 1955 SC 191 :
[1955] SCR 1045 – relied on
10.3 Section 377 fails to make a distinction between
consensual and non-consensual sexual acts between competent
C adults. Further, Section 377 IPC fails to take into account that
consensual sexual acts between adults in private space are neither
harmful nor contagious to the society. On the contrary, Section
377 trenches a discordant note in respect of the liberty of persons
belonging to the LGBT community by subjecting them to societal
pariah and dereliction. The Section also interferes with consensual
D acts of competent adults in private space. Sexual acts cannot be
viewed from the lens of social morality or that of traditional
precepts wherein sexual acts were considered only for the purpose
of procreation. This being the case, Section 377 IPC, so long as
it criminalises consensual sexual acts of whatever nature between
E competent adults, is manifestly arbitrary. The LGBT community
possess the same human, fundamental and constitutional rights
as other citizens do since these rights inhere in individuals as
natural and human rights. The organisation of intimate relations
is a matter of complete personal choice especially between
consenting adults. It is a vital personal right falling within the
F private protective sphere and realm of individual choice and
autonomy. Such progressive proclivity is rooted in the
constitutional structure and is an inextricable part of human
nature. [Paras 238, 239, 240] [527-H; 528-A-D, E-H]
Chintaman Rao v. State of Madhya Pradesh AIR 1951
G SC 118 : [1950] SCR 759; S. Rangarajan v. P. Jagjivan
Ram and Others (1989) 2 SCC 574 : [1989] 2 SCR
204; Shreya Singhal v. Union of India (2015) 5 SCC 1
: [2015] 5 SCR 963 – relied on

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[DIPAK MISRA, CJI ]

11.1 Section 377 IPC takes within its fold private acts of A
adults including the LGBT community which are not only
consensual but are also innocent, as such acts neither cause
disturbance to the public order nor are they injurious to public
decency or morality. The law is et domus sua cuique est tutissimum
refugium – A man’s house is his castle. That apart, any display of
B
affection amongst the members of the LGBT community towards
their partners in the public so long as it does not amount to
indecency or has the potentiality to disturb public order cannot
be bogged down by majority perception. Section 377 IPC amounts
to unreasonable restriction as it makes carnal intercourse
between consenting adults within their castle a criminal offence C
which is manifestly not only overboard and vague but also has a
chilling effect on an individual’s freedom of choice. [Paras 245,
246] [530-B, D]
11.2 Section 377 IPC does not meet the criteria of
proportionality and is violative of the fundamental right of freedom D
of expression including the right to choose a sexual partner.
Section 377 IPC also assumes the characteristic of
unreasonableness, for it becomes a weapon in the hands of the
majority to seclude, exploit and harass the LGBT community. It
shrouds the lives of the LGBT community in criminality and
constant fear mars their joy of life. They constantly face social E
prejudice, disdain and are subjected to the shame of being their
very natural selves. Thus, an archaic law which is incompatible
with constitutional values cannot be allowed to be preserved.
The very existence of Section 377 IPC criminalising transgenders
casts a great stigma on an already oppressed and discriminated F
class of people. This stigma, oppression and prejudice has to be
eradicated and the transgenders have to progress from their
narrow claustrophobic spaces of mere survival in hiding with their
isolation and fears to enjoying the richness of living out of the
shadows with full realization of their potential and equal
opportunities in all walks of life. [Paras 247, 249] [530-E-G; 531- G
A-B]
Shayara Bano v. Union of India and Others (2017) 9
SCC 1: [2017] 3 SCR 630 – relied on

H
404 SUPREME COURT REPORTS [2018] 7 S.C.R.

A Suresh Kumar Koushal and another v. Naz Foundation
and others (2014) 1 SCC 1 : [2013] 17 SCR 1019 –
overruled
Naz Foundation v. Government of NCT of Delhi and
others (2009) 111 DRJ 1; Indra Sarma v. V.K.V. Sarma
B (2013) 15 SCC 755 : [2013] 14 SCR 1019; Shakti
Vahini v. Union of India and others (2018) 7 SCC 192;
Manoj Narula v. Union of India (2014) 9 SCC 1 :
[2014] 9 SCR 965; Francis Coralie Mullin v.
Administrator, Union Territory of Delhi and others
(1981) 1 SCC 608 : [1981] 2 SCR 516; Common Cause
C (A Registered Society) v. Union of India and another
(2018) 5 SCC 1; Anuj Garg and others v. Hotel
Association of India and others (2008) 3 SCC 1 : [2007]
12 SCR 991; S. Khushboo v. Kanniammal and another
(2010) 5 SCC 600 : [2010] 5 SCR 322; Kishore Samrite
D v. State of U.P. and others (2013) 2 SCC 398 : [2012]
9 SCR 733; Umesh Kumar v. State of Andhra Pradesh
and another (2013) 10 SCC 591 : [2013] 14 SCR 213;
Iqbal Singh Marwah and another v. Meenakshi
Marwah and another (2005) 4 SCC 370 : [2005]
2 SCR 708; K.A. Abbas v. Union of India and another
E (1970) 2 SCC 780 : [1971] 2 SCR 446; Rt. Rev. Msgr.
Mark Netto v. State of Kerala and others (1979) 1 SCC
23 : [1979] 1 SCR 609; Fazal Rab Choudhary v. State
of Bihar (1982) 3 SCC 9; Jagmohan Singh v. State of
U.P. (1973) 1 SCC 20 : [1973] 2 SCR 541; State of
F Gujarat v. Mirzapur Moti Kureshi Kassab Jamat and
others (2005) 8 SCC 534 : [2005] 4 Suppl. SCR 582;
Kesavananda Bharati v. Union of India (1973) 4 SCC
225 : [1973] Suppl. SCR1; Sakshi v. Union of India
and others (2004) 5 SCC 518 : [2004] 2 Suppl.
SCR 723; Union of India and another v. Deoki Nandan
G Aggarwal (1992) Supp. 1 SCC 323 : [1991] 3 SCR 873
– referred to
Mosley v. News Group Newspapers Ltd. [2008] EWHC
1777 (QB) – referred to

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NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 405
[DIPAK MISRA, CJI ]

Per R. F. Nariman, J. 1.1 At one point of time, the thinking A
in Victorian England and in America was that homosexuality was
a mental disorder. The definition of ‘mental illness’ in the Mental
Healthcare Act, 2017 throw s to the winds all earlier
misconceptions of mental illness including the fact that same-
sex couples who indulge in anal sex are persons with mental
B
illness. [Para 68] [577-E-F]
Lawrence v. Texas 539 U.S. 558 (2003); Obergefell etal
v. Hodges, Director, Ohio Department of Health, et al.,
576 US (2015) – referred to
1.2 Mental illness in our statute has to keep pace with C
international notions and accepted medical standards including
the latest edition of the International Classification of Diseases
of the World Health Organization under Section 3(1) of the Act.
Under Section 3(3), mental illness shall not be determined on
the basis of social status or membership of a cultural group or for
any other reason not directly relevant to the mental health of the D
person. More importantly, mental illness shall not be determined
on the basis of non-conformity with moral, social, cultural, work
or political values or religious beliefs prevailing in a person’s
community. It is thus clear that Parliament has unequivocally
declared that the earlier stigma attached to same-sex couples, E
as persons who are regarded as mentally ill, has gone for good.
The latin maxim cessant ratione legis, cessat ipsa lex, meaning
when the reason for a law ceases, the law itself ceases is a rule of
law. [Paras 73, 78] [583-C-D; 585-C-D]
H.H. Shri Swamiji of Shri Amar Mutt v. Commissioner, F
Hindu Religious and Charitable Endowments Dept
(1979) 4 SCC 642 : [1980] 1 SCR 368; State of Punjab
v. Devans Modern Breweries Ltd. (2004) 11 SCC 26
: [2003] 5 Suppl. SCR 930 – relied on
Suresh Kumar Koushal and Anr. v. Naz Foundation and G
Ors. (2014) 1 SCC 1 : [2013] 17 SCR 116 – overruled
1.3 Section 377 was the product of the Victorian era, with
its attendant puritanical moral values. Victorian morality must
give way to constitutional morality. Constitutional morality is the
soul of the Constitution, which is to be found in the Preamble of
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406 SUPREME COURT REPORTS [2018] 7 S.C.R.

A the Constitution, which declares its ideals and aspirations, and is
also to be found in Part III of the Constitution, particularly with
respect to those provisions which assure the dignity of the
individual. The rationale for Section 377, namely Victorian
morality, has long gone and there is no reason to continue with -
as Justice Holmes said - a law merely for the sake of continuing
B
with the law when the rationale of such law has long since
disappeared. Section 377, insofar as it applies to same-sex
consenting adults, demeans them by having them prosecuted
instead of understanding their sexual orientation and attempting
to correct centuries of the stigma associated with such persons.
C [Paras 78, 79] [585-D-F, G-H]
K.S. Puttaswamy (Retd.) and Anr. v. Union of India and
Ors. (2017) 10 SCC 1 – followed.
S. Khushboo v. Kanniammal and Anr. (2010) 5 SCC
600 : [2010] 5 SCR 322 – relied on
D
2. Section 377, in penalizing consensual gay sex, is
manifestly arbitrary. Given modern psychiatric studies and
legislation which recognizes that gay persons and transgenders
are not persons suffering from mental disorder and cannot
therefore be penalized, the Section must be held to be a provision
E which is capricious and irrational. Also, roping in such persons
with sentences going upto life imprisonment is clearly excessive
and disproportionate, as a result of which, when applied to such
persons, Articles 14 and 21 of the Constitution would clearly be
violated. The object sought to be achieved by the provision,
F namely to enforce Victorian mores upon the citizenry of India,
would be out of tune with the march of constitutional events that
has since taken place, rendering the said object itself
discriminatory when it seeks to single out same-sex couples and
transgenders for punishment. [Para 82] [587-C-E]

G Shayara Bano v. Union of India (2017) 9 SCC 1;
Shreya Singhal v. Union of India (2015) 5 SCC 1 :
[2015] 5 SCR 963 – relied on
3. The International Commission of Jurists and the
International Service for Human Rights on behalf of a coalition of
human rights organizations had undertaken a project to develop
H
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 407
[DIPAK MISRA, CJI ]

a set of international legal principles on the application of A
international law to human rights violations based on sexual
orientation and gender identity to bring greater clarity and
coherence to States’ human rights obligations. A distinguished
group of human rights experts drafted, developed, discussed and
refined these Principles. Following an experts’ meeting held at
B
Gadjah Mada University in Yogyakarta, Indonesia from 6th to 9th
November, 2006, 29 distinguished experts from 25 countries with
diverse backgrounds and expertise relevant to issues of human
rights law unanimously adopted the Yogyakarta Principles on the
Application of International Human Rights Law in relation to Sexual
Orientation and Gender Identity. These principles give further C
content to the fundamental rights contained in Articles 14, 15, 19
and 21, and viewed in the light of these principles also, Section
377 will have to be declared to be unconstitutional. [Paras 85,
86, 88] [588-B-E; 598-F-F-G]
4.1 The view of Suresh Kumar Koushal is not correct. D
Suresh Kumar Koushal’s judgment first begins with the
presumption of constitutionality attaching to pre-constitutional
laws, such as the Indian Penal Code. The judgment goes on to
state that pre-constitutional laws, which have been adopted by
Parliament and used with or without amendment, being
manifestations of the will of the people of India through Parliament, E
are presumed to be constitutional. [Para 89] [595-G-H; 596-A]
4.2 Article 372 of the Constitution of India continues laws
in force in the territory of India immediately before the
commencement of the Constitution. The Indian Penal Code is a
law in force in the territory of India immediately before the F
commencement of this Constitution. Under Article 372(2), the
President may, by order, make such adaptations and modifications
of an existing law as may be necessary or expedient to bring
such law in accord with the provisions of the Constitution. The
fact that the President has not made any adaptation or modification G
as mentioned in Article 372(2) does not take the matter very
much further. The presumption of constitutionality of a statute is
premised on the fact that Parliament understands the needs of
the people, and that, as per the separation of powers doctrine,
Parliament is aware of its limitations in enacting laws – it can only
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408 SUPREME COURT REPORTS [2018] 7 S.C.R.

A enact laws which do not fall within List II of Schedule VII of the
Constitution of India, and cannot transgress the fundamental
rights of the citizens and other constitutional provisions in doing
so. Parliament is, therefore, deemed to be aware of the aforesaid
constitutional limitations. Where, however, a pre-constitution law
is made by either a foreign legislature or body, none of these
B
parameters obtain. It is, therefore, clear that no such presumption
attaches to a pre-constitutional statute like the Indian Penal Code.
[Para 90] [596-B-E]
New Delhi Municipal Council v. State of Punjab and
Ors. (1997) 7 SCC 339 : [1996] 10 Suppl. SCR 472 –
C disapproved
4.3 In Suresh Kumar Koushal, the Court held that the fact
that the legislature has chosen not to amend the law, despite the
172 nd Law Commission Report specifically recommending
deletion of Section 377, may indicate that Parliament has not
D thought it proper to delete the said provision, is another reason
for not invalidating Section 377. This view is not accepted when
the Union of India admittedly did not challenge the Delhi High
Court judgment striking down the provision in part. Secondly,
the fact that Parliament may or may not have chosen to follow a
E Law Commission Report does not guide the Court’s
understanding of its character, scope, ambit and import as was
stated in Suresh Kumar Koushal. It is a neutral fact which need
not be taken into account at all. All that the Court has to see is
whether constitutional provisions have been transgressed and if
so, as a natural corollary, the death knell of the challenged
F provision must follow. [Para 92] [597-D-F]
5.1 After 2013, when Section 375 was amended so as to
include anal and certain other kinds of sexual intercourse between
a man and a woman, which would not be criminalized as rape if it
was between consenting adults, it is clear that if Section 377
G continues to penalize such sexual intercourse, an anomalous
position would result. A man indulging in such sexual intercourse
would not be liable to be prosecuted for rape but would be liable
to be prosecuted under Section 377. Further, a woman who could,
at no point of time, have been prosecuted for rape would, despite
H her consent, be prosecuted for indulging in anal or such other
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 409
[DIPAK MISRA, CJI ]

sexual intercourse with a man in private under Section 377. This A
would render Section 377, as applied to such consenting adults,
as manifestly arbitrary as it would be wholly excessive and
disproportionate to prosecute such persons under Section 377
when the legislature has amended one portion of the law in 2013,
making it clear that consensual sex, as described in the amended
B
provision, between two consenting adults, one a man and one a
woman, would not be liable for prosecution. If, by having regard
to what has been said above, Section 377 has to be read down as
not applying to anal and such other sex by a male-female couple,
then the Section will continue to apply only to homosexual sex. If
this be the case, the Section will offend Article 14 as it will C
discriminate between heterosexual and homosexual adults which
is a distinction which has no rational relation to the object sought
to be achieved by the Section - namely, the criminalization of all
carnal sex between homosexual and/or heterosexual adults as
being against the order of nature. Viewed either way, the Section
D
falls foul of Article 14. [Para 94] [597-G-H; 598-A-D]
5.2 The fact that only a minuscule fraction of the country’s
population constitutes lesbians and gays or transgenders, and
that in the last 150 years less than 200 persons have been
prosecuted for committing the offence under Section 377, is
neither here nor there. When it is found that privacy interests E
come in and the State has no compelling reason to continue an
existing law which penalizes same-sex couples who cause no harm
to others, on an application of the recent judgments delivered by
this Court after Suresh Kumar Koushal, it is clear that Articles
14, 15, 19 and 21 have all been transgressed without any F
legitimate state rationale to uphold such provision. [Para 95] [598-
E-F]
6. Persons who are homosexual have a fundamental right
to live with dignity, which, in the larger framework of the Preamble
of India, will assure the cardinal constitutional value of fraternity. G
Such groups are entitled to the protection of equal laws, and are
entitled to be treated in society as human beings without any
stigma being attached to any of them. Section 377 insofar as it
criminalises homosexual sex and transgender sex between
consenting adults is unconstitutional. The Union of India shall
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410 SUPREME COURT REPORTS [2018] 7 S.C.R.

A take all measures to ensure that this judgment is given wide
publicity through the public media, which includes television,
radio, print and online media at regular intervals, and initiate
programs to reduce and finally eliminate the stigma associated
with such persons. Above all, all government officials, including
and in particular police officials, and other officers of the Union of
B
India and the States, be given periodic sensitization and awareness
training of the plight of such persons. [Paras 97, 98] [599-A-D]
Nandini Sundar v. State of Chhattisgarh, (2011) 7 SCC
547 : [2011] 8 SCR 1028; Subramaniam Swamy v.
Union of India (2016) 7 SCC 221 : [2016] 3 SCR 865;
C National Legal Services Authority v. Union of India
(2014) 5 SCC 438; Anuj Garg and Ors. v. Hotel
Association of India and Ors. (2008) 3 SCC 1 : [2007]
12 SCR 991; Common Cause v. Union of India (2018)
5 SCC 1; Shafin Jahan v. Asokan K.M. 2018 SCC
D Online 343; Shakti Vahini v. Union of India 2018 SCC
Online SC 275 – relied on.
Naz Foundation v. Government of NCT of Delhi 111
DRJ 1 (2009) – referred to
Bowers v. Hardwick 92 L. Ed. 2D 140 (1986); Stanley
E v. Georgia, 22 L. Ed. 2D 542 (1969); Wisconsin v. Yoder,
32 L. Ed. 2D 15 (1972); Lawrence v. Texas, 539 U.S.
558 (2003); Planned Parenthood of Southeaster Pa. v.
Casey 505 U.S. 833 (1992); Dudgeon v. United
Kingdom, 45 Eur. Ct. H. R. (1981); Romer v. Evans
F 517 U.S. 620 (1996); Modinos v. Cyprus 16 EHRR
485 (1993); El-Al Israel Airlines Ltd. v. Jonathan
Danielwitz H.C.J. 721/94; Jason Jones v. Attorney
General of Trinidad and Tobago Claim No. CV 2017-
00720; Dhirendra Nadan v. State Case No. HAA0085
of 2005; The National Coalition for Gay and Lesbian
G Equality v. The Minister of Home Affairs Case CCT
10/99; Toonen v. Australia Communication No. 488/
1992, U.N. Doc CCPR/C/50/D/488/1992 (1994);
Obergefell et al. v. Hodges, Director, Ohio Department
of Health, et al., 576 US (2015) – referred to
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NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 411
[DIPAK MISRA, CJI ]

Per Dr. D.Y. Chandrachud, J. 1. When the constitutionality A
of a law is challenged on the ground that it violates the guarantees
in Part III of the Constitution, what is determinative is its effect
on the infringement of fundamental rights. This affords the
guaranteed freedoms their true potential against a claim by the
state that the infringement of the right was not the object of the
B
provision. It is not the object of the law which impairs the rights
of the citizens. Nor is the form of the action taken determinative
of the protection that can be claimed. It is the effect of the law
upon the fundamental right which calls the courts to step in and
remedy the violation. The individual is aggrieved because the
law hurts. The hurt to the individual is measured by the violation C
of a protected right. [Para 34] [625-F-G; 626-A-B]
National Legal Services Authority v. Union of India
(2014) 5 SCC 438 – relied on
Air India v. Nergesh Meerza (1981) 4 SCC 335 : [1982]
1 SCR 438 – disapproved D

Sri Sri Mahadev Jiew v. Dr. B. B. Sen AIR (1951) Cal.
563; Air India v. Nergesh Meerza (1981) 4 SCC 335 :
[1982] 1 SCR 438; Anuj Garg v. Hotel Association of
India (2008) 3 SCC 1 : [2007] 12 SCR 991; The
National Coalition for Gay and Lesbian Equality v. The E
Minister of Justice 1999 (1) SA 6 (CC); Re. the Kerala
Education Bill AIR 1958 SC 956 : [1959] SCR 995;
Sakal Papers v. Union of India, AIR 1962 SC 305 :
[1962] SCR 842; R.C. Cooper v. Union of India (1970)
1 SCC 248 : [1970] 3 SCR 530; Bennett Coleman v. F
Union of India AIR (1972) 2 SCC 788 : [1973] 2 SCR
757; Maneka Gandhi v. Union of India (1978) 1 SCC
248 : [1978] 2 SCR 621; (Meharban) Nowshirwan
Irani v. Emperor AIR 1934 Sind. 206; D P Minwalla v.
Emperor AIR 1935 Sind. 78; Ratan Mia v. State of Assam
(1988) Cr.L.J. 980; E P Royappa v. State of Tamil Nadu G
(1974) 4 SCC 3 : [1974] 2 SCR 348; Shayara Bano v.
Union of India (2017) 9 SCC 1; Khanu v. Emperor AIR
(1925) Sind. 286 – referred to

H
412 SUPREME COURT REPORTS [2018] 7 S.C.R.

A Griggs v Duke Power Co. 401 U.S. 424 (1971); The
National Coalition for Gay and Lesbian Equality v. The
Minister of Justice, 1999 (1) SA 6 (CC), Sachs J.,
concurring – referred to
Lyrics from Leonard Cohen’s song “Democract” (1992);
B Same-Sex Love in India : A Literary Hisotyr (Ruth Vanita
and Saleem Kidwai, eds.) Penguin India (2008) for
writings spanning over more than 2,000 years of
Indian literature which emonstrate that same-sex love
has flourised, evolved and been embraced in various
forms since ancient times; Law like Love : Queer
C Perspectives on Law (Arvind Narrain and Alok Gupta,
eds.), Yoda Press (2011); K. N. Chandrasekharan Pillai
and Shabistan Aquil, “Historical Introduction to the
Indian Penal Code”, in Essays on the Indian Penal Code,
New Delhi, Indian Law Institute (2005); Siyuan Chen,
D “Codification, Macaulay and the Indian Penal Code
[Book Review], Singapore Journal of Legal Studies,
National University of Singapore, Faculty of Law
(2011), at pages 581-584; Douglas E. Sanders, “377 and
the Unnatural Afterlife of British Colonialism in Asia”,
Asian Journal of Comparative Law, Vol. 4 (2009), at page
E 11 (“Douglas”); David Skuy, “Macaulay and the Indian
Penal Code of 1862 : The Myth of the Inherent
Superiority and Modernity of the English Legal
System Compared to India’s Legal System in the
Nineteenth Century”, Modern Asian Studies, Vol. 32
F (1998), at pages 513-557; Barry Wright, “Macaulay’s
Indian Penal Code: Historical Context and
Originating Principles”, Carleton University (2011);
Michael Kirby, “The Sodomy Offence: England’s Least
Lovely Law Export?” Journal of Commonwealth Criminal
Law, Inaugural Issue (2011); Jessica Cecil, “The
G Destruction of Sodom and Gomorrah”, British
Broadcasting Company, 11 February 2017; KSN
Murthy’s Criminal Law: Indian Penal Code (KVS Sarma
ed), Lexis Nexis (2016) England; Philo, translated by
F.H. Colson and G.H. Whitaker, 10 Volumes, (Cambridge
H : Harvard University Press, 1929-1962); David F.
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 413
[DIPAK MISRA, CJI ]

Greenberg and Marcia H. Bystryn, “Christian Intolerance A
of Homosexuality”, American Journal of Sociology,
Vol. 88 (1982), at pages 515-548; Human Rights Watch.
This Alien Legacy : The Origins of “Sodomy” Laws in
British Colonialism (2008); H. Montgomery Hyde, John
O’Connor, and Merlin Holland, The Trials of Oscar Wilde
B
(2014), at page 201; Report of the Departmental
Committee on Homosexual Offences and Prostitution
(1957) (“Wolfenden Report”); Sexual Offences
(Amendment) Act 2000, Parliament of the United
Kingdom; Enze Han, Joseph O’Mahoney, “British
Colonialism and the Criminalization of Homosexuality: C
Queens, Crime and Empire”, Routledge (2018); Nang
Yin Kham, “An Introduction to the Law and Judicial
System of Myanmar”, Centre for Asia Legal Studies
Faculty of Law, National University of Singapore, Working
Paper 14/02, (2014); Arvind Narrain, “‘That Despicable
D
Specimen of Humanity’: Policing of Homosexuality
in India”, in Challenging the Rule(s) of Law: Colonialism,
Criminology and Human Rights in India (Kalpana
Kannabiran and Ranbir Singh eds.), Sage (2008); Arvind
Narrain, “A New Language of Morality: From the Trial
of Nowshirwan to the Judgement in Naz Foundation”; E
The Indian Journal of Constitutional Law, Vol. 4 (2010);
Sex, Morality and the Law, (Lori Gruen and George
Paichas eds.) Routledge (1996); Andrew Davis,
“The Framing of Sex : Evaluating Judicial Discourse
on the ‘Unnatural Offences’”, Alternative Law Journal,
F
Vol. 5 (2006); Alok Gupta, “Section 377 and the Dignity
of Indian Homosexuals” The Economic and Political
Weekly, Vol. 41 (2006); John Sebastian, “The opposite
of unnatural intercourse : understanding Section 377
through Section 375; Indian Law Review, Vol. 1 (2018);
Emile Durkheim, The Division of Labour in Society, G
Macmillan (1984); Nivedita Menon, “How Natural is
Normal? Feminism and Compulsory
Heterosexuality”, In Because I have a Voice, Queer
Politics in India, (Narrain and Bhan eds.) Yoda Press
(2005) – referred to
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414 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 2. A discrimination will not survive constitutional scrutiny
when it is grounded in and perpetuates stereotypes about a class
constituted by the grounds prohibited in Article 15(1). If any
ground of discrimination, whether direct or indirect is founded
on a stereotypical understanding of the role of the sex, it would
not be distinguishable from the discrimination which is prohibited
B
by Article 15 on the grounds only of sex. A provision challenged
as being ultra vires the prohibition of discrimination on the
grounds only of sex under Article 15(1) is to be assessed not by
the objects of the state in enacting it, but by the effect that the
provision has on affected individuals and on their fundamental
C rights. [Para 41] [631-B, E]
K S Puttaswamy v. Union of India (2017) 10 SCC 1 –
followed.
Sanwesh Pokkuluri v. UOI Writ Petition (Criminal) No.
121 of 2018; Navtej Johar v. Union of India Writ
D Petition (Criminal) No. 76 of 2016 – referred to
Bilka-Kaufhaus GmbH v. Karin Weber von Hartz (1986)
ECR 1607; Andrews v. Law Society of British Columbia
(1989) 1 SCR 143; City Council of Pretoria v. Walker
(1998) 3 BCLR – referred to
E
Elvia R. Arriola, “Gendered Inequality : Lesbians, Gays,
and Feminist Legal Theory”, Berkeley Women’s Law
Journal, Vol. 9 (1994), at pages 103-143; Zachary A.
Kramer, “The Ultimate Gender Stereotype : Equalizing
Gender-Conforming and Gender-Nonconforming
F Homosexuals under Title VII”, University of Illinois Law
Review (2004), at page 490; Bennett Capers, “Note,
Sexual Orientation and Title VII”, Columbia Law
Review (1991), at pages 1159, 1160, 1163; Andrew
Koppelman, “The Miscegenation Analogy: Sodomy
G Law as Sex Discrimination”, Yale Law Journal, Vol.
98 (1988), at page 147; Andrew Koppelman, “Why
Discrimination against Lesbians and Gay Men is Sex
Discrimination”, New York University Law Review, Vol.
69 (1994); Suzanne Pharr, Homophobia: A weapon of
Sexism, Chardon Press (1988), at page 18; Tarunabh
H
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 415
[DIPAK MISRA, CJI ]

Khaitan, “Inclusive Pluralism or Majoritarian Nationalism: A
Article 15, Section 377 and Who We Really Are”,
Indian Constitutional Law and Philosophy (2018);
International Commission of Jurists, “Unnatural
Offences” Obstacles to Justice in India Based on
Sexual Orientation and Gender Identity (2017) –
B
referred to
3. By criminalizing consensual sexual conduct between two
homosexual adults, Section 377 has become the basis not just of
prosecutions but of the persecution of members of the affected
community. Section 377 perpetuates notions of morality which
prohibit certain relationships as being against the ‘order of nature.’ C
A criminal provision has sanctioned discrimination grounded on
stereotypes imposed on an entire class of persons on grounds
prohibited by Article 15(1). This constitutes discrimination on
the grounds only of sex and violates the guarantee of non-
discrimination in Article 15(1). [Para 52] [642-A-B] D
4.1 The application of Section 377 causes a deprivation of
the fundamental right to privacy which inheres in every citizen.
The exercise of the natural and inalienable right to privacy entails
allowing an individual the right to a self-determined sexual
orientation. Thus, it is imperative to widen the scope of the right E
to privacy to incorporate a right to ‘sexual privacy’ to protect the
rights of sexual minorities. Emanating from the inalienable right
to privacy, the right to sexual privacy must be granted the sanctity
of a natural right, and be protected under the Constitution as
fundamental to liberty and as a soulmate of dignity. In order to
ensure to sexual and gender minorities the fulfilment of their F
fundamental rights, it is imperative to ‘confront the closet’ and,
as a necessary consequence, confront ‘compulsory
heterosexuality.’ [Paras 58, 59, 60] [647-A, D, E-F]
Eve Kosofsky Sedgwick, Epistemology of the Closet,
University of California Press (1990); David A.J. G
Richards, “Sexual Autonomy and the Constitutional
Right to Privacy: A Case Study in Human Rights and
the Unwritten Constitution:, Hastings Law Journal,
Vol. 30, at page 786 – referred to
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416 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 4.2 Privacy creates “tiers of ‘reputable’ and ‘disreputable’
sex”, only granting protection to acts behind closed doors. Thus,
it is imperative that the protection granted for consensual acts in
private must also be available in situations where sexual
minorities are vulnerable in public spaces on account of their
sexuality and appearance. If one accepts the proposition that
B
public places are heteronormative, and same-sex sexual acts
partially closeted, relegating ‘homosexual‘ acts into the private
sphere, would in effect reiterate the “ambient heterosexism of
the public space.” It must be acknowledged that members
belonging to sexual minorities are often subjected to harassment
C in public spaces. The right to sexual privacy, founded on the right
to autonomy of a free individual, must capture the right of persons
of the community to navigate public places on their own terms,
free from state interference. [Para 62] [648-C-E]
5. Sexual privacy and autonomy- deconstructing the
D heteronormative framework
An individual’s sexuality cannot be put into boxes or
compartmentalized; it should rather be viewed as fluid, granting
the individual the freedom to ascertain her own desires and
proclivities. The self-determination of sexual orientation is an
E exercise of autonomy. Human sexuality cannot be reduced to a
binary formulation. Nor can it be defined narrowly in terms of its
function as a means to procreation. To confine it to closed
categories would result in denuding human liberty of its full
content as a constitutional right. The Constitution protects the
fluidities of sexual experience. It leaves it to consenting adults
F to find fulfilment in their relationships, in a diversity of cultures,
among plural ways of life and in infinite shades of love and longing.
[Para 66] [648-E-F; 652-C, E-F]
Common Cause (A Registered Society) v. Union of India
(2018) 5 SCC 1 – followed.
G
Santosh Singh v Union of India (2016) 8 SCC 253 :
[2016] 5 SCR 761 – relied on.
M. Mahler, “The Psychological Birth of the Human
infant. Symbiosis And Individuation” (1975); L.
Kaplan, Oneness and Separateness: From infant to
H
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Individual (1978); Thomas M. Jr. Scanlon, Rawls’ Theory A
of Justice, University of Pennsylvania Law Review
(1973) at 1022; David A. J. Richards, “Unnatural Acts
and the Constitutional Right to Privacy : A Moral
Theory”, Fordham Law Review, Vol. 45 (1977), at pages
1130-1311 – referred to
B
6. A right to intimacy- celebration of sexual agency
6.1 By criminalising consensual acts between individuals
who wish to exercise their constitutionally-protected right to
sexual orientation, the State is denying its citizens the right to
intimacy. The right to intimacy emanates from an individual’s C
prerogative to engage in sexual relations on their own terms. It
is an exercise of the individual’s sexual agency, and includes the
individual’s right to the choice of partner as well as the freedom
to decide on the nature of the relationship that the individual
wishes to pursue. [Para 67] [653-A-B]
D
Shakti Vahini v. Union of India (2018) SCC OnLine
SC 275; Shafin Jahan v. Asokan (2018) SCC OnLine
SC 343 – referred to.
Dipika Jain and Kimberly Rhoten, “The
Heteronormative State and the Right to Health in E
India”, NUJS Law Review, Vol. 6 (2013) – referred to
6.2 Consensual sexual relationships between adults, based
on the human propensity to experience desire must be treated
with respect. In addition to respect for relationships based on
consent, it is important to foster a society where individuals find F
the ability for unhindered expression of love that they experience
towards their partner. Social institutions must be arranged in such
a manner that individuals have the freedom to enter into
relationships untrammelled by binary of sex and gender and
receive the requisite institutional recognition to perfect their
relationships. While ostensibly penalising ‘acts’, it impacts upon G
the identity of the LGBT community and denies them the benefits
of a full and equal citizenship. Section 377 is based on a stereotype
about sex. Our Constitution which protects sexual orientation
must outlaw any law which lends the authority of the state to
obstructing its fulfilment. [Para 67] [654-D-F; 655-A-B]
H
418 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 7. Section 377 and the right to health
7.1 The right to health is understood to be indispensable to
a life of dignity and well-being, and includes, for instance, the
right to emergency medical care and the right to the maintenance
and improvement of public health. In addition to the constitutional
B recognition granted to the right to health, the right to health is
also recognised in international treaties, covenants, and
agreements which India has ratified, including the International
Covenant on Economic, Social and Cultural Rights, 1966
(“ICESCR”) and the Universal Declaration of Human Rights,
1948 (“UDHR”). Article 12 of the ICESCR recognizes the right
C of all persons to the enjoyment of the highest attainable standard
of physical and mental health. Article 12.2 requires States Parties
to take specific steps to improve the health of their citizens,
including creating conditions to ensure equal and timely access
to medical services. In its General Comment No. 14, the UN
D Economic and Social Council stated that States must take
measures to respect, protect and fulfil the health of all persons.
States are obliged to ensure the availability and accessibility of
health-related information, education, facilities, goods and
services, without discrimination, especially for vulnerable and
marginalized populations. Pursuant to General Comment No. 14,
E India is required to provide marginalized populations, including
members of the LGBTIQ community, goods and services that
are available (in sufficient quantity), accessible (physically,
geographically, economically and in a non-discriminatory manner),
acceptable (respectful of culture and medical ethics) and of quality
F (scientifically and medically appropriate and of good quality).
[Paras 68, 69] [655-D-F; 658-F-G; 659-A-E]
C.E.S.C. Limited v. Subhash Chandra Bose, (1992) 1
SCC 441; Consumer Education and Research Centre
v. UOI, (1995) 3 SCC 42; Paschim Banga Khet
G Mazdoor Samity v. State of West Bengal, (1996) 4 SCC
37; Society for Unaided Private Schools of Rajasthan
v. Union of India, (2012) 6 SCC 1; Devika Biswas v.
Union of India & Ors., (2016) 10 SCC 726; Common
Cause v. Union of India & Ors., (2018) 5 SCC 1 –
relied on.
H
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Bandhua Mukti Morcha v. Union of India (1984) 3 SCC A
161 : [1984] 2 SCR 67; Consumer Education &
Research Centre v. Union of India (1995) 3 SCC 42 :
[1995] 1 SCR 626; C.E.S.C. Limited v. Subhash
Chandra Bose (1992) 1 SCC 441 : [1991] 2 Suppl.
SCR 267 ; Kirloskar Brothers Ltd. v. Employees’ State
B
Insurance Corporation (1996) 2 SCC 682 : [1996]
1 SCR 884; State of Punjab v. Ram Lubhaya Bagga
(1998) 4 SCC 117 : [1998] 1 SCR 1120; Smt M Vijaya
v. The Chairman and Managing Director Singareni
Collieries Co. Ltd., (2001) 5 ALD 522; Devika Biswas
v. Union of India (2016) 10 SCC 726 – referred to. C
7.2 Sexuality is a natural and precious aspect of life, an
essential and fundamental part of our humanity. Sexual rights are
entitlements related to sexuality and emanate from the rights to
freedom, equality, privacy, autonomy, and dignity of all people.
For people to attain the highest standard of health, they must D
also have the right to exercise choice in their sexual lives and
feel safe in expressing their sexual identity. [Para 71] [659-F-G;
660-A]
7.3 The term ‘sexual health’ was first defined in a 1975
WHO Technical Report series as “the integration of the somatic, E
emotional, intellectual and social aspects of sexual being, in ways
that are positively enriching and that enhance personality,
communication and love. The operation of Section 377 denies
consenting adults the full realization of their right to health, as
well as their sexual rights. It forces consensual sex between adults
into a realm of fear and shame, as persons who engage in anal F
and oral intercourse risk criminal sanctions if they seek health
advice. This lowers the standard of health enjoyed by them and
particularly by members of sexual and gender minorities, in
relation to the rest of society. [Paras 73, 76] [660-E; 662-E-F]
UN Economic and Social Council (ECOSOC), Committee G
on Economic, Social and Cultural Rights, General
Comment No. 14: The Right to the Highest Attainable
Standard of Health, UN Doc. E/C.12/2004 (2000);
Definition contained in the Preamble to the WHO
Constitution (1948); Sexual Rights, International
H
420 SUPREME COURT REPORTS [2018] 7 S.C.R.

A Planned Parenthood Federation (2008); Alexandra
Muller, “Health for All? Sexual Orientation, Gender
Identity, and the Implementation of the Right to Access
to Health Care in South Africa”, Health and Human
Rights (2016) at pages 195–208; Institute of Medicine,
“The Health of Lesbian, Gay, Bisexual, and Transgender
B
People : Building a Foundation for Better
Understanding”, National Academies Press (2011); World
Health Organization, “Gender and human rights :
Defining sexual health”, (2002); World Health
Organisation, “Sexual Health, Human Rights and the
C Law” (2015); International Women’s Health Coalition,
“Sexual Rights are Human Rights” (2014) – referred to
7.4 The right to health is not simply the right not to be
unwell, but rather the right to be well. It encompasses not just
the absence of disease or infirmity, but “complete physical, mental
D and social well being”, and includes both freedoms such as the
right to control one’s health and body and to be free from
interference (for instance, from non-consensual medical
treatment and experimentation), and entitlements such as the
right to a system of healthcare that gives everyone an equal
opportunity to enjoy the highest attainable level of health. The
E jurisprudence of this Court, in recognizing the right to health
and access to medical care, demonstrates the crucial distinction
between negative and positive obligations. Article 21 does not
impose upon the State only negative obligations not to act in such
a way as to interfere with the right to health. This Court also has
F the power to impose positive obligations upon the State to take
measures to provide adequate resources or access to treatment
facilities to secure effective enjoyment of the right to health. While
the enumeration of the right to equal healthcare is crucial, an
individual’s sexual health is also equally significant to holistic
well-being. A healthy sex life is integral to an individual’s physical
G and mental health, regardless of whom an individual is attracted
to. Criminalising certain sexual acts, thereby shunning them from
the mainstream discourse, would invariably lead to situations of
unsafe sex, coercion, and a lack of sound medical advice and
sexual education, if any at all. [Paras 77, 78, 81] [662-G; 663-A-
H B; 664-F-G]
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7.5 Laws that criminalize same-sex intercourse create social A
barriers to accessing healthcare, and curb the effective prevention
and treatment of HIV/AIDS. Criminal laws are the strongest
expression of the State’s power to punish certain acts and
behaviour, and it is therefore incumbent upon the State to ensure
full protection for all persons, including the specific needs of
B
sexual minorities. The equal protection of law mandates the state
to fulfill this constitutional obligation. Indeed, the state is duty
bound to revisit its laws and executive decisions to ensure that
they do not deny equality before the law and the equal protection
of laws. That the law must not discriminate is one aspect of
equality. But there is more. The law must take affirmative steps C
to achieve equal protection of law to all its citizens, irrespective
of sexual orientation. [Para 83] [665-C-E]
Study Guide: Sexual Orientation and Human Rights,
University of Minnesota Human RIghts Library
(2003); Center for Health and Human Rights and Open D
Society Foundations. “Health and Human Rights
Resource Guide(2013)”. UNAIDS, “UNAIDS Calls on
India and All Countries to Repeal Laws That
Criminalize Adult Consensual Same Sex Sexual
Conduct”(2013) – referred to
E
8. Section 377 and HIV prevention efforts
Section 377 has a significant detrimental impact on the right
to health of those persons who are susceptible to contracting
HIV – men who have sex with men (“MSM”) and transgender
persons. MSM and transgender persons may not approach State F
health care providers for fear of being prosecuted for engaging
in criminalized intercourse. Studies show that it is the stigma
attached to these individuals that contributes to increased sexual
risk behaviour and/or decreased use of HIV prevention services.
To safeguard the health of persons who are at the greatest risk
of HIV infection, it is imperative that access is granted to effective G
HIV prevention and treatment services and commodities such
as clean needles, syringes, condoms and lubricants. A needle or
a condom can only be considered a concrete representation of
the entitlements of vulnerable groups: the fundamental human
rights of dignity, autonomy and freedom from ill-treatment, along H
422 SUPREME COURT REPORTS [2018] 7 S.C.R.

A with the right to the highest attainable standard of physical and
mental health, without regard to sexuality or legal status. This is
the mandate of the Directive Principles contained in Part IV of
the Constitution. In 2017, Parliament enacted the HIV
(Prevention and Control) Act, to provide for the prevention and
control of the spread of HIV/AIDS and for the protection of the
B
human rights of persons affected. Parliament recognized the
importance of prevention interventions for vulnerable groups
including MSMs. In order to promote sexual health and reduce
HIV transmission among LGBT individuals, it is imperative that
the availability, effectiveness, and quality of health services to
C the LGBT community be significantly improved. [Paras 84, 87,
91, 92] [666-A-B; 667-E-F; 668-E-F; 669-A-B, F-G]
Eszter Kismodi, Jane Cottingham, Sofia Gruskin & Alice
M. Miller, “Advancing sexual health through human
rights : The role of the law”, Taylor and Francis,
D (2015), at pages 252-267; Regional Office for South-
East Asia, World Health Organization, “HIV/AIDS
among men who have sex with men and transgender
populations in South-East Asia : the current situation
and national responses” (2010); United Nations
Development Programme, “Global Commission on HIV
E and the Law : Risks, Rights and Health” (2012), at
pages 11-12; Communication No. 488/1992, U.N. Doc
CCPR/C/50/D/488/1992 (1994), decision dated 31/03/
1994; Beena Thomas, Matthew J. Mimiaga, Senthil
Kumar, Soumya Swaminathan, Steven A. Safren, and
F Kenneth H. Mayer, “HIV in Indian MSM : Reasons
for a concentrated epidemic & strategies for
prevention”, Indian Journal Medical Research (2011),
at pages 920–929; UNAIDS, “Judging the Epidemic
: A Judicial Handbook on HIV, Human Rights and
the Law” (2013) at page 165 – referred to
G
9. Mental health
9.1 The treatment of homosexuality as a disorder has
serious consequences on the mental health and well-being of
LGBT persons. The mental health of citizens “growing up in a
H culture that devalues and silences same-sex desire” is severely
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 423
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impacted. Medical and scientific authority has now established A
that consensual same sex conduct is not against the order of
nature and that homosexuality is natural and a normal variant of
sexuality. Parliament has provided legislative acknowledgment
of this global consensus through the enactment of the Mental
Healthcare Act, 2017. Section 3 of the Act mandates that mental
B
illness is to be determined in accordance with ‘nationally’ or
‘internationally’ accepted medical standards. The International
Classification of Diseases (ICD-10) by the World Health
Organisation is listed as an internationally accepted medical
standard and does not consider non-peno-vaginal sex between
consenting adults either a mental disorder or an illness. The Act C
through Section 18(2) and Section 21 provides for protection
against discrimination on the grounds of sexual orientation. The
repercussions of prejudice, stigma and discrimination continue
to impact the psychological well-being of individuals impacted by
Section 377. [Paras 93, 95] [670-C; 671-C-D, E]
D
9.2 Counselling practices will have to focus on providing
support to homosexual clients to become comfortable with who
they are and get on with their lives, rather than motivating them
for change. Instead of trying to cure something that isn’t even a
disease or illness, the counsellors have to adopt a more
progressive view that reflects the changed medical position and E
changing societal values. There is not only a need for special
skills of counsellors but also heightened sensitivity and
understanding of LGBT lives. The medical practice must share
the responsibility to help individuals, families, workplaces and
educational and other institutions to understand sexuality F
completely in order to facilitate the creation of a society free from
discrimination where LGBT individuals like all other citizens are
treated with equal standards of respect and value for human rights.
[Para 96] [671-F; 672-A-C]
10. Judicial review G
Both Parliament and the State Legislatures can enact laws
providing for offences arising out of legislation falling within their
legislative domains. The authority to enact law, however, is subject
to the validity of the law being scrutinised on the touchstone of
constitutional safeguards. Where the validity of the law is called H
424 SUPREME COURT REPORTS [2018] 7 S.C.R.

A into question, judicial review will extend to scrutinising whether
the law is manifestly arbitrary in its encroachment on fundamental
liberties. If a law discriminates against a group or a community of
citizens by denying them full and equal participation as citizens,
in the rights and liberties granted by the Constitution, it would
be for the Court to adjudicate upon validity of such a law. [Para
B
97] [672-G; 673-B-C]
Ketki Ranade, “Process of Sexual Identity
Development for Young People with Same Sex
Desires: Experiences of Exclusion”, Psychological
Foundations - The Journal (2008); Vinay Chandran,
C “From judgment to practice: Section 377 and the
medical sector”, Indian Journal of Medical Ethics, Vol.
4 (2009) – referred to
11. India’s commitments at International Law
D 11.1 International human rights treaties and jurisprudence
impose obligations upon States to protect all individuals from
violations of their human rights, including on the basis of their
sexual orientation. International law today has evolved towards
establishing that the criminalization of consensual sexual acts
between same-sex adults in private contravenes the rights to
E equality, privacy, and freedom from discrimination. These rights
are recognised in international treaties, covenants, and
agreements which India has ratified, including the UDHR, ICCPR,
and the ICESCR. India has a constitutional duty to honour these
internationally recognized rules and principles. [Paras 98, 99]
F [673-C-D; F-G]
Vishaka v State of Rajasthan, (1997) 6 SCC 241 – relied
on
Dominic McGoldrick, “The Development and Status
of Sexual Orientation Discrimination under
G International Human Rights Law”, Human Rights Law
Review, Vol. 16 (2016); UN Human Rights Council,
“Discriminatory laws and practices and acts of violence
against individuals based on their sexual orientation
and gender identity” (2011); UN Human Rights Council,
“Promotion and Protection of all Human Rights, Civil,
H
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Political, Economic, Social and Cultural Rights, A
including the Right to Development” (2008) –
referred to
11.2 There is a contradiction between India’s international
obligations and Section 377 of the Indian Penal Code, insofar as
it criminalizes consensual sexual acts between same-sex adults B
in private. In adjudicating the validity of this provision, the Indian
Penal Code must be brought into conformity with both the Indian
Constitution and the rules and principles of international law that
India has recognized. Both make a crucial contribution towards
recognizing the human rights of sexual and gender minorities.
[Para 104] [676-A-B] C

12. The past two decades have witnessed several decisions
by constitutional and international courts, recognizing both the
decriminalization of same-sex intercourse in private, as well as
broader rights recognizing sexual orientation equality. In 1996,
South Africa became the first country in the world to D
constitutionally prohibit discrimination based on sexual
orientation. The United Kingdom, Bolivia, Ecuador, Fiji, and
Malta specifically prohibit discrimination on the basis of gender
identity, either constitutionally or through enacted laws. According
the International Lesbian, Gay, Bisexual, Trans and Intersex E
Association, 74 countries (including India) criminalize same-sex
sexual conduct, as of 2017. Most of these countries lie in the
Sub-Saharan and Middle East region. Some of them prescribe
death penalty for homosexuality [Para 125] [693-F; 694-A-B]
Government of NCT of Delhi v. Union of India 2018 (8) F
SCALE 72 – referred to.
Dudgeon v The United Kingdom App No 7525/76,
(1981) ECHR 5; Norris v Ireland Application No.
10581/83, (1988) ECHR 22; Modinos v Cyprus
Application No. 15070/89,16 EHRR 485; Bowers v.
G
Hardwick 478 U.S. 186 (1986). Lawrence v Texas 539
U.S. 558 (2003); X v. Colombia Communication No.
1361/2005; National Coalition for Gay and Lesbian
Equality v. Minister of Justice 1999 (1) SA 6 (CC);
Dhirendra Nadan Thomas McCoskar v. State [2005]
FJHC 500; Caleb Orozco v. The Attorney General of H
426 SUPREME COURT REPORTS [2018] 7 S.C.R.

A Belize Claim No. 668 of 2010; Jason Jones v. The
Attorney General of Trinidad and Tobago Claim no.
CV2017-00720; Leung TC William Roy v. Secretary for
Justice Civil Appeal No. 317 of 2005 El-Al Israel
Airlines Ltd v. Jonathan Danielwitz HCJ 721/94; Vriend
v Alberta (1998) 1 S.C.R. 493; Sunil Babu Pant v. Nepal
B
Government Writ Petition No. 917 of 2007; Oliari v
Italy [2015] ECHR 716; United States v. Windsor 570
U.S. 44 (2013); Obergefell v. Hodges 576 U.S.(2015);
Masterpiece Cakeshop v. Colorado Civil Rights
Commission 584 U.S. (2018) Lee v. Ashers Bakery Co.
C Ltd. [2015] NICty 2 – referred to.
Robert Wintemute, “Same-Sex Love and Indian Penal
Code §377: An Important Human Rights Issue for
India” National University of Juridical Sciences Law
Review (2011); Committee on Economic, Social and
D Cultural Rights, “General Comment 20 : Non-
discrimination in economic, social and cultural rights”
(2009), at para 32; Amy Raub, “Protections Of Equal
Rights Across Sexual Orientation And Gender
Identity: An Analysis Of 193 National Constitutions”,
Yale Journal of Law and Feminism, Vol. 28 (2017); The
E International Lesbian, Gay, Bisexual, Trans And
Intersex Association, “Sexual Orientation Laws of the
World”, (2017); Halsbury’s Laws of England.
3rd edition, Vol. 3, Butterworths (1953) at page. 271;
Glanville Williams, ‘The Definition of Crime’, Current
F Legal Problems, Vol. 8 (1955) – referred to
13. Crime, morality and the Constitution: Criminal Law
Theories
13.1 Bentham’s Utilitarian Theory – Utilitarianism has
provided some of the most powerful critiques of existing laws.
G Bentham was one of the earliest supporters for reform in sodomy
laws. In his essay, “Offences Against One’s Self”, Bentham
rebutted all the justifications given by the state for enacting laws
on sodomy. According to Bentham, homosexuality, if viewed
outside the realms of morality and religion, is neutral behaviour
which gives the participants pleasure and does not cause pain to
H
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[DIPAK MISRA, CJI ]

anyone else. Therefore, he concluded that such an act cannot A
constitute an offence, and there is “no reason for punishing it at
all. According to Bentham, sodomy neither cause primary
mischief, nor secondary mischief, nor any danger to society.
Bentham also critiqued criminal laws by analysing the utility of
the punishment prescribed by them. He succinctly described the
B
objective of law through the principles of utility - “The general
object which all laws have, or ought to have…is to augment the
total happiness of the community; [and] to exclude…everything
that tends to subtract from that happiness.” According to
Bentham, “all punishment in itself is evil because it reduces the
level of happiness in society, and should be prescribed only if it C
“excludes some greater evil”. [Paras 129, 130] [694-F; 698-B;
699-G; 700-A-B]
Henry M. Hart, “The Aims of the Criminal Law”, Law
and Contemporary Problems, Vol. 23 (1958), at pages
401–441; Roscoe Pound, Interpretation of Legal D
History, Harvard University Press (1946); H.C.
Lawson-Tancred, The Art of Rhetoric/Aristotle, Penguin
(2004); Immanuel Kant: The Metaphysics of Morals
(Mary Gregor ed.), Cambridge University Press
(1996); Grant Lamond, “What is a Crime?”, Oxford
Journal of Legal Studies, Vol.27 (2007); Sir William E
Blackstone, Commentaries on the Laws of England,
Book IV, Ch. 1 & 2; Antony Duff and Sandra Marshall,
“Criminalization and Sharing Wrongs”, Canadian
Journal of Law and Jurisprudence, Vol. 11, (1998) at
pages 7-22; Robert Nozick, Anarchy, State and Utopia, F
Basic Books (1974),at page 65; Lawrence C. Becker,
“Criminal Attempts and the Theory of the Law of
Crimes”, Philosophy & Public Affairs, Vol 3 (1974),
at page 273; Jeremy Bentham, “Offences Against
One’s Self” (Louis Crompton Ed.), Columbia
University – referred to G
13.2 The Harm Principle – John Stuart Mill, in his treatise
“On Liberty,” makes a powerful case to preclude governments
from interfering in those areas of an individual’s life which are
private. Mill’s theory, called the “harm principle”, suggests that
the state can intrude into private life by way of sanction only if H
428 SUPREME COURT REPORTS [2018] 7 S.C.R.

A harm is caused to others or if the conduct is “other-affecting.
Mill proposed that “all that portion of a person’s life and conduct
which affects only himself, or, if it also affects others, only with
their free, voluntary, and undeceived consent and participation”
should be free from state interference. He further added that the
state and society are not justified in interfering in the self-
B
regarding sphere, merely because they believe certain conduct
to be “foolish, perverse, or wrong. While Mill’s theory was not
propounded in relation to LGBTQ rights, his understanding of
criminal law is well-suited to argue that sodomy laws criminalise
‘self-regarding’ actions which fall under the first category of
C conduct, and should England not be subjected to sanctions either
by the state or the society. [Para 131] [700-C, E; 701-F]
Jeremy Bentham, An Introduction to the Principles of
Morals and Legislation, The Library of Economics and
Liberty (1823); John Stuart Mill, On Liberty, (Elizabeth
D Rapaport ed), Hackett Publishing Co, Inc (1978); Mark
Strasser, “Lawrence, Mill, and Same Sex Relationships
: On Values, Valuing and the Constitution”, Southern
California Interdisciplinary Law Journal, Vol. 15 (2006);
Joseph Raz, ‘Autonomy, Toleration and the Harm
Principle’, in Issues in Contemporary Legal Philosophy:
E The Influence of HLA Hart (R. Gavison ed.), Oxford
University Press (1987); Graham Hughes, “Morals and
the Criminal Law”, The Yale Law Journal, Vol.71 (1962);
Sir Patrick Arthur Devlin, “The Enforcement Of Morals”
Oxford University Press (1959) at page 9; Animesh
F Sharma, “Section 377 : No Jurisprudential Basis.”
Economic and Political Weekly, Vol. 43 (2008) at pages
12-14; Hart, H. L. A, “The Changing Sense of Morality”
In Political Thought (Michael Rosen and Jonathan Wolff
eds.), Oxford University Press (1999) at pages 140-141;
H.L.A. Hart, Law, Liberty And Morality (1979); William
G Starr, “Law and Morality in H.L.A. Hart’s Legal
Philosophy”, Marquette Law Review, Vol. 67 (1984);
Peter August Bittlinger, “Government enforcement of
morality : a critical analysis of the Devlin-Hart
controversy”, Doctoral Dissertations 1896 - February
H 2014 (1975) at pages 69-70 – referred to
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13.3 A broad analysis of criminal theory points to the general A
conclusion that criminologists and legal philosophers have long
been in agreement about one basic characteristic of crime: that
it should injure a third person or the society. An element of larger
public interest emerges as the crux of crime. The conduct which
Section 377 criminalises voluntary ‘carnal intercourse against the
B
order of nature’ with a man or woman, inter alia – pertains solely
to acts between consenting adults. Such conduct is purely private,
or as Mill would call it, “self-regarding,” and is neither capable
of causing injury to someone else nor does it pose a threat to the
stability and security of society. Once the factor of consent is
established, the question of such conduct causing any injury, does C
not arise. Although Section 377 prima facie appears to criminalise
certain acts or conduct, it creates a class of criminals, consisting
of individuals who engage in consensual sexual activity. Section
377 not only criminalises acts (consensual sexual conduct
between adults) which should not constitute crime, but also
D
stigmatises and condemns LGBTQ individuals in society. [Para
136] [707-B-F]
14.1 The conception of constitutional morality is different
from that of public or societal morality. Under a regime of public
morality, the conduct of society is determined by popular
perceptions existent in society. Constitutional morality E
determines the mental attitude towards individuals and issues
by the text and spirit of the Constitution. It builds and protects
the foundations of a democracy, without which any nation will crack
under its fissures. For this reason, constitutional morality has to
be imbibed by the citizens consistently and continuously. F
Constitutional morality leans towards making Indian democracy
vibrant by infusing a spirit of brotherhood amongst a
heterogeneous population, belonging to different classes, races,
religions, cultures, castes and sections. Constitutional morality
cannot, however, be nurtured unless, as recognised by the
Preamble, there exists fraternity, which assures and maintains G
the dignity of each individual. [Paras 141, 143] [709-E-F, G;
710-A, F-G]
Naz Foundation v. Government of NCT of Delhi (2010)
Cri LJ 94 – referred to.
H
430 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 14.2 Constitutional morality will impact upon any law which
deprives the LGBT individuals of their entitlement to a full and
equal citizenship. After the Constitution came into force, no law
can be divorced from constitutional morality. Society cannot dictate
the expression of sexuality between consenting adults. That is a
private affair. Constitutional morality will supersede any culture
B
or tradition. The interpretation of a right in a matter of
decriminalisation and beyond must be determined by the norms
of the Constitution. LGBT individuals living under the threats of
conformity grounded in cultural morality have been denied a basic
human existence. They have been stereotyped and prejudiced.
C Constitutional morality requires this Court not to turn a blind
eye to their right to an equal participation of citizenship and an
equal enjoyment of living. Constitutional morality requires that
this Court must act as a counter majoritarian institution which
discharges the responsibility of protecting constitutionally
entrenched rights, regardless of what the majority may believe.
D
[Paras 145, 146] [713-F-H; 714-A-B]
15. Transformative constitutionalism
15.1 In penalising consensual sexual conduct between
adults of the same sex, Section 377 violates the constitutional
E guarantees of liberty and equality. It denudes members of the
LGBT communities of their constitutional right to lead fulfilling
lives. Sexual and gender based minorities cannot live in fear, if
the Constitution has to have meaning for them on even terms.
In its quest for equality and the equal protection of the law, the
Constitution guarantees to them an equal citizenship. In de-
F criminalising such conduct, the values of the Constitution assure
to the LGBT community the ability to lead a life of freedom from
fear and to find fulfilment in intimate choices. The choice of a
partner, the desire for personal intimacy and the yearning to find
love and fulfilment in human relationships have a universal appeal,
G straddling age and time. In protecting consensual intimacies, the
Constitution adopts a simple principle: the state has no business
to intrude into these personal matters. Nor can societal notions
of heteronormativity regulate constitutional liberties based on
sexual orientation. [Paras 147, 150 and 151] [714-C-D, G-H;
715-A-B]
H
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 431
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Suresh Kumar Koushal v. Naz Foundation (2014) 1 SCC A
1 : [2013] 17 SCR 116 – overruled
Christopher. R. Leslie, “Creating criminals: The
Injuries Inflicted by “Unenforced” Sodomy Laws”,
Harvard Civil Rights and Civil Liberties Law Review,
Vol. 35 (2000); Jawaharlal Nehru, “Tryst with B
Destiny”, address to the Constituent Assembly of
India, delivered on 14-15 August 1947; Uday S.
Mehta, “Constitutionalism”, In The Oxford
Companion to Politics in India (Niraja Gopal Jayal and
Pratap Bhanu Mehta eds.), Oxford University Press
(2010), at page 15; Granville Austin, The Indian C
Constitution: Cornerstone of a Nation, Oxford University
Press (1966), at page 65; Constituent Assembly Debates
(25 November 1949); Lord Neuberger, “UK Supreme
Court decisions on private and commercial law: The
role of public policy and public interest”, Centre for D
Commercial Law Studies Conference (2015); Marc
Galanter, “Fifty Years on”, in BN Kirpal et al, Supreme
but Not Infallible: Essays in Honour of the Supreme
Court of India, Oxford University Press (2000), at
page 57 – referred to
E
Per Indu Malhotra, J. 1. The essential ingredient required
to constitute an offence under Section 377 is “carnal intercourse
against the order of nature”, which is punishable with life
imprisonment, or imprisonment of either description up to ten
years. Section 377 applies irrespective of gender, age, or consent.
The expression ‘carnal intercourse’ used in Section 377 is distinct F
from ‘sexual intercourse’ which appears in Sections 375 and 497
of the IPC. The phrase “carnal intercourse against the order of
nature” is not defined by Section 377, or in the Code. [Paras
12.1, 12.2] [721-F-G]
Khanu v. Emperor AIR 1925 Sind 286; Khandu v. G
Emperor AIR 1934 Lah 261 : 1934 Cri LJ 1096;
Lohana Vasantlal Devchand & Ors v. State AIR 1968
Guj 252; Fazal Rab Choudhary v. State of Bihar (1982)
3 SCC 9 – referred to
H
432 SUPREME COURT REPORTS [2018] 7 S.C.R.

A The New International Webster’s Comprehensive
Dictionary of the English Language (Deluxe
Encyclopedic Edition, 1996) – referred to
2. Whilst a great deal of scientific research has examined
possible genetic, hormonal, developmental, psychological, social
B and cultural influences on sexual orientation, no findings have
conclusively linked sexual orientation to any one particular factor
or factors. It is believed that one’s sexuality is the result of a
complex interplay between nature and nurture. Sexual orientation
is an innate attribute of one’s identity, and cannot be altered.
Sexual orientation is not a matter of choice. It manifests in early
C adolescence. Homosexuality is a natural variant of human
sexuality. [Para 13.1] [723-D-F]
Lawrence et al. v. Texas 539 U.S. 558 (2003) – referred
to
D Brief for the Amici Curiae American Psychological
Association, American Psychiatric Association, National
Association of Social Workers, and Texas Chapter of
the National Association of Social Workers in
Lawrence et al. v. Texas 539 U.S. 558(2003); KK Gulia
and HN Mallick, Homosexuality: a dilemma in
E discourse, 54 Indian Journal of Physiology and
Pharmacology (2010), at pp. 5, 6 and 8; Jack Drescher,
Out of DSM: Depathologizing Homosexuality, 5(4)
Behavioral Sciences (2015), at p. 565; The ICD-10
classification of mental and behavioural disorders:
F clinical descriptions and diagnostic guidelines, World
Health Organization, Geneva (1992); Indian
Psychiatry Society: “Position statement on
Homosexuality” IPS / Statement / 02/07/2018 –
referred to

G 3. SECTION 377 IF APPLIED TO CONSENTING
ADULTS IS VIOLATIVE OF ARTICLE 14
3.1 The twin-test of classification under Article 14 provides
that: (i) there should be a reasonable classification based on
intelligible differentia; and, (ii) this classification should have a
rational nexus with the objective sought to be achieved. Section
H
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[DIPAK MISRA, CJI ]

377 operates in a vastly different manner for two classes of A
persons based on their “sexual orientation” i.e. the LGBT
persons and heterosexual persons. Section 377 penalises all forms
of non penile-vaginal intercourse. In effect, voluntary consensual
relationships between LGBT persons are criminalised in totality.
The import and effect of Section 377 is that while a consensual
B
heterosexual relationship is permissible, a consensual
relationship between LGBT persons is considered to be ‘carnal’,
and against the order of nature. Section 377 creates an artificial
dichotomy. The natural or innate sexual orientation of a person
cannot be a ground for discrimination. Where a legislation
discriminates on the basis of an intrinsic and core trait of an C
individual, it cannot form a reasonable classification based on an
intelligible differentia. [Paras 14.2, 14.3] [726-D-G]
National Legal Services Authority v. Union of India &
Ors. (2014) 5 SCC 438 – relied on
3.2 A person’s sexual orientation is intrinsic to their being. D
It is connected with their individuality, and identity. A classification
which discriminates between persons based on their innate
nature, would be violative of their fundamental rights, and cannot
withstand the test of constitutional morality. [Para 14.5] [727-B]
3.3 In contemporary civilised jurisprudence, with States E
increasingly recognising the status of same-sex relationships, it
would be retrograde to describe such relationships as being
‘perverse’, ‘deviant’, or ‘unnatural’. [Para 14.6] [727-B-C]
3.4 While Section 375 permits consensual penetrative acts
(the definition of ‘penetration’ includes oral and anal sex), Section F
377 makes the same acts of penetration punishable irrespective
of consent. This creates a dichotomy in the law. The proscription
of a consensual sexual relationship under Section 377 is not
founded on any known or rational criteria. Sexual expression and
intimacy of a consensual nature, between adults in private, cannot G
be treated as “carnal intercourse against the order of nature”.
[Paras 14.7, 14.8] [727-E-F]
Shayara Bano v. Union of India & Ors. (2017) 9 SCC
1 – relied on
H
434 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 4. SECTION 377 IS VIOLATIVE OF ARTICLE 15
Sex as it occurs in Article 15, is not merely restricted to
the biological attributes of an individual, but also includes their
“sexual identity and character”. The prohibition against
discrimination under Article 15 on the ground of ‘sex’ should,
B therefore, encompass instances where such discrimination takes
place on the basis of one’s sexual orientation. Race, caste, sex,
and place of birth are aspects over which a person has no control,
ergo they are immutable. On the other hand, religion is a
fundamental choice of a person. Discrimination based on any of
these grounds would undermine an individual’s personal
C autonomy. [Paras 15.1, 15.2] [729-C; 730-F-G]
Egan v. Canada [1995] SCC 98; Vriend v. Alberta
[1998] SCC 816 – referred to
Nicholas Toonen v. Australia Communication No. 488/
1992, U.N. Doc.CCPR/C/50/D/488/1992 (1994);
D
Reading Swaraj into Article 15: A New Deal For All
Minorities by Tarunabh Khaitan, 2 NUJS Law Review
(2009), at p. 419; John Gardner, On the Ground of Her
Sex (uality), 18(2) Oxford Journal of Legal Studies
(1998), at p. 167 – referred to
E 4.2 Section 15(1), of the Canadian Charter like Article 15
of our Constitution, does not include “sexual orientation” as a
prohibited ground of discrimination. Notwithstanding that, the
Canadian Supreme Court in a decision has held that sexual
orientation is a “ground analogous” to the other grounds specified
F under Section 15(1). Discrimination based on any of these grounds
has adverse impact on an individual’s personal autonomy, and is
undermining of his personality. A similar conclusion would be in
the Indian context as well in light of the underlying aspects of
immutability and fundamental choice. The LGBT community is a
sexual minority which has suffered from unjustified and
G unwarranted hostile discrimination, and is equally entitled to the
protection afforded by Article 15. [Para 15.2] [731-B-D]
5. SECTION 377 VIOLATES THE RIGHT TO LIFE AND
LIBERTY GUARANTEED BY ARTICLE 21
5.1 Sexual orientation is innate to a human being. It is an
H
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 435
[DIPAK MISRA, CJI ]

important attribute of one’s personality and identity. A
Homosexuality and bisexuality are natural variants of human
sexuality. LGBT persons have little or no choice over their sexual
orientation. LGBT persons, like other heterosexual persons, are
entitled to their privacy, and the right to lead a dignified existence,
without fear of persecution. They are entitled to complete
B
autonomy over the most intimate decisions relating to their
personal life, including the choice of their partners. Such choices
must be protected under Article 21. [Para 16.1] [733-D-E]
Maneka Gandhi v. Union of India & Anr. (1978) 1 SCC
248 : [1978] 2 SCR 621; Francis Coralie Mullin v.
Administrator, Union Territory of Delhi & Ors. (1981) C
1 SCC 608 : [1981] 2 SCR 516; K.S. Puttaswamy &
Anr. v. Union of India & Ors. (2017) 10 SCC 1; Common
Cause (A Registered Society) v. Union of India & Anr.
(2018) 5 SCC 1 – relied on
National Coalition for Gay and Lesbian Equality and D
Anr. v. Minister of Justice and Ors. [1998] ZACC 15 –
referred to
5.2 Section 377 insofar as it curtails the personal liberty of
LGBT persons to engage in voluntary consensual sexual
relationships with a partner of their choice, in a safe and dignified E
environment, is violative of Article 21. It inhibits them from
entering and nurturing enduring relationships. As a result, LGBT
individuals are forced to either lead a life of solitary existence
without a companion, or lead a closeted life as “unapprehended
felons”. Thus, Section 377 prevents LGBT persons from leading F
a dignified life as guaranteed by Article 21. [Para 16.1] [734-B-C]
“unapprehended felons” - according to Professor
Edwin Cameron, LGBT persons are reduced to the status
of “unapprehended felons” owing to the ever-so-
present threat of prosecution; Edwin Cameron,
G
Sexual Orientation and the Constitution: A Test Case
for Human Rights, 110 South African Law Journal
(1993), at p. 450; Bowers v. Hardwick 478 U.S. 186
(1986); Paris Adult Theatre I v. Slaton 413 U.S. 49
(1973) – referred to.
H
436 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 6. RIGHT TO PRIVACY
6.1 The right to privacy has now been recognised to be an
intrinsic part of the right to life and personal liberty under
Article 21. Sexual orientation of a person is an essential attribute
of privacy. Its protection lies at the core of Fundamental Rights
B guaranteed by Articles 14, 15, and 21. The right to privacy is
broad-based and pervasive under our Constitutional scheme, and
encompasses decisional autonomy, to cover intimate/personal
decisions and preserves the sanctity of the private sphere of an
individual. [Para 16.2] [736-C-E]
C 6.2 The right to privacy is not simply the “right to be let
alone”, and has travelled far beyond that initial concept. It now
incorporates the ideas of spatial privacy, and decisional privacy
or privacy of choice. It extends to the right to make fundamental
personal choices, including those relating to intimate sexual
conduct, without unwarranted State interference. Section 377
D affects the private sphere of the lives of LGBT persons. It takes
away the decisional autonomy of LGBT persons to make choices
consistent with their sexual orientation, which would further a
dignified existence and a meaningful life as a full person. Section
377 prohibits LGBT persons from expressing their sexual
E orientation and engaging in sexual conduct in private, a decision
which inheres in the most intimate spaces of one’s existence.
[Para 16.2] [736-E-G; 737-A]
6.3 A subjective notion of public or societal morality which
discriminates against LGBT persons, and subjects them to
F criminal sanction, simply on the basis of an innate characteristic
runs counter to the concept of Constitutional morality, and cannot
form the basis of a legitimate State interest. [Para 16.2] [737-E]
7. RIGHT TO HEALTH
The right to health, and access to healthcare are also crucial
G facets of the right to life guaranteed under Article 21 of the
Constitution. LGBT persons being a sexual minority have been
subjected to societal prejudice, discrimination and violence on
account of their sexual orientation. Since Section 377 criminalises
“carnal intercourse against the order of nature” it compels LGBT
persons to lead closeted lives. As a consequence, LGBT persons
H
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 437
[DIPAK MISRA, CJI ]

are seriously disadvantaged and prejudiced when it comes to A
access to health-care facilities. This results in serious health
issues, including depression and suicidal tendencies amongst
members of this community. [Para 16.3] [738-A-C]
Common Cause (A Registered Society) v. Union of India
& Anr. (2018) 5 SCC 1; C.E.S.C. Limited & Ors. v. B
Subhash Chandra Bose & Ors. (1992) 1 SCC 441 :
[1991] 2 Suppl. SCR 267; Union of India v. Mool
Chand Khairati Ram Trust, (2018) SCC OnLine SC 675;
Centre for Public Interest Litigation v. Union of India
& Ors. (2013) 16 SCC 279 : [2013] 9 SCR 1103 –
relied on C
The Economic Cost of Stigma and the Exclusion of
LGBT People: A Case Study of India, by M.V. Lee
Badgett, World Bank Group (2014); India’s
homosexual discrimination and health consequences
by Govindasamy Agoramoorthy and Minna J Hsu, D
41(4) Rev Saude Publica (2007), at pp. 567-660 –
referred to
8. SECTION 377 VIOLATES THE RIGHT TO FREEDOM
OF EXPRESSION OF LGBT PERSONS
LGBT persons express their sexual orientation in myriad E
ways. One such way is engagement in intimate sexual acts like
those proscribed under Section 377. Owing to the fear of
harassment from law enforcement agencies and prosecution,
LGBT persons tend to stay ‘in the closet’. They are forced not
to disclose a central aspect of their personal identity i.e. their F
sexual orientation, both in their personal and professional spheres
to avoid persecution in society and the opprobrium attached to
homosexuality. Unlike heterosexual persons, they are inhibited
from openly forming and nurturing fulfilling relationships, thereby
restricting rights of full personhood and a dignified existence. It
also has an impact on their mental well-being. Section 377 cannot G
be justified as a reasonable restriction under Article 19(2) on the
basis of public or societal morality, since it is inherently subjective.
[Paras 17.1, 17.2] [740-B, C-E; 741-E-F]
National Legal Services Authority v. Union of India &
Ors. (2014) 5 SCC 438; S. Khushboo v. Kanniammal & H
438 SUPREME COURT REPORTS [2018] 7 S.C.R.

A Anr. (2010) 5 SCC 600 : [2010] 5 SCR 322 – relied on
Naz Foundation v. Government of NCT of Delhi & Ors.
(2009) 111 DRJ 1 (DB); A.K. Roy v. Union of India
(1982) 1 SCC 271 : [1982] 2 SCR 272– referred to
Suresh Kumar Koushal & Anr. v. Naz Foundation &
B Ors. (2014) 1 SCC 1 : [2013] 17 SCR116 – overruled
Lawrence et al. v. Texas 539 U.S. 558 (2003); National
Coalition for Gay and Lesbian Equality and Anr. v.
Minister of Justice and Ors. [1998] ZACC 15 –
referred to
C 9. History owes an apology to the members of this
community and their families, for the delay in providing redressal
for the ignominy and ostracism that they have suffered through
the centuries. The members of this community were compelled
to live a life full of fear of reprisal and persecution. This was on
D account of the ignorance of the majority to recognise that
homosexuality is a completely natural condition, part of a range
of human sexuality. The mis-application of this provision denied
them the Fundamental Right to equality guaranteed by Article
14. It infringed the Fundamental Right to non-discrimination under
Article 15, and the Fundamental Right to live a life of dignity and
E privacy guaranteed by Article 21. [Para 20] [745-E-F]
Case Law Reference
Per Dipak Misra, CJI [for himself and Khanwilkar, J.]
(2014) 5 SCC 438 relied on Para 5
F
(2017) 10 SCC 1 followed Para 10
(2018) 7 SCC 192 referred to Para 22
2018 (5) SCALE 422 relied on Para 22
[2014] 9 SCR 965 referred to Para 23
G
[1981] 2 SCR 516 referred to Para 24
(2018) 5 SCC 1 referred to Para 24
[2007] 12 SCR 991 referred to Para 25
[2017] 3 SCR 630 relied on Para 27
H
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 439
[DIPAK MISRA, CJI ]

[2010] 5 SCR 322 referred to Para 29 A
[2012] 9 SCR 733 referred to Para 31
[2013] 14 SCR 213 referred to Para 31
[2005] 2 SCR 708 referred to Para 47
[1971] 2 SCR 446 referred to Para 50 B
[1979] 1 SCR 609 referred to Para 50
(1982) 3 SCC 9 referred to Para 55
[1973] 2 SCR 541 referred to Para 55
C
[2005] 4 Suppl. SCR 582 referred to Para 56
[1973] Suppl. SCR 1 referred to Para 56
[2004] 2 Suppl. SCR 723 referred to Para 62
[1991] 3 SCR 873 referred to Para 63
D
(2011) 6 SCC 261 referred to Para 74
AIR 1925 Sind 286 referred to Para 75
AIR 1968 Guj 252 referred to Para 76
[1969] Cri LJ 818 (Ker) referred to Para 78
E
1992 (1) OLR 316 referred to Para 79
[1979] 1 SCR 26 referred to Para 82
[2003] 5 Suppl. SCR 152 referred to Para 83
[1997] 3 SCR 269 relied on Para 84 F
[1989] 2 Suppl. SCR 731 relied on Para 85
[2004] 3 SCR 698 referred to Para 91
[1976] 1 SCR 906 relied on Para 95
2018 (8) SCALE 72 relied on Para 118 G
[1978] 2 SCR 621 relied on Para 131
[1999] 1 S.C.R. 497 referred to Para 133
[1995] 2 SCR 513 referred to Para 147
[1994] 4 Suppl. SCR 353 relied on Para 154 H
440 SUPREME COURT REPORTS [2018] 7 S.C.R.

A [1996] 10 Suppl. SCR 284 relied on Para 173
[1950] 1 SCR 869 referred to Para 174
[1998] 1 SCR 493 referred to Para 198
[1979] 1 SCR 392 referred to Para 232
B [2006] 7 Suppl. SCR 336 relied on Para 234
[1974] 2 SCR 348 relied on Para 235
[1955] SCR 1045 relied on Para 236
[1950] SCR 759 relied on Para 241
C
[1989] 2 SCR 204 relied on Para 242
[2015] 5 SCR 963 relied on Para 244
[2013] 17 SCR 1019 overruled Para 253
Per R.F. Nariman, J.
D
(2014) 5 SCC 438 relied on Para 5
[2007] 12 SCR 991 relied on Para 44
(2018) 5 SCC 1 relied on Para 62
2018 SCC Online 343 relied on Para 64
E
2018 SCC Online SC 275 relied on Para 64
[2013] 17 SCR 116 overruled Para 73
[1980] 1 SCR 368 relied on Para 78

F [2003] 5 Suppl. SCR 930 relied on Para 78
[2015] 5 SCR 963 relied on Para 83
[1996] 10 Suppl. SCR 472 disapproved Para 90
[2011] 8 SCR 1028 relied on Para 97
G [2016] 3 SCR 865 relied on Para 97
Per Dr. D.Y. Chandrachud, J.
[2013] 17 SCR 116 overruled Para 3
(2010) Cri LJ 94 referred to Para 12
H AIR 1934 Sind. 206 referred to Para 23
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 441
[DIPAK MISRA, CJI ]

AIR 1935 Sind. 78; referred to Para 23 A
(1988) Cr.L.J. 980. referred to Para 23
(1952) SCR 284 referred to Para 26
[1989] 1 SCR 689 referred to Para 26
[1974] 2 SCR 348 referred to Para 27 B
(2017) 9 SCC 1 referred to Para 27
AIR (1925) Sind. 286 referred to Para 30
[1959] SCR 995 referred to Para 34
C
[1962] SCR 842 referred to Para 34
[1970] 3 SCR 530 referred to Para 34
[1973] 2 SCR 757 referred to Para 34
[1978] 2 SCR 621 referred to Para 34
D
AIR (1951) Cal. 563 referred to Para 35
[1982] 1 SCR 438 referred to Para 35
[2007] 12 SCR 991 referred to Para 37
[1989] 1 SCR 143 referred to Para 43
E
(2017) 10 SCC 1 followed Para 52
[2016] 5 SCR 761 relied on Para 64
(2018) 5 SCC 1 followed Para 65
(2018) SCC OnLine SC 275 referred to Para 67 F
(2018) SCC OnLine SC 343 referred to Para 67
[1991] 2 Suppl. SCR 267 referred to Para 68
[1995] 1 SCR 626 referred to Para 68
[1996] 2 Suppl. SCR 331 referred to Para 68 G
[2012] 2 SCR 715 referred to Para 68
(2016) 10 SCC 726 referred to Para 68
(2018) 5 SCC 1 referred to Para 68
[1984] 2 SCR 67 referred to Para 68 H
442 SUPREME COURT REPORTS [2018] 7 S.C.R.

A [1995] 1 SCR 626 referred to Para 68
[1991] 2 Suppl. SCR 267 referred to Para 68
[1996] 1 SCR 884 referred to Para 68
[1998] 1 SCR 1120 referred to Para 68
B (2001) 5 ALD 522 referred to Para 68
(2016) 10 SCC 726 referred to Para 68
2018 (8) SCALE 72 followed Para 142
Per Indu Malhotra, J.
C
[2013] 17 SCR 116 overruled Para 3
(1982) 3 SCC 9 referred to Para 12.4
(2014) 5 SCC 438 relied on Para 14.4
(2017) 9 SCC 1 relied on Para 14.9
D
[1978] 2 SCR 621 relied on Para 16
[1981] 2 SCR 516 relied on Para 16.1
(2017) 10 SCC 1 followed Para 16.1
(2018) 5 SCC 1 relied on Para 16.1
E
[1991] 2 Suppl. SCR 267 relied on Para 16.3
[2013] 9 SCR 1103 relied on Para 16.3
[2010] 5 SCR 322 relied on Para 17.2

F [1982] 2 SCR 272 referred to Para 19
CRIMINAL ORIGINAL JURISDICTION : Writ Petition
(Criminal) No. 76 of 2016
Under Article 32 of the Constitution of India.
WITH
G W.P. (C) No. 572/2016 and W.P. (Crl.) Nos. 88, 100, 101 and 121
of 2018.
Tushar Mehta, ASG, Anand Grover, K. Radhakrishnan, Mahesh
Jethmalani, Soumya Chakraborty, Chander Uday Singh, Ashok Desai,
Shyam Divan, Sr. Advs., Saurabh Kirpal, Mahesh Agarwal, Nikhil
H Rohatgi, Dr. Menaka Guruswamy, Ms. Arundhati Katju, Ms. Neeha
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 443
[DIPAK MISRA, CJI ]

Nagpal, Sagar Gupta, Ms. Devanshi Singh, Ms. Pritha Srikumar Iyer, A
Shashank Khurana, E.C. Agrawala, Mrs. Shally Bhasin, Sunil Fernandes,
Ms. Astha Sharma, Ms. Nupur Kumar, Ms. Tripti Tandon, Suraj Sanap,
Ms. Priyanshia Sharma, Samyak Gangwal, Ms. Aarushi Mahajan,
Ms. Priyam Cherian, Ms. Anju Thomas, Arun Srikumar, Ms. Vasudha
Sharma, Kaustav Saha, Ms. Neha Methen, O. P. Bhadani,
B
S. S. Shamshery, Rajat Nair, R. Balasubramanium, Kanu Agarwal,
Ms. Swati Ghildiyal, Ms. Ranjana Narayan, K. L. Janjani, T. A. Khan,
Ms. Anil Katiyar, Arvind Kumar Sharma, B. V. Balram Das,
K. V. Jagdishvaran, Mrs. G. Indira, Ms. Mugdha Pande, Ravi Sharma,
Pallav Mongia, Praveen Agarwal, Pankaj Sharma, Dr. Harshvir Pratap
Shrama, A. K. Srivastava, Paras Joshi, Pankaj Kumar, Manoj V. George, C
Ms. Shilpa Liza George, Aakarsh Kamra, B. D. Das, Nilkant Nayak,
Towseef Ahmad Dar, Ms. Munmun, Subart, Zulfiker Ali P. S., Dhiraj
Abraham Philip, Febin Mathew Varghese, Ms. Palak Misra,
Ms. Amritananda Chakravarty, Mihir Samson, Ms. Shreya Munoth,
Ms. Deepanshi Ishar, Ms. Liz Mathew, Gautam Narayan, Jawahar Raja,
D
Chinmay Kanojia, Amjid Maqbool, Ms. Ila Sheel, Ms. Anu Bindra,
Siddharth Narain, Gowthaman Rangarajan, Sai Vinod, Nikhil Nayyar,
Vasuman Khandelwal, Govind Manoharan, Pukhrambam Ramesh
Kumar, Jawahar Raja, Gautam Bhatia, Arvind Narain, Chinmay Kanojia,
Ajay Bansal, Gaurav Yadava, Mrs.Veena Bansal, Vijay Pratap Yadav,
Ms. Harvinder Chawdhury, Dr. Nisheh Sharma, Anil Kumar Singh, E
Ms. Meera Patel, Tejas Patel, Mughees Ahmed Khan, Advs. for the
appearing parties.
The Judgment of the Court was delivered by
DIPAK MISRA, CJI (for himself and A.M. Khanwilkar, J.)
F
C O N T E N T S*
S. No(s). Heading Page No(s)
A. Introduction………………………… 3-11
B. The Reference……………………… 11-15
G
C. Submissions on behalf of the petitioners… 15-30
D. Submissions on behalf of the respondents
and other intervenors.…………………… 31-44
* Ed. note: The pages mentioned in the index above giving the scheme of the judgment
denotes the page number of the original judgment. H
444 SUPREME COURT REPORTS [2018] 7 S.C.R.

A E. Decisions in Naz Foundation and
SureshKoushal ………………..…….. 45-48
F. Other judicial pronouncements on
Section 377 IPC ……………......... 48-57
G. The Constitution – an organic charter
B of progressive rights …………… 57-64
H. Transformative constitutionalism and
the rights of LGBT community……… 65-74
I. Constitutional morality and Section 377 IPC..74-81
C J. Perspective of human dignity………… 81-89
K. Sexual orientation ……………………… 89-96
L. Privacy and its concomitant aspects……… 96-111
M . Doctrine of progressive realization of rights...111-118
D N. International perspective……………...... 118
(i) United States………………………... 118-122
(ii) Canada……………………………… 123-125
(iii) South Africa………………………… 125
E
(iv) United Kingdom……………………. 126-127
(v) Other Courts/Jurisdictions………… 127-129
O. Comparative analysis of Section 375 and
Section 377 IPC…………………………… 129-140
F P. The litmus test for survival of Section
377 IPC ................................................... 140-156
Q. Conclusions .............................................. 156-166

G 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
H John Stuart Mill:-
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 445
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“But society has now fairly got the better of individuality; and A
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 B
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 C
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 D
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 E
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 F
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 G
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 H
446 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 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
B
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
C 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 law on some obsolete idea and idealism affects the kernel
D 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.
E
5. The eminence of identity has been luculently stated in National
Legal Services Authority v. Union of India and others 1, popularly
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
F gender 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 sex 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.
G 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 sex 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
1
H (2014) 5 SCC 438
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 447
[DIPAK MISRA, CJI ]

operation and also include persons who cannot undergo successful A
operation. Elaborating further, he said:-
“Gender identity refers to each person’s deeply felt internal and
individual experience of gender, which may or may not correspond
with the sex assigned at birth, including the personal sense of the
body which may involve a freely chosen, modification of bodily B
appearance or functions by medical, surgical or other means
and other expressions of gender, including dress, speech and
mannerisms. Gender identity, therefore, refers to an individual’s
self-identification as a man, woman, transgender or other
identified category.”
C
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 D
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 E
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 F
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
G
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
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448 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 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 human rights which includes right to life and
liberty with dignity, right to privacy and freedom of expression,
B 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
C 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 human rights and the
constitutionally guaranteed right to life and liberty with dignity. It lays
stress on the judicial recognition of such rights as an inextricable
D 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
E 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
F 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
G 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
H visualizing the opportunities and rejection of external views with a clear
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 449
[DIPAK MISRA, CJI ]

conscience that is in accord with constitutional norms and values or A
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
B
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, Section 377 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 others 3, is the central issue involved in the present C
controversy.
B. The Reference
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 D
of the Constitution of India and further to declare Section 377 of the
Indian Penal Code (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 E
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 F
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”. G
Attention of this Court was also invited to a nine-Judge Bench decision
in K.S. Puttaswamy and another v. Union of India and others 4
2
(2014) 1 SCC 1
3
(2009) 111 DRJ 1
4
(2017) 10 SCC 1
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450 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 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 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
B
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,
C Section 377 IPC 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
D 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.
12. Appreciating the said submissions, the three-Judge Bench
stated that:-
E “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
law copes with life and accordingly change takes place. The
F 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 law and
G 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
5
[2008] EWHC 1777 (QB)
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NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 451
[DIPAK MISRA, CJI ]

understood to have stated that there should not be fear of law A
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 B
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 C
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 D
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
E
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 F
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 G
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
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452 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 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
B
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
C 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
D 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
E “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
F 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
G 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
H
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[DIPAK MISRA, CJI ]

sexual orientation is an integral and innate facet of every individual’s A
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
B
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 C
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 Violence Act, 2005” for various kinds of live-
in relationships. The same protection, as per the petitioners, must be
accorded to same sex relationships.
D
17. It is urged by the learned counsel for the petitioners that
individuals belonging to the LGBT group suffer discrimination and abuse
throughout their lives due to the existence of Section 377 IPC 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 E
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 F
which a sense of estrangement and alienation has developed and continues
to prevail amongst the members belonging to the LGBT group.
Compulsory alienation due to stigma and threat is contrary to the
fundamental principle of liberty.
18. The petitioners have referred to the decision of this Court in G
NALSA case wherein transgenders have been recognized as a third
gender apart from male and female and have been given certain rights.
Yet, in view of the existence of Section 377 in the IPC, consensual
activities amongst transgenders would continue to constitute an offence.
6
(2013) 15 SCC 755 H
454 SUPREME COURT REPORTS [2018] 7 S.C.R.

A Drawing inspiration from the NALSA case, the petitioners submit that
the rights of the LGBT group are not fully realized and they remain
incomplete citizens because their expression as regards sexuality is not
allowed to be pronounced owing to the criminality attached to the sexual
acts between these persons which deserves to be given a burial and,
therefore, the rights of the LGBT community also need equal, if not
B
more, constitutional protection. Accordingly, the petitioners are of the
view that Section 377 of the IPC be read down qua the LGBT community
so as to confine it only to the offence of bestiality and non-consensual
acts in view of the fact that with the coming into force of the Criminal
Law (Amendment) Act, 2013 and the Protection of Children from Sexual
C Offences Act, 2012 (POCSO Act), the scope of sexual assault has been
widened to include non peno-vaginal sexual assault and also criminalize
non-consensual sexual acts between children thereby plugging important
gaps in the law governing sexual violence in India.
19. The petitioners have also submitted that Section 377, despite
D being a pre-constitutional law, was retained post the Constitution coming
into effect by virtue of Article 372 of the Constitution, but it must be
noted that the presumption of constitutionality is merely an evidentiary
burden initially on the person seeking to challenge the vires of a statute
and once any violation of fundamental rights or suspect classification is
prima facie shown, then such presumption has no role. In the case at
E hand, the petitioners face a violation of their fundamental rights to an
extent which is manifestly clear and it is a violation which strikes at the
very root or substratum of their existence. The discrimination suffered
at the hands of the majority, the onslaught to their dignity and invasion on
the right to privacy is demonstrably visible and permeates every nook
F and corner of the society.
20. It is the argument of the petitioners that Section 377, if retained
in its present form, would involve the violation of, not one but, several
fundamental rights of the LGBTs, namely, right to privacy, right to dignity,
equality, liberty and right to freedom of expression. The petitioners
G contend that sexual orientation which is a natural corollary of gender
identity is protected under Article 21 of the Constitution and any
discrimination meted out to the LGBT community on the basis of sexual
orientation would run counter to the mandate provided under the
Constitution and the said view has also gained approval of this Court in
the NALSA case.
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NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 455
[DIPAK MISRA, CJI ]

21. The petitioners have also relied upon the view in K.S. A
Puttaswamy (supra) to advance their argument that sexual orientation
is also an essential attribute of privacy. Therefore, protection of both
sexual orientation and right to privacy of an individual is extremely
important, for without the enjoyment of these basic and fundamental
rights, individual identity may lose significance, a sense of trepidation
B
may take over and their existence would be reduced to mere survival. It
is further urged that sexual orientation and privacy lie at the core of the
fundamental rights which are guaranteed under Articles 14, 19 and 21 of
the Constitution and in the light of the decision in Puttaswamy (supra), it
has become imperative that Section 377 be struck down. It is contended
that the right to privacy has to take within its ambit and sweep the right C
of every individual, including LGBTs, to make decisions as per their
choice without the fear that they may be subjected to humiliation or
shunned by the society merely because of a certain choice or manner of
living.
22. Having canvassed with vehemence that sexual orientation is D
an important facet of the right to privacy which has been raised to the
pedestal of a cherished right, the learned counsel for the petitioners have
vigorously propounded that sexual autonomy and the right to choose a
partner of one’s choice is an inherent aspect of the right to life and right
to autonomy. In furtherance of the said view, they have relied upon the
authorities in Shakti Vahini v. Union of India and others7 and Shafin E
Jahan v. Asokan K.M.8 wherein it has been clearly recognized that an
individual’s exercise of choice in choosing a partner is a feature of dignity
and, therefore, it is protected under Articles 19 and 21 of the Constitution.
23. According to the petitioners, there is no difference between
persons who defy social conventions to enter into inter-religious and F
inter-caste marriages and those who choose a same sex partner in the
sense that the society may disapprove of inter-caste or inter-religious
marriages but this Court is for enforcing constitutional rights. Similarly,
as per the petitioners, even if there is disapproval by the majority of the
sexual orientation or exercise of choice by the LGBT persons, the Court G
as the final arbiter of the constitutional rights, should disregard social
morality and uphold and protect constitutional morality which has been
adverted to by this Court in several cases, including Manoj Narula v.
7
(2018) 7 SCC 192
8
AIR 2018 SC 1933 : 2018 (5) SCALE 422
H
456 SUPREME COURT REPORTS [2018] 7 S.C.R.

A Union of India9, for that is the governing rule. It is argued that the
Delhi High Court in Naz Foundation (supra) has referred to and analysed
the concept of constitutional morality and ultimately struck down Section
377 IPC clearly stating that carnal intercourse between homosexuals
and heterosexuals with consent cannot be an offence.
B 24. The LGBT persons cannot, according to the petitioners, be
penalized simply for choosing a same sex partner, for the constitutional
guarantee of choice of partner extends to the LGBT persons as well.
Learned counsel for the petitioners and the supporting intervenors have
submitted that sexual orientation, being an innate facet of individual
identity, is protected under the right to dignity. To bolster the said argument,
C reliance has been placed upon Francis Coralie Mullin v. Administrator,
Union Territory of Delhi and others10 and Common Cause (A
Registered Society) v. Union of India and another11 wherein it was
held that the right to life and liberty, as envisaged under Article 21, is
meaningless unless it encompasses within its sphere individual dignity
D and right to dignity includes the right to carry such functions and activities
as would constitute the meaningful expression of the human self.
25. It is submitted that Section 377 is an anathema to the concept
of fraternity as enshrined in the Preamble to our Constitution and the
Indian Constitution mandates that we must promote fraternity amongst
E the citizens sans which unity shall remain a distant dream.
26. The petitioners have further contended that Section 377 is
violative of Article 14 of the Constitution as the said Section is vague in
the sense that carnal intercourse against the order of nature is neither
defined in the Section nor in the IPC or, for that matter, any other law.
F There is, as per the petitioners, no intelligible differentia or reasonable
classification between natural and unnatural sex as long as it is consensual
in view of the decision of this Court in Anuj Garg and others v. Hotel
Association of India and others12 which lays down the principle that
classification which may have been treated as valid at the time of its
adoption may cease to be so on account of changing social norms.
G
27. Section 377, as argued by the petitioners, is manifestly arbitrary
and over-broad and for the said purpose, immense inspiration has been
9
(2014) 9 SCC 1
10
(1981) 1 SCC 608
11
(2018) 5 SCC 1
12
H (2008) 3 SCC 1
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 457
[DIPAK MISRA, CJI ]

drawn from the principles stated in Shayara Bano v. Union of India A
and others13 , for making consensual relationship a crime on the ground
that it is against the order of nature suffers from manifest arbitrariness
at the fulcrum.
28. It is the case of the petitioners that Section 377 violates Article
15 of the Constitution since there is discrimination inherent in it based on B
the sex of a person’s sexual partner as under Section 376(c) to (e), a
person can be prosecuted for acts done with an opposite sex partner
without her consent, whereas the same acts if done with a same-sex
partner are criminalized even if the partner consents. The petitioners
have drawn the attention of this Court to the Justice J.S Verma Committee
on Amendments to Criminal Law which had observed that ‘sex’ occurring C
in Article 15 includes sexual orientation and, thus, as per the petitioners,
Section 377 is also violative of Article 15 of the Constitution on this
count.
29. It is argued with astuteness that Section 377 has a chilling
effect on Article 19(1)(a) of the Constitution which protects the D
fundamental right of freedom of expression including that of LGBT
persons to express their sexual identity and orientation, through speech,
choice of romantic/sexual partner, expression of romantic/sexual desire,
acknowledgment of relationships or any other means and that Section
377 constitutes an unreasonable exception and is thereby not covered E
under Article 19(2) of the Constitution. To buttress the said stance, reliance
is placed upon the decision in S. Khushboo v. Kanniammal and
another14 wherein it has been held that law should not be used in such a
manner that it has a chilling effect on the freedom of speech and
expression. Additionally, the view in NALSA case has also been strongly
pressed into service to emphasize that the said decision clearly spells out F
that the right under Article 19(1)(a) includes one’s right to expression of
his/her self-identified gender which can be expressed through words,
action, behaviour or any other form.
30. The petitioners have also contended that Section 377 violates
the rights of LGBT persons under Article 19(1)(c) and denies them the G
right to form associations. Similarly, such persons are hesitant to register
companies to provide benefits to sexual minorities due to the fear of
state action and social stigma. Further, a conviction under Section 377
13
(2017) 9 SCC 1
14
(2010) 5 SCC 600 H
458 SUPREME COURT REPORTS [2018] 7 S.C.R.

A IPC renders such persons ineligible for appointment as a director of a
company.
31. It is averred that Section 377 IPC, by creating a taint of
criminality, deprives the LGBT persons of their right to reputation which
is a facet of the right to life and liberty of a citizen under Article 21 of the
B Constitution as observed by this Court in Kishore Samrite v. State of
U.P. and others15 and Umesh Kumar v. State of Andhra Pradesh
and another16 to the effect that reputation is an element of personal
security and protected by the Constitution with the right to enjoyment of
life and liberty. This right, as per the petitioners, is being denied to the
LGBT persons because of Section 377 IPC as it makes them
C apprehensive to speak openly about their sexual orientation and makes
them vulnerable to extortion, blackmail and denial of State machinery
for either protection or for enjoyment of other rights and amenities and
on certain occasions, the other concomitant rights are affected.
32. The petitioners have advanced their argument that Section
D 377 IPC impedes the ability of the LGBTs to realize the constitutionally
guaranteed right to shelter. To illustrate the same, the petitioners have
drawn the attention of the Court to the fact that LGBTs seek assistance
of private resources such as Gay Housing Assistance Resources (GHAR)
in order to access safe and suitable shelter and this is an indication that
E the members of this community are in need of immediate care and
protection of the State.
33. The decision in Suresh Koushal (supra), as per the petitioners,
is per incuriam as the view observed therein has failed to take into
account the amendment to Section 375 IPC which has rendered sexual
F ‘carnal intercourse against the order of nature’ between man and woman
as permissible. Section 377, on the other hand, has continued to render
same sex carnal intercourse as an offence, even if it is consensual.
Further, the petitioners have assailed the decision of this Court in Suresh
Koushal’s case on the ground that the view in the said decision on
classification is contrary to the ‘impact or effect test’, for the result, in
G ultimate eventuality, leads to discrimination. Thus, the petitioners have
contended that after Puttaswamy (supra), the view in Suresh Koushal
(supra) needs to be overruled and the proper test would be whether
Section 377 IPC can be enacted by the Parliament today after the
15
(2013) 2 SCC 398
H 16
(2013) 10 SCC 591
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 459
[DIPAK MISRA, CJI ]

decisions of this Court in NALSA (supra) and Puttaswamy (supra) and A
other authorities laying immense emphasis on individual choice.
34. It is further contended that LGBT persons are deprived of
their rights due to the presence of Section 377 as they fear prosecution
and persecution upon revealing their sexual identities and, therefore, this
class of persons never approached this Court as petitioners, rather they B
have always relied upon their teachers, parents, mental health
professionals and other organizations such as NGOs to speak on their
behalf. It is urged that the appellants in Suresh Koushal (supra) led this
Court to assume that LGBT persons constitute only a minuscule fraction
whereas most of the studies indicate that they constitute at least 7-8%
of the population and that apart, rights are not determined on the basis of C
percentage of populace but on a real scrutiny of the existence of right
and denial of the same. It is the stand of the petitioners that majority
perception or view cannot be the guiding factor for sustaining the
constitutionality of a provision or to declare a provision as unconstitutional.
D. Submissions on behalf of the respondents and other D
intervenors
35. The respondent, Union of India, has, vide affidavit dated 11th
July, 2018, submitted that the matter at hand was referred to a Constitution
Bench to decide as to whether the law laid down in Suresh Koushal
(supra) is correct or not and the only question referred to this Bench is E
the question of the constitutional validity of criminalizing ‘consensual
acts of adults in private’ falling under Section 377 IPC.
36. Further, the Union has submitted that so far as the
constitutional validity of Section 377 IPC, to the extent it applies to
‘consensual acts of adults in private’, is concerned, the respondent leaves F
the same to the wisdom of this Court.
37. The respondent has also contended that in the event Section
377 IPC so far as ‘consensual acts of adults in private’ is declared
unconstitutional, other ancillary issues or rights which have not been
referred to this Bench for adjudication may not be dealt with by this G
Bench as in that case, the Union of India expresses the wish to file
detailed affidavit in reply, for consideration of other issues and rights
would have far reaching and wide ramifications under various other
laws and will also have consequences which are neither contemplated
in the reference nor required to be answered by this Hon’ble Bench.
H
460 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 38. The respondent has submitted that allowing any other issue
(other than the constitutional validity of Section 377 IPC) to be argued
and adjudicating the same without giving an opportunity to the Union of
India to file a counter affidavit may not be in the interest of justice and
would be violative of the principles of natural justice.
B 39. Another set of written submissions has been filed by Shri K.
Radhakrishnan, senior counsel, on behalf of intervenor-NGO, Trust God
Ministries. The said intervenor has submitted that the observations of
this Court in Puttaswamy (supra), particularly in Para 146, virtually pre-
empt and forestall the aforesaid NGO from raising substantial contentions
to the effect that there is no uncanalised and unbridled right to privacy
C and the said right cannot be abused. Further, the intervenor has contended
that there is no personal liberty to abuse one’s organs and that the offensive
acts proscribed by Section 377 IPC are committed by abusing the organs.
Such acts, as per the intervenor, are undignified and derogatory to the
constitutional concept of dignity and if any infraction is caused to the
D concept of dignity, then it would amount to constitutional wrong and
constitutional immorality.
40. It is also the case of the intervenor that issues pertaining to
the constitutional and other legal rights of the transgender community,
their gender identity and sexual orientation have been exhaustively
E considered in the light of the various provisions of the Constitution and,
accordingly, reliefs have been granted by this Court in NALSA (supra).
It is contended by the intervenor that no further reliefs can be granted to
them and the prayers made by them is only to abuse privacy and personal
liberty by transgressing the concepts of dignity and public morality.

F 41. As per the intervenor, Section 377 rightly makes the acts stated
therein punishable as Section 377 has been incorporated after taking
note of the legal systems and principles which prevailed in ancient India
and now in 2018, the said Section is more relevant legally, medically,
morally and constitutionally.

G 42. To illustrate this, the intervenor has drawn the attention of this
Court to W. Friedmann from ‘Law in a Changing Society’ wherein he
has observed that to prohibit a type of conduct which a particular society
considers worthy of condemnation by criminal sanctions is deeply
influenced by the values governing that society and it, therefore, varies
from one country to another and one period of history to another.
H
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 461
[DIPAK MISRA, CJI ]

43. Further, it has been contended by the intervenor that persons A
indulging in unnatural sexual acts which have been made punishable
under Section 377 IPC are more susceptible and vulnerable to contracting
HIV/AIDS and the percentage of prevalence of AIDS in homosexuals
is much greater than heterosexuals and that the right to privacy may not
be extended in order to enable people to indulge in unnatural offences
B
and thereby contact AIDS.
44. It is also the case of the intervenor that if Section 377 is
declared unconstitutional, then the family system which is the bulwark
of social culture will be in shambles, the institution of marriage will be
detrimentally affected and rampant homosexual activities for money
would tempt and corrupt young Indians into this trade. C

45. Written submissions have also been filed on behalf of Mr.
Suresh Kumar Koushal, intervenor, submitting therein that the argument
of the petitioners that consensual acts of adults in private have been
decriminalized in many parts of the world and, therefore, it deserves to
be decriminalized in India as well does not hold good for several reasons D
inasmuch as the political, economic and cultural heritage of those countries
are very different from India which is a multi-cultural and multi-linguistic
country.
46. The intervenor has contended that since fundamental rights
are not absolute, there is no unreasonableness in Section 377 IPC and E
decriminalizing the same would run foul to all religions practised in the
country, and, while deciding the ambit and scope of constitutional morality,
Article 25 also deserves to be given due consideration.
47. Another application for intervention, being I.A No. 91250 of
2018, was filed and the same was allowed. It has been contended by the F
said intervenor that in the attempt that Section 377 is struck down, it
would render the victims complaining of forced acts covered under the
existing Section 377 IPC remediless as the said Section not only impinges
on carnal intercourse against the order of nature between two consenting
adults but also applies to forced penile non- vaginal sexual intercourse G
between adults. This, as per the intervenor, would be contrary to the
decision of this Court in Iqbal Singh Marwah and another v.
Meenakshi Marwah and another17.

17
(2005) 4 SCC 370
H
462 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 48. The applicant has also submitted that in the event consenting
acts between two same sex adults are excluded from the ambit of Section
377 IPC, then a married woman would be rendered remediless under
the IPC against her bi-sexual husband and his consenting male partner
indulging in any sexual acts.
B 49. The intervenor has suggested that the alleged misuse of Section
377 IPC as highlighted by the petitioners can be curbed by adding an
explanation to Section 377 IPC defining ‘aggrieved person’ which shall
include only non-consenting partner or aggrieved person or wife or
husband or any person on their behalf on the lines of Section 198(1) of
Code of Criminal Procedure, 1973. This, as per the applicant, would
C curb any mala fide complaint lodged by authorities and vindictive or
mischievous persons when the act complained of is ‘consenting act’
between two persons. Further, the applicant has submitted that this Court
may be pleased to identify that the courts shall take cognizance of an
offence under Section 377 IPC only on a complaint made by an aggrieved
D person. Such an approach, as per the applicant, inherently respects
consent and also protects from interference and safeguards the privacy
and dignity of an individual under Article 21 of the Constitution.
50. The applicant has also contended that the constitutionality of
any legislation is always to be presumed and if there is any vagueness in
E the definition of any section, the courts have to give such a definition
which advances the purpose of the legislation and that the courts must
make every effort to uphold the constitutional validity of a statute if that
requires giving a stretched construction in view of the decisions of this
Court in K.A. Abbas v. Union of India and another18 and Rt. Rev.
Msgr. Mark Netto v. State of Kerala and others19.
F
51. The applicant, through his learned counsel Mr. Harvinder
Chowdhury, submits that if the right to privacy as recognized in
Puttaswamy (supra) is allowed its full scope and swing, then that itself
would rule out prosecution in all cases of consensual unnatural sex
between all couples, whether heterosexual or homosexual, and without
G having to engage in reading down, much less striking down of, the
provisions of Section 377 IPC in its present form. This is so because the
State cannot compel individuals engaging in consensual sexual acts from
testifying against one another as it involves a breach of privacy unless
18
(1970) 2 SCC 780
19
H (1979) 1 SCC 23
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 463
[DIPAK MISRA, CJI ]

the consent itself is under challenge and one cannot be a consenting A
victim of a crime so long as the consent is legally valid.
52. Submissions have also been advanced on behalf of Raza
Academy, intervenor, through its learned counsel Mr. R.R Kishore, who
has contended that homosexuality is against the order of nature and
Section 377 rightly forbids it. Prohibition against carnal intercourse B
involving penetration into non-sexual parts of the body does not constitute
discrimination as laws based on biological reality can never be
unconstitutional, for if a male is treated as a male, a female as a female
and a transgender as a transgender, it does not amount to discrimination.
53. The applicant has submitted that the purpose of criminal law C
is to protect the citizens from something that is injurious and since carnal
intercourse between two persons is offensive and injurious, it is well
within the State’s jurisdiction to put reasonable restrictions to forbid such
aberrant human behaviour by means of legislation, for it is the duty of
the State that people with abnormal conduct are prohibited from imperiling
the life, health and security of the community. Unrestrained pleasure, D
and that too of a lascivious nature, is not conducive for the growth of a
civilized society, such inordinate gratification needs to be curbed and,
thus, prohibition against carnal intercourse as defined in Section 377
IPC does not violate the constitutional rights of a person.
54. Another application for intervention, being I.A No. 9341 of E
2011, was filed and allowed. The applicant, in his written submissions,
after delineating the concept of immorality, has submitted that the doctrine
of manifest arbitrariness is of no application to the present case as the
law is not manifestly or otherwise arbitrary, for Section 377 criminalizes
an act irrespective of gender or sexual orientation of the persons involved. F
The universal application of the said provision without any gender bias is
the touchstone of Part III of the Constitution and is not arbitrary as there
is no intentional or unreasonable discrimination in the provision.
55. The applicant has drawn the attention of this Court to the
case of Fazal Rab Choudhary v. State of Bihar20 wherein this Court G
held that the offence under Section 377 IPC implies sexual perversity.
Further, it is the case of the applicant that there should not be identical
transplantation of Western ideology in our country which has also been
a matter of concern for this Court in Jagmohan Singh v. State of U.P.21
20
(1982) 3 SCC 9
21
(1973) 1 SCC 20 H
464 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 56. The applicant, after citing the case of State of Gujarat v.
Mirzapur Moti Kureshi Kassab Jamat and others22, has stressed upon
the fact that the interest of a citizen or a section of the society, howsoever
important, is secondary to the interest of the country or community as a
whole and while judging the reasonability of restrictions imposed on
fundamental rights, due consideration must also be given to the Directive
B
Principles stated in Part IV. In view of these aforesaid submissions, the
applicant has submitted that fundamental rights may not be overstretched
and the Directive Principles of State Policy which are fundamental in
the governance of the country cannot be neglected, for they are not less
significant than what is fundamental in the life of an individual as held in
C Kesavananda Bharati v. Union of India23.
57. Another application for intervention, being I.A. No. 76790 of
2018, has been filed by Apostolic Alliance of Churches and the Utkal
Christian Council. The applicants have submitted that the Court, while
interpreting Section 377 IPC, has to keep in mind that there can be
D situations where consent is obtained by putting a person in fear of death
or hurt or consent can also be obtained under some misconception or
due to unsoundness of mind, intoxication or inability to understand the
nature and the consequences of the acts prohibited by Section 377 IPC.
58. The applicant has also advanced the argument that Section
E 377 IPC in its present form does not violate Article 14 of the Constitution
as it merely defines a particular offence and its punishment and it is well
within the power of the State to determine who should be regarded as a
class for the purpose of a legislation and this, as per the applicant, is
reasonable classification in the context of Section 377 IPC.

F 59. Further, the applicant has contended that Section 377 IPC is
not violative of Article 15 of the Constitution as the said Article prohibits
discrimination on the grounds of only religion, race, caste, sex, place of
birth or any of them but not sexual orientation. The word ‘sexual
orientation’, as per the applicant, is alien to our Constitution and the
same cannot be imported within it for testing the constitutional validity of
G a provision or legislation. As per the applicant, if the word ‘sex’ has to be
replaced by ‘sexual orientation’, it would require a constitutional
amendment.

22
(2005) 8 SCC 534
23
H (1973) 4 SCC 225
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 465
[DIPAK MISRA, CJI ]

60. It is also the case of the applicant that the Yogyakarta principles A
which have been heavily relied upon by the petitioners to bolster their
stand have limited sanctity inasmuch as they do not amount to an
international treaty binding on the State parties and there are no inter-
governmentally negotiated international instruments or agreed human
rights treaties on the issue of LGBTs.
B
61. Further, the applicant has submitted that there is no requirement
to reconsider the decision of this Court in Suresh Koushal (supra)
wherein it was held that there is a presumption of constitutionality of a
legislation and the Court must adopt self-restraint and thereby refrain
from giving birth to judicial legislation. In the applicant’s view, the
legislative wisdom of the Parliament must be respected and it must be C
left to the Parliament to amend Section 377 IPC, if so desired.
62. The applicant has contended that if the prayers of the
petitioners herein are allowed, it would amount to judicial legislation, for
the Courts cannot add or delete words into a statute. It is stated that the
words ‘consent’ and/or ‘without consent’ are not mentioned in Section D
377 IPC and, therefore, the Courts cannot make such an artificial
distinction. To buttress this stand, the applicant has relied upon the decision
of this Court in Sakshi v. Union of India and others24 wherein it was
observed that the attention of the Court should be on what has been said
and also on what has not been said while interpreting the statute and that E
it would be wrong and dangerous for the Court to proceed by substituting
some other words in a statute since it is well settled that a statute enacting
an offence or imposing a penalty has to be strictly construed.
63. The applicant has also drawn the attention of this Court to the
decision in Union of India and another v. Deoki Nandan Aggarwal 25 F
wherein it was observed that the Court cannot rewrite, recast or re-
frame the legislation for the good reason that it has no power to legislate
since the power to legislate has not been conferred upon the Court and,
therefore, the Courts cannot add words to a statute or read words into it
which are not there. The Courts are to decide what the law is and not
what it should be. G
64. It is also the case of the applicant that the decriminalization of
Section 377 IPC will open a floodgate of social issues which the legislative
24
(2004) 5 SCC 518
25
1992 Supp. (1) SCC 323
H
466 SUPREME COURT REPORTS [2018] 7 S.C.R.

A domain is not capable of accommodating as same sex marriages would
become social experiments with unpredictable outcome.
65. Further, it is the contention of the applicant that decriminalization
of Section 377 IPC will have cascading effect on existing laws such as
Section 32(d) of the Parsi Marriage and Divorce Act, 1936; Section
B 27(7)(1A) A of the Special Marriage Act, 1954 which permits a wife to
present a petition for divorce to the district court on the ground,—(i) that
her husband has, since the solemnization of the marriage, been guilty of
rape, sodomy or bestiality; Section 10(2) of the Indian Divorce Act, 1869
and Section 13(2) of the Hindu Marriage Act, 1955.
C E. Decisions in Naz Foundation and Suresh Koushal
66. We shall now advert to what had been stated by the Delhi
High Court in Naz Foundation and thereafter advert to the legal base
of the decision in Suresh Koushal’s case. The Delhi High Court had
taken the view that Article 15 of the Constitution prohibits discrimination
D on several enumerated grounds including sex. The High Court preferred
an expansive interpretation of ‘sex’ so as to include prohibition of
discrimination on the ground of ‘sexual orientation’ and that sex-
discrimination cannot be read as applying to gender simpliciter.
Discrimination, as per the High Court’s view, on the basis of sexual
orientation is grounded in stereotypical judgments and generalization about
E the conduct of either sex.
67. Another facet of the Indian Constitution that the High Court
delineated was that of inclusiveness as the Indian Constitution reflects
this value of inclusiveness deeply ingrained in the Indian society and
nurtured over several generations. The High Court categorically said
F that those who are perceived by the majority as deviants or different are
not to be, on that score, excluded or ostracised. In the High Court’s
view, where a society displays inclusiveness and understanding, the LGBT
persons can be assured of a life of dignity and non-discrimination.
68. It has been further opined by the High Court that the
G Constitution does not permit any statutory criminal law to be held captive
of the popular misconceptions of who the LGBTs are, as it cannot be
forgotten that discrimination is the antithesis of equality and recognition
of equality in its truest sense will foster the dignity of every individual.
That apart, the High Court had taken the view that social morality has to
succumb to the concept of constitutional morality.
H
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 467
[DIPAK MISRA, CJI ]

69. On the basis of the aforesaid reasons, the High Court declared A
Section 377 IPC violative of Articles 14, 15 and 21 of the Constitution in
so far as it criminalises consensual sexual acts of adults in private, whereas
for non-consensual penile non-vaginal sex and penile non-vaginal sex
involving minors, the High Court ruled that Section 377 IPC was valid.
70. The Delhi High Court judgment was challenged in Suresh B
Koushal (supra) wherein this Court opined that acts which fall within
the ambit of Section 377 IPC can only be determined with reference to
the act itself and to the circumstances in which it is executed. While so
opining, the Court held that Section 377 IPC would apply irrespective of
age and consent, for Section 377 IPC does not criminalize a particular
people or identity or orientation and only identifies certain acts which, C
when committed, would constitute an offence. Such a prohibition, in the
Court’s view in Suresh Koushal (supra), regulates sexual conduct
regardless of gender identity and orientation.
71. The Court further observed that those who indulge in carnal
intercourse in the ordinary course and those who indulge in carnal D
intercourse against the order of nature constitute different classes and
the people falling in the latter category cannot claim that Section 377
IPC suffers from the vice of arbitrariness and irrational classification.
The Court further observed that while reading down Section 377 of the
Indian Penal Code, it cannot be overlooked that only a minuscule fraction E
of the country’s population constitutes lesbians, gays, bisexuals or
transgenders and in last more than 150 years, less than 200 persons
have been prosecuted under Section 377 of the Indian Penal Code which
cannot, therefore, be made a sound basis for declaring Section 377 IPC
ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.
F
72. The submission advanced by the respondents therein to the
effect that the provision had become a pernicious tool for perpetrating
harassment, blackmail and torture on those belonging to the LGBT
community was repelled by stating that such treatment is neither mandated
by the Section nor condoned by it and the mere fact that the Section is
misused by police authorities and others is not a reflection of the vires of G
the Section, though it might be a relevant factor for the Legislature to
consider while judging the desirability of amending Section 377 of the
Indian Penal Code.

H
468 SUPREME COURT REPORTS [2018] 7 S.C.R.

A F. Other judicial pronouncements on Section 377 IPC
73. Presently, we may refer to some of the judgments and the
views taken therein by this Court as well as by the High Courts on
Section 377 IPC so as to have a holistic perspective.
74. While interpreting the said provision, the Courts have held
B that the provision stipulates certain acts, which when committed, would
constitute a criminal offence. In Childline India Foundation and
another v. Allan John Waters and others26, the Court was dealing
with carnal intercourse against the order of nature when the material on
record showed that the accused Nos. 2 and 3 used to have sex and
C fellatio with PWs 1 and 4. The Court opined that the ingredients of
Section 377 IPC were proved and, accordingly, restored the conviction
and sentence of 6 years’ rigorous imprisonment and confirmed the
imposition of fine. In Fazal Rab Choudhary (supra), although the Court
convicted the accused under Section 377 IPC, yet it took note of the
absence of any force in the commission of the act. The Court also took
D into account the prevalent notions of permissive society and the fact that
homosexuality has been legalized in some countries. In view of the same,
the Court reduced the sentence of 3 years imposed on the accused to 6
months opining that the aforesaid aspects must also be kept in view as
they have a bearing on the question of offence and quantum of sentence.
E 75. A reference may be made to Khanu v. Emperor27 which
was also alluded to in Suresh Koushal’s case. We deem it appropriate
to reproduce a part of Khanu’s decision to understand how the courts in
India had understood the word “carnal intercourse against the order of
nature”. The said passage reads thus:-
F “The principal point in this case is: whether the accused (who is
clearly guilty of having committed the sin of Gomorrah coitus
per os) with a certain little child, the innocent accomplice of his
abomination, has thereby committed an offence under Section
377 of the Penal Code.
G Section 377 punishes certain persons who have carnal intercourse
against the order of nature with inter alia human beings. Is the
act here committed one of carnal intercourse? If so, it is clearly
against the order of nature, because the natural object of carnal
26
(2011) 6 SCC 261
27
H AIR 1925 Sind 286
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 469
[DIPAK MISRA, CJI ]

intercourse is that there should be the possibility of conception A
of human beings which in the case of coitus per os is impossible.
Intercourse may be defined as mutual frequent action by members
of independent organisation. Commercial intercourse [is
thereafter referred to; emphasis is made on the reciprocity].
By a metaphor the word intercourse like the word commerce is B
applied to the relations of the sexes. Here also there is the
temporary visitation of one organism by a member of other
organisation, for certain clearly defined and limited objects. The
primary object of the visiting organisation is to obtain euphoria
by means of a detent of the nerves consequent on the sexual
crisis. But there is no intercourse unless the visiting member is C
enveloped at least partially by the visited organism, for intercourse
connotes reciprocity. Looking at the question in this way it would
seem that sin of Gomorrah is no less carnal intercourse than the
sin of sodomy. …
It is to be remembered that the Penal Code does not, except in D
Section 377, render abnormal sexual vice punishable at all. In
England indecent assaults are punishable very severely. It is
possible that under the Penal Code, some cases might be met by
prosecuting the offender for simple assault, but that is a
compoundable offence and in any case the patient could in no E
way be punished. It is to be supposed that the legislature intended
that a Tigellinus should carry on his nefarious profession perhaps
vitiating and depraving hundreds of children with perfect
immunity?
I doubt not, therefore, that coitus per os is punishable under F
Section 377 of the Penal Code.”
76. In Suresh Koushal’s case, there has also been a reference to
the decision of the Gujarat High Court in Lohana Vasantlal Devchand
v. State28 wherein the issue presented before the High Court was whether
an offence under Section 377 read with Section 511 IPC had been G
committed on account of the convict putting his male organ in the mouth
of the victim, if the act was done voluntarily by him. A contention was
raised that there was no penetration and, therefore, there could not have
been any carnal intercourse. The High Court referred to a passage
28
AIR 1968 Guj 252 H
470 SUPREME COURT REPORTS [2018] 7 S.C.R.

A from the book ‘Pyschology of Sex’ 29 authored by Mr. Havelock Ellis
which reads thus:-
“While the kiss may be regarded as the typical and normal
erogenic method of contrectation for the end of attaining
tumescene, there are others only less important. Any orifical
B contact ‘between persons of opposite sex’ is sometimes almost
equally as effective as the kiss in stimulating tumescene; all such
contacts, indeed, belong to the group of which the kiss is the
type, Cunnilinctus (often incorrectly termed cunnilingus) and
fellatio cannot be regarded as unnatural for they have their
prototypic forms among animals, and they are found among
C various savage races. As forms of contrecttion and aides to
tumescene they are thus natural and are sometimes regarded by
both sexes as quintessential forms of sexual pleasure, though
they may not be considered aesthetic. They become deviations,
however, and this liable to be termed “perversions”, when they
D replace the desire of coitus”
77. After referring to the definition of sodomy, the pronouncement
in Khanu (supra), Stroud’s Judicial Dictionary, 3rd Edition and Webster’s
New 20th Century Dictionary, unabridged, 2nd Edition, the Gujarat High
Court opined thus:-
E “In the instant case, there was an entry of a male penis in the
orifice of the mouth of the victim. There was the enveloping of a
visiting member by the visited organism. There was thus
reciprocity; intercourse connotes reciprocity. It could, therefore,
be said without any doubt in my mind that the act in question will
F amount to an offence, punishable under Section 337 of the Indian
Penal Code.”
78. The decision in State of Kerala v. Kundumkara Govindan
and another30 has also been reproduced in Suresh Koushal’s case.
The High Court of Kerala held thus:-
G “18. Even if I am to hold that there was no penetration into the
vagina and the sexual acts were committed only between the
thighs, I do not think that the respondents can escape conviction
under Section 377 of the Penal Code. The counsel of the
29
‘Psychology of Sex’ Twelfth Impression, 1948, London
30
H 1969 Cri LJ 818 (Ker)
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 471
[DIPAK MISRA, CJI ]

respondents contends (in this argument the Public Prosecutor A
also supports him) that sexual act between the thighs is not
intercourse. The argument is that for intercourse there must be
encirclement of the male organ by the organ visited; and that in
the case of sexual act between the thighs, there is no possibility
of penetration.
B
19. The word ‘intercourse’ means ‘sexual connection’ (Concise
Oxford Dictionary). In Khanu v. Emperor the meaning of the
word ‘intercourse’ has been considered: (AIR p. 286)
‘Intercourse may be defined as mutual frequent action by
members of independent organisation.’ C
Then commercial intercourse, social intercourse, etc. have been
considered; and then appears:
‘By a metaphor the word intercourse, like the word commerce,
is applied to the relations of the sexes. Here also there is the
temporary visitation of one organism by a member of the other D
organisation, for certain clearly defined and limited objects. The
primary object of the visiting organisation is to obtain euphoria
by means of a detent of the nerves consequent on the sexual
crisis. But there is no intercourse unless the visiting member is
enveloped at least partially by the visited organism, for intercourse E
connotes reciprocity.’
Therefore, to decide whether there is intercourse or not, what is
to be considered is whether the visiting organ is enveloped at
least partially by the visited organism. In intercourse between
the thighs, the visiting male organ is enveloped at least partially F
by the organism visited, the thighs: the thighs are kept together
and tight.
20. Then about penetration. The word ‘penetrate’ means in the
Concise Oxford Dictionary ‘find access into or through, pass
through.’ When the male organ is inserted between the thighs
G
kept together and tight, is there no penetration? The word ‘insert’
means place, fit, thrust.’ Therefore, if the male organ is ‘inserted’
or ‘thrust’ between the thighs, there is ‘penetration’ to constitute
unnatural offence.

H
472 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 21. Unnatural offence is defined in Section 377 of the Penal
Code; whoever voluntarily has carnal intercourse against the
order of nature with any man, woman or animal commits unnatural
offence. The act of committing intercourse between the thighs
is carnal intercourse against the order of nature. Therefore
committing intercourse by inserting the male organ between the
B
thighs of another is an unnatural offence. In this connection, it
may be noted that the act in Section 376 is ‘sexual intercourse’
and the act in Section 377 is ‘carnal intercourse against the order
of nature’.
22. The position in English law on this question has been brought
C to my notice. The old decision of R. v. Samuel Jacobs31 lays
down that penetration through the mouth does not amount to the
offence of sodomy under English law. The counsel therefore
argues that sexual intercourse between the thighs cannot also
be an offence under Section 377 of the Penal Code. In Sirkar v.
D Gula Mythien Pillai Chaithu Maho Mathu32 a Full Bench of
the Travancore High Court held that having connection with a
person in the mouth was an offence under Section 377 of the
Penal Code. In a short judgment, the learned Judges held that it
was unnecessary to refer to English Statute Law and English
text books which proceeded upon an interpretation of the words
E sodomy, buggery and bestiality; and that the words used in the
Penal Code were very simple and wide enough to include all
acts against the order of nature. My view on the question is also
that the words of Section 377 are simple and wide enough to
include any carnal intercourse against the order of nature within
F its ambit. Committing intercourse between the thighs of another
is carnal intercourse against the order of nature.”
79. In Calvin Francis v. State of Orissa33, the Orissa High Court
had reproduced certain passages from Corpus Juris Secundum,
Vol. 81, pp. 368-70. We may reproduce the same:-
G “A statute providing that any person who shall commit any act
or practice of sexual perversity, either with mankind or beast, on
conviction shall be punished, is not limited to instances involving
31
1817 Russ & Ry 331 : 168 ER 830 (CCR)
32
(1908) 14 TLR Appendix 43 (Ker)
33
H 1992 (1) OLR 316
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 473
[DIPAK MISRA, CJI ]

carnal copulation, but is restricted to cases involving the sex organ A
of at least one of the parties. The term ‘sexual perversity’ does
not refer to every physical contact by a male with the body of
the female with intent to cause sexual satisfaction to the actor,
but the condemnation of the statute is limited to unnatural conduct
performed for the purpose of accomplishing abnormal sexual
B
satisfaction for the actor. Under a statute providing that any person
participating in the act or copulating the mouth of one person
with the sexual organ of another is guilty of the offence a person
is guilty of violating the statute when he has placed his mouth on
the genital organ of another, and the offence may be committed
by two persons of opposite sex.” C
80. Referring to the said decision, the two-Judge Bench in Suresh
Koushal’s case has opined:-
“60. However, from these cases no uniform test can be culled
out to classify acts as “carnal intercourse against the order of
nature”. In our opinion the acts which fall within the ambit of D
Section 377 IPC can only be determined with reference to the
act itself and the circumstances in which it is executed. All the
aforementioned cases refer to non-consensual and markedly
coercive situations and the keenness of the Court in bringing
justice to the victims who were either women or children cannot E
be discounted while analysing the manner in which the section
has been interpreted. We are apprehensive of whether the court
would rule similarly in a case of proved consensual intercourse
between adults. …”
81. From the aforesaid analysis, it is perceptible that the two- F
Judge Bench has drawn a distinction between the “class” and
the “act” that has been treated as an offence. On a plain reading
of the provision, it is noticeable that the “act” covers all categories
of persons if the offence is committed. Thus, the seminal issue
that emerges for consideration, as has been understood by various
High Courts and this Court, is whether the act can be treated as G
a criminal offence if it violates Articles 19(1)(a) and 21 of the
Constitution. Therefore, the provision has to be tested on the
anvil of the said constitutional provisions. Additionally, it is also
to be tested on the touchstone of Article 14 especially under the
scanner of its second limb, that is, manifest arbitrariness. For H
474 SUPREME COURT REPORTS [2018] 7 S.C.R.

A adjudging the aforesaid facets, certain fundamental concepts
which are intrinsically and integrally associated with the expression
of a person who enjoys certain inalienable natural rights which
also have been recognized under the Constitution are required to
be addressed. In this context, the individuality of a person and
the acceptance of identity invite advertence to some necessary
B
concepts which eventually recognize the constitutional status of
an individual that resultantly brushes aside the “act” and respects
the dignity and choice of the individual.
G. The Constitution – an organic charter of progressive rights
C 82. A democratic Constitution like ours is an organic and breathing
document with senses which are very much alive to its surroundings, for
it has been created in such a manner that it can adapt to the needs and
developments taking place in the society. It was highlighted by this Court
in the case of Chief Justice of Andhra Pradesh and others v. L.V.A.
Dixitulu and others34 that the Constitution is a living, integrated organism
D having a soul and consciousness of its own and its pulse beats, emanating
from the spinal cord of its basic framework, can be felt all over its body,
even in the extremities of its limbs.
83. In the case of Saurabh Chaudri and others v. Union of
India and others35, it was observed:-
E
“Our Constitution is organic in nature, being a living organ, it is
ongoing and with the passage of time, law must change. Horizons
of constitutional law are expanding.”
84. Thus, we are required to keep in view the dynamic concepts
F inherent in the Constitution that have the potential to enable and urge the
constitutional courts to beam with expansionism that really grows to
adapt to the ever-changing circumstances without losing the identity of
the Constitution. The idea of identity of the individual and the constitutional
legitimacy behind the same is of immense significance. Therefore, in
this context, the duty of the constitutional courts gets accentuated. We
G emphasize on the role of the constitutional courts in realizing the evolving
nature of this living instrument. Through its dynamic and purposive
interpretative approach, the judiciary must strive to breathe life into the
Constitution and not render the document a collection of mere dead
34
(1979) 2 SCC 34
35
H (2003) 11 SCC 146
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 475
[DIPAK MISRA, CJI ]

letters. The following observations made in the case of Ashok Kumar A
Gupta and another v. State of U.P. and others36 further throws light
on this role of the courts:-
“Therefore, it is but the duty of the Court to supply vitality, blood
and flesh, to balance the competing rights by interpreting the
principles, to the language or the words contained in the living B
and organic Constitution, broadly and liberally.”
85. The rights that are guaranteed as Fundamental Rights under
our Constitution are the dynamic and timeless rights of ‘liberty’ and
‘equality’ and it would be against the principles of our Constitution to
give them a static interpretation without recognizing their transformative C
and evolving nature. The argument does not lie in the fact that the concepts
underlying these rights change with the changing times but the changing
times illustrate and illuminate the concepts underlying the said rights. In
this regard, the observations in Video Electronics Pvt. Ltd. and another
v. State of Punjab and another37 are quite instructive:-
D
“Constitution is a living organism and the latent meaning of the
expressions used can be given effect to only if a particular
situation arises. It is not that with changing times the meaning
changes but changing times illustrate and illuminate the meaning
of the expressions used. The connotation of the expressions used
takes its shape and colour in evolving dynamic situations.” E

86. Our Constitution fosters and strengthens the spirit of equality
and envisions a society where every person enjoys equal rights which
enable him/her to grow and realize his/her potential as an individual.
This guarantee of recognition of individuality runs through the entire
length and breadth of this dynamic instrument. The Constitution has been F
conceived of and designed in a manner which acknowledges the fact
that ‘change is inevitable’. It is the duty of the courts to realize the
constitutional vision of equal rights in consonance with the current
demands and situations and not to read and interpret the same as per the
standards of equality that existed decades ago. The judiciary cannot G
remain oblivious to the fact that the society is constantly evolving and
many a variation may emerge with the changing times. There is a
constant need to transform the constitutional idealism into reality by
fostering respect for human rights, promoting inclusion of pluralism,
36
(1997) 5 SCC 201
37
(1990) 3 SCC 87 H
476 SUPREME COURT REPORTS [2018] 7 S.C.R.

A bringing harmony, that is, unity amongst diversity, abandoning the idea of
alienation or some unacceptable social notions built on medieval egos
and establishing the cult of egalitarian liberalism founded on reasonable
principles that can withstand scrutiny.
87. In Ashok Kumar Gupta (supra), the Court had observed that
B common sense has always served in the court’s ceaseless striving as a
voice of reason to maintain the blend of change and continuity of order
which are sine qua non for stability in the process of change in a
parliamentary democracy. The Court ruled that it is not bound to accept
an interpretation which retards the progress or impedes social integration.
The Court further observed that it is required to adopt such interpretation
C which would give the ideals set out in the Preamble to the Constitution
aided by Part III and Part IV a meaningful and living reality for all
sections of the society.
88. It is through this armoury of expansive dynamism that the
courts have been able to give an all-inclusive interpretation to the
D fundamental rights enshrined in Part III of our Constitution. This is borne
testimony by the decisions of the constitutional courts which have evolved
views for extending the protection of fundamental rights to those who
have been deprived of the enjoyment of the same. If not for such an
approach adopted by the courts, our Constitution and its progressive
E principles would have been rendered ineffective and the dynamic charter
would be reduced to a mere ornate document without any purpose or
object.
89. The Court, as the final arbiter of the Constitution, has to keep
in view the necessities of the needy and the weaker sections. The role
F of the Court assumes further importance when the class or community
whose rights are in question are those who have been the object of
humiliation, discrimination, separation and violence by not only the State
and the society at large but also at the hands of their very own family
members. The development of law cannot be a mute spectator to the
struggle for the realisation and attainment of the rights of such members
G of the society.
90. The authority in NALSA is one such recent illustration where
the rights of transgenders as a third sex was recognized which had been
long due in a democracy like ours. This Court ruled: -

H
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 477
[DIPAK MISRA, CJI ]

“It is now very well recognized that the Constitution is a living A
character; its interpretation must be dynamic. It must be
understood in a way that intricate and advances modern realty.
The judiciary is the guardian of the Constitution and by ensuring
to grant legitimate right that is due to TGs, we are simply
protecting the Constitution and the democracy inasmuch as
B
judicial protection and democracy in general and of human rights
in particular is a characteristic of our vibrant democracy.
As we have pointed out above, our Constitution inheres liberal
and substantive democracy with rule of law as an important and
fundamental pillar. It has its own internal morality based on dignity
and equality of all human beings. Rule of law demands protection C
of individual human rights. Such rights are to be guaranteed to
each and every human being. These TGs, even though insignificant
in numbers, are still human beings and therefore they have every
right to enjoy their human rights.”
The ‘living document’ concept finds place in several international D
authorities as well. The courts in other jurisdictions have endorsed the
view that the Constitution is forever evolving in nature and that a
progressive approach is mandated by the principles inherent in the
Constitution itself.
91. The Supreme Court of Canada, while giving an expansive E
interpretation to marriage by including same-sex unions within its
encompass, in Re: Same Sex Marriage38, has observed:-
“The “frozen concepts” reasoning runs contrary to one of the
most fundamental principles of Canadian constitutional
interpretation: that our Constitution is a living tree which, by way F
of progressive interpretation, accommodates and addresses the
realities of modern life.”
92. As early as the 1920s, the Supreme Court of the United States
in the case of State of Missouri v. Holland39, while making a comparison
between the ‘instrument in dispute’ and the ‘Constitution’, had made the G
following observations with regard to the nature of the Constitution:-
“When we are dealing with words that also are a constituent
act, like the Constitution of the United States, we must realize
38
[2004] 3 S.C.R. 698
39
252 U.S. 416 (1920) H
478 SUPREME COURT REPORTS [2018] 7 S.C.R.

A that they have called into life a being the development of which
could not have been foreseen completely by the most gifted of
its begetters. It was enough for them to realize or to hope that
they had created an organism; it has taken a century and has
cost their successors much sweat and blood to prove that they
created a nation.”
B
93. In one of his celebrated works, Judge Richard Posner made
certain observations which would be relevant to be reproduced here:-
“A constitution that did not invalidate so offensive, oppressive,
probably undemocratic, and sectarian law [as the Connecticut
C law banning contraceptives] would stand revealed as containing
major gaps. Maybe that is the nature of our, or perhaps any,
written Constitution; but yet, perhaps the courts are authorized
to plug at least the most glaring gaps. Does anyone really believe,
in his heart of hearts, that the Constitution should be interpreted
so literally as to authorize every conceivable law that would not
D violate a specific constitutional clause? This would mean that a
state could require everyone to marry, or to have intercourse at
least once a month, or it could take away every couple’s second
child and place it in a foster home.... We find it reassuring to
think that the courts stand between us and legislative tyranny
E even if a particular form of tyranny was not foreseen and
expressly forbidden by framers of the Constitution.”40
94. Thus, it is demonstrable that expansive growth of constitutional
idealism is embedded in the theory of progress, abandonment of status
quoist attitude, expansion of the concept of inclusiveness and constant
F remembrance of the principle of fitting into the norm of change with a
constitutional philosophy.
H. Transformative constitutionalism and the rights of LGBT
community
95. For understanding the need of having a constitutional
G democracy and for solving the million dollar question as to why we adopted
the Constitution, we perhaps need to understand the concept of
transformative constitutionalism with some degree of definiteness. In
this quest of ours, the ideals enshrined in the Preamble to our Constitution
40
Posner, Richard: (1992) Sex and Reason, Harvard University Press, pg. 328.
H ISBN 0-674- 80280-2
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 479
[DIPAK MISRA, CJI ]

would be a guiding laser beam. The ultimate goal of our magnificent A
Constitution is to make right the upheaval which existed in the Indian
society before the adopting of the Constitution. The Court in State of
Kerala and another v. N.M. Thomas and others41 observed that the
Indian Constitution is a great social document, almost revolutionary in its
aim of transforming a medieval, hierarchical society into a modern,
B
egalitarian democracy and its provisions can be comprehended only by
a spacious, social-science approach, not by pedantic, traditional legalism.
The whole idea of having a Constitution is to guide the nation towards a
resplendent future. Therefore, the purpose of having a Constitution is to
transform the society for the better and this objective is the fundamental
pillar of transformative constitutionalism. C
96. The concept of transformative constitutionalism has at its kernel
a pledge, promise and thirst to transform the Indian society so as to
embrace therein, in letter and spirit, the ideals of justice, liberty, equality
and fraternity as set out in the Preamble to our Constitution. The
expression ‘transformative constitutionalism’ can be best understood by D
embracing a pragmatic lens which will help in recognizing the realities of
the current day. Transformation as a singular term is diametrically opposed
to something which is static and stagnant, rather it signifies change,
alteration and the ability to metamorphose. Thus, the concept of
transformative constitutionalism, which is an actuality with regard to all
Constitutions and particularly so with regard to the Indian Constitution, E
is, as a matter of fact, the ability of the Constitution to adapt and transform
with the changing needs of the times.
97. It is this ability of a Constitution to transform which gives it
the character of a living and organic document. A Constitution
continuously shapes the lives of citizens in particular and societies in F
general. Its exposition and energetic appreciation by constitutional courts
constitute the lifeblood of progressive societies. The Constitution would
become a stale and dead testament without dynamic, vibrant and pragmatic
interpretation. Constitutional provisions have to be construed and
developed in such a manner that their real intent and existence percolates G
to all segments of the society. That is the raison d’etre for the Constitution.
98. The Supreme Court as well as other constitutional courts have
time and again realized that in a society undergoing fast social and
economic change, static judicial interpretation of the Constitution would
41
AIR 1976 SC 490 H
480 SUPREME COURT REPORTS [2018] 7 S.C.R.

A stultify the spirit of the Constitution. Accordingly, the constitutional courts,
while viewing the Constitution as a transformative document, have
ardently fulfilled their obligation to act as the sentinel on qui vive for
guarding the rights of all individuals irrespective of their sex, choice and
sexual orientation.
B 99. The purpose of transformative constitutionalism has been aptly
described in the case of Road Accident Fund and another v. Mdeyide42
wherein the Constitutional Court of South Africa, speaking in the context
of the transformative role of the Constitution of South Africa, had
observed:-
C “Our Constitution has often been described as “transformative”.
One of the most important purposes of this transformation is to
ensure that, by the realisation of fundamental socio-economic
rights, people disadvantaged by their deprived social and
economic circumstances become more capable of enjoying a
life of dignity, freedom and equality that lies at the heart of our
D constitutional democracy.”
100. In Bato Star Fishing (Pty) Ltd v. Minister of Environmental
Affairs and Tourism and others43, the Constitutional Court of South
Africa opined:-
“The achievement of equality is one of the fundamental goals
E that we have fashioned for ourselves in the Constitution. Our
constitutional order is committed to the transformation of our
society from a grossly unequal society to one “in which there is
equality between men and women and people of all races”. In
this fundamental way, our Constitution differs from other
F constitutions which assume that all are equal and in so doing
simply entrench existing inequalities. Our Constitution recognises
that decades of systematic racial discrimination entrenched by
the apartheid legal order cannot be eliminated without positive
action being taken to achieve that result. We are required to do
more than that. The effects of discrimination may continue
G indefinitely unless there is a commitment to end it.”
101. Davies44 understands transformation as follows:-
42
2008 (1) SA 535 (CC)
43
[2004] ZACC 15
44
Asking the Law Question: The Dissolution of Legal Theory 205 (2002), Margaret
H Davies.
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 481
[DIPAK MISRA, CJI ]

“Transformation which is based on the continuing evaluation and A
modification of a complex material and ideological environment
cannot be reduced to a scientific theory of change, like those of
evolution or the halflife of radioactive substances ... practical
change occurs within a climate of serious reflection, and diversity
of opinion is in my view absolutely essential as a stimulus to
B
theory.”
102. A J Van der Walt45 has metaphorically, by comparing
‘constitutional transformation’ to ‘dancing’, described the art of
constitutional transformation to be continually progressive where one
does not stop from daring to imagine alternatives and that the society
could be different and a better place where the rights of every individual C
are given due recognition:-
“However, even when we trade the static imagery of position,
standing, for the more complex imagery of dancing, we still have
to resist the temptation to see transformation as linear movement
or progress - from authoritarianism to justification, from one D
dancing code to another, or from volkspele jurisprudence to
toyitoyi jurisprudence... I suggest that we should not only switch
to a more complex metaphorical code such as dancing when
discussing transformation, but that we should also deconstruct
the codes we dance to; pause to reflect upon the language in E
terms of which we think and talk and reason about
constitutionalism, about rights, and about transformation, and
recognize the liberating and the captivating potential of the codes
shaping and shaped by that language.
103. Again, the Supreme Court of South Africa in President of F
the Republic of South Africa v. Hugo46 observed that the prohibition
on unfair discrimination in the interim Constitution seeks not only to avoid
discrimination against people who are members of disadvantaged groups
but also that at the heart of the prohibition of unfair discrimination lies a
recognition that the purpose of our new constitutional and democratic
order is the establishment of a society in which all human beings will be G
accorded equal dignity and respect, regardless of their membership of
particular groups.
45
Van der Walt, Dancing with codes - Protecting, developing and deconstructing property
rights in a constitutional state, 118 (2) J. S. APR. L. 258 (2001)
46
(1997) 6 B.C.L.R. 708 (CC) H
482 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 104. Equality does not only imply recognition of individual dignity
but also includes within its sphere ensuring of equal opportunity to advance
and develop their human potential and social, economic and legal interests
of every individual and the process of transformative constitutionalism is
dedicated to this purpose. It has been observed by Albertyn &
Goldblatt47:-
B
“The challenge of achieving equality within this transformation
project involves the eradication of systemic forms of
discrimination and material disadvantage based on race, gender,
class and other forms of inequality. It also entails the development
of opportunities which allow people to realise their full human
C potential within positive social relationships.”
105. In Investigating Directorate: Serious Economic Offences
and others v. Hyundai Motor Distributors (Pty) Ltd and others: In
Re Hyundai Motor Distributors (Pty) Ltd and others v. Smit NO and
others48, the Constitutional Court of South Africa observed:-
D
“The Constitution is located in a history which involves a transition
from a society based on division, injustice and exclusion from
the democratic process to one which respects the dignity of all
citizens and includes all in the process of governance. As such,
the process of interpreting the Constitution must recognise the
E context in which we find ourselves and the Constitution’s goal of
a society based on democratic values, social justice and
fundamental human rights. This spirit of transition and
transformation characterises the constitutional enterprise as a
whole.
F ... The Constitution requires that judicial officers read legislation,
where possible, in ways which give effect to its fundamental
values. Consistently with this, when the constitutionality of
legislation is in issue, they are under a duty to examine the
objects and purport of an Act and to read the provisions of the
G legislation, so far as is possible, in conformity with the
Constitution.”
47
Albertyn & Goldblatt, Facing the challenge of transformation: Difficulties in the
development of an indigenous jurisprudence of equality, 14 S. AFR. J. HUM. RTS.
248 (1998)
48
2001 (1) SA 545 (CC)
H
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 483
[DIPAK MISRA, CJI ]

106. The society has changed much now, not just from the year A
1860 when the Indian Penal Code was brought into force but there has
also been continuous progressive change. In many spheres, the sexual
minorities have been accepted. They have been given space after the
NALSA judgment but the offence punishable under Section 377 IPC, as
submitted, creates a chilling effect. The freedom that is required to be
B
attached to sexuality still remains in the pavilion with no nerves to move.
The immobility due to fear corrodes the desire to express one’s own
sexual orientation as a consequence of which the body with flesh and
bones feels itself caged and a sense of fear gradually converts itself into
a skeleton sans spirit.
107. The question of freedom of choosing a partner is reflective C
from a catena of recent judgments of this Court such as Shafin Jahan
(supra) wherein the Court held that a person who has come of age and
has the capability to think on his/her own has a right to choose his/her
life partner. It is apposite to reproduce some of the observations made
by the Court which are to the following effect:- D
“It is obligatory to state here that expression of choice in accord
with law is acceptance of individual identity. Curtailment of that
expression and the ultimate action emanating therefrom on the
conceptual structuralism of obeisance to the societal will destroy
the individualistic entity of a person. The social values and morals E
have their space but they are not above the constitutionally
guaranteed freedom. The said freedom is both a constitutional
and a human right. Deprivation of that freedom which is ingrained
in choice on the plea of faith is impermissible.”
108. Recently, in Shakti Vahini (supra), the Court has ruled that F
the right to choose a life partner is a facet of individual liberty and the
Court, for the protection of this right, issued preventive, remedial and
punitive measures to curb the menace of honour killings. The Court
observed:-
“When the ability to choose is crushed in the name of class honour G
and the person’s physical frame is treated with absolute indignity,
a chilling effect dominates over the brains and bones of the society
at large.”
109. An argument is sometimes advanced that what is permissible
between two adults engaged in acceptable sexual activity is different in
H
484 SUPREME COURT REPORTS [2018] 7 S.C.R.

A the case of two individuals of the same sex, be it homosexuals or lesbians,
and the ground of difference is supported by social standardization.
Such an argument ignores the individual orientation, which is naturally
natural, and disrobes the individual of his/her identity and the inherent
dignity and choice attached to his/her being.
B 110. The principle of transformative constitutionalism also places
upon the judicial arm of the State a duty to ensure and uphold the
supremacy of the Constitution, while at the same time ensuring that a
sense of transformation is ushered constantly and endlessly in the society
by interpreting and enforcing the Constitution as well as other provisions
of law in consonance with the avowed object. The idea is to steer the
C country and its institutions in a democratic egalitarian direction where
there is increased protection of fundamental rights and other freedoms.
It is in this way that transformative constitutionalism attains the status of
an ideal model imbibing the philosophy and morals of constitutionalism
and fostering greater respect for human rights. It ought to be remembered
D that the Constitution is not a mere parchment; it derives its strength from
the ideals and values enshrined in it. However, it is only when we adhere
to constitutionalism as the supreme creed and faith and develop a
constitutional culture to protect the fundamental rights of an individual
that we can preserve and strengthen the values of our compassionate
Constitution.
E
I. Constitutional morality and Section 377 IPC
111. The concept of constitutional morality is not limited to the
mere observance of the core principles of constitutionalism as the
magnitude and sweep of constitutional morality is not confined to the
F provisions and literal text which a Constitution contains, rather it embraces
within itself virtues of a wide magnitude such as that of ushering a
pluralistic and inclusive society, while at the same time adhering to the
other principles of constitutionalism. It is further the result of embodying
constitutional morality that the values of constitutionalism trickle down
and percolate through the apparatus of the State for the betterment of
G each and every individual citizen of the State.
112. In one of the Constituent Assembly Debates, Dr. Ambedkar,
explaining the concept of constitutional morality by quoting the Greek
historian, George Grote, said:-

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NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 485
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“By constitutional morality, Grote meant... a paramount reverence A
for the forms of the constitution, enforcing obedience to authority
and acting under and within these forms, yet combined with the
habit of open speech, of action subject only to definite legal control,
and unrestrained censure of those very authorities as to all their
public acts combined, too with a perfect confidence in the bosom
B
of every citizen amidst the bitterness of party contest that the
forms of constitution wall not be less sacred in the eyes of his
opponents than his own.”49
113. Our Constitution was visualized with the aim of securing to
the citizens of our country inalienable rights which were essential for
fostering a spirit of growth and development and at the same time ensuring C
that the three organs of the State working under the aegis of the
Constitution and deriving their authority from the supreme document,
that is, the Constitution, practise constitutional morality. The Executive,
the Legislature and the Judiciary all have to stay alive to the concept of
constitutional morality. D
114. In the same speech50, Dr. Ambedkar had quoted George
Grote who had observed:-
“The diffusion of ‘constitutional morality’, not merely among the
majority of any community, but throughout the whole is the
indispensable condition of a government at once free and E
peaceable; since even any powerful and obstinate minority may
render the working of a free institution impracticable, without
being strong enough to conquer ascendance for themselves.” 51
This statement of Dr. Ambedkar underscores that constitutional
morality is not a natural forte for our country for the simple reason that F
our country had attained freedom after a long period of colonial rule and,
therefore, constitutional morality at the time when the Constituent
Assembly was set up was an alien notion. However, the strengthening
of constitutional morality in contemporary India remains a duty of the
organs of the State including the Judiciary. G
115. The society as a whole or even a minuscule part of the
society may aspire and prefer different things for themselves. They are
49
Constituent Assembly Debates, Vol. 7 (4th November 1948)
50
Ibid
51
Grote, A History of Greece. Routledge, London, 2000, p. 93. H
486 SUPREME COURT REPORTS [2018] 7 S.C.R.

A perfectly competent to have such a freedom to be different, like different
things, so on and so forth, provided that their different tastes and liking
remain within their legal framework and neither violates any statute nor
results in the abridgement of fundamental rights of any other citizen.
The Preambular goals of our Constitution which contain the noble
objectives of Justice, Liberty, Equality and Fraternity can only be achieved
B
through the commitment and loyalty of the organs of the State to the
principle of constitutional morality.
116. It is the concept of constitutional morality which strives and
urges the organs of the State to maintain such a heterogeneous fibre in
the society, not just in the limited sense, but also in multifarious ways. It
C is the responsibility of all the three organs of the State to curb any
propensity or proclivity of popular sentiment or majoritarianism. Any
attempt to push and shove a homogeneous, uniform, consistent and a
standardised philosophy throughout the society would violate the principle
of constitutional morality. Devotion and fidelity to constitutional morality
D must not be equated with the popular sentiment prevalent at a particular
point of time.
117. Any asymmetrical attitude in the society, so long as it is within
the legal and constitutional framework, must at least be provided an
environment in which it could be sustained, if not fostered. It is only
E when such an approach is adopted that the freedom of expression
including that of choice would be allowed to prosper and flourish and if
that is achieved, freedom and liberty, which is the quintessence of
constitutional morality, will be allowed to survive.
118. In Government of NCT of Delhi v. Union of India and
F others52, one of us (Dipak Misra, CJI) observed:-
“Constitutional morality, appositely understood, means the morality
that has inherent elements in the constitutional norms and the
conscience of the Constitution. Any act to garner justification
must possess the potentiality to be in harmony with the
G constitutional impulse. We may give an example. When one is
expressing an idea of generosity, he may not be meeting the
standard of justness. There may be an element of condescension.
But when one shows justness in action, there is no feeling of any
grant or generosity. That will come within the normative value.
52
H 2018 (8) SCALE 72
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That is the test of constitutional justness which falls within the A
sweep of constitutional morality. It advocates the principle of
constitutional justness without subjective exposition of generosity.”
119. The duty of the constitutional courts is to adjudge the validity
of law on well-established principles, namely, legislative competence or
violations of fundamental rights or of any other constitutional provisions. B
At the same time, it is expected from the courts as the final arbiter of the
Constitution to uphold the cherished principles of the Constitution and
not to be remotely guided by majoritarian view or popular perception.
The Court has to be guided by the conception of constitutional morality
and not by the societal morality.
C
120. We may hasten to add here that in the context of the issue at
hand, when a penal provision is challenged as being violative of the
fundamental rights of a section of the society, notwithstanding the fact
whether the said section of the society is a minority or a majority, the
magna cum laude and creditable principle of constitutional morality, in a
constitutional democracy like ours where the rule of law prevails, must D
not be allowed to be trampled by obscure notions of social morality which
have no legal tenability. The concept of constitutional morality would
serve as an aid for the Court to arrive at a just decision which would be
in consonance with the constitutional rights of the citizens, howsoever
small that fragment of the populace may be. The idea of number, in this E
context, is meaningless; like zero on the left side of any number.
121. In this regard, we have to telescopically analyse social
morality vis-à-vis constitutional morality. It needs no special emphasis to
state that whenever the constitutional courts come across a situation of
transgression or dereliction in the sphere of fundamental rights, which F
are also the basic human rights of a section, howsoever small part of the
society, then it is for the constitutional courts to ensure, with the aid of
judicial engagement and creativity, that constitutional morality prevails
over social morality.
122. In the garb of social morality, the members of the LGBT G
community must not be outlawed or given a step-motherly treatment of
malefactor by the society. If this happens or if such a treatment to the
LGBT community is allowed to persist, then the constitutional courts,
which are under the obligation to protect the fundamental rights, would
be failing in the discharge of their duty. A failure to do so would reduce
the citizenry rights to a cipher. H
488 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 123. We must not forget that the founding fathers adopted an
inclusive Constitution with provisions that not only allowed the State, but
also, at times, directed the State, to undertake affirmative action to
eradicate the systematic discrimination against the backward sections
of the society and the expulsion and censure of the vulnerable
communities by the so-called upper caste/sections of the society that
B
existed on a massive scale prior to coming into existence of the
Constituent Assembly. These were nothing but facets of the majoritarian
social morality which were sought to be rectified by bringing into force
the Constitution of India. Thus, the adoption of the Constitution, was, in
a way, an instrument or agency for achieving constitutional morality and
C means to discourage the prevalent social morality at that time. A country
or a society which embraces constitutional morality has at its core the
well-founded idea of inclusiveness.
124. While testing the constitutional validity of impugned provision
of law, if a constitutional court is of the view that the impugned provision
D falls foul to the precept of constitutional morality, then the said provision
has to be declared as unconstitutional for the pure and simple reason
that the constitutional courts exist to uphold the Constitution.
J. Perspective of human dignity
125. While discussing about the role of human dignity in gay rights
E adjudication and legislation, Michele Finck53 observes:-
“As a concept devoid of a precise legal meaning, yet widely
appealing at an intuitive level, dignity- can be easily manipulated
and transposed into a number of legal contexts. With regard to
the rights of lesbian and gay individuals, dignity captures what
F Nussbaum described as the transition from “disgust” to
“humanity.” Once looked at with disgust and considered unworthy
of some rights, there is increasing consensus that homosexuals
should no longer be deprived of the benefits of citizenship that
are available to heterosexuals, such as the ability to contract
G marriage, on the sole ground of their sexual orientation.
Homosexuals are increasingly considered as “full humans”
disposing of equal rights, and dignity functions as the vocabulary
that translates such socio-cultural change into legal change”
53
The role of human dignity in gay rights adjudication and legislation: A comparative
perspective, Michele Finck, International Journal of Constitutional Law, Volume 14,
H Jan 2016, page no.26 to 53
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126. The Universal Declaration of Human Rights, 1948 became A
the Magna Carta of people all over the world. The first Article of the
UDHR was uncompromising in its generality of application: All human
beings are born free and equal in dignity and rights. Justice Kirby
succinctly observed:-
“This language embraced every individual in our world. It did B
not apply only to citizens. It did not apply only to ‘white’ people.
It did not apply only to good people. Prisoners, murderers and
even traitors were to be entitled to the freedoms that were
declared. There were no exceptions to the principles of
equality.”54
C
127. The fundamental idea of dignity is regarded as an inseparable
facet of human personality. Dignity has been duly recognized as an
important aspect of the right to life under Article 21 of the Constitution.
In the international sphere, the right to live with dignity had been identified
as a human right way back in 1948 with the introduction of the Universal
Declaration of Human Rights. The constitutional courts of our country D
have solemnly dealt with the task of assuring and preserving the right to
dignity of each and every individual whenever the occasion arises, for
without the right to live with dignity, all other fundamental rights may not
realise their complete meaning.
128. To understand a person’s dignity, one has to appreciate how E
the dignity of another is to be perceived. Alexis de Tocqueville tells us55:-
“Whenever I find myself in the presence of another human being,
of whatever station, my dominant feeling is not so much to serve
him or please him as not to offend his dignity.”
F
129. Every individual has many possessions which assume the
position of his/her definitive characteristics. There may not be any
obsession with them but he/she may abhor to be denuded of them, for
they are sacred to him/her and so inseparably associated that he/she
may not conceive of any dissolution. He/she would like others to respect
the said attributes with a singular acceptable condition that there is mutual G
respect. Mutual respect abandons outside interference and is averse to
any kind of interdiction. It is based on the precept that the individuality of
54
Human Rights Gay Rights by Michael Kirby, Published in ‘Humane Rights’ in 2016
by Future Leaders
55
56, New York State Bar Journal (No 3. April, 1984), p.50
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490 SUPREME COURT REPORTS [2018] 7 S.C.R.

A an individual is recognized, accepted and respected. Such respect for
the conception of dignity has become a fundamental right under Article
21 of the Constitution and that ushers in the right of liberty of expression.
Dignity and liberty as a twin concept in a society that cares for both,
apart from painting a grand picture of humanity, also smoothens the
atmosphere by promoting peaceful co-existence and thereby makes the
B
administration of justice easy. In such a society, everyone becomes a
part of the social engineering process where rights as inviolable and
sacrosanct principles are adhered to; individual choice is not an exception
and each one gets his/her space. Though no tower is built, yet the tower
of individual rights with peaceful co-existence is visible.
C 130. In Common Cause (A Regd. Society) (supra), one of us
has observed that human dignity is beyond definition and it may, at
times, defy description. To some, it may seem to be in the world of
abstraction and some may even perversely treat it as an attribute of
egotism or accentuated eccentricity. This feeling may come from the
D roots of absolute cynicism, but what really matters is that life without
dignity is like a sound that is not heard. Dignity speaks, it has its sound, it
is natural and human. It is a combination of thought and feeling.
131. In Maneka Gandhi v. Union of India and another 56,
Krishna Iyer, J. observed that life is a terrestrial opportunity for unfolding
E personality and when any aspect of Article 21 is viewed in a truncated
manner, several other freedoms fade out automatically. It has to be borne
in mind that dignity of all is a sacrosanct human right and sans dignity,
human life loses its substantial meaning.
132. Dignity is that component of one’s being without which
F sustenance of his/her being to the fullest or completest is inconceivable.
In the theatre of life, without possession of the attribute of identity with
dignity, the entity may be allowed entry to the centre stage but would be
characterized as a spineless entity or, for that matter, projected as a
ruling king without the sceptre. The purpose of saying so is that the
identity of every individual attains the quality of an “individual being”
G only if he/she has the dignity. Dignity while expressive of choice is averse
to creation of any dent. When biological expression, be it an orientation
or optional expression of choice, is faced with impediment, albeit through
any imposition of law, the individual’s natural and constitutional right is
56
(1978) 1 SCC 248
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dented. Such a situation urges the conscience of the final constitutional A
arbiter to demolish the obstruction and remove the impediment so as to
allow the full blossoming of the natural and constitutional rights of
individuals. This is the essence of dignity and we say, without any
inhibition, that it is our constitutional duty to allow the individual to behave
and conduct himself/herself as he/she desires and allow him/her to express
B
himself/herself, of course, with the consent of the other. That is the right
to choose without fear. It has to be ingrained as a necessary pre-requisite
that consent is the real fulcrum of any sexual relationship.
133. In this context, we may travel a little abroad. In Law v.
Canada (Minister of Employment and Immigration)57 capturing the
essence of dignity, the Supreme Court of Canada has made the following C
observations:-
“Human dignity means that an individual or group feels self-
respect and self-worth. It is concerned with physical and
psychological integrity and empowerment. Human dignity is
harmed by unfair treatment premised upon personal traits or D
circumstances which do not relate to individual needs, capacities,
or merits. It is enhanced by laws which are sensitive to the needs,
capacities, and merits of different individuals, taking into account
the context underlying their differences. Human dignity is harmed
when individuals and groups are marginalized, ignored, or E
devalued, and is enhanced when laws recognise the full place of
all individuals and groups within Canadian society.”
134. It is not only the duty of the State and the Judiciary to protect
this basic right to dignity, but the collective at large also owes a
responsibility to respect one another’s dignity, for showing respect for F
the dignity of another is a constitutional duty. It is an expression of the
component of constitutional fraternity.
135. The concept of dignity gains importance in the present
scenario, for a challenge has been raised to a provision of law which
encroaches upon this essential right of a severely deprived section of G
our society. An individual’s choice to engage in certain acts within their
private sphere has been restricted by criminalising the same on account
of the age old social perception. To harness such an essential decision,
which defines the individualism of a person, by tainting it with criminality
57
1999 1 S.C.R. 497
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492 SUPREME COURT REPORTS [2018] 7 S.C.R.

A would violate the individual’s right to dignity by reducing it to mere letters
without any spirit.
136. The European Court of Justice in P v. S58 in the context of
rights of individuals who intend to or have undergone sex reassignment
has observed that where a person is dismissed on the ground that he or
B she intends to undergo or has undergone gender reassignment, he or she
is treated unfavorably by comparison with persons of the sex to which
he or she was deemed to belong before undergoing gender reassignment.
To tolerate such discrimination would tantamount, as regards such a
person, to a failure to respect the dignity and freedom to which he or she
is entitled and which the Court has a duty to safeguard.
C
137. In Planned Parenthood of Southeastern Pa. v. Casey59,
the United States Supreme Court had opined that such matters which
involve the most intimate and personal choices a person may make in a
lifetime, choices central to personal dignity and autonomy, are central to
the liberty protected by the Fourteenth Amendment.
D
138. From the aforesaid pronouncements, some in different
spheres but some also in the sphere of sexual orientation, the constitutional
courts have laid emphasis on individual inclination, expression of both
emotional and physical behaviour and freedom of choice, of course,
subject to the consent of the other. A biological engagement, in
E contradistinction to going to a restaurant or going to a theatre to see a
film or a play, is founded on company wherein both the parties have
consented for the act. The inclination is an expression of choice that
defines the personality to cumulatively build up the elevated paradigm of
dignity. Be it clarified that expression of choice, apart from being a facet
F of dignity, is also an essential component of liberty. Liberty as a concept
has to be given its due place in the realm of dignity, for both are connected
with the life and living of a persona.
K. Sexual orientation
139. After stating about the value of dignity, we would have
G proceeded to deal with the cherished idea of privacy which has recently
received concrete clarity in Puttaswamy’s case. Prior to that, we are
advised to devote some space to sexual orientation and the instructive
58
Judgment of 30 April 1996. P v S and Cornwall County Council Case C-13/94. paras.
21-22.
59
H 505 U.S. 833 (1992)
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definition of LGBT by Michael Kirby, former Judge of the High Court of A
Australia:-
“Homosexual: People of either gender who are attracted, sexually,
emotionally and in relationships, to persons of the same sex.
Bisexual: Women who are attracted to both sexes; men who are attracted
to both sexes. B
Lesbian: Women who are attracted to women.
Gay: Men who are attracted to men, although this term is sometimes
also used generically for all same-sex attracted persons.
Gender identity: A phenomenon distinct from sexual orientation which
refers to whether a person identifies as male or female. This identity’ C
may exist whether there is “conformity or non-conformity” between
their physical or biological or birth sex and their psychological sex and
the way they express it through physical characteristics, appearance
and conduct. It applies whether, in the Indian sub-continent, they identify
as hijra or kothi or by another name. D
Intersex: Persons who are born with a chromosomal pattern or physical
characteristics that do not clearly fall on one side or the other of a binary
malefemale line.
LGBT or LGBTIQ: Lesbian, Gay, Bisexual, Transsexual, Intersex and
Queer minorities. The word ‘Queer’ is sometimes used generically,
E
usually by younger people, to include the members of all of the sexual
minorities. I usually avoid this expression because of its pejorative
overtones within an audience unfamiliar with the expression. However,
it is spreading and, amongst the young, is often seen as an instance of
taking possession of a pejorative word in order to remove its sting.
MSM: Men who have sex with men. This expression is common in F
United Nations circles. It refers solely to physical, sexual activity by
men with men. The expression is used on the basis that in some countries
- including India - some men may engage in sexual acts with their own
sex although not identifying as homosexual or even accepting a romantic
or relationship emotion.”60 G
140. Presently, we shall focus on the aspect of sexual orientation.
Every human being has certain basic biological characteristics and
acquires or develops some facets under certain circumstances. The first
60
Sexual Orientation & Gender Identity – A New Province of Law for India, J. Michael
D. Kirby, Tagore Lectures, 2013 H
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A can generally be termed as inherent orientation that is natural to his/her
being. The second can be described as a demonstration of his/her choice
which gradually becomes an inseparable quality of his/her being, for the
individual also leans on a different expression because of the inclination
to derive satisfaction. The third one has the proclivity which he/she
maintains and does not express any other inclination. The first one is
B
homosexuality, the second, bisexuality and third, heterosexuality. The
third one is regarded as natural and the first one, by the same standard,
is treated to be unnatural. When the second category exercises his/her
choice of homosexuality and involves in such an act, the same is also not
accepted. In sum, the ‘act’ is treated either in accord with nature or
C against the order of nature in terms of societal perception.
141. The Yogyakarta Principles define the expression “sexual
orientation” thus:-
“Sexual Orientation” is understood to refer to each person’s
capacity for profound emotional, affectional and sexual attraction
D to and intimate and sexual relations with, individuals of a different
gender or the same gender or more than one gender.”
142. In its study, the American Psychological Association has
attempted to define “sexual orientation” in the following manner:-

E “Sexual orientation refers to an enduring pattern of emotional,
romantic and/or sexual attractions to men. women or both sexes.
Sexual orientation also refers to a person’s sense of identity based
on those attractions, related behaviors, and membership in a
community of others who share those attractions. Research over
several decades has demonstrated that sexual orientation ranges
F along a continuum, from exclusive attraction to the other sex to
exclusive attraction to the same sex.”61
143. From the aforesaid, it has to be appreciated that
homosexuality is something that is based on sense of identity. It is the
reflection of a sense of emotion and expression of eagerness to establish
G intimacy. It is just as much ingrained, inherent and innate as
heterosexuality. Sexual orientation, as a concept, fundamentally implies
a pattern of sexual attraction. It is as natural a phenomenon as other
natural biological phenomena. What the science of sexuality has led to is
61
American Psychological Association, “Answers to Your Questions for a Better
H Understanding of Sexual Orientation & Homosexuality,” 2008
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that an individual has the tendency to feel sexually attracted towards the A
same sex, for the decision is one that is controlled by neurological and
biological factors. That is why it is his/her natural orientation which is
innate and constitutes the core of his/her being and identity. That apart,
on occasions, due to a sense of mutuality of release of passion, two
adults may agree to express themselves in a different sexual behaviour
B
which may include both the genders. To this, one can attribute a bisexual
orientation which does not follow the rigidity but allows room for
flexibility.
144. The society cannot remain unmindful to the theory which
several researches, conducted both in the field of biological and
psychological science, have proven and reaffirmed time and again. To C
compel a person having a certain sexual orientation to proselytize to
another is like asking a body part to perform a function it was never
designed to perform in the first place. It is pure science, a certain manner
in which the brain and genitals of an individual function and react. Whether
one’s sexual orientation is determined by genetic, hormonal, D
developmental, social and/or cultural influences (or a combination thereof),
most people experience little or no sense of choice about their sexual
orientation.62
145. The statement of the American Psychological Association
on homosexuality which was released in July 1994 reiterates this position E
in the following observations:-
“The research on homosexuality is very7 clear. Homosexuality
is neither mental illness nor moral depravity. It is simply the way
a minority of our population expresses human love and sexuality.
Study after study documents the mental health of gay men and F
lesbians. Studies of judgment, stability, reliability, and social and
vocational adaptiveness all show that gay men and lesbians
function every bit as well as heterosexuals. Nor is homosexuality
a matter of individual choice. Research suggests that the
homosexual orientation is in place very early in the life cycle,
possibly even before birth. It is found in about ten percent of the G
population, a figure which is surprisingly constant across cultures,
62
UNHCR GUIDELINES ON INTERNATIONAL PROTECTION NO. 9: Claims to
Refugee Status based on Sexual Orientation and/or Gender Identity within the context
of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the
Status of Refugees H
496 SUPREME COURT REPORTS [2018] 7 S.C.R.

A irrespective of the different moral values and standards of a
particular culture. Contrary to what some imply, the incidence of
homosexuality in a population does not appear to change with
new moral codes or social mores. Research findings suggest
that efforts to repair homosexuals are nothing more than social
prejudice garbed in psychological accouterments.”
B
(Emphasis is ours)
146. In the said context, the observations made by Leonard Sax
to the following effect are relevant and are reproduced below:-
“Biologically, the difference between a gay man and a straight
C man is something like the difference between a left-handed person
and a right-handed person. Being left- handed isn’t just a phase.
A left-handed person won’t someday magically turn into a right-
handed person.... Some children are destined at birth to be left-
handed, and some boys are destined at birth to grow up to be
D gay.”
147. The Supreme Court of Canada in the case of James Egan
and John Norris Nesbit v. Her Majesty The Queen in Right of
Canada and another63, while holding that sexual orientation is one of
the grounds for claiming the benefit under Section 15(1) as it is analogous
E to the grounds already set out in the list in Section 15(1) and the said list
not being finite and exhaustive can be extended to LGBTs on account of
the historical, social, political and economic disadvantage suffered by
LGBTs, has observed:-
“Sexual orientation is a deeply personal characteristic that is either
F unchangeable or changeable only at unacceptable personal costs,
and so falls within the ambit of s. 15 protection as being analogous
to the enumerated grounds.”
148. It is worth noting that scientific study has, by way of keen
analysis, arrived at the conclusion as regards the individual’s inherent
orientation. Apart from orientation, as stated earlier, there can be situations
G
which influence the emotional behaviour of an individual to seek intimacy
in the same gender that may bring two persons together in a biological
pattern. It has to be treated as consensual activity and reflective of
consensual choice.
63
[1995] 2 SCR 513
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L. Privacy and its concomitant aspects A
149. While testing the constitutional validity of Section 377 IPC,
due regard must be given to the elevated right to privacy as has been
recently proclaimed in Puttaswamy (supra). We shall not delve in detail
upon the concept of the right to privacy as the same has been delineated
at length in Puttaswamy (supra). In the case at hand, our focus is limited B
to dealing with the right to privacy vis-à-vis Section 377 IPC and other
facets such as right to choice as part of the freedom of expression and
sexual orientation. That apart, within the compartment of privacy,
individual autonomy has a significant space. Autonomy is individualistic.
It is expressive of self-determination and such self-determination includes
sexual orientation and declaration of sexual identity. Such an orientation C
or choice that reflects an individual’s autonomy is innate to him/her. It is
an inalienable part of his/her identity. The said identity under the
constitutional scheme does not accept any interference as long as its
expression is not against decency or morality. And the morality that is
conceived of under the Constitution is constitutional morality. Under the D
autonomy principle, the individual has sovereignty over his/her body. He/
she can surrender his/her autonomy wilfully to another individual and
their intimacy in privacy is a matter of their choice. Such concept of
identity is not only sacred but is also in recognition of the quintessential
facet of humanity in a person’s nature. The autonomy establishes identity
and the said identity, in the ultimate eventuate, becomes a part of dignity E
in an individual. This dignity is special to the man/woman who has a right
to enjoy his/her life as per the constitutional norms and should not be
allowed to wither and perish like a mushroom. It is a directional shift
from conceptual macrocosm to cognizable microcosm. When such culture
grows, there is an affirmative move towards a more inclusive and F
egalitarian society. Non-acceptance of the same would tantamount to
denial of human rights to people and one cannot be oblivious of the
saying of Nelson Mandela – “to deny people their human rights is to
challenge their very humanity.”
150. Article 12 of the Universal Declaration of Human Rights, G
(1948) makes a reference to privacy by stating:-
“No one shall be subjected to arbitrary interference with his
privacy, family, home or correspondence nor to attacks upon his
honour and reputation. Everyone has the right to the protection
of the law against such interference or attacks.” H
498 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 151. Similarly, Article 17 of the International Covenant of Civil
and Political Rights, to which India is a party, talks about privacy thus:-
“No one shall be subjected to arbitrary or unlawful interference
with his privacy, family, home and correspondence, nor to
unlawful attacks on his honour and reputation.”
B 152. The European Convention on Human Rights also seeks to
protect the right to privacy by stating:-
“1. Everyone has the right to respect for his private and family
life, his home and his correspondence.

C 2. There shall be no interference by a public authority except
such as is in accordance with law and is necessary in a democratic
society in the interests of national security, public safety or the
economic well being of the country, for the protection of health
or morals or for the protection of the rights and freedoms of
others.”
D
153. In the case of Dudgeon v. United Kingdom 64, privacy
has been defined as under:-
“Perhaps the best and most succinct legal definition of privacy is
that given by Warren and Brandeis - it is “the right to be let
alone”.”
E
154. In R. Rajagopal v. State of Tamil Nadu and others65, while
discussing the concept of right to privacy, it has been observed that the
right to privacy is implicit in the right to life and liberty guaranteed to the
citizens of this country by Article 21 and it is a “right to be let alone”, for
a citizen has a right to safeguard the privacy of his/her own, his/her
F
family, marriage, procreation, motherhood, child-bearing and education,
among other matters.
155. The above authorities capture the essence of the right to
privacy. There can be no doubt that an individual also has a right to a
union under Article 21 of the Constitution. When we say union, we do
G not mean the union of marriage, though marriage is a union. As a concept,
union also means companionship in every sense of the word, be it physical,
mental, sexual or emotional. The LGBT community is seeking realisation
of its basic right to companionship, so long as such a companionship is
64
[1981] 4 EHRR 149
H 65
(1994) 6 SCC 632
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consensual, free from the vice of deceit, force, coercion and does not A
result in violation of the fundamental rights of others.
156. Justice Blackmun, in his vigorous dissent, in the case of
Bowers, Attorney General of Georgia v. Hardwick et al.66, regarding
the “right to be let alone”, referred to Paris Adult Theatre I v. Slaton67
wherein he observed that only the most willful blindness could obscure B
the fact that sexual intimacy is a sensitive, key relationship of human
existence, central to family life, community welfare and the development
of human personality. Justice Blackmun went on to observe:-
“The fact that individuals define themselves in a significant way
through their intimate sexual relationships with others suggests, C
in a Nation as diverse as ours, that there may be many “right”
ways of conducting those relationships, and that much of the
richness of a relationship will come from the freedom an individual
has to choose the form and nature of these intensely personal
bonds. … In a variety of circumstances, we have recognized
that a necessary corollary of giving individuals freedom to choose D
how to conduct their lives is acceptance of the fact that different
individuals will make different choices.”
157. In A.R. Coeriel and M.A.R. Aurik v. The Netherlands 68,
the Human Rights Committee observed that the notion of privacy refers
to the sphere of a person’s life in which he or she can freely express his E
or her identity, be it by entering into relationships with others or alone.
The Committee was of the view that a person’s surname constitutes an
important component of one’s identity and that the protection against
arbitrary or unlawful interference with one’s privacy includes the
protection against arbitrary or unlawful interference with the right to F
choose and change one’s own name.
158. We may also usefully refer to the views of the Human Rights
Committee in Toonen v. Australia69 to the effect that the introduction
of the concept of arbitrariness is intended to guarantee that every
interference provided for by the law should be in accordance with the G
provisions, aims and objectives of the Covenant and should be, in any
66
Bowers v. Hardwick, 478 U.S. 186 (1986)
67
413 U.S. 49 (1973)
68
Communication No. 453/1991, para. 10.2
69
Communication No. 488/1992, U.C. Doc CCPR/C/ 50/D 488/ 1992, March 31,
1994, para. 8.3 H
500 SUPREME COURT REPORTS [2018] 7 S.C.R.

A event, reasonable in the circumstances. The requirement of
reasonableness implies that any interference with privacy must be
proportional to the end sought and be necessary in the circumstances of
any given case.
159. The South African Constitutional Court in National Coalition
B for Gay and Lesbian Equality and another v. Minister of Justice
and others70 has arrived at a theory of privacy in sexuality that includes
both decisional and relational elements. It lays down that privacy
recognises that we all have a right to a sphere of private intimacy and
autonomy which allows us to establish and nurture human relationships
without interference from the outside community. The way in which we
C give expression to our sexuality is at the core of this area of private
intimacy. If, in expressing our sexuality, we act consensually and without
harming one another, invasion of that precinct will be a breach of our
privacy. The Court admitted that the society had a poor record of seeking
to regulate the sexual expression of South Africans. It observed that in
D some cases, as in this one, the reason for the regulation was
discriminatory; the law, for example, outlawed sexual relationships among
people of different races. The fact that a law prohibiting forms of sexual
conduct is discriminatory does not, however, prevent it at the same time
from being an improper invasion of the intimate sphere of human life to
which protection is given by the Constitution in Section 14. The Court
E emphasized that the importance of a right to privacy in the new
constitutional order should not be denied even while acknowledging the
importance of equality. In fact, emphasising the breach of both these
rights in the present case highlights just how egregious the invasion of
the constitutional rights of gay persons has been. The offence which lies
F at the heart of the discrimination in this case constitutes, at the same
time and independently, a breach of the rights of privacy and dignity
which, without doubt, strengthens the conclusion that the discrimination
is unfair.
160. At home, the view as to the right to privacy underwent a
G sea-change when a nine-Judge Bench of this Court in Puttaswamy
(supra) elevated the right to privacy to the stature of fundamental right
under Article 21 of the Constitution. One of us, Chandrachud, J., speaking
for the majority, regarded the judgment in Suresh Koushal as a discordant
note and opined that the reasons stated therein cannot be regarded as a
70
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valid constitutional basis for disregarding a claim based on privacy under A
Article 21 of the Constitution. Further, he observed that the reasoning in
Suresh Koushal’s decision to the effect that “a minuscule fraction of
the country’s population constitutes lesbians, gays, bisexuals or
transgenders” is not a sustainable basis to deny the right to privacy.
161. It was further observed that the purpose of elevating certain B
rights to the stature of guaranteed fundamental rights is to insulate their
exercise from the disdain of majorities, whether legislative or popular,
and the guarantee of constitutional rights does not depend upon their
exercise being favourably regarded by majoritarian opinion.
162. The test of popular acceptance, in view of the majority opinion, C
was not at all a valid basis to disregard rights which have been conferred
with the sanctity of constitutional protection. The Court noted that the
discrete and insular minorities face grave dangers of discrimination for
the simple reason that their views, beliefs or way of life does not accord
with the ‘mainstream’, but in a democratic Constitution founded on the
Rule of Law, it does not mean that their rights are any less sacred than D
those conferred on other citizens.
163. As far as the aspect of sexual orientation is concerned, the
Court opined that it is an essential attribute of privacy and discrimination
against an individual on the basis of sexual orientation is deeply offensive
to the dignity and self-worth of the individual. The Court was of the E
view that equality demands that the sexual orientation of each individual
in the society must be protected on an even platform, for the right to
privacy and the protection of sexual orientation lie at the core of the
fundamental rights guaranteed by Articles 14, 15 and 21 of the
Constitution. F
164. Regarding the view in Suresh Koushal’s case to the effect
that the Delhi High Court in Naz Foundation case had erroneously
relied upon international precedents in its anxiety to protect the so-called
rights of LGBT persons, the nine-Judge Bench was of the opinion that
the aforesaid view in Suresh Koushal (supra) was unsustainable. The G
rights of the lesbian, gay, bisexual and transgender population, as per the
decision in Puttaswamy (supra), cannot be construed to be “so-called
rights” as the expression “so-called” seems to suggest the exercise of
liberty in the garb of a right which is illusory.

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502 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 165. The Court regarded such a construction in Suresh Koushal’s
case as inappropriate of the privacy based claims of the LGBT population,
for their rights are not at all “so-called” but are real rights founded on
sound constitutional doctrine. The Court went on to observe that the
rights of the LGBT community inhere in the right to life, dwell in privacy
and dignity and they constitute the essence of liberty and freedom. Further,
B
the Court observed that sexual orientation being an essential component
of identity, equal protection demands equal protection of the identity of
every individual without discrimination.
166. Speaking in the same tone and tenor, Kaul, J., while
concurring with the view of Chandrachud, J., observed that the right to
C privacy cannot be denied even if there is a minuscule fraction of the
population which is affected. He was of the view that the majoritarian
concept does not apply to constitutional rights and the Courts are often
called upon to take what may be categorized as a non-majoritarian view.
167. Kaul, J. went on to opine that one’s sexual orientation is
D undoubtedly an attribute of privacy and in support of this view, he referred
to the observations made in Mosley (supra) which read thus:-
“130... It is not simply a matter of personal privacy v. the public
interest. The modern perception is that there is a public interest
in respecting personal privacy. It is thus a question of taking
E account of conflicting public interest considerations and evaluating
them according to increasingly well recognized criteria.
131. When the courts identify an infringement of a person’s Article
8 rights, and in particular in the context of his freedom to conduct
his sex life and personal relationships as he wishes, it is right to
F afford a remedy and to vindicate that right. The only permitted
exception is where there is a countervailing public interest which
in the particular circumstances is strong enough to outweigh it;
that is to say. because one at least of the established “limiting
principles” comes into play. Was it necessary and proportionate
G for the intrusion to take place, for example, in order to expose
illegal activity or to prevent the public from being significantly
misled by public claims hitherto made by the individual concerned
(as with Naomi Campbell’s public denials of drug- taking)? Or
was it necessary because the information, in the words of the
Strasbourg court in Von Hannover at (60) and (76). would make
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a contribution to “a debate of general interest”? That is, of course, A
a very high test, it is yet to be determined how far that doctrine
will be taken in the courts of this jurisdiction in relation to
photography in public places. If taken literally, it would mean a
very significant change in what is permitted. It would have a
profound effect on the tabloid and celebrity culture to which we
B
have become accustomed in recent years.””
168. After the nine-Judge bench decision in Puttaswamy (supra),
the challenge to the vires of Section 377 IPC has been stronger than
ever. It needs to be underscored that in the said decision, the nine-Judge
Bench has held that sexual orientation is also a facet of a person’s privacy
and that the right to privacy is a fundamental right under the Constitution C
of India.
169. The observation made in Suresh Koushal (supra) that gays,
lesbians, bisexuals and transgenders constitute a very minuscule part of
the population is perverse due to the very reason that such an approach
would be violative of the equality principle enshrined under Article 14 of D
the Constitution. The mere fact that the percentage of population whose
fundamental right to privacy is being abridged by the existence of Section
377 in its present form is low does not impose a limitation upon this
Court from protecting the fundamental rights of those who are so affected
by the present Section 377 IPC. E
170. The constitutional framers could have never intended that
the protection of fundamental rights was only for the majority population.
If such had been the intention, then all provisions in Part III of the
Constitution would have contained qualifying words such as ‘majority
persons’ or ‘majority citizens’. Instead, the provisions have employed F
the words ‘any person’ and ‘any citizen’ making it manifest that the
constitutional courts are under an obligation to protect the fundamental
rights of every single citizen without waiting for the catastrophic situation
when the fundamental rights of the majority of citizens get violated.
171. Such a view is well supported on two counts, namely, one G
that the constitutional courts have to embody in their approach a telescopic
vision wherein they inculcate the ability to be futuristic and do not
procrastinate till the day when the number of citizens whose fundamental
rights are affected and violated grow in figures. In the case at hand,
whatever be the percentage of gays, lesbians, bisexuals and transgenders,
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504 SUPREME COURT REPORTS [2018] 7 S.C.R.

A this Court is not concerned with the number of persons belonging to the
LGBT community. What matters is whether this community is entitled
to certain fundamental rights which they claim and whether such
fundamental rights are being violated due to the presence of a law in the
statute book. If the answer to both these questions is in the affirmative,
then the constitutional courts must not display an iota of doubt and must
B
not hesitate in striking down such provision of law on the account of it
being violative of the fundamental rights of certain citizens, however
minuscule their percentage may be.
172. A second count on which the view in Suresh Koushal (supra)
becomes highly unsustainable is that the language of both Articles 32
C and 226 of the Constitution is not reflective of such an intention. A cursory
reading of both the Articles divulges that the right to move the Supreme
Court and the High Courts under Articles 32 and 226 respectively is not
limited to a situation when there is violation of the fundamental rights of
a large chunk of populace.
D 173. Such a view is also fortified by several landmark judgments
of the Supreme Court such as D.K. Basu v. State of W.B.71 wherein the
Court was concerned with the fundamental rights of only those persons
who were put under arrest and which again formed a minuscule fraction
of the total populace. Another recent case wherein the Supreme Court
E while discharging its constitutional duty did not hesitate to protect the
fundamental right to die with dignity is Common Cause (A Regd.
Society) (supra) wherein the Supreme Court stepped in to protect the
said fundamental right of those who may have slipped into permanent
vegetative state, who again form a very minuscule part of the society.

F 174. Such an approach reflects the idea as also mooted by Martin
Luther King Jr. who said, “Injustice anywhere is a threat to justice
everywhere”. While propounding this view, we are absolutely conscious
of the concept of reasonable classification and the fact that even single
person legislation could be valid as held in Chiranjit Lal Chowdhury v.
Union of India72, which regarded the classification to be reasonable
G from both procedural and substantive points of view.
175. We are aware that the legislature is fully competent to enact
laws which are applicable only to a particular class or group. But, for the
71
(1997) 1 SCC 416
72
[1950] 1 SCR 869
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classification to be valid, it must be founded on an intelligible differentia A
and the differentia must have a rational nexus with the object sought to
be achieved by a particular provision of law.
176. That apart, since it is alleged that Section 377 IPC in its
present form violates a fundamental right protected by Article 21 of the
Constitution, that is, the right to personal liberty, it has to not only stand B
the test of Article 21 but it must also stand the test of Article 19 which is
to say that the restriction imposed by it has to be reasonable and also
that of Article 14 which is to say that Section 377 must not be arbitrary.
177. Whether Section 377 stands the trinity test of Articles 14, 19
and 21 as propounded in the case of Maneka Gandhi (supra) will be C
ascertained and determined at a later stage of this judgment when we
get into the interpretative dissection of Section 377 IPC.
M. Doctrine of progressive realization of rights
178. When we talk about the rights guaranteed under the
Constitution and the protection of these rights, we observe and D
comprehend a manifest ascendance and triumphant march of such rights
which, in turn, paves the way for the doctrine of progressive realization
of the rights under the Constitution. This doctrine invariably reminds us
about the living and dynamic nature of a Constitution. Edmund Burke,
delineating upon the progressive and the perpetual growing nature of a E
Constitution, had said that a Constitution is ever-growing and it is
perpetually continuous as it embodies the spirit of a nation. It is enriched
at the present by the past experiences and influences and makes the
future richer than the present.
179. In N.M. Thomas (supra), Krishna Iyer, J., in his concurring F
opinion, observed thus:-
“Law, including constitutional law, can no longer go it alone’ but
must be illumined in the interpretative process by sociology and
allied fields of knowledge. Indeed, the term ‘constitutional law’
symbolizes an intersection of law and politics, wherein issues of
G
political power are acted on by persons trained in the legal
tradition, working in judicial institutions, following the procedures
of law, thinking as lawyers think. So much so, a wider perspective
is needed to resolve issues of constitutional law.”

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506 SUPREME COURT REPORTS [2018] 7 S.C.R.

A And again:-
“An overview of the decided cases suggests the need to re-
interpret the dynamic import of the ‘equality clauses’ and, to
stress again, beyond reasonable doubt, that the paramount law.
which is organic and regulates our nation’s growing life, must
B take in its sweep ethics, economics, politics and sociology’.”
The learned Judge, expanding the horizon of his concern,
reproduced the lament of Friedman:-
“It would be tragic if the law were so petrified as to be unable
to respond to the unending challenge of evolutionary or
C revolutionary changes in society.’’
The main assumptions which Friedman makes are:
“first, the law is, in Holmes’ phrase, not a brooding omnipotence
in the sky’, but a flexible instrument of social order, dependent
D on the political values of the society which it purports to
regulate....”
Naturally surges the interrogation, what are the challenges of
changing values to which the guarantee of equality must respond
and how?”
E 180. Further, Krishna Iyer, J. referred to the classic statement
made by Chief Justice Marshall in McCulloch v. Maryland73 which
was also followed by Justice Brennan in Kazenbach v. Morgan74. The
said observation reads thus:-
“Let the end be legitimate, let it be within the scope of the
F constitution, and all means which are appropriate, which are
plainly adapted to that end, which are not prohibited, but consist
with the letter and spirit of the constitution, are constitutional.”
181. In Manoj Narula (supra), the Court recognized the dynamic
nature of the Indian Constitution and observed that it is a living document
G with capabilities of enormous dynamism. It is a Constitution made for a
progressive society and the working of such a Constitution depends upon
the prevalent atmosphere and conditions.

73
(1816) 17 US 316
74
(1966) 384 US 641
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182. In Government of NCT of Delhi (supra), the Court, while A
contemplating on what is it that makes a Constitution a dynamic and a
living document, observed that it is the philosophy of ‘constitutional culture’
which, as a set of norms and practices, breathes life into the words of
the great document and it constantly enables the words to keep stride
with the rapid and swift changes occurring in the society and the
B
responsibility of fostering a constitutional culture rests upon the shoulders
of the State. Thereafter, the Court went on to observe:-
“The Constitutional Courts, while interpreting the constitutional
provisions, have to take into account the constitutional culture,
bearing in mind its flexible and evolving nature, so that the
provisions are given a meaning which reflect the object and C
purpose of the Constitution.”
And again, it proceeded to reproduce the wise words of Justice
Brennan:-
“We current Justices read the Constitution in the only way that D
we can: as Twentieth Century Americans. We look to the history
of the time of framing and to the intervening history of
interpretation. But the ultimate question must be, what do the
words of the text mean in our time? For the genius of the
Constitution rests not in any static meaning it might have had in
a world that is dead and gone, but in the adaptability of its great E
principles to cope with current problems and current needs. What
the constitutional fundamentals meant to the wisdom of other
times cannot be their measure to the vision of our time. Similarly,
what those fundamentals mean for us, our descendants will learn,
cannot be the measure to the vision of their time.” F
183. We have discussed, in brief, the dynamic and progressive
nature of the Constitution to accentuate that rights under the Constitution
are also dynamic and progressive, for they evolve with the evolution of
a society and with the passage of time. The rationale behind the doctrine
of progressive realization of rights is the dynamic and ever growing nature G
of the Constitution under which the rights have been conferred to the
citizenry.
184. The constitutional courts have to recognize that the
constitutional rights would become a dead letter without their dynamic,
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508 SUPREME COURT REPORTS [2018] 7 S.C.R.

A vibrant and pragmatic interpretation. Therefore, it is necessary for the
constitutional courts to inculcate in their judicial interpretation and decision
making a sense of engagement and a sense of constitutional morality so
that they, with the aid of judicial creativity, are able to fulfill their foremost
constitutional obligation, that is, to protect the rights bestowed upon the
citizens of our country by the Constitution.
B
185. Here, it is also apposite to refer to the words of Lord Roskill
in his presidential address to the Bentham Club at University College of
London on February 29, 1984 on the subject ‘Law Lords, Reactionaries
or Reformers’75 which read as follows:-
C “Legal policy now stands enthroned and will I hope remain one
of the foremost considerations governing the development by
the House of Lords of the common law. What direction should
this development now take? I can think of several occasions
upon which we have all said to ourselves:-
“this case requires a policy decision what is the right policy
D decision?” The answer is, and I hope will hereafter be, to follow
that route which is most consonant with the current needs of the
society, and which will be seen to be sensible and will
pragmatically thereafter be easy to apply. No doubt the Law
Lords will continue to be the targets for those academic lawyers
E who will seek intellectual perfection rather than imperfect
pragmatism. But much of the common law and virtually all
criminal law, distasteful as it may be to some to have to
acknowledge it. is a blunt instrument by means of which human
beings, whether they like it or not, are governed and subject to
which they are required to live, and blunt instruments are rarely
F perfect intellectually or otherwise. By definition they operate
bluntly and not sharply.”
[Emphasis supplied]
186. What the words of Lord Roskill suggest is that it is not only
the interpretation of the Constitution which needs to be pragmatic, due
G
to the dynamic nature of a Constitution, but also the legal policy of a
particular epoch must be in consonance with the current and the present
needs of the society, which are sensible in the prevalent times and at the
same time easy to apply.
75
Lord Roskill, “Law Lords, Reactionaries or Reformers”, Current Legal Problems
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187. This also gives birth to an equally important role of the State A
to implement the constitutional rights effectively. And of course, when
we say State, it includes all the three organs, that is, the legislature, the
executive as well as the judiciary. The State has to show concerned
commitment which would result in concrete action. The State has an
obligation to take appropriate measures for the progressive realization
B
of economic, social and cultural rights.
188. The doctrine of progressive realization of rights, as a natural
corollary, gives birth to the doctrine of non-retrogression. As per this
doctrine, there must not be any regression of rights. In a progressive and
an ever-improving society, there is no place for retreat. The society has
to march ahead. C

189. The doctrine of non-retrogression sets forth that the State
should not take measures or steps that deliberately lead to retrogression
on the enjoyment of rights either under the Constitution or otherwise.
190. The aforesaid two doctrines lead us to the irresistible D
conclusion that if we were to accept the law enunciated in Suresh
Koushal’s case, it would definitely tantamount to a retrograde step in
the direction of the progressive interpretation of the Constitution and
denial of progressive realization of rights. It is because Suresh Koushal’s
view gets wrongly embedded with the minuscule facet and assumes
criminality on the bedrock being guided by a sense of social morality. It E
discusses about health which is no more a phobia and is further moved
by the popular morality while totally ignoring the concepts of privacy,
individual choice and the orientation. Orientation, in certain senses, does
get the neuro-impulse to express while seeing the other gender. That
apart, swayed by data, Suresh Koushal fails to appreciate that the F
sustenance of fundamental rights does not require majoritarian sanction.
Thus, the ruling becomes sensitively susceptible.
N. International perspective
(i) United States
G
191. The Supreme Court of the United States in Obergefell, et
al. v. Hodges, Director, Ohio Department of Health, et al. 76,
highlighting the plight of homosexuals, observed that until the mid-20 th
century, same-sex intimacy had long been condemned as immoral by
76
576 US (2015) H
510 SUPREME COURT REPORTS [2018] 7 S.C.R.

A the State itself in most Western nations and a belief was often embodied
in the criminal law and for this reason, homosexuals, among others, were
not deemed to have dignity in their own distinct identity. The Court
further noted that truthful declaration by same-sex couples of what was
in their hearts had to remain unspoken and even when a greater awareness
of the humanity and integrity of homosexual persons came in the period
B
after World War II, the argument that gays and lesbians had a just claim
to dignity was in conflict with both law and widespread social
conventions. The Court also observed that same-sex intimacy remained
a crime in many States and that gays and lesbians were prohibited from
most government employment, barred from military service, excluded
C under immigration laws, targeted by the police and burdened in their
rights to associate.
192. The Court further observed that what the statutes in question
seek to control is a personal relationship, whether or not entitled to formal
recognition in the law, that is within the liberty of persons to choose
D without being punished as criminals. Further, the Court acknowledged
that adults may choose to enter upon a relationship in the confines of
their homes and their own private lives and still retain their dignity as
free persons and that when sexuality finds overt expression in intimate
conduct with another person, the conduct can be but one element in a
personal bond that is more enduring. The Court held that such liberty
E protected by the Constitution allows homosexual persons the right to
make this choice.
193. In the case of Price Waterhouse v. Hopkins77, the Supreme
Court of the United States, while evaluating the legal relevance of sex
stereotyping, observed thus:-
F
“...we are beyond the day when an employer could evaluate
employees by assuming or insisting that they matched the
stereotype associated with their group, for, “‘[i]n forbidding
employers to discriminate against individuals because of their
sex, Congress intended to strike at the entire spectrum of disparate
G treatment of men and women resulting from sex stereotypes.””
194. In the case of Kimberly Hively v. Ivy Tech Community
College of Indiana78, while holding that discrimination amongst
77
490 U.S. 228 (1989)
78
830 F.3d 698 (7th Cir. 2016)
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employees based on their sexual orientation amounts to discrimination A
based on sex, the Court observed as under:-
“We would be remiss not to consider the EEOC’s recent decision
in which it concluded that “sexual orientation is inherently a ‘sex-
based consideration,’ and an allegation of discrimination based
on sexual orientation is necessarily an allegation of sex B
discrimination under Title VII.” Baldwin v. Foxx, EEOC Appeal
No. 0120133080, 2015 WL 4397641, at *5, *10 (July 16, 2015).
The EEOC, the body charged with enforcing Title VII, came to
this conclusion for three primary reasons. First, it concluded that
“sexual orientation discrimination is sex discrimination because
it necessarily entails treating an employee less favorably because C
of the employee’s sex.” Id. at *5 (proffering the example of a
woman who is suspended for placing a photo of her female
spouse on her desk, and a man who faces no consequences for
the same act). Second, it explained that “sexual orientation
discrimination is also sex discrimination because it is associational D
discrimination on the basis of sex,” in which an employer
discriminates against lesbian, gay, or bisexual employees based
on who they date or marry. Id. at *6-7. Finally, the EEOC
described sexual orientation discrimination as a form of
discrimination based on gender stereotypes in which employees
are harassed or punished for failing to live up to societal norms E
about appropriate masculine and feminine behaviors, mannerisms,
and appearances. Id. In coming to these conclusions, the EEOC
noted critically that “courts have attempted to distinguish
discrimination based on sexual orientation from discrimination
based on sex, even while noting that the “borders [between the F
two classes] are imprecise.” Id. at *8 (quoting Simonton, 232
F.3d at 35).
[Underlining is ours]
79
195. In the case of Lawrence v. Texas , while dealing with the
issue of decriminalization of sexual conduct between homosexuals, the G
U.S. Supreme Court observed that the said issue neither involved minors
nor persons who might be injured or coerced or who are situated in
relationships where consent might not easily be refused nor did it involve
public conduct or prostitution nor the question whether the government
79
539 U.S. 558 (2003) H
512 SUPREME COURT REPORTS [2018] 7 S.C.R.

A must give formal recognition to any relationship that homosexual persons
seek to enter. The Court further observed that the issue related to two
adults who, with full and mutual consent of each other, engaged in sexual
practices common to a homosexual lifestyle. The Court declared that
the petitioners were entitled to respect for their private lives and that the
State could not demean their existence or control their destiny by making
B
their private sexual conduct a crime, for their right to liberty under the
Due Process Clause gives them the full right to engage in their conduct
without the intervention of the State.
196. In Roberts v. United States Jaycees80, the Supreme Court
of the United States observed:-
C
“Our decisions have referred to constitutionally protected
“freedom of association” in two distinct senses. In one line of
decisions, the Court has concluded that choices to enter into and
maintain certain intimate human relationships must be secured
against undue intrusion by the State because of the role of such
D relationships in safeguarding the individual freedom that is central
to our constitutional scheme. In this respect, freedom of
association receives protection as a fundamental element of
personal liberty. In another set of decisions, the Court has
recognized a right to associate for the purpose of engaging in
those activities protected by the First Amendment ~ speech,
E
assembly, petition for the redress of grievances, and the exercise
of religion. The Constitution guarantees freedom of association
of this kind as an indispensable means of preserving other
individual liberties. The intrinsic and instrumental features of
constitutionally protected association may, of course, coincide.”
F [Emphasis added]
(ii) Canada
197. The Supreme Court of Canada, in Delwin Vriend and others
v. Her Majesty the Queen in Right of Alberta and others81, while
interpreting a breach of Section 15(1) of the Canadian Charter of Rights
G and Freedoms, arrived at the conclusion that ‘sex’ includes sexual
orientation. Section 15(1) of the Charter reads thus:-
“Every individual is equal before and under the law and has the
right to the equal protection and equal benefit of the law without
80
468 U.S. 609 (1984)
H 81
[1998] 1 SCR 493
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discrimination and, in particular, without discrimination based on A
race, national or ethnic origin, colour, religion, sex, age or physical
disability.”
198. In Delwin Vriend, the Supreme Court of Canada, relying
on the reasoning adopted by it in Egan v. Canada (supra), applied its
well-known test of grounds analogous to those specified textually. The B
Egan test is:-
“In Egan, it was said that there are two aspects which are relevant
in determining whether the distinction created by the law
constitutes discrimination. First, “whether the equality right was
denied on the basis of a personal characteristic which is either C
enumerated in s. 15(1) or which is analogous to those
enumerated”. Second “whether that distinction has the effect
on the claimant of imposing a burden, obligation or disadvantage
not imposed upon others or of withholding or limiting access to
benefits or advantages which are available to others” (para. 131).
A discriminatory distinction was also described as one which is D
“capable of either promoting or perpetuating the view that the
individual adversely affected by this distinction is less capable,
or less worthy of recognition or value as a human being or as a
member of Canadian society, equally deserving of concern,
respect, and consideration” (Egan, at para. 56, per L’Heureux - E
Dube J.). It may as well be appropriate to consider whether the
unequal treatment is based on “the stereotypical application of
presumed group or personal characteristics” (Miron, at para.
128, per McLachlin J.)
In Egan, it was held, on the basis of “historical social, political F
and economic disadvantage suffered by homosexuals” and the
emerging consensus among legislatures (at para. 176), as well
as previous judicial decisions (at para. 177), that sexual orientation
is a ground analogous to those listed in s. 15(1). Sexual orientation
is “a deeply personal characteristic that is either unchangeable
or changeable only at unacceptable personal costs” (para. 5). It G
is analogous to the other personal characteristics enumerated in
s. 15(1); and therefore this step of the test is satisfied.”
199. Thereafter, the Court in Delwin Vriend (supra) observed
that perhaps the most important outcome is the psychological harm which
may ensue from the state of affairs as the fear of discrimination (by H
514 SUPREME COURT REPORTS [2018] 7 S.C.R.

A LGBT) would logically lead them to concealment of true identity and
this is harmful to their personal confidence and self-esteem. The Court
held that this is a clear example of a distinction which demeans the
individual and strengthens and perpetrates the view that gays and lesbians
are less worthy of protection as individuals in Canada’s society and the
potential harm to the dignity and perceived worth of gay and lesbian
B
individuals constitutes a particularly cruel form of discrimination.
(iii) South Africa
200. The Constitutional Court of South Africa in National Coalition
for Gay & Lesbian Equality (supra) made the following relevant
C observations:-
“Its symbolic effect is to state that in the eyes of our legal system
all gay men are criminals. The stigma thus attached to a significant
proportion of our population is manifest. But the harm imposed
by the criminal law is far more than symbolic. As a result of the
D criminal offence, gay men are at risk of arrest, prosecution and
conviction of the offence of sodomy simply because they seek
to engage in sexual conduct which is part of their experience of
being human. Just as apartheid legislation rendered the lives of
couples of different racial groups perpetually at risk, the sodomy
offence builds insecurity and vulnerability into the daily lives of
E gay men. There can be no doubt that the existence of a law
which punishes a form of sexual expression for gay men degrades
and devalues gay men in our broader society. As such it is a
palpable invasion of their dignity and a breach of section 10 of
the Constitution.”
F (iv) United Kingdom
201. In Euan Sutherland v. United Kingdom82, the issue before
the European Commission of Human Rights was whether the difference
in age limit for consent for sexual activities for homosexuals and
heterosexuals, the age limit being 16 years in the case of heterosexuals
G and 18 years in the case of homosexuals, is justified. While considering
the same, the Commission observed that no objective and reasonable
justification exists for the maintenance of a higher minimum age of consent
in case of male homosexuals as compared to heterosexuals and that the
application discloses discriminatory treatment in the exercise of the
H 82
2001 ECHR 234
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 515
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applicant’s right to respect for private life under Article 8 of the A
Convention. The Commission further observed that sexual orientation
was usually established before the age of puberty in both boys and girls
and referred to evidence that reducing the age of consent would unlikely
affect the majority of men engaging in homosexual activity, either in
general or within specific age groups. The Council of the British Medical
B
Association (BMA) concluded in its Report that the age of consent for
homosexual men should be set at 16 since the then existing law might
inhibit efforts to improve the sexual health of young homosexual and
bisexual men. An equal age of consent was also supported by the Royal
College of Psychiatrists, the Health Education Authority and the National
Association of Probation Officers as well as by other bodies and C
organizations concerned with health and social welfare. It is further noted
that equality of treatment in respect of the age of consent is now
recognized by the great majority of Member States of the Council of
Europe.
(v) Other Courts/Jurisdictions D
202. In Ang Ladlad LGBT Party v. Commission of Elections 83,
the Supreme Court of the Republic of the Philippines observed:-
“Freedom of expression constitutes one of the essential
foundations of a democratic society, and this freedom applies
not only to those that are favorably received but also to those E
that offend, shock, or disturb. Any restriction imposed in this
sphere must be proportionate to the legitimate aim pursued.
Absent any compelling state interest, it is not for the COMELEC
or this Court to impose its views on the populace.”
Elaborating further, the Court held:- F
“It follows that both expressions concerning one’s homosexuality
and the activity of forming a political association that supports
LGBT individuals are protected as well.”
The Court navigated through European and United Nations Judicial
G
decisions and held:-
“In the area of freedom of expression, for instance, United States
courts have ruled that existing free speech doctrines protect gay
83
G. R. No.190582, Supreme Court of Philippines (2010)
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516 SUPREME COURT REPORTS [2018] 7 S.C.R.

A and lesbian rights to expressive conduct. In order to justify the
prohibition of a particular expression of opinion, public institutions
must show that their actions were caused by “something more
than a mere desire to avoid the discomfort and unpleasantness
that always accompany an unpopular viewpoint.”
B 203. Further, in Toonen’s case, the Human Rights Committee made
the following relevant observations:-
“I concur with this view, as the common denominator for the
grounds “race, colour and sex” are biological or genetic factors.
This being so, the criminalization of certain behaviour operating
C under Sections 122(a), (c) and 123 of the Tasmanian Criminal
Code must be considered incompatible with article 26 of the
Covenant.
Firstly, these provisions of the Tasmanian Criminal Code
prohibit sexual intercourse between men and between women,
D thereby making a distinction between heterosexuals and
homosexuals. Secondly, they criminalize other sexual contacts
between consenting men without at the same time criminalizing
such contacts between women. These provisions therefore set
aside the principle of equality before the law. It should be
emphasized that it is the criminalization as such that constitutes
E discrimination of which individuals may claim to be victims, and
thus violates article 26, notwithstanding the fact that the law has
not been enforced over a considerable period of time: the
designated behaviour none the less remains a criminal offence.”
204. In Dudgeon (supra), the European Court of Human Rights
F made the following observations with respect to homosexuality:-
“It cannot be maintained in these circumstances that there is a
“pressing social need” to make such acts criminal offences, there
being no sufficient justification provided by the risk of harm to
vulnerable sections of society requiring protection or by the
G effects on the public. On the issue of proportionality, the Court
considers that such justifications as there are for retaining the
law in force unamended are outweighed by the detrimental
effects which the very existence of the legislative provisions in
question can have on the life of a person of homosexual
orientation like the applicant. Although members of the public
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NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 517
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who regard homosexuality as immoral may be shocked, offended A
or disturbed by the commission by others of private homosexual
acts, this cannot on its own warrant the application of penal
sanctions when it is consenting adults alone who are involved.”
[Emphasis supplied]
O. Comparative analysis of Section 375 and Section 377 IPC B

205. Let us, in the obtaining situation, conduct a comparative
analysis of the offence of rape and unnatural offences as defined under
Section 375 and Section 377 of the IPC respectively. Section 375 IPC
defines the offence of rape and reads as under:-
C
Section 375. Rape-A man is said to commit “rape” if he —
(a) penetrates his penis, to any extent, into the vagina, mouth,
urethra or anus of a woman or makes her to do so with him or
any other person; or
(b) inserts, to any extent, any object or a part of the body, not D
being the penis, into the vagina, the urethra or anus of a woman
or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause
penetration into the vagina, urethra, anus or any part of body of
such woman or makes her to do so with him or any other person; E
or
(d) applies his mouth to the vagina, anus, urethra of a woman or
makes her to do so with him or any other person, under the
circumstances falling under any of the following seven
descriptions: — F
First. —Against her will.
Secondly. —Without her consent.
Thirdly. —With her consent, when her consent has been obtained
by putting her or any person in whom she is interested, in fear of G
death or of hurt.
Fourthly. —With her consent, when the man knows that he is
not her husband and that her consent is given because she believes
that he is another man to whom she is or believes herself to be
lawfully married.
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518 SUPREME COURT REPORTS [2018] 7 S.C.R.

A Fifthly. —With her consent when, at the time of giving such
consent, by reason of unsoundness of mind or intoxication or the
administration by him personally or through another of any
stupefying or unwholesome substance, she is unable to understand
the nature and consequences of that to which she gives consent.
B Sixthly. —With or without her consent, when she is under eighteen
years of age.
Seventhly. —When she is unable to communicate consent.
Explanation I.—For the purposes of this section, “vagina” shall
also include labia majora.
C
Explanation 2. — Consent means an unequivocal voluntary
agreement when the woman by words, gestures or any form of
verbal or non-verbal communication, communicates willingness
to participate in the specific sexual act:

D Provided that a woman who does not physically resist to the act
of penetration shall not by the reason only of that fact, be regarded
as consenting to the sexual activity.
Exception I.—A medical procedure or intervention shall not
constitute rape.
E Exception 2. —Sexual intercourse or sexual acts by a man with
his own wife, the wife not being under fifteen years of age, is
not rape.’.
206. A cursory reading of Section 375 IPC divulges that it is a
gender specific provision for the protection of women as only a man can
F commit the offence of rape. The Section has been divided into two parts.
The former part, comprising of Clauses (a) to (d), simply describes what
acts committed by a man with a woman would amount to rape provided
that the said acts are committed in the circumstances falling under any
of the seven descriptions as stipulated by the latter part of the Section.
G 207. It is in this way that the latter part of Section 375 IPC becomes
important as it lays down the circumstances, either of which must be
present, for an act committed by a man with a woman to come within
the sweep of the offence of rape. To put it differently, for completing the
offence of rape, any of the circumstances described in the latter part of
Section 375 must be present. Let us now dissect each of the seven
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NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 519
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descriptions appended to Section 375 IPC which specify the absence of A
a willful and informed consent for constituting the offence of rape.
208. The first description provides that any of the acts described
in the former part of Section 375 IPC would amount to rape if such acts
are committed against the will of the woman. The second description
stipulates that the acts described in the former part would amount to B
rape if such acts are committed without the consent of the woman. As
per the third description, the acts would amount to rape even if the woman
has given her consent but the said consent has been obtained by putting
her or any person in whom she is interested, in fear of death or of hurt.
As per the fourth description, the acts would amount to rape when the
woman has given her consent but the same was given by her under the C
belief that she is or believes herself to be lawfully married to the man
committing the acts stated in the former part of the Section. The fifth
description provides that the acts described in the former part would
amount to rape if the woman gives her consent but at the time of giving
such consent, she is unable to understand the nature and consequences D
of the acts to which she consents due to the reason of unsoundness of
mind or intoxication or the administration of any stupefying or
unwholesome substance either by the man who commits the acts or
through another third person. The sixth description is plain and simple as
it stipulates that the acts described in the former part of the Section
would amount to rape, irrespective of the fact whether the woman has E
given her consent or not, if, at the time when the acts were committed,
the woman was below the age of eighteen years. Coming to the seventh
and the last description, it provides that the acts prescribed in the former
part would amount to rape if the woman is unable to communicate her
consent. F
209. Explanation 2 to Section 375 IPC gives the definition of
consent for the purpose of Section 375 to the effect that consent means
an unequivocal voluntary agreement by the woman through words,
gestures or any form of verbal or non-verbal communication whereby
she communicates her willingness to participate in any of the sexual G
acts described in the former part of Section 375 IPC.
210. We have scrutinized the anatomy of the seven descriptions
contained in the latter part of Section 375 IPC along with Explanation 2
to Section 375 IPC to emphasize and accentuate that the element of
absence of consent is firmly ingrained in all the descriptions contained in H
520 SUPREME COURT REPORTS [2018] 7 S.C.R.

A the latter part of Section 375 IPC and the absence of a willful and informed
consent is sine qua non to designate the acts contained in the former
part of Section 375 IPC as rape.
211. Presently, we proceed to scan the anatomy of Section 377 of
IPC and x-ray the provision to study its real nature and content. It reads
B thus:-
“Section 377. Unnatural offences.—Whoever voluntarily has
carnal intercourse against the order of nature with any man,
woman or animal, shall be punished with imprisonment for life,
or with imprisonment of either description for a term which may
C extend to ten years, and shall also be liable to fine.
Explanation.—Penetration is sufficient to constitute the carnal
intercourse necessary to the offence described in this section.”
212. Section 377 IPC, unlike Section 375, is a gender-neutral
provision as it uses the word ‘whoever’. The word ‘carnal’, as per the
D Black’s Law Dictionary84, means of the body, relating to the body, fleshy
or sexual. ‘Sexual intercourse’ has been defined in Black’s Law Dictionary
as a contact between a male and a female’s organ.
213. Another expression which has been employed in Section 377
is ‘against the order of nature’. The phrase ‘against the order of nature’
E has neither been defined in Section 377 IPC nor in any other provision of
the IPC. The foundation on which Section 377 IPC makes carnal
intercourse an offence is the precept that such carnal intercourse is
against the order of nature. This brings us to the important question as to
what is ‘against the order of nature’?
F 214. In Khanu (supra), where the question before the Court was
whether coitus per os (mouth contact with the male genitals) amounts
to carnal intercourse against the order of nature, the Court ruled in the
affirmative observing that the natural object of intercourse is that there
should be the possibility of conception of human beings which in the
case of coitus per os is impossible. Thus, the most common argument
G
against homosexuality and criminalization of carnal intercourse even
between consenting adults of opposite sex is that traditionally, the essential
purpose of sex is to procreate.

84
Black’s Law Dictionary, 2nd edn.
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NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 521
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215. With the passage of time and evolution of the society, A
procreation is not the only reason for which people choose to come
together, have live-in relationships, perform coitus or even marry. They
do so for a whole lot of reasons including emotional companionship.
Homer Clark writes:-
“But the fact is that the most significant function of marriage B
today seems to be that it furnishes emotional satisfactions to be
found in no other relationships. For many people it is the refuge
from the coldness and impersonality of contemporary existence.”
216. In the contemporary world where even marriage is now not
equated to procreation of children, the question that would arise is whether C
homosexuality and carnal intercourse between consenting adults of
opposite sex can be tagged as ‘against the order of nature’. It is the
freedom of choice of two consenting adults to perform sex for procreation
or otherwise and if their choice is that of the latter, it cannot be said to be
against the order of nature. Therefore, sex, if performed differently, as
per the choice of the consenting adults, does not per se make it against D
the order of nature.
217. Section 377 criminalises even voluntary carnal intercourse
not only between homosexuals but also between heterosexuals. The
major difference between the language of Section 377 and Section 375
is that of the element of absence consent which has been elaborately E
incorporated in the seven descriptions contained in the latter part of
Section 375 IPC. It is the absence of willful and informed consent
embodied in the seven descriptions to Section 375 which makes the
offence of rape criminal.
218. On the other hand, Section 377 IPC contains no such F
descriptions/exceptions embodying the absence of willful and informed
consent and criminalises even voluntary carnal intercourse both between
homosexuals as well as between heterosexuals. While saying so, we
gain strength and support from the fact that the legislature, in its wisdom,
while enacting Section 375 IPC in its amended form after the Criminal G
Law (Amendment) Act, 2013, has not employed the words “subject to
any other provision of the IPC”. The implication of the absence of these
words simply indicates that Section 375 IPC which does not criminalize
consensual carnal intercourse between heterosexuals is not subject to
Section 377 IPC.
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522 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 219. Section 377, so far as it criminalises carnal intercourse
between heterosexuals is legally unsustainable in its present form for
the simple reason that Section 375 IPC clearly stipulates that carnal
intercourse between a man and a woman with the willful and informed
consent of the woman does not amount to rape and is not penal.
B 220. Despite the Criminal Law (Amendment) Act, 2013 coming
into force, by virtue of which Section 375 was amended, whereby the
words ‘sexual intercourse’ in Section 375 were replaced by four elaborate
clauses from (a) to (d) giving a wide definition to the offence of rape,
Section 377 IPC still remains in the statute book in the same form. Such
an anomaly, if allowed to persist, may result in a situation wherein a
C heterosexual couple who indulges in carnal intercourse with the willful
and informed consent of each other may be held liable for the offence of
unnatural sex under Section 377 IPC, despite the fact that such an act
would not be rape within the definition as provided under Section 375
IPC.
D 221. Drawing an analogy, if consensual carnal intercourse
between a heterosexual couple does not amount to rape, it definitely
should not be labelled and designated as unnatural offence under Section
377 IPC. If any proclivity amongst the heterosexual population towards
consensual carnal intercourse has been allowed due to the Criminal Law
E (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.
222. There is another aspect which needs to be discussed, which
F is whether criminalisation of carnal intercourse under Section 377 serves
any useful purpose under the prevalent criminal law. Delineating on this
aspect, the European Commission of Human Rights in Dudgeon (supra)
opined thus:-
“The 1967 Act, which was introduced into Parliament as a Private
G Member’s Bill, was passed to give effect to the recommendations
concerning homosexuality made in 1957 in the report of the
Departmental Committee on Homosexual Offences and
Prostitution established under the chairman ship of Sir John
Wolfenden (the “Wolfenden Committee” and “Wolfenden
report”). The Wolfenden Committee regarded the function of
H the criminal law in this field as:
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 523
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“to preserve public order and decency, to protect the citizen A
from what is offensive or injurious, and to provide sufficient
safeguards against exploitation and corruption of others,
particularly those who are specially vulnerable because they
are young, weak in body or mind, inexperienced, or in a state
of special physical, official, or economic dependence”,
B
but not
“to intervene in the private lives of citizens, or to seek to enforce
any particular pattern of behaviour, further than is necessary
to carry out the purposes we have outlined”.
The Wolfenden Committee concluded that homosexual behaviour C
between consenting adults in private was part of the “realm of
private morality and immorality which is, in brief and crude terms,
not the law’s business” and should no longer be criminal”
[Underlining is ours]
D
223. At the very least, it can be said that criminalisation of
consensual carnal intercourse, be it amongst homosexuals, heterosexuals,
bi-sexuals or transgenders, hardly serves any legitimate public purpose
or interest. Per contra, we are inclined to believe that if Section 377
remains in its present form in the statute book, it will allow the harassment
and exploitation of the LGBT community to prevail. We must make it E
clear that freedom of choice cannot be scuttled or abridged on the threat
of criminal prosecution and made paraplegic on the mercurial stance of
majoritarian perception.
P. The litmus test for survival of Section 377 IPC
F
224. Having discussed the various principles and concepts and
bearing in mind the sacrosanctity of the fundamental rights which guides
the constitutional courts, we shall now proceed to deal with the
constitutionality of Section 377 IPC on the bedrock of the principles
enunciated in Articles 14, 19 and 21 of the Constitution.
225. It is axiomatic that the expression ‘life or personal liberty’ in G
Article 21 embodies within itself a variety of rights. In Maneka Gandhi
(supra), Bhagwati, J. (as he then was) observed:-
“The expression ‘personal liberty’ in Article 21 is of the widest
amplitude and it covers a variety of rights which go to constitute
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524 SUPREME COURT REPORTS [2018] 7 S.C.R.

A the personal liberty of man and some of them have been raised
to the status of distinct fundamental rights and given additional
protection under Article 19...”
226. In Anuj Garg (supra), while dealing with the constitutional
validity of Section 30 of the Punjab Excise Act, 1914 prohibiting
B employment of “any man under the age of 25 years” or “any woman”,
the Court, holding it ultra vires, ruled thus:-
“31. … It is their life; subject to constitutional, statutory and
social interdicts—a citizen of India should be allowed to live her
life on her own terms.”
C And again:-
“35. Privacy rights prescribe autonomy to choose profession
whereas security concerns texture methodology of delivery of
this assurance. But it is a reasonable proposition that the measures
to safeguard such a guarantee of autonomy should not be so
D strong that the essence of the guarantee is lost. State protection
must not translate into censorship.”
227. In Common Cause (A Regd. Society) (supra), the Court,
in the context of right to dignity, observed:-
“Right to life and liberty as envisaged under Article 21 is
E
meaningless unless it encompasses within its sphere individual
dignity and right to dignity includes the right to carry such
functions and activities as would constitute the meaningful
expression of the human self.”
228. In Puttaswamy (supra), the right to privacy has been declared
F
to be a fundamental right by this Court as being a facet of life and
personal liberty protected under Article 21 of the Constitution.
229. In view of the above authorities, we have no hesitation to
say that Section 377 IPC, in its present form, abridges both human dignity
as well as the fundamental right to privacy and choice of the citizenry,
G howsoever small. As sexual orientation is an essential and innate facet
of privacy, the right to privacy takes within its sweep the right of every
individual including that of the LGBT to express their choices in terms of
sexual inclination without the fear of persecution or criminal prosecution.

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NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 525
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230. The sexual autonomy of an individual to choose his/her sexual A
partner is an important pillar and an insegregable facet of individual liberty.
When the liberty of even a single person of the society is smothered
under some vague and archival stipulation that it is against the order of
nature or under the perception that the majority population is peeved
when such an individual exercises his/her liberty despite the fact that
B
the exercise of such liberty is within the confines of his/her private space,
then the signature of life melts and living becomes a bare subsistence
and resultantly, the fundamental right of liberty of such an individual is
abridged.
231. While saying so, we are absolutely conscious of the fact that
the citizenry may be deprived of their right to life and personal liberty if C
the conditions laid down in Article 21 are fulfilled and if, at the same
time, the procedure established by law as laid down in Maneka Gandhi
(supra) is satisfied. Article 21 requires that for depriving a person of his
right to life and personal liberty, there has to be a law and the said law
must prescribe a fair procedure. The seminal point is to see whether D
Section 377 withstands the sanctity of dignity of an individual, expression
of choice, paramount concept of life and whether it allows an individual
to lead to a life that one’s natural orientation commands. That apart,
more importantly, the question is whether such a gender-neutral offence,
with the efflux of time, should be allowed to remain in the statute book
especially when there is consent and such consent elevates the status of E
bodily autonomy. Hence, the provision has to be tested on the principles
evolved under Articles 14, 19 and 21 of the Constitution.
232. In Sunil Batra v. Delhi Administration and others 85,
Krishna Iyer, J. opined that what is punitively outrageous, scandalizingly
unusual or cruel and rehabilitatively counterproductive, is unarguably F
unreasonable and arbitrary and is shot down by Article 14 and 19 and if
inflicted with procedural unfairness, falls foul of Article 21.
233. We, first, must test the validity of Section 377 IPC on the
anvil of Article 14 of the Constitution. What Article 14 propounds is that
‘all like should be treated alike’. In other words, it implies equal treatment G
for all equals. Though the legislature is fully empowered to enact laws
applicable to a particular class, as in the case at hand in which Section
377 applies to citizens who indulge in carnal intercourse, yet the
85
AIR 1978 SC 1675 : (1978) 4 SCC 494
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526 SUPREME COURT REPORTS [2018] 7 S.C.R.

A classification, including the one made under Section 377 IPC, has to
satisfy the twin conditions to the effect that the classification must be
founded on an intelligible differentia and the said differentia must have a
rational nexus with the object sought to be achieved by the provision,
that is, Section 377 IPC.
B 234. In M. Nagaraj and others v. Union of India and others 86,
it has been held:-
“The gravamen of Article 14 is equality of treatment. Article 14
confers a personal right by enacting a prohibition which is
absolute. By judicial decisions, the doctrine of classification is
C read into Article 14. Equality of treatment under Article 14 is an
objective test. It is not the test of intention. Therefore, the basic
principle underlying Article 14 is that the law must operate equally
on all persons under like circumstances.”
235. In E.P. Royappa v. State of Tamil Nadu and another87,
D this Court observed that equality is a dynamic concept with many aspects
and dimensions and it cannot be “cribbed, cabined and confined” within
traditional and doctrinaire limits. It was further held that equality is
antithetic to arbitrariness, for equality and arbitrariness are sworn enemies;
one belongs to the rule of law in a republic while the other, to the whim
and caprice of an absolute monarch.
E
236. In Budhan Choudhry v. The State of Bihar88, while
delineating on the concept of reasonable classification, the Court observed
thus:-
“It is now well-established that while article 14 forbids class
F legislation, it does not forbid reasonable classification for the
purposes of legislation. In order, however, to pass the test of
permissible classification two conditions must be fulfilled, namely,
(i) that the classification must be founded on an intelligible
differentia which distinguishes persons or things that are grouped
together from others left out of the group and (ii) that differentia
G must have a rational relation to the object sought to be achieved
by the statute in question. The classification may be founded on
different bases; namely, geographical, or according to objects or
86
AIR 2007 SC 71 : (2006) 8 SCC 212
87
AIR 1974 SC 555 : (1974) 4 SCC 3
88
H AIR 1955 SC 191
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 527
[DIPAK MISRA, CJI ]

occupations or the like. What is necessary is that there must be A
a nexus between the basis of classification and the object of the
Act under consideration. It is also well established by the decisions
of this Court that article 14 condemns discrimination not only by
a substantive law but also by a law of procedure.”
237. A perusal of Section 377 IPC reveals that it classifies and B
penalizes persons who indulge in carnal intercourse with the object to
protect women and children from being subjected to carnal intercourse.
That being so, now it is to be ascertained whether this classification has
a reasonable nexus with the object sought to be achieved. The answer
is in the negative as the non-consensual acts which have been criminalized
by virtue of Section 377 IPC have already been designated as penal C
offences under Section 375 IPC and under the POCSO Act. Per contra,
the presence of this Section in its present form has resulted in a distasteful
and objectionable collateral effect whereby even ‘consensual acts’, which
are neither harmful to children nor women and are performed by a certain
class of people (LGBTs) owning to some inherent characteristics defined D
by their identity and individuality, have been woefully targeted. This
discrimination and unequal treatment meted out to the LGBT community
as a separate class of citizens is unconstitutional for being violative of
Article 14 of the Constitution.
238. In Shayara Bano (supra), the Court observed that manifest E
arbitrariness of a provision of law can also be a ground for declaring a
law as unconstitutional. Opining so, the Court observed thus:-
“The test of manifest arbitrariness, therefore, as laid down in the
aforesaid judgments would apply to invalidate legislation as well
as subordinate legislation under Article 14. Manifest arbitrariness, F
therefore, must be something done by the legislature capriciously,
irrationally and/or without adequate determining principle. Also,
when something is done which is excessive and disproportionate,
such legislation would be manifestly arbitrary. We are, therefore,
of the view that arbitrariness in the sense of manifest arbitrariness
as pointed out by us above would apply to negate legislation as G
well under Article 14.”
239. In view of the law laid down in Shayara Bano (supra) and
given the fact that Section 377 criminalises even consensual sexual acts
between adults, it fails to make a distinction between consensual and
H
528 SUPREME COURT REPORTS [2018] 7 S.C.R.

A non-consensual sexual acts between competent adults. Further, Section
377 IPC fails to take into account that consensual sexual acts between
adults in private space are neither harmful nor contagious to the society.
On the contrary, Section 377 trenches a discordant note in respect of the
liberty of persons belonging to the LGBT community by subjecting them
to societal pariah and dereliction. Needless to say, the Section also
B
interferes with consensual acts of competent adults in private space.
Sexual acts cannot be viewed from the lens of social morality or that of
traditional precepts wherein sexual acts were considered only for the
purpose of procreation. This being the case, Section 377 IPC, so long as
it criminalises consensual sexual acts of whatever nature between
C competent adults, is manifestly arbitrary.
240. The LGBT community possess the same human, fundamental
and constitutional rights as other citizens do since these rights inhere in
individuals as natural and human rights. We must remember that equality
is the edifice on which the entire non-discrimination jurisprudence rests.
D Respect for individual choice is the very essence of liberty under law
and, thus, criminalizing carnal intercourse under Section 377 IPC is
irrational, indefensible and manifestly arbitrary. It is true that the principle
of choice can never be absolute under a liberal Constitution and the law
restricts one individual’s choice to prevent harm or injury to others.
However, the organisation of intimate relations is a matter of complete
E personal choice especially between consenting adults. It is a vital personal
right falling within the private protective sphere and realm of individual
choice and autonomy. Such progressive proclivity is rooted in the
constitutional structure and is an inextricable part of human nature.
241. In the adverting situation, we must also examine whether
F Section 377, in its present form, stands the test of Article 19 of the
Constitution in the sense of whether it is unreasonable and, therefore,
violative of Article 19. In Chintaman Rao v. State of Madhya
Pradesh89, this Court, in the context of reasonable restrictions under
Article 19, opined thus:-
G “The phrase “reasonable restriction” connotes that the limitation
imposed on a person in enjoyment of the right should not be
arbitrary or of an excessive nature, beyond what is required in
the interests of the public. The word “reasonable” implies
intelligent care and deliberation, that is, the choice of a course
H 89
AIR 1951 SC 118
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 529
[DIPAK MISRA, CJI ]

which reason dictates. Legislation which arbitrarily or excessively A
invades the right cannot be said to contain the quality of
reasonableness and unless it strikes a proper balance between
the freedom guaranteed in article 19(1)(g) and the social control
permitted by clause (6) of article 19, it must be held to be wanting
in that quality.”
B
242. In S. Rangarajan v. P. Jagjivan Ram and others90, the
Court observed, though in a different context, thus:-
“ ... Our commitment of freedom of expression demands that it
cannot be suppressed unless the situations created by allowing
the freedom are pressing and the community interest is C
endangered. The anticipated danger should not be remote,
conjectural or far-fetched. It should have proximate and direct
nexus with the expression.”
243. In S. Khushboo (supra), this Court, while observing that
‘morality and decency’ on the basis of which reasonable restrictions can D
be imposed on the rights guaranteed under Article 19 should not be
amplified beyond a rational and logical limit, ruled that even though the
constitutional freedom of speech and expression is not absolute and can
be subjected to reasonable restrictions on grounds such as `decency and
morality’ among others, yet it is necessary to tolerate unpopular views in
the socio-cultural space. E

244. In the case of Shreya Singhal v. Union of India91, this
Court, while striking down Section 66A of the Information Technology
Act, 2000, had observed that when a provision is vague and overboard
in the sense that it criminalises protected speech and speech of innocent
nature, resultantly, it has a chilling effect and is liable to be struck down. F
The Court opined:-
“We, therefore, hold that the Section is unconstitutional also on
the ground that it takes within its sweep protected speech and
speech that is innocent in nature and is liable therefore to be
used in such a way as to have a chilling effect on free speech G
and would, therefore, have to be struck down on the ground of
overbreadth.”

90
(1989) 2 SCC 574
91
(2015) 5 SCC 1
H
530 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 245. In the obtaining situation, we need to check whether public
order, decency and morality as grounds to limit the fundamental right of
expression including choice can be accepted as reasonable restrictions
to uphold the validity of Section 377 IPC. We are of the conscious view
that Section 377 IPC takes within its fold private acts of adults including
the LGBT community which are not only consensual but are also innocent,
B
as such acts neither cause disturbance to the public order nor are they
injurious to public decency or morality. The law is et domus sua cuique
est tutissimum refugium – A man’s house is his castle. Sir Edward
Coke92 said:-
“The house of everyone is to him as his castle and fortress, as
C well for his defence against injury and violence as for his repose.”
246. That apart, any display of affection amongst the members
of the LGBT community towards their partners in the public so long as
it does not amount to indecency or has the potentiality to disturb public
order cannot be bogged down by majority perception. Section 377 IPC
D amounts to unreasonable restriction as it makes carnal intercourse
between consenting adults within their castle a criminal offence which
is manifestly not only overboard and vague but also has a chilling effect
on an individual’s freedom of choice.
247. In view of the test laid down in the aforesaid authorities,
E Section 377 IPC does not meet the criteria of proportionality and is
violative of the fundamental right of freedom of expression including the
right to choose a sexual partner. Section 377 IPC also assumes the
characteristic of unreasonableness, for it becomes a weapon in the hands
of the majority to seclude, exploit and harass the LGBT community. It
shrouds the lives of the LGBT community in criminality and constant
F
fear mars their joy of life. They constantly face social prejudice, disdain
and are subjected to the shame of being their very natural selves. Thus,
an archaic law which is incompatible with constitutional values cannot
be allowed to be preserved.
248. Bigoted and homophobic attitudes dehumanize the
G
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 the linchpin of
our constitutional values, enables individuals to define and express their
identity and individual identity has to be acknowledged and respected.
H 92
Semayne’s Case, 77 Eng. Rep. 194, 195; 5 Co. Rep. 91, 195 (K.B. 1604)
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 531
[DIPAK MISRA, CJI ]

249. The very existence of Section 377 IPC criminalising A
transgenders casts a great stigma on an already oppressed and
discriminated class of people. This stigma, oppression and prejudice has
to be eradicated and the transgenders have to progress from their narrow
claustrophobic spaces of mere survival in hiding with their isolation and
fears to enjoying the richness of living out of the shadows with full
B
realization of their potential and equal opportunities in all walks of life.
The ideals and objectives enshrined in our benevolent Constitution can
be achieved only when each and every individual is empowered and
enabled to participate in the social mainstream and in the 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 C
be achieved only by inclusion of all and exclusion of none from the
mainstream.
250. We must realize that different hues and colours together
make the painting of humanity beautiful and this beauty is the essence of
humanity. We need to respect the strength of our diversity so as to D
sustain our unity as a cohesive unit of free citizens by fostering tolerance
and respect for each others’ rights thereby progressing towards
harmonious and peaceful co-existence in the supreme bond of humanity.
Attitudes and mentality have to change to accept the distinct identity of
individuals and respect them for who they are rather than compelling
them to ‘become’ who they are not. All human beings possess the equal E
right to be themselves instead of transitioning or conditioning themselves
as per the perceived dogmatic notions of a group of people. To change
the societal bias and root out the weed, it is the foremost duty of each
one of us to “stand up and speak up” against the slightest form of
discrimination against transgenders that we come across. Let us move F
from darkness to light, from bigotry to tolerance and from the winter of
mere survival to the spring of life ¯ as the herald of a New India ¯ to a
more inclusive society.
251. It is through times of grave disappointment, denunciation,
adversity, grief, injustice and despair that the transgenders have stood G
firm with their formidable spirit, inspired commitment, strong determination
and infinite hope and belief that has made them look for the rainbow in
every cloud and lead the way to a future that would be the harbinger of
liberation and emancipation from a certain bondage indescribable in
words – towards the basic recognition of dignity and humanity of all and
H
532 SUPREME COURT REPORTS [2018] 7 S.C.R.

A towards leading a life without pretence eschewing duality and
ambivalence. It is their momentous “walk to freedom” and journey to a
constitutional ethos of dignity, equality and liberty and this freedom can
only be fulfilled in its truest sense when each of us realize that the LGBT
community possess equal rights as any other citizen in the country under
the magnificent charter of rights – our Constitution.
B
252. Thus analysed, Section 377 IPC, so far as it penalizes any
consensual sexual activity between two adults, be it homosexuals (man
and a man), heterosexuals (man and a woman) and lesbians (woman
and a woman), cannot be regarded as constitutional. However, if anyone,
by which we mean both a man and a woman, engages in any kind of
C sexual activity with an animal, the said aspect of Section 377 IPC is
constitutional and it shall remain a penal offence under Section 377 IPC.
Any act of the description covered under Section 377 IPC done between
the individuals without the consent of any one of them would invite penal
liability under Section 377 IPC.
D Q. Conclusions
253. In view of the aforesaid analysis, we record our conclusions
in seriatim:-
(i) The eminence of identity which has been luculently stated
E in the NALSA case very aptly connects human rights and
the constitutional guarantee of right to life and liberty with
dignity. With the same spirit, we must recognize that the
concept of identity which has a constitutional tenability
cannot be pigeon-holed singularly to one’s orientation as it
may keep the individual choice at bay. At the core of the
F 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”.
G (ii) In Suresh Koushal (supra), this Court overturned the
decision of the Delhi High Court in Naz Foundation (supra)
thereby upholding the constitutionality of Section 377 IPC
and stating a ground that the LGBT community comprised
only a minuscule fraction of the total population and that
the mere fact that the said Section was being misused is
H
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 533
[DIPAK MISRA, CJI ]

not a reflection of the vires of the Section. Such a view is A
constitutionally impermissible.
(iii) Our Constitution is a living and organic document capable
of expansion with the changing needs and demands of the
society. The Courts must commemorate that it is the
Constitution and its golden principles to which they bear B
their foremost allegiance and they must robe themselves
with the armoury of progressive and pragmatic interpretation
to combat the evils of inequality and injustice that try to
creep into the society. The role of the Courts gains more
importance when the rights which are affected belong to a
class of persons or a minority group who have been deprived C
of even their basic rights since time immemorial.
(iv) The primary objective of having a constitutional democracy
is to transform the society progressively and inclusively.
Our Constitution has been perceived to be transformative
in the sense that the interpretation of its provisions should D
not be limited to the mere literal meaning of its words; instead
they ought to be given a meaningful construction which is
reflective of their intent and purpose in consonance with
the changing times. Transformative constitutionalism not
only includes within its wide periphery the recognition of E
the rights and dignity of individuals but also propagates the
fostering and development of an atmosphere wherein every
individual is bestowed with adequate opportunities to develop
socially, economically and politically. Discrimination of any
kind strikes at the very core of any democratic society.
When guided by transformative constitutionalism, the society F
is dissuaded from indulging in any form of discrimination so
that the nation is guided towards a resplendent future.
(v) Constitutional morality embraces within its sphere several
virtues, foremost of them being the espousal of a pluralistic
and inclusive society. The concept of constitutional morality G
urges the organs of the State, including the Judiciary, to
preserve the heterogeneous nature of the society and to
curb any attempt by the majority to usurp the rights and
freedoms of a smaller or minuscule section of the populace.
Constitutional morality cannot be martyred at the altar of H
534 SUPREME COURT REPORTS [2018] 7 S.C.R.

A social morality and it is only constitutional morality that can
be allowed to permeate into the Rule of Law. The veil of
social morality cannot be used to violate fundamental rights
of even a single individual, for the foundation of
constitutional morality rests upon the recognition of diversity
that pervades the society.
B
(vi) The right to live with dignity has been recognized as a human
right on the international front and by number of precedents
of this Court and, therefore, the constitutional courts must
strive to protect the dignity of every individual, for without
the right to dignity, every other right would be rendered
C meaningless. Dignity is an inseparable facet of every
individual that invites reciprocative respect from others to
every aspect of an individual which he/she perceives as an
essential attribute of his/her individuality, be it an orientation
or an optional expression of choice. The Constitution has
D ladened the judiciary with the very important duty to protect
and ensure the right of every individual including the right
to express and choose without any impediments so as to
enable an individual to fully realize his/her fundamental right
to live with dignity.
E (vii) Sexual orientation is one of the many biological phenomena
which is natural and inherent in an individual and is controlled
by neurological and biological factors. The science of
sexuality has theorized that an individual exerts little or no
control over who he/she gets attracted to. Any discrimination
on the basis of one’s sexual orientation would entail a
F violation of the fundamental right of freedom of expression.
(viii) After the privacy judgment in Puttaswamy (supra), the right
to privacy has been raised to the pedestal of a fundamental
right. The reasoning in Suresh Koushal (supra), that only
a minuscule fraction of the total population comprises of
G LGBT community and that the existence of Section 377
IPC abridges the fundamental rights of a very minuscule
percentage of the total populace, is found to be a discordant
note. The said reasoning in Suresh Koushal (supra), in
our opinion, is fallacious, for the framers of our Constitution
H could have never intended that the fundamental rights shall
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 535
[DIPAK MISRA, CJI ]

be extended for the benefit of the majority only and that the A
Courts ought to interfere only when the fundamental rights
of a large percentage of the total populace is affected. In
fact, the said view would be completely against the
constitutional ethos, for the language employed in Part III
of the Constitution as well as the intention of the framers of
B
our Constitution mandates that the Courts must step in
whenever there is a violation of the fundamental rights, even
if the right/s of a single individual is/are in peril.
(ix) There is a manifest ascendance of rights under the
Constitution which paves the way for the doctrine of
progressive realization of rights as such rights evolve with C
the evolution of the society. This doctrine, as a natural
corollary, gives birth to the doctrine of non-retrogression,
as per which there must not be atavism of constitutional
rights. In the light of the same, if we were to accept the
view in Suresh Koushal (supra), it would tantamount to a D
retrograde step in the direction of the progressive
interpretation of the Constitution and denial of progressive
realization of rights.
(x) Autonomy is individualistic. Under the autonomy principle,
the individual has sovereignty over his/her body. He/she E
can surrender his/her autonomy wilfully to another individual
and their intimacy in privacy is a matter of their choice.
Such concept of identity is not only sacred but is also in
recognition of the quintessential facet of humanity in a
person’s nature. The autonomy establishes identity and the
said identity, in the ultimate eventuate, becomes a part of F
dignity in an individual.
(xi) A cursory reading of both Sections 375 IPC and 377 IPC
reveals that although the former Section gives due
recognition to the absence of ‘wilful and informed consent’
for an act to be termed as rape, per contra, Section 377 G
does not contain any such qualification embodying in itself
the 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. Section 375 IPC, H
536 SUPREME COURT REPORTS [2018] 7 S.C.R.

A after the coming into force of the Criminal Law
(Amendment) Act, 2013, has not used the words ‘subject
to any other provision of the IPC’. This indicates that
Section 375 IPC is not subject to Section 377 IPC.
(xii) The expression ‘against the order of nature’ has neither
B been defined in Section 377 IPC nor in any other provision
of the IPC. The connotation given to the expression by
various judicial pronouncements includes all sexual acts
which are not intended for the purpose of procreation.
Therefore, if coitus is not performed for procreation only, it
does not per se make it ‘against the order of nature’.
C
(xiii) Section 377 IPC, in its present form, being violative of the
right to dignity and the right to privacy, has to be tested,
both, on the pedestal of Articles 14 and 19 of the Constitution
as per the law laid down in Maneka Gandhi (supra) and
other later authorities.
D
(xiv) An examination of Section 377 IPC on the anvil of Article
14 of the Constitution reveals that the classification adopted
under the said Section has no reasonable nexus with its
object as other penal provisions such as Section 375 IPC
and the POCSO Act already penalize non-consensual carnal
E intercourse. Per contra, Section 377 IPC in its present form
has resulted in an unwanted collateral effect whereby even
‘consensual sexual acts’, which are neither harmful to
children nor women, by the LGBTs have been woefully
targeted thereby resulting in discrimination and unequal
F treatment to the LGBT community and is, thus, violative of
Article 14 of the Constitution.
(xv) Section 377 IPC, so far as it criminalises even consensual
sexual acts between competent adults, fails to make a
distinction between non-consensual and consensual sexual
G acts of competent adults in private space which are neither
harmful nor contagious to the society. Section 377 IPC
subjects the LGBT community to societal pariah and
dereliction and is, therefore, manifestly arbitrary, for it has
become an odious weapon for the harassment of the LGBT
community by subjecting them to discrimination and unequal
H
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 537
[DIPAK MISRA, CJI ]

treatment. Therefore, in view of the law laid down in A
Shayara Bano (supra), Section 377 IPC is liable to be
partially struck down for being violative of Article 14 of the
Constitution.
(xvi) An examination of Section 377 IPC on the anvil of Article
19(1)(a) reveals that it amounts to an unreasonable B
restriction, for public decency and morality cannot be
amplified beyond a rational or logical limit and cannot be
accepted as reasonable grounds for curbing the fundamental
rights of freedom of expression and choice of the LGBT
community. Consensual carnal intercourse among adults,
be it homosexual or heterosexual, in private space, does C
not in any way harm the public decency or morality.
Therefore, Section 377 IPC in its present form violates
Article 19(1)(a) of the Constitution.
(xvii)Ergo, Section 377 IPC, so far as it penalizes any consensual
sexual relationship between two adults, be it homosexuals D
(man and a man), heterosexuals (man and a woman) or
lesbians (woman and a woman), cannot be regarded as
constitutional. However, if anyone, by which we mean both
a man and a woman, engages in any kind of sexual activity
with an animal, the said aspect of Section 377 is E
constitutional and it shall remain a penal offence under
Section 377 IPC. Any act of the description covered under
Section 377 IPC done between two individuals without the
consent of any one of them would invite penal liability under
Section 377 IPC.
F
(xviii)The decision in Suresh Koushal (supra), not being in
consonance with what we have stated hereinabove, is
overruled.
254. The Writ Petitions are, accordingly, disposed of. There shall
be no order as to costs. G

R. F. NARIMAN, J. 1. “The love that dare not speak its name”
is how the love that exists between same-sex couples was described by
Lord Alfred Douglas, the lover of Oscar Wilde, in his poem Two Loves
published in 1894 in Victorian England. H
538 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 2. The word “homosexual” is not derived from “homo” meaning
man, but from “homo” meaning same.1 The word “lesbian” is derived
from the name of the Greek island of Lesbos, where it was rumored that
female same-sex couples proliferated. What we have before us is a
relook at the constitutional validity of Section 377 of the Indian Penal
Code which was enacted in the year 1860 (over 150 years ago) insofar
B
as it criminalises consensual sex between adult same-sex couples.
3. These cases have had a chequered history. Writ petitions were
filed before the Delhi High Court challenging the constitutional validity
of Section 377 of the Penal Code insofar as it criminalizes consensual
sex between adult same-sex couples within the confines of their homes
C or other private places. A Division Bench of the Delhi High Court in
Naz Foundation v. Government of NCT of Delhi (“Naz
Foundation”), 111 DRJ 1 (2009), after considering wide-ranging
arguments on both sides, finally upheld the plea of the petitioners in the
following words:
D “132. We declare that Section 377 IPC, insofar it criminalises
consensual sexual acts of adults in private, is violative of Articles
21, 14 and 15 of the Constitution. The provisions of Section 377
IPC will continue to govern non-consensual penile non-vaginal
sex and penile non-vaginal sex involving minors. By ‘adult’ we
E mean everyone who is 18 years of age and above. A person
below 18 would be presumed not to be able to consent to a
sexual act. This clarification will hold till, of course, Parliament
chooses to amend the law to effectuate the recommendation of
the Law Commission of India in its 172nd Report which we believe
removes a great deal of confusion. Secondly, we clarify that our
F judgment will not result in the re-opening of criminal cases
involving Section 377 IPC that have already attained finality.
We allow the writ petition in the above terms.”
4. Despite the fact that no appeal was filed by the Union of India,
in appeals filed by private individuals and groups, the Supreme Court in
G Suresh Kumar Koushal and Anr. v. Naz Foundation and Ors.
(“Suresh Kumar Koushal”), (2014) 1 SCC 1, reversed the judgment
1
Homo in Greek means ‘same’ – the Nicene creed that was accepted by the Catholic
Church after the Council at Nicaea, held by Emperor Constantine in 325 AD, was
formulated with the word ‘homo’ at the forefront. When coupled with ‘sios’ it means
same substance, meaning thereby that Jesus Christ was divine as he was of the same
H substance as God.
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[R. F. NARIMAN, J.]]

of the High Court. Reviews that were filed against the aforesaid judgment, A
including by the Union of India, were dismissed by this Court.
5. Meanwhile, the Supreme Court delivered an important judgment
reported as National Legal Services Authority v. Union of India
(“NALSA”), (2014) 5 SCC 438, which construed Articles 15 and 21 of
the Constitution of India as including the right to gender identity and B
sexual orientation, and held that just like men and women, transgenders
could enjoy all the fundamental rights that other citizens of India could
enjoy. Thereafter, in Justice K.S. Puttaswamy (Retd.) and Anr. v.
Union of India and Ors. (“Puttaswamy”), (2017) 10 SCC 1, a nine-
Judge Bench of this Court unanimously declared that there is a
fundamental right of privacy which enured in favour of all persons, the C
concomitant of which was that the right to make choices that were
fundamental to a person’s way of living could not be interfered with by
the State without compelling necessity and/or harm caused to other
individuals.
6. The impetus of this decision is what led to a three-Judge Bench D
order of 08.01.2018, which referred to the judgment of Puttaswamy
(supra) and other arguments made by Shri Datar, to refer the correctness
of Suresh Kumar Koushal’s case (supra) to a larger Bench. This is
how the matter has come to us.
History of Section 377 E
7. In the western world, given the fact that both Judaism and
Christianity outlawed sexual intercourse by same-sex couples, offences
relating thereto were decided by ecclesiastical courts. It is only as a
result of Henry VIII of England breaking with the Roman Catholic Church
that legislation in his reign, namely the Buggery Act of 1533, prohibited F
“the detestable and abominable offence” of buggery committed with
mankind or beast.
8. Between 1806, when reliable figures begin, and 1900, 8,921
men were indicted for sodomy, gross indecency or other ‘unnatural
misdemeanours’ in England and Wales. Ninety men per year were, on G
average, indicted for homosexual offences in this period. About a third
as many were arrested and their case considered by magistrates. Most
of the men convicted were imprisoned, but between 1806 and 1861,
when the death penalty for sodomy was finally abolished, 404 men were
sentenced to death. Fifty-six were executed, and the remainder were
H
540 SUPREME COURT REPORTS [2018] 7 S.C.R.

A either imprisoned or transported to Australia for life. Two such men,
James Pratt and John Smith, were the last to be executed in Britain for
sodomy on 27 November, 1835.
9. During the reign of the East India Company in India, Parliament
established what was called the Indian Law Commission. In 1833,
B Thomas Babington Macaulay was appointed to chair the Commission.2
10. The Indian Law Commission, with Macaulay as its head,
submitted the Draft Penal Code to the Government of India on 14.10.1837.
This draft consisted of 488 clauses. After the First Report submitted on
23.07.1846, the Second Report of Her Majesty’s Commissioners for
C revising and consolidating the law was submitted by C.H. Cameron and
D. Eliott on 24.06.1847. These Commissioners concluded that the Draft
Penal Code was sufficiently complete, and, with slight modifications, fit
to be acted upon. The revised edition of the Penal Code was then
forwarded to the Judges of the Supreme Court at Calcutta on 30.05.1851,
and also to the Judges of the Sudder Court at Calcutta.
D
11. The revised edition of the Penal Code as prepared by Mr.
Bethune, the Legislative member of the Legislative Council of India,
together with the views of the Chief Justice and Mr. Justice Buller of
the Supreme Court at Calcutta, as well as those of Mr. Justice Colvile
were sent to the Company in London. The Court of Directors in London
E were anxious to see the Penal Code enacted as early as possible. They,
therefore, constituted a Council in which Sir Barnes Peacock was made
the fourth member.
12. This Council or Committee prepared a revised Penal Code
which was then referred to a Select Committee in 1857. Given the Indian
F Mutiny of 1857, the Code was passed soon thereafter in October, 1860
and brought into force on 01.01.1862. Sir James Fitzjames Stephen
proclaimed that:
“The Indian Penal Code is to the English criminal law what a
manufactured article ready for use is to the materials out of
G which it is made. It is to the French Penal Code and, I may add,
2
Thomas Babington Macaulay was a Whig liberal who was a precocious genius. Apart
from having a photographic memory with which he astounded persons around him, one
incident which took place when Macaulay was only 5 years old told the world what
was in store for it when Macaulay would reach adulthood. A lady dropped some hot
coffee on the five-year old child and expressed great sorrow for doing so. The child
H riposted, after letting out a scream, “Madam, the agony has abated”.
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 541
[DIPAK MISRA, CJI
[R. F. NARIMAN, J.]]

to the North Germany Code of 1871, what a finished picture is A
to a sketch. It is far simpler, and much better expressed, than
Livingston’s Code for Louisiana; and its practical success has
been complete”.
13. He further described the Penal Code as:-
“the criminal law of England freed from all technicalities and B
superfluities, systematically arranged and modified in some few
particulars (they are surprisingly few), to suit circumstances of
British India.”
14. According to Lord Macaulay, a good Code should have the
qualities of precision and comprehensibility. In a letter to Lord Auckland, C
the Governor General of India in Council, which accompanied his draft
Penal Code, he stated:
“There are two things which a legislator should always have in
view while he is framing laws: the one is that they should be as
far as possible precise; the other that they should be easily D
understood. That a law, and especially a penal law, should be
drawn in words which convey no meaning to the people who are
to obey it, is an evil. On the other hand, a loosely worded law is
no law, and to whatever extent a legislature uses vague
expressions, to that extent it abdicates its functions, and resigns E
the power of making law to the Courts of Justice.”
15. Stung to the quick, when criticized as to the delay in bringing
out the Code, he observed in a Minute to Lord Auckland as follows:
“…when I remember the slow progress of law reforms at home
and when I consider that our Code decides hundreds of F
questions… every one of which if stirred in England would give
occasion to voluminous controversy and to many animated
debates, I must acknowledge that I am inclined to fear that we
have been guilty rather of precipitation than of delay.”
16. Earlier, he had described the core objective of his project in G
his 04.06.1835 Minute to the Council which could be paraphrased as
follows:-
It should be more than a mere digest of existing laws, covering
all contingencies, and ‘nothing that is not in the Code ought to be
law’. H
542 SUPREME COURT REPORTS [2018] 7 S.C.R.

A It should suppress crime with the least infliction of suffering and
allow for the ascertaining of the truth at the smallest possible
cost of time and money.
Its language should be clear, unequivocal and concise. Every
criminal act should be separately defined, its language followed
B precisely in indictment and conduct found to fall clearly within
the definition.
Uniformity was to be the chief end and special definitions,
procedures or other exceptions to account for different races or
sects should not be included without clear and strong reasons.
C 17. It is interesting to note that Lord Macaulay’s Draft was
substantially different from what was enacted as Section 377. Macaulay’s
original draft read:-
“361. Whoever, intending to gratify unnatural lust, touches for
that purpose any person, or any animal, or is by his own consent
D touched by any person, for the purpose of gratifying unnatural
lust, shall be punished with imprisonment of either description
for a term which may extend to fourteen years and must not be
less than two years, and shall be liable to fine.
362. Whoever, intending to gratify unnatural lust, touches for
E that purpose any person without that person’s free and intelligent
consent, shall be punished with imprisonment of either description
for a term which may extend to life and must not be less than
seven years, and shall also be liable to fine.”
18. What is remarkable for the time in which he lived is the fact
F that Lord Macaulay would punish touching another person for the purpose
of gratifying “unnatural lust” without their “free and intelligent consent”
with a term of imprisonment extendable to life (but not less than seven
years) while the penalty for the same offence, when consensual, would
be imprisonment for a maximum term of fourteen years (but not less
than two years). Even in this most prudish of all periods of English history,
G
Lord Macaulay recognized a lesser sentence for the crime of “unnatural
lust”, if performed with consent. Living in the era in which he lived, he
clearly eschewed public discussion on this subject, stating:-
“Clause 361 and 362 relate to an odious class of offences
respecting which it is desirable that as little as possible should be
H
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 543
[DIPAK
[R. F. NARIMAN,
MISRA, CJI
J.]]

said. We leave, without comment, to the judgment of his Lordship A
in Council the two clauses which we have provided for these
offences. We are unwilling to insert, either in the text or in the
notes, anything which could give rise to public discussion on this
revolting subject; as we are decidedly of the opinion that the
injury which would be done to the morals of the community by
B
such discussion would far more than compensate for any benefits
which might be derived from legislative measures framed with
the greatest precision.”
19. At what stage of the proceedings before the various persons
and committees after 1837, Section 377 finally took shape, is not clear.
What is clear is that it is the Committee of Sir Barnes Peacock which C
finally sent the draft equivalent of Section 377 for enactment.
20. The Indian Penal Code, given its long life of over 150 years,
has had surprisingly few amendments made to it. The 42 nd Law
Commission Report, early in this country’s history, did not recommend
the amendment or deletion of Section 377. But B. P. Jeevan Reddy, J.’s D
Law Commission Report of the year 2000 (the 172 nd Report)
recommended its deletion consequent to changes made in the preceding
sections, which made it clear that anal sex between consenting adults,
whether same-sex or otherwise, would not be penalized.
Law in the United Kingdom E

21. As has been mentioned earlier in this judgment, the first
enactment prohibiting same-sex intercourse was passed in the year 1533
in the reign of Henry VIII. The death penalty was prescribed even for
consenting adults who indulged in this “abomination”. The trial of persons
such as Oscar Wilde is what led to law reform in the U.K., albeit 60 F
years later.
22. The Marquess of Queensberry’s son, Lord Alfred Douglas,
was having an affair with Oscar Wilde, which the Marquess discovered.
At Oscar Wilde’s club, the Marquess left a note describing Oscar Wilde
as a “somdomite” which led to one of the most celebrated defamation G
actions in England. In the course of his cross-examination of Oscar
Wilde, Sir Edward Carson was able to draw from his famous witness
the fact that boys could be plain or ugly, which would have led to the
truth of establishing the charge against Oscar Wilde. Rather than go on
with the trial, Oscar Wilde hastily withdrew his action for defamation.
H
544 SUPREME COURT REPORTS [2018] 7 S.C.R.

A But that was not the end. A prosecution under the Criminal Law
Amendment Act of 1885 followed, in which Oscar Wilde was convicted
and sent to jail for a period of two years. He never quite recovered, for
after his jail sentence was served out, he died a broken and impoverished
man in Paris at the early age of 46.3
B 23. The winds of change slowly blew over the British Isles and
finally, post the Second World War, what is known as the Wolfenden
Committee was appointed on 24.08.1954, inter alia to consider the law
and practice relating to homosexual offences and the treatment of persons
convicted of such offences by the courts. The Committee Report, even
though it is of a vintage of September 1957, makes interesting reading.
C In paragraphs 31 and 32 of the Report, the Committee opined:-
“31. Even if it could be established that homosexuality were a
disease, it is clear that many individuals, however their state is
reached, present social rather than medical problems and must
be dealt with by social, including penological, methods. This is
D especially relevant when the claim that homosexuality is an illness
is taken to imply that its treatment should be a medical
responsibility. Much more important than the academic question
whether homosexuality is a disease is the practical question
whether a doctor should carry out any part or all of the treatment.
E Psychiatrists deal regularly with problems of personality which
are not regarded as diseases, and conversely the treatment of
cases of recognized psychiatric illness may not be strictly medical
but may best be carried out by non-medical supervision or
environmental change. Examples would be certain cases of senile
dementia or chronic schizophrenia which can best be managed
F at home. In fact, the treatment of behavior disorders, even when
medically supervised, is rarely confined to psychotherapy or to
treatment of a strictly medical kind. This is not to deny that expert
advice should be sought in very many homosexual cases. We
shall have something more to say on these matters in connection
G with the treatment of offenders.
3
Much more could have come from the pen of this genius. In fact, when crossing the
U.S. Customs and being asked whether he had anything to declare, his famous answer
was said to have been, “I have nothing to declare except my genius.” But even unjust jail
sentences can produce remarkable things – The Ballad of Reading Gaol is a masterpiece
of English poetry which the world would never have received had he not been incarcerated
H in Reading Gaol.
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 545
[DIPAK
[R. F. NARIMAN,
MISRA, CJI
J.]]

32. The claim that homosexuality is an illness carries the further A
implication that the sufferer cannot help it and therefore carries
a diminished responsibility for his actions. Even if it were
accepted that homosexuality could properly be described as a
“disease”, we should not accept this corollary. There are no prima
facie grounds for supposing that because a particular person’s
B
sexual propensity happens to lie in the direction of persons of his
or her own sex it is any less controllable than that of those whose
propensity is for persons of the opposite sex. We are informed
that patients in mental hospitals, with few exceptions, show clearly
by their behavior that they can and do exercise a high degree of
responsibility and self-control; for example, only a small minority C
need to be kept in locked wards. The existence of varying degrees
of self-control is a matter of daily experience - the extent to
which coughing can be controlled is an example - and the capacity
for self-control can vary with the personality structure or with
temporary physical or emotional conditions. The question which
D
is important for us here is whether the individual suffers from a
condition which causes diminished responsibility. This is a
different question from the question whether he was responsible
in the past for the causes or origins of his present condition. That
is an interesting enquiry and may be of relevance in other
connections; but our concern is with the behavior which flows E
from the individual’s present condition and with the extent to
which he is responsible for that behavior, whatever may have
been the causes of the condition from which it springs. Just as
expert opinion can give valuable assistance in deciding on the
appropriate ways of dealing with a convicted person, so can it
F
help in assessing the additional factors that may affect his present
responsibility?”
24. It then went on to note in paragraph 36 that the evidence
before them showed that homosexuality existed in all levels of society
and was prevalent in all trades and professions. In paragraph 53, the
main arguments for retention of the existing law were set out. Insofar as G
societal health was concerned, the Committee rejected this for lack of
evidence. It went on to state:-
“54. As regards the first of these arguments, it is held that conduct
of this kind is a cause of the demoralization and decay of
H
546 SUPREME COURT REPORTS [2018] 7 S.C.R.

A civilisations, and that therefore, unless we wish to see our nation
degenerate and decay, such conduct must be stopped, by every
possible means. We have found no evidence to support this view,
and we cannot feel it right to frame the laws which should govern
this country in the present age by reference to hypothetical
explanations of the history of other peoples in ages distant in
B
time and different in circumstances from our own. In so far as
the basis of this argument can be precisely formulated, it is often
no more than the expression of revulsion against what is regarded
as unnatural, sinful or disgusting. Many people feel this revulsion,
for one or more of these reasons. But moral conviction or
C instinctive feeling, however strong, is not a valid basis for
overriding the individual’s privacy and for bringing within the
ambit of the criminal law private sexual behaviour of this kind. It
is held also that if such men are employed in certain professions
or certain branches of the public service their private habits may
render them liable to threats of blackmail or to other pressures
D
which may make them “bad security risks.” If this is true, it is
true also of some other categories of persons: for example,
drunkards, gamblers and those who become involved in
compromising situations of a heterosexual kind; and while it may
be a valid ground for excluding from certain forms of employment
E men who indulge in homosexual behaviour, it does not, in our
view, constitute a sufficient reason for making their private sexual
behaviour an offence in itself.”
(Emphasis supplied)
25. Insofar as the damaging effects on family life were concerned,
F this was rejected by stating:-
“55. The second contention, that homosexual behaviour between
males has a damaging effect on family life, may well be true.
Indeed, we have had evidence, that it often is; cases in which
homosexual behaviour on the part of the husband has broken up
G a marriage are by no means rare, and there are also cases in
which a man in whom the homosexual component is relatively
weak nevertheless derives such satisfaction from homosexual
outlets that he does not enter upon a marriage which might have
been successfully and happily consummated. We deplore this
H damage to what we regard as the basic unit of society; but cases
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 547
[DIPAK
[R. F. NARIMAN,
MISRA, CJI
J.]]

are also frequently encountered in which a marriage has been A
broken up by homosexual behaviour on the part of the wife, and
no doubt some women, too, derive sufficient satisfaction from
homosexual outlets to prevent their marrying. We have had no
reasons shown to us which would lead us to believe that
homosexual behaviour between males inflicts any greater damage
B
on family life than adultery, fornication or lesbian behaviour. These
practices are all reprehensible from the point of view of harm to
the family, but it is difficult to see why on this ground male
homosexual behaviour alone among them should be a criminal
offence. This argument is not to be taken as saying that society
should condone or approve male homosexual behaviour. But C
where adultery, fornication and lesbian behaviour are not criminal
offences there seems to us to be no valid ground, on the basis of
damage to the family, for so regarding homosexual behaviour
between men. Moreover, it has to be recognized that the mere
existence of the condition of homosexuality in one of the partners
D
can result in an unsatisfactory marriage, so that for a homosexual
to marry simply for the sake of conformity with the accepted
structure of society or in the hope of curing his condition may
result in disaster.”
26. And in rejecting the allegation that men indulging in such
practices with other men may turn their attention to boys, the Committee E
said:-
“56. We have given anxious consideration to the third argument,
that an adult male who has sought as his partner another adult
male may turn from such a relationship and seek as his partner a
boy or succession of boys. We should certainly not wish to F
countenance any proposal which might tend to increase offences
against minors. Indeed, if we thought that any recommendation
for a change in the law would increase the danger to minors, we
should not make it. But in this matter, we have been much
influenced by our expert witnesses. They are in no doubt that G
whatever may be the origins of the homosexual condition, there
are two recognisably different categories among adult male
homosexuals. There are those who seek as partners other adult
males, and there are paedophiliacs, that is to say men who seek
as partners boys who have not reached puberty.
H
548 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 57. We are authoritatively informed that a man who has
homosexual relations with an adult partner seldom turns to boys,
and vice-versa, though it is apparent from the police reports we
have seen and from other evidence submitted to us that such
cases do happen.”
B 27. Finally, the Committee stated:
“60. We recognise that a proposal to change a law which has
operated for many years so as to make legally permissible acts
which were formerly unlawful, is open to criticisms which might
not be made in relation to a proposal to omit, from a code of laws
C being formulated de novo, any provision making these acts illegal.
To reverse a long-standing tradition is a serious matter and not
to be suggested lightly. But the task entrusted to us, as we
conceive it, is to state what we regard as a just and equitable
law. We therefore do not think it appropriate that consideration
of this question should be unduly influenced by a regard for the
D present law, much of which derives from traditions whose origins
are obscure.
61. Further, we feel bound to say this. We have outlined the
arguments against a change in the law, and we recognise their
weight. We believe, however, that they have been met by the
E counter-arguments we have already advanced. There remains
one additional counter-argument which we believe to be decisive,
namely, the importance which society and the law ought to give
to individual freedom of choice and action in matters of private
morality. Unless a deliberate attempt is to be made by society,
F acting through the agency of the law, to equate the sphere of
crime with that of sin, there must remain a realm of private
morality and immorality which is, in brief and crude terms, not
the law’s business. To say this is not to condone or encourage
private immorality. On the contrary, to emphasise the personal
and private responsibility of the individual for his own actions,
G and that is a responsibility which a mature agent can properly be
expected to carry for himself without the threat of punishment
from the law.
62. We accordingly recommend that homosexual behaviour
between consenting adults in private should no longer be a criminal
H offence.”
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 549
[DIPAK MISRA, CJI
[R. F. NARIMAN, J.]]

28. Change came slowly. It was only in 1967 that the Wolfenden A
Committee Report was acted upon by the British Parliament by enacting
the Sexual Offences Act, 1967, which abolished penal offences involving
consenting same-sex adults.
29. In 2017, the United Kingdom passed the Policing and Crimes
Act which served as an amnesty law to pardon persons who were B
cautioned or convicted under legislations that outlawed homosexual acts.4
The Law in the United States
30. At the time that the United States achieved independence in
1776, the law in all the States insofar as same-sex offences were
concerned, was the English law. This state of affairs continued until C
challenges were made in the last century to state statutes which
criminalized sodomy. One such case, namely, Bowers v. Hardwick
(“Bowers”), 92 L. Ed. 2d 140 (1986), reached the United States
Supreme Court in the year 1986. By a 5:4 decision, the United States
Supreme Court upheld a Georgia statute criminalizing sodomy and its D
applicability to the commission of that act with another adult male in the
bedroom of the respondent’s home. Justice White, who spoke for the
majority of the Court, did this on several grounds.
31. First and foremost, he stated that there was no right to privacy
that extended to homosexual sodomy. No connection between family, E
marriage, or procreation and homosexuality had been demonstrated to
the court. The next ground for upholding such law was that proscriptions
against such conduct had ancient roots. Stanley v. Georgia (“Stanley”),
22 L. Ed. 2d 542 (1969), where the Court held that the First Amendment
prohibits conviction for possessing and reading obscene material in the
privacy of one’s home, was brushed aside stating that Stanley itself F
recognized that its holding offered no protection for possession of drugs,
firearms or stolen goods in the home. Therefore, such a claimed
fundamental right could not possibly exist when adultery, incest and other
sexual crimes are punished, even though they may be committed in the
home. Another important rationale was that the Georgia law was based G
on a notion of morality, which is a choice that could legitimately be
4
The impetus for this law was the prosecution of Alan Turing in 1952. Alan Turing was
instrumental in cracking intercepted code messages that enabled the Allies to defeat
Germany in many crucial engagements in the War. Turing accepted chemical castration
treatment as an alternative to prison upon conviction, but committed suicide just
before his 42nd birthday in 1954. H
550 SUPREME COURT REPORTS [2018] 7 S.C.R.

A exercised by a State Legislature. Chief Justice Burger, concurring, again
relied heavily on ‘ancient roots’, stating that throughout the history of
western civilization, homosexual sodomy was outlawed in the Judeo-
Christian tradition, which the Georgia legislature could well follow. Justice
Powell, concurring with the majority, found that to imprison a person
upto 20 years for a single, private, consensual act of sodomy within the
B
home would be a cruel and unusual punishment within the meaning of
the Eighth Amendment. However, since no trial had taken place on the
facts, and since the respondent did not raise any such Eighth Amendment
issue, Justice Powell concurred with the majority.
32. The dissenting opinion of four Justices makes interesting
C reading. Justice Blackmun, who spoke for four dissenters, began with
the classical definition of the old privacy right which is the “right to be let
alone”, and quoted from Justice Holmes’ article The Path of the Law,
stating:-
“[i]t is revolting to have no better reason for a rule of law than
D that so it was laid down in the time of Henry IV. It is still more
revolting if the grounds upon which it was laid down have
vanished long since, and the rule simply persists from blind imitation
of the past.”
33. So much, then, for history and its “ancient roots”. Justice
E Blackmun’s dissent then went on to consider the famous judgment in
Wisconsin v. Yoder, 32 L. Ed. 2d 15 (1972), in which the Court had
upheld the fundamental right of the Amish community not to send their
children to schools, stating that a way of life that is odd or even erratic
but interferes with no rights or interests of others is not to be condemned
F because it is different. Referring to Judeo-Christian values, the Court
said that the fact that certain religious groups condemn the behavior of
sodomy gives the State no licence to impose their moral judgment on the
entire citizenry of the United States. Ending with a John Stuart Mill type
of analysis, the dissent stated:-

G “44. This case involves no real interference with the rights of
others, for the mere knowledge that other individuals do not
adhere to one’s value system cannot be a legally cognizable
interest, cf. Diamond v. Charles, 476 U.S. 54, 65-66, 106 S. Ct.
1697, 1705, 90 L.Ed.2d 48 (1986), let alone an interest that can
justify invading the houses, hearts, and minds of citizens who
H choose to live their lives differently.”
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 551
[DIPAK
[R. F. NARIMAN,
MISRA, CJI
J.]]

34. Justice Stevens, also in a powerfully worded dissent, A
specifically stated that the protection of privacy extends to intimate
choices made by unmarried as well as married persons.
35. It took the United States 17 years to set aside this view of the
law and to accept the dissenting judgments in Bowers (supra).
36. In Lawrence v. Texas, 539 U.S. 558 (2003), by a majority of B
6:3, Justice Anthony Kennedy, speaking for the majority, set aside the
judgment in Bowers (supra), accepting that the dissenting judgments in
that case were correct. In a tilt at the history analysis of the majority
judgment in Bowers (supra), the Court found that earlier sodomy laws
were not directed at homosexuals at large, but instead sought to prohibit C
non-procreative sexual activity more generally, and were not enforced
against consenting adults acting in private. After citing from Planned
Parenthood of Southeastern Pa. v. Casey (“Casey”), 505 U.S. 833
(1992), the majority held – “our obligation is to define the liberty of all,
not to mandate our own moral code.” The majority judgment then referred
to a Model Penal Code that the American Law Institute took out in D
1955, making it clear that it did not provide for criminal penalties for
consensual same-sex relationships conducted in private. The judgment
then went on to refer to the Wolfenden Committee Report and the Sexual
Offences Act,1967 in the United Kingdom and referred to the European
Court’s decision in Dudgeon v. United Kingdom, 45 Eur. Ct. H. R. E
(1981). It then referred to Romer v. Evans (“Romer”), 517 U.S. 620
(1996), where the Court struck down a class-based legislation which
deprived homosexuals of State anti-discrimination laws as a violation of
the Equal Protection Clause. The majority then found that the 1986
decision of Bowers (supra), had “sustained serious erosion” through
their recent decisions in Casey (supra) and Romer (supra), and had, F
therefore, to be revisited.5 Justice O’Connor concurred in the judgment
but side-stepped rather than overruled Bowers (supra). Justice Scalia,
5
The majority’s decision echoes what had happened earlier in what is referred to as the
celebrated flag salute case, namely, West Virginia State Board of Education v.
Barnette, 319 U.S. 624 (1943). The U.S. Supreme Court had overruled its recent G
judgment in Minersville School District v. Gobitis, 310 U.S. 586 (1940). Justice
Jackson speaking for the majority of the Court found:-
“The freedom asserted by these appellees does not bring them into collision
with rights asserted by any other individual. It is such conflicts which most
frequently require intervention of the State to determine where the rights of one
end and those of another begin. But the refusal of these persons to participate
H
552 SUPREME COURT REPORTS [2018] 7 S.C.R.

A with whom the Chief Justice and Justice Thomas joined, found no reason
to undo the Bowers (supra) verdict stating that stare decisis should
carry the day. An interesting passage in Justice Scalia’s judgment reads
as follows:-
“Let me be clear that I have nothing against homosexuals, or
B any other group, promoting their agenda through normal
democratic means. Social perceptions of sexual and other
morality change over time, and every group has the right to
persuade its fellow citizens that its view of such matters is the
best. That homosexuals have achieved some success in that
enterprise is attested to by the fact that Texas is one of the few
C remaining States that criminalize private, consensual homosexual
acts. But persuading one’s fellow citizens is one thing, and
imposing one’s views in absence of democratic majority will is
something else. I would no more require a State to criminalize
homosexual acts—or, for that matter, display any moral
D disapprobation of them—than I would forbid it to do so. What
Texas has chosen to do is well within the range of traditional
democratic action, and its hand should not be stayed through the
invention of a brand-new “constitutional right” by a Court that is
impatient of democratic change. It is indeed true that “later
generations can see that laws once thought necessary and proper
E in fact serve only to oppress,” [ante, at 579]; and when that
happens, later generations can repeal those laws. But it is the
premise of our system that those judgments are to be made by
the people, and not imposed by a governing caste that knows
best.”
F in the ceremony does not interfere with or deny rights of others to do so. Nor
is there any question in this case that their behavior is peaceable and orderly.”
The learned Judge then went on to find:
“The very purpose of a Bill of Rights was to withdraw certain subjects from
the vicissitudes of political controversy, to place them beyond the reach of
majorities and officials and to establish them as legal principles to be applied
by the courts. One’s right to life, liberty, and property, to free speech, a free
G press, freedom of worship and assembly, and other fundamental rights may
not be submitted to vote; they depend on the outcome of no elections.”
And finally, it was held:-
“If there is any fixed star in our constitutional constellation, it is that no
official, high or petty, can prescribe what shall be orthodox in politics,
nationalism, religion, or other matters of opinion or force citizens to confess
by word or act their faith therein. If there are any circumstances which permit
H an exception, they do not now occur to us.”
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 553
[DIPAK MISRA, CJI
[R. F. NARIMAN, J.]]

37. Before coming to our own judgments, we may quickly survey A
some of the judgments of the courts of other democratic nations. The
European Community decisions, beginning with Dudgeon v. United
Kingdom (supra) and continuing with Norris v. Ireland, Application
no. 10581/83, and Modinos v. Cyprus, 16 EHRR 485 (1993), have all
found provisions similar to Section 377 to be violative of Article 8 of the
B
European Human Rights Convention, 1948 in which everyone has the
right to respect for his private and family life, his home and his
correspondence, and no interference can be made with these rights unless
the law is necessary in a democratic society inter alia for the prevention
of disorder or crime, for the protection of health or morals, or for the
protection of the rights and freedoms of others. C
38. In El-Al Israel Airlines Ltd. v. Jonathan Danielwitz, H.C.J.
721/94, the Supreme Court of Israel, speaking through Barak, J.,
recognized a same-sex relationship so that a male companion could be
treated as being a companion for the receipt of a free or discounted
aeroplane ticket. The Court held:- D
“14.….The principle of equality demands that the existence of a
rule that treats people differently is justified by the nature and
substance of the issue. The principle of equality therefore
presumes the existence of objective reasons that justify a
difference (a distinction, dissimilarity). Discrimination — which E
is the opposite of equality — exists therefore in those situations
where a different law for people who are (de facto) different
from one another is based on reasons that are insufficient to
justify a distinction between them in a free and democratic society.
In Justice Or’s words, discrimination is ‘different treatment
without an objective justification’ (Hoppert v. ‘Yad VaShem’ F
Holocaust Martyrs and Heroes Memorial Authority [12], at p.
360). President Agranat discussed this and pointed out:
‘The principle of equality, which is merely the opposite of
discrimination and which, for reasons of justice and fairness,
the law of every democratic country aspires to achieve, means G
that people must be treated equally for a particular purpose,
when no real differences that are relevant to this purpose exist
between them. If they are not treated equally, we have a case
of discrimination. However, if the difference or differences
between different people are relevant for the purpose under H
554 SUPREME COURT REPORTS [2018] 7 S.C.R.

A discussion, it is a permitted distinction to treat them differently
for that purpose, provided that those differences justify this. In
this context, the concept of “equality” therefore means “relevant
equality”, and it requires, with regard to the purpose under
discussion, “equality of treatment” for those persons in this
state. By contrast, it will be a permitted distinction if the
B
different treatment of different persons derives from their being
for the purpose of the treatment, in a state of relevant inequality,
just as it will be discrimination if it derives from their being in a
state of inequality that is not relevant to the purpose of the
treatment’ (FH 10/69 Boronovski v. Chief Rabbis [16], at p. 35).
C Therefore, a particular law will create discrimination when two
individuals, who are different from one another (factual
inequality), are treated differently by the law, even though the
factual difference between them does not justify different
treatment in the circumstances. Discrimination is therefore based
D on the factors of arbitrariness, injustice and unreasonableness.
XXX
17. We have seen, therefore, that giving a benefit to a (permanent)
employee for a spouse or recognized companion of the opposite
sex and not giving the same benefit for a same-sex companion
E amounts to a violation of equality. What is the nature of this
discrimination? Indeed, all discrimination is prohibited, but among
the different kinds of discrimination, there are varying degrees.
The severity of the discrimination is determined by the severity
of the violation of the principle of equality. Thus, for example,
F we consider discrimination on the basis of race, religion, nationality,
language, ethnic group and age to be particularly serious. In this
framework, the Israeli legal system attaches great importance
to the need to guarantee equality between the sexes and to prevent
discrimination on the basis of sex (see HCJ 153/87 Shakdiel v.
Minister of Religious Affairs [19]; Poraz v. Mayor of Tel Aviv-
G Jaffa [6]).”
(Emphasis supplied)
39. An instructive recent judgment from Trinidad and Tobago in
Jason Jones v. Attorney General of Trinidad and Tobago, Claim
No. CV 2017-00720, followed our judgment in Puttaswamy (supra) in
H
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 555
[DIPAK MISRA, CJI
[R. F. NARIMAN, J.]]

order to strike down Section 13 of the Sexual Offences Act, 1986 on the A
ground that the State cannot criminalise sexual relations of the same sex
between consenting adults. The court concluded:-
“168. Having regard to the evidence and submissions before
this court on all sides, there is no cogent evidence that the
legislative objective is sufficiently important to justify limiting the B
claimant’s rights. Mr. Hosein’s stated objectives of:
168.1. Maintaining traditional family and values that represent
society;
168.2. Preserving the legislation as it is and clarifying the law;
and C
168.3. Extending the offence in section 16 to women and reduce
it to serious indecency from gross indecency;
do not counterbalance the claimant’s limit of his fundamental
right of which he has given evidence. Instead, the court accepts
the claimant’s position that the law as it stands is not sufficiently D
important to justify limiting his fundamental rights and that he
has proven it on a balance of probabilities.”
40. To similar effect is the judgment of the High Court of Fiji in
Dhirendra Nadan v. State, Case No. HAA0085 of 2005, where a
Section similar to Section 377 was held to be inconsistent with the
E
constitutional right of privacy and invalid to the extent that the law
criminalises acts constituting private consensual sexual conduct “against
the course of nature” between adults.
41. The South African Supreme Court, by a decision of 1999 in
The National Coalition for Gay and Lesbian Equality v. The
Minister of Home Affairs, Case CCT 10/99, after referring to various F
judgments of other courts, also found a similar section to be inconsistent
with the fundamental rights under its Constitution.
42. Another important decision is that of the United Nations Human
Rights Committee in Toonen v. Australia, Communication No. 488/
1992, U.N. Doc CCPR/C/50/D/488/1992 (1994), dated 31.03.1994. The G
Committee was called upon to determine whether Mr. Nicholas Toonen,
who resided in the state of Tasmania, had been the victim of arbitrary
interference with his privacy, and whether he had been discriminated
against on the basis of his sexual orientation of being a homosexual. The
Committee found:- H
556 SUPREME COURT REPORTS [2018] 7 S.C.R.

A “8.2 Inasmuch as Article 17 is concerned, it is undisputed that
adult consensual sexual activity in private is covered by the
concept of “privacy”, and that Mr. Toonen is actually and
currently affected by the continued existence of the Tasmanian
laws. The Committee considers that Sections 122 (a), (c) and
123 of the Tasmanian Criminal Code “interfere” with the author’s
B
privacy, even if these provisions have not been enforced for a
decade. In this context, it notes that the policy of the Department
of Public Prosecutions not to initiate criminal proceedings in
respect of private homosexual conduct does not amount to a
guarantee that no actions will be brought against homosexuals in
C the future, particularly in the light of undisputed statements of
the Director of Public Prosecutions of Tasmania in 1988 and
those of members of the Tasmanian Parliament. The continued
existence of the challenged provisions therefore continuously and
directly “interferes” with the author’s privacy.
D 8.3 The prohibition against private homosexual behaviour is
provided for by law, namely, Sections 122 and 123 of the
Tasmanian Criminal Code. As to whether it may be deemed
arbitrary, the Committee recalls that pursuant to its General
Comment 16 on article 17, the “introduction of the concept of
arbitrariness is intended to guarantee that even interference
E provided for by the law should be in accordance with the
provisions, aims and objectives of the Covenant and should be,
in any event, reasonable in the circumstances”.(4) The
Committee interprets the requirement of reasonableness to imply
that any interference with privacy must be proportional to the
F end sought and be necessary in the circumstances of any given
case.
XXX
8.5 As far as the public health argument of the Tasmanian
authorities is concerned, the Committee notes that the
G criminalization of homosexual practices cannot be considered a
reasonable means or proportionate measure to achieve the aim
of preventing the spread of AIDS/HIV. The Australian
Government observes that statutes criminalizing homosexual
activity tend to impede public health programmes “by driving
H underground many of the people at the risk of infection”.
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 557
[DIPAK MISRA, CJI
[R. F. NARIMAN, J.]]

Criminalization of homosexual activity thus would appear to run A
counter to the implementation of effective education programmes
in respect of the HIV/AIDS prevention. Secondly, the Committee
notes that no link has been shown between the continued
criminalization of homosexual activity and the effective control
of the spread of the HIV/AIDS virus.
B
XXX
8.7 The State party has sought the Committee’s guidance as to
whether sexual orientation may be considered an “other status”
for the purposes of article 26. The same issue could arise under
article 2, paragraph 1, of the Covenant. The Committee confines C
itself to noting, however, that in its view the reference to “sex”
in articles 2, paragraph 1, and 26 is to be taken as including
sexual orientation.
XXX
10. Under article 2(3)(a) of the Covenant, the author, victim of a D
violation of articles 17, paragraph 1, juncto 2, paragraph 1, of the
Covenant, is entitled to a remedy. In the opinion of the Committee,
an effective remedy would be the repeal of Sections 122(a), (c)
and 123 of the Tasmanian Criminal Code.”
43. As a result of these findings, the Australian Parliament, on E
19.12.1994, passed the Human Rights (Sexual Conduct) Act, 1994,
Section 4 of which reads as under:-
“4. Arbitrary interferences with privacy
(1) Sexual conduct involving only consenting adults acting in private
F
is not to be subject, by or under any law of the Commonwealth,
a State or a Territory, to any arbitrary interference with privacy
within the meaning of Article 17 of the International Covenant
on Civil and Political Rights.
(2) For the purposes of this section, an adult is a person who is
18 years old or more.” G

Recent Judgments of this Court
44. Anuj Garg and Ors. v. Hotel Association of India and
Ors., (2008) 3 SCC 1, is an important decision of this Court, which dealt
with the constitutional validity of another pre-constitution enactment, H
558 SUPREME COURT REPORTS [2018] 7 S.C.R.

A namely, Section 30 of the Punjab Excise Act of 1914, which prohibited
employment of any woman in any part of premises in which liquor is
consumed by the public. Sinha, J. adverted to the fact that when the
original Act was enacted, the concept of equality between the two sexes
was unknown. The Constitution changed all that when it enacted Articles
14 and 15. What is of importance is that when discrimination is made
B
between two sets of persons, the classification must be founded on some
rational criteria having regard to the societal conditions as they exist
presently, and not as they existed in the early 20th century or even earlier.
This was felicitously stated by the learned Judge as follows:-
“7. The Act is a pre-constitutional legislation. Although it is saved
C in terms of Article 372 of the Constitution, challenge to its validity
on the touchstone of Articles 14, 15 and 19 of the Constitution of
India, is permissible in law. While embarking on the questions
raised, it may be pertinent to know that a statute although could
have been held to be a valid piece of legislation keeping in view
D the societal condition of those times, but with the changes
occurring therein both in the domestic as also international arena,
such a law can also be declared invalid.
8. In John Vallamattom v. Union of India, (2003) 6 SCC 611,
this Court, while referring to an amendment made in UK in
E relation to a provision which was in pari materia with Section
118 of Indian Succession Act, observed (SCC p. 624, para 28):
“28…The constitutionality of a provision, it is trite, will have to
be judged keeping in view the interpretative changes of the
statute affected by passage of time.”
F Referring to the changing legal scenario and having regard to
the Declaration on the Right to Development adopted by the
World Conference on Human Rights as also Article 18 of the
United Nations Covenant on Civil and Political Rights, 1966, it
was held (John Vallamattom case, SCC p. 625, para 33):
G “33. It is trite that having regard to Article 13(1) of the
Constitution, the constitutionality of the impugned legislation is
required to be considered on the basis of laws existing on 26-
1-1950, but while doing so the court is not precluded from taking
into consideration the subsequent events which have taken place
H
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 559
[DIPAK MISRA, CJIJ.]]
[R. F. NARIMAN,

thereafter. It is further trite that the law although may be A
constitutional when enacted but with passage of time the same
may be held to be unconstitutional in view of the changed
situation.”
XXX
26. When a discrimination is sought to be made on the purported B
ground of classification, such classification must be founded on
a rational criteria. The criteria which in absence of any
constitutional provision and, it will bear repetition to state, having
regard to the societal conditions as they prevailed in early 20th
century, may not be a rational criteria in the 21st century. In the C
early 20th century, the hospitality sector was not open to women
in general. In the last 60 years, women in India have gained
entry in all spheres of public life. They have also been representing
people at grass root democracy. They are now employed as
drivers of heavy transport vehicles, conductors of service
carriages, pilots, et. al. Women can be seen to be occupying D
Class IV posts to the post of a Chief Executive Officer of a
Multinational Company. They are now widely accepted both in
police as also army services.”
45. The Court went on to hold that “proportionality” should be a
standard capable of being called reasonable in a modern democratic E
society (See paragraph 36).
In a significant paragraph, the learned Judge held:-
“43. Instead of prohibiting women employment in the bars
altogether the State should focus on factoring in ways through F
which unequal consequences of sex differences can be
eliminated. It is the State’s duty to ensure circumstances of safety
which inspire confidence in women to discharge the duty freely
in accordance to the requirements of the profession they choose
to follow. Any other policy inference (such as the one embodied
under Section 30) from societal conditions would be oppressive G
on the women and against the privacy rights.”
46. The learned Judge then went on to further hold that the
standard of judicial scrutiny of legislations, which on their face effect
discrimination, is as follows:-
H
560 SUPREME COURT REPORTS [2018] 7 S.C.R.

A “46. It is to be borne in mind that legislations with pronounced
“protective discrimination” aims, such as this one, potentially serve
as double-edged swords. Strict scrutiny test should be employed
while assessing the implications of this variety of legislations.
Legislation should not be only assessed on its proposed aims but
rather on the implications and the effects. The impugned legislation
B
suffers from incurable fixations of stereotype morality and
conception of sexual role. The perspective thus arrived at is
outmoded in content and stifling in means.
47. No law in its ultimate effect should end up perpetuating the
oppression of women. Personal freedom is a fundamental tenet
C which cannot be compromised in the name of expediency until
and unless there is a compelling State purpose. Heightened
level of scrutiny is the normative threshold for judicial review in
such cases.”
47. Finally, the Court held:-
D
“50. The test to review such a protective discrimination statute
would entail a two-pronged scrutiny:
(a) the legislative interference (induced by sex discriminatory
legislation in the instant case) should be justified in principle,
E (b) the same should be proportionate in measure.
51. The Court’s task is to determine whether the measures
furthered by the State in the form of legislative mandate, to
augment the legitimate aim of protecting the interests of women
are proportionate to the other bulk of well-settled gender norms
F such as autonomy, equality of opportunity, right to privacy, et al.
The bottomline in this behalf would be a functioning modern
democratic society which ensures freedom to pursue varied
opportunities and options without discriminating on the basis of
sex, race, caste or any other like basis. In fine, there should be a
reasonable relationship of proportionality between the means used
G
and the aim pursued.”
48. The Section which had been struck down by the High Court
was held to be arbitrary and unreasonable by this Court as well.
49. Close on the heels of this Court’s judgment in Suresh Kumar
H Koushal (supra) is this Court’s judgment in NALSA (supra). In this
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 561
[DIPAK MISRA, CJI
[R. F. NARIMAN, J.]]

case, the Court had to grapple with the trauma, agony and pain of the A
members of the transgender community. The Court referred to Section
377 in the following words:
“19. Section 377 IPC found a place in the Penal Code, 1860,
prior to the enactment of the Criminal Tribes Act that criminalised
all penile non-vaginal sexual acts between persons, including anal B
sex and oral sex, at a time when transgender persons were also
typically associated with the proscribed sexual practices.
Reference may be made to the judgment of the Allahabad High
Court in Queen Empress v. Khairati, ILR (1884) 6 All 204,
wherein a transgender person was arrested and prosecuted under
Section 377 on the suspicion that he was a “habitual sodomite” C
and was later acquitted on appeal. In that case, while acquitting
him, the Sessions Judge stated as follows: (ILR pp. 204-05)
“… ‘This case relates to a person named Khairati, over whom
the police seem to have exercised some sort of supervision,
whether strictly regular or not, as a eunuch. The man is not a D
eunuch in the literal sense, but he was called for by the police
when on a visit to his village, and was found singing dressed as
a woman among the women of a certain family. Having been
subjected to examination by the Civil Surgeon (and a
subordinate medical man), he is shown to have the characteristic E
mark of a habitual catamite—the distortion of the orifice of
the anus into the shape of a trumpet—and also to be affected
with syphilis in the same region in a manner which distinctly
points to unnatural intercourse within the last few months.’”
Even though, he was acquitted on appeal, this case would F
demonstrate that Section 377, though associated with specific
sexual acts, highlighted certain identities, including hijras and
was used as an instrument of harassment and physical abuse
against hijras and transgender persons.”
50. The Court went on to explain the concepts of gender identity G
and sexual orientation, and relied heavily upon Yogyakarta Principles
on the Application of International Human Rights Law in Relation
to Sexual Orientation and Gender Identity. The Court then went on
to hold:

H
562 SUPREME COURT REPORTS [2018] 7 S.C.R.

A “60. The principles discussed hereinbefore on TGs and the
international conventions, including Yogyakarta Principles,
which we have found not inconsistent with the various fundamental
rights guaranteed under the Indian Constitution, must be
recognised and followed, which has sufficient legal and historical
justification in our country.”
B
51. Insofar as Articles 15 and 16 of the Constitution were
concerned, the Court held:
“66. Articles 15 and 16 sought to prohibit discrimination on the
basis of sex, recognising that sex discrimination is a historical
C fact and needs to be addressed. The Constitution-makers, it can
be gathered, gave emphasis to the fundamental right against sex
discrimination so as to prevent the direct or indirect attitude to
treat people differently, for the reason of not being in conformity
with stereotypical generalisations of binary genders. Both gender
and biological attributes constitute distinct components of sex.
D The biological characteristics, of course, include genitals,
chromosomes and secondary sexual features, but gender
attributes include one’s self-image, the deep psychological or
emotional sense of sexual identity and character. The
discrimination on the ground of “sex” under Articles 15 and 16,
E 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.”
52. Insofar as Article 19(1)(a) of the Constitution and transgenders
F were concerned, the Court held:
“72. Gender identity, therefore, lies at the core of one’s personal
identity, gender expression and presentation and, therefore, it
will have to be protected under Article 19(1)(a) of the Constitution
of India. A transgender’s personality could be expressed by the
G transgender’s behaviour and presentation. State cannot prohibit,
restrict or interfere with a transgender’s expression of such
personality, which reflects that inherent personality. Often the
State and its authorities either due to ignorance or otherwise fail
to digest the innate character and identity of such persons. We,
therefore, hold that values of privacy, self-identity, autonomy and
H personal integrity are fundamental rights guaranteed to members
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 563
[DIPAK MISRA, CJI
[R. F. NARIMAN, J.]]

of the transgender community under Article 19(1)(a) of the A
Constitution of India and the State is bound to protect and
recognise those rights.”
53. In a significant paragraph relating to the personal autonomy
of an individual, this Court held:
“75. Article 21, as already indicated, guarantees the protection B
of “personal autonomy” of an individual. In Anuj Garg v. Hotel
Assn. of India [(2008) 3 SCC 1] (SCC p. 15, paras 34-35), this
Court held that personal autonomy includes both the negative
right of not to be subject to interference by others and the positive
right of individuals to make decisions about their life, to express C
themselves and to choose which activities to take part in. Self-
determination of gender is an integral part of personal autonomy
and self-expression and falls within the realm of personal liberty
guaranteed under Article 21 of the Constitution of India.”
54. The conclusion therefore was:- D
“83. We, therefore, conclude that discrimination on the basis of
sexual orientation or gender identity includes any discrimination,
exclusion, restriction or preference, which has the effect of
nullifying or transposing equality by the law or the equal protection
of laws guaranteed under our Constitution, and hence we are E
inclined to give various directions to safeguard the constitutional
rights of the members of the TG community.”
55. Dr. A.K. Sikri, J., in a separate concurring judgment, spoke of
the fundamental and universal principle of the right of choice given to
every individual, which is an inseparable part of human rights. He then F
went on to hold:-
“116.1. Though in the past TGs in India were treated with great
respect, that does not remain the scenario any longer. Attrition in
their status was triggered with the passing of the Criminal Tribes
Act, 1871 which deemed the entire community of hijra persons
G
as innately “criminal” and “adapted to the systematic commission
of non-bailable offences”. This dogmatism and indoctrination of
the Indian people with aforesaid presumption, was totally
capricious and nefarious. There could not have been more harm
caused to this community with the passing of the aforesaid brutal
legislation during the British Regime with the vicious and savage H
564 SUPREME COURT REPORTS [2018] 7 S.C.R.

A mind-set. To add insult to the irreparable injury caused, Section
377 of the Penal Code was misused and abused as there was a
tendency, in the British period, to arrest and prosecute TG persons
under Section 377 merely on suspicion. To undergo this sordid
historical harm caused to TGs of India, there is a need for
incessant efforts with effervescence.”
B
56. And in paragraphs 125 and 129, he outlined the role of our
Court as follows:-
“125. The role of the Court is to understand the central purpose
and theme of the Constitution for the welfare of the society. Our
C Constitution, like the law of the society, is a living organism. It is
based on a factual and social reality that is constantly changing.
Sometimes a change in the law precedes societal change and is
even intended to stimulate it. Sometimes, a change in the law is
the result in the social reality. When we discuss about the rights
of TGs in the constitutional context, we find that in order to bring
D about complete paradigm shift, the law has to play more
predominant role. As TGs in India, are neither male nor female,
treating them as belonging to either of the aforesaid categories,
is the denial of these constitutional rights. It is the denial of social
justice which in turn has the effect of denying political and
E economic justice.
XXX
129. As we have pointed out above, our Constitution inheres
liberal and substantive democracy with the rule of law as an
important and fundamental pillar. It has its own internal morality
F based on dignity and equality of all human beings. The rule of
law demands protection of individual human rights. Such rights
are to be guaranteed to each and every human being. These
TGs, even though insignificant in numbers, are still human beings
and therefore they have every right to enjoy their human rights.”
G 57. In an unusual final order, the Court declared:-
“135. We, therefore, declare:
135.1. Hijras, eunuchs, apart from binary genders, be treated as
“third gender” for the purpose of safeguarding their rights under
Part III of our Constitution and the laws made by Parliament
H
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 565
[DIPAK MISRA, CJI
[R. F. NARIMAN, J.]]

and the State Legislature. A
135.2. Transgender persons’ right to decide their self-identified
gender is also upheld and the Centre and State Governments are
directed to grant legal recognition of their gender identity such
as male, female or as third gender.
135.3. We direct the Centre and the State Governments to take B
steps to treat them as Socially and Educationally Backward
Classes of citizens and extend all kinds of reservation in cases
of admission in educational institutions and for public
appointments.
135.4. The Centre and State Governments are directed to C
operate separate HIV serosurveillance centres since hijras/
transgenders face several sexual health issues.
135.5. The Centre and State Governments should seriously
address the problems being faced by hijras/transgenders such
as fear, shame, gender dysphoria, social pressure, depression, D
suicidal tendencies, social stigma, etc. and any insistence for
SRS for declaring one’s gender is immoral and illegal.
135.6. The Centre and State Governments should take proper
measures to provide medical care to TGs in the hospitals and
also provide them separate public toilets and other facilities. E
135.7. The Centre and State Governments should also take steps
for framing various social welfare schemes for their betterment.
135.8. The Centre and State Governments should take steps to
create public awareness so that TGs will feel that they are also
F
part and parcel of the social life and be not treated as untouchables.
135.9. The Centre and the State Governments should also take
measures to regain their respect and place in the society which
once they enjoyed in our cultural and social life.”
58. Puttaswamy (supra) is the next important nail in the coffin of G
section 377 insofar as it pertains to consensual sex between same-sex
adults. In this judgment, Chandrachud, J. referred approvingly to the
NALSA (supra) judgment in paragraph 96 and went on to hold that
privacy is intrinsic to freedom and liberty. In referring to Suresh Kumar
Koushal (supra), Chandrachud, J. referred to the judgment as “another
H
566 SUPREME COURT REPORTS [2018] 7 S.C.R.

A discordant note” which directly bears upon the evolution of constitutional
jurisprudence on the right to privacy. Chandrachud, J. went on to castigate
the judgment in Suresh Kumar Koushal (supra), and held:-
“144. Neither of the above reasons can be regarded as a valid
constitutional basis for disregarding a claim based on privacy
B under Article 21 of the Constitution. That “a miniscule fraction
of the country’s population constitutes lesbians, gays, bisexuals
or transgenders” (as observed in the judgment of this Court) is
not a sustainable basis to deny the right to privacy. The purpose
of elevating certain rights to the stature of guaranteed
fundamental rights is to insulate their exercise from the disdain
C of majorities, whether legislative or popular. The guarantee of
constitutional rights does not depend upon their exercise being
favourably regarded by majoritarian opinion. The test of popular
acceptance does not furnish a valid basis to disregard rights which
are conferred with the sanctity of constitutional protection.
D Discrete and insular minorities face grave dangers of
discrimination for the simple reason that their views, beliefs or
way of life does not accord with the “mainstream”. Yet in a
democratic Constitution founded on the Rule of Law, their rights
are as sacred as those conferred on other citizens to protect
their freedoms and liberties. Sexual orientation is an essential
E attribute of privacy. Discrimination against an individual on the
basis of sexual orientation is deeply offensive to the dignity and
self-worth of the individual. Equality demands that the sexual
orientation of each individual in society must be protected on an
even platform. The right to privacy and the protection of sexual
F orientation lie at the core of the fundamental rights guaranteed
by Articles 14, 15 and 21 of the Constitution.
145. The view in Koushal [Suresh Kumar Koushal v. Naz
Foundation, (2014) 1 SCC 1 : (2013) 4 SCC (Cri) 1] that the
High Court had erroneously relied upon international precedents
G “in its anxiety to protect the so-called rights of LGBT persons”
is similarly, in our view, unsustainable. The rights of the lesbian,
gay, bisexual and transgender population cannot be construed to
be “so-called rights”. The expression “so-called” seems to
suggest the exercise of a liberty in the garb of a right which is
illusory. This is an inappropriate construction of the privacy-based
H
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[DIPAK MISRA, CJIJ.]]
[R. F. NARIMAN,

claims of the LGBT population. Their rights are not “so-called” A
but are real rights founded on sound constitutional doctrine. They
inhere in the right to life. They dwell in privacy and dignity. They
constitute the essence of liberty and freedom. Sexual orientation
is an essential component of identity. Equal protection demands
protection of the identity of every individual without discrimination.
B
146. The decision in Koushal [Suresh Kumar Koushal v. Naz
Foundation, (2014) 1 SCC 1 : (2013) 4 SCC (Cri) 1] presents a
de minimis rationale when it asserts that there have been only
two hundred prosecutions for violating Section 377. The de
minimis hypothesis is misplaced because the invasion of a
fundamental right is not rendered tolerable when a few, as opposed C
to a large number of persons, are subjected to hostile treatment.
The reason why such acts of hostile discrimination are
constitutionally impermissible is because of the chilling effect
which they have on the exercise of the fundamental right in the
first place. For instance, pre-publication restraints such as D
censorship are vulnerable because they discourage people from
exercising their right to free speech because of the fear of a
restraint coming into operation. The chilling effect on the exercise
of the right poses a grave danger to the unhindered fulfilment of
one’s sexual orientation, as an element of privacy and dignity.
The chilling effect is due to the danger of a human being subjected E
to social opprobrium or disapproval, as reflected in the punishment
of crime. Hence the Koushal [Suresh Kumar Koushal v. Naz
Foundation, (2014) 1 SCC 1 : (2013) 4 SCC (Cri) 1] rationale
that prosecution of a few is not an index of violation is flawed
and cannot be accepted. Consequently, we disagree with the F
manner in which Koushal [Suresh Kumar Koushal v. Naz
Foundation, (2014) 1 SCC 1 : (2013) 4 SCC (Cri) 1] has dealt
with the privacy-dignity based claims of LGBT persons on this
aspect.
147. Since the challenge to Section 377 is pending consideration G
before a larger Bench of this Court, we would leave the
constitutional validity to be decided in an appropriate proceeding.”
59. In an important paragraph, the learned Judge finally held:
“323. Privacy includes at its core the preservation of personal
intimacies, the sanctity of family life, marriage, procreation, the H
568 SUPREME COURT REPORTS [2018] 7 S.C.R.

A home and sexual orientation. Privacy also connotes a right to be
left alone. Privacy safeguards individual autonomy and recognises
the ability of the individual to control vital aspects of his or her
life. Personal choices governing a way of life are intrinsic to
privacy. Privacy protects heterogeneity and recognises the
plurality and diversity of our culture. While the legitimate
B
expectation of privacy may vary from the intimate zone to the
private zone and from the private to the public arenas, it is
important to underscore that privacy is not lost or surrendered
merely because the individual is in a public place. Privacy attaches
to the person since it is an essential facet of the dignity of the
C human being.”
60. Nariman, J., in his judgment, which was concurred in by three
other learned Judges, recognized the privacy of choice which protects
an individual’s autonomy over fundamental personal choices as follows:-
“521. In the Indian context, a fundamental right to privacy would
D cover at least the following three aspects:
• Privacy that involves the person i.e. when there is some invasion
by the State of a person’s rights relatable to his physical body,
such as the right to move freely;

E • Informational privacy which does not deal with a person’s
body but deals with a person’s mind, and therefore recognises
that an individual may have control over the dissemination of
material that is personal to him. Unauthorised use of such
information may, therefore lead to infringement of this right; and

F • The privacy of choice, which protects an individual’s autonomy
over fundamental personal choices.
For instance, we can ground physical privacy or privacy relating
to the body in Articles 19(1)(d) and (e) read with Article 21;
ground personal information privacy under Article 21; and the
privacy of choice in Articles 19(1)(a) to (c), 20(3), 21 and 25.
G
The argument based on “privacy” being a vague and nebulous
concept need not, therefore, detain us.”
61. Kaul, J., in a separate judgment, also joined Chandrachud, J.
in castigating Suresh Kumar Koushal’s judgment as follows:
H
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 569
[DIPAK MISRA, CJI
[R. F. NARIMAN, J.]]

“647. There are two aspects of the opinion of Dr D.Y. A
Chandrachud, J., one of which is common to the opinion of
Rohinton F. Nariman, J., needing specific mention. While
considering the evolution of constitutional jurisprudence on the
right to privacy he has referred to the judgment in Suresh Kumar
Koushal v. Naz Foundation [Suresh Kumar Koushal v. Naz
B
Foundation, (2014) 1 SCC 1 : (2013) 4 SCC (Cri) 1]. In the
challenge laid to Section 377 of the Penal Code before the Delhi
High Court, one of the grounds of challenge was that the said
provision amounted to an infringement of the right to dignity and
privacy. The Delhi High Court, inter alia, observed [Naz
Foundation v. Govt. (NCT of Delhi), 2009 SCC OnLine Del 1762 C
: 2010 Cri LJ 94] that the right to live with dignity and the right to
privacy both are recognised as dimensions of Article 21 of the
Constitution of India. The view of the High Court, however did
not find favour with the Supreme Court and it was observed that
only a miniscule fraction of the country’s population constitutes
D
lesbians, gays, bisexuals or transgenders and thus, there cannot
be any basis for declaring the section ultra vires of provisions of
Articles 14, 15 and 21 of the Constitution. The matter did not
rest at this, as the issue of privacy and dignity discussed by the
High Court was also observed upon. The sexual orientation even
within the four walls of the house thus became an aspect of E
debate. I am in agreement with the view of Dr D.Y.
Chandrachud, J., who in paras 144 to 146 of his judgment, states
that the right to privacy cannot be denied, even if there is a
miniscule fraction of the population which is affected. The
majoritarian concept does not apply to constitutional rights and
F
the courts are often called up on to take what may be categorised
as a non-majoritarian view, in the check and balance of power
envisaged under the Constitution of India. One’s sexual
orientation is undoubtedly an attribute of privacy. The observations
made in Mosley v. News Group Papers Ltd. [Mosley v. News
Group Papers Ltd., 2008 EWHC 1777 (QB)], in a broader concept G
may be usefully referred to:
“130. … It is not simply a matter of personal privacy versus
the public interest. The modern perception is that there is a
public interest in respecting personal privacy. It is thus a question
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570 SUPREME COURT REPORTS [2018] 7 S.C.R.

A of taking account of conflicting public interest considerations
and evaluating them according to increasingly well-recognised
criteria.
131. When the courts identify an infringement of a person’s
Article 8 rights, and in particular in the context of his freedom
B to conduct his sex life and personal relationships as he wishes,
it is right to afford a remedy and to vindicate that right. The
only permitted exception is where there is a countervailing
public interest which in the particular circumstances is strong
enough to outweigh it; that is to say, because one at least of
the established “limiting principles” comes into play. Was it
C necessary and proportionate for the intrusion to take place, for
example, in order to expose illegal activity or to prevent the
public from being significantly misled by public claims hitherto
made by the individual concerned (as with Naomi Campbell’s
public denials of drug-taking)? Or was it necessary because
D the information, in the words of the Strasbourg Court in Von
Hannover [Von Hannover v. Germany, (2004) 40 EHRR 1] at
pp. 60 and 76, would make a contribution to “a debate of general
interest”? That is, of course, a very high test, it is yet to be
determined how far that doctrine will be taken in the courts of
this jurisdiction in relation to photography in public places. If
E taken literally, it would mean a very significant change in what
is permitted. It would have a profound effect on the tabloid
and celebrity culture to which we have become accustomed in
recent years.”
62. Close upon the heels of these three judgments are three other
F important recent decisions. In Common Cause v. Union of India,
2018 5 SCC 1, a case dealing with euthanasia, Dipak Misra, C.J., states
as under:-
“166. The purpose of saying so is only to highlight that the law
must take cognizance of the changing society and march in
G consonance with the developing concepts. The need of the
present has to be served with the interpretative process of law.
However, it is to be seen how much strength and sanction can
be drawn from the Constitution to consummate the changing
ideology and convert it into a reality. The immediate needs are
H required to be addressed through the process of interpretation
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 571
[DIPAK MISRA, CJIJ.]]
[R. F. NARIMAN,

by the Court unless the same totally falls outside the constitutional A
framework or the constitutional interpretation fails to recognise
such dynamism. The Constitution Bench in Gian Kaur [Gian
Kaur v. State of Punjab, (1996) 2 SCC 648 : 1996 SCC (Cri)
374], as stated earlier, distinguishes attempt to suicide and
abetment of suicide from acceleration of the process of natural
B
death which has commenced. The authorities, we have noted
from other jurisdictions, have observed the distinctions between
the administration of lethal injection or certain medicines to cause
painless death and non-administration of certain treatment which
can prolong the life in cases where the process of dying that has
commenced is not reversible or withdrawal of the treatment that C
has been given to the patient because of the absolute absence of
possibility of saving the life. To explicate, the first part relates to
an overt act whereas the second one would come within the
sphere of informed consent and authorised omission. The omission
of such a nature will not invite any criminal liability if such action
D
is guided by certain safeguards. The concept is based on non-
prolongation of life where there is no cure for the state the patient
is in and he, under no circumstances, would have liked to have
such a degrading state. The words “no cure” have to be
understood to convey that the patient remains in the same state
of pain and suffering or the dying process is delayed by means E
of taking recourse to modern medical technology. It is a state
where the treating physicians and the family members know
fully well that the treatment is administered only to procrastinate
the continuum of breath of the individual and the patient is not
even aware that he is breathing. Life is measured by artificial
F
heartbeats and the patient has to go through this undignified state
which is imposed on him. The dignity of life is denied to him as
there is no other choice but to suffer an avoidable protracted
treatment thereby thus indubitably casting a cloud and creating a
dent in his right to live with dignity and face death with dignity,
which is a preserved concept of bodily autonomy and right to G
privacy. In such a stage, he has no old memories or any future
hopes but he is in a state of misery which nobody ever desires to
have. Some may also silently think that death, the inevitable factum
of life, cannot be invited. To meet such situations, the Court has
a duty to interpret Article 21 in a further dynamic manner and it
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572 SUPREME COURT REPORTS [2018] 7 S.C.R.

A has to be stated without any trace of doubt that the right to life
with dignity has to include the smoothening of the process of
dying when the person is in a vegetative state or is living
exclusively by the administration of artificial aid that prolongs
the life by arresting the dignified and inevitable process of dying.
Here, the issue of choice also comes in. Thus analysed, we are
B
disposed to think that such a right would come within the ambit
of Article 21 of the Constitution.
L. Right of self-determination and individual autonomy
167. Having dealt with the right to acceleration of the process
C of dying a natural death which is arrested with the aid of modern
innovative technology as a part of Article 21 of the Constitution,
it is necessary to address the issues of right of self-determination
and individual autonomy.
168. John Rawls says that the liberal concept of autonomy
D focuses on choice and likewise, self-determination is understood
as exercised through the process of choosing [Rawls, John,
Political Liberalism, 32, 33 (New York: Columbia University
Press, 1993)]. The respect for an individual human being and in
particular for his right to choose how he should live his own life
is individual autonomy or the right of self-determination. It is the
E right against non-interference by others, which gives a competent
person who has come of age the right to make decisions
concerning his or her own life and body without any control or
interference of others. Lord Hoffman, in Reeves v. Commr. of
Police of the Metropolis [Reeves v. Commr. of Police of the
F Metropolis, (2000) 1 AC 360 : (1993) 3 WLR 363 (HL)] has
stated: (AC p. 369 B)
“… Autonomy means that every individual is sovereign over
himself and cannot be denied the right to certain kinds of
behaviour, even if intended to cause his own death.”
G XXX
202.8. An inquiry into Common Law jurisdictions reveals that
all adults with capacity to consent have the right of self-
determination and autonomy. The said rights pave the way for
the right to refuse medical treatment which has acclaimed
H universal recognition. A competent person who has come of age
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 573
[DIPAK MISRA, CJI
[R. F. NARIMAN, J.]]

has the right to refuse specific treatment or all treatment or opt A
for an alternative treatment, even if such decision entails a risk
of death. The “Emergency Principle” or the “Principle of
Necessity” has to be given effect to only when it is not practicable
to obtain the patient’s consent for treatment and his/her life is in
danger. But where a patient has already made a valid Advance
B
Directive which is free from reasonable doubt and specifying
that he/she does not wish to be treated, then such directive has
to be given effect to.”
63. In the same case, Chandrachud J. went on to hold:
“437. Under our Constitution, the inherent value which sanctifies C
life is the dignity of existence. Recognising human dignity is
intrinsic to preserving the sanctity of life. Life is truly sanctified
when it is lived with dignity. There exists a close relationship
between dignity and the quality of life. For, it is only when life
can be lived with a true sense of quality that the dignity of human
existence is fully realised. Hence, there should be no antagonism D
between the sanctity of human life on the one hand and the
dignity and quality of life on the other hand. Quality of life ensures
dignity of living and dignity is but a process in realising the sanctity
of life.
438. Human dignity is an essential element of a meaningful E
existence. A life of dignity comprehends all stages of living
including the final stage which leads to the end of life. Liberty
and autonomy are essential attributes of a life of substance. It is
liberty which enables an individual to decide upon those matters
which are central to the pursuit of a meaningful existence. The F
expectation that the individual should not be deprived of his or
her dignity in the final stage of life gives expression to the central
expectation of a fading life: control over pain and suffering and
the ability to determine the treatment which the individual should
receive. When society assures to each individual a protection
against being subjected to degrading treatment in the process of G
dying, it seeks to assure basic human dignity. Dignity ensures
the sanctity of life. The recognition afforded to the autonomy of
the individual in matters relating to end-of-life decisions is
ultimately a step towards ensuring that life does not despair of
dignity as it ebbs away. H
574 SUPREME COURT REPORTS [2018] 7 S.C.R.

A XXX
441. The protective mantle of privacy covers certain decisions
that fundamentally affect the human life cycle. [Richard Delgado,
“Euthanasia Reconsidered—The Choice of Death as an Aspect
of the Right of Privacy”, Arizona Law Review (1975), Vol. 17,
B at p. 474.] It protects the most personal and intimate decisions
of individuals that affect their life and development. [Ibid.] Thus,
choices and decisions on matters such as procreation,
contraception and marriage have been held to be protected. While
death is an inevitable end in the trajectory of the cycle of human
life of individuals are often faced with choices and decisions
C relating to death. Decisions relating to death, like those relating
to birth, sex, and marriage, are protected by the Constitution by
virtue of the right of privacy. The right to privacy resides in the
right to liberty and in the respect of autonomy. [T.L. Beauchamp,
“The Right to Privacy and the Right to Die”, Social Philosophy
D and Policy (2000), Vol. 17, at p. 276.] The right to privacy protects
autonomy in making decisions related to the intimate domain of
death as well as bodily integrity. Few moments could be of as
much importance as the intimate and private decisions that we
are faced regarding death. [Ibid.] Continuing treatment against
the wishes of a patient is not only a violation of the principle of
E informed consent, but also of bodily privacy and bodily integrity
that have been recognised as a facet of privacy by this Court.”
64. Similarly, in Shafin Jahan v. Asokan K.M., 2018 SCC Online
343, this Court was concerned with the right of an adult citizen to make
her own marital choice. The learned Chief Justice referred to Articles
F 19 and 21 of the Constitution of India as follows:-
“28. Thus, the pivotal purpose of the said writ is to see that no
one is deprived of his/her liberty without sanction of law. It is the
primary duty of the State to see that the said right is not sullied in
any manner whatsoever and its sanctity is not affected by any
G kind of subterfuge. The role of the Court is to see that the detenue
is produced before it, find out about his/her independent choice
and see to it that the person is released from illegal restraint.
The issue will be a different one when the detention is not illegal.
What is seminal is to remember that the song of liberty is sung
H with sincerity and the choice of an individual is appositely
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[DIPAK MISRA, CJI
[R. F. NARIMAN, J.]]

respected and conferred its esteemed status as the Constitution A
guarantees. It is so as the expression of choice is a fundamental
right under Articles 19 and 21 of the Constitution, if the said
choice does not transgress any valid legal framework. Once that
aspect is clear, the enquiry and determination have to come to
an end.
B
XXX
54. It is obligatory to state here that expression of choice in
accord with law is acceptance of individual identity. Curtailment
of that expression and the ultimate action emanating therefrom
on the conceptual structuralism of obeisance to the societal will C
destroy the individualistic entity of a person. The social values
and morals have their space but they are not above the
constitutionally guaranteed freedom. The said freedom is both a
constitutional and a human right. Deprivation of that freedom
which is ingrained in choice on the plea of faith is impermissible.
Faith of a person is intrinsic to his/her meaningful existence. To D
have the freedom of faith is essential to his/her autonomy; and it
strengthens the core norms of the Constitution. Choosing a faith
is the substratum of individuality and sans it, the right of choice
becomes a shadow. It has to be remembered that the realization
of a right is more important than the conferment of the right. E
Such actualization indeed ostracises any kind of societal notoriety
and keeps at bay the patriarchal supremacy. It is so because the
individualistic faith and expression of choice are fundamental
for the fructification of the right. Thus, we would like to call it
indispensable preliminary condition.”
F
65. In another recent judgment of a three-Judge Bench, in Shakti
Vahini v. Union of India, 2018 SCC Online SC 275, which dealt with
honour killings, this Court held:-
“44. Honour killing guillotines individual liberty, freedom of choice
and one’s own perception of choice. It has to be sublimely borne G
in mind that when two adults consensually choose each other as
life partners, it is a manifestation of their choice which is
recognized under Articles 19 and 21 of the Constitution. Such a
right has the sanction of the constitutional law and once that is
recognized, the said right needs to be protected and it cannot
succumb to the conception of class honour or group thinking H
576 SUPREME COURT REPORTS [2018] 7 S.C.R.

A which is conceived of on some notion that remotely does not
have any legitimacy.
45. The concept of liberty has to be weighed and tested on the
touchstone of constitutional sensitivity, protection and the values
it stands for. It is the obligation of the Constitutional Courts as
B the sentinel on qui vive to zealously guard the right to liberty of
an individual as the dignified existence of an individual has an
inseparable association with liberty. Without sustenance of liberty,
subject to constitutionally valid provisions of law, the life of a
person is comparable to the living dead having to endure cruelty
and torture without protest and tolerate imposition of thoughts
C and ideas without a voice to dissent or record a disagreement.
The fundamental feature of dignified existence is to assert for
dignity that has the spark of divinity and the realization of choice
within the parameters of law without any kind of subjugation.
The purpose of laying stress on the concepts of individual dignity
D and choice within the framework of liberty is of paramount
importance. We may clearly and emphatically state that life and
liberty sans dignity and choice is a phenomenon that allows
hollowness to enter into the constitutional recognition of identity
of a person.
E 46. The choice of an individual is an inextricable part of dignity,
for dignity cannot be thought of where there is erosion of choice.
True it is, the same is bound by the principle of constitutional
limitation but in the absence of such limitation, none, we mean,
no one shall be permitted to interfere in the fructification of the
said choice. If the right to express one’s own choice is obstructed,
F it would be extremely difficult to think of dignity in its sanctified
completeness. When two adults marry out of their volition, they
choose their path; they consummate their relationship; they feel
that it is their goal and they have the right to do so. And it can
unequivocally be stated that they have the right and any
G infringement of the said right is a constitutional violation. The
majority in the name of class or elevated honour of clan cannot
call for their presence or force their appearance as if they are
the monarchs of some indescribable era who have the power,
authority and final say to impose any sentence and determine
the execution of the same in the way they desire possibly
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harbouring the notion that they are a law unto themselves or A
they are the ancestors of Caesar or, for that matter, Louis the
XIV. The Constitution and the laws of this country do not
countenance such an act and, in fact, the whole activity is illegal
and punishable as offence under the criminal law.”
Mental Healthcare Act, 2017 B
66. Parliament is also alive to privacy interests and the fact that
persons of the same-sex who cohabit with each other are entitled to
equal treatment.
67. A recent enactment, namely the Mental Healthcare Act, 2017,
throws a great deal of light on recent parliamentary legislative C
understanding and acceptance of constitutional values as reflected by
this Court’s judgments. Section 2(s) of the Act defines mental illness,
which reads as under:
“2(s) “mental illness” means a substantial disorder of thinking,
mood, perception, orientation or memory that grossly impairs D
judgment, behaviour, capacity to recognise reality or ability to
meet the ordinary demands of life, mental conditions associated
with the abuse of alcohol and drugs, but does not include mental
retardation which is a condition of arrested or incomplete
development of mind of a person, specially characterised by E
subnormality of intelligence;”
68. This definition throws to the winds all earlier misconceptions
of mental illness including the fact that same-sex couples who indulge in
anal sex are persons with mental illness. At one point of time, the thinking
in Victorian England and early on in America was that homosexuality F
was to be considered as a mental disorder. The amicus curiae brief of
the American Psychiatric Association in support of the petitioners in
Lawrence v. Texas (supra) has put paid to this notion. This brief set
out the research that has been done in this area as follows:
“D. The Recognition That Homosexuality Is Not A “Mental
G
Disorder”
The American mental health professions concluded more than a
quarter-century ago that homosexuality is not a mental disorder.
That conclusion was reached after decades of study of
homosexuality by independent researchers, as well as numerous
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578 SUPREME COURT REPORTS [2018] 7 S.C.R.

A attempts by practitioners in the mental-health professions to
effectuate a change in individuals’ sexual orientation. During the
first half of the 20th century, many mental health professionals
regarded homosexuality as a pathological condition, but that
perspective reflected untested assumptions supported largely by
clinical impressions of patients seeking therapy and individuals
B
whose conduct brought them into the criminal justice system.
See J.C. Gonsiorek, The Empirical Basis for the Demise of the
Illness Model of Homosexuality, in Homosexuality: Research
Implications for Public Policy 115 (J.C. Gonsiorek & J.D.
Weinrich eds., 1991). Those assumptions were not subjected to
C rigorous scientific scrutiny with nonclinical, nonincarcerated
samples until the latter half of the century. Once the notion that
homosexuality is linked to mental illness was empirically tested,
it proved to be based on untenable assumptions and value
judgments.
D In one of the first rigorous examinations of the mental health
status of homosexuality, Dr. Evelyn Hooker administered a
battery of standard psychological tests to homosexual and
heterosexual men who were matched for age, IQ, and education.
See Evelyn Hooker, The Adjustment of the Male Overt
Homosexual, 21 J. Projective Techniques 17-31 (1957). None
E of the men was in therapy at the time of the study. Based on the
ratings of expert judges who were kept unaware of the men’s
sexual orientation, Hooker determined that homosexual and
heterosexual men could not be distinguished from one another
on the basis of the psychological testing, and that a similar majority
F of the two groups appeared to be free of psychopathology. She
concluded from her data that homosexuality is not inherently
associated with psychopathology and that “homosexuality as a
clinical entity does not exist.” Id. at 18-19. Hooker’s findings
were followed over the next two decades by numerous studies,
using a variety of research techniques, which similarly concluded
G that homosexuality is not related to psychopathology or social
maladjustment.
In 1973, in recognition that scientific data do not indicate that a
homosexual orientation is inherently associated with

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psychopathology, amicus American Psychiatric Association’s A
Board of Trustees voted to remove homosexuality from the
Psychiatric Association’s Diagnostic and Statistical Manual of
Mental Disorders. That resolution stated that “homosexuality per
se implies no impairment in judgment, stability, reliability, or general
social or vocational capabilities.” Am. Psychiatric Ass’n, Position
B
Statement on Homosexuality and Civil Rights (Dec. 15, 1973),
printed in 131 Am. J. Psychiatry 497 (1974). That decision was
upheld by a vote of the Psychiatric Association’s membership
the following year. After a thorough review of the scientific
evidence, amicus American Psychological Association adopted
the same position in 1975, and urged all mental health professionals C
to help dispel the stigma of mental illness that had long been
associated with homosexual orientation. See Am. Psychol. Ass’n,
Minutes of the Annual Meeting of the Council of Representatives,
30 Am. Psychologist 620, 633 (1975). Amicus National
Association of Social Workers (NASW) has adopted a similar
D
policy. See NASW, Policy Statement on Lesbian and Gay Issues
(Aug. 1993) (approved by NASW Delegate Assembly), reprinted
in NASW, Social Work Speaks: NASW Policy Statements 162
(3d ed. 1994).
Of course, as is the case for heterosexuals, some homosexuals
have mental illnesses, psychological disturbances, or poor social E
adjustment. Gay men, lesbians, and bisexuals also may be at
somewhat greater risk for some kinds of psychological problems
because of stresses associated with the experiences of social
stigma and prejudice (see pp. 23-27, infra). But research
conducted over four decades has established that “homosexuality F
in and of itself bears no necessary relationship to psychological
adjustment.” The efforts to “cure” homosexuality that were
prevalent in earlier generations—which included hypnosis,
administration of hormones, aversive conditioning with electric
shock or nausea-inducing drugs, lobotomy, electroshock, and
castration—are now regarded by the mental-health professions G
as regrettable.”
69. It also outlined the prejudice, discrimination and violence that
has been encountered by gay people, as follows:

H
580 SUPREME COURT REPORTS [2018] 7 S.C.R.

A “A. Discrimination, Prejudice, And Violence Encountered By
Gay People
Lesbians and gay men in the United States encounter extensive
prejudice, discrimination, and violence because of their sexual
orientation. Intense prejudice against gay men and lesbians was
B widespread throughout much of the 20th century; public opinion
studies routinely showed that, among large segments of the public,
gay people were the target of strong antipathy. Although a shift
in public opinion concerning homosexuality occurred in the 1990s,
hostility toward gay men and lesbians remains common in
contemporary American society. Prejudice against bisexuals
C appears to exist at comparable levels. Discrimination against gay
people in employment and housing also appears to remain
widespread.
The severity of this anti-gay prejudice is reflected in the
consistently high rate of anti-gay harassment and violence in
D American society. Numerous surveys indicate that verbal
harassment and abuse are nearly universal experiences of gay
people. Although physical violence is less common, substantial
numbers of gay people report having experienced crimes against
their person or property because of their sexual orientation. In
E 2001, the most recent year for which FBI statistics are available,
there were 1,375 reported bias motivated incidents against gay
men, lesbians, and bisexuals. That figure likely represents only a
fraction of such crimes, because reporting of hate crimes by law
enforcement agencies is voluntary, the thoroughness of police
statistics differs widely among jurisdictions, and many victims
F do not report their experiences to police because they fear further
harassment or lack confidence that the assailants will be caught.
Although homosexuality is not a mental disorder, this societal
prejudice against gay men and lesbians can cause them real and
substantial psychological harm. Research indicates that
G experiencing rejection, discrimination, and violence is associated
with heightened psychological distress among gay men and
lesbians. These problems are exacerbated by the fact that,
because of anti-gay stigma, gay men and lesbians have less access
to social support and other resources that assist heterosexuals in
H coping with stress. Although many gay men and lesbians learn
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 581
[DIPAK MISRA, CJI
[R. F. NARIMAN, J.]]

to cope with the social stigma against homosexuality, efforts to A
avoid that social stigma through attempts to conceal or dissimulate
sexual orientation can be seriously damaging to the psychological
well-being of gay people. Lesbians and gay men have been found
to manifest better mental health to the extent that they feel
positively about their sexual orientation and have integrated it
B
into their lives through “coming out” and participating in the gay
community. Being able to disclose one’s sexual orientation to
others also increases the availability of social support, which is
crucial to mental health.”
70. Expressing its approval of the position taken by the American
Psychiatric Association, the Indian Psychiatric Society in its recent C
Position Statement on Homosexuality dated 02.07.2018 has stated:-
“In the opinion of the Indian Psychiatric Society (IPS)
homosexuality is not a psychiatric disorder.
This is in line with the position of American Psychiatric D
Association and The International Classification of Diseases of
the World health Organization which removed homosexuality from
the list of psychiatric disorders in 1973 and 1992 respectively.
The I.P.S recognizes same-sex sexuality as a normal variant of
human sexuality much like heterosexuality and bisexuality. There E
is no scientific evidence that sexual orientation can be altered by
any treatment and that any such attempts may in fact lead to
low self-esteem and stigmatization of the person.
The Indian Psychiatric Society further supports de-criminalization
of homosexual behavior.” F
71. The US Supreme Court, in its decision in Obergefell et al. v.
Hodges, Director, Ohio Department of Health, et al., 576 US
(2015), also took note of the enormous sufferings of homosexual persons
in the time gap between Bowers (supra) and Lawrence v. Texas
(supra), in the following words:-
G
“This is not the first time the Court has been asked to adopt a
cautious approach to recognizing and protecting fundamental
rights. In Bowers, a bare majority upheld a law criminalizing
same-sex intimacy. See 478 U.S., at 186, 190–195. That approach
might have been viewed as a cautious endorsement of the
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A democratic process, which had only just begun to consider the
rights of gays and lesbians. Yet, in effect, Bowers upheld state
action that denied gays and lesbians a fundamental right and
caused them pain and humiliation. As evidenced by the dissents
in that case, the facts and principles necessary to a correct holding
were known to the Bowers Court. See id., at 199 (Blackmun, J.,
B
joined by Brennan, Marshall, and Stevens, JJ., dissenting); id.,
at 214 (Stevens, J., joined by Brennan and Marshall, JJ.,
dissenting). That is why Lawrence held Bowers was “not correct
when it was decided.” 539 U.S., at 578. Although Bowers was
eventually repudiated in Lawrence, men and women were
C harmed in the interim, and the substantial effects of these injuries
no doubt lingered long after Bowers was overruled. Dignitary
wounds cannot always be healed with the stroke of a pen.”
72. The present definition of mental illness in the 2017
Parliamentary statute makes it clear that homosexuality is not considered
D to be a mental illness. This is a major advance in our law which has been
recognized by the Parliament itself. Further, this is buttressed by Section
3 of the Act which reads as follows:-
“3. Determination of Mental Illness. (1) Mental illness shall
be determined in accordance with such nationally or
E internationally accepted medical standards (including the latest
edition of the International Classification of Disease of the World
Health Organisation) as may be notified by the Central
Government.
(2) No person or authority shall classify a person as a person
F with mental illness, except for purposes directly relating to the
treatment of the mental illness or in other matters as covered
under this Act or any other law for the time being in force.
(3) Mental illness of a person shall not be determined on the
basis of––
G (a) political, economic or social status or membership of a
cultural, racial or religious group, or for any other reason not
directly relevant to mental health status of the person;
(b) non-conformity with moral, social, cultural, work or political
values or religious beliefs prevailing in a person’s community.
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[DIPAK MISRA, CJI
[R. F. NARIMAN, J.]]

(4) Past treatment or hospitalisation in a mental health A
establishment though relevant, shall not by itself justify any
present or future determination of the person’s mental illness.
(5) The determination of a person’s mental illness shall alone
not imply or be taken to mean that the person is of unsound
mind unless he has been declared as such by a competent B
court.”
73. Mental illness in our statute has to keep pace with international
notions and accepted medical standards including the latest edition of
the International Classification of Diseases of the World Health
Organization under Section 3(1) of the Act. Under Section 3(3), mental C
illness shall not be determined on the basis of social status or membership
of a cultural group or for any other reason not directly relevant to the
mental health of the person. More importantly, mental illness shall not be
determined on the basis of non-conformity with moral, social, cultural,
work or political values or religious beliefs prevailing in a person’s
community. It is thus clear that Parliament has unequivocally declared D
that the earlier stigma attached to same-sex couples, as persons who
are regarded as mentally ill, has gone for good. This is another very
important step forward taken by the legislature itself which has
undermined one of the basic underpinnings of the judgment in Suresh
Kumar Koushal (supra). E
Section 21(1)(a) is important and set out hereinbelow:
“21. Right to equality and non-discrimination. (1) Every
person with mental illness shall be treated as equal to persons
with physical illness in the provision of all healthcare which shall
include the following, namely:– F
(a) there shall be no discrimination on any basis including gender,
sex, sexual orientation, religion, culture, caste, social or political
beliefs, class or disability;”
74. This Section is parliamentary recognition of the fact that gay
G
persons together with other persons are liable to be affected with mental
illness, and shall be treated as equal to the other persons with such illness
as there is to be no discrimination on the basis of sexual orientation.
Section 30 is extremely important and reads as under:

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584 SUPREME COURT REPORTS [2018] 7 S.C.R.

A “30. Creating awareness about mental health and illness and
reducing stigma associated with mental illness.
The appropriate Government shall take all measures to ensure
that,—
(a) the provisions of this Act are given wide publicity through
B public media, including television, radio, print and online media at
regular intervals;
(b) the programmes to reduce stigma associated with mental
illness are planned, designed, funded and implemented in an
effective manner;
C
(c) the appropriate Government officials including police officers
and other officers of the appropriate Government are given
periodic sensitisation and awareness training on the issues under
this Act.”

D 75. Section 115 largely does away with one other outmoded Section
of the Indian Penal Code, namely, Section 309. This Section reads as
follows.
“115. Presumption of severe stress in case of attempt to
commit suicide. (1) Notwithstanding anything contained in
section 309 of the Indian Penal Code any person who attempts
E
to commit suicide shall be presumed, unless proved otherwise,
to have severe stress and shall not be tried and punished under
the said Code.
(2) The appropriate Government shall have a duty to provide
care, treatment and rehabilitation to a person, having severe stress
F
and who attempted to commit suicide, to reduce the risk of
recurrence of attempt to commit suicide.”
76. Instead of the inhumane Section 309 which has remained on
the statute book for over 150 years, Section 115 makes it clear that
Section 309 is rendered largely ineffective, and on the contrary, instead
G of committing a criminal offence, any person who attempts to commit
suicide shall be presumed to have severe stress and shall not be tried
and punished under Section 309 of the Indian Penal Code. More
importantly, the Government has an affirmative duty to provide care,
treatment and rehabilitation to such a person to reduce the risk of
H recurrence of that person’s attempt to commit suicide. This parliamentary
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 585
[DIPAK MISRA, CJIJ.]]
[R. F. NARIMAN,

declaration under Section 115 again is in keeping with the present A
constitutional values, making it clear that humane measures are to be
taken by the Government in respect of a person who attempts to commit
suicide instead of prosecuting him for the offence of attempt to commit
suicide.
77. And finally, Section 120 of the Act reads as under:- B
“120. Act to have overriding effect. The provisions of this Act
shall have overriding effect notwithstanding anything inconsistent
therewith contained in any other law for the time being in force
or in any instrument having effect by virtue of any law other
than this Act.” C
78. The Latin maxim cessant ratione legis, cessat ipsa lex,
meaning when the reason for a law ceases, the law itself ceases, is a
rule of law which has been recognized by this Court in H.H. Shri
Swamiji of Shri Amar Mutt v. Commissioner, Hindu Religious
and Charitable Endowments Dept, 1979 4 SCC 642 at paragraph 29, D
and State of Punjab v. Devans Modern Breweries Ltd., (2004) 11
SCC 26 at paragraph 335. It must not be forgotten that Section 377 was
the product of the Victorian era, with its attendant puritanical moral values.
Victorian morality must give way to constitutional morality as has been
recognized in many of our judgments. Constitutional morality is the soul
of the Constitution, which is to be found in the Preamble of the E
Constitution, which declares its ideals and aspirations, and is also to be
found in Part III of the Constitution, particularly with respect to those
provisions which assure the dignity of the individual. The rationale for
Section 377, namely Victorian morality, has long gone and there is no
reason to continue with - as Justice Holmes said in the lines quoted F
above in this judgment - a law merely for the sake of continuing with the
law when the rationale of such law has long since disappeared.
79. Given our judgment in Puttaswamy (supra), in particular, the
right of every citizen of India to live with dignity and the right to privacy
including the right to make intimate choices regarding the manner in G
which such individual wishes to live being protected by Articles 14, 19
and 21, it is clear that Section 377, insofar as it applies to same-sex
consenting adults, demeans them by having them prosecuted instead of
understanding their sexual orientation and attempting to correct centuries
of the stigma associated with such persons.
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A 80. The Union of India, seeing the writing on the wall, has filed an
affidavit in which it has not opposed the Petitioners but left the matter to
be considered by the wisdom of this Court. Some of the intervenors
have argued in favour of the retention of Section 377 qua consenting
adults on the grounds that homosexual acts are not by themselves
proscribed by Section 377. Unless there is penetration in the manner
B
pointed out by the explanation to the Section, no offence takes place.
They have also added that the Section needs to be retained given the
fact that it is only a parliamentary reflection of the prevailing social mores
of today in large segments of society. According to them, this furthers a
compelling state interest to reinforce morals in public life which is not
C disproportionate in nature. We are afraid that, given the march of events
in constitutional law by this Court, and parliamentary recognition of the
plight of such persons in certain provisions of the Mental Healthcare
Act, 2017, it will not be open for a constitutional court to substitute societal
morality with constitutional morality, as has been stated by us hereinabove.
Further, as stated in S. Khushboo v. Kanniammal and Anr., (2010) 5
D
SCC 600, at paragraphs 46 and 50, this Court made it clear that notions
of social morality are inherently subjective and the criminal law cannot
be used as a means to unduly interfere with the domain of personal
autonomy. Morality and criminality are not co-extensive - sin is not
punishable on earth by Courts set up by the State but elsewhere; crime
E alone is punishable on earth. To confuse the one with the other is what
causes the death knell of Section 377, insofar as it applies to consenting
homosexual adults.
81. Another argument raised on behalf of the intervenors is that
change in society, if any, can be reflected by amending laws by the
F elected representatives of the people. Thus, it would be open to the
Parliament to carve out an exception from Section 377, but this Court
should not indulge in taking upon itself the guardianship of changing societal
mores. Such an argument must be emphatically rejected. The very purpose
of the fundamental rights chapter in the Constitution of India is to withdraw
the subject of liberty and dignity of the individual and place such subject
G beyond the reach of majoritarian governments so that constitutional
morality can be applied by this Court to give effect to the rights, among
others, of ‘discrete and insular’ minorities.6 One such minority has
6
This phrase occurs in one of the most celebrated footnotes in the US Supreme Court’s
constitutional history – namely, Footnote 4 of United States v. Carolene Products
H Co., 304 U.S. 144 (1938).
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 587
[DIPAK
[R. F. NARIMAN,
MISRA, CJI
J.]]

knocked on the doors of this Court as this Court is the custodian of the A
fundamental rights of citizens. These fundamental rights do not depend
upon the outcome of elections. And, it is not left to majoritarian
governments to prescribe what shall be orthodox in matters concerning
social morality. The fundamental rights chapter is like the north star in
the universe of constitutionalism in India.7 Constitutional morality always
B
trumps any imposition of a particular view of social morality by shifting
and different majoritarian regimes.
82. Insofar as Article 14 is concerned, this Court in Shayara Bano
v. Union of India, (2017) 9 SCC 1, has stated, in paragraph 101, that a
statutory provision can be struck down on the ground of manifest
arbitrariness, when the provision is capricious, irrational and/or without C
adequate determining principle, as also if it is excessive or disproportionate.
We find that Section 377, in penalizing consensual gay sex, is manifestly
arbitrary. Given modern psychiatric studies and legislation which
recognizes that gay persons and transgenders are not persons suffering
from mental disorder and cannot therefore be penalized, the Section D
must be held to be a provision which is capricious and irrational. Also,
roping in such persons with sentences going upto life imprisonment is
clearly excessive and disproportionate, as a result of which, when applied
to such persons, Articles 14 and 21 of the Constitution would clearly be
violated. The object sought to be achieved by the provision, namely to
enforce Victorian mores upon the citizenry of India, would be out of E
tune with the march of constitutional events that has since taken place,
rendering the said object itself discriminatory when it seeks to single out
same-sex couples and transgenders for punishment.
83. As has been stated in the judgment of Nariman, J. in Shreya
Singhal v. Union of India, (2015) 5 SCC 1, the chilling effect caused F
by such a provision would also violate a privacy right under Article
19(1)(a), which can by no stretch of imagination be said to be a reasonable
restriction in the interest of decency or morality (See paragraphs 87 to
94).
G
7
In William Shakespeare’s Julius Caesar (Act III, Scene 1), Caesar tells Cassius-
“I could be well moved, if I were as you;
If I could pray to move, prayers would move me:
But I am constant as the Northern Star,
Of whose true-fixed and resting quality
There is no fellow in the firmament.”
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588 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 84. We may hasten to add, that the Yogyakarta Principles on
the Application of International Human Rights Law in relation to
Sexual Orientation and Gender Identity discussed below, which were
also referred to by Radhakrishnan, J. in NALSA (supra), conform to
our constitutional view of the fundamental rights of the citizens of India
and persons who come to this Court.
B
85. The International Commission of Jurists and the International
Service for Human Rights, on behalf of a coalition of human rights
organisations, had undertaken a project to develop a set of international
legal principles on the application of international law to human rights
violations based on sexual orientation and gender identity to bring greater
C clarity and coherence to States’ human rights obligations.
86. A distinguished group of human rights experts drafted,
developed, discussed and refined these Principles. Following an experts’
meeting held at Gadjah Mada University in Yogyakarta, Indonesia from
6th to 9th November, 2006, 29 distinguished experts from 25 countries
D with diverse backgrounds and expertise relevant to issues of human
rights law unanimously adopted the Yogyakarta Principles on the
Application of International Human Rights Law in relation to Sexual
Orientation and Gender Identity.
87. A few relevant extracts from the Yogyakarta Principles and
E its Preamble are as follows:-
“Preamble
WE, THE INTERNATIONAL PANEL OF EXPERTS IN INTERNATIONAL HUMAN
RIGHTS LAW AND ON SEXUAL ORIENTATION AND GENDER IDENTITY,
XX
F
XX
UNDERSTANDING ‘sexual orientation’ to refer to each person’s
capacity for profound emotional, affectional and sexual attraction
to, and intimate and sexual relations with, individuals of a different
gender or the same gender or more than one gender;
G
XX
XX
FOLLOWING AN EXPERTS’ MEETING HELD IN YOGYAKARTA, INDONESIA
FROM 6 TO 9 NOVEMBER 2006, HEREBY ADOPT THESE PRINCIPLES:

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NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 589
[DIPAK
[R. F. NARIMAN,
MISRA, CJI
J.]]

1. The right to the universal enjoyment of human rights.— A
All human beings are born free and equal in dignity and rights.
Human beings of all sexual orientations and gender identities are
entitled to the full enjoyment of all human rights.
States shall:
(a) embody the principles of the universality, interrelatedness, B
interdependence and indivisibility of all human rights in their
national constitutions or other appropriate legislation and ensure
the practical realisation of the universal enjoyment of all human
rights;
(b) amend any legislation, including criminal law, to ensure its C
consistency with the universal enjoyment of all human rights;
(c) undertake programmes of education and awareness to
promote and enhance the full enjoyment of all human rights by
all persons, irrespective of sexual orientation or gender identity;
D
(d) integrate within State policy and decision making a pluralistic
approach that recognises and affirms the interrelatedness and
indivisibility of all aspects of human identity including sexual
orientation and gender identity.
2. The rights to equality and non-discrimination.—Everyone
E
is entitled to enjoy all human rights without discrimination on the
basis of sexual orientation or gender identity. Everyone is entitled
to equality before the law and the equal protection of the law
without any such discrimination whether or not the enjoyment of
another human right is also affected. The law shall prohibit any
such discrimination and guarantee to all persons equal and F
effective protection against any such discrimination.
Discrimination on the basis of sexual orientation or gender identity
includes any distinction, exclusion, restriction or preference based
on sexual orientation or gender identity which has the purpose or
effect of nullifying or impairing equality before the law or the G
equal protection of the law, or the recognition, enjoyment or
exercise, on an equal basis, of all human rights and fundamental
freedoms. Discrimination based on sexual orientation or gender
identity may be, and commonly is, compounded by discrimination
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590 SUPREME COURT REPORTS [2018] 7 S.C.R.

A on other grounds including gender, race, age, religion, disability,
health and economic status.
States shall:
(a) embody the principles of equality and non-discrimination on
the basis of sexual orientation and gender identity in their national
B constitutions or other appropriate legislation, if not yet incorporated
therein, including by means of amendment and interpretation,
and ensure the effective realisation of these principles;
(b) repeal criminal and other legal provisions that prohibit or are,
in effect, employed to prohibit consensual sexual activity among
C people of the same-sex who are over the age of consent, and
ensure that an equal age of consent applies to both same-sex
and different-sex sexual activity;
(c) adopt appropriate legislative and other measures to prohibit
and eliminate discrimination in the public and private spheres on
D the basis of sexual orientation and gender identity;
(d) take appropriate measures to secure adequate advancement
of persons of diverse sexual orientations and gender identities as
may be necessary to ensure such groups or individuals equal
enjoyment or exercise of human rights. Such measures shall not
E be deemed to be discriminatory;
(e) in all their responses to discrimination on the basis of sexual
orientation or gender identity, take account of the manner in which
such discrimination may intersect with other forms of
discrimination;
F
(f) take all appropriate action, including programmes of education
and training, with a view to achieving the elimination of prejudicial
or discriminatory attitudes or behaviours which are related to
the idea of the inferiority or the superiority of any sexual orientation
or gender identity or gender expression.
G 3. The right to recognition before the law.—Everyone has the
right to recognition everywhere as a person before the law.
Persons of diverse sexual orientations and gender identities shall
enjoy legal capacity in all aspects of life. Each person’s self-
defined sexual orientation and gender identity is integral to their
H personality and is one of the most basic aspects of self-
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 591
[DIPAK MISRA, CJI
[R. F. NARIMAN, J.]]

determination, dignity and freedom. No one shall be forced to A
undergo medical procedures, including sex reassignment surgery,
sterilisation or hormonal therapy, as a requirement for legal
recognition of their gender identity. No status, such as marriage
or parenthood, may be invoked as such to prevent the legal
recognition of a person’s gender identity. No one shall be
B
subjected to pressure to conceal, suppress or deny their sexual
orientation or gender identity.
States shall:
(a) ensure that all persons are accorded legal capacity in civil
matters, without discrimination on the basis of sexual orientation C
or gender identity, and the opportunity to exercise that capacity,
including equal rights to conclude contracts, and to administer,
own, acquire (including through inheritance), manage, enjoy and
dispose of property;
(b) take all necessary legislative, administrative and other D
measures to fully respect and legally recognise each person’s
self-defined gender identity;
(c) take all necessary legislative, administrative and other
measures to ensure that procedures exist whereby all State-issued
identity papers which indicate a person’s gender/sex—including E
birth certificates, passports, electoral records and other
documents—reflect the person’s profound self-defined gender
identity;
(d) ensure that such procedures are efficient, fair and non-
discriminatory, and respect the dignity and privacy of the person F
concerned;
(e) ensure that changes to identity documents will be recognised
in all contexts where the identification or disaggregation of persons
by gender is required by law or policy;
(f) undertake targeted programmes to provide social support for G
all persons experiencing gender transitioning or reassignment.
XXX
4. The right to life.—Everyone has the right to life. No one
shall be arbitrarily deprived of life, including by reference to
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592 SUPREME COURT REPORTS [2018] 7 S.C.R.

A considerations of sexual orientation or gender identity. The death
penalty shall not be imposed on any person on the basis of
consensual sexual activity among persons who are over the age
of consent or on the basis of sexual orientation or gender identity.
States shall:
B (a) repeal all forms of crime that have the purpose or effect of
prohibiting consensual sexual activity among persons of the same-
sex who are over the age of consent and, until such provisions
are repealed, never impose the death penalty on any person
convicted under them;
C (b) remit sentences of death and release all those currently
awaiting execution for crimes relating to consensual sexual activity
among persons who are over the age of consent;
(c) cease any State-sponsored or State-condoned attacks on the
lives of persons based on sexual orientation or gender identity,
D and ensure that all such attacks, whether by government officials
or by any individual or group, are vigorously investigated, and
that, where appropriate evidence is found, those responsible are
prosecuted, tried and duly punished.
XXX
E
6. The right to privacy.—Everyone, regardless of sexual
orientation or gender identity, is entitled to the enjoyment of privacy
without arbitrary or unlawful interference, including with regard
to their family, home or correspondence as well as to protection
from unlawful attacks on their honour and reputation. The right
F to privacy ordinarily includes the choice to disclose or not to
disclose information relating to one’s sexual orientation or gender
identity, as well as decisions and choices regarding both one’s
own body and consensual sexual and other relations with others.
States shall:
G (a) take all necessary legislative, administrative and other
measures to ensure the right of each person, regardless of sexual
orientation or gender identity, to enjoy the private sphere, intimate
decisions, and human relations, including consensual sexual
activity among persons who are over the age of consent, without
H arbitrary interference;
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 593
[DIPAK MISRA, CJI
[R. F. NARIMAN, J.]]

(b) repeal all laws that criminalise consensual sexual activity A
among persons of the same-sex who are over the age of consent,
and ensure that an equal age of consent applies to both same-
sex and different-sex sexual activity;
(c) ensure that criminal and other legal provisions of general
application are not applied de facto to criminalise consensual B
sexual activity among persons of the same-sex who are over the
age of consent;
(d) repeal any law that prohibits or criminalises the expression
of gender identity, including through dress, speech or mannerisms,
or that denies to individuals the opportunity to change their bodies C
as a means of expressing their gender identity;
(e) release all those held on remand or on the basis of a criminal
conviction, if their detention is related to consensual sexual activity
among persons who are over the age of consent, or is related to
gender identity; D
(f) ensure the right of all persons ordinarily to choose when, to
whom and how to disclose information pertaining to their sexual
orientation or gender identity, and protect all persons from
arbitrary or unwanted disclosure, or threat of disclosure of such
information by others. E
XXX
18. Protection from medical abuses.—No person may be forced
to undergo any form of medical or psychological treatment,
procedure, testing, or be confined to a medical facility, based on
sexual orientation or gender identity. Notwithstanding any F
classifications to the contrary, a person’s sexual orientation and
gender identity are not, in and of themselves, medical conditions
and are not to be treated, cured or suppressed.
States shall:
(a) take all necessary legislative, administrative and other G
measures to ensure full protection against harmful medical
practices based on sexual orientation or gender identity, including
on the basis of stereotypes, whether derived from culture or
otherwise, regarding conduct, physical appearance or perceived
gender norms; H
594 SUPREME COURT REPORTS [2018] 7 S.C.R.

A (b) take all necessary legislative, administrative and other
measures to ensure that no child’s body is irreversibly altered by
medical procedures in an attempt to impose a gender identity
without the full, free and informed consent of the child in
accordance with the age and maturity of the child and guided by
the principle that in all actions concerning children, the best interests
B
of the child shall be a primary consideration;
(c) establish child protection mechanisms whereby no child is at
risk of, or subjected to, medical abuse;
(d) ensure protection of persons of diverse sexual orientations
C and gender identities against unethical or involuntary medical
procedures or research, including in relation to vaccines, treatments
or microbicides for HIV/AIDS or other diseases;
(e) review and amend any health funding provisions or
programmes, including those of a development-assistance nature,
D which may promote, facilitate or in any other way render possible
such abuses;
(f) ensure that any medical or psychological treatment or
counselling does not, explicitly or implicitly, treat sexual orientation
and gender identity as medical conditions to be treated, cured or
E suppressed.
19. The right to freedom of opinion and expression.—
Everyone has the right to freedom of opinion and expression,
regardless of sexual orientation or gender identity. This includes
the expression of identity or personhood through speech,
F deportment, dress, bodily characteristics, choice of name, or any
other means, as well as the freedom to seek, receive and impart
information and ideas of all kinds, including with regard to human
rights, sexual orientation and gender identity, through any medium
and regardless of frontiers.
States shall:
G
(a) take all necessary legislative, administrative and other
measures to ensure full enjoyment of freedom of opinion and
expression, while respecting the rights and freedoms of others,
without discrimination on the basis of sexual orientation or gender
identity, including the receipt and imparting of information and
H
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 595
[DIPAK MISRA, CJI
[R. F. NARIMAN, J.]]

ideas concerning sexual orientation and gender identity, as well A
as related advocacy for legal rights, publication of materials,
broadcasting, organisation of or participation in conferences, and
dissemination of and access to safer-sex information;
(b) ensure that the outputs and the organisation of media that is
State-regulated is pluralistic and non-discriminatory in respect B
of issues of sexual orientation and gender identity and that the
personnel recruitment and promotion policies of such
organisations are non-discriminatory on the basis of sexual
orientation or gender identity;
(c) take all necessary legislative, administrative and other C
measures to ensure the full enjoyment of the right to express
identity or personhood, including through speech, deportment,
dress, bodily characteristics, choice of name or any other means;
(d) ensure that notions of public order, public morality, public
health and public security are not employed to restrict, in a D
discriminatory manner, any exercise of freedom of opinion and
expression that affirms diverse sexual orientations or gender
identities;
(e) ensure that the exercise of freedom of opinion and expression
does not violate the rights and freedoms of persons of diverse E
sexual orientations and gender identities;
(f) ensure that all persons, regardless of sexual orientation or
gender identity, enjoy equal access to information and ideas, as
well as to participation in public debate.”
(Emphasis supplied) F
88. These principles give further content to the fundamental rights
contained in Articles 14, 15, 19 and 21, and viewed in the light of these
principles also, Section 377 will have to be declared to be unconstitutional.
89. Given the aforesaid, it has now to be decided as to whether
the judgment in Suresh Kumar Koushal (supra) is correct. Suresh G
Kumar Koushal’s judgment (supra) first begins with the presumption
of constitutionality attaching to pre-constitutional laws, such as the Indian
Penal Code. The judgment goes on to state that pre-constitutional laws,
which have been adopted by Parliament and used with or without
amendment, being manifestations of the will of the people of India through H
596 SUPREME COURT REPORTS [2018] 7 S.C.R.

A Parliament, are presumed to be constitutional. We are afraid that we
cannot agree.
90. Article 372 of the Constitution of India continues laws in force
in the territory of India immediately before the commencement of the
Constitution. That the Indian Penal Code is a law in force in the territory
B of India immediately before the commencement of this Constitution is
beyond cavil. Under Article 372(2), the President may, by order, make
such adaptations and modifications of an existing law as may be necessary
or expedient to bring such law in accord with the provisions of the
Constitution. The fact that the President has not made any adaptation or
modification as mentioned in Article 372(2) does not take the matter
C very much further. The presumption of constitutionality of a statute is
premised on the fact that Parliament understands the needs of the people,
and that, as per the separation of powers doctrine, Parliament is aware
of its limitations in enacting laws – it can only enact laws which do not
fall within List II of Schedule VII of the Constitution of India, and cannot
D transgress the fundamental rights of the citizens and other constitutional
provisions in doing so. Parliament is therefore deemed to be aware of
the aforesaid constitutional limitations. Where, however, a pre-constitution
law is made by either a foreign legislature or body, none of these
parameters obtain. It is therefore clear that no such presumption attaches
to a pre-constitutional statute like the Indian Penal Code. In fact, in the
E majority judgment of B.P. Jeevan Reddy, J. in New Delhi Municipal
Council v. State of Punjab and Ors., (1997) 7 SCC 339, the Punjab
Municipal Act of 1911 was deemed to be a post-constitutional law
inasmuch as it was extended to Delhi only in 1950, as a result of which
the presumption of constitutionality was raised. Ahmadi, C.J.’s dissenting
F opinion correctly states that if a pre-constitutional law is challenged, the
presumption of constitutional validity would not obtain. The relevant
paragraph is extracted below:-
“119. Reddy, J. has taken the view that the Doctrine of
Presumption of Constitutionality of Legislations requires the
G saving of the taxes which these Acts impose upon the commercial
activities of State Governments. The Act is a pre-constitutional
enactment. The basis of this doctrine is the assumed intention of
the legislators not to transgress constitutional boundaries. It is
difficult to appreciate how that intention can be assumed when,
at the time that the law was passed, there was no such barrier
H
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 597
[DIPAK
[R. F. NARIMAN,
MISRA, CJI
J.]]

and the limitation was brought in by a Constitution long after the A
enactment of the law. (This Court has in a Constitution Bench
decision, Gulabbhai Vallabbhai Desai v. Union of India [AIR
1967 SC 1110 : (1967) 1 SCR 602] , (AIR at p. 1117 raised
doubts along similar lines). The Framers obviously wanted the
law under Article 289(2) to be of a very high standard. Can
B
these laws, which are silent on the most important aspect required
by Article 289(2), i.e., the specification of the trading activities
of State Governments which would be liable to Union taxation,
be said to meet with that standard?”
91. It is a little difficult to subscribe to the view of the Division
Bench that the presumption of constitutionality of Section 377 would C
therefore attach.
92. The fact that the legislature has chosen not to amend the law,
despite the 172nd Law Commission Report specifically recommending
deletion of Section 377, may indicate that Parliament has not thought it
proper to delete the aforesaid provision, is one more reason for not D
invalidating Section 377, according to Suresh Kumar Koushal (supra).
This is a little difficult to appreciate when the Union of India admittedly
did not challenge the Delhi High Court judgment striking down the
provision in part. Secondly, the fact that Parliament may or may not
have chosen to follow a Law Commission Report does not guide the E
Court’s understanding of its character, scope, ambit and import as has
been stated in Suresh Kumar Koushal (supra). It is a neutral fact
which need not be taken into account at all. All that the Court has to see
is whether constitutional provisions have been transgressed and if so, as
a natural corollary, the death knell of the challenged provision must follow.
F
93. It is a little difficult to appreciate the Court stating that the
ambit of Section 377 IPC is only determined with reference to the sexual
act itself and the circumstances in which it is executed. It is also a little
difficult to appreciate that Section 377 regulates sexual conduct regardless
of gender identity and orientation.
G
94. After 2013, when Section 375 was amended so as to include
anal and certain other kinds of sexual intercourse between a man and a
woman, which would not be criminalized as rape if it was between
consenting adults, it is clear that if Section 377 continues to penalize
such sexual intercourse, an anomalous position would result. A man
H
598 SUPREME COURT REPORTS [2018] 7 S.C.R.

A indulging in such sexual intercourse would not be liable to be prosecuted
for rape but would be liable to be prosecuted under Section 377. Further,
a woman who could, at no point of time, have been prosecuted for rape
would, despite her consent, be prosecuted for indulging in anal or such
other sexual intercourse with a man in private under Section 377. This
would render Section 377, as applied to such consenting adults, as
B
manifestly arbitrary as it would be wholly excessive and disproportionate
to prosecute such persons under Section 377 when the legislature has
amended one portion of the law in 2013, making it clear that consensual
sex, as described in the amended provision, between two consenting
adults, one a man and one a woman, would not be liable for prosecution.
C If, by having regard to what has been said above, Section 377 has to be
read down as not applying to anal and such other sex by a male-female
couple, then the Section will continue to apply only to homosexual sex. If
this be the case, the Section will offend Article 14 as it will discriminate
between heterosexual and homosexual adults which is a distinction which
has no rational relation to the object sought to be achieved by the Section -
D
namely, the criminalization of all carnal sex between homosexual and/or
heterosexual adults as being against the order of nature.8 Viewed either
way, the Section falls foul of Article 14.
95. The fact that only a minuscule fraction of the country’s
population constitutes lesbians and gays or transgenders, and that in the
E last 150 years less than 200 persons have been prosecuted for committing
the offence under Section 377, is neither here nor there. When it is
found that privacy interests come in and the State has no compelling
reason to continue an existing law which penalizes same-sex couples
who cause no harm to others, on an application of the recent judgments
F delivered by this Court after Suresh Kumar Koushal (supra), it is
clear that Articles 14, 15, 19 and 21 have all been transgressed without
any legitimate state rationale to uphold such provision.
96. For all these reasons therefore, we are of the view that, Suresh
Kumar Koushal (supra) needs to be, and is hereby, overruled.
G
8
An argument was made by the Petitioners that Section 377, being vague and
unintelligible, should be struck down on this ground as it is not clear as to what is meant
by “against the order of nature”. Since Section 377 applies down the line to carnal sex
between human beings and animals as well, which is not the subject matter of challenge
here, it is unnecessary to go into this ground as the Petitioners have succeeded on other
grounds raised by them.
H
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 599
[DIPAK MISRA, CJI ]

97. We may conclude by stating that persons who are homosexual A
have a fundamental right to live with dignity, which, in the larger
framework of the Preamble of India, will assure the cardinal constitutional
value of fraternity that has been discussed in some of our judgments
(See (1) Nandini Sundar v. State of Chhattisgarh, (2011) 7 SCC 547
at paragraphs 16, 25 and 52; and (2) Subramaniam Swamy v. Union of
B
India (2016) 7 SCC 221 at paragraphs 153 to 156). We further declare
that such groups are entitled to the protection of equal laws, and are
entitled to be treated in society as human beings without any stigma
being attached to any of them. We further declare that Section 377
insofar as it criminalises homosexual sex and transgender sex between
consenting adults is unconstitutional. C
98. We are also of the view that the Union of India shall take all
measures to ensure that this judgment is given wide publicity through the
public media, which includes television, radio, print and online media at
regular intervals, and initiate programs to reduce and finally eliminate
the stigma associated with such persons. Above all, all government D
officials, including and in particular police officials, and other officers of
the Union of India and the States, be given periodic sensitization and
awareness training of the plight of such persons in the light of the
observations contained in this judgment.
E
DR. D. Y. CHANDRACHUD, J.
Index to the judgment
A From denial to freedom
B “To the wisdom of the Court” F
C From “The Ashes of the Gay”
C.I “Arc of the moral universe”
D An equal love
E Beyond physicality: sex, identity and stereotypes
E.I Facial neutrality: through the looking glass G
E.2 Deconstructing the polarities of binary genders
F Confronting the closet
F.I Sexual privacy and autonomy- deconstructing the
heteronormative framework
H
600 SUPREME COURT REPORTS [2018] 7 S.C.R.

A F.2 A right to intimacy- celebration of sexual agency
G Section 377 and the right to health
G.I Section 377 and HIV prevention efforts
G.2 Mental health
H Judicial review
B
I India’s commitments at International Law
J Transcending borders - comparative law
K Crime, morality and the Constitution
L Constitutional morality
C M In summation : transformative constitutionalism

A From denial to freedom
“What makes life meaningful is love. The right that makes us
human is the right to love. To criminalize the expression of that
D
right is profoundly cruel and inhumane. To acquiesce in such
criminalization, or worse, to recriminalize it, is to display the very
opposite of compassion. To show exaggerated deference to a
majoritarian Parliament when the matter is one of fundamental
rights is to display judicial pusillanimity, for there is no doubt, that
E in the constitutional scheme, it is the judiciary that is the ultimate
interpreter.”1
1. The lethargy of the law is manifest yet again.
2. A hundred and fifty eight years ago, a colonial legislature made
it criminal, even for consenting adults of the same gender, to find
F fulfillment in love. The law deprived them of the simple right as human
beings to live, love and partner as nature made them. The human instinct
to love was caged by constraining the physical manifestation of their
sexuality. Gays and lesbians2 were made subordinate to the authority of
a coercive state. A charter of morality made their relationships hateful.
G
1
Justice Leila Seth, “A mother and a judge speaks out on Section 377”, The Times
of India, 26 January, 2014.
2
These terms as well as terms such as “LGBT” and “LGBTIQ” used in the judgement
are to be construed in an inclusive sense to include members of all gender and sexual
minorities, whose sexual activity is criminalized by the application of Section 377
H of the Indian Penal Code, 1860.
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 601
[DR.[DIPAK MISRA, CJI ] J.]
D. Y. CHANDRACHUD,

The criminal law became a willing instrument of repression. To engage A
in ‘carnal intercourse’ against ‘the order of nature’ risked being tucked
away for ten years in a jail. The offence would be investigated by
searching the most intimate of spaces to find tell-tale signs of intercourse.
Civilisation has been brutal.
3. Eighty seven years after the law was made, India gained her B
liberation from a colonial past. But Macaulay’s legacy - the offence
under Section 377 of the Penal Code - has continued to exist for nearly
sixty eight years after we gave ourselves a liberal Constitution. Gays
and lesbians, transgenders and bisexuals continue to be denied a truly
equal citizenship seven decades after Independence. The law has imposed
upon them a morality which is an anachronism. Their entitlement should C
be as equal participants in a society governed by the morality of the
Constitution. That in essence is what Section 377 denies to them. The
shadows of a receding past confront their quest for fulfillment.
4. Section 377 exacts conformity backed by the fear of penal
reprisal. There is an unbridgeable divide between the moral values on D
which it is based and the values of the Constitution. What separates
them is liberty and dignity. We must, as a society, ask searching questions
to the forms and symbols of injustice. Unless we do that, we risk becoming
the cause and not just the inheritors of an unjust society. Does the
Constitution allow a quiver of fear to become the quilt around the bodies E
of her citizens, in the intimacies which define their identities? If there is
only one answer to this question, as I believe there is, the tragedy and
anguish which Section 377 inflicts must be remedied.
5. The Constitution brought about a transfer of political power.
But it reflects above all, a vision of a society governed by justice. Individual F
liberty is its soul. The constitutional vision of justice accommodates
differences of culture, ideology and orientation. The stability of its
foundation lies in its effort to protect diversity in all its facets: in the
beliefs, ideas and ways of living of her citizens. Democratic as it is, our
Constitution does not demand conformity. Nor does it contemplate the
mainstreaming of culture. It nurtures dissent as the safety valve for G
societal conflict. Our ability to recognise others who are different is a
sign of our own evolution. We miss the symbols of a compassionate and
humane society only at our peril.
Section 377 provides for rule by the law instead of the rule of law. The
rule of law requires a just law which facilitates equality, liberty and dignity H
602 SUPREME COURT REPORTS [2018] 7 S.C.R.

A in all its facets. Rule by the law provides legitimacy to arbitrary state
behaviour.
6. Section 377 has consigned a group of citizens to the margins.
It has been destructive of their identities. By imposing the sanctions of
the law on consenting adults involved in a sexual relationship, it has lent
B the authority of the state to perpetuate social stereotypes and encourage
discrimination. Gays, lesbians, bisexuals and transgenders have been
relegated to the anguish of closeted identities. Sexual orientation has
become a target for exploitation, if not blackmail, in a networked and
digital age. The impact of Section 377 has travelled far beyond the
punishment of an offence. It has been destructive of an identity which is
C crucial to a dignified existence.
7. It is difficult to right the wrongs of history. But we can certainly
set the course for the future. That we can do by saying, as I propose to
say in this case, that lesbians, gays, bisexuals and transgenders have a
constitutional right to equal citizenship in all its manifestations. Sexual
D orientation is recognised and protected by the Constitution. Section 377
of the Penal Code is unconstitutional in so far as it penalises a consensual
relationship between adults of the same gender. The constitutional values
of liberty and dignity can accept nothing less.
B “To the wisdom of the Court”
E
Union Government before the Court
8. After the hearing commenced, the Additional Solicitor General
tendered an affidavit. The Union government states that it leaves a
decision on the validity of Section 377 ‘to the wisdom of this Court’.
F Implicit in this is that the government has no view of its own on the
subject and rests content to abide by the decision of this Court. During
the parleys in Court, the ASG however submitted that the court should
confine itself to the reference by ruling upon the correctness of Suresh
Kumar Koushal v. Naz Foundation3 (“Koushal”).
9. We would have appreciated a categorical statement of position
G
by the government, setting out its views on the validity of Section 377
and on the correctness of Koushal. The ambivalence of the government
does not obviate the necessity for a judgment on the issues raised. The
challenge to the constitutional validity of Section 377 must squarely be
3
H (2014) 1 SCC 1
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 603
[DR.[DIPAK MISRA, CJI ] J.]
D. Y. CHANDRACHUD,

addressed in this proceeding. That is plainly the duty of the Court. A
Constitutional issues are not decided on concession. The statement of
the Union government does not concede to the contention of the
petitioners that the statutory provision is invalid. Even if a concession
were to be made, that would not conclude the matter for this Court. All
that the stand of the government indicates is that it is to the ‘wisdom’ of
B
this Court that the matter is left. In reflecting upon this appeal to our
wisdom, it is just as well that we as judges remind ourselves of a truth
which can unwittingly be forgotten: flattery is a graveyard for the gullible.
10. Bereft of a submission on behalf of the Union government on
a matter of constitutional principle these proceedings must be dealt with
in the only manner known to the constitutional court: through an C
adjudication which fulfills constitutional values and principles.
11. The ASG made a fair submission when he urged that the court
should deal with the matter in reference. The submission, to its credit,
would have the court follow a path of prudence. Prudence requires,
after all, that the Court should address itself to the controversy in the D
reference without pursuing an uncharted course beyond it. While
accepting the wisdom of the approach suggested by the ASG, it is
nonetheless necessary to make some prefatory observations on the scope
of the reference.
12. The correctness of the decision in Koushal is in question. E
Koushal [as indeed the decision of the Delhi High Court in Naz
Foundation v. Government of NCT of Delhi4 (“Naz”)]dealt with the
validity of Section 377 which criminalizes even a consensual relationship
between adults of the same gender who engage in sexual conduct
(‘carnal intercourse against the order of nature’). In dealing with the F
validity of the provision, it is necessary to understand the nature of the
constitutional right which LGBT individuals claim. According to them,
the right to be in a relationship with a consenting adult of the same
gender emanates from the right to life, as a protected value under the
Constitution. They ground their right on the basis of an identity resting in
their sexual orientation. According to them, their liberty and dignity require G
both an acknowledgement as well as a protection under the law, of their
sexual orientation. Representing their identity, based on sexual orientation,
to the world at large and asserting it in their relationship with the
community and the state is stated to be intrinsic to the free exercise of
4
(2010) Cri LJ 94 H
604 SUPREME COURT REPORTS [2018] 7 S.C.R.

A speech and expression guaranteed by the Constitution. Sexual orientation
is claimed to be intrinsic to the guarantee against discrimination on the
ground of sex. The statutory provision, it has been asserted, also violates
the fundamental guarantee against arbitrariness because it unequally
targets gay men whose sexual expression falls in the area prohibited by
Section 377.
B
13. In answering the dispute in regard to the validity of Section
377, the court must of necessity understand and explain in a constitutional
perspective, the nature of the right which is claimed. The challenge to
Section 377 has to be understood from the perspective of a rights
discourse. While doing so, it becomes necessary to understand the
C constitutional source from which the claim emerges. When a right is
claimed to be constitutionally protected, it is but necessary for the court
to analyze the basis of that assertion. Hence, in answering the reference,
it is crucial for the court to place the entitlement of the LGBT population
in a constitutional framework. We have approached the matter thus far
D from the perspective of constitutional analysis. But there is a more simple
line of reasoning as well, grounded as we believe, in common-sense.
Sexual acts between consenting adults of the same gender constitute
one facet – albeit an important aspect – of the right asserted by gay men
to lead fulfilling lives. Gay and lesbian relationships are sustained and
nurtured in every aspect which makes for a meaningful life. In
E understanding the true nature of those relationships and the protection
which the Constitution affords to them, it is necessary to adopt a
perspective which leads to their acceptance as equal members of a
humane and compassionate society. Forming a holistic perspective
requires the court to dwell on, but not confine itself, to sexuality. Sexual
F orientation creates an identity on which there is a constitutional claim to
the entitlement of a dignified life. It is from that broad perspective that
the constitutional right needs to be adjudicated.
C From “The Ashes of the Gay”
“Democracy
G It’s coming through a hole in the air,
…
It’s coming from the feel
that this ain’t exactly real,
H or it’s real, but it ain’t exactly there.
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 605
[DR.[DIPAK
D. Y. CHANDRACHUD,
MISRA, CJI ] J.]

From the wars against disorder, A
from the sirens night and day,
from the fires of the homeless,
from the ashes of the gay:
Democracy is coming…”5
B
14. Section 377 of the Indian Penal Code, 1860 (“IPC”) has made
‘carnal intercourse against the order of nature’ an offence. This provision,
understood as prohibiting non-peno vaginal intercourse, reflects the
imposition of a particular set of morals by a colonial power at a particular
point in history. A supposedly alien law,6 Section 377 has managed to
survive for over 158 years, impervious to both the anticolonial struggle C
as well as the formation of a democratic India, which guarantees
fundamental rights to all its citizens. An inquiry into the colonial origins
of Section 377 and its postulations about sexuality is useful in assessing
the relevance of the provision in contemporary times.7
15. Lord Thomas Babington Macaulay, Chairman of the First Law D
Commission of India and principal architect of the IPC, cited two main
sources from which he drew in drafting the Code: the French
(Napoleonic) Penal Code, 1810 and Edward Livingston’s Louisiana Code.8
Lord Macaulay also drew inspiration from the English common law and
the British Royal Commission’s 1843 Draft Code.9 Tracing that origin,
E
English jurist Fitzjames Stephen observes:

5
Lyrics from Leonard Cohen’s song “Democracy” (1992).
6
See Same-Sex Love in India: A Literary History (Ruth Vanita and Saleem Kidwai,
eds.), Penguin India (2008) for writings spanning over more than 2,000 years of Indian
literature which demonstrate that same-sex love has flourished, evolved and been F
embraced in various forms since ancient times.
7
Law like Love: Queer Perspectives on Law (Arvind Narrain and Alok Gupta, eds.),
Yoda Press (2011).
8
K. N. Chandrasekharan Pillai and Shabistan Aquil, “Historical Introduction to the
Indian Penal Code”, in Essays on the Indian Penal Code, New Delhi, Indian Law
Institute (2005); Siyuan Chen, “Codification, Macaulay and the Indian Penal Code
G
[Book Review], Singapore Journal of Legal Studies, National University of Singapore,
Faculty of Law (2011), at pages 581-584.
9
Douglas E. Sanders, “377 and the Unnatural Afterlife of British Colonialism in Asia”,
Asian Journal of Comparative Law, Vol. 4 (2009), at page 11 (“Douglas”); David Skuy,
“Macaulay and the Indian Penal Code of 1862: The Myth of the Inherent Superiority
and Modernity of the English Legal System Compared to India’s Legal System in the
Nineteenth Century”, Modern Asian Studies, Vol. 32 (1998), at pages 513-557. H
606 SUPREME COURT REPORTS [2018] 7 S.C.R.

A “The Indian Penal Code may be described as the criminal law of
England freed from all technicalities and superfluities,
systematically arranged and modified in some few particulars (they
are surprisingly few) to suit the circumstances of British India.” 10
In order to understand the colonial origins of Section 377, it is necessary
B to go further back to modern English law’s conception of anal and oral
intercourse, which was firmly rooted in Judeo-Christian morality and
condemned non-procreative sex.11 Though Jesus himself does not
reference homosexuality or homosexual sex,12 the “Holiness Code”13
found in Leviticus provides thus:
C “You shall not lie with a male as with a woman. It is an abomination.
[18:22]
If a man also lie with mankind, as he lieth with a woman, both of
them have committed an abomination: they shall surely be put to
death; their blood shall be upon them. [19:13]
D If a man lies with a male as with a woman, both of them have
committed an abomination; they shall be put to death, their blood
is upon them. [20:13]”
Another Judeo-Christian religious interpretation refers to “sodomy”, a
term used for anal intercourse that is derived from an interpretation of
Genesis 18:20 of the Old Testament,14 known as the story of Sodom and
E
Gomorrah. Briefly, when two angels took refuge in the home of Lot, the
men of the town of Sodom surrounded the house and demanded that the
angels be sent out so that the men may “know” them (in this interpretation,
with sexual connotations). When Lot offered them his two virgin daughters
instead, the men of Sodom responded by threatening Lot. The angels
F then blinded the “Sodomites.”15 The use of the term “sodomites” to
describe those who engaged in anal intercourse emerged in the 13th
Century, and the term “sodomy” was used as a euphemism for a number
of sexual ‘sins’ two centuries earlier.16
10
Barry Wright, “Macaulay’s Indian Penal Code: Historical Context and Originating
Principles”, Carleton University (2011).
G 11
Michael Kirby, “The Sodomy Offence: England’s Least Lovely Law Export?” Journal
of Commonwealth Criminal Law, Inaugural Issue (2011).
12
Douglas, supra note 9, at page 4.
13
Ibid at page 2.
14
Douglas, supra note 9, at page 4.
15
Jessica Cecil, “The Destruction of Sodom and Gomorrah”, British Broadcasting
Company, 11 February 2017.
16
Douglas, supra note 9, at page 4; KSN Murthy’s Criminal Law: Indian Penal Code (KVS
H Sarma ed), Lexis Nexis (2016).
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 607
[DR.[DIPAK
D. Y. CHANDRACHUD,
MISRA, CJI ] J.]

16. The preservation of the Judeo-Christian condemnation of A
homosexuality is also attributed to the Jewish theologian, Philo of
Alexandria, who is regarded as the father of the Church Fathers and
who reviled homosexuals and called for their execution. 17 The
condemnation of homosexuality can also be traced to Roman law.
Emperor Justinian’s Code of 529, for instance, stated that persons who
B
engaged in homosexual sex were to be executed.18 From Rome, the
condemnation of homosexuality spread across Europe, where it
manifested itself in ecclesiastical law. 19 During the Protestant
Reformation, these laws shifted from the ecclesiastical to the criminal
domain, beginning with Germany in 1532.20
While ecclesiastical laws against homosexual intercourse were well C
established in England by the 1500s,21 England’s first criminal (non-
ecclesiastical) law was the Buggery Act of 1533, which condemned
“the detestable and abominable vice of buggeri committed with mankind
or beest.”22 “Buggery” is derived from the old French word for heretic,
“bougre”, and was taken to mean anal intercourse.23 D
17. The Buggery Act, 1533, which was enacted by Henry VIII,
made the offence of buggery punishable by death, and continued to exist
for nearly 300 years before it was repealed and replaced by the Offences
against the Person Act, 1828. Buggery, however, remained a capital
offence in England until 1861, one year after the enactment of the IPC. E
The language of Section 377 has antecedents in the definition of buggery
found in Sir Edward Coke’s late 17th Century compilation of English
law:24
“...Committed by carnal knowledge against the ordinance of the
Creator, and order of nature, by mankind with mankind, or with F
brute beast, or by womankind with brute beast.”25
17
Philo, translated by F.H. Colson and G.H. Whitaker, 10 Volumes, (Cambridge:
Harvard University Press, 1929-1962).
18
David F. Greenberg and Marcia H. Bystryn, “Christian Intolerance of
Homosexuality”, American Journal of Sociology, Vol. 88 (1982), at pages 515-548.
19
Douglas, supra note 9, at pages 5 and 8. G
20
Ibid at page 5.
21
Ibid at page 2.
22
The Buggery Act, 1533.
23
Douglas, supra note 9, at page 2.
24
Ibid at 7.
25
Human Rights Watch. This Alien Legacy: The Origins of “Sodomy” Laws in British
Colonialism (2008). H
608 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 18. The Criminal Law Amendment Act, 1885 made “gross
indecency” a crime in the United Kingdom, and was used to prosecute
homosexuals where sodomy could not be proven. In 1895, Oscar Wilde
was arrested under the Act for ‘committing acts of gross indecency
with male persons’.26 During Wilde’s trial, the Prosecutor, referring to
homosexual love, asked him, “What is ‘the love that dare not speak its
B
name’?” Wilde responded:
“The love that dare not speak its name” in this century is such a
great affection of an elder for a younger man as there was
between David and Jonathan, such as Plato made the very basis
of his philosophy, and such as you find in the sonnets of
C Michelangelo and Shakespeare. It is that deep spiritual affection
that is as pure as it is perfect. It dictates and pervades great
works of art, like those of Shakespeare and Michelangelo, and
those two letters of mine, such as they are. It is in this century
misunderstood, so much misunderstood that it may be described
D as “the love that dare not speak its name,” and on that account
of it I am placed where I am now. It is beautiful, it is fine, it is the
noblest form of affection. There is nothing unnatural about it. It
is intellectual, and it repeatedly exists between an older and a
younger man, when the older man has intellect, and the younger
man has all the joy, hope and glamour of life before him. That it
E should be so, the world does not understand. The world mocks
at it, and sometimes puts one in the pillory for it.”27
Wilde was held guilty and was sentenced to two years’ hard labour and
subsequently incarcerated.
Following World War II, arrests and prosecutions of homosexuals
F
increased. Alan Turing, the renowned mathematician and cryptographer
who was responsible for breaking the Nazi Enigma code during World
War II, was convicted of ‘gross indecency’ in 1952. In order to avoid a
prison sentence, Turing was forced to agree to chemical castration. He
was injected with synthetic female hormones. Less than two years after
G he began the hormone treatment, Turing committed suicide. The
Amendment Act (also known as the Labouchere Amendment) remained
in English law until 1967. Turing was posthumously pardoned in 2013,
and in 2017, the UK introduced the Policing and Crime Bill, also called
26
Douglas, supra note 9, at page 15.
27
H. Montgomery Hyde, John O’Connor, and Merlin Holland, The Trials of Oscar
H Wilde (2014), at page 201.
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 609
[DR. [DIPAK
D. Y. CHANDRACHUD,
MISRA, CJI ] J.]

the “Turing Law,” posthumously pardoning 50,000 homosexual men and A
providing pardons for the living.
In the wake of several court cases in which homosexuality had been
featured, the British Parliament in 1954 set up the Wolfenden Committee,
headed by John Wolfenden, to “consider…the law and practice relating
to homosexual offenses and the treatment of persons convicted of such B
offenses by the courts”, as well as the laws relevant to prostitution and
solicitation. The Wolfenden Report of 1957, which was supported by the
Church of England,28 proposed that there ‘must remain a realm of private
morality and immorality which is, in brief and crude terms, not the law’s
business’ and recommended that homosexual acts between two
consenting adults should no longer be a criminal offence.29 C

19. The success of the report led England and Wales to enact
The Sexual Offences Act, 1967,which decriminalized private homosexual
sex between two men over the age of twenty-one. Britain continued to
introduce and amend laws governing same-sex intercourse to make them
more equal, including the lowering of the age of consent for gay/bisexual D
men to sixteen in 2001.30 In May 2007, in a statement to the UN Human
Rights Council, the UK, which imposed criminal prohibitions against same-
sex intercourse in its former colonies across the world, committed itself
to the cause of worldwide decriminalization of homosexuality. 31 Today,
India continues to enforce a law imposed by an erstwhile colonial E
government, a law that has been long done away with by the same
government in its own jurisdiction.
C.I “Arc of the moral universe”
20. Lord Macaulay was greatly influenced by English philosopher
and jurist Jeremy Bentham, who coined the term codification and argued F
for replacing existing laws with clear, concise, and understandable
provisions that could be universally applied across the Empire.32 Ironically,
in a 1785 essay, Bentham himself wrote one of the earliest known
defences of homosexuality in the English language, arguing against the
criminalization of homosexuality. However, this essay was only discovered G
200 years after his death.33
28
Ibid at 25.
29
Report of the Departmental Committee on Homosexual Offences and Prostitution
(1957) (“Wolfenden Report”).
30
Sexual Offences (Amendment) Act 2000, Parliament of the United Kingdom.
31
Douglas, supra note 9, at page 29.
32

33
Douglas, supra note 9, at page 9. H
Ibid.
610 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 21. The Law Commission’s 1837 draft of the Penal Code (prepared
by Lord Macaulay) contained two sections (Clauses 361 and 362), which
are considered the immediate precursors to Section 377:
“OF UNNATURAL OFFENCES
361. Whoever, intending to gratify unnatural lust, touches, for
B that purpose, any person, or any animal, or is by his own consent
touched by any person, for the purpose of gratifying unnatural
lust, shall be punished with imprisonment of either description
for a term which may extend to fourteen years and must not be
less than two years, and shall also be liable to fine.
C 362. Whoever, intending to gratify unnatural lust, touches for
that purpose any person without that person’s free and intelligent
consent, shall be punished with imprisonment of either description
for a term which may extend to life and must not be less than
seven years, and shall also be liable to fine.”
D Both the draft clauses are vague in their description of the acts they
seek to criminalize. Lord Macaulay also omitted an explanation to the
Clauses. In a note presented with the 1837 draft, Lord Macaulay
elaborated:
“Clauses 361 and 362 relate to an odious class of offences
E respecting which it is desirable that as little as possible be
said. We leave without comment to the judgment of his Lordship
in Council the two Clauses which we have provided for these
offences. We are unwilling to insert, either in the text, or
in the notes, anything which could give rise to public
F discussion on this revolting subject; as we are decidedly
of opinion that the injury which would be done to the morals
of the community by such discussion would far more than
compensate for any benefits which might be derived from
legislative measures framed with the greatest precision.” 34
(Emphasis supplied)
G
So abominable did Macaulay consider these offences that he banished
the thought of providing a rationale for their being made culpable. The
prospect of a public discussion was revolting.

34
Enze Han, Joseph O’Mahoney, “British Colonialism and the Criminalization of
H Homosexuality: Queens, Crime and Empire”, Routledge (2018).
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 611
[DR. [DIPAK MISRA, CJI ] J.]
D. Y. CHANDRACHUD,

After twenty-five years of revision, the IPC entered into force on 1 A
January 1862, two years after Lord Macaulay’s death. The IPC was
the first codified criminal code in the British Empire. Section 377 of the
revised code read as follows:
“Of Unnatural Offences
377. Unnatural Offences.- Whoever voluntarily has carnal B
intercourse against the order of nature with any man, woman or
animal, shall be punished with [imprisonment for life]35, or with
imprisonment of either description for a term which may extend
to ten years, and shall also be liable to fine.
Explanation.- Penetration is sufficient to constitute the carnal C
intercourse necessary to the offence described in this section.”
22. The Explanation is unique in that it requires proof of
penetration – something that British Law did not. The two clauses in the
Draft Code fell somewhere in between, requiring proof of “touch”.36
D
By the time India gained independence in 1947, Britain had introduced
Penal Codes similar to the IPC in other former colonies, including Zanzibar
(Tanzania) in 1867, Singapore, Malaysia, and Brunei in 1871, Ceylon
(Sri Lanka) in 1885, Burma (Myanmar) in 1886, 37 East Africa
Protectorate (Kenya) in 1897, Sudan in 1889, Uganda in 1902, and
Tanganyika (Tanzania) in 1920.38 Under Article 372(1) of the Indian E
Constitution, which provides that all laws in force prior to the
commencement of the Constitution shall continue to be in force until
altered or repealed, the IPC and many other pre-Independence laws
were “saved” and allowed to operate in Independent India.
23. While Section 377 has been used to prosecute non-consensual F
sexual acts, it has also been used to prosecute consensual sexual acts.
In (Meharban) Nowshirwan Irani v. Emperor39, for instance, a police
officer observed Nowshirwan, a young shopkeeper, engaged in
homosexual acts with a young man, Ratansi, through a keyhole in
35
Changed from “transportation for life” by Act 26 of 1955.
G
36
Douglas, supra note 9, at page 16.
37
Nang Yin Kham, “An Introduction to the Law and Judicial System of Myanmar”,
Centre for Asia Legal Studies Faculty of Law, National University of Singapore,
Working Paper 14/02, (2014).
38
Supra note 34.
39
AIR 1934 Sind. 206. H
612 SUPREME COURT REPORTS [2018] 7 S.C.R.

A Nowshirwan’s house. The Prosecution argued that the acts were non-
consensual, but could not prove coercion.40The High Court of Sindh
ultimately set aside the conviction based on insufficient evidence.
Nevertheless, what should have been an intimate act between two
consenting parties in their bedroom became a public scandal and the
subject of judicial scrutiny.41
B
In D P Minwalla v. Emperor42, Minawalla and Tajmahomed,
were seen having anal intercourse in a lorry and were arrested, charged,
and found guilty under Section 377. Tajmahomed was sentenced to four
months rigorous imprisonment, and Minawalla, who was charged with
abetment, was sentenced to a fine of Rs 100 and imprisonment until the
C rising of the Bench. Minawalla appealed the decision on the grounds
that he was not a consenting partner, and submitted himself to a medical
exam. The judge was unconvinced, however, and Minawalla’s original
sentence was upheld. The Court, convinced that the acts were
consensual, found the men guilty under Section 377.43
D In Ratan Mia v. State of Assam44, the Court convicted two men
(one aged fifteen and a half, the other twenty) under Section 377 and
treated them as equally culpable, as he was unable to cast one of them
as the perpetrator and the other as the victim or abettor. Both men were
originally sentenced to imprisonment for six months and a fine of Rs
E 100. After Nur had spent six years in prison and appealed three times,45
both men’s sentences were reduced to seven days rigorous imprisonment,
in view of the fact that they were first time offenders under the age of
twenty-one.46

F 40
Arvind Narrain, “‘That Despicable Specimen of Humanity’: Policing of
Homosexuality in India”, in Challenging the Rule(s) of Law: Colonialism,
Criminology and Human Rights in India (Kalpana Kannabiran and Ranbir Singh
eds.), Sage (2008).
41
Arvind Narrain, “A New Language of Morality: From the Trial of Nowshirwan to
the Judgement in Naz Foundation”, The Indian Journal of Constitutional Law, Vol.
4 (2010).
G 42
AIR 1935 Sind. 78.
43
Supra note 40.
44
(1988) Cr.L.J. 980.
45
Suparna Bhaskaran, “The Politics of Penetration: Section 377 of the Indian Penal
Code” in Queering India: Same-Sex Love and Eroticism in Indian Culture and Society
(Ruth Vanita ed.), Routledge (2002).
46
H Ibid.
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 613
[DR. [DIPAK MISRA, CJI ] J.]
D. Y. CHANDRACHUD,

Even though the government is not proactively enforcing a law that A
governs private activities, the psychological impact for homosexuals who
are, for all practical purposes, felons in waiting, is damaging in its own right:
“...The true impact of Section 377 on queer lives is felt outside
the courtroom and must not be measured in terms of legal cases.
Numerous studies, including both documented and anecdotal B
evidence, tell us that Section 377 is the basis for routine and
continuous violence against sexual minorities by the police, the
medical establishment, and the state. There are innumerable
stories that can be cited – from the everyday violence faced by
hijras [a distinct transgender category] and kothis [effeminate
males] on the streets of Indian cities to the refusal of the National C
Human Rights Commission to hear the case of a young man
who had been given electro-shock therapy for nearly two years.
A recent report by the People’s Union for Civil Liberties
(Karnataka), showed that Section 377 was used by the police to
justify practices such as illegal detention, sexual abuse and D
harassment, extortion and outing of queer people to their
families.”47
Before the end of the 19th century, gay rights movements were few and
far between. Indeed, when Alfred Douglas, Oscar Wilde’s lover, wrote
in his 1890s poem entitled “Two Loves” of “the love that dare not speak
E
its name”, he was alluding to society’s moral disapprobation of
homosexuality.48 The 20th century, however, saw the LGBTIQ community
emerge from the shadows worldwide, poised to agitate and demand
equal civil rights. LGBTIQ movements focused on issues of
intersectionality, the interplay of oppressions arising from being both queer
and lower class, coloured, disabled, and so on. Despite the movement F
making numerous strides forward in the fight for equal rights, incidents
of homosexual arrests were nevertheless extant at the turn of the 21 st
century.
In many cases of unfulfilled civil rights, there is a tendency to operate
under the philosophy articulated by Dr. Martin Luther King, that “the G
arc of the moral universe is long, but it bends towards justice.” It is likely
47
Douglas, supra note 9, at page 21; “Introduction” to Because I Have a Voice: Queer
Politics in India, (Gautam Bhan and Arvind Narrain eds), Yoda Press (2005) at
pages 7, 8.
48
Melba Cuddy-Keane, Adam Hammond and Alexandra Peat, “Q” in Modernism:
Keywords, Wiley-Blackwell (2014). H
614 SUPREME COURT REPORTS [2018] 7 S.C.R.

A that those who subscribe to this philosophy believe that homosexuals
should practice the virtue of patience, and wait for society to understand
and accept their way of life. What those who purport this philosophy fail
to recognize is that Dr King himself argued against the doctrine of “wait”:
“For years now I have heard the word “wait.” It rings in the ear
B of every Negro with a piercing familiarity. This “wait” has almost
always meant “never.” It has been a tranquilizing thalidomide,
relieving the emotional stress for a moment, only to give birth to
an ill-formed infant of frustration. We must come to see with the
distinguished jurist of yesterday that “justice too long delayed is
justice denied.” We have waited for more than three hundred
C and forty years for our God-given and constitutional rights . . .
when you are harried by day and haunted by night by the fact
that you are a Negro, living constantly at tiptoe stance, never
knowing what to expect next, and plagued with inner fears and
outer resentments; when you are forever fighting a degenerating
D sense of “nobodyness” — then you will understand why we find
it difficult to wait. There comes a time when the cup of endurance
runs over and men are no longer willing to be plunged into an
abyss of injustice where they experience the bleakness of
corroding despair. I hope, sirs, you can understand our legitimate
and unavoidable impatience.” (Letter from a Birmingham Jail)49
E 24. Indian citizens belonging to sexual minorities have waited.
They have waited and watched as their fellow citizens were freed from
the British yoke while their fundamental freedoms remained restrained
under an antiquated and anachronistic colonial-era law – forcing them
to live in hiding, in fear, and as second-class citizens. In seeking an
F adjudication of the validity of Section 377, these citizens urge that the
acts which the provision makes culpable should be decriminalised. But
this case involves much more than merely decriminalising certain conduct
which has been proscribed by a colonial law. The case is about an
aspiration to realise constitutional rights. It is about a right which every
human being has, to live with dignity. It is about enabling these citizens to
G realise the worth of equal citizenship. Above all, our decision will speak
to the transformative power of the Constitution. For it is in the
transformation of society that the Constitution seeks to assure the values
of a just, humane and compassionate existence to all her citizens.
49
Martin Luther King Jr., “Letter from a Birmingham Jail” (1963).
H
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 615
[DR.[DIPAK MISRA, CJI ] J.]
D. Y. CHANDRACHUD,

D An equal love A
“Through Love’s Great Power
Through love’s great power to be made whole
In mind and body, heart and soul –
Through freedom to find joy, or be
By dint of joy itself set free B
In love and in companionhood:
This is the true and natural good.
To undo justice, and to seek
To quash the rights that guard the weak -
To sneer at love, and wrench apart
The bonds of body, mind and heart C
With specious reason and no rhyme:
This is the true unnatural crime.”50
Article 14 is our fundamental charter of equality:
“The State shall not deny to any person equality before the
law or the equal protection of the laws within the territory D
of India.” (Emphasis supplied)
25. In Naz,the Delhi High Court held that Section 377 violates
Article 14 of the Constitution since the classification on which it is based
does not bear any nexus to the object which the provision seeks to
achieve.51 In Koushal, this Courtrejected the Naz formulation on the E
ground that “those who indulge in carnal intercourse in the ordinary course
and those who ... [do so] against the order of nature constitute different
classes.”52 Koushal held on that logic that Section 377 does not suffer
from arbitrariness or from an irrational classification.
26. A litany of our decisions – to refer to them individually would F
be a parade of the familiar – indicates that to be a reasonable classification
under Article 14 of the Constitution, two criteria must be met: (i) the
classification must be founded on an intelligible differentia; and (ii) the
differentia must have a rational nexus to the objective sought to be
achieved by the legislation.53 There must, in other words, be a causal G
connection between the basis of classification and the object of the statute.
50
Vikram Seth wrote this poem the morning after the Supreme Court refused to
review its decision in Koushal.
51
Naz Foundation, at para 91.
52
Koushal, at para 65.
53
State of West Bengal v. Anwar Ali Sarkar, AIR (1952) SC 75. H
616 SUPREME COURT REPORTS [2018] 7 S.C.R.

A If the object of the classification is illogical, unfair and unjust, the
classification will be unreasonable.54
27. Equating the content of equality with the reasonableness of a
classification on which a law is based advances the cause of legal
formalism. The problem with the classification test is that what constitutes
B a reasonable classification is reduced to a mere formula: the quest for
an intelligible differentia and the rational nexus to the object sought to be
achieved. In doing so, the test of classification risks elevating form over
substance. The danger inherent in legal formalism lies in its inability to
lay threadbare the values which guide the process of judging constitutional
rights. Legal formalism buries the life-giving forces of the Constitution
C under a mere mantra. What it ignores is that Article 14 contains a
powerful statement of values – of the substance of equality before the
law and the equal protection of laws. To reduce it to a formal exercise
of classification may miss the true value of equality as a safeguard against
arbitrariness in state action. As our constitutional jurisprudence has
D evolved towards recognizing the substantive content of liberty and
equality, the core of Article 14 has emerged out of the shadows of
classification. Article 14 has a substantive content on which, together
with liberty and dignity, the edifice of the Constitution is built. Simply
put, in that avatar, it reflects the quest for ensuring fair treatment of the
individual in every aspect of human endeavor and in every facet of human
E existence.
In E P Royappa v. State of Tamil Nadu55, the validity of state action
was made subject to the test of arbitrariness:
“Equality is a dynamic concept with many aspects and dimensions
F and it cannot be “cribbed cabined and confined” within traditional
and doctrinaire limits. From a positivistic point of view, equality
is antithetic to arbitrariness. In fact equality and arbitrariness
are sworn enemies; one belongs to the rule of law in a republic
while the other, to the whim and caprice of an absolute monarch.
Where an act is arbitrary it is implicit in it that it is unequal both
G according to political logic and constitutional law and is therefore
violative of Art.14…”

54
Deepak Sibal v. Punjab University, (1989) 2 SCC 145.
55
(1974) 4 SCC 3
H
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 617
[DR. [DIPAK
D. Y. CHANDRACHUD,
MISRA, CJI ] J.]

Four decades later, the test has been refined in Shayara Bano v. Union A
of India56:
“The expression ‘arbitrarily’ means: in an unreasonable manner,
as fixed or done capriciously or at pleasure, without adequate
determining principle, not founded in the nature of things, non-
rational, not done or acting according to reason or judgment, B
depending on the will alone.”
28. The wording of Section 377 does not precisely map on to a
distinction between homosexuals and heterosexuals but a precise
interpretation would mean that it penalizes some forms of sexual
expression among heterosexuals while necessarily criminalizing every C
form of sexual expression and intimacy between homosexuals.57 For
Section 377 to withstand the scrutiny of Article 14, it was necessary for
the Court in Koushal to establish the difference between ‘ordinary
intercourse’ and ‘intercourse against the order of nature’, the legitimate
objective being pursued and the rational nexus between the goal and the
classification. However, the Koushal approach has been criticised on D
the ground that while dealing with Article 14, it fell “short of the minimum
standards of judicial reasoning that may be expected from the Supreme
Court.”58 On a review of the prosecutions under Section 377, Koushal
conceded that “no uniform test [could] be culled out to classify acts as
‘carnal intercourse against the order of nature.”59 Yet Koushal upheld E
the classification of sexual acts in Section 377 without explaining the
difference between the classes, or the justification for treating the classes
differently.
This lack of reasoning and analysis by the Court has been critiqued in
scholarly research on the subject. The following extract sums up the F
criticism with telling effect:
“The Court says – without an iota of evidence – that there are
two classes of persons – those who engage in sexual intercourse
in the “ordinary course”, and those who don’t. What is ordinary
56
(2017) 9 SCC 1 G
57
Gautam Bhatia, “Equal moral membership: Naz Foundation and the refashioning of
equality under a transformative constitution”, Indian Law Review, Vol. 1 (2017),
at pages 115-144.
58
Shubhankar Dam, “Suresh Kumar Koushal and Another v. NAZ Foundation and
Others (Civil Appeal No. 10972 of 2013)” Public Law, International Survey Section
(2014).
59
Koushal, at para 60. H
618 SUPREME COURT REPORTS [2018] 7 S.C.R.

A course? Presumably, heterosexuality. Why is this ordinary course?
Perhaps because there are more heterosexuals than homosexuals
around, although the Court gives no evidence for that. Well, there
are also more black-haired people in India than brown-haired
people. Is sex with a brown-haired person against the order of
nature because it happens less often?... Where is the rational
B
nexus? What is the legitimate governmental objective? Even
if we accept that there is an intelligible differentia here, on what
basis do you criminalize – and thus deny equal protection
of laws – to one class of persons? The Court gives no answer.
Alternatively, “ordinary sex” is penal-vaginal, and every other
C kind of sex is “against the ordinary course of nature”. Again, no
evidence to back that claim up apart from the say-so of the
judge.”60
At the very outset, we must understand the problem with the usage of
the term ‘order of nature’. What is ‘natural’ and what is ‘unnatural’?
D And who decides the categorization into these two ostensibly distinct
and water-tight compartments? Do we allow the state to draw the
boundaries between permissible and impermissible intimacies between
consenting adults? Homosexuality has been documented in almost 1500
species, who “unfortunately are not blessed with rational capabilities
(and the propensity to ‘nurture’ same sex thoughts) as are found in
E mankind.”61 An interesting article in this regard notes that, “no species
has been found in which homosexual behaviour has not been shown to
exist, with the exception of species that never have sex at all, such as
sea urchins and aphis.”62
29. In an incisive article,63 Ambrosino discusses the shift from
F reproductive instinct to erotic desire and how crucial this shift is to
understanding modern notions of sexuality. He analyses how the lines
between homosexuality and heterosexuality are blurred, and perhaps
even an outdated myth or invention when we understand the fluidity of
sexual identities today:64
60
G Gautam Bhatia, “The Unbearable Wrongness of Koushal vs Naz Foundation”, Indian
Constitutional Law and Philosophy (2013).
61
Shamnad Basheer, Sroyon Mukherjee and Karthy Nair, “Section 377 and the ‘Order of
Nature’: Nurturing ‘Indeterminacy’ in the Law”, NUJS Law Review, Vol, 2 (2009).
62
Bruce Bagemihl, Biological Exuberance: Animal Homosexuality and Natural Diversity,
Stonewall Inn Editions (2000).
63
Brandon Ambrosino, “The Invention of Heterosexuality”, British Broadcasting
Company, 26March, 2017.
H 64
Ibid.
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 619
[DR. [DIPAK MISRA, CJI ] J.]
D. Y. CHANDRACHUD,

“”No one knows exactly why heterosexuals and homosexuals ought A
to be different,” wrote Wendell Ricketts, author of the 1984 study
Biological Research on Homosexuality. The best answer we’ve got
is something of a tautology: “heterosexuals and homosexuals are
considered different because they can be divided into two groups on
the basis of the belief that they can be divided into two groups.”
B
Though the hetero/homo divide seems like an eternal, indestructible
fact of nature, it simply isn’t. It’s merely one recent grammar humans
have invented to talk about what sex means to us.”
He questions the elevated status of ‘normalcy’ in the following words:
“Normal” is a loaded word, of course, and it has been misused C
throughout history. Hierarchical ordering leading to slavery was at
one time accepted as normal, as was a geocentric cosmology. It
was only by questioning the foundations of the consensus view that
“normal” phenomena were dethroned from their privileged positions.”
There are obvious shortcomings of the human element in the judgment of
natural and unnatural: D
“Why judge what is natural and ethical to a human being by his or
her animal nature? Many of the things human beings value, such as
medicine and art, are egregiously unnatural. At the same time,
humans detest many things that actually are eminently natural, like
disease and death. If we consider some naturally occurring E
phenomena ethical and others unethical, that means our minds (the
things looking) are determining what to make of nature (the things
being looked at). Nature doesn’t exist somewhere “out there,”
independently of us – we’re always already interpreting it from the
inside.”
F
It has been argued that “the ‘naturalness’ and omnipresence of
heterosexuality is manufactured by an elimination of historical specificities
about the organisation, regulation and deployment of sexuality across
time and space.”65 It is thus this “closeting of history” that produces the
“hegemonic heterosexual” - the ideological construction of a particular
alignment of sex, gender and desire that posits itself as natural, inevitable G
and eternal.66 Heterosexuality becomes the site where the male sexed
masculine man’s desire for the female sexed feminine woman is privileged
65
Zaid Al Baset, “Section 377 and the Myth of Heterosexuality”, Jindal Global Law
Review, Vol. 4 (2012).
66
Ibid. H
620 SUPREME COURT REPORTS [2018] 7 S.C.R.

A over all other forms of sexual desire and becomes a pervasive norm that
structures all societal structures.67
The expression ‘carnal’ is susceptible to a wide range of meanings.
Among them are:
“sexual, sensual, erotic, lustful, lascivious, libidinous, lecherous, licentious,
B lewd, prurient, salacious, coarse, gross, lubricious, venereal.”
That’s not all. The word incorporates meanings such as: ”physical,
bodily, corporeal and of the flesh.” The late Middle English origin of
‘carnal’ derives from Christian Latin ‘carnalis’, from caro, carn – ‘flesh’.
At one end of the spectrum ‘carnal’ embodies something which relates
C to the physical feelings and desires of the body. In another sense, the
word implies ‘a relation to the body or flesh as the state of basic physical
appetites’. In a pejorative sense, it conveys grossness or lewdness. The
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. Section 377 is based on a moral notion that
D intercourse which is lustful is to be frowned upon. It finds the sole
purpose of intercourse in procreation. In doing so, it imposes criminal
sanctions upon basic human urges, by targeting some of them as against
the order of nature. It does so, on the basis of a social hypocrisy which
the law embraces as its own. It would have human beings lead sanitized
E lives, in which physical relationships are conditioned by a moral notion of
what nature does or does not ordain. It would have human beings accept
a way of life in which sexual contact without procreation is an aberration
and worse still, penal. It would ask of a section of our citizens that while
love, they may, the physical manifestation of their love is criminal. This
is manifest arbitrariness writ large.
F 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 a classification between individuals who
supposedly engage in ‘natural’ intercourse and those who engage in
‘carnal intercourse against the order of nature’ can be legally valid.
G In addition to the problem regarding the indeterminacy of the terms,
there is a logical fallacy in ascribing legality or illegality to the ostensibly
universal meanings of ‘natural’ and ‘unnatural’ as is pointed out in a
scholarly article.68 Basheer, et al make this point effectively:
67
Ibid.
H 68
Supra note 61.
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 621
[DR.[DIPAK MISRA, CJI ] J.]
D. Y. CHANDRACHUD,

“From the fact that something occurs naturally, it does not A
necessarily follow that it is socially desirable. Similarly, acts that
are commonly perceived to be ‘unnatural’ may not necessarily
deserve legal sanction. Illustratively, consider a person who walks
on his hands all the time. Although this may be unnatural, it is
certainly not deserving of legal censure.
B
…In fact, several activities that might be seen to contravene the
order of nature (heart transplants, for example) are beneficial
and desirable. Even if an unnatural act is harmful to the extent
that it justifies criminal sanctions being imposed against it, the
reason for proscribing such an act would be that the act is harmful,
and not that it is unnatural.” C
Indeed, there is no cogent reasoning to support the idea that behaviour
that may be uncommon on the basis of mere statistical probability is
necessarily abnormal and must be deemed ethically or morally wrong.69
Even behaviour that may be considered wrong or unnatural cannot be
criminalised without sufficient justification given the penal consequences D
that follow. Section 377 becomes a blanket offence that covers
supposedly all types of non-procreative ‘natural’ sexual activity without
any consideration given to the notions of consent and harm.
30. The meaning of ‘natural’ as understood in cases such as
Khanu v. Emperor70, which interpreted natural sex to mean only sex E
that would lead to procreation, would lead to absurd consequences. Some
of the consequences have been pointed out thus:
“The position of the court was thus that ‘natural’ sexual
intercourse is restricted not only to heterosexual coitus, but further
only to acts that might possibly result in conception. Such a
formulation of the concept of ‘natural’ sex excludes not only the use F
of contraception, which is likely to have fallen outside the hegemonic
view of normative sexuality at the time, but also heterosexual coitus
where one or both partners are infertile, or during the ‘safe’
period of a woman’s menstrual cycle. It is perhaps unnecessary
to state that the formulation also excludes oral sex between G
heterosexual partners and any homosexual act whatsoever.”71
69
Sex, Morality and the Law, (Lori Gruen and George Panichas eds.), Routledge
(1996).
70
AIR (1925) Sind. 286
71
Andrew Davis, “The Framing of Sex: Evaluating Judicial Discourse on the
‘Unnatural Offences’”, Alternative Law Journal, Vol. 5 (2006). H
622 SUPREME COURT REPORTS [2018] 7 S.C.R.

A The indeterminacy and vagueness of the terms ‘carnal intercourse’ and
‘order of nature’ renders Section 377 constitutionally infirm as violating
the equality clause in Article 14.
While it is evident that the classification is invalid, it is useful to understand
its purported goal by looking at the legislative history of Section 377. In
B Macaulay’s first draft of the Penal Code, the predecessor to present
day Section 377 was Clause 36172 which provided a severe punishment
for touching another for the purpose of ‘unnatural’ lust. Macaulay
abhorred the idea of any debate or discussion on this ‘heinous crime’.
India’s anti-sodomy law was conceived, legislated and enforced by the
British without any kind of public discussion. 73 So abhorrent was
C homosexuality to the moral notions which he espoused, that Macaulay
believed that the idea of a discussion was repulsive. Section 377 reveals
only the hatred, revulsion and disgust of the draftsmen towards certain
intimate choices of fellow human beings. The criminalization of acts in
Section 377 is not based on a legally valid distinction, “but on broad
D moral proclamations that certain kinds of people, singled out by their
private choices, are less than citizens – or less than human.”74
31. The Naz judgement has been criticised on the ground that even
though it removed private acts between consenting adults from the
purview of Section 377, it still retained the section along with its
E problematic terminology regarding the ‘order of nature’:75
“…even though the acts would not be criminal, they would still
be categorized as “unnatural” in the law. This is not an idle
terminological issue. As Durkheim noted over a hundred years
ago, the law also works as a tool that expresses social relations.76
F Hence, this expression itself is problematic from a dignitarian
standpoint, otherwise so eloquently referred to by the judgement.”
72
Clause 361 stated “Whoever, intending to gratify unnatural lust, touches, for that
purpose, any person, or any animal, or is by his own consent touched by any
person, for the purpose of gratifying unnatural lust, shall be punished with
imprisonment of either description for a term which may extend to fourteen years
G and must not be less than two years, and shall also be liable to fine.”
73
Alok Gupta, “Section 377 and the Dignity of Indian Homosexuals” The Economic
and Political Weekly, Vol. 41 (2006).
74
Supra note 25.
75
John Sebastian, “The opposite of unnatural intercourse: understanding Section 377
through Section 375, Indian Law Review, Vol. 1 (2018).
76
Emile Durkheim, The Division of Labour in Society, Macmillan (1984).
H
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 623
[DR. [DIPAK MISRA, CJI ] J.]
D. Y. CHANDRACHUD,

At this point, we look at some of the legislative changes that have taken A
place in India’s criminal law since the enactment of the Penal Code.
The Criminal Law (Amendment) Act 2013 imported certain
understandings of the concept of sexual intercourse into its expansive
definition of rape in Section 375 of the Indian Penal Code, which now
goes beyond penile–vaginal penetrative intercourse.77 It has been argued
B
that if ‘sexual intercourse’ now includes many acts which were covered
under Section 377, those acts are clearly not ‘against the order of nature’
anymore. They are, in fact, part of the changed meaning of sexual
intercourse itself. This means that much of Section 377 has not only
been rendered redundant but that the very word ‘unnatural’ cannot have
the meaning that was attributed to it before the 2013 amendment.78 C
Section 375 defines the expression rape in an expansive sense, to include
any one of several acts committed by a man in relation to a woman. The
offence of rape is established if those acts are committed against her
77
375. A man is said to commit “rape” if he- (a) penetrates his penis, to any extent,
into the vagina, mouth, urethra or anus of a woman or makes her to do so with him
or any other person; or (b) inserts, to any extent, any object or a part of the body,
D
not being the penis, into the vagina, the urethra or anus of a woman or makes her to
do so with him or any other person; or (c) manipulates any part of the body of a
woman so as to cause penetration into the vagina, urethra, anus or any part of body
of such woman or makes her to do so with him or any other person; or (d) applies
his mouth to the vagina, anus, urethra of a woman or makes her to do so with him
or any other person, under the circumstances falling under any of the following E
seven descriptions:— First.—Against her will. Secondly.—Without her consent.
Thirdly.—With her consent, when her consent has been obtained by putting her or
any person in whom she is interested, in fear of death or of hurt. Fourthly.—With
her consent, when the man knows that he is not her husband and that her consent
is given because she believes that he is another man to whom she is or believes
herself to be lawfully married. Fifthly.—With her consent when, at the time of
giving such consent, by reason of unsoundness of mind or intoxication or the F
administration by him personally or through another of any stupefying or
unwholesome substance, she is unable to understand the nature and consequences
of that to which she gives consent Sixthly.—With or without her consent, when she
is under eighteen years of age. Seventhly.—When she is unable to communicate
consent. Explanation 1.—For the purposes of this section, “vagina” shall also
include labia majora. Explanation 2.—Consent means an unequivocal voluntary
agreement when the woman by words, gestures or any form of verbal or non-verbal G
communication, communicates willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration
shall not by the reason only of that fact, be regarded as consenting to the sexual
activity. Exception 1.—A medical procedure or intervention shall not constitute
rape. Exception 2.—Sexual intercourse or sexual acts by a man with his own wife,
the wife not being under fifteen years of age, is not rape.
78
Supra note 75, at pages 232-249.
H
624 SUPREME COURT REPORTS [2018] 7 S.C.R.

A will or without the free consent of the woman. Section 375 is a clear
indicator that in a heterosexual context, certain physical acts between a
man and woman are excluded from the operation of penal law if they
are consenting adults. Many of these acts which would have been within
the purview of Section 377, stand excluded from criminal liability when
they take place in the course of consensual heterosexual contact.
B
Parliament has ruled against them being regarded against the ‘order of
nature’, in the context of Section 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 a violation of Article 14.
Nivedita Menon opposes the idea that ‘normal’ sexuality springs from
C nature and argues that this idea of ‘normal’ sexuality is a cultural and
social construct:79
“Consider the possibility that rules of sexual conduct are as
arbitrary as traffic rules, created by human societies to maintain
a certain sort of order, and which could differ from place to
D place — for example, you drive on the left in India and on the
right in the USA. Further, let us say you question the sort of
social order that traffic rules keep in place. Say you believe that
traffic rules in Delhi are the product of a model of urban planning
that privileges the rich and penalizes the poor, that this order
E encourages petrol-consuming private vehicles and discourages
forms of transport that are energy-saving — cycles, public
transport, pedestrians. You would then question that model of
the city that forces large numbers of inhabitants to travel long
distances every day simply to get to school andwork. You could
debate the merits of traffic rules and urban planning on the grounds
F of convenience, equity and sustainability of natural resources —
at least, nobody could seriously argue that any set of traffic rules
is natural.”
32. The struggle of citizens belonging to sexual minorities is located
within the larger history of the struggles against various forms of social
G subordination in India. The order of nature that Section 377 speaks of is
not just about non-procreative sex but is about forms of intimacy which
the social order finds “disturbing”.80 This includes various forms of
79
Nivedita Menon, “How Natural is Normal? Feminism and Compulsory
Heterosexuality”, In Because I have a Voice, Queer Politics in India, (Narrain and
Bhan eds.) Yoda Press (2005).
H 80
Supra note 7.
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 625
[DR.[DIPAK MISRA, CJI ] J.]
D. Y. CHANDRACHUD,

transgression such as inter-caste and inter-community relationships which A
are sought to be curbed by society. What links LGBT individuals to
couples who love across caste and community lines is the fact that both
are exercising their right to love at enormous personal risk and in the
process disrupting existing lines of social authority.81 Thus, a re-imagination
of the order of nature as being not only about the prohibition of non-
B
procreative sex but instead about the limits imposed by structures such
as gender, caste, class, religion and community makes the right to love
not just a separate battle for LGBT individuals, but a battle for all.82
E Beyond physicality: sex, identity and stereotypes
“Only in the most technical sense is this a case about who may C
penetrate whom where. At a practical and symbolical level it is
about the status, moral citizenship and sense of self-worth of a
significant section of the community. At a more general and
conceptual level, it concerns the nature of the open, democratic
and pluralistic society contemplated by the Constitution.”83
D
33. The Petitioners contend that (i) Section 377 discriminates on
the basis of sex and violates Articles 15 and 16; and (ii) Discrimination
on the ground of sexual orientation is in fact, discrimination on the ground
of sex. The intervenors argue that (i) Section 377 criminalizes acts and
not people; (ii) It is not discriminatory because the prohibition on anal
and oral sex applies equally to both heterosexual and homosexual couples; E
and (iii) Article 15 prohibits discrimination on the ground of ‘sex’ which
cannot be interpreted so broadly as to include ‘sexual orientation’.
34. When the constitutionality of a law is challenged on the ground
that it violates the guarantees in Part III of the Constitution, what is
determinative is its effect on the infringement of fundamental rights. 84 F
This affords the guaranteed freedoms their true potential against a claim
by the state that the infringement of the right was not the object of the
provision. It is not the object of the law which impairs the rights of the
citizens. Nor is the form of the action taken determinative of the protection
81
Ibid. G
82
Supra note 7.
83
The National Coalition for Gay and Lesbian Equality v. The Minister of Justice,
1999 (1) SA 6 (CC), Sachs J., concurring.
84
Re. the Kerala Education Bill, AIR 1958 SC 956 at para 26; Sakal Papers v Union
of India, AIR 1962 SC 305 at para 42; R.C. Cooper v Union of India, (1970) 1 SCC
248 at paras 43, 49; Bennett Coleman v. Union of India, AIR (1972) 2 SCC 788 at
para 39; Maneka Gandhi v Union of India, (1978) 1 SCC 248 at para 19. H
626 SUPREME COURT REPORTS [2018] 7 S.C.R.

A that can be claimed. It is the effect of the law upon the fundamental
right which calls the courts to step in and remedy the violation. The
individual is aggrieved because the law hurts. The hurt to the individual
is measured by the violation of a protected right. Hence, while assessing
whether a law infringes a fundamental right, it is not the intention of the
lawmaker that is determinative, but whether the effect or operation of
B
the law infringes fundamental rights.
Article 15 of the Constitution reads thus:
“15. (1) The State shall not discriminate against any citizen on
grounds only of religion, race, caste, sex, place of birth or any of
C them.” (Emphasis supplied)
Article 15 prohibits the State from discriminating on grounds only of sex.
Early judicial pronouncements adjudged whether discrimination aimed
only at sex is covered by Article 15 or whether the guarantee is attracted
even to a discrimination on the basis of sex and some other grounds
D (‘Sex plus’). The argument was that since Article 15 prohibited
discrimination on only specified grounds, discrimination resulting from a
specified ground coupled with other considerations is not prohibited. The
view was that if the discrimination is justified on the grounds of sex and
another factor, it would not be covered by the prohibition in Article 15.

E 35. One of the earliest cases decided in 1951 was by the Calcutta
High Court in Sri SriMahadev Jiew v. Dr. B B Sen85. Under Order
XXV, R. 1 of the Code of Civil Procedure, men could be made liable for
paying a security cost if they did not possess sufficient movable property
in India only if they were residing outside India. However, women were
responsible for paying such security, regardless of whether or not they
F were residing in India. In other words, the law drew a distinction between
resident males who did not have sufficient immovable property, and
resident females who did not have sufficient immovable property.
Upholding the provision, the Calcutta High Court held:
“31. Article 15(1) of the Constitution pro-vides, inter alia, — The
G State shall not discriminate against any citizen on grounds only
of sex. The word ‘only’ in this Article is of great importance and
significance which should not be missed. The impugned law must
be shown to discriminate because of sex alone. If other factors
in addition to sex come into play in making the
85
H AIR (1951) Cal. 563.
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 627
[DR.[DIPAK MISRA, CJI ] J.]
D. Y. CHANDRACHUD,

discriminatory law, then such discrimination does not, in A
my judgment, come within the provision of Article 15(1)
of the Constitution.” (Emphasis supplied)
This interpretation was upheld by this Court in Air India v. Nergesh
Meerza (“Nergesh Meerza”).86 Regulations 46 and 47of the Air India
Employees’ Service Regulations were challenged for causing a disparity B
between the pay and promotional opportunities of men and women in-
flight cabin crew. Under Regulation 46, while the retirement age for
male Flight Pursers was fifty eight, Air Hostesses were required to retire
at thirty five, or on marriage (if they married within four years of joining
service), or on their first pregnancy, whichever occurred earlier. This
period could be extended in the absolute discretion of the Managing C
Director. Even though the two cadres were constituted on the grounds
of sex, the Court upheld the Regulations in part and opined:
“68. Even otherwise, what Articles 15(1) and 16(2) prohibit
is that discrimination should not be made only and only on
the ground of sex. These Articles of the Constitution do D
not prohibit the State from making discrimination on the
ground of sex coupled with other considerations.”
(Emphasis supplied)
36. This formalistic interpretation of Article 15 would render the
constitutional guarantee against discrimination meaningless. For it would E
allow the State to claim that the discrimination was based on sex and
another ground (‘Sex plus’) and hence outside the ambit of Article 15.
Latent in the argument of the discrimination, are stereotypical notions of
the differences between men and women which are then used to justify
the discrimination. This narrow view of Article 15 strips the prohibition F
on discrimination of its essential content. This fails to take into account
the intersectional nature of sex discrimination, which cannot be said to
operate in isolation of other identities, especially from the socio-political
and economic context. For example, a rule that people over six feet
would not be employed in the army would be able to stand an attack on
its disproportionate impact on women if it was maintained that the G
discrimination is on the basis of sex and height. Such a formalistic view
of the prohibition in Article 15, rejects the true operation of discrimination,
which intersects varied identities and characteristics.

86
(1981) 4 SCC 335 H
628 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 37. A divergent note was struck by this Court in Anuj Garg v.
Hotel Association of India87.Section 30 of the Punjab Excise Act,
1914 prohibited the employment of women (and men under 25 years)
in premises where liquor or other intoxicating drugs were consumed
by the public. Striking down the law as suffering from “incurable
fixations of stereotype morality and conception of sexual role”, the
B
Court held:
“42… one issue of immediate relevance in such cases is the
effect of the traditional cultural norms as also the state of
general ambience in the society which women have to face
while opting for an employment which is otherwise completely
C innocuous for the male counterpart...”
“43…It is state’s duty to ensure circumstances of safety which
inspire confidence in women to discharge the duty freely in
accordance to the requirements of the profession they choose
to follow. Any other policy inference (such as the one embodied
D under section 30) from societal conditions would be oppressive
on the women and against the privacy rights.”
(Emphasis supplied)
The Court recognized that traditional cultural norms stereotype gender
roles. These stereotypes are premised on assumptions about socially
ascribed roles of gender which discriminate against women. The Court
E held that “insofar as governmental policy is based on the aforesaid cultural
norms, it is constitutionally invalid.” In the same line, the Court also cited
with approval, the judgments of the US Supreme Court in Frontiero v.
Richardson88,and United States v. Virginia89,and Justice Marshall’s
dissent in Dothard v. Rawlinson90,The Court grounded the anti-
F stereotyping principle as firmly rooted in the prohibition under Article 15.
87
(2008) 3 SCC 1
88
411 U.S. 677 (1973). The case concerned a statute that allowed service-members to
claim additional benefits if their spouse was dependent on them. A male claimant would
automatically be entitled to such benefits while a female claimant would have to prove
that her spouse was dependent on her for more than half his support. The Court struck
down this statute stating that the legislation violated the equal protection clause of the
American Constitution.
G 89
518 U.S. 515 (1996). The case concerned the Virginia Military Institute (VMI), which
had a stated objected of producing “citizen-soldiers.” However, it did not admit women.
The Court held that such a provision was unconstitutional and that there were no
“fixed notions concerning the roles and abilities of males and females.”
90
433 U.S. 321 (1977).The case concerned an effective bar on females for the position
of guards or correctional counsellors in the Alabama State Penitentiary system. Justice
Marshall’s dissent held that prohibition of women in ‘contact positions’ violated the
H Title VII guarantee.
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 629
[DR.[DIPAK MISRA, CJI ] J.]
D. Y. CHANDRACHUD,

In National Legal Services Authority v. Union of India (“NALSA”)91, A
while dealing with the rights of transgender persons under the Constitution,
this Court opined:
“66. Articles 15 and 16 sought to prohibit discrimination on
the basis of sex, recognizing that sex discrimination is a
historical fact and needs to be addressed. Constitution B
makers, it can be gathered, gave emphasis to the
fundamental right against sex discrimination so as to prevent
the direct or indirect attitude to treat people differently, for
the reason of not being in conformity with stereotypical
generalizations of binary genders. Both gender and
biological attributes constitute distinct components of sex. C
Biological characteristics, of course, include genitals,
chromosomes and secondary sexual features, but gender
attributes include one’s self image, the deep psychological
or emotional sense of sexual identity and character. The
discrimination on the ground of ‘sex’ Under Articles 15 and D
16, therefore, includes discrimination on the ground of
gender identity.” (Emphasis supplied)
This approach, in my view, is correct.
In Nergesh Meerza, this Court held that where persons of a particular
class, in view of the “special attributes, qualities” are treated differently E
in ‘public interest’, such a classification would not be discriminatory.
The Court opined that since the modes of recruitment, promotional
avenues and other matters were different for Air Hostesses, they
constituted a class separate from male Flight Pursers. This, despite noting
that “a perusal of the job functions which have been detailed in the F
affidavit, clearly shows that the functions of the two, though obviously
different overlap on some points but the difference, if any, is one of
degree rather than of kind.”
38. The Court did not embark on the preliminary enquiry as to
whether the initial classification between the two cadres, being grounded G
in sex, was violative of the constitutional guarantee against discrimination.
Referring specifically to the three significant disabilities that the
Regulations imposed on Air Hostesses, the Court held that “there can be
no doubt that these peculiar conditions do form part of the Regulations
91
(2014) 5 SCC 438
H
630 SUPREME COURT REPORTS [2018] 7 S.C.R.

A governing Air Hostesses but once we have held that Air Hostesses form
a separate category with different and separate incidents the
circumstances pointed out by the petitioners cannot amount to
discrimination so as to violate Article 14 of the Constitution on this
ground.”
B 39. The basis of the classification was that only men could become
male Flight Pursers and only women could become Air Hostesses. The
very constitution of the cadre was based on sex. What this meant was,
that to pass the non-discrimination test found in Article 15, the State
merely had to create two separate classes based on sex and constitute
two separate cadres. That would not be discriminatory.
C
The Court went a step ahead and opined:
“80…Thus, the Regulation permits an AH to marry at the age of
23 if she has joined the service at the age of 19 which is by all
standards a very sound and salutary provision. Apart from
D improving the health of the employee, it helps a good in
the promotion and boosting up of our family planning
programme. Secondly, if a woman marries near about the
age of 20 to 23 years, she becomes fully mature and there
is every chance of such a marriage proving a success, all
things being equal. Thirdly, it has been rightly pointed out
E to us by the Corporation that if the bar of marriage within
four years of service is removed then the Corporation will
have to incur huge expenditure in recruiting additional
AHs either on a temporary or on ad hoc basis to replace
the working AHs if they conceive and any period short of
F four years would be too little a time for the Corporation to
phase out such an ambitious plan.” (Emphasis supplied)
40. A strong stereotype underlines the judgment. The Court did
not recognize that men were not subject to the same standards with
respect to marriage. It holds that the burdens of health and family planning
G rest solely on women. This perpetuates the notion that the obligations of
raising family are those solely of the woman. In dealing with the provision
for termination of service on the first pregnancy, the Court opined that a
substituted provision for termination on the third pregnancy would be in
the “larger interest of the health of the Air Hostesses concerned as also
for the good upbringing of the children.” Here again, the Court’s view
H
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 631
[DR.[DIPAK
D. Y. CHANDRACHUD,
MISRA, CJI ] J.]

rested on a stereotype. The patronizing attitude towards the role of A
women compounds the difficulty in accepting the logic of Nergesh
Meerza. This approach, in my view, is patently incorrect.
41. A discriminatory act will be tested against constitutional values.
A discrimination will not survive constitutional scrutiny when it is grounded
in and perpetuates stereotypes about a class constituted by the grounds B
prohibited in Article 15(1). If any ground of discrimination, whether direct
or indirect is founded on a stereotypical understanding of the role of the
sex, it would not be distinguishable from the discrimination which is
prohibited by Article 15 on the grounds only of sex. If certain
characteristics grounded in stereotypes, are to be associated with entire
classes of people constituted as groups by any of the grounds prohibited C
in Article 15(1), that cannot establish a permissible reason to discriminate.
Such a discrimination will be in violation of the constitutional guarantee
against discrimination in Article 15(1). That such a discrimination is a
result of grounds rooted in sex and other considerations, can no longer
be held to be a position supported by the intersectional understanding of D
how discrimination operates. This infuses Article 15 with true rigour to
give it a complete constitutional dimension in prohibiting discrimination.
The approach adopted the Court in Nergesh Meerza, is incorrect.
A provision challenged as being ultra vires the prohibition of discrimination
on the grounds only of sex under Article 15(1) is to be assessed not by E
the objects of the state in enacting it, but by the effect that the provision
has on affected individuals and on their fundamental rights. Any ground
of discrimination, direct or indirect, which is founded on a particular
understanding of the role of the sex, would not be distinguishable from
the discrimination which is prohibited by Article 15 on the grounds only F
of sex.
E.I Facial neutrality: through the looking glass
42. The moral belief which underlies Section 377 is that sexual
activities which do not result in procreation are against the ‘order of
nature’ and ought to be criminalized under Section 377. The intervenors G
submit that Section 377, criminalizes anal and oral sex by heterosexual
couples as well. Hence, it is urged that Section 377 applies equally to all
conduct against the ‘order of nature’, irrespective of sexual orientation.
This submission is incorrect. In NALSA this Court held that Section
377, though associated with specific sexual acts, highlights certain
H
632 SUPREME COURT REPORTS [2018] 7 S.C.R.

A identities. In Naz, the Delhi High Court demonstrated effectively how
Section 377 though facially neutral in its application to certain acts, targets
specific communities in terms of its impact:
“Section 377 IPC is facially neutral and it apparently targets
not identities but acts, but in its operation it does end up
B unfairly targeting a particular community.The fact is that
these sexual acts which are criminalised are associated
more closely with one class of persons, namely, the
homosexuals as a class. Section 377 IPC has the effect of
viewing all gay men as criminals. When everything associated
with homosexuality is treated as bent, queer, repugnant, the whole
C gay and lesbian community is marked with deviance and
perversity. They are subject to extensive prejudice because
what they are or what they are perceived to be, not because
of what they do. The result is that a significant group of
the population is, because of its sexual nonconformity,
D persecuted, marginalised and turned in on itself.” 92
(Emphasis supplied)
To this end, it chronicled the experiences of the victims of Section 377,
relying on the extensive records and affidavits submitted by the
Petitioners that brought to fore instances of custodial rape and torture,
E social boycott, degrading and inhuman treatment and incarceration. The
court concluded that while Section 377 criminalized conduct, it created a
systemic pattern of disadvantage, exclusion and indignity for the LGBT
community, and for individuals who indulge in non-heterosexual conduct.
43. Jurisprudence across national frontiers supports the principle
that facially neutral action by the State may have a disproportionate
F
impact upon a particular class. In Europe, Directive 2006/54/EC of
the European Parliament and of the Council of 5 July 2006 defines
‘indirect discrimination’ as: “where an apparently neutral provision,
criterion or practice would put persons of one sex at a particular
disadvantage compared with persons of the other sex, unless that
G provision, criterion or practice is objectively justified by a legitimate aim,
and the means of achieving that aim are appropriate and necessary.”
In Griggs v Duke Power Co. 93, the US Supreme Court, whilst
recognizing that African-Americans received sub-standard education due
92
Naz, at para 94.
H 93
401 U.S. 424 (1971)
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 633
[DR.[DIPAK
D. Y. CHANDRACHUD,
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to segregated schools, opined that the requirement of an aptitude/ A
intelligence test disproportionately affected African-American
candidates. The Court held that “The Civil Rights Act” proscribes not
only overt discrimination but also practices that are fair in form, but
discriminatory in operation.”
In Bilka-Kaufhaus GmbH v. Karin Weber von Hartz94, the European B
Court of Justice held that denying pensions to part-time employees is
more likely to affect women, as women were more likely to take up
part-time jobs. The Court noted:
“Article 119 of the EEC Treaty is infringed by a department store
company which excludes part-time employees from its C
occupational pension scheme, where that exclusion affects a
far greater number of women than men, unless the
undertaking shows that the exclusion is based on objectively
justified factors unrelated to any discrimination on grounds of
sex.” (Emphasis supplied)
D
The Canadian Supreme Court endorsed the notion of a disparate impact
where an action has a disproportionate impact on a class of persons. In
Andrews v. Law Society of British Columbia95, the Court noted:
“Discrimination is a distinction which, whether intentional or not
but based on grounds relating to personal characteristics of the E
individual or group, has an effect which imposes disadvantages
not imposed upon others or which withholds or limits access to
advantages available to other members of society. Distinctions
based on personal characteristics attributed to an
individual solely on the basis of association with a group
will rarely escape the charge of discrimination, while those F
based on an individual’s merits and capacities will rarely be so
classed.” (Emphasis supplied)
Thus, when an action has “the effect of imposing burdens, obligations,
or disadvantages on such individual or group not imposed upon others, or
which withholds or limits access to opportunities, benefits, and advantages G
available to other members of society”,96 it would be suspect.

94
(1986) ECR 1607
95
(1989) 1 SCR 143
96
Ibid.
H
634 SUPREME COURT REPORTS [2018] 7 S.C.R.

A In City Council of Pretoria v. Walker97, the Constitutional Court of
South Africa observed:
“The concept of indirect discrimination, … was developed
precisely to deal with situations where discrimination lay disguised
behind apparently neutral criteria or where persons already
B adversely hit by patterns of historic subordination had their
disadvantage entrenched or intensified by the impact of measures
not overtly intended to prejudice them.
In many cases, particularly those in which indirect discrimination
is alleged, the protective purpose would be defeated if the persons
C complaining of discrimination had to prove not only that they
were unfairly discriminated against but also that the unfair
discrimination was intentional. This problem would be particularly
acute in cases of indirect discrimination where there is almost
always some purpose other than a discriminatory purpose
involved in the conduct or action to which objection is taken.”
D (Emphasis supplied)
E.2 Deconstructing the polarities of binary genders
44. Section 377 criminalizes behaviour that does not conform to
the heterosexual expectations of society. In doing so it perpetuates a
E symbiotic relationship between anti-homosexual legislation and traditional
gender roles. The notion that the nature of relationships is fixed and
within the ‘order of nature’ is perpetuated by gender roles, thus excluding
homosexuality from the narrative. The effect is described as follows:
“Cultural homophobia thus discourages social behavior that
F appears to threaten the stability of heterosexual gender roles.
These dual normative standards of social and sexual behavior
construct the image of a gay man as abnormal because he
deviates from the masculine gender role by subjecting himself in
the sexual act to another man.”98
If individuals as well as society hold strong beliefs about gender roles –
G
that men (to be characteristically reductive) are unemotional, socially
dominant, breadwinners that are attracted to women and women are
emotional, socially submissive, caretakers that are attracted to men – it
97
(1998) 3 BCLR 257
98
Elvia R. Arriola, “Gendered Inequality: Lesbians, Gays, and Feminist Legal Theory”,
H Berkeley Women’s Law Journal, Vol. 9 (1994), at pages 103-143.
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 635
[DR.[DIPAK
D. Y. CHANDRACHUD,
MISRA, CJI ] J.]

is unlikely that such persons or society at large will accept that the idea A
that two men or two women could maintain a relationship. If such a
denial is further grounded in a law, such as Article 377 the effect is to
entrench the belief that homosexuality is an aberration that falls outside
the ‘normal way of life.’
45. An instructive article by Zachary A. Kramer,99 notes that a B
heterosexist society both expects and requires men and women to engage
in only opposite-sex sexual relationships. The existence of same-sex
relationships is, therefore, repugnant to heterosexist societal
expectations.Kramer argues that:
“Discrimination against gays and lesbians reinforces traditional C
sex roles.The primary thrust of such discrimination is the gender-
based stigmatization of gays and lesbians, deriving from the idea
that homosexuality departs from traditional gender roles and that
“real” men and women should not be attracted to a member of
the same sex. This portrayal relies heavily on what Bennett Capers
calls the “binary gender system.”100 D

46. Bennett Capers defines the binary gender system as based in
“heterosexism,” which he defines as the “institutionalized valorization of
heterosexual activity.” Capers, in fact suggests that:
“The sanctioning of discrimination based on sexual orientation E
perpetuates the subordination not only of lesbians and gays but
of women as well.
Heterosexism, then, in its reliance on a bipolar system of sex
and gender, reinforces sexism in two ways. First, by penalizing
persons who do not conform to a bipolar gender system and F
rewarding men and women who do, the heterosexist hegemony
perpetuates a schema that valorizes passive, dependent women,
thus contributing to sexism. Second, heterosexism reinforces
sexism because it subordinates the female sex through its
hierarchical polarity. Because heterosexism perpetuates sexism,
the extension of substantial rights to lesbians and gays, who by G
definition challenge heterosexism and the concept of a binary
99
Zachary A. Kramer, “The Ultimate Gender Stereotype: Equalizing Gender-
Conforming and Gender-Nonconforming Homosexuals under Title VII”, University
of Illinois Law Review (2004), at page 490.
100
Ibid. H
636 SUPREME COURT REPORTS [2018] 7 S.C.R.

A gender system, would result in a challenge to sexism and to male
power.” 101
In other words, one cannot simply separate discrimination based on sexual
orientation and discrimination based on sex because discrimination based
on sexual orientation inherently promulgates ideas about stereotypical
B notions of sex and gender roles. Taking this further, Andrew Koppelman
argues that:
“Similarly, sodomy laws discriminate on the basis of sex-for
example, permitting men, but not women, to have sex with
women-in order to impose traditional sex roles. The Court has
C deemed this purpose impermissible in other contexts because it
perpetuates the subordination of women. The same concern
applies with special force to the sodomy laws, because their
function is to maintain the polarities of gender on which the
subordination of women depends.”102
D Koppelman thus suggests that the taboo against homosexuals “polices
the boundaries that separate the dominant from the dominated in a social
hierarchy.” 103 He expands on this idea, using the analogy of
miscegenation, or the interbreeding of races:
“Do statutes that outlaw homosexual sex impose traditional sex
E roles? One possible answer is that of McLaughlin [McLaughlin
v. Florida]: The crime is by definition one of engaging in activity
inappropriate to one’s sex. But these statutes’ inconsistency with
the Constitution’s command of equality is deeper. Like the
miscegenation statutes, the sodomy statutes reflect and reinforce
the morality of a hierarchy based on birth. Just as the prohibition
F of miscegenation preserved the polarities of race on which white
supremacy rested, so the prohibition of sodomy preserves the
polarities of gender on which rests the subordination of
women.” 104

G 101
Bennett Capers, “Note, Sexual Orientation and Title VII”, Columbia Law Review
(1991), at pages 1159, 1160, 1163.
102
Andrew Koppelman, “The Miscegenation Analogy: Sodomy Law as Sex
Discrimination”, Yale Law Journal, Vol. 98 (1988), at page 147.
103
Andrew Koppelman, “Why Discrimination against Lesbians and Gay Men is Sex
Discrimination”, New York University Law Review, Vol. 69 (1994).
104
Supra note 102, at page 148.
H
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[DR.[DIPAK
D. Y. CHANDRACHUD,
MISRA, CJI ] J.]

Statutes like Section 377 give people ammunition to say “this is what a A
man is” by giving them a law which says “this is what a man is not.”
Thus, laws that affect non-heterosexuals rest upon a normative
stereotype: “the bald conviction that certain behavior-for example, sex
with women-is appropriate for members of one sex, but not for members
of the other sex.”105
B
What this shows us is that LGBT individuals as well as those who do not
conform to societal expectations of sexual behaviour defy gender
stereotypes.
“The construction of gender stereotypes ultimately rests on the
assumption that there are two opposite and mutually exclusive C
biological sexes. The assumption of heterosexuality is central to
this gender binary. In a patriarchal context, some of the most
serious transgressors are thus: a woman who renounces a man
sexual partner or an individual assigned female at birth who
renounces womanhood, thereby rejecting the patriarchal system
and all other forms of male supervision and control, and an D
individual assigned male at birth who embraces womanhood,
thereby abandoning privilege in favor of that which is deemed
subservient, femininity.”106
Prohibition of sex discrimination is meant to change traditional practices
which legally, and often socially and economically, disadvantage persons E
on the basis of gender. The case for gay rights undoubtedly seeks justice
for gays. But it goes well beyond the concern for the gay community.
The effort to end discrimination against gays should be understood as a
necessary part of the larger effort to end the inequality of the sexes.
“To be a lesbian is to be perceived (labelled) as someone who F
has stepped out of line, who has moved out of sexual/economic
dependence on a male, who is woman-identified. A lesbian is
perceived as someone who can live without a man, and who is
therefore (however illogically) against men. A lesbian is perceived
as being outside the acceptable, routinized order of things. She is G
seen as someone who has no societal institutions to protect her
105
Ibid.
106
The Relationship between Homophobia, Transphobia, and Women’s Access to
Justice for the Forthcoming CEDAW General Recommendation on Women’s Access
to Justice. Submitted to the United Nations Committee for the Elimination of All
Forms of Discrimination against Women (2013). H
638 SUPREME COURT REPORTS [2018] 7 S.C.R.

A and who is not privileged to the protection of individual males. A
lesbian is perceived as a threat to the nuclear family, to male
dominance and control, to the very heart of sexism.”107
Commenting on its link with the essence of Article 15, Tarunabh Khaitan
writes:
B “But the salience of a case on discrimination against a politically
disempowered minority, based purely on the prejudices of a
majority, goes beyond the issue of LGBTQ rights. Indian
constitutional democracy is at a crossroads…Inclusiveness and
pluralism lie at the heart of Article 15, which can be our surest
C vehicle for the Court to lend its institutional authority to the
salience of these ideas in our constitutional identity.”108
47. Relationships that tend to undermine the male/female divide
are inherently required for the maintenance of a socially imposed gender
inequality. Relationships which question the divide are picked up for target
D and abuse. Section 377 allows this. By attacking these gender roles,
members of the affected community, in their move to build communities
and relationships premised on care and reciprocity, lay challenge to the
idea that relationships, and by extension society, must be divided along
hierarchical sexual roles in order to function. For members of the
community, hostility and exclusion aimed at them, drive them into hiding,
E away from public expression and view. It is this discrimination faced by
the members of the community, which results in silence, and consequently
invisibility, creating barriers, systemic and deliberate, that effect their
participation in the work force and thus undermines substantive equality.
In the sense that the prohibition of miscegenation was aimed to preserve
F and perpetuate the polarities of race to protect white supremacy, the
prohibition of homosexuality serves to ensure a larger system of social
control based on gender and sex.
48. A report prepared by the International Commission of Jurists109
has documented the persecution faced by the affected community due
G 107
Suzanne Pharr, Homophobia: A weapon of Sexism, Chardon Press (1988), at
page18.
108
Tarunabh Khaitan, “Inclusive Pluralism or Majoritarian Nationalism: Article 15,
Section 377 and Who We Really Are”, Indian Constitutional Law and Philosophy
(2018).
109
International Commission of Jurists, “Unnatural Offences” Obstacles to Justice in
H India Based on Sexual Orientation and Gender Identity (2017).
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 639
[DIPAK
[DR. D. MISRA, CJI ] J.]
Y. CHANDRACHUD,

to the operation of Section 377. The report documents numerous violations A
inflicted on people under the authority of Section 377. According to the
National Crime Records Bureau, 1279 persons in 2014 and 1491 in 2015
were arrested under Section 377.110
The report documents instances of abuse from law enforcement agencies
and how the possibility of persecution under Section 377 prevents B
redress.111 Even though acts such as blackmail, assault, and bodily crimes
are punishable under penal laws, such methods of seeking redressal are
not accessed by those communities given the fear of retaliation or
prosecution.
49. The petitioners in the present batch of cases have real life C
narrations of suffering discrimination, prejudice and hate. In Anwesh
Pokkuluri v. UOI112, with which this case is connected, the Petitioners
are a group of persons belonging to the LGBTQ community, each of
whom has excelled in their fields but suffer immensely due to the operation
of Section 377. To cope with the growing isolation among the community,
these Petitioners, all alumni of Indian Institutes of Technology across D
the country, created a closed group called “Pravritti”. The group consists
of persons from the LGBTQ community. They are faculty members,
students, alumni and anyone who has ever stayed on the campus of any
IIT in the country. The group was formed in 2012 to help members cope
with loneliness and difficulties faced while accepting their identity along E
with holding open discussions on awareness.
50. Out of twenty Petitioners, sixteen are gay, two are bisexual
women and one is a bisexual man. One among the Petitioners is a
transwoman. Three of the Petitioners explain that they suffered immense
mental agony due to which they were on the verge of committing suicide. F
Another two stated that speaking about their sexual identity has been
difficult, especially since they did not have the support of their families,
who, upon learning of their sexual orientation, took them for psychiatric
treatment to cure the so-called “disease.” The families of three Petitioners
ignored their sexual identity. One of them qualified to become an Indian
Administrative Services officer in an examination which more than G
4,00,000 people write each year. But he chose to forgo his dream because
of the fear that he would be discriminated against on the ground of his
110
Ibid, at page 16.
111
Ibid, at pages 16 – 18.
112
Writ Petition (Criminal) No. 121 of 2018. H
640 SUPREME COURT REPORTS [2018] 7 S.C.R.

A sexuality. Some of them have experienced depression; others faced
problems focusing on their studies while growing up; one among them
was forced to drop out of high school as she was residing in a girl’s
hostel where the authorities questioned her identity. The parents of one
of them brushed his sexuality under the carpet and suggested that he
marry a woman. Some doubted whether or not they should continue
B
their relationships given the atmosphere created by Section 377. Several
work in organisations that have policies protecting the LGBT community
in place. Having faced so much pain in their personal lives, the Petitioners
submit that with the continued operation of Section 377, such treatment
will be unabated.
C 51. In Navtej Johar v. Union of India113, with which this case
is concerned, the Petitioners have set out multiple instances of
discrimination and expulsion. The following is a realistic account:
“While society, friends and family are accepting of my sexuality,
I cannot be fully open about my identity and my relationships
D because I constantly fear arrest and violence by the
police…Without the existence of this section, the social prejudice
and shame that I have faced would have been considerably
lessened…the fact that gay people, like me, are recognized only
as criminals is deeply upsetting and denies me the dignity and
E respect that I feel I deserve.114
Apart from the visible social manifestations of Section 377, the retention
of the provision perpetuates a certain culture. The stereotypes fostered
by section 377 have an impact on how other individuals and non-state
institutions treat the community. While this behaviour is not sanctioned
F by Section 377, the existence of the provision nonetheless facilitates it
by perpetuating homophobic attitudes and making it almost impossible
for victims of abuse to access justice. Thus, the social effects of such a
provision, even when it is enforced with zeal, is to sanction verbal
harassment, familial fear, restricted access to public spaces and the lack
of safe spaces. This results in a denial of the self. Identities are obliterated,
G denying the entitlement to equal participation and dignity under the
Constitution. Section 377 deprives them of an equal citizenship. Referring
to the effect of Foucault’s panopticon in inducing “a state of conscious
113
Writ Petition (Criminal) No. 76 of 2016.
114
Written Submission on Behalf of the Voices Against 377, in W.P. (CRL.) No. 76/
H 2016 at page 18.
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 641
[DR.[DIPAK MISRA, CJI ] J.]
D. Y. CHANDRACHUD,

and permanent visibility that assures the automatic functioning of A
power”,115 Ryan Goodman writes:
“The state’s relationship to lesbian and gay individuals under a
regime of sodomy laws constructs a similar, yet dispersed,
structure of observation and surveillance. The public is
sensitive to the visibility of lesbians and gays as socially B
and legally constructed miscreants. Admittedly certain
individuals, namely those who are certified with various
levels of state authority, are more directly linked to the
extension of law’s power. Yet the social effects of sodomy
laws are not tied to these specialized agents alone. On
the ground level, private individuals also perform roles of C
policing and controlling lesbian and gay lives in a mimetic
relation to the modes of justice itself.”116 (Emphasis supplied)
The effect of Section 377, thus, is not merely to criminalize an act, but to
criminalize a specific set of identities. Though facially neutral, the effect
of the provision is to efface specific identities. These identities are the D
soul of the LGBT community.
52. The Constitution envisaged a transformation in the order of
relations not just between the state and the individual, but also between
individuals: in a constitutionalorder characterized by the Rule of Law,
the constitutional commitment to egalitarianism and an anti-discriminatory E
ethos permeates and infuses these relations. In K S Puttaswamy v.
Union of India (“Puttaswamy”)117, this Court affirmed the individual
as the bearer of the constitutional guarantee of rights. Such rights are
devoid of their guarantee when despite legal recognition, the social,
economic and political context enables an atmosphere of continued F
discrimination.The Constitution enjoins upon every individual a
commitment to a constitutional democracy characterized by the principles
of equality and inclusion. In a constitutional democracy committed to the
protection of individual dignity and autonomy, the state and every individual
has a duty to act in a manner that advances and promotes the constitutional
order of values. G
115
Michel Foucault, Discipline And Punish: the Birth of the Prison, Pantheon Books
(1977) at page 201.
116
Ryan Goodman, “Beyond the Enforcement Principle: Sodomy Laws, Social Norms,
and Social Panoptics”, California Law Review, Vol. 89 (2001), at page 688.
117
(2017) 10 SCC 1
H
642 SUPREME COURT REPORTS [2018] 7 S.C.R.

A By criminalizing consensual sexual conduct between two homosexual
adults, Section 377 has become the basis not just of prosecutions but of
the persecution of members of the affected community. Section 377
leads to the perpetuation of a culture of silence and stigmatization. Section
377 perpetuates notions of morality which prohibit certain relationships
as being against the ‘order of nature.’ A criminal provision has sanctioned
B
discrimination grounded on stereotypes imposed on an entire class of
persons on grounds prohibited by Article 15(1). This constitutes
discrimination on the grounds only of sex and violates the guarantee of
non-discrimination in Article 15(1)
53. History has been witness to a systematic stigmatization and
C exclusion of those who do not conform to societal standards of what is
expected of them. Section 377 rests on deep rooted gender stereotypes.
In the quest to assert their liberties, people criminalized by the operation
of the provision, challenge not only its existence, but also a gamut of
beliefs that are strongly rooted in majoritarian standards of what is
D ‘normal’. In this quest, the attack on the validity of Section 377 is a
challenge to a long history of societal discrimination and persecution of
people based on their identities. They have been subjugated to a culture
of silence and into leading their lives in closeted invisibility. There must
come a time when the constitutional guarantee of equality and inclusion
will end the decades of discrimination practiced, based on a majoritarian
E impulse of ascribed gender roles. That time is now.
F Confronting the closet
54. The right to privacy is intrinsic to liberty, central to human
dignity and the core of autonomy. These values are integral to the right
F to life under Article 21 of the Constitution. A meaningful life is a life of
freedom and self-respect and nurtured in the ability to decide the course
of living. In the nine judge Bench decision in Puttaswamy, this Court
conceived of the right to privacy as natural and inalienable. The judgment
delivered on behalf of four judges holds:
“Privacy is a concomitant of the right of the individual to exercise
G control over his or her personality. It finds an origin in the notion
that there are certain rights which are natural to or inherent in a
human being. Natural rights are inalienable because they are
inseparable from the human personality. The human element in life
is impossible to conceive without the existence of natural rights”118
H 118
Puttaswamy, at para 42.
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 643
[DR. [DIPAK
D. Y. CHANDRACHUD,
MISRA, CJI ] J.]

Justice Bobde, in his exposition on the form of the ‘right to privacy’ held A
thus:
“Privacy, with which we are here concerned, eminently qualifies
as an inalienable natural right, intimately connected to two values
whose protection is a matter of universal moral agreement: the
innate dignity and autonomy of man.”119 B
Justice Nariman has written about the inalienable nature of the right to
privacy:
“…Fundamental rights, on the other hand, are contained in the
Constitution so that there would be rights that the citizens of this
country may enjoy despite the governments that they may elect. C
This is all the more so when a particular fundamental right like
privacy of the individual is an “inalienable” right which inheres in
the individual because he is a human being. The recognition of
such right in the fundamental rights chapter of the Constitution is
only a recognition that such right exists notwithstanding the shifting D
sands of majority governments…”120
Justice Sapre, in his opinion, has also sanctified ‘privacy’ as a natural
right:
“In my considered opinion, “right to privacy of any individual” is
essentially a natural right, which inheresin every human being by E
birth... It isindeed inseparable and inalienable…it is born with
the human being…”121
These opinions establish that the right to privacy is a natural right. The
judgment of four judges in Puttaswamy held that the right to sexual
orientation is an intrinsic part of the right to privacy. To define the scope F
of the right, it is useful to examine the discussion on the right to sexual
orientation in judicial precedents of this Court.
55. Speaking for a two judge Bench in NALSA, Justice K S
Radhakrishnan elucidated upon the term ‘sexual orientation’ as
differentiable from an individual’s ‘gender identity’, noting that: G
“Sexual orientation refers to an individual’s enduring physical,
romantic and/or emotional attraction to another person. Sexual
119
Puttaswamy, at para 392.
120
Puttaswamy, at para 490.
121
Puttaswamy at para 557. H
644 SUPREME COURT REPORTS [2018] 7 S.C.R.

A orientation includes transgender and gender-variant people with
heavy sexual orientation and their sexual orientation may or may
not change during or after gender transmission, which also
includes homo-sexuals, bysexuals, heterosexuals, asexual etc.
Gender identity and sexual orientation, as already indicated, are
different concepts. Each person’s self-defined sexual orientation
B
and gender identity is integral to their personality and is one of
the most basic aspects of self-determination, dignity and
freedom…”122
Puttaswamy rejected the “test of popular acceptance” employed by
this Court in Koushal and affirmed thatsexual orientation is a
C constitutionally guaranteed freedom:
“…The guarantee of constitutional rights does not depend upon
their exercise being favourably regarded by majoritarian opinion.
The test of popular acceptance does not furnish a valid basis to
disregard rights which are conferred with the sanctity of
D constitutional protection. Discrete and insular minorities face
grave dangers of discrimination for the simple reason that their
views, beliefs or way of life do not accord with the ‘mainstream’.
Yet in a democratic Constitution founded on the rule of law, their
rights are as sacred as those conferred on other citizens to protect
E their freedoms and liberties. Sexual orientation is an essential
attribute of privacy. Discrimination against an individual on the
basis of sexual orientation is deeply offensive to the dignity and
self-worth of the individual. Equality demands that the sexual
orientation of each individual in society must be protected on an
even platform. The right to privacy and the protection of sexual
F orientation lie at the core of the fundamental rights guaranteed
by Articles 14, 15 and 21 of the Constitution.”123
Rejecting the notion that the rights of the LGBT community can be
construed as illusory, the court held that the right to privacy claimed by
sexual minorities is a constitutionally entrenched right:
G
“…The rights of the lesbian, gay, bisexual and transgender
population cannot be construed to be “so-called rights”. The
expression “so-called” seems to suggest the exercise of a liberty
122
NALSA, at para 22.
123
H Puttaswamy, at para 144.
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 645
[DR.[DIPAK MISRA, CJI ] J.]
D. Y. CHANDRACHUD,

in the garb of a right which is illusory. This is an inappropriate A
construction of the privacy based claims of the LGBT population.
Their rights are not “so-called” but are real rights founded on
sound constitutional doctrine. They inhere in the right to life.
They dwell in privacy and dignity. They constitute the essence
of liberty and freedom. Sexual orientation is an essential
B
component of identity. Equal protection demands protection of
the identity of every individual without discrimination.”124
Justice Kaul, concurring with the recognition of sexual orientation as an
aspect of privacy, noted that:
“…The sexual orientation even within the four walls of the house C
thus became an aspect of debate. I am in agreement with the
view of Dr. D.Y. Chandrachud, J., who in paragraphs 144 to 146
of his judgment, states that the right of privacy cannot be denied,
even if there is a miniscule fraction of the population which is
affected. The majoritarian concept does not apply to Constitutional
rights and the Courts are often called up on to take what may be D
categorized as a non-majoritarian view, in the check and balance
of power envisaged under the Constitution of India. One’s sexual
orientation is undoubtedly an attribute of privacy…”125
With these observations by five of the nine judges in Puttaswamy,the
basis on which Koushal upheld the validity of Section 377 stands eroded E
and even disapproved.
56. We must now consider the impact of Section 377 on the
exercise of the right to privacy by sexual minorities. Legislation does not
exist in a vacuum. The social ramifications of Section 377 are enormous.
While facially Section 377 only criminalizes certain “acts”, and not F
relationships, it alters the prism through which a member of the LGBTQ
is viewed. Conduct and identity are conflated. 126 The impact of
criminalising non-conforming sexual relations is that individuals who fall
outside the spectrum of heteronormative127 sexual identity are perceived
as criminals.128 G
124
Puttaswamy, at para 145.
125
Puttaswamy, at para 647.
126
Supra note 116, at page 689.
127
The expression heteronormative is used to denote or relate to a world view that
promotes heterosexuality as the normal or preferred sexual orientation.
128
Supra note 116, at page 689.
H
646 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 57. World over, sexual minorities have struggled to find acceptance
in the heteronormative structure that is imposed by society. In her book
titled ‘Epistemology of the Closet’,129 Eve Sedgwick states that “the
closet is the defining structure for gay oppression in this century.” The
closet is symbolic of the exclusion faced by them:
B “Closets exist and they hide social information. They hide certain
socially proscribed sexual desires, certain unnamable sexual acts
deemed ‘unnatural‘ by the cultural context and law, certain
identities which dare not speak their name and certain forms of
behaviour which can make an individual susceptible to stigma
and oppression. The closet does not simply hide this susceptibility;
C it hides stigma and oppression itself. It marks the silencing of
different voices, a silence which is achieved by a gross violation
of lives that inhabit the closet, through both violence and pain
inflicted by significant others both within and without the closet
and instances of self-inflicted pain and violence. The closet also
D hides pleasure, myriad sexual expressions and furtive encounters
that gratify the self. The closet also conceals the possibility of
disease and death.”130
The existing heteronormative framework – which recognises only sexual
relations that conform to social norms – is legitimized by the taint of
E ‘unnaturalness’ that Section 377 lends to sexual relations outside this
framework. The notion of ‘unnatural acts’, viewed in myopic terms of a
“fixed procreational model of sexual functioning”, is improperly applied
to sexual relations between consenting adults.131 Sexual activity between
adults and based on consent must be viewed as a “natural expression”
of human sexual competences and sensitivities.132 The refusal to accept
F these acts amounts to a denial of the distinctive human capacities for
sensual experience outside of the realm of procreative sex.133
58. To deny the members of the LGBT community the full
expression of the right to sexual orientation is to deprive them of their

G 129
Eve Kosofsky Sedgwick, Epistemology of the Closet, University of California
Press (1990).
130
Supra note 65, at page 102.
131
David A. J. Richards, “Sexual Autonomy and the Constitutional Right to Privacy:
A Case Study in Human Rights and the Unwritten Constitution”, Hastings Law
Journal, Vol. 30, at page 786.
132
Ibid.
H 133
Ibid.
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 647
[DR.[DIPAK MISRA, CJI ] J.]
D. Y. CHANDRACHUD,

entitlement to full citizenship under the Constitution. The denial of the A
right to sexual orientation is also a denial of the right to privacy. The
application of Section 377 causes a deprivation of the fundamental right
to privacy which inheres in every citizen. This Court is entrusted with
the duty to act as a safeguard against such violations of human rights.
Justice Chelameswar, in his judgement in Puttaswamy, held that:
B
“To sanctify an argument that whatever is not found in the text
of the Constitution cannot become a part of the Constitution would
be too primitive an understanding of the Constitution and contrary
to settled cannons of constitutional interpretation. Such an
approach regarding the rights and liberties of citizens would be
an affront to the collective wisdom of our people and the wisdom C
of the members of the Constituent Assembly...”134
59. The exercise of the natural and inalienable right to privacy
entails allowing an individual the right to a self-determined sexual
orientation. Thus, it is imperative to widen the scope of the right to privacy
to incorporate a right to ‘sexual privacy’ to protect the rights of sexual D
minorities. Emanating from the inalienable right to privacy, the right to
sexual privacy must be granted the sanctity of a natural right, and be
protected under the Constitution as fundamental to liberty and as a
soulmate of dignity.
60. Citizens of a democracy cannot be compelled to have their E
lives pushed into obscurity by an oppressive colonial legislation. In order
to ensure to sexual and gender minorities the fulfilment of their
fundamental rights, it is imperative to ‘confront the closet’ and, as a
necessary consequence, confront ‘compulsory heterosexuality.’135
Confronting the closet would entail “reclaiming markers of all desires, F
identities and acts which challenge it.”136 It would also entail ensuring
that individuals belonging to sexual minorities, have the freedom to fully
participate in public life, breaking the invisible barrier that heterosexuality
imposes upon them. The choice of sexuality is at the core of privacy.
But equally, our constitutional jurisprudence must recognise that the public
assertion of identity founded in sexual orientation is crucial to the exercise G
of freedoms.
134
Puttaswamy, at Para 350.
135
Supra note 65, at page 103.
136
Ibid.
H
648 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 61. In conceptualising a right to sexual privacy, it is important to
consider how the delineation of ‘public’ and ‘private’ spaces affects the
lives of the LGBTIQ community. Members of the community have argued
that to base their claims on a right to privacy is of no utility to individuals
who do not possess the privilege of a private space.137 In fact, even for
individuals who have access to private spaces the conflation of ‘private’
B
with home and family may be misplaced.138 The home is often reduced
to a public space as heteronormativity within the family can force the
individual to remain inside the closet.139 Thus, even the conception of a
private space for certain individuals is utopian.140
62. Privacy creates “tiers of ‘reputable’ and ‘disreputable’ sex”,
C only granting protection to acts behind closed doors.141 Thus, it is
imperative that the protection granted for consensual acts in private must
also be available in situations where sexual minorities are vulnerable in
public spaces on account of their sexuality and appearance. 142 If one
accepts the proposition that public places are heteronormative, and same-
D sex sexual acts partially closeted, relegating ‘homosexual‘ acts into the
private sphere, would in effect reiterate the “ambient heterosexism of
the public space.”143 It must be acknowledged that members belonging
to sexual minorities are often subjected to harassment in public spaces.144
The right to sexual privacy, founded on the right to autonomy of a free
individual, must capture the right of persons of the community to navigate
E public places on their own terms, free from state interference.
F.I Sexual privacy and autonomy- deconstructing the
heteronormative framework
63. In the absence of a protected zone of privacy, individuals are
F forced to conform to societal stereotypes. Puttaswamy has characterised
the right to privacy as a shield against forced homogeneity and as an
essential attribute to achieve personhood:
137
Danish Sheikh, “Queer Rights and the Puttaswamy Judgement”, Economic and
Political Weekly, Vol. 52 (2017), at page 51.
138
G Supra note 65, at page 101.
139
Ibid.
140
Ibid.
141
Supra note 137, at page 51.
142
Saptarshi Mandal, “‘Right To Privacy’ In Naz Foundation: A Counter-
Heteronormative Critique”, NUJS Law Review, Vol. 2 (2009), at page 533.
143
Supra note 65, at page 100.
144
H Supra note 137, at page 53.
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 649
[DR.[DIPAK MISRA, CJI ] J.]
D. Y. CHANDRACHUD,

“…Recognizing a zone of privacy is but an acknowledgment A
that each individual must be entitled to chart and pursue the course
of development of personality. Hence privacy is a postulate of
human dignity itself. Thoughts and behavioural patterns which
are intimate to an individual are entitled to a zone of privacy
where one is free of social expectations. In that zone of privacy,
B
an individual is not judged by others. Privacy enables each
individual to take crucial decisions which find expression in the
human personality. It enables individuals to preserve their beliefs,
thoughts, expressions, ideas, ideologies, preferences and choices
against societal demands of homogeneity. Privacy is an intrinsic
recognition of heterogeneity, of the right of the individual to be C
different and to stand against the tide of conformity in creating a
zone of solitude. Privacy protects the individual from the searching
glare of publicity in matters which are personal to his or her life.
Privacy attaches to the person and not to the place where it is
associated.”145
D
This Court has recognized the right of an individual to break free from
the demands of society and the need to foster a plural and inclusive
culture. The judgment of four judges in Puttaswamy, for instance, held
that:
“Privacy constitutes the foundation of all liberty because it is in E
privacy that the individual can decide how liberty is best exercised.
Individual dignity and privacy are inextricably linked in a pattern
woven out of a thread of diversity into the fabric of a plural
culture.”146
64. In Santosh Singh v Union of India147, a two-judge Bench F
of this Court dismissed a petition under Article 32 seeking a direction to
the Central Board of Secondary Education to include moral science as a
compulsory subject in the school syllabus in order to inculcate moral
values. One of us (Chandrachud J) underscored the importance of
accepting a plurality of ideas and tolerance of radically different views:
G
“Morality is one and, however important it may sound to some, it
still is only one element in the composition of values that a just
society must pursue. There are other equally significant values
145
Puttaswamy, at para 297.
146
Puttaswamy, at para 297.
147
(2016) 8 SCC 253 H
650 SUPREME COURT REPORTS [2018] 7 S.C.R.

A which a democratic society may wish for education to impart to
its young. Among those is the acceptance of a plurality and
diversity of ideas, images and faiths which unfortunately faces
global threats. Then again, equally important is the need to foster
tolerance of those who hold radically differing views, empathy
for those whom the economic and social milieu has cast away to
B
the margins, a sense of compassion and a realisation of the innate
humanity which dwells in each human being. Value based
education must enable our young to be aware of the horrible
consequences of prejudice, hate and discrimination that continue
to threaten people and societies the world over…” 148
C The right to privacy enables an individual to exercise his or her autonomy,
away from the glare of societal expectations. The realisation of the human
personality is dependent on the autonomy of an individual. In a liberal
democracy, recognition of the individual as an autonomous person is an
acknowledgment of the State’s respect for the capacity of the individual
D to make independent choices. The right to privacy may be construed to
signify that not only are certain acts no longer immoral, but that there
also exists an affirmative moral right to do them.149 As noted by Richards,
this moral right emerges from the autonomy to which the individual is entitled:
“Autonomy, in the sense fundamental to the theory of human
E rights, is an empirical assumption that persons as suchhave a
range of capacities that enables them to develop, and act upon
plans of action that take as their object one’s life and the way it
is lived. The consequence of these capacities of autonomy is
that humans can make independent decisions regarding what
their life shall be, self-critically reflecting, as a separate being,
F which of one’s first-order desires will be developed and which
disowned, which capacities cultivated and which left barren, with
whom one will or will not identify, or what one will define and
pursue as needs and aspirations. In brief, autonomy gives to
persons the capacity to call their life their own. The development
of these capacities for separation and individuation is, from birth,
G
the central developmental task of becoming a person.”150
148
Ibid at para 22.
149
Supra note 131, at pages 1000-1001.
150
Supra note 131, at pages 964-965; M. Mahler, “The Psychological Birth of The
Human Infant: Symbiosis And Individuation” (1975); L. Kaplan, Oneness And
H Separateness: From Infant To Individual (1978).
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 651
[DR.[DIPAK MISRA, CJI ] J.]
D. Y. CHANDRACHUD,

65. In Common Cause (A Registered Society)v. Union of A
India (“Common Cause”)151,a Constitution Bench of this Courtheld
that the right to die with dignity is integral to the right to life recognised
by the Constitution and an individual possessing competent mental faculties
is entitled to express his or her autonomy by the issuance of an advance
medical directive:
B
“The protective mantle of privacy covers certain decisions that
fundamentally affect the human life cycle. It protects the most
personal and intimate decisions of individuals that affect their
life and development. Thus, choices and decisions on matters
such as procreation, contraception and marriage have been held
to be protected. While death is an inevitable end in the trajectory C
of the cycle of human life individuals are often faced with choices
and decisions relating to death. Decisions relating to death, like
those relating to birth, sex, and marriage, are protected by the
Constitution by virtue of the right of privacy…”152
Autonomy and privacy are inextricably linked. Each requires the other for D
its full realization. Their interrelationship has been recognised in Puttaswamy:
“…Privacy postulates the reservation of a private space for the
individual, described as the right to be left alone. The concept is
founded on the autonomy of the individual. The ability of an
individual to make choices lies at the core of the human personality. E
The notion of privacy enables the individual to assert and control
the human element which is inseparable from the personality of
the individual. The inviolable nature of the human personality is
manifested in the ability to make decisions on matters intimate to
human life. The autonomy of the individual is associated over
matters which can be kept private. These are concerns over F
which there is a legitimate expectation of privacy...”153
In order to understand how sexual choices are an essential attribute of
autonomy, it is useful to refer to John Rawls’ theory on social contract.
Rawls’ conception of the ‘Original Position’ serves as a constructive
model to illustrate the notion of choice behind a “partial veil of G
ignorance.”154 Persons behind the veil are assumed to be rational and
151
(2018) 5 SCC 1
152
Ibid, at para 441.
153
Puttaswamy, at para 297.
154
Thomas M. Jr. Scanlon, Rawls’ Theory of Justice, University of Pennsylvania
Law Review (1973) at 1022. H
652 SUPREME COURT REPORTS [2018] 7 S.C.R.

A mutually disinterested individuals, unaware of their positions in society.155
The strategy employed by Rawls is to focus on a category of goods
which an individual would desire irrespective of what individuals’
conception of ‘good’ might be.156 These neutrally desirable goods are
described by Rawls as ‘primary social goods’ and may be listed as rights,
liberties, powers, opportunities, income, wealth, and the constituents of
B
self-respect.157 Rawls’s conception of self-respect, as a primary human
good, is intimately connected to the idea of autonomy.158 Self-respect is
founded on an individual’s ability to exercise her native capacities in a
competent manner.159
66. An individual’s sexuality cannot be put into boxes or
C compartmentalized; it should rather be viewed as fluid, granting the
individual the freedom to ascertain her own desires and proclivities. The
self-determination of sexual orientation is an exercise of autonomy.
Accepting the role of human sexuality as an independent force in the
development of personhood is an acknowledgement of the crucial role
D of sexual autonomy in the idea of a free individual.160 Such an
interpretation of autonomy has implications for the widening application
of human rights to sexuality.161 Sexuality cannot be construed as something
that the State has the prerogative to legitimize only in the form of rigid,
marital procreational sex.162 Sexuality must be construed as a fundamental
experience through which individuals define the meaning of their lives.163
E Human sexuality cannot be reduced to a binary formulation. Nor can it
be defined narrowly in terms of its function as a means to procreation.
To confine it to closed categories would result in denuding human liberty
of its full content as a constitutional right. The Constitution protects the
fluidities of sexual experience. It leaves it to consenting adults to find
F fulfilment in their relationships, in a diversity of cultures, among plural
ways of life and in infinite shades of love and longing.

155
Ibid at 1023.
156
G Ibid at 1023.
157
Ibid at 1023.
158
Supra note 131, at page 971.
159
Ibid at page 972.
160
Supra note 131, at page 1003.
161
Ibid.
162
Ibid.
H 163
Ibid.
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 653
[DR.[DIPAK MISRA, CJI ] J.]
D. Y. CHANDRACHUD,

F.2 A right to intimacy- celebration of sexual agency A
67. By criminalising consensual acts between individuals who wish
to exercise their constitutionally-protected right to sexual orientation, the
State is denying its citizens the right to intimacy. The right to intimacy
emanates from an individual’s prerogative to engage in sexual relations
on their own terms. It is an exercise of the individual’s sexual agency, B
and includes the individual’s right to the choice of partner as well as the
freedom to decide on the nature of the relationship that the individual
wishes to pursue.
In Shakti Vahini v. Union of India164, a three judge Bench of this
Court issued directives to prevent honour killings at the behest of Khap
Panchayats and protect persons who enter into marriages that do not C
have the approval of the Panchayats. The Court recognised the right to
choose a life partner as a fundamental right under Articles 19 and 21 of
the Constitution. The learned Chief Justice held:
“…when two adults consensually choose each other as life
partners, it is a manifestation of their choice which is recognized D
under Articles 19 and 21 of the Constitution. Such a right has the
sanction of the constitutional law and once that is recognized,
the said right needs to be protected and it cannot succumb to the
conception of class honour or group thinking which is conceived
of on some notion that remotely does not have any legitimacy.”165 E
In Shafin Jahan v. Asokan166, this Court set aside a Kerala High Court
judgement which annulled the marriage of a twenty-four year old woman
with a man of her choice in a habeas corpus petition instituted by her
father. The Court upheld her right to choose of a life partner as well as
her autonomy in the sphere of “intimate personal decisions.” The Chief
Justice held thus: F
“…expression of choice in accord with law is acceptance of
individual identity. Curtailment of that expression and the ultimate
action emanating therefrom on the conceptual structuralism of
obeisance to the societal will destroy the individualistic entity of
a person. The social values and morals have their space but G
they are not above the constitutionally guaranteed freedom ..”167
(Emphasis supplied)
164
(2018) SCC OnLine SC 275
165
Ibid, at para 44.
166
(2018) SCC OnLine SC 343
167
Ibid, at para 54. H
654 SUPREME COURT REPORTS [2018] 7 S.C.R.

A One of us (Chandrachud J) recognised the right to choose a partner as
an important facet of autonomy:
“…The choice of a partner whether within or outside marriage
lies within the exclusive domain of each individual. Intimacies of
marriage lie within a core zone of privacy, which is inviolable.
B The absolute right of an individual to choose a life partner is not
in the least affected by matters of faith...Social approval for
intimate personal decisions is not the basis for recognising
them...”168 (Emphasis supplied)
The judgement in Shafin Jahan delineates a space where an individual
C enjoys the autonomy of making intimate personal decisions:
“The strength of the Constitution, therefore, lies in the guarantee
which it affords that each individual will have a protected
entitlement in determining a choice of partner to share intimacies
within or outside marriage.”169
D In furtherance of the Rawlsian notion of self-respect as a primary good,
individuals must not be denied the freedom to form relationships based
on sexual intimacy. Consensual sexual relationships between adults, based
on the human propensity to experience desire must be treated with
respect. In addition to respect for relationships based on consent, it is
E important to foster a society where individuals find the ability for
unhindered expression of the love that they experience towards their
partner. This “institutionalized expression to love” must be considered
an important element in the full actualisation of the ideal of self-respect.170
Social institutions must be arranged in such a manner that individuals
have the freedom to enter into relationships untrammelled by binary of
F sex and gender and receive the requisite institutional recognition to perfect
their relationships. 171 The law provides the legitimacy for social
institutions. In a democratic framework governed by the rule of law, the
law must be consistent with the constitutional values of liberty, dignity
and autonomy. It cannot be allowed to become a yoke on the full expression
G of the human personality. By penalising sexual conduct between
consenting adults, Section 377 imposes moral notions which are
168
Ibid, at para 88.
169
Ibid, at para 93.
170
David A. J. Richards, “Unnatural Acts and the Constitutional Right to Privacy: A
Moral Theory”, Fordham Law Review, Vol. 45 (1977), at pages 1130-1311.
H 171
Ibid at 1311.
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 655
[DR.[DIPAK MISRA, CJI ] J.]
D. Y. CHANDRACHUD,

anachronistic to a constitutional order. While ostensibly penalising ‘acts’, A
it impacts upon the identity of the LGBT community and denies them
the benefits of a full and equal citizenship. Section 377 is based on a
stereotype about sex. Our Constitution which protects sexual orientation
must outlaw any law which lends the authority of the state to obstructing
its fulfilment.
B
G Section 377 and the right to health
“Should medicine ever fulfil its great ends, it must enter into the
larger political and social life of our time; it must indicate the
barriers which obstruct the normal completion of the life cycle
and remove them.” C
- Virchow Rudolf
68. In the evolution of its jurisprudence on the constitutional right
to life under Article 21, this Court has consistently held that the right to
life is meaningless unless accompanied by the guarantee of certain
concomitant rights including, but not limited to, the right to health.172 The D
right to health is understood to be indispensable to a life of dignity and
well-being, and includes, for instance, the right to emergency medical
care and the right to the maintenance and improvement of public health.173
It would be useful to refer to judgments of this Court which have
recognised the right to health. E
In Bandhua Mukti Morcha v. Union of India174, a three-judge Bench
identified the right to health within the right to life and dignity. In doing
so, this Court drew on the Directive Principles of State Policy:
“It is the fundamental right of every one in this country … to live
F
with human dignity, free from exploitation. This right to live
with human dignity enshrined in Article 21 derives its life
breath from the Directive Principles of State Policy and
172
Dipika Jain and Kimberly Rhoten, “The Heteronormative State and the Right to
Health in India”, NUJS Law Review, Vol. 6 (2013).
173
C.E.S.C. Limited v. Subhash Chandra Bose, (1992) 1 SCC 441; Consumer Education
G
and Research Centre v. UOI, (1995) 3 SCC 42; Paschim Banga Khet Mazdoor
Samity v. State of West Bengal, (1996) 4 SCC 37; Society for Unaided Private
Schools of Rajasthan v. Union of India, (2012) 6 SCC 1; Devika Biswas v. Union of
India & Ors., (2016) 10 SCC 726; Common Cause v. Union of India & Ors., (2018)
5 SCC 1.
174
(1984) 3 SCC 161 H
656 SUPREME COURT REPORTS [2018] 7 S.C.R.

A particularly Clauses (e) and (f) of Article 39 and Articles
41 and 42 and at the least, therefore, it must include
protection of the health and strength of workers men and
women, and of the tender age of children against abuse,
opportunities and facilities for children to develop in a
healthy manner and in conditions of freedom and dignity,
B
educational facilities, just and humane conditions of work
and maternity relief. These are the minimum requirements
which must exist in order to enable a person to live with human
dignity and no State neither the Central Government nor any
State Government-has the right to take any action which will
C deprive a person of the enjoyment of these basic essentials.”
(Emphasis supplied)
In Consumer Education & Research Centre v. Union of India
(“CERC”)175, a Bench of three judges dealt with the right to health of
workers in asbestos industries. While laying down mandatory guidelines
D to be followed for the well-being of workers, the Court held that:
“The right to health to a worker is an integral facet of meaningful
right to life to have not only a meaningful existence but also
robust health and vigour without which worker would lead life of
misery. Lack of health denudes his livelihood...Therefore, it
E must be held that the right to health and medical care is a
fundamental right under Article 21 read with Articles 39(c),
41 and 43 of the Constitutionand makes the life of the
workman meaningful and purposeful with dignity of person.
Right to life includes protection of the health and strength of the
F worker and is a minimum requirement to enable a person to live
with human dignity.” (Emphasis supplied)

In a dissenting judgment in C.E.S.C. Limited v. Subhash Chandra
Bose176, K Ramaswamy J observed that:
G
“Health is thus a state of complete physical, mental and
social well-being and not merely the absence of disease
or infirmity. In the light of Articles. 22 to 25 of the Universal
Declaration of Human Rights, International Convention
175
(1995) 3 SCC 42
176
H (1992) 1 SCC 441
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 657
[DR.[DIPAK MISRA, CJI ] J.]
D. Y. CHANDRACHUD,

on Economic, Social and Cultural Rights, and in the light A
of socio-economic justice assured in our constitution, right
to health is a fundamental human right to workmen. The
maintenance of health is a most imperative constitutional goal
whose realisation requires interaction by many social and
economic factors” (Emphasis supplied)
B
In Kirloskar Brothers Ltd. V. Employees’ State Insurance
Corporation 177,a three-judge Bench of this Court considered the
applicability of the Employees’ State Insurance Act, 1948 to the regional
offices of the Appellant, observing that:
“Health is thus a state of complete physical, mental and social C
well-being. Right to health, therefore, is a fundamental and human
right to the workmen. The maintenance of health is the most
imperative constitutional goal whose realisation requires
interaction of many social and economic factors.”
In State of Punjab v. Ram Lubhaya Bagga178, a three-judge Bench of D
this Court considered a challenge to the State of Punjab’s medical
reimbursement policy. A.P. Mishra J, speaking for the Bench, observed
that:
“Pith and substance of life is the health, which is the nucleus of
all activities of life including that of an employee or other viz. the E
physical, social, spiritual or any conceivable human activities. If
this is denied, it is said everything crumbles.
This Court has time and again emphasised to the Government
and other authorities for focussing and giving priority and other
authorities for focussing and giving priority to the health of its, F
citizen, which not only makes one’s life meaningful, improves
one’s efficiency, but in turn gives optimum out put.”
In SmtM Vijaya v. The Chairman and Managing Director Singareni
Collieries Co. Ltd.179, a five judge Bench of the Andhra Pradesh High
Court considered a case where a girl was infected with HIV due to the
G
negligence of hospital authorities. The Court observed that:
“Article 21 of the Constitution of India provides that no person
shall be deprived of his life or personal liberty except according
177
(1996) 2 SCC 682
178
(1998) 4 SCC 117
179
(2001) 5 ALD 522 H
658 SUPREME COURT REPORTS [2018] 7 S.C.R.

A to procedure established by law. By reason of numerous
judgments of the Apex Court the horizons of Article 21 of the
Constitution have been expanded recognising various rights of
the citizens i.e...right to health...
It is well settled that right to life guaranteed under Article 21 is
B not mere animal existence. It is a right to enjoy all faculties of
life. As a necessary corollary, right to life includes right to healthy
life.”
In Devika Biswas v. Union of India180, while hearing a public interest
petition concerning several deaths that had taken place due to unsanitary
conditions in sterilization camps across the country, a two judge Bench
C
of this Court held that:
“It is well established that the right to life under Article 21 of the
Constitution includes the right to lead a dignified and meaningful
life and the right to health is an integral facet of this right...That
the right to health is an integral part of the right to life does not
D need any repetition.”
In his concurring judgment in Common Cause v. Union of India, Sikri
J, noted the inextricable link between the right to health and dignity:
“There is a related, but interesting, aspect of this dignity which
needs to be emphasised. Right to health is a part of Article
E 21 of the Constitution. At the same time, it is also a harsh
reality that everybody is not able to enjoy that right because of
poverty etc. The State is not in a position to translate into reality
this right to health for all citizens. Thus, when citizens are not
guaranteed the right to health, can they be denied right to die in
F dignity?” (Emphasis supplied)
In addition to the constitutional recognition granted to the right to health,
the right to health is also recognised in international treaties, covenants,
and agreements which India has ratified, including the International
Covenant on Economic, Social and Cultural Rights, 1966 (“ICESCR”)
and the Universal Declaration of Human Rights, 1948 (“UDHR”). Article
G 25 of the UDHR recognizes the right to health:
“Everyone has the right to a standard of living adequate for the
health and well-being of himself and of his family, including food,
clothing, housing and medical care and necessary social services.”
180
H (2016) 10 SCC 726
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 659
[DR.[DIPAK MISRA, CJI ] J.]
D. Y. CHANDRACHUD,

69. Article 12 of the International Covenant on Economic, Social A
and Cultural Rights (“ICESCR”) recognizes the right of all persons to
the enjoyment of the highest attainable standard of physical and mental
health:
“The States Parties to the present Covenant recognize the right
of everyone to the enjoyment of the highest attainable standard B
of physical and mental health.”
Article 12.2 requires States Parties to take specific steps to improve the
health of their citizens, including creating conditions to ensure equal and
timely access to medical services. In its General Comment No. 14,181
the UN Economic and Social Council stated that States must take
measures to respect, protect and fulfil the health of all persons. States C
are obliged to ensure the availability and accessibility of health-related
information, education, facilities, goods and services, without
discrimination, especially for vulnerable and marginalized populations.
Pursuant to General Comment No. 14, India is required to provide
marginalized populations, including members of the LGBTIQ community, D
goods and services that are available (in sufficient quantity), accessible
(physically, geographically, economically and in a non-discriminatory
manner), acceptable (respectful of culture and medical ethics) and of
quality (scientifically and medically appropriate and of good quality).
70. As early as 1948, the World Health Organization (“WHO”) E
defined the term ‘health’ broadly to mean “a state of complete physical,
mental and social well-being and not merely the absence of disease or
infirmity.”182 Even today, for a significant number of Indian citizens this
standard of health remains an elusive aspiration. Of relevance to the
present case, a particular class of citizens is denied the benefits of this
constitutional enunciation of the right to health because of their most F
intimate sexual choices.
71. Sexuality is a natural and precious aspect of life, an essential
and fundamental part of our humanity.183 Sexual rights are entitlements
related to sexuality and emanate from the rights to freedom, equality,
privacy, autonomy, and dignity of all people.184 For people to attain the G
181
UN Economic and Social Council (ECOSOC), Committee on Economic, Social and
Cultural Rights, General Comment No. 14: The Right to the Highest Attainable
Standard of Health, UN Doc. E/C.12/2004 (2000).
182
Definition contained in the Preamble to the WHO Constitution (1948).
183
Sexual Rights, International Planned Parenthood Federation (2008).
184
Ibid. H
660 SUPREME COURT REPORTS [2018] 7 S.C.R.

A highest standard of health, they must also have the right to exercise
choice in their sexual lives and feel safe in expressing their sexual identity.
However, for some citizens, discrimination, stigma, fear and violence
prevent them from attaining basic sexual rights and health.
72. Individuals belonging to sexual and gender minorities
B experience discrimination, stigmatization, and, in some cases, denial of
care on account of their sexual orientation and gender identity.185
However, it is important to note that ‘sexual and gender minorities’ do
not constitute a homogenous group, and experiences of social exclusion,
marginalization, and discrimination, as well as specific health needs, vary
considerably.186 Nevertheless, these individuals are united by one factor
C - that their exclusion, discrimination and marginalization is rooted in societal
heteronormativity and society’s pervasive bias towards gender binary
and opposite-gender relationships, which marginalizes and excludes all
non-heteronormative sexual and gender identities.187 This, in turn, has
important implications for individuals’ health-seeking behaviour, how
D health services are provided, and the extent to which sexual health can
be achieved.188
73. The term ‘sexual health’ was first defined in a 1975 WHO
Technical Report series as “the integration of the somatic, emotional,
intellectual and social aspects of sexual being, in ways that are positively
E enriching and that enhance personality, communication and love.”189 The
WHO’s current working definition of sexual health is as follows:
“…a state of physical, emotional, mental and social well-being in
relation to sexuality; it is not merely the absence of disease,
dysfunction or infirmity. Sexual health requires a positive and
F respectful approach to sexuality and sexual relationships, as well
as the possibility of having pleasurable and safe sexual
experiences, free of coercion, discrimination and violence. For
185
Alexandra Muller,”Health for All? Sexual Orientation, Gender Identity, and the
Implementation of the Right to Access to Health Care in South Africa”, Health and
Human Rights(2016) at pages 195–208.
G 186
Institute of Medicine,”The Health of Lesbian, Gay, Bisexual, and Transgender
People: Building a Foundation for Better Understanding”, National Academies
Press (2011).
187
Supra note 185, at pages 195–208.
188
Ibid.
189
World Health Organization, “Gender and human rights: Defining sexual health”,
H (2002).
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 661
[DR. [DIPAK
D. Y. CHANDRACHUD,
MISRA, CJI ] J.]

sexual health to be attained and maintained, the sexual rights of A
all persons must be respected, protected and fulfilled.”
The WHO further states that “sexual health cannot be defined,
understood or made operational without a broad consideration of sexuality,
which underlies important behaviours and outcomes related to sexual
health.” It defines sexuality thus: B
“…a central aspect of being human throughout life encompasses
sex, gender identities and roles, sexual orientation, eroticism,
pleasure, intimacy and reproduction. Sexuality is experienced
and expressed in thoughts, fantasies, desires, beliefs, attitudes,
values, behaviours, practices, roles and relationships. While C
sexuality can include all of these dimensions, not all of them are
always experienced or expressed. Sexuality is influenced by the
interaction of biological, psychological, social, economic, political,
cultural, legal, historical, religious and spiritual factors.”
74. A report entitled “Sexual Health, Human Rights and the D
190
Law”, published by the WHO in 2015 explores the relationship between
these concepts. The report notes that “human sexuality includes many
different forms of behaviour and expression, and that the recognition of
the diversity of sexual behaviour and expression contributes to people’s
overall sense of health and well-being.”191 It emphasizes the importance
of sexual health by stating that not only is it essential to the physical and E
emotional well-being of individuals, couples and families, but it is also
fundamental to the social and economic development of communities
and countries.192 The ability of individuals to progress towards sexual
health and well-being depends on various factors, including “access to
comprehensive information about sexuality, knowledge about the risks F
they face and their vulnerability to the adverse consequences of sexual
activity; access to good quality sexual health care, and an environment
that affirms and promotes sexual health.”
75. The International Women’s Health Coalition has located the
right to sexual health within ‘sexual rights’, defined as follows: 193 G
“Sexual rights embrace certain human rights that are already
recognized in national laws, international human rights documents,
190
World Health Organisation, “Sexual Health, Human Rights and the Law” (2015).
191
Ibid.
192
Ibid.
193
International Women’s Health Coalition, “Sexual Rights are Human Rights” (2014). H
662 SUPREME COURT REPORTS [2018] 7 S.C.R.

A and other consensus documents. They rest on the recognition
that all individuals have the right—free of coercion, violence,
and discrimination of any kind—to the highest attainable standard
of sexual health; to pursue a satisfying, safe, and pleasurable
sexual life; to have control over and decide freely, and with due
regard for the rights of others, on matters related to their sexuality,
B
reproduction, sexual orientation, bodily integrity, choice of partner,
and gender identity; and to the services, education, and
information, including comprehensive sexuality education,
necessary to do so.”
The discussion of ‘sexual rights’ (as they pertain to sexuality and sexual
C orientation) within the framework of the right to health is a relatively
new phenomenon:194
“..Before the 1993 World Conference on Human Rights in Vienna,
and the subsequent 1994 International Conference on Population
and Development in Cairo, sexuality, sexual rights, and sexual
D diversity had not formed part of the international health and
human rights discourse. These newly emerged “sexual
rights” were founded on the principles of bodily integrity,
personhood, equality, and diversity.”195(Emphasis supplied)
76. The operation of Section 377 denies consenting adults the full
E realization of their right to health, as well as their sexual rights. It forces
consensual sex between adults into a realm of fear and shame, as persons
who engage in anal and oral intercourse risk criminal sanctions if they
seek health advice. This lowers the standard of health enjoyed by them
and particularly by members of sexual and gender minorities, in relation
F to the rest of society.
77. The right to health is not simply the right not to be unwell, but
rather the right to be well. It encompasses not just the absence of disease
or infirmity, but “complete physical, mental and social well being”,196
and includes both freedoms such as the right to control one’s health and
G body and to be free from interference (for instance, from non-consensual
medical treatment and experimentation), and entitlements such as the
right to a system of healthcare that gives everyone an equal opportunity
to enjoy the highest attainable level of health.
194
Supra note 185, at pages 195–208.
195
Supra note 185, at pages 195–208.
H 196
Preamble to the Constitution of the World Health Organisation.
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 663
[DR.[DIPAK MISRA, CJI ] J.]
D. Y. CHANDRACHUD,

78. The jurisprudence of this Court, in recognizing the right to A
health and access to medical care, demonstrates the crucial distinction
between negative and positive obligations. Article 21 does not impose
upon the State only negative obligations not to act in such a way as to
interfere with the right to health. This Court also has the power to impose
positive obligations upon the State to take measures to provide adequate
B
resources or access to treatment facilities to secure effective enjoyment
of the right to health.197
79. A study of sexuality and its relationship to the right to health in
South Africa points to several other studies that suggest a negative
correlation between sexual orientation-based discrimination and the right
to health: C

“For example, in a Canadian study, Brotman and colleagues found
that being open about their sexual orientation in health care
settings contributed to experiences of discrimination for lesbian,
gay, and bisexual people.”198
D
“Lane and colleagues interviewed men who have sex with men
in Soweto, and revealed that all men who disclosed their sexual
orientation at public health facilities had experienced some form
of discrimination. Such discrimination [‘ranging from verbal abuse
to denial of care’199], and also the anticipation thereof, leads to
delays when seeking sexual health services such as HIV E
counseling and testing.”200
80. Alexandra Muller describes the story of two individuals who
experienced such discrimination. T, a gay man, broke both his arms while
fleeing from a group of people that attacked him because of his sexuality.
At the hospital, the staff learned about T’s sexual orientation, and F
pejoratively discussed it in his presence. He also had to endure “a local
prayer group that visited the ward daily to provide spiritual support to
patients” which “prayed at his bedside to rectify his “devious” sexuality.
When he requested that they leave, or that he be transferred to another
ward, the nurses did not intervene, and the prayer group visited regularly G
to continue to recite their homophobic prayers. T did not file an official
197
Jayna Kothari, “Social Rights and the Indian Constitution”, Law, Social Justice and
Global Development Journal (2004).
198
Supra note 185, at pages 195–208.
199
Ibid.
200
Ibid. H
664 SUPREME COURT REPORTS [2018] 7 S.C.R.

A complaint, fearing future ramifications in accessing care. Following his
discharge, he decided not to return for follow up appointments and had
his casts removed at another facility.201
Another woman, P, who had been with her female partner for three
years, wanted to get tested for HIV. The nurse at the hospital asked
B certain questions to discern potential risk behaviours. When asked why
she did not use condoms or contraception, P revealed that she did not
need to on account of her sexuality. The nurse immediately exclaimed
that P was not at risk for HIV, and that she should “go home and not
waste her time any longer.” P has not attempted to have another HIV
test since.202
C
These examples are illustrative of a wider issue: individuals across the
world are denied access to equal healthcare on the basis of their sexual
orientation. That people are intimidated or blatantly denied healthcare
access on a discriminatory basis around the world proves that this issue
is not simply an ideological tussle playing out in classrooms and
D courtrooms, but an issue detrimentally affecting individuals on the ground
level and violating their rights including the right to health.
81. The right to health is one of the major rights at stake in the
struggle for equality amongst gender and sexual minorities:203

E “The right to physical and mental health is at conflict with
discriminatory policies and practices, some physicians’
homophobia, the lack of adequate training for health care
personnel regarding sexual orientation issues or the general
assumption that patients are heterosexuals.”204

F While the enumeration of the right to equal healthcare is crucial, an
individual’s sexual health is also equally significant to holistic well-being.
A healthy sex life is integral to an individual’s physical and mental health,
regardless of whom an individual is attracted to. Criminalising certain
sexual acts, thereby shunning them from the mainstream discourse, would
invariably lead to situations of unsafe sex, coercion, and a lack of sound
G medical advice and sexual education, if any at all.

201
Ibid.
202
Ibid.
203
Study Guide: Sexual Orientation and Human Rights, University of Minnesota
Human RIghts Library (2003).
H 204
Ibid.
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 665
[DR. [DIPAK MISRA, CJI ] J.]
D. Y. CHANDRACHUD,

82. A report by the Francois-Xavier Bagnoud Center for Health A
and Human Rights at Harvard School of Public Health defines the term
‘sexual health’ as follows:
“A state of physical, emotional, mental, and social well-being in
relation to sexuality. Like health generally, it is not merely the
absence of disease, but encompasses positive and complex B
experiences of sexuality as well as freedom to determine sexual
relationships, as well as the possibility of having pleasurable sexual
experiences, free of coercion, discrimination and violence.”205
83. Laws that criminalize same-sex intercourse create social
barriers to accessing healthcare, and curb the effective prevention and C
treatment of HIV/AIDS.206 Criminal laws are the strongest expression
of the State’s power to punish certain acts and behaviour, and it is therefore
incumbent upon the State to ensure full protection for all persons, including
the specific needs of sexual minorities. The equal protection of law
mandates the state to fulfill this constitutional obligation. Indeed, the state
is duty bound to revisit its laws and executive decisions to ensure that D
they do not deny equality before the law and the equal protection of
laws. That the law must not discriminate is one aspect of equality. But
there is more. The law must take affirmative steps to achieve equal
protection of law to all its citizens, irrespective of sexual orientation.
In regard to sexuality and health, it is important to distinguish between E
behaviour that is harmful to others, such as rape and coerced sex, and
that which is not, such as consensual same-sex conduct between adults,
conduct related to gender-expression such as cross-dressing, as well as
seeking or providing sexual and reproductive health information and
services. The use of criminal laws in relation to an expanding range of F
otherwise consensual sexual conduct has been found to be discriminatory
by international and domestic courts, often together with violations of
other human rights, such as the rights to privacy, self-determination, human
dignity and health.207

G
205
Center for Health and Human Rights and Open Society Foundations. “Health and
Human Rights Resource Guide(2013).
206
Supra note 172.
207
Eszter Kismodi, Jane Cottingham, Sofia Gruskin & Alice M. Miller,”Advancing
sexual health through human rights: The role of the law”, Taylor and Francis,
(2015), at pages 252-267.
H
666 SUPREME COURT REPORTS [2018] 7 S.C.R.

A G.I Section 377 and HIV prevention efforts
84. Section 377 has a significant detrimental impact on the right
to health of those persons who are susceptible to contracting HIV –
men who have sex with men (“MSM”)208 and transgender persons.209
The Global Commission on HIV and the Law has noted the impact of
B Section 377 on the right of health of persons afflicted with or vulnerable
to contracting HIV:
“The law and its institutions can protect the dignity of all people
living with HIV, and in so doing fortify those most vulnerable to
HIV, so-called “key populations”, such as sex workers, MSM,
transgender people, prisoners and migrants. The law can open
C the doors to justice when these people’s rights are trampled….
But the law can also do grave harm to the bodies and spirits of
people living with HIV. It can perpetuate discrimination and isolate
the people most vulnerable to HIV from the programmes that
would help them to avoid or cope with the virus. By dividing
D people into criminals and victims or sinful and innocent, the legal
environment can destroy the social, political, and economic
solidarity that is necessary to overcome this global epidemic.” 210
85. Mr Anand Grover, learned Senior Counsel in his submissions,
highlighted the vulnerability of MSM and transgender persons. According
E to a study published by the Global Commission on HIV and the Law,
MSM were found to be 19 times more susceptible to be infected with
HIV than other adult men.211
208
The term “men who have sex with men” (MSM) denotes all men who have sex with
men, regardless of their sexual identity, sexual orientation and whether or not they
also have sex with females. MSM is an epidemiological term which focuses on
F sexual behaviours for the purpose of HIV and STI surveillance. The assumption is
that behaviour, not sexual identity, places people at risk for HIV. See Regional
Office for South-East Asia, World Health Organization, “HIV/AIDS among men
who have sex with men and transgender populations in South-East Asia: the current
situation and national responses” (2010).
209
Transgender people continue to be included under the umbrella term “MSM”.
However, it has increasingly been recognized that Transgender people have unique
G needs and concerns, and it would be more useful to view them as a separate group.
See Regional Office for South-East Asia, World Health Organization, “HIV/AIDS
among men who have sex with men and transgender populations in South-East
Asia: the current situation and national responses” (2010).
210
United Nations Development Programme, “Global Commission on HIV and the
Law: Risks, Rights and Health” (2012), at pages 11-12.
211
Ibid at page 45; HIV prevalence amongst MSM is 4.3% and amongst transgender
H persons it is 7.5% as opposed to the overall adult HIV prevalence of 0.26%.
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 667
[DR.[DIPAK MISRA, CJI ] J.]
D. Y. CHANDRACHUD,

86. The UN Human Rights Committee has recognized the impact A
of the criminalization of homosexuality on the spread of HIV/AIDS. In
Toonen v Australia212, a homosexual man from Tasmania, where
homosexual sex was criminalized, argued that criminalization of same-
sex activities between consenting adults was an infringement of his right
to privacy under Article 17 of the International Covenant on Civil and
B
Political Rights (“ICCPR”). The Committee rejected the argument of
the Tasmanian authorities that the law was justified on grounds of public
health and morality as it was enacted to prevent the spread of HIV/
AIDS in Tasmania. The Committee observed that:
“... the criminalization of homosexual practices cannot be
considered a reasonable means or proportionate measure to C
achieve the aim of preventing the spread of AIDS/HIV …
Criminalization of homosexual activity thus would appear to run
counter to the implementation of effective education programmes
in respect of the HIV/AIDS prevention. Secondly, the Committee
notes that no link has been shown between the continued D
criminalization of homosexual activity and the effective control
of the spread of the HIV/AIDS virus.”
In response to the Committee’s decision, a law was enacted to overcome
the Tasmanian law criminalizing homosexual sex.
87. Section 377 has had far-reaching consequences for this “key E
population”, pushing them out of the public health system. MSM and
transgender persons may not approach State health care providers for
fear of being prosecuted for engaging in criminalized intercourse. Studies
show that it is the stigma attached to these individuals that contributes to
increased sexual risk behaviour and/or decreased use of HIV prevention F
services.213
88. The silence and secrecy that accompanies institutional
discrimination may foster conditions which encourage escalation of the
incidence of HIV/AIDS.214 The key population is stigmatized by health
212
Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994), decision G
dated 31/03/1994.
213
Beena Thomas, Matthew J. Mimiaga, Senthil Kumar, Soumya Swaminathan, Steven
A. Safren, and Kenneth H. Mayer, “HIV in Indian MSM: Reasons for a concentrated
epidemic & strategies for prevention”, Indian Journal Medical Research (2011), at
pages 920–929.
214
Ibid.
H
668 SUPREME COURT REPORTS [2018] 7 S.C.R.

A providers, employers and other service providers.215 As a result, there
exist serious obstacles to effective HIV prevention and treatment as
discrimination and harassment can hinder access to HIV and sexual
health services and prevention programmes.216
89. An incisive article, based on extensive empirical research
B carried out in various countries, has concluded that there is a demonstrable
relationship between “laws which criminalize same-sex conduct and
adverse health effects on HIV-AIDs rates as well as other health
indicators for the MSM community” due to poor access to key HIV
prevention tools and outreach programmes.217 According to a report
published by the Joint United Nations Programme on HIV/AIDS
C (“UNAIDS”), in Caribbean countries where same-sex relations are
criminalised, almost one in four MSMs is infected with HIV.218 In the
absence of such criminal provisions, the prevalence of HIV is one in
fifteen among MSMs.219
90. Closer to home, the UNAIDS project found that in the four
D years following the judgement in Naz, there had been an increase of
more than 50% in the number of healthcare centers providing HIV
services to MSM and transgender persons in India.220 If same-sex
relations remain criminalised, it is likely that HIV interventions for MSMs
will continue to be inadequate, MSMs will continue to be marginalised
E from health services, and the prevalence of HIV will exacerbate.221
91. To safeguard the health of persons who are at the greatest
risk of HIV infection, it is imperative that access is granted to effective
HIV prevention and treatment services and commodities such as clean
needles, syringes, condoms and lubricants.222 A needle or a condom can
F only be considered a concrete representation of the entitlements of
vulnerable groups: the fundamental human rights of dignity, autonomy
and freedom from ill- treatment, along with the right to the highest
215
Ibid.
216
Ibid.
217
Supra note 172, at page 636.
G 218
Supra note 210, at page 45.
219
Ibid.
220
UNAIDS, “UNAIDS Calls on India and All Countries to Repeal Laws That
Criminalize Adult Consensual Same Sex Sexual Conduct”(2013).
221
UNAIDS, “Judging the Epidemic: A Judicial Handbook on HIV, Human Rights and
the Law”(2013) at page 165.
222
H Supra note 210, at page 26.
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 669
[DR.[DIPAK MISRA, CJI ] J.]
D. Y. CHANDRACHUD,

attainable standard of physical and mental health, without regard to A
sexuality or legal status.223 This is the mandate of the Directive Principles
contained in Part IV of the Constitution.
92. In 2017, Parliament enacted the HIV (Prevention and Control)
Act, to provide for the prevention and control of the spread of HIV/
AIDS and for the protection of the human rights of persons affected. B
Parliament recognized the importance of prevention interventions for
vulnerable groups including MSMs. Section 22 of this Act provides for
protection against criminal sanctions as well as any civil liability arising
out of promoting actions or practices or “any strategy or mechanism or
technique” undertaken for reducing the risk of HIV transmission.
Illustrations (a) and (b) to Section 22 read as follows: C

“(a) A supplies condoms to B who is a sex worker or to C, who
is a client of B. Neither A nor B nor C can be held criminally or
civilly liable for such actions or be prohibited, impeded, restricted
or prevented from implementing or using the strategy.
D
(b) M carries on an intervention project on HIV or AIDS and
sexual health information, education and counselling for men,
who have sex with men, provides safer sex information, material
and condoms to N, who has sex with other men. Neither M nor
N can be held criminally or civilly liable for such actions or be
prohibited, impeded, restricted or prevented from implementing E
or using the intervention.”
Persons who engage in anal or oral intercourse face significant sexual
health risks due to the operation of Section 377. Prevalence rates of
HIV are high, particularly among men who have sex with men.
Discrimination, stigma and a lack of knowledge on the part of many F
healthcare providers means that these individuals often cannot and do
not access the health care they need. In order to promote sexual health
and reduce HIV transmission among LGBT individuals, it is imperative
that the availability, effectiveness, and quality of health services to the
LGBT community be significantly improved. G
Under our constitutional scheme, no minority group must suffer
deprivation of a constitutional right because they do not adhere to the
majoritarian way of life. By the application of Section 377 of the Indian
223
Ibid, at page 26.
H
670 SUPREME COURT REPORTS [2018] 7 S.C.R.

A Penal Code, MSM and transgender persons are excluded from access
to healthcare due to the societal stigma attached to their sexual identity.
Being particularly vulnerable to contraction of HIV, this deprivation can
only be described as cruel and debilitating. The indignity suffered by the
sexual minority cannot, by any means, stand the test of constitutional
validity.
B
G.2 Mental health
93. The treatment of homosexuality as a disorder has serious
consequences on the mental health and well-being of LGBT persons.
The mental health of citizens “growing up in a culture that devalues and
C silences same-sex desire” is severely impacted.224 Global psychiatric
expert Dinesh Bhugra has emphasised that radical solutions are needed
to combat the high levels of mental illness among the LGBT population
stating there is a “clear correlation between political and social
environments” and how persecutory laws against LGBT individuals are
leading to greater levels of depression, anxiety, self-harm, and suicide.
D Even in Britain, gay people are at greater risk of a range of mental
health problems, and, it is believed, are more likely to take their own
lives.
“A number of studies this year have highlighted the
disproportionate levels of mental illness among LGBT people. In
E Britain, one of the world’s most legally equal countries for this
community, research in the last few months has revealed that
LGBT people are nearly twice as likely to have attempted suicide
or harmed themselves, gay men are more than twice as likely
to have a mental illness than heterosexual men, and 4 in 5
F transgender people have suffered depression in the last five
years.”225
(Emphasis supplied)
He discusses studies from various countries which indicate that in
countries where laws continue to discriminate against LGBT individuals,
G there are high rates of mental illness. Similarly he states that there have

224
Ketki Ranade, “Process of Sexual Identity Development for Young People with
Same Sex Desires: Experiences of Exclusion”, Psychological Foundations - The
Journal (2008).
225
Dinesh Bhugra, globally renowned psychiatrist (article annexed in compilation
H provided by Mr. Chander Uday Singh, learned Senior Counsel).
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 671
[DR. [DIPAK MISRA, CJI ] J.]
D. Y. CHANDRACHUD,

been a series of studies showing that in America, rates of psychiatric A
disorders have dropped when state policies have recognised the equal
rights of LGBT individuals.
94. Mr Chander Uday Singh, learned Senior Counsel appearing
on behalf of an intervenor, a psychiatrist, has brought to our notice how
even the mental health sector has often reflected the societal prejudice B
regarding homosexuality as a pathological condition.
95. Medical and scientific authority has now established that
consensual same sex conduct is not against the order of nature and that
homosexuality is natural and a normal variant of sexuality. Parliament
has provided legislative acknowledgment of this global consensus through C
the enactment of the Mental Healthcare Act, 2017.Section 3 of the Act
mandates that mental illness is to be determined in accordance with
‘nationally’ or ‘internationally’ accepted medical standards. The
International Classification of Diseases (ICD-10) by the World Health
Organisation is listed as an internationally accepted medical standard
and does not consider non-peno-vaginal sex between consenting adults D
either a mental disorder or an illness. The Act through Section 18(2) 226
and Section 21227 provides for protection against discrimination on the
grounds of sexual orientation.
The repercussions of prejudice, stigma and discrimination continue to
impact the psychological well-being of individuals impacted by E
Section 377. Mental health professionals can take this change in the
law as an opportunity to re-examine their own views of homosexuality.
96. Counselling practices will have to focus on providing support
to homosexual clients to become comfortable with who they are and get
F
226
Section 18. Right to access mental healthcare.—(1) Every person shall have a
right to access mental healthcare and treatment from mental health services run or
funded by the appropriate Government. (2) The right to access mental healthcare
and treatment shall mean mental health services of affordable cost, of good quality,
available in sufficient quantity, accessible geographically, without discrimination
on the basis of gender, sex, sexual orientation, religion, culture, caste, social or G
political beliefs, class, disability or any other basis and provided in a manner that is
acceptable to persons with mental illness and their families and care-givers.
227
Section 21. Right to equality and non-discrimination.—(1) Every person with
mental illness shall be treated as equal to persons with physical illness in the
provision of all healthcare which shall include the following, namely:— (a) there
shall be no discrimination on any basis including gender, sex, sexual orientation,
religion, culture, caste, social or political beliefs, class or disability. H
672 SUPREME COURT REPORTS [2018] 7 S.C.R.

A on with their lives, rather than motivating them for change. Instead of
trying to cure something that isn’t even a disease or illness, the counsellors
have to adopt a more progressive view that reflects the changed medical
position and changing societal values. There is not only a need for special
skills of counsellors but also heightened sensitivity and understanding of
LGBT lives. The medical practice must share the responsibility to help
B
individuals, families, workplaces and educational and other institutions to
understand sexuality completely in order to facilitate the creation of a
society free from discrimination228 where LGBT individuals like all other
citizens are treated with equal standards of respect and value for human
rights.
C H. Judicial review
97. The Constitution entrusts the function of making laws to
Parliament and the State Legislatures under Articles 245 and 246 of the
Constitution. Parliament and the State Legislatures are empowered to
create offences against laws with respect to the heads of legislation,
D falling within the purview of their legislative authority. (See Entry 93 of
List I and Entry 64 of List II of the Seventh Schedule). Criminal law is
a subject which falls within the Concurrent List. Entry I of List III
provides thus:
“1. Criminal law, including all matters included in the Indian Penal
E Code at the commencement of this Constitution but excluding
offences against laws with respect to any of the matters specified
in List I or List II and excluding the use of naval, military or air
forces or any other armed forces of the Union in aid of the civil
power.”
F The power to enact legislation in the field of criminal law has been
entrusted to Parliament and, subject to its authority, to the State
Legislatures. Both Parliament and the State Legislatures can enact laws
providing for offences arising out of legislation falling within their
legislative domains. The authority to enact law, however, is subject to
G the validity of the law being scrutinised on the touchstone of constitutional
safeguards. A citizen, or, as in the present case, a community of citizens,
having addressed a challenge to the validity of a law which creates an
offence, the authority to determine that question is entrusted to the judicial
branch in the exercise of the power of judicial review. The Court will
228
Vinay Chandran, “From judgement to practice: Section 377 and the medical sector”,
H Indian Journal of Medical Ethics, Vol. 4 (2009).
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 673
[DR.[DIPAK MISRA, CJI ] J.]
D. Y. CHANDRACHUD,

not, as it does not, in the exercise of judicial review, second guess a A
value judgment made by the legislature on the need for or the efficacy
of legislation. But where a law creating an offence is found to be offensive
to fundamental rights, such a law is not immune to challenge. The
constitutional authority which is entrusted to the legislatures to create
offences is subject to the mandate of a written Constitution. Where the
B
validity of the law is called into question, judicial review will extend to
scrutinising whether the law is manifestly arbitrary in its encroachment
on fundamental liberties. If a law discriminates against a group or a
community of citizens by denying them full and equal participation as
citizens, in the rights and liberties granted by the Constitution, it would be
for the Court to adjudicate upon validity of such a law. C
I. India’s commitments at International Law
98. International human rights treaties and jurisprudence impose
obligations upon States to protect all individuals from violations of their
human rights, including on the basis of their sexual orientation.229
Nevertheless, laws criminalizing same-sex relations between consenting D
adults remain on the statute books in more than seventy countries. Many
of them, including so-called “sodomy laws”, are vestiges of colonial-era
legislation that prohibits either certain types of sexual activity or any
intimacy or sexual activity between persons of the same sex. 230 In some
cases, the language used refers to vague and indeterminate concepts, E
such as ‘crimes against the order of nature’, ‘morality’, or
‘debauchery’.231 There is a familiar ring to it in India, both in terms of
history and text.
99. International law today has evolved towards establishing that
the criminalization of consensual sexual acts between same-sex adults F
in private contravenes the rights to equality, privacy, and freedom from
discrimination. These rights are recognised in international treaties,
covenants, and agreements which India has ratified, including the UDHR,
ICCPR, and the ICESCR. India has a constitutional duty to honour these
internationally recognized rules and principles.232 Article 51 of the
229
G
Dominic McGoldrick, “The Development and Status of Sexual Orientation
Discrimination under International Human Rights Law”, Human Rights Law Review,
Vol. 16 (2016).
230
UN Human Rights Council, “Discriminatory laws and practices and acts of violence
against individuals based on their sexual orientation and gender identity” (2011).
231
UN Human Rights Council, “Promotion and Protection of all Human Rights, Civil,
Political, Economic, Social and Cultural Rights, including the Right to Development” (2008).
232
Vishaka v State of Rajasthan, (1997) 6 SCC 241. H
674 SUPREME COURT REPORTS [2018] 7 S.C.R.

A Constitution, which forms part of the Directive Principles of State Policy,
requires the State to endeavour to “foster respect for international law
and treaty obligations in the dealings of organised peoples with one
another.”
100. The human rights treaties that India has ratified require States
B Parties to guarantee the rights to equality before the law, equal protection
of the law and freedom from discrimination. For example, Article 2 of
the ICESCR requires states to ensure that:
“The rights enunciated in the present Covenant will be exercised
without discrimination of any kind as to race, colour, sex,
C language, religion, political or other opinion, national or social
origin, property, birth or other status.”
101. The Committee on Economic, Social and Cultural Rights -
the body mandated by the ICESCR to monitor States Parties’
implementation of the treaty – has stated that “other status” in article 2
D (2) includes sexual orientation, and reaffirmed that “gender identity is
recognized as among the prohibited grounds of discrimination”, as
“persons who are transgender, transsexual or intersex often face serious
human rights violations.”233
102. The prohibition against discrimination in the ICCPR is contained
E in Article 26, which guarantees equality before the law:
“All persons are equal before the law and are entitled without
any discrimination to the equal protection of the law. In this
respect, the law shall prohibit any discrimination and guarantee
to all persons equal and effective protection against discrimination
F on any ground such as race, colour, sex, language, religion, political
or other opinion, national or social origin, property, birth or other
status.”
India is also required to protect the right to privacy, which includes within
its ambit the right to engage in consensual same-sex sexual relations.234
Article 12 of the UDHR recognises the right to privacy:
G
“Article 12: No one shall be subjected to arbitrary interference
with his privacy, family, home or correspondence, nor to attacks

233
Committee on Economic, Social and Cultural Rights, “General Comment 20: Non-
discrimination in economic, social and cultural rights” (2009), at para 32.
234
H Toonen.
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 675
[DR.[DIPAK MISRA, CJI ] J.]
D. Y. CHANDRACHUD,

upon his honour and reputation. Everyone has the right to the A
protection of the law against such interference or attacks.”
Similarly, Article 17 of the ICCPR, which India ratified on 11 December
1977, provides that:
“The obligations imposed by this article require the State to adopt
legislative and other measures to give effect to the prohibition B
against such interferences and attacks as well as to the protection
of the right.”
In its General Comment No. 16, the Human Rights Committee confirmed
that any interference with privacy, even if provided for by law, “should
be in accordance with the provisions, aims and objectives of the Covenant C
and should be, in any event, reasonable in the particular
circumstances.”235
In their general comments, concluding observations and views on
communications, human rights treaty bodies have affirmed that States
are obliged to protect individuals from discrimination on grounds of sexual D
orientation and/or gender identity, as these factors do not limit an
individual’s entitlement to enjoy the full range of human rights to which
they are entitled.236
103. In NALSA, while dealing with the rights of transgender
persons, this Court recognized the ‘Yogyakarta Principles on the E
Application of International Law in Relation to Issues of Sexual
Orientation and Gender Identity’ – which outline the rights that sexual
minorities enjoy as human persons under the protection of international
law – and held that they should be applied as a part of Indian law.
Principle 33 provides thus: F
“Everyone has the right to be free from criminalisation and any
form of sanction arising directly or indirectly from that person’s
actual or perceived sexual orientation, gender identity, gender
expression or sex characteristics.”
While the Yogyakarta Principles are not legally binding, NALSA G
nevertheless signifies an affirmation of the right to non-discrimination on
the grounds of gender identity, as well as the relevance of international
human rights norms in addressing violations of these rights.
235
Supra note 230, at page 6.
236
Ibid. H
676 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 104. There is a contradiction between India’s international
obligations and Section 377 of the Indian Penal Code, insofar as it
criminalizes consensual sexual acts between same-sex adults in private.
In adjudicating the validity of this provision, the Indian Penal Code must
be brought into conformity with both the Indian Constitution and the
rules and principles of international law that India has recognized. Both
B
make a crucial contribution towards recognizing the human rights of
sexual and gender minorities.
J Transcending borders - comparative law
105. Over the past several decades, international and domestic
C courts have developed a strong body of jurisprudence against
discrimination based on sexual orientation. This section analyses the
evolution of the perspective of the law towards sexual orientation from
a comparative law perspective, and looks at how sodomy laws have
been construed in various jurisdictions based on their histories.
D 106. In 1967, England and Wales decriminalized same-sex
intercourse between consenting adult males in private, and in 1980,
Scotland followed suit. The law in Northern Ireland only changed in
1982 with the decision of the ECtHR in Dudgeon v The United
Kingdom (“Dudgeon”).237 The Petitioners challenged the Offences
against the Person Act, 1861, the Criminal Law Amendment Act, 1885
E and a sodomy law that made buggery and “gross indecency” a criminal
offense, irrespective of consent. Although the law did not specifically
define these terms, the Court interpreted ‘buggery’ to mean anal
intercourse by a man with a man or woman and gross indecency to
mean any act “involving sexual indecency between male persons.”
F Regarding acts prohibited by these provisions, the ECtHR observed that:
“Although it is not homosexuality itself which is prohibited but
the particular acts of gross indecency between males and buggery,
there can be no doubt but that male homosexual practices whose
prohibition is the subject of the applicant’s complaints come within
G the scope of the offences punishable under the impugned
legislation.”
The ECtHR concluded that Dudgeon had suffered and continued to
suffer an unjustified interference with his right to respect for his private
237
App No 7525/76, (1981) ECHR 5.
H
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[DR. [DIPAK MISRA, CJI ] J.]
D. Y. CHANDRACHUD,

life. Hence, the Court struck down the laws under challenge as violative A
of Article 8 of the European Convention on Human Rights, in so far as
they criminalised “private homosexual relations between adult males
capable of valid consent.” In observing that these laws were not
proportionate to their purported need, the Court observed:
“On the issue of proportionality, the Court considers that such B
justifications as there are for retaining the law in force unamended
are outweighed by the detrimental effects which the very
existence of the legislative provisions in question can have on
the life of a person of homosexual orientation like the applicant.
Although members of the public who regard homosexuality as
immoral may be shocked, offended or disturbed by the C
commission by others of private homosexual acts, this cannot on
its own warrant the application of penal sanctions when it is
consenting adults alone who are involved.”238
The ECtHR thus concluded:
D
“To sum up, the restriction imposed on Mr. Dudgeon under
Northern Ireland law, by reason of its breadth and absolute
character, is, quite apart from the severity of the possible penalties
provided for, disproportionate to the aims sought to be
achieved.”239
E
Later, in Norris v Ireland240, the Applicant challenged Ireland’s
criminalization of certain homosexual acts between consenting adult men
as being violative of Article 8 of the European Convention on Human
Rights, which protected the right to respect for private and family life.
The ECtHR held that the law violated Article 8, regardless of whether it
was actively enforced: F
“A law which remains on the statute books even though it is not
enforced in a particular class of cases for a considerable time,
may be applied again in such cases at any time, if for example,
there is a change of policy. The applicant can therefore be said
to ‘run the risk of being directly affected’ by the legislation in G
question.”

238
Ibid, at para 60.
239
Ibid, at para 61.
240
Application No. 10581/83, (1988) ECHR 22.
H
678 SUPREME COURT REPORTS [2018] 7 S.C.R.

A This decision was affirmed in Modinos v Cyprus241, where the Criminal
Code of Cyprus, which penalized homosexual conduct, was alleged to
constitute an unjustified interference with the Applicant’s private life.
107. Five years after Dudgeon, the United States Supreme Court,
in Bowers v. Hardwick (“Bowers”)242, held that “sodomy” laws had
B been a significant part of American history and did not violate the
Constitution. The Supreme Court’s reasoning in Bowers is a clear
departure from that of the ECtHR in Dudgeon. In Bowers, the Supreme
Court declined to accept that the question concerned the right to privacy.
Instead, it stated that the issue was about “a fundamental right upon
homosexuals to engage in sodomy”,243 which was held not to be protected
C by the US Constitution.
Seventeen years later, the United States Supreme Court laid the
constitutional foundation for LGBT rights in the country with its judgment
in Lawrence v Texas (“Lawrence”).244 In Lawrence, the Petitioner
had been arrested under a Texas statute, which prohibited same-sex
D persons from engaging in sexual conduct, regardless of consent. The
validity of the statute was considered.
Relying on Dudgeon, the U S Supreme Court struck down the statute
as violative of the Due Process Clause of the Fourteenth Amendment to
the U.S. Constitution. Overruling the judgment in Bowers, Justice
E Kennedy, writing for the majority, upheld Justice Stevens’ dissent in
Bowers – who was also part of the majority in Lawrence – to note that:
“Our prior cases make two propositions abundantly clear. First,
the fact that the governing majority in a State has traditionally
viewed a particular practice as immoral is not a sufficient reason
for upholding a law prohibiting the practice; neither history nor
F tradition could save a law prohibiting miscegenation from
constitutional attack. Second, individual decisions by married
persons, concerning the intimacies of their physical relationship,
even when not intended to produce offspring, are a form of
“liberty” protected by the Due Process Clause of the Fourteenth
G Amendment. Moreover, this protection extends to intimate
choices by unmarried as well as married persons.”245
241
Application No. 15070/89,16 EHRR 485.
242
478 U.S. 186 (1986).
243
Bowers, at para 190.
244
539 U.S. 558 (2003).
H 245
Bowers, at para 216.
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[DR. [DIPAK MISRA, CJI ] J.]
D. Y. CHANDRACHUD,

He also noted that the case concerned the private, personal relationships A
of consenting adults, and that the laws challenged did not further any
legitimate state interest:
“The present case does not involve minors. It does not involve
persons who might be injured or coerced or who are situated in
relationships where consent might not easily be refused. It does B
not involve public conduct or prostitution. It does not involve
whether the government must give formal recognition to any
relationship that homosexual persons seek to enter [eg, a right to
marry or to register a ‘civil union’]. The case does involve two
adults who, with full and mutual consent from each other, engaged
in sexual practices common to a homosexual lifestyle. The C
petitioners are entitled to respect for their private lives. The State
cannot demean their existence or control their destiny by making
their private sexual conduct a crime. Their right to liberty under
the Due Process Clause gives them the full right to engage in
their conduct without intervention of the government. ... The D
Texas statute furthers no legitimate state interest which can justify
its intrusion into the personal and private life of the individual....”
108. Justice Kennedy also identified the harm caused by the
operation of the criminal law:
“When homosexual conduct is made criminal by the law of the E
State, that declaration in and of itself is an invitation to subject
homosexual persons to discrimination both in the public and in
the private spheres.”
The Court thus struck down the Texas law banning “deviate sexual
intercourse” between persons of the same sex (and similar laws in 13 F
other US states and Puerto Rico), holding that:
“The laws involved in Bowers and here are, to be sure, statutes
that purport to do no more than prohibit a particular sexual act.
Their penalties and purposes, though, have more far-
reaching consequences, touching upon the most private G
human conduct, sexual behavior, and in the most private
of places, the home. The statutes do seek to control a personal
relationship that, whether or not entitled to formal recognition in
the law, is within the liberty of persons to choose without being
punished as criminals.” (Emphasis supplied)
H
680 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 109. In Toonen,the UN Human Rights Committee held that laws
used to criminalize private, adult, consensual same-sex sexual relations
violate the right to privacy and the right to non-discrimination. Mr. Toonen
– a member of the Tasmanian Gay Law Reform Group – had complained
to the Committee about a Tasmanian law that criminalized ‘unnatural
sexual intercourse’, ‘intercourse against nature’ and ‘indecent practice
B
between male persons’. The law allowed police officers to investigate
intimate aspects of his private life and to detain him if they had reason to
believe that he was involved in sexual activities with his long-term partner
in the privacy of their home. Mr Toonen challenged these laws as violative
of Article 2(1)246, Article 17247 and Article 26248 of the ICCPR, on the
C ground that:
“[The provisions] have created the conditions for discrimination
in employment, constant stigmatization, vilification, threats of
physical violence and the violation of basic democratic rights.”249
The Committee rejected the argument that criminalization may be justified
D as “reasonable” on grounds of protection of public health or morals,
noting that the use of criminal law in such circumstances is neither
necessary nor proportionate:250
“As far as the public health argument of the Tasmanian authorities
is concerned, the Committee notes that the criminalization of
E homosexual practices cannot be considered a reasonable means
or proportionate measure to achieve the aim of preventing the
spread of AIDS/HIV.”
246
Article 2(1): Each State Party to the present Covenant undertakes to respect and to
ensure to all individuals within its territory and subject to its jurisdiction the rights
F recognized in the present Covenant, without distinction of any kind, such as race,
colour, sex, language, religion, political or other opinion, national or social origin,
property, birth or other status.
247
Article 17: No one shall be subjected to arbitrary or unlawful interference with his
privacy, family, home or correspondence, nor to unlawful attacks on his honour
and reputation.
248
Article 26: All persons are equal before the law and are entitled without any
G discrimination to the equal protection of the law. In this respect, the law shall
prohibit any discrimination and guarantee to all persons equal and effective
protection against discrimination on any ground such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or other
status.
249
Toonen, at para 2.4.
250
H Toonen, at para. 8.5.
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[DR.[DIPAK MISRA, CJI ] J.]
D. Y. CHANDRACHUD,

The Court concluded that the legislation was violative of Article 7 of the A
ICCPR, holding that:
“… It is undisputed that adult consensual sexual activity in private
is covered by the concept of “privacy”, and that Mr. Toonen is
actually and currently affected by the continued existence of the
Tasmanian laws.”251 B
252
110. In X v. Colombia , the Committee clarified that there is
no “Global South exception” to Toonen.253 The Egyptian and Tunisian
members of the Committee, who dissented from the majority’s decision
requiring equal treatment of unmarried same-sex and different-sex
couples, concurred with the principle laid down in Toonen: C
“[T]here is no doubt that [A]rticle 17…is violated by discrimination
on grounds of sexual orientation. The Committee…has rightly
and repeatedly found that protection against arbitrary or unlawful
interference with privacy precludes prosecution and punishment
for homosexual relations between consenting adults.” D
111. The Constitutional Tribunal of Ecuador was the first
Constitutional Court in the Global South to decriminalise sodomy laws.254
The constitutionality of Article 516 of the Penal Code, which penalised
“cases of homosexualism, that do not constitute rape”, was challenged
before the Tribunal. The Tribunal’s reasoning was that “this abnormal
E
behaviour should be the object of medical treatment ... imprisonment in
jails, creates a suitable environment for the development of this
dysfunction.” The Tribunal’s line of reasoning – referring to homosexual
activity as ‘abnormal behaviour’, requiring medical treatment – is seriously
problematic.255 That assumption is unfounded in fact and is an incorrect
doctrine for a constitutional court which protects liberty and dignity. F
However ultimately, the Tribunal struck down the first paragraph of
Article 516 of the Penal Code, holding that:
251
Toonen, at para 8.2.
252
Communication No. 1361/2005.
253
Robert Wintemute, “Same-Sex Love and Indian Penal Code §377: An Important
Human Rights Issue for India” National University of Juridical Sciences Law Review, G
(2011).
254
Case No. 111-97-TC (27 November 1997).
255
The Tribunal’s decision was criticized by LGBT rights activists for its description
of homosexuality as “abnormal conduct.” However, a year after this decision,
Ecuador became the third country in the world to include sexual orientation as a
constitutionally protected category against discrimination. H
682 SUPREME COURT REPORTS [2018] 7 S.C.R.

A “Homosexuals are above all holders of all the rights of the human
person and therefore, have the right to exercise them in conditions
of full equality ... that is to say that their rights enjoy legal
protection, as long as in the exteriorisation of their behaviour
they do not harm the rights of others, as is the case with all other
persons.”
B
112. The adverse impact of sodomy laws on the lives of
homosexual adults was also considered by the Constitutional Court of
South Africa in National Coalition for Gay and Lesbian Equality v.
Minister of Justice (“National Coalition”) 256 , in which the
constitutionality of the common law offenceof sodomy and other
C legislations which penalised unnatural sexual acts between men was at
issue. The Constitutional Court unanimously found that the sodomy laws,
all of which purported to proscribe sexual intimacy between homosexual
adult men, violated their right to equality and discriminated against them
on the basis of their sexual orientation.
D Justice Ackerman, concurring with the ECtHR’s observation in Norris,
noted that:
“The discriminatory prohibitions on sex between men reinforces
already existing societal prejudices and severely increases the
negative effects of such prejudices on their lives.”257
E
Justice Ackerman quoted from Edwin Cameron’s “Sexual Orientation
and the Constitution: A Test Case for Human Rights”258:
“Even when these provisions are not enforced, they reduce gay
men… to what one author has referred to as ‘unapprehended
F felons’, thus entrenching stigma and encouraging
discrimination in employment and insurance and in judicial
decisions about custody and other matters bearing on
orientation.”259 (Emphasis supplied)
Commenting on the violation of individuals’ rights to privacy and dignity,
the Court held that:
G
“Gay people are a vulnerable minority group in our society.
Sodomy laws criminalise their most intimate relationships. This
256
1999 (1) SA 6 (CC).
257
National Coalition, at para 23.
258
(1993) 110 SALJ 450.
H 259
National Coalition, at para 23.
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 683
[DR. [DIPAK MISRA, CJI ] J.]
D. Y. CHANDRACHUD,

devalues and degrades gay men and therefore constitutes a A
violation of their fundamental right to dignity. Furthermore, the
offences criminalise private conduct between consenting adults
which causes no harm to anyone else. This intrusion on the
innermost sphere of human life violates the constitutional right to
privacy. The fact that the offences, which lie at the heart of the
B
discrimination, also violate the rights to privacy and dignity
strengthens the conclusion that the discrimination against gay
men is unfair.”
In its conclusion, the Court held that all persons have a right to a “sphere
of private intimacy and autonomy that allows [them] to establish and
nurture human relationships without interference from the outside C
community.”260
113. In 2005, the High Court of Fiji, in Dhirendra Nadan Thomas
McCoskar v. State261, struck down provisions of the Fijian Penal Code,
which punished any person who permits a male person to have “carnal
knowledge” of him, as well as acts of “gross indecency” between male D
persons. The High Court read down the provisions to the extent that
they were inconsistent with the Constitution of Fiji, drawing a clear
distinction between consensual and non-consensual sexual behavior:
“What the constitution requires is that the Law acknowledges
difference, affirms dignity and allows equal respect to every E
citizen as they are. The acceptance of difference celebrates
diversity. The affirmation of individual dignity offers respect to
the whole of society. The promotion of equality can be a source
of interactive vitality…A country so founded will put sexual
expression in private relationships into its proper F
perspective and allow citizens to define their own good
moral sensibilities leaving the law to its necessary duties
of keeping sexual expression in check by protecting the
vulnerable and penalizing the predator.” (Emphasis supplied)
In recent years, the Caribbean States of Belize and Trinidad and Tobago G
have also decriminalized consensual sexual acts between adults in private.
In Caleb Orozco v. The Attorney General of Belize (“Caleb
Orozco”)262, provisions of the Belize Criminal Code which penalized
260
National Coalition, at para 32.
261
[2005] FJHC 500.
262
Claim No. 668 of 2010. H
684 SUPREME COURT REPORTS [2018] 7 S.C.R.

A “every person who has intercourse against the order of nature with any
person…” were challenged before the Supreme Court. Commenting on
the concept of dignity, Justice Benjamin borrowed from the Canadian
Supreme Court’s observations and noted that:263
“Human dignity means that an individual or group feels self-
B respect and self-worth. It is concerned with physical and
psychological integrity and empowerment. Human dignity is
harmed by unfair treatment premised upon personal traits
or circumstances which do not relate to the individual
needs, capacities or merits. It is enhanced by laws which are
sensitive to the needs, capacities and merits of different individuals,
C taking into account the context underlying the differences.”
(Emphasis supplied)
Relying on the judgments in Dudgeons,National Coalition, McCoskar,
Toonen,andLawrence, the Supreme Court struck down the provision
as violative of the claimant’s constitutional rights to privacy, dignity, and
D equality. Justice Benjamin held thus:
“However, from the perspective of legal principle, the Court
cannot act upon prevailing majority views or what is popularly
accepted as moral…There must be demonstrated that some harm
will be caused should the proscribed conduct be rendered
E unregulated. No evidence has been presented as to the real
likelihood of such harm. The duty of the Court is to apply the
provisions of the Constitution.”264
114. In Jason Jones v. The Attorney General of Trinidad
and Tobago (“Jones”)265, an expatriate gay rights activist living in the
F United Kingdom challenged the provisions of Trinidad and Tobago’s
Sexual Offences Act, which criminalized ‘buggery’ and ‘serious
indecency’ before the High Court of Justice at Trinidad and Tobago.
The central issue before the Court was whether the provisions were
‘saved’ under Section 6 of the Constitution, which protects laws that
G were in existence before the Constitution came into force and were only
marginally changed since, from being struck down for breach of
fundamental rights.
263
Law v Canada (Minister of Employment and Immigration) [1999] 1 S.C.R. 497.
264
Caleb Orozco, at para 81.
265
Claim no. CV2017-00720.
H
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The High Court struck down the provisions as unconstitutional, observing A
that the right to choose a partner and to have a family is intrinsic to an
individual’s personal autonomy and dignity:
“To this court, human dignity is a basic and inalienable right
recognized worldwide in all democratic societies. Attached to
that right is the concept of autonomy and the right of an individual B
to make decisions for herself/himself without any unreasonable
intervention by the State. In a case such as this, she/he must be
able to make decisions as to who she/he loves, incorporates in
his/her life, who she/he wishes to live with and with who to make
a family.”266
C
The High Court also held that the existence of such laws deliberately
undermined the lives of homosexuals:
“A citizen should not have to live under the constant threat, the
proverbial “Sword of Damocles,” that at any moment she/he
may be persecuted or prosecuted. That is the threat that exists
at present. It is a threat that is sanctioned by the State and that D
sanction is an important sanction because it justifies in the mind
of others in society who are differently minded, that the very
lifestyle, life and existence of a person who chooses to live in the
way that the claimant does is criminal and is deemed to be of a
lesser value than anyone else…The Parliament has taken the E
deliberate decision to criminalise the lifestyle of persons like the
claimant whose ultimate expression of love and affection is
crystallised in an act which is statutorily unlawful, whether or
not enforced.”267 (Emphasis supplied)
The High Court compared the impugned provisions to racial segregation,
the Holocaust, and apartheid, observing that: F
“To now deny a perceived minority their right to humanity and
human dignity would be to continue this type of thinking, this
type of perceived superiority, based on the genuinely held beliefs
of some.”268
G
115. In Leung TC William Roy v. Secretary for Justice269,
the High Court of Hong Kong considered the constitutional validity of
266
Jones, at para 91.
267
Ibid.
268
Jones, at para 171.
269
Civil Appeal No. 317 of 2005. H
686 SUPREME COURT REPORTS [2018] 7 S.C.R.

A provisions that prescribed different ages of consent for buggery and
regular sexual intercourse. The court held that these provisions violated
the petitioner’s rights to privacy and equality:
“Denying persons of a minority class the right to sexual expression
in the only way available to them, even if that way is denied to
B all, remains discriminatory when persons of a majority class are
permitted the right to sexual expression in a way natural to them.
During the course of submissions, it was described as ‘disguised
discrimination’. It is, I think, an apt description. It is disguised
discrimination founded on a single base: sexual orientation.” 270
C The Court concluded that the difference in the ages of consent was
unjustifiable, noting that:
“No evidence has been placed before us to explain why the
minimum age requirement for buggery is 21 whereas as far as
sexual intercourse between a man and a woman is concerned,
D the age of consent is only 16. There is, for example, no medical
reason for this and none was suggested in the course of
argument.”271
Courts around the world have not stopped at decriminalizing sodomy
laws; they have gone a step further and developed a catena of broader
E rights and protections for homosexuals. These rights go beyond the mere
freedom to engage in consensual sexual activity in private, and include
the right to full citizenship, the right to form unions and the right to family
life.
116. Israel was one of the first countries to recognize the rights
F of homosexuals against discrimination in matters of employment. In El-
Al Israel Airlines Ltd v. Jonathan Danielwitz (“El-Al Israel
Airlines”)272, the Supreme Court of Israel considered an airline company’s
policy of giving discounted tickets to their employees and a ‘companion
recognized as the husband/wife of the employee’. This benefit was also
given to a partner with whom the employee was living together like
G husband and wife, but not married. However, the airline refused to give
the discounted tickets to the Respondent and his male partner.

270
Ibid, at para 48.
271
Ibid, at para 51.
272
HCJ 721/94.
H
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 687
[DR.[DIPAK MISRA, CJI ] J.]
D. Y. CHANDRACHUD,

The Supreme Court of Israel observed thus: A
“The principle of equality demands that the existence of a rule
that treats people differently is justified by the nature and
substance of the issue…therefore, a particular law will create
discrimination when two individuals who are different from one
another (factual inequality), are treated differently by the law, B
even though the factual difference between them does not
justify different treatment in the circumstances.”273
(Emphasis supplied)
The Supreme Court held that giving a benefit to an employee who has a
spouse of the opposite sex and denying the same benefit to an employee C
whose spouse is of the same sex amounts to discrimination based on
sexual orientation. This violated the Petitioner’s right to equality and
created an unjustifiable distinction in the context of employee benefits.
117. In Vriend v Alberta274, the appellant, a homosexual college
employee, was terminated from his job. He alleged that his employer D
had discriminated against him because of his sexual orientation, but that
he could not make a complaint under Canada’s anti-discrimination statute
– the Individual’s Rights Protection Act (“IRPA”) – because it did not
include sexual orientation as a protected ground. The Supreme Court of
Canada held that the omission of protection against discrimination on the E
basis of sexual orientation was an unjustified violation of the right to
equality under the Canadian Charter of Rights and Freedoms.
118. The Supreme Court held that the State had failed to provide
a rational justification for the omission of sexual orientation as a protected
ground under the IRPA. Commenting on the domino effect that such F
discriminatory measures have on the lives of homosexuals, the Supreme
Court noted thus:
“Perhaps most important is the psychological harm which may
ensue from this state of affairs. Fear of discrimination will logically
lead to concealment of true identity and this must be harmful to
G
personal confidence and self-esteem. Compounding that effect
is the implicit message conveyed by the exclusion, that gays and
lesbians, unlike other individuals, are not worthy of protection.

273
El-A Israel Airlines, at para 14.
274
(1998) 1 S.C.R. 493. H
688 SUPREME COURT REPORTS [2018] 7 S.C.R.

A This is clearly an example of a distinction which demeans the
individual and strengthens and perpetrates [sic] the view that
gays and lesbians are less worthy of protection as individuals in
Canada’s society. The potential harm to the dignity and perceived
worth of gay and lesbian individuals constitutes a particularly
cruel form of discrimination.”
B
The next breakthrough for LGBTQ rights came from the Supreme Court
of Nepal, in Sunil Babu Pant v. Nepal Government275. Sunil Pant –
the first openly gay Asian national leader – filed a PIL before the Supreme
Court of Nepal praying for the recognition of the rights of lesbians, gays,
and third gender persons. The Supreme Court located the rights of
C LGBTQ persons to their sexuality within the right to privacy, holding
that:
“The right to privacy is a fundamental right of any individual.
The issue of sexual activity falls under the definition of privacy.
No one has the right to question how do two adults perform the
D sexual intercourse and whether this intercourse is natural or
unnatural.”
The Court held that all individuals have an inherent right to marriage,
regardless of their sexual orientation:

E “Looking at the issue of same sex marriage, we hold that it is an
inherent right of an adult to have marital relation with another
adult with his/her free consent and according to her/his will.”
In concluding, the Court directed the Nepalese government to enact
new legislation or amend existing legislation to ensure that persons of all
F sexual orientations and gender identities could enjoy equal rights.
119. In 2015, in Oliari v Italy (“Oliari”)276, the Applicants before
the ECtHR argued that the absence of legislation in Italy permitting
same-sex marriage or any other type of civil union constituted
discrimination on the basis of sexual orientation, in violation of Articles 8,
12, and 14 of the European Convention on Human Rights. In line with its
G
previous case law, the Court affirmed that same-sex couples “are in
need of legal recognition and protection of their relationship.”277 The
ECtHR concluded that gay couples are equally capable of entering into
275
Writ Petition No. 917 of 2007.
276
[2015] ECHR 716
H 277
Oliari, at para 165.
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 689
[DR.[DIPAK MISRA, CJI ] J.]
D. Y. CHANDRACHUD,

stable and committed relationships in the same way as heterosexual A
couples.278
120. The ECtHR examined the domestic context in Italy, and noted
a clear gap between the “social reality of the applicants”, 279 who openly
live their relationship, and the law, which fails to formally recognize same-
sex partnerships. The Court held that in the absence of any evidence of B
a prevailing community interest in preventing legal recognition of same-
sex partnerships, Italian authorities “have overstepped their margin of
appreciation and failed to fulfil their positive obligation to ensure that the
applicants have available a specific legal framework providing for the
recognition and protection of their same-sex unions.”280
C
121. In 2013, in United States v. Windsor281, US Supreme Court
considered the constitutionality of the Defense of Marriage Act
(“DOMA”) which states that, for the purposes of federal law, the words
‘marriage’ and ‘spouse’ refer to legal unions between one man and one
woman. Windsor, who had inherited the estate of her same-sex partner,
was barred from claiming the federal estate tax exemption for surviving D
spouses since her marriage was not recognized by federal law.282 Justice
Kennedy writing for the majority, held that restricting the federal
interpretation of ‘marriage’ and ‘spouse’ to apply only to opposite-sex
unions was unconstitutional under the Due Process Clause of the Fifth
Amendment: E
“Its [the DOMA’s] unusual deviation from the tradition of
recognizing and accepting state definitions of marriage operates
to deprive same-sex couples of the benefits and responsibilities
that come with federal recognition of their marriages. This is
strong evidence of a law having the purpose and effect of F
disapproval of a class recognized and protected by state law.
DOMA’s avowed purpose and practical effect are to impose a
disadvantage, a separate status, and so a stigma upon all who
enter into same-sex marriages made lawful by the unquestioned
authority of the States.”
G
278
Ibid.
279
Oliari, at para. 173.
280
Oliari, at para 185.
281
570 U.S. 744 (2013).
282
Section 3, Defense of Marriage Act.
H
690 SUPREME COURT REPORTS [2018] 7 S.C.R.

A Two years later, in Obergefell v. Hodges (“Obergefell”),283 while
analysing precedent and decisions of other US courts recognizing same-
sex marriage, Justice Kennedy observed that:
“A first premise of the Court’s relevant precedents is that the
right to personal choice regarding marriage is inherent in the
B concept of individual autonomy… Like choices concerning
contraception, family relationships, procreation, and childrearing,
all of which are protected by the Constitution, decisions
concerning marriage are among the most intimate that an
individual can make.”284
C 122. Justice Kennedy expressed the need to go beyond the narrow
holding in Lawrence, towards a more expansive view of the rights of
homosexuals:
“Lawrence invalidated laws that made same- sex intimacy a
criminal act... But while Lawrence confirmed a dimension
D of freedom that allows individuals to engage in intimate
association without criminal liability, it does not follow that
freedom stops there. Outlaw to outcast may be a step
forward, but it does not achieve the full promise of liberty.”
(Emphasis supplied)

E By a 5-4 majority, the US Supreme Court ruled that the fundamental
right to marry is guaranteed to same-sex couples by the Due Process
Clause and the Equal Protection Clause of the Fourteenth Amendment
to the US Constitution. Commenting on the right to marriage, Justice
Kennedy noted:

F “No union is more profound than marriage, for it embodies the
highest ideals of love, fidelity, devotion, sacrifice, and family. …
It would misunderstand these men and women to say they
disrespect the idea of marriage. Their plea is that they do respect
it, respect it so deeply that they seek to find its fulfilment for
themselves. Their hope is not to be condemned to live in loneliness,
G excluded from one of civilization’s oldest institutions. They ask
for equal dignity in the eyes of the law. The Constitution grants
them that right.”
283
576 U.S. ___ (2015).
284
Obergefell, at page 12.
H
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 691
[DR.[DIPAK MISRA, CJI ] J.]
D. Y. CHANDRACHUD,

123. The recent case ofMasterpiece Cakeshop v. Colorado A
Civil Rights Commission (“Masterpiece Cakeshop”)285 concerned a
Christian baker who was accused of violating an anti-discrimination
ordinance for refusing to make a wedding cake for a same-sex couple
based on his religious beliefs. The Colorado Civil Rights Commission
(“CCRC”) decided against the baker, and, on appeal, the Supreme Court
B
ruled 7-2 that the CCRC violated the baker’s rights under the First
Amendment, which guarantees freedom of expression.
Writing for the majority, Justice Kennedy said the CCRC showed
“hostility” to the baker’s religious beliefs:
“It must be concluded that the State’s interest could have been C
weighed against Phillips’ sincere religious objections in a way
consistent with the requisite religious neutrality that must be strictly
observed. The official expressions of hostility to religion in some
of the commissioners’ comments—comments that were not
disavowed at the Commission or by the State at any point in the
proceedings that led to affirmance of the order—were D
inconsistent with what the Free Exercise Clause requires. The
Commission’s disparate consideration of Phillips’ case compared
to the cases of the other bakers suggests the same. For these
reasons, the order must be set aside.”
The majority held that while the Constitution allows gay persons to E
exercise their civil rights, “religious and philosophical objections to gay
marriage are protected views and in some instances protected forms of
expression.” The Supreme Court found merit in the baker’s First
Amendment claim, noting that his dilemma was understandable, especially
given that the cause of action arose in 2012, before the enactment of F
Colorado’s anti-discrimination law and the Obergefell judgment that
legalised same-sex marriage.
The court buttressed its position by noting that in several other cases,
bakers had declined to decorate cakes with messages that were
derogatory towards gay persons and the State Civil Rights Division had G
held that the bakers were within their rights to have done so. According
to the majority in Masterpiece Cakeshop, the owner was similarly
entitled to decline the order, and his case should have been treated no
differently.
285
584 U.S. ____ (2018). H
692 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 124. Justice Ginsburg’s dissenting opinion, which was supported
by Justice Sotomayor, distinguished the baker in Masterpiece
Cakeshop from the other three bakers. Justice Ginsburg noted that
while the other bakers would have refused the said cake decorations to
all customers, Phillips refused to bake a wedding cake (which he baked
for other customers), specifically for the couple. She observed that:
B
“Phillips declined to make a cake he found offensive where the
offensiveness of the product was determined solely by the
identity of the customer requesting it. The three other
bakeries declined to make cakes where their objection to the
product was due to the demeaning message the requested
C product would literally display.”
(Emphasis supplied)
“When a couple contacts a bakery for a wedding cake, the
product they are seeking is a cake celebrating their wedding—
D not a cake celebrating heterosexual weddings or same-sex
weddings—and that is the service Craig and Mullins were
denied.”
Justice Ginsburg concluded that a proper application of the Colorado
Anti-Discrimination Act would require upholding the lower courts’ rulings.
E 125. Masterpiece Cakeshop is also distinguishable from a
similar case, Lee v. Ashers Bakery Co. Ltd.286, which is currently on
appeal to the United Kingdom Supreme Court. In that case, a bakery in
Northern Ireland offered a service whereby customers could provide
messages, pictures or graphics that would be iced on a cake. Lee – a
F member of an LGBT organisation – ordered a cake with the words
“support gay marriage” on it. The Christian owners refused, stating that
preparing such an order would conflict with their religious beliefs. Lee
claimed that in refusing his order, the bakery discriminated against him
on grounds of sexual orientation. Both the County Court and the Court
of Appeal ruled in favour of Lee, on the ground that the respondent’s
G refusal on the ground of his religious beliefs was contrary to the provisions
of the Equality Act (Sexual Orientation) Regulations (Northern Ireland)
2006 and the Fair Employment and Treatment Order 1998.
286
[2015] NICty 2.

H
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 693
[DR.[DIPAK MISRA, CJI ] J.]
D. Y. CHANDRACHUD,

From an analysis of comparative jurisprudence from across the world, A
the following principles emerge:
1. Sexual orientation is an intrinsic element of liberty, dignity,
privacy, individual autonomy and equality;
2. Intimacy between consenting adults of the same-sex is beyond
the legitimate interests of the state; B
3. Sodomy laws violate equality by targeting a segment of the
population for their sexual orientation;
4. Such a law perpetrates stereotypes, lends authority of the state
to societal stereotypes and has a chilling effect on the exercise
of freedom; C
5. The right to love and to a partner, to find fulfillment in a same-
sex relationship is essential to a society which believes in
freedom under a constitutional order based on rights;
6. Sexual orientation implicates negative and positive obligations
on the state. It not only requires the state not to discriminate, D
but also calls for the state to recognise rights which bring true
fulfillment to same-sex relationships; and
7. The constitutional principles which have led to decriminalization
must continuously engage in a rights discourse to ensure that
same-sex relationships find true fulfillment in every facet of
E
life. The law cannot discriminate against same-sex relationships.
It must also take positive steps to achieve equal protection.
The past two decades have witnessed several decisions by constitutional
and international courts, recognizing both the decriminalization of same-
sex intercourse in private, as well as broader rights recognizing sexual
orientation equality. In 1996, South Africa became the first country in F
the world to constitutionally prohibit discrimination based on sexual
orientation.287 As on the date of this judgment, ten countries constitutionally
prohibit discrimination on grounds of sexual orientation. 288 The United
287
Amy Raub, “Protections Of Equal Rights Across Sexual Orientation And Gender
Identity: An Analysis Of 193 National Constitutions”, Yale Journal of Law and G
Feminism, Vol. 28 (2017).
288
Ibid. Of these, three are in the Americas (Bolivia, Ecuador, and Mexico), four are in
Europe and Central Asia (Malta, Portugal, Sweden, and the United Kingdom), two
are in East Asia and the Pacific (Fiji and New Zealand), and one is in Sub-Saharan
Africa (South Africa).
H
694 SUPREME COURT REPORTS [2018] 7 S.C.R.

A Kingdom, Bolivia, Ecuador, Fiji, and Malta specifically prohibit
discrimination on the basis of gender identity, either constitutionally or
through enacted laws.289 According the International Lesbian, Gay,
Bisexual, Trans and Intersex Association, 74 countries (including India)
criminalize same-sex sexual conduct, as of 2017.290 Most of these
countries lie in the Sub-Saharan and Middle East region. Some of them
B
prescribe death penalty for homosexuality.291
126. We are aware that socio-historical contexts differ from one
jurisdiction to another and that we must therefore look at comparative
law-making allowances for them. However, the overwhelming weight
of international opinion and the dramatic increase in the pace of
C recognition of fundamental rights for same-sex couples reflects a growing
consensus towards sexual orientation equality. We feel inclined to concur
with the accumulated wisdom reflected in these judgments, not to
determine the meaning of the guarantees contained within the Indian
Constitution, but to provide a sound and appreciable confirmation of our
D conclusions about those guarantees.
This evolution has enabled societies governed by liberal constitutional
values – such as liberty, dignity, privacy, equality and individual autonomy
– to move beyond decriminalisation of offences involving consensual
same-sex relationships. Decriminalisation is of course necessary to bury
the ghosts of morality which flourished in a radically different age and
E
time. But decriminalisation is a first step. The constitutional principles on
which it is based have application to a broader range of entitlements.
The Indian Constitution is based on an abiding faith in those constitutional
values. In the march of civilizations across the spectrum of a
compassionate global order, India cannot be left behind.
F K Crime, morality and the Constitution
127. The question of what qualifies as a punishable offence under
the law has played a central role in legal theory. Attempts have been
made by legal scholars and jurists alike, to define a crime. Halsbury’s
Laws of England defines a crime as “an unlawful act or default which
G is an offence against the public and renders the person guilty of the act
or default liable to legal punishment.”292 As Glanville Williams observes:
289
Ibid.
290
The International Lesbian, Gay, Bisexual, Trans And Intersex Association, “Sexual
Orientation Laws of the World”, (2017).
291
Ibid.
H 292
Halsbury’s Laws of England. 3rd edition, Vol. 3, Butterworths (1953) at page. 271.
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 695
[DR.[DIPAK MISRA, CJI ] J.]
D. Y. CHANDRACHUD,

“A crime is an act capable of being followed by criminal A
proceedings, having a criminal outcome…criminal law is that
branch of law which deals with conduct…by prosecution in the
criminal courts.”293
Henry Hart, in his essay titled “The Aims of Criminal Law”,294 comments
on the difficulty of a definition in this branch of law. A crime is a crime B
because it is called a crime:
“If one were to judge from the notions apparently underlying
many judicial opinions, and the overt language even of some of
them, the solution of the puzzle is simply that a crime is anything
which is called a crime, and a criminal penalty is simply the C
penalty provided for doing anything which has been given that
name.”295
However, Hart confesses that such a simplistic definition would be “a
betrayal of intellectual bankruptcy.”296 Roscoe Pound articulates the
dilemma in defining what constitutes an offence: D
“A final answer to the question ‘what is a crime?’, is impossible,
because law is a living, changing thing, which may at one time
be uniform, and at another time give much room for judicial
discretion, which may at one time be more specific in its
prescription and at another time much more general.”297 E
Early philosophers sought to define crime by distinguishing it from a civil
wrong. In his study of rhetoric, Aristotle observed that:
“Justice in relation to the person is defined in two ways. For it is
defined either in relation to the community or to one of its members
what one should or should not do. Accordingly, it is possible to F
perform just and unjust acts in two ways, either towards a defined
individual or towards the community.”298

293
Glanville Williams, ‘The Definition of Crime’, Current Legal Problems, Vol. 8
(1955).
294
Henry M. Hart, “The Aims of the Criminal Law”, Law and Contemporary Problems, G
Vol. 23 (1958), at pages 401–441.
295
Ibid.
296
Ibid.
297
Roscoe Pound, Interpretation of Legal History, Harvard University Press (1946).
298
H.C. Lawson-Tancred, The Art of Rhetoric/ Aristotle, Penguin (2004).
H
696 SUPREME COURT REPORTS [2018] 7 S.C.R.

A Kant, in the Metaphysics of Morals,299 observed that:
“A transgression of public law that makes someone who commits
it unfit to be a citizen is called a crime simply (crimen) but is also
called a public crime (crimen publicum); so the first (private
crime) is brought before a civil court, the latter before a criminal
B court.”300
Another method of defining crime is from the nature of injury caused,
“of being public, as opposed to private, wrongs.”301 This distinction was
brought out by Blackstone and later by Duff, in their theories on criminal
law. Blackstone, in his “Commentaries on the Laws of England” put
C forth the idea that only actions which constitute a ‘public wrong’ will be
classified as a crime.302 He characterised public wrongs as “a breach
and violation of the public rights and duties, due to the whole community,
considered as a community, in its social aggregate capacity.”303 Duff
adds to the idea of public wrong by arguing that “[w]e should interpret
a ‘public’ wrong, not as a wrong that injures the public, but as one that
D properly concerns the public, i.e. the polity as a whole.”304
Nozick and Becker also support the theory that crime is conduct that
harms the public. Nozick argues that the harm caused by a crime, unlike
other private law wrongs, extends beyond the immediate victim to all
those who view themselves as potential victims of the crime.305 When
E such an act is done on purpose, it spreads fear in the general community,
and it is due to this additional harm to the community [of causing fear
and insecurity], that such actions are classified as crimes and pursued
by the state.306 Becker preferred to describe crime as something which
disrupts social stability and has “the potential for destructive disturbance
F of fundamental social structures.”307

299
Immanuel Kant: The Metaphysics of Morals (Mary Gregor ed.), Cambridge
University Press (1996).
300
Ibid, at pages 353, 331.
301
Grant Lamond, “What is a Crime?”, Oxford Journal of Legal Studies, Vol.27 (2007).
302
Sir William Blackstone, Commentaries on the Laws of England, Book IV, Ch. 1 & 2.
G 303
Ibid.
304
Antony Duff and Sandra Marshall, “Criminalization and Sharing Wrongs”, Canadian
Journal of Law and Jurisprudence, Vol. 11, (1998) at pages 7-22.
305
Robert Nozick, Anarchy, State and Utopia, Basic Books (1974) ,at page 65.
306
Supra note 301.
307
Lawrence C. Becker, “Criminal Attempts and the Theory of the Law of Crimes”,
H Philosophy & Public Affairs, Vol 3 (1974), at page 273.
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 697
[DR.[DIPAK MISRA, CJI ] J.]
D. Y. CHANDRACHUD,

However, Hart questioned the theory of simply defining crime as a public A
wrong, for all wrongs affect society in some way or the other:
“Can crimes be distinguished from civil wrongs on the ground
that they constitute injuries to society generally which society is
interested in preventing? The difficulty is that society is interested
also in the due fulfilment of contracts and the avoidance of traffic B
accidents and most of the other stuff of civil litigation.”308
128. Hart preferred to define crime in terms of the methodology
of criminal law and the characteristics of this method. He described
criminal law as possessing the following features:
“1. The method operates by means of a series of directions, or C
commands, formulated in general terms, telling people what they
must or must not do…
2. The commands are taken as valid and binding upon all those
who fall within their terms when the time comes for complying
with them, whether or not they have been formulated in advance D
in a single authoritative set of words…
3. The commands are subject to one or more sanctions for
disobedience which the community is prepared to enforce…
4. What distinguishes a criminal from a civil sanction and
E
all that distinguishes it, it is ventured, is the judgment of
community condemnation which accompanies and justifies
its imposition.”309 (Numbering and emphasis supplied)
According to Hart, the first three characteristics above are common to
both civil and criminal law.310 However, the key differentiating factor
F
between criminal and civil law, he observed, is the “community
condemnation.”311 Thus, he attempted to define crime as:
“Conduct which, if duly shown to have taken place, will incur a
formal and solemn pronouncement of the moral condemnation
of the community.”312
G
308
Supra note 294.
309
Ibid.
310
Ibid.
311
Ibid.
312
Ibid.
H
698 SUPREME COURT REPORTS [2018] 7 S.C.R.

A Perhaps it is difficult to carve out a single definition of crime due to the
multi-dimensional nature of criminal law. The process of deconstructing
the criminalisation of consensual sexual acts by adults will be facilitated
by examining some criminal theories and their interplay with Section 377.
Criminal Law Theories
B Bentham’s Utilitarian Theory
129. Utilitarianism has provided some of the most powerful
critiques of existing laws. Bentham was one of the earliest supporters
for reform in sodomy laws. In his essay, “Offences Against One’s Self”,313
Bentham rebutted all the justifications given by the state for enacting
C laws on sodomy.314 According to Bentham, homosexuality, if viewed
outside the realms of morality and religion, is neutral behaviour which
gives the participants pleasure and does not cause pain to anyone else. 315
Therefore, he concluded that such an act cannot constitute an offence,
and there is “no reason for punishing it at all.”316
D 130. Bentham tested sodomy laws on three main principles: (i)
whether they produce any primary mischief, i.e., direct harm to another
person; (ii) whether they produce any secondary mischief, i.e., harm to
the stability and security of society; and (iii) whether they cause any
danger to society.317 He argued that sodomy laws do not satisfy any of
E the above tests, and hence, should be repealed. On the first principle of
primary mischief, Bentham said:
“As to any primary mischief, it is evident that it produces no pain
in anyone. On the contrary it produces pleasure, and that a
pleasure which, by their perverted taste, is by this supposition
F preferred to that pleasure which is in general reputed the greatest.
The partners are both willing. If either of them be unwilling, the
act is not that which we have here in view: it is an offence totally
different in its nature of effects: it is a personal injury; it is a kind
of rape.”318

G 313
Jeremy Bentham, “Offences Against One’s Self” (Louis Crompton Ed.), Columbia
University.
314
Ibid.
315
Ibid.
316
Ibid.
317
Ibid.
318
Ibid.
H
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 699
[DR.[DIPAK MISRA, CJI ] J.]
D. Y. CHANDRACHUD,

Thus, Bentham argued that consensual homosexual acts do not harm A
anyone else. Instead, they are a source of pleasure to adults who choose
to engage in them. Bentham was clear about the distinction between
‘willing’ partners and ‘unwilling’ partners, and the latter according to
him, would not fall under his defence.
Bentham’s second argument was that there was no secondary mischief, B
which he described as something which may “produce any alarm in the
community.” On this, Bentham argued:
“As to any secondary mischief, it produces not any pain of
apprehension. For what is there in it for any body to be afraid
of? By the supposition, those only are the objects of it who choose C
to be so, who find a pleasure, for so it seems they do, in being
so.” 319
Bentham’s explanation was that only those adults who choose will be
the objects of homosexual sexual acts. It does not involve any activity
which will create anxiety among the rest of the society. Therefore, D
homosexuality does not cause secondary harm either.
Lastly, Bentham tested sodomy laws on whether they cause danger to
society. The only danger that Bentham could apprehend was the supposed
danger of encouraging others to engage in homosexual practices.
However, Bentham argues that since homosexual activities in themselves E
do not cause any harm, there is no danger even if they have a domino
effect on other individuals:
“As to any danger exclusive of pain, the danger, if any, must
consist in the tendency of the example. But what is the tendency
of this example? To dispose others to engage in the same
F
practises: but this practise for anything that has yet appeared
produces not pain of any kind to anyone.”320
Thus, according to Bentham, sodomy laws fail on all three grounds- they
neither cause primary mischief, nor secondary mischief, nor any danger
to society.
Bentham also critiqued criminal laws by analysing the utility of the G
punishment prescribed by them. He succinctly described the objective
of law through the principles of utility- “The general object which all
laws have, or ought to have…is to augment the total happiness of the
319
Ibid.
320
Ibid. H
700 SUPREME COURT REPORTS [2018] 7 S.C.R.

A community; [and] to exclude…everything that tends to subtract from
that happiness.”321 According to Bentham, “all punishment in itself is
evil”322 because it reduces the level of happiness in society, and should
be prescribed only if it “excludes some greater evil.”323 Bentham stipulated
four kinds of situations where it is not utilitarian to inflict punishment:
B “1. Where it is groundless: where there is no mischief for it to
prevent; the act not being mischievous upon the whole.
2. Where it must be inefficacious: where it cannot act so as to
prevent the mischief.
3. Where it is unprofitable, or too expensive: where the mischief
C it would produce would be greater than what it prevented.
4. Where it is needless: where the mischief may be prevented,
or cease of itself, without it: that is, at a cheaper rate.”324
The Harm Principle
131. John Stuart Mill, in his treatise “On Liberty,” makes a
D powerful case to preclude governments from interfering in those areas
of an individual’s life which are private. Mill’s theory, which came to be
called the “harm principle”, suggests that the state can intrude into private
life by way of sanction only if harm is caused to others or if the conduct
is “other-affecting.”325 In Mill’s words:
“The only purpose for which power can be rightfully exercised
E
over any member of a civilised community, against his will, is to
prevent harm to others. His own good, either physical or moral, is
not a sufficient warrant. He cannot rightfully be compelled to do
or forbear because it will be better for him to do so, because it will
make him happier, because, in the opinions of others, to do so
F would be wise, or even right… The only part of the conduct of
any one, for which he is amenable to society, is that which concerns
others. In the part which merely concerns himself, his
independence is, of right, absolute. Over himself, over his own
body and mind, the individual is sovereign.”326 (Emphasis
supplied)
G 321
Ibid.
322
Ibid.
323
Ibid.
324
Jeremy Bentham, An Introduction to the Principles of Morals and Legislation,
The Library of Economics and Liberty (1823).
325
John Stuart Mill, On Liberty, (Elizabeth Rapaport ed), Hackett Publishing Co, Inc
H (1978).
326
Ibid.
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Mill created a dichotomy between “self-regarding” actions (those which A
affect the individual himself and have no significant effect on society at
large) and “other-regarding” actions (those which affect the society). 327
He was aware that in a way, all actions of an individual are likely to
affect “those nearly connected with him and, in a minor degree, society
at large.”328 However, he argued that as long as an action does not
B
“violate a distinct and assignable obligation to any other person or persons”,
it may not be taken out of the self-regarding class of actions.329 Thus,
Mill proposed that “all that portion of a person’s life and conduct which
affects only himself, or, if it also affects others, only with their free,
voluntary, and undeceived consent and participation” should be free from
state interference.330 He further added that the state and society are not C
justified in interfering in the self-regarding sphere, merely because they
believe certain conduct to be “foolish, perverse, or wrong.”331
Essentially, Mill created a taxonomy on types of conduct – (a) self-
regarding actions should not be the subject of sanctions either from the
state or society; (b) actions which may hurt others but do not violate any D
legal rights may only be the subject of public condemnation but not state
sanction; (c) only action which violate the legal rights of others should
be the subject of legal sanction (and public condemnation).332 The harm
principle thus, operated as a negative or limiting principle, with the main
objective of restricting criminal law from penalising conduct merely on
the basis of its perceived immorality or unacceptability when the same is E
not harmful.333
While Mill’s theory was not propounded in relation to LGBTQ rights, his
understanding of criminal law is well-suited to argue that sodomy laws
criminalise ‘self-regarding’ actions which fall under the first category of
conduct, and should not be subjected to sanctions either by the state or F
the society.
327
Ibid.
328
Ibid.
329
Ibid.
330
Ibid. G
331
Ibid.
332
Mark Strasser, “Lawrence, Mill, and Same Sex Relationships: On Values, Valuing
and the Constitution”, Southern California Interdisciplinary Law Journal, Vol. 15
(2006).
333
Joseph Raz, ‘Autonomy, Toleration and the Harm Principle’, in Issues in
Contemporary Legal Philosophy: The Influence of HLA Hart (R. Gavison ed.),
Oxford University Press (1987). H
702 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 132. A jurisprudential debate on the interplay between criminal
law and morality was set off when Lord Devlin delivered the 1959
Maccabean Lecture, titled “The Enforcement of Morals.”334 Lord
Devlin’s lecture was an attack against the Report of the Wolfenden
Committee on Homosexual Offences and Prostitution (“Wolfenden
Report”), which had recommended the decriminalisation of sodomy laws
B
in England.335 The Wolfenden Committee, headed by Sir John Wolfenden,
Vice-Chancellor of Reading University, was set up in 1954 to consider
the criminalisation of homosexuality and prostitution, in the wake of
increased arrests and convictions in the UK for homosexuality between
men.336 Among those prosecuted for ‘gross indecency’ under the Buggery
C Act of 1553 and Sexual Offences Act of 1967 were eminent persons
like Oscar Wilde, Alan Turing and Lord Montagu of Beaulieu.337 After
conducting a three-year long inquiry, carrying out empirical research,
and interviewing three gay men, the Wolfenden Committee released its
Report in 1957.338 The Wolfenden Report recommended that:
D “Homosexual behaviour between consenting adults should no
longer be a criminal offence... Unless a deliberate attempt is to
be made by society, acting through the agency of the law, to
equate the sphere of crime with that of sin, there must remain a
realm of private morality and immorality which is, in brief and
crude terms, not the law’s business.”339
E
The Wolfenden Report stated that “it is not the purpose of law to intervene
in the private lives of citizens, or to seek to enforce any particular pattern
of behaviour…”340 The Wolfenden Report acknowledged that the law
and public opinion have a close relationship with each other – the law
ought to “follow behind public opinion” so that it garners the community
F support, while at the same time, the law must also fortify and lead public
opinion.341 However, it made out a strong case for divorcing morality
from criminal law and stated that - “moral conviction or instinctive feeling,
however strong, is not a valid basis for overriding the individual’s privacy
334
Graham Hughes, “Morals and the Criminal Law”, The Yale Law Journal, Vol.71
G (1962).
335
Supra note 29.
336
Ibid.
337
Ibid.
338
Ibid.
339
Supra note 29, at paras 61 and 62.
340
Ibid, at para 14.
H 341
Ibid, at para 16.
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D. Y. CHANDRACHUD,

and for bringing within the ambit of the criminal law private sexual A
behaviour of this kind.”342 Stating that homosexuality is not a mental
illness, the Wolfenden Report clarified that homosexuality is “a sexual
propensity for persons of one’s own sex…[it] is a state or condition, and
as such does not, and cannot, come within the purview of criminal law.”343
133. Lord Devlin, perturbed by the Wolfenden Report’s line of B
reasoning, framed questions on the issue of criminal law and morality:
“1. Has society the right to pass judgments on all matters of
morals?
2. If society has the right to pass judgment, has it also the right to
use the weapon of the law to enforce it?”344 C
Devlin believed that society depends upon a common morality for its
stability and existence.345 On the basis of this belief, Devlin answered
the above questions in the affirmative, stating that – society has the right
to pass judgments on all matters of morality and also the right to use law
to enforce such morality. 346 Devlin reasoned that society would
D
disintegrate if a common morality was not observed. Therefore, society
is justified in taking steps to preserve its morality as much as it preserves
the government.347 Devlin proposed that the common morality or
“collective judgment of the society” should be ascertained taking into
consideration the “reasonable man.”348 According to him, a reasonable
man is an ordinary man whose judgment “may largely be a matter of E
feeling.”349 He added that if the reasonable man believed a practice to
be immoral, and held this belief honestly and dispassionately, then for the
purpose of law such practice should be considered immoral. 350
134. Countering Devlin’s theory, Hart argued that society is not
held together by a common morality, for, after all, it is not a hive mind or F
a monolith, governed by a singular set of morals and principles.351 Hart
342
Ibid, at para 54.
343
Ibid, at para 18.
344
Sir Patrick Arthur Devlin, “The Enforcement Of Morals” Oxford University Press
(1959) at page 9.
345
Supra note 334, at page 662. G
346
Animesh Sharma, “Section 377: No Jurisprudential Basis.” Economic and Political
Weekly, Vol. 43 (2008) at pages 12-14.
347
Supra note 344.
348
Ibid.
349
Ibid.
350
Ibid.
351
Supra note 346, at pages 12-14. H
704 SUPREME COURT REPORTS [2018] 7 S.C.R.

A rebutted Devlin’s argument in the following way:
“…apart from one vague reference to ‘history’ showing the ‘the
loosening of moral bonds is often the first stage of disintegration,’
no evidence is produced to show that deviation from accepted
sexual morality, even by adults in private is something which,
B like treason, threatens the existence of society. No reputable
historian has maintained this thesis, and there is indeed much
evidence against it…Lord Devlin’s belief in it [that homosexuality
is a cause of societal disintegration], and his apparent indifference
to the question of evidence, are at points traceable to an
undiscussed assumption. This is that all morality – sexual morality
C together with the morality that forbids acts injurious to others
such as killing, stealing, and dishonesty — forms a single seamless
web, so that those who deviate from any part are likely to perhaps
bound to deviate from the whole. It is of course clear (and one
of the oldest insights of political theory) that society could not
D exist without a morality which mirrored and supplemented the
law’s proscription of conduct injurious to others. But there is
again no evidence to support, and much to refute, the theory that
those who deviate from conventional sexual morality are in other
ways hostile to society.”352

E Despite countering Devlin, Hart was not completely opposed to a
relationship between law and morality, and in fact, he emphasised that
the two are closely related:
“The law of every modem state shows at a thousand points the
influence of both the accepted social morality and wider moral
F ideals. These influences enter into law either abruptly and
avowedly through legislation, or silently and piecemeal through
the judicial process…The further ways in which law mirrors
morality are myriad, and still insufficiently studied: statutes may
be a mere legal shell and demand by their express terms to be
filled out with the aid of moral principles; the range of enforceable
G contracts may be limited by reference to conceptions of morality
and fair- ness; liability for both civil and criminal wrongs may be
adjusted to prevailing views of moral responsibility.”353
352
Hart, H. L. A, “The Changing Sense of Morality” In Political Thought (Michael
Rosen and Jonathan Wolff eds.), Oxford University Press (1999) at pages 140-141.
353
H.L.A. Hart, Law, Liberty And Morality (1979).
H
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However, unlike Devlin, Hart did not propose that morality is a necessary A
condition for the validity of law.354 Hart argued, in summary, that “law is
morally relevant,” but “not morally conclusive.”355 Hart vehemently
disagreed with Devlin’s view that if laws are not based on some collective
morality and enacted to buttress that morality, society will disintegrate.356
Hart draws this distinction by conceding that certain sexual acts (including
B
homosexual acts) were considered ‘immoral’ by mainstream Western
society but adding that private sexual acts are an issue of “private morality”
over which society has no interest and the law, no control.357
Hart further expounded his warning about the imposition of majoritarian
morals, propounding that “[l]t is fatally easy to confuse the democratic
principle that power should be in the hands of the majority with the C
utterly different claim that the majority, with power in their hands, need
respect no limits”358:
“Whatever other arguments there may be for the enforcement
of morality, no one should think even when popular morality is
supported by an “overwhelming majority” or marked by D
widespread “intolerance, indignation, and disgust” that loyalty to
democratic principles requires him to admit that its imposition on
a minority is justified.”359
In this way, Hart avoided the specious generalization that the law must
be severely quarantined from morality but still made it clear that laws E
like Section 377, which impose a majoritarian view of right and wrong
upon a minority in order to protect societal cohesion, are jurisprudentially
and democratically impermissible.
Bentham had a different view on morality and weighed morality against
utilitarian principles. Bentham argued that if the punishment is not utilitarian F
(i.e. does not serve as a deterrent, is unprofitable, or unnecessary), the
‘immoral’ action would have to go unpunished. 360 He opined that
legislators should not be overly swayed by the society’s morality:
354
William Starr, “Law and Morality in H.L.A. Hart’s Legal Philosophy”, Marquette
Law Review, Vol. 67 (1984).
355
Ibid. G
356
Supra note 352.
357
Peter August Bittlinger, “Government enforcement of morality: a critical analysis
of the Devlin-Hart controversy”, Doctoral Dissertations 1896-February 2014 (1975)
at pages 69-70.
358
Ibid at page 91.
359
Ibid at page 93.
360
Supra note 334. H
706 SUPREME COURT REPORTS [2018] 7 S.C.R.

A “The strength of their prejudice is the measure of the indulgence
which should be granted to it…The legislator ought to yield to
the violence of a current which carries away everything that
obstructs it.
But ought the legislator to be a slave to the fancies of those
B whom he governs? No. Between an imprudent opposition and a
servile compliance, there is a middle path, honourable and
safe.” 361
In other words, it appears that Bentham argued that the morality of the
people ought not be ignored in creating laws but also must not become
their unchecked fount.And if prejudicial moralities arise from the people,
C
they should not be unthinkingly and permanently cemented into the law,
but rather addressed and conquered.
John Stuart Mill also made a strong argument against popular morality
being codified into laws. He argued that ‘disgust’ cannot be classified as
harm, and those “who consider as an injury to themselves any conduct
D
which they have a distaste for”, cannot dictate the actions of others
merely because such actions contradict their own beliefs or views.362
Mill believed that society is not the right judge when dealing with the
question of when to interfere in conduct that is purely personal, and that
when society does interfere, “the odds are that it interferes wrongly and
E in the wrong place.”363
135. Christopher R Leslie points out the dangers of letting morality
creep into law:
“Current generations enshrine their morality by passing laws and
perpetuate their prejudices by handing these laws down to their
F children. Soon, statutes take on lives of their own, and their very
existence justifies their premises and consequent implications.
The underlying premises of ancient laws are rarely discussed,
let alone scrutinized.”364
Leslie further adds that “sodomy laws do not merely express societal
G disapproval; they go much further by creating a criminal class”365:
361
Ibid.
362
Supra note 325.
363
Ibid.
364
Christopher. R. Leslie, “Creating criminals: The Injuries Inflicted by “Unenforced”
Sodomy Laws”, Harvard Civil Rights and Civil Liberties Law Review, Vol. 35
(2000).
H 365
Ibid, at pages 103-181.
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[DR.[DIPAK MISRA, CJI ] J.]
D. Y. CHANDRACHUD,

“Sodomy laws are kept on the books, even though state A
governments do not intend to actively enforce them, because
the laws send a message to society that homosexuality is
unacceptable. Even without actual criminal prosecution, the laws
carry meaning… In short, the primary importance of sodomy
laws today is the government’s message to diminish the societal
B
status of gay men and lesbians.”366
136. A broad analysis of criminal theory points to the general
conclusion that criminologists and legal philosophers have long been in
agreement about one basic characteristic of crime: that it should injure a
third person or the society. An element of larger public interest emerges
as the crux of crime. The conduct which Section 377 criminalises C
voluntary ‘carnal intercourse against the order of nature’ with a man or
woman, inter alia – pertains solely to acts between consenting adults.
Such conduct is purely private, or as Mill would call it, “self-regarding,”
and is neither capable of causing injury to someone else nor does it pose
a threat to the stability and security of society. Once the factor of consent D
is established, the question of such conduct causing any injury, does not
arise.
Although Section 377 prima facie appears to criminalise certain acts or
conduct, it creates a class of criminals, consisting of individuals who
engage in consensual sexual activity. It typecasts LGBTQ individuals as E
sex-offenders, categorising their consensual conduct on par with sexual
offences like rape and child molestation. Section 377 not only criminalises
acts (consensual sexual conduct between adults) which should not
constitute crime, but also stigmatises and condemns LGBTQ individuals
in society.
F
137. We are aware of the perils of allowing morality to dictate
the terms of criminal law. If a single, homogenous morality is carved out
for a society, it will undoubtedly have the effect of hegemonizing or
‘othering’ the morality of minorities. The LGBTQ community has been
a victim of the pre-dominant (Victorian) morality which prevailed at the
time when the Indian Penal Code was drafted and enacted. Therefore, G
we are inclined to observe that it is constitutional morality, and not
mainstream views about sexual morality, which should be the driving
factor in determining the validity of Section 377.
366
Ibid.
H
708 SUPREME COURT REPORTS [2018] 7 S.C.R.

A L Constitutional morality
138. With the attainment of independence on 15 August 1947,
Indians were finally free to shape their own destiny.367 The destiny was
to be shaped through a written Constitution. Constitutions are scripts in
which people inscribe the text of their professed collective destiny. They
B write down who they think they are, what they want to be, and the
principles that will guide their interacting along that path in the future.368
The Constitution of India was burdened with the challenge of “drawing
a curtain on the past”369 of social inequality and prejudices. Those who
led India to freedom established into the Constitution the ideals and vision
of a vibrant equitable society. The framing of India’s Constitution was a
C medium of liberating the society by initiating the process of establishing
and promoting the shared values of liberty, equality and fraternity.
Throughout history, socio-cultural revolts, anti-discrimination assertions,
movements, literature and leaders have worked at socializing people
away from supremacist thought and towards an egalitarian existence.
D The Indian Constitution is an expression of these assertions. It was an
attempt to reverse the socializing of prejudice, discrimination, and power
hegemony in a disjointed society. All citizens were to be free from
coercion or restriction by the state, or by society privately.370 Liberty
was no longer to remain the privilege of the few. The judgment in
Puttaswamy highlights the commitment of the constitution makers, thus:
E
“The vision of the founding fathers was enriched by the histories
of suffering of those who suffered oppression and a violation of
dignity both here and elsewhere.”
139. Understanding the vision of India at a time when there was
little else older than that vision, is of paramount importance for the reason
F
that though the people may not have played any role in the actual framing
of the Constitution, the Preamble professes that the Constitution has
been adopted by the people themselves. Constitutional historian Granville
Austin has said that the Indian Constitution is essentially a social
document. 371 The Indian Constitution does not provide merely a
G 367
Jawaharlal Nehru, “Tryst with Destiny”, address to the Constituent Assembly of
India, delivered on 14-15 August 1947.
368
Uday S. Mehta, “Constitutionalism”, In The Oxford Companion to Politics in India
(Niraja Gopal Jayal and Pratap Bhanu Mehta eds.), Oxford University Press (2010), at
page 15.
369
Ibid, at page 16.
370
Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University
Press (1966), at page 65.
H 371
Ibid, at page 63.
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[DR.[DIPAK MISRA, CJI ] J.]
D. Y. CHANDRACHUD,

framework of governance. It embodies a vision. It is goal-oriented and A
its purpose is to bring about a social transformation in the country. It
represents the aspirations of its framers. The democratic Constitution of
India embodies provisions which are value-based.
140 During the framing of the Constitution, it was realized by the
members of the Constituent Assembly that there was a wide gap between B
constitutional precept and reality. The draftspersons were clear that the
imbibing of new constitutional values by the population at large would
take some time. Society was not going to change overnight. Dr Ambedkar
remarked in the Constituent Assembly:
“Democracy in India is only a top-dressing on an Indian soil, C
which is essentially undemocratic.”
141. The values of a democracy require years of practice, effort,
and experience to make the society work with those values. Similar is
the position of non-discrimination, equality, fraternity and secularism.
While the Constitution guarantees equality before the law and equal D
protection of the law, it was felt that the realization of the constitutional
vision requires the existence of a commitment to that vision. Dr Ambedkar
described this commitment to be the presence of constitutional morality
among the members of the society. The conception of constitutional
morality is different from that of public or societal morality. Under a
regime of public morality, the conduct of society is determined by popular E
perceptions existent in society. The continuance of certain symbols, labels,
names or body shapes determine the notions, sentiments and mental
attitudes of the people towards individuals and things.372 Constitutional
morality determines the mental attitude towards individuals and issues
by the text and spirit of the Constitution. It requires that the rights of an F
individual ought not to be prejudiced by popular notions of society. It
assumes that citizens would respect the vision of the framers of the
Constitution and would conduct themselves in a way which furthers that
vision. Constitutional morality reflects that the ideal of justice is an
overriding factor in the struggle for existence over any other notion of
social acceptance. It builds and protects the foundations of a democracy, G
without which any nation will crack under its fissures. For this reason,
constitutional morality has to be imbibed by the citizens consistently and
372
Babasaheb.R. Ambedkar, Annihilation of Caste, Navayana Publishing (2014); See
also Martha C. Nussbaum, “Disgust or Equality? Sexual Orientation and Indian
Law”, Journal of Indian Law and Society, Vol. 6 (2010). H
710 SUPREME COURT REPORTS [2018] 7 S.C.R.

A continuously. Society must always bear in mind what Dr Ambedkar
observed before the Constituent Assembly:
“Constitutional morality is not a natural sentiment. It has to be
cultivated. We must realize that our people have yet to learn it.”
142. In the decision in Government of NCT of Delhi v.
B Union of India373, the Constitution Bench of this Court dealt with the
constitutive elements of constitutional morality which govern the working
of a democratic system and representative form of government.
Constitutional morality was described as founded on a “constitutional
culture”, which requires the “existence of sentiments and dedication for
C realizing a social transformation which the Indian Constitution seeks to
attain.” This Court held thus:
“If the moral values of our .Constitution were not upheld at every
stage, the text of the Constitution may not be enough to protect
its democratic values.”
D This Court held that constitutional morality acts a check against the
“tyranny of the majority” and as a “threshold against an upsurge in mob
rule.” It was held to be a balance against popular public morality.
143. Constitutional morality requires in a democracy the assurance
of certain minimum rights, which are essential for free existence to every
E member of society. The Preamble to the Constitution recognises these
rights as “Liberty of thought, expression, belief, faith and worship” and
“Equality of status and of opportunity.” Constitutional morality is the
guarantee which seeks that all inequality is eliminated from the social
structure and each individual is assured of the means for the enforcement
of the rights guaranteed. Constitutional morality leans towards making
F Indian democracy vibrant by infusing a spirit of brotherhood amongst a
heterogeneous population, belonging to different classes, races, religions,
cultures, castes and sections. Constitutional morality cannot, however,
be nurtured unless, as recognised by the Preamble, there exists fraternity,
which assures and maintains the dignity of each individual. In his famous,
G yet undelivered speech titled “Annihilation of Caste” (which has been
later published as a book), Dr Ambedkar described ‘fraternity’ as
“primarily a mode of associated living, of conjoint communicated
experience” and “essentially an attitude of respect and reverence towards
fellow men.”374 He remarked:
373
2018 (8) SCALE 72
H 374
Supra note 372, at para 14.2.
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[DR.[DIPAK MISRA, CJI ] J.]
D. Y. CHANDRACHUD,

“An ideal society should be mobile, should be full of channels for A
conveying a change taking place in one part to other parts. In an
ideal society there should be many interests consciously
communicated and shared. There should be varied and free points
of contact with other modes of association. In other words there
must be social endosmosis. This is fraternity, which is only another
B
name for democracy.”
In his last address to the Constituent Assembly, he defined fraternity as
“a sense of common brotherhood of all Indians.” As on the social and
economic plane, Indian society was based on graded inequality, Dr
Ambedkar had warned in clear terms:
“Without fraternity, liberty [and] equality could not become a C
natural course of things. It would require a constable to enforce
them… Without fraternity equality and liberty will be no deeper
than coats of paint.”375
144. Constitutional morality requires that all the citizens need to
have a closer look at, understand and imbibe the broad values of the D
Constitution, which are based on liberty, equality and fraternity.
Constitutional morality is thus the guiding spirit to achieve the
transformation which, above all, the Constitution seeks to achieve. This
acknowledgement carries a necessary implication: the process through
which a society matures and imbibes constitutional morality is gradual, E
perhaps interminably so. Hence, constitutional courts are entrusted with
the duty to act as external facilitators and to be a vigilant safeguard
against excesses of state power and democratic concentration of power.
This Court, being the highest constitutional court, has the responsibility
to monitor the preservation of constitutional morality as an incident of
fostering conditions for human dignity and liberty to flourish. Popular F
public morality cannot affect the decisions of this Court. Lord Neuberger
(of the UK Supreme Court) has aptly observed:
“[W]e must always remember that Parliament has democratic
legitimacy – but that has disadvantages as well as advantages.
The need to offer oneself for re-election sometimes makes it G
hard to make unpopular, but correct, decisions. At times it can
be an advantage to have an independent body of people who do
not have to worry about short term popularity.”376
375
Constituent Assembly Debates (25 November 1949).
376
Lord Neuberger, “UK Supreme Court decisions on private and commercial law: The
role of public policy and public interest”, Centre for Commercial Law Studies Conference (2015). H
712 SUPREME COURT REPORTS [2018] 7 S.C.R.

A The flourishing of a constitutional order requires not only the institutional
leadership of constitutional courts, but also the responsive participation
of the citizenry.377 Constitutional morality is a pursuit of this responsive
participation. The Supreme Court cannot afford to denude itself of its
leadership as an institution in expounding constitutional values. Any loss
of its authority will imperil democracy itself.
B
145. The question of morality has been central to the concerns
around homosexuality and the rights of LGBT individuals. Opponents –
including those of the intervenors who launched a diatribe in the course
of hearing – claim that homosexuality is against popular culture and is
thus unacceptable in Indian society. While dealing with the
C constitutionality of Section 377 of the Indian Penal Code, the Delhi High
Court in Naz Foundation had held:
“Thus popular morality or public disapproval of certain acts is
not a valid justification for restriction of the fundamental rights
under Article 21. Popular morality, as distinct from a constitutional
D morality derived from constitutional values, is based on shifting
and subjecting notions of right and wrong. If there is any type of
“morality” that can pass the test of compelling state interest, it
must be “constitutional” morality and not public morality… In
our scheme of things, constitutional morality must outweigh the
E argument of public morality, even if it be the majoritarian view.”
The invocation of constitutional morality must be seen as an extension
of Dr Ambedkar’s formulation of social reform and constitutional
transformation. Highlighting the significance of individual rights in social
transformation, he had observed:
F “The assertion by the individual of his own opinions and beliefs,
his own independence and interest—over and against group
standards, group authority, and group interests—is the beginning
of all reform. But whether the reform will continue depends upon
what scope the group affords for such individual assertion.” 378
G After the enactment of the Constitution, every individual assertion of
rights is to be governed by the principles of the Constitution, by its text
377
Marc Galanter, “Fifty Years on”, in BN Kirpal et al, Supreme but Not Infallible:
Essays in Honour of the Supreme Court of India, Oxford University Press (2000),
at page 57.
378
Supra note 373, at para 12.1.
H
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 713
[DIPAK
[DR. D. MISRA, CJI ] J.]
Y. CHANDRACHUD,

and spirit. The Constitution assures to every individual the right to lead a A
dignified life. It prohibits discrimination within society. It is for this reason
that constitutional morality requires this court to issue a declaration -
which we now do - that LGBT individuals are equal citizens of India,
that they cannot be discriminated against and that they have a right to
express themselves through their intimate choices. In upholding
B
constitutional morality, we affirm that the protection of the rights of
LGBT individuals are not only about guaranteeing a minority their rightful
place in the constitutional scheme, but that we equally speak of the vision
of the kind of country we want to live in and of what it means for the
majority.379 The nine-judge Bench of this Court in Puttaswamy had held
in clear terms that discrimination against an individual on the basis of C
sexual orientation is deeply offensive to the dignity and self-worth of the
individual. The Bench held:
“The purpose of elevating certain rights to the stature of
guaranteed fundamental rights is to insulate their exercise from
the disdain of majorities, whether legislative or popular. The D
guarantee of constitutional rights does not depend upon their
exercise being favourably regarded by majoritarian opinion. The
test of popular acceptance does not furnish a valid basis to
disregard rights which are conferred with the sanctity of
constitutional protection. Discrete and insular minorities face
grave dangers of discrimination for the simple reason that their E
views, beliefs or way of life does not accord with the
‘mainstream’. Yet in a democratic Constitution founded on the
rule of law, their rights are as sacred as those conferred on other
citizens to protect their freedoms and liberties.”
Constitutional morality will impact upon any law which deprives the LGBT F
individuals of their entitlement to a full and equal citizenship. After the
Constitution came into force, no law can be divorced from constitutional
morality. Society cannot dictate the expression of sexuality between
consenting adults. That is a private affair. Constitutional morality will
supersede any culture or tradition.
G
The interpretation of a right in a matter of decriminalisation and beyond
must be determined by the norms of the Constitution.
146. LGBT individuals living under the threats of conformity
grounded in cultural morality have been denied a basic human existence.
379
Supra note 41. H
714 SUPREME COURT REPORTS [2018] 7 S.C.R.

A They have been stereotyped and prejudiced. Constitutional morality
requires this Court not to turn a blind eye to their right to an equal
participation of citizenship and an equal enjoyment of living. Constitutional
morality requires that this Court must act as a counter majoritarian
institution which discharges the responsibility of protecting constitutionally
entrenched rights, regardless of what the majority may believe.380
B
Constitutional morality must turn into a habit of citizens. By respecting
the dignity of LGBT individuals, this Court is only fulfilling the foundational
promises of our Constitution.
M In summation : transformative constitutionalism
C 147. This case has required a decision on whether Section 377 of
the Penal Code fulfills constitutional standards in penalising consensual
sexual conduct between adults of the same sex. We hold and declare
that in penalising such sexual conduct, the statutory provision violates
the constitutional guarantees of liberty and equality. It denudes members
of the LGBT communities of their constitutional right to lead fulfilling
D lives. In its application to adults of the same sex engaged in consensual
sexual behaviour, it violates the constitutional guarantee of the right to
life and to the equal protection of law.
148. Sexual orientation is integral to the identity of the members
of the LGBT communities. It is intrinsic to their dignity, inseparable from
E their autonomy and at the heart of their privacy. Section 377 is founded
on moral notions which are an anathema to a constitutional order in
which liberty must trump over stereotypes and prevail over the
mainstreaming of culture. Our Constitution, above all, is an essay in the
acceptance of diversity. It is founded on a vision of an inclusive society
F which accommodates plural ways of life.
149. The impact of Section 377 has travelled far beyond
criminalising certain acts. The presence of the provision on the statute
book has reinforced stereotypes about sexual orientation. It has lent the
authority of the state to the suppression of identities. The fear of
G persecution has led to the closeting of same sex relationships. A penal
provision has reinforced societal disdain.
150. Sexual and gender based minorities cannot live in fear, if the
Constitution has to have meaning for them on even terms. In its quest
for equality and the equal protection of the law, the Constitution guarantees
H 380
Ibid.
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 715
[DIPAK
[DR. D. MISRA, CJI ] J.]
Y. CHANDRACHUD,

to them an equal citizenship. In de-criminalising such conduct, the values A
of the Constitution assure to the LGBT community the ability to lead a
life of freedom from fear and to find fulfilment in intimate choices.
151. The choice of a partner, the desire for personal intimacy and
the yearning to find love and fulfilment in human relationships have a
universal appeal, straddling age and time. In protecting consensual B
intimacies, the Constitution adopts a simple principle: the state has no
business to intrude into these personal matters. Nor can societal notions
of heteronormativity regulate constitutional liberties based on sexual
orientation.
152. This reference to the Constitution Bench is about the validity C
of Section 377 in its application to consensual sexual conduct between
adults of the same sex. The constitutional principles which we have
invoked to determine the outcome address the origins of the rights claimed
and the source of their protection. In their range and content, those
principles address issues broader than the acts which the statute penalises.
Resilient and universal as they are, these constitutional values must enure D
with a mark of permanence.
153. Above all, this case has had great deal to say on the dialogue
about the transformative power of the Constitution. In addressing LGBT
rights, the Constitution speaks – as well – to the rest of society. In
recognising the rights of the LGBT community, the Constitution asserts E
itself as a text for governance which promotes true equality. It does so
by questioning prevailing notions about the dominance of sexes and
genders. In its transformational role, the Constitution directs our attention
to resolving the polarities of sex and binarities of gender. In dealing with
these issues we confront much that polarises our society. Our ability to F
survive as a free society will depend upon whether constitutional values
can prevail over the impulses of the time.
154. A hundred and fifty eight years is too long a period for the
LGBT community to suffer the indignities of denial. That it has taken
sixty eight years even after the advent of the Constitution is a sobering G
reminder of the unfinished task which lies ahead. It is also a time to
invoke the transformative power of the Constitution.
155. The ability of a society to acknowledge the injustices which
it has perpetuated is a mark of its evolution. In the process of remedying
wrongs under a regime of constitutional remedies, recrimination gives
H
716 SUPREME COURT REPORTS [2018] 7 S.C.R.

A way to restitution, diatribes pave the way for dialogue and healing replaces
the hate of a community. For those who have been oppressed, justice
under a regime committed to human freedom, has the power to transform
lives. In addressing the causes of oppression and injustice, society
transforms itself. The Constitution has within it the ability to produce a
social catharsis. The importance of this case lies in telling us that
B
reverberations of how we address social conflict in our times will travel
far beyond the narrow alleys in which they are explored.
156. We hold and declare that:
(i) Section 377 of the Penal Code, in so far as it criminalises
C consensual sexual conduct between adults of the same sex,
is unconstitutional;
(ii) Members of the LGBT community are entitled, as all other
citizens, to the full range of constitutional rights including
the liberties protected by the Constitution;
D (iii) The choice of whom to partner, the ability to find fulfilment
in sexual intimacies and the right not to be subjected to
discriminatory behaviour are intrinsic to the constitutional
protection of sexual orientation;
(iv) Members of the LGBT community are entitled to the benefit
E of an equal citizenship, without discrimination, and to the
equal protection of law; and
(v) The decision in Koushal stands overruled.
Acknowledgment
F Before concluding, I acknowledge the efforts of counsel for the petitioners
and intervenors who appeared in this case – Mr Mukul Rohatgi, Mr
Arvind Datar, Mr Ashok Desai, Mr Anand Grover, Mr Shyam Divan,
Mr CU Singh and Mr Krishnan Venugopal, Senior Counsel; and Mr
Saurabh Kirpal, Dr Menaka Guruswamy and Ms Arundhati Katju, and
Ms Jayna Kothari, learned Counsel. Their erudition has enabled us to
G absorb, as we reflected and wrote. Mr Tushar Mehta, learned Additional
Solicitor General appeared for the Union of India. We acknowledge the
assistance rendered by the counsel for the intervenors who opposed the
petitioners.

H
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 717
[DIPAK MISRA, CJI ]

INDU MALHOTRA, J. 1. I have had the advantage of reading A
the opinions prepared by the Hon’ble Chief Justice, and my brother Judges
Justice Nariman and Justice Chandrachud. The Judgments have dealt
in-depth with the various issues that are required to be examined by this
Bench, to answer the reference.
2. The present batch of Writ Petitions have been filed to challenge B
the constitutional validity of Section 377 of the Indian Penal Code, 1860
(“IPC”) on the specific ground that it criminalises consensual sexual
intercourse between adult persons belonging to the same sex in private.
3. The issue as to whether the decision in Suresh Kumar
Koushal& Anr. v. Naz Foundation & Ors.1 requires re-consideration C
was referred to the Constitution Bench vide Order dated 8th January,
2018.
4. The Petitioners have inter alia submitted that sexual expression
and intimacy between consenting adults of the same sex in private ought
to receive protection under Part III of the Constitution, as sexuality lies D
at the core of a human being’s innate identity. Section 377 inasmuch as
it criminalises consensual relationships between same sex couples is
violative of the fundamental rights guaranteed by Articles 21, 19 and 14,
in Part III of the Constitution.
The principal contentions raised by the Petitioners during the course of E
hearing are:
I. Fundamental rights are available to LGBT persons
regardless of the fact that they constitute a minority.
ii. Section 377 is violative of Article 14 being wholly arbitrary,
vague, and has an unlawful objective. F
iii. Section 377 penalises a person on the basis of their sexual
orientation, and is hence discriminatory under Article 15.
iv. Section 377 violates the right to life and liberty guaranteed
by Article 21 which encompasses all aspects of the right to
G
live with dignity, the right to privacy, and the right to autonomy
and self-determination with respect to the most intimate
decisions of a human being.
1
(2014) 1 SCC 1
H
718 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 5. During the course of hearing, the Union of India tendered an
Affidavit dated 11th July, 2018 wherein it was submitted that with respect
to the Constitutional validity of Section 377 insofar as it applies to
consensual acts of adults in private, the Union of India would leave the
said question to the wisdom of this Hon’ble Court.
B However, if the Court is to decide and examine any issue other
than the Constitutional validity of Section 377, or construe any other
right in favour of the LGBT community, the Union of India would like to
file a detailed Affidavit as that would have far-reaching and wide
ramifications, not contemplated by the reference.
C 6. LEGISLATIVE BACKGROUND
6.1. The legal treatises Fleta and Britton, which date back to 1290
and 1300 respectively, documented prevailing laws in England at
the time. These treatises made references to sodomy as a crime.2
6.2. The Buggery Act, 1533 was re-enacted in 1563 during the regime
D of Queen Elizabeth I, which penalized acts of sodomy by hanging.
In 1861, death penalty for buggery was abolished in England and
Wales. However, it remained a crime “not to be mentioned by
Christians”.
6.3. The 1861 Act became the charter for enactments framed in the
E
colonies of Great Britain.
6.4. The Marginal Note of Section 377, refers to “Unnatural
Offences”. Section 377 reads as under:
“377. Unnatural offences.— Whoever voluntarily has
F carnal inter-course against the order of nature with any
man, woman or animal, shall be punished with
imprisonment for life, or with impris-onment of either
description for a term which may extend to ten years,
and shall also be liable to fine.
Explanation.—Penetration is sufficient to constitute the
G
carnal intercourse necessary to the offence described
in this section.”
(emphasis supplied)
2
John Boswell, Christianity, Social Tolerance, and Homosexuality: Gay People in
Western Europe from the Beginning of the Christian Era to the Fourteenth Century
H (University of Chicago Press, 1980), at p. 292
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 719
[DIPAK
[INDU MISRA, CJI J.
MALHOTRA, ]]

6.5. Section 377 does not define “carnal intercourse against the order A
of nature”. Even though the provision is facially neutral, the
Petitioners submit that the thrust of this provision has been to
target the LGBT community in light of the colonial history of
anti-sodomy laws, and penalise what was perceived to be
‘deviant’ or ‘perverse’ sexual behaviour.
B
7. In the early 20th century, there were many psychiatric theories
which regarded homosexuality as a form of psychopathology or
developmental arrest.3 It was believed that normal development resulted
in a child growing up to be a heterosexual adult, and that homosexuality
was but a state of arrested development.4 Homosexuality was treated
as a disorder or mental illness, which was meted out with social ostracism C
and revulsion.
8. Towards the end of the 20th century, this notion began to change,
and the earlier theories gave way to a more enlightened perspective that
characterized homosexuality as a normal and natural variant of human
sexuality. Scientific studies indicated that human sexuality is complex D
and inherent.5
Kurt Hiller in his speech delivered at the Second International
Congress for Sexual Reform held at Copenhagen in 19286, stated:
“Same-sex love is not a mockery of nature, but rather nature E
at play…As Nietzsche expressed it in Daybreak, Procreation
is a frequently occurring accidental result of one way of
satisfying the sexual drive – it is neither its goal nor its
necessary consequence. The theory which would make
procreation the goal of sexuality is exposed as hasty,
simplistic and false by the phenomenon of same-sex love F
alone. Nature’s laws, unlike the laws formulated by the human
mind, cannot be violated. The assertion that a specific
phenomenon of nature could somehow be “contrary to
nature” amounts to pure absurdity…To belong, not to the
3
G
Report of the Committee on Homosexual Offences and Prostitution, 1957, at para
30.
4
Benjamin J. Sadock et al., Kaplan and Sadock’s Comprehensive Textbook of
Psychiatry (9th ed., 2009), at pp. 2060-89
5
Id
6
Great Speeches on Gay Rights (James Daley ed.; Dover Publications, 2010), at pp.
24-30 H
720 SUPREME COURT REPORTS [2018] 7 S.C.R.

A rule, not to the norm, but rather to the exception, to the
minority, to the variety, is neither a symptom of degeneration
nor of pathology.”
(emphasis supplied)
9. In 1957, the United Kingdom published the Wolfenden
B Committee Report (supra) which recognised how the anti-sodomy laws
had created an atmosphere for blackmail, harassment and violence against
homosexuals. An extract of the findings of this Committee reads as
under:
“We have found it hard to decide whether the blackmailer’s
C primary weapon is the threat of disclosure to the police, with
attendant legal consequences, or the threat of disclosure to
the victim’s relatives, employers or friends, with attendant
social consequences. It may well be that the latter is the more
effective weapon, but it may yet be true that it would lose
D much of its edge if the social consequences were not
associated with the present legal position.”
Pursuant to this Report, the House of Lords initiated legislation to
de-criminalise homosexual acts done in private by consenting parties.
The Sexual Offences Act, 1967 came to be passed in England which
E de-criminalised homosexual acts done in private, provided the parties
had consented to it, and were above the age of 21.
10. The trend of decriminalizing anti-sodomy laws world over has
gained currency during the past few decades since such laws have been
recognised to be violative of human rights. In 2017, the International
F Lesbian, Gay, Bisexual, Trans and Intersex Association noted in its Annual
State Sponsored Homophobia Report7 that 124 countries no longer
penalise homosexuality. The change in laws in these countries was given
effect to, either through legislative amendments to the statutory
enactments, or by way of court judgments.
Relationships between same-sex couples have been increasingly
G
accorded protection by States across the world. As per the aforesaid
Report, a total of 24 countries now allow same-sex couples to marry,
while 28 countries legally recognise partnerships between same-sex
7
Aengus Carroll And Lucas Ramón Mendos, Ilga Annual State Sponsored Homophobia
Report 2017: A World Survey Of Sexual Orientation Laws: Criminalisation, Protection
H And Recognition (12 th Edition, 2017), at pp. 26-36
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 721
[DIPAK
[INDU MISRA, CJI J.
MALHOTRA, ] ]

couples. Several countries have enacted enabling legislations which A
protect LGBT persons from discrimination, and allow them to adopt
children.8 For instance, the United Kingdom now outlaws discrimination
in employment, education, social protection and housing on the ground
of sexual orientation. Marriage between same-sex couples have been
recognised in England and Wales.
B
The British Prime Minister Theresa May in her speech at the
Commonwealth Joint Forum on April 17, 2018 urged Commonwealth
Nations to overhaul “outdated” anti-gay laws, and expressed regret
regarding Britain’s role in introducing such laws.9 The relevant excerpt
of her speech is extracted hereinbelow:
C
“Across the world, discriminatory laws made many years ago
continue to affect the lives of many people, criminalising
same-sex relations and failing to protect women and girls.
I am all too aware that these laws were often put in place by
my own country. They were wrong then, and they are wrong D
now. As the UK’s Prime Minister, I deeply regret both the
fact that such laws were introduced, and the legacy of
discrimination, violence and even death that persists today.”
11. Section 377 has, however, remained in its original form in the
IPC to date. E
12. JUDICIAL INTERPRETATION
12.1.The essential ingredient required to constitute an offence under
Section 377 is “carnal intercourse against the order of nature”,
which is punishable with life imprisonment, or imprisonment of
either description up to ten years. Section 377 applies irrespective F
of gender, age, or consent.
12.2.The expression ‘carnal intercourse’ used in Section 377 is distinct
from ‘sexual intercourse’ which appears in Sections 375 and
497 of the IPC. The phrase “carnal intercourse against the order
of nature” is not defined by Section 377, or in the Code. G

8
Id
9
Theresa May’s Speech at the Commonwealth Joint Forum Plenary available athttps:/
/www.gov.uk/government/speeches/pm-speaks-at-the-commonwealth-joint-forum-
plenary-17-april-2018
H
722 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 12.3.The term ‘carnal’ has been the subject matter of judicial
interpretation in various decisions. According to the New
International Webster’s Comprehensive Dictionary of the English
Language10, ‘carnal’ means:
“1.Pertaining to the fleshly nature or to bodily appetites.
B 2. Sensual ; sexual.
3.Pertaining to the flesh or to the body; not spiritual;
hence worldly.”
12.4.The courts had earlier interpreted the term “carnal” to refer to
acts which fall outside penile-vaginal intercourse, and were not
C for the purposes of procreation.
In Khanu v. Emperor11, the Sindh High Court was dealing with a
case where the accused was found guilty of having committed Gomorrah
coitus per os with a little child, andwasconvicted under Section 377.
The Court held that the act of carnal intercourse was clearly against the
D order of nature, because the natural object of carnal intercourse is that
there should be the possibility of conception of human beings, which in
the case of coitusper os is impossible.
The Lahore High Court in Khandu v. Emperor12 was dealing with
a case wherein the accused had penetrated the nostril of a bullock with
E his penis. The Court, while relying on the decision of the Sindh High
Court in Khanu v. Emperor (supra) held that the acts of the accused
constituted coitus per os, were punishable under Section 377.
In Lohana Vasantlal Devchand & Ors v. State13 the Gujarat
High Court convicted two accused under Section 377 read with Section
F 511 of the IPC, on account of having carnal intercourse per anus, and
inserting the penis in the mouth of a young boy. It was held that:
“…words used (in Section 377) are quite comprehensive and
in my opinion, an act like the present act (oral sex), which
was an imitative act of sexual intercourse for the purpose of
G his satisfying the sexual appetite, would be an act punishable
under Section 377 of the Indian Penal Code.”
10
The New International Webster’s Comprehensive Dictionary of the English Language
(Deluxe Encyclopedic Edition, 1996)
11
AIR 1925 Sind 286
12
AIR 1934 Lah 261 : 1934 Cri LJ 1096
H 13
AIR 1968 Guj 252
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 723
[DIPAK
[INDU MISRA, CJI J.
MALHOTRA, ] ]

Later this Court in Fazal Rab Choudhary v. State of Bihar14 while A
reducing the sentence of the appellant who was convicted for having
committed an offence on a young boy under Section 377 IPC, held that:
“…The offence is one under Section 377 I.P.C., which implies
sexual perversity. No force appears to have been used.
Neither the notions of permissive society nor the fact that in B
some countries homosexuality has ceased to be an offence
has influenced our thinking.”
(emphasis supplied)
The test for attracting penal provisions under Section 377 changed over
the years from non-procreative sexual acts in Khanu v. Emperor(supra), C
to imitative sexual intercourse like oral sex in Lohana Vasantlal
Devchand & Ors. v. State (supra), to sexual perversity in Fazal Rab v.
State of Bihar (supra). These cases referred to non-consensual sexual
intercourse by coercion.
13. HOMOSEXUALITY – NOT AN ABERRATION BUT A VARIATION OF SEXUALITY D
13.1.Whilst a great deal of scientific research has examined possible
genetic, hormonal, developmental, psychological, social and cultural
influences on sexual orientation, no findings have conclusively
linked sexual orientation to any one particular factor or factors.
It is believed that one’s sexuality is the result of a complex E
interplay between nature and nurture.
Sexual orientation is an innate attribute of one’s identity, and
cannot be altered. Sexual orientation is not a matter of choice. It
manifests in early adolescence. Homosexuality is a natural variant
of human sexuality. F
15
The U.S. Supreme Court in Lawrence et al. v. Texas relied
upon the Brief of the Amici Curiae16 which stated:
“Heterosexual and homosexual behavior are both
normal aspects of human sexuality. Both have been
G
14
(1982) 3 SCC 9
15
539 U.S. 558 (2003)
16
Brief for the Amici Curiae American Psychological Association, American Psychiatric
Association, National Association of Social Workers, and Texas Chapter of the National
Association of Social Workers in Lawrence et al. v. Texas 539 U.S. 558(2003), available
at http://www.apa.org/about/offices/ogc/amicus/lawrence.pdf H
724 SUPREME COURT REPORTS [2018] 7 S.C.R.

A documented in many different human cultures and
historical eras, and in a wide variety of animal species.
There is no consensus among scientists about the exact
reasons why an individual develops a heterosexual,
bisexual, or homosexual orientation. According to
current scientific and professional understanding,
B
however, the core feelings and attractions that form the
basis for adult sexual orientation typically emerge
between middle childhood and early adolescence.
Moreover, these patterns of sexual attraction generally
arise without any prior sexual experience. Most or many
C gay men and lesbians experience little or no choice
about their sexual orientation.”
(emphasis supplied)
13.2.An article by K.K. Gulia and H.N. Mallick titled “Homosexuality:
A Dilemma in Discourse”17 states:
D
“In general, homosexuality as a sexual orientation refers
to an enduring pattern or disposition to experience
sexual, affectional, or romantic attractions primarily to
people of the same sex. It also refers to an individual’s
sense of personal and social identity based on those
E attractions, behaviours, expressing them, and
membership in a community of others who share them.
It is a condition in which one is attracted and drawn to
his/her own gender, which is evidenced by the erotic
and emotional involvement with members of his/her own
F sex…
…In the course of the 20 th century, homosexuality
became a subject of considerable study and debate in
western societies. It was predominantly viewed as a
disorder or mental illness. At that time, emerged two
G major pioneering studies on homosexuality carried out
by Alfred Charles Kinsey (1930) and Evelyn Hooker
(1957)…This empirical study of sexual behavior among
American adults revealed that a significant number of
17
KK Gulia and HN Mallick, Homosexuality: a dilemma in discourse, 54 Indian
Journal of Physiology and Pharmacology (2010), at pp. 5, 6 and 8
H
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 725
[DIPAK
[INDU MISRA, CJI J.
MALHOTRA, ] ]

participants were homosexuals. In this study when A
people were asked directly if they had engaged in
homosexual relations, the percentage of positive
responses nearly doubled. The result of this study
became the widely popularized Kinsey Scale of
Sexuality. This scales rates all individuals on a spectrum
B
of sexuality, ranging from 100% heterosexual to 100%
homosexual…”
(emphasis supplied)
13.3.The American Psychiatric Association in December 1973
removed ‘homosexuality’ from the Diagnostic and Statistical C
Manual of Psychological Disorders, and opined that the
manifestation of sexual attraction towards persons of the opposite
sex, or same sex, is a natural condition.18
13.4.The World Health Organization removed homosexuality from
the list of diseases in the International Classification of Diseases D
in the publication of ICD-10 in 1992.19
13.5.In India, the Indian Psychiatric Society has also opined that sexual
orientation is not a psychiatric disorder.20 It was noted that:
“…there is no scientific evidence that sexual orientation
can be altered by any treatment and that any such E
attempts may in fact lead to low self-esteem and
stigmatization of the person.”
13.6.It is relevant to note that under Section 3 of the Mental Healthcare
Act, 2017, determination of what constitutes a “mental illness”
has to be done in accordance with nationally and internationally F
accepted medical standards, including the latest edition of the
International Classification of Disease of the World Health
Organisation.
18
Jack Drescher, Out of DSM: Depathologizing Homosexuality, 5(4) Behavioral
Sciences (2015), at p. 565 G
19
The ICD-10 classification of mental and behavioural disorders: clinical descriptions
and diagnostic guidelines, World Health Organization, Geneva (1992) available
athttp://www.who.int/classifications/icd/en/bluebook.pdf
20
Indian Psychiatry Society: “Position statement on Homosexuality” IPS/Statement/
02/07/2018 available athttp://www.indianpsychiatricsociety.org/upload_images/
imp_download_files/1531125054_1.pdf H
726 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 14. SECTION 377 IF APPLIED TO CONSENTING ADULTS IS VIOLATIVE OF ARTICLE 14
14.1.One of the main contentions raised by the Petitioners to challenge
the Constitutional validity of Section 377 is founded on Article 14
of the Constitution. Article 14 enshrines the principle of equality
as a fundamental right, and mandates that the State shall not
B deny to any person equality before the law, or the equal protection
of the laws within the territory of India. It recognizes and
guarantees the right of equal treatment to all persons in this
country.
It is contended that Section 377 discriminates against adults of the
C same gender, from having a consensual sexual relationship in private, by
treating it as a penal offence, and hence is violative of Article 14.
14.2. The twin-test of classification under Article 14 provides that:
(i) there should be a reasonable classification based on
intelligible differentia; and,
D
(ii) this classification should have a rational nexus with the
objective sought to be achieved.
14.3.Section 377 operates in a vastly different manner for two classes
of persons based on their “sexual orientation” i.e. the LGBT
persons and heterosexual persons. Section 377 penalises all forms
E
of non penile-vaginal intercourse. In effect, voluntary consensual
relationships between LGBT persons are criminalised in totality.
The import and effect of Section 377 is that while a consensual
heterosexual relationship is permissible, a consensual relationship
between LGBT persons is considered to be ‘carnal’, and against
F
the order of nature.
Section 377 creates an artificial dichotomy. The natural or innate
sexual orientation of a person cannot be a ground for
discrimination. Where a legislation discriminates on the basis of
an intrinsic and core trait of an individual, it cannot form a
G reasonable classification based on an intelligible differentia.
14.4.In National Legal Services Authority v. Union of India &
Ors.21 this Court granted equal protection of laws to transgender

21
(2014) 5 SCC 438
H
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 727
[INDU
[DIPAK
MALHOTRA,
MISRA, CJI J.
]]

persons. There is therefore no justification to deny the same to A
LGBT persons.
14.5.A person’s sexual orientation is intrinsic to their being. It is
connected with their individuality, and identity. A classification
which discriminates between persons based on their innate
nature, would be violative of their fundamental rights, and cannot B
withstand the test of constitutional morality.
14.6.In contemporary civilised jurisprudence, with States increasingly
recognising the status of same-sex relationships, it would be
retrograde to describe such relationships as being ‘perverse’,
‘deviant’, or ‘unnatural’. C
14.7.Section 375 defines the offence of rape. It provides for penetrative
acts which if performed by a man against a woman without her
consent, or by obtaining her consent under duress, would amount
to rape. Penetrative acts (after the 2013 Amendment) include
anal and oral sex. D
The necessary implication which can be drawn from the
amended provision is that if such penetrative acts are done with
the consent of the woman they are not punishable under Section
375.
While Section 375 permits consensual penetrative acts (the E
definition of ‘penetration’ includes oral and anal sex), Section
377 makes the same acts of penetration punishable irrespective
of consent. This creates a dichotomy in the law.
14.8.The proscription of a consensual sexual relationship under Section
377 is not founded on any known or rational criteria. Sexual F
expression and intimacy of a consensual nature, between adults
in private, cannot be treated as “carnal intercourse against the
order of nature”.
14.9.Emphasising on the second part of Article 14 which enjoins the
State to provide equal protection of laws to all persons, Nariman, G
J. in his concurring opinion in Shayara Bano v. Union of India
& Ors.22 elucidated on the doctrine of manifest arbitrariness as
a facet of Article 14. Apart from the conventional twin-tests of

22
(2017) 9 SCC 1
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728 SUPREME COURT REPORTS [2018] 7 S.C.R.

A classification discussed in the preceding paragraphs, a legislation,
or part thereof, can also be struck down under Article 14 on the
ground that it is manifestly arbitrary. It would be instructive to
refer to the following passage from the judgment of this Court in
Shayara Bano v. Union of India & Ors. (supra):
B “101…Manifest arbitrariness, therefore, must be something
done by the legislature capriciously, irrationally and/or
without adequate determining principle. Also, when
something is done which is excessive and disproportionate,
such legislation would be manifestly arbitrary.”
C Section 377 insofar as it criminalises consensual sexual acts
between adults in private, is not based on any sound or rational
principle, since the basis of criminalisation is the “sexual
orientation” of a person, over which one has “little or no choice”.
Further, the phrase “carnal intercourse against the order of
D nature” in Section 377 as a determining principle in a penal
provision, is too open-ended, giving way to the scope for misuse
against members of the LGBT community.
Thus, apart from not satisfying the twin-test under Article
14, Section 377 is also manifestly arbitrary, and hence violative
E of Article 14 of the Constitution.
15. SECTION 377 IS VIOLATIVE OF ARTICLE 15
Article 15 prohibits the State from discrimination against
any citizen on the grounds of religion, race, caste, sex, or place
of birth. The object of this provision was to guarantee protection
F to those citizens who had suffered historical disadvantage,
whether it be of a political, social, or economic nature.
15.1.The term ‘sex’, as it occurs in Article 15 has been given an
expansive interpretation by this Court in National Legal Services
Authority v. Union of India & Ors. (supra) to include sexual
G identity. Paragraph 66 of the judgment reads thus:
“66…Both gender and biological attributes constitute
distinct components of sex. The biological characteristics,
of course, include genitals, chromosomes and secondary
sexual features, but gender attributes includes one’s self-
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[INDU MISRA, CJI J.
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image, the deep psychological or emotional sense of sexual A
identity and character. The discrimination on the ground
of sex under Article 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 and female, but intended to
B
include people who consider themselves neither male nor
female.”
(emphasis supplied and internal quotations omitted)
Sex as it occurs in Article 15, is not merely restricted to the
biological attributes of an individual, but also includes their “sexual C
identity and character”.
The J. S. Verma Committee23 had recommended that ‘sex’
under Article 15 must include ‘sexual orientation’:
“65. We must also recognize that our society has the need
to recognize different sexual orientations a human reality. D
In addition to homosexuality, bisexuality, and lesbianism,
there also exists the transgender community. In view of the
lack of scientific understanding of the different variations
of orientation, even advanced societies have had to first
declassify ‘homosexuality’ from being a mental disorder E
and now it is understood as a triangular development
occasioned by evolution, partial conditioning and
neurological underpinnings owing to genetic reasons.
Further, we are clear that Article 15(c) of the constitution
of India uses the word “sex” as including sexual
orientation.” F
The prohibition against discrimination under Article 15 on the
ground of ‘sex’ should therefore encompass instances where
such discrimination takes place on the basis of one’s sexual
orientation.
G
In this regard, the view taken by the Human Rights Committee
of the United Nations in Nicholas Toonen v. Australia24 is
relevant to cite, wherein the Committee noted that the reference
to ‘sex’ in Article 2, Paragraph 1 and Article 26 of the
23
Report of the Committee on Amendments to Criminal Law (2013)
24
Communication No. 488/1992, U.N. Doc.CCPR/C/50/D/488/1992 (1994) H
730 SUPREME COURT REPORTS [2018] 7 S.C.R.

A International Covenant on Civil and Political Rights would include
‘sexual orientation’.
15.2.In an article titled “Reading Swaraj into Article 15: A New
Deal For All Minorities”25, Tarunabh Khaitan notes that the
underlying commonality between the grounds specified in Article
B 15 is based on the ideas of ‘immutable status’ and ‘fundamental
choice’. He refers to the following quote by John Gardener to
provide context to the aforesaid commonality:
“Discrimination on the basis of our immutable status tends
to deny us [an autonomous] life. Its result is that our further
C choices are constrained not mainly by our own choices,
but by the choices of others. Because these choices of
others are based on our immutable status, our own choices
can make no difference to them. .... And discrimination on
the ground of fundamental choices can be wrongful by the
same token. To lead an autonomous life we need an
D adequate range of valuable options throughout that life....
there are some particular valuable options that each of us
should have irrespective of our other choices. Where a
particular choice is a choice between valuable options
which ought to be available to people whatever else they
E may choose, it is a fundamental choice. Where there is
discrimination against people based on their fundamental
choices it tends to skew those choices by making one or
more of the valuable options from which they must choose
more painful or burdensome than others.”26

F (emphasis supplied)
Race, caste, sex, and place of birth are aspects over which
a person has no control, ergo they are immutable. On the other
hand, religion is a fundamental choice of a person. 2 7
Discrimination based on any of these grounds would undermine
G an individual’s personal autonomy.

25
Tarunabh Khaitan, Reading Swaraj into Article 15: A New Deal For All Minorities,
2 NUJS Law Review (2009), at p. 419
26
John Gardner, On the Ground of Her Sex (uality), 18(2) Oxford Journal of Legal
Studies (1998), at p. 167
27
H Supra note 25
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 731
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The Supreme Court of Canada in its decisions in the cases A
of Egan v. Canada 28, and Vriend v. Alberta 29, interpreted
Section 15(1) 30 of the Canadian Charter of Rights and
Freedomswhich is pari materia to Article 15 of the Indian
Constitution.
Section 15(1), of the Canadian Charter like Article 15 of B
our Constitution, does not include “sexual orientation” as a
prohibited ground of discrimination. Notwithstanding that, the
Canadian Supreme Court in the aforesaid decisions has held that
sexual orientation is a “ground analogous” to the other grounds
specified under Section 15(1). Discrimination based on any of
these grounds has adverse impact on an individual’s personal C
autonomy, and is undermining of his personality.
A similar conclusion can be reached in the Indian context
as well in light of the underlying aspects of immutability and
fundamental choice.
D
The LGBT community is a sexual minority which has suffered
from unjustified and unwarranted hostile discrimination, and is
equally entitled to the protection afforded by Article 15.
16. SECTION 377 VIOLATES THE RIGHT TO LIFE AND LIBERTY GUARANTEED
BY ARTICLE 21
E
Article 21 provides that no person shall be deprived of his life or
personal liberty except according to the procedure established
by law. Such procedure established by law must be fair, just and
reasonable.31
The right to life and liberty affords protection to every citizen or F
non-citizen, irrespective of their identity or orientation, without
discrimination.

28
[1995] SCC 98
29
[1998] SCC 816
30
“15. Equality before and under law and equal protection and benefit of law G
(1) Every individual is equal before and under the law and has the right to the equal
protection and equal benefit of the law without discrimination and, in particular,
without discrimination based on race, national or ethnic origin, colour, religion,
sex, age or mental or physical disability…”
Article 15(1), Canadian Charter of Rights and Freedoms.
31
Maneka Gandhi v. Union of India & Anr., (1978) 1 SCC 248, at paragraph 48
H
732 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 16.1.RIGHT TO LIVE WITH DIGNITY
This Court has expansively interpreted the terms “life” and
“personal liberty” to recognise a panoply of rights under Article
21 of the Constitution, so as to comprehend the true scope and
contours of the right to life under Article 21.Article 21 is “the
B most precious human right and forms the ark of all other
rights” as held in Francis Coralie Mullin v. Administrator,
Union Territory of Delhi & Ors.,32 wherein it was noted that
the right to life could not be restricted to a mere animal existence,
and provided for much more than only physical survival.33
Bhagwati J. observed as under:
C
“8…We think that the right to life includes the right to live
with human dignity and all that goes along with it, namely
the bare necessaries of life such as adequate nutrition,
clothing and shelter and facilities for reading, writing and
expressing oneself in diverse forms, freely moving about
D and mixing and commingling with fellow human beings…it
must in any view of the matter, include the right to the basic
necessities of life and also the right to carry on such
functions and activities as constitute the bare minimum
expression of the human-self. Every act which offends
against or impairs human dignity would constitute
E
deprivation pro tanto of this right to live and it would have
to be in accordance with reasonable, fair and just
procedure established by law which stands the test of other
fundamental rights.”
(emphasis supplied)
F This was re-affirmed by the Constitution bench decision in K.S.
Puttaswamy & Anr. v. Union of India & Ors.34 and Common
Cause (A Registered Society) v. Union of India & Anr.35
Although dignity is an amorphous concept which is incapable
of being defined, it is a core intrinsic value of every human being.
G Dignity is considered essential for a meaningful existence.36
32
(1981) 1 SCC 608
33
(1981) 1 SCC 608 at paragraph 7
34
(2017) 10 SCC 1
35
(2018) 5 SCC 1 at paragraphs 156, 437, 438, 488 & 516
36
Common Cause (A Registered Society) v. Union of India and Anr., (2018) 5 SCC 1, at
H paragraphs 437 and 438
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In National Legal Services Authority v. Union of India A
& Ors. (supra),this Court recognised the right of transgender
persons to decide their self-identified gender. In the context of
the legal rights of transgender persons, this Court held that sexual
orientation and gender identity is an integral part of their
personality.
B
The relevant excerpt from Radhakrishnan, J.’s view is
extracted hereinbelow:
“22. …Each person’s self-defined sexual orientation and
gender identity is integral to their personality and is one
of the most basic aspects of self-determination, dignity and C
freedom…”
(emphasis supplied)
Sexual orientation is innate to a human being. It is an
important attribute of one’s personality and identity.
Homosexuality and bisexuality are natural variants of human D
sexuality. LGBT persons have little or no choice over their sexual
orientation. LGBT persons, like other heterosexual persons, are
entitled to their privacy, and the right to lead a dignified existence,
without fear of persecution. They are entitled to complete
autonomy over the most intimate decisions relating to their E
personal life, including the choice of their partners. Such choices
must be protected under Article 21. The right to life and liberty
would encompass the right to sexual autonomy, and freedom of
expression.
The following excerpt from the decision of the Constitutional F
Court of South Africa in National Coalition for Gay and
Lesbian Equality and Anr. v. Minister of Justice and Ors.37 is
also instructive in this regard:
“While recognising the unique worth of each person, the
Constitution does not presuppose that a holder of rights is
G
an isolated, lonely and abstract figure possessing a
disembodied and socially disconnected self. It
acknowledges that people live in their bodies, their
communities, their cultures, their places and their times.
37
[1998] ZACC 15
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734 SUPREME COURT REPORTS [2018] 7 S.C.R.

A The expression of sexuality requires a partner, real or
imagined. It is not for the state to choose or arrange the
choice of partner, but for the partners to choose
themselves.”
(emphasis supplied)
B Section 377 insofar as it curtails the personal liberty of LGBT
persons to engage in voluntary consensual sexual relationships
with a partner of their choice, in a safe and dignified environment,
is violative of Article 21. It inhibits them from entering and
nurturing enduring relationships. As a result, LGBT individuals
C are forced to either lead a life of solitary existence without a
companion, or lead a closeted life as “unapprehended felons”.38
Section 377 criminalises the entire class of LGBT persons
since sexual intercourse between such persons, is considered to
be carnal and “against the order of nature”. Section 377 prohibits
LGBT persons from engaging in intimate sexual relations in
D
private.
The social ostracism against LGBT persons prevents them from
partaking in all activities as full citizens, and in turn impedes them
from realising their fullest potential as human beings.
On the issue of criminalisation of homosexuality, the
E dissenting opinion of Blackmun J. of the U.S. Supreme Court in
Bowers v. Hardwick39 is instructive, which cites a previous
decision in Paris Adult Theatre I v. Slaton40 and noted as follows:
“Only the most wilful blindness could obscure the fact that
sexual intimacy is a sensitive, key relationship of human
F existence, central to family life, community welfare, and
the development of human personality.”
(emphasis supplied)
The U.S. Supreme Court over-ruled Bowers v. Hardwick
(supra) in Lawrence et al. v. Texas. (supra) and declared that a
G
38
According to Professor Edwin Cameron, LGBT persons are reduced to the status
of “unapprehended felons” owing to the ever-so-present threat of prosecution.
Edwin Cameron, Sexual Orientation and the Constitution: A Test Case for Human
Rights, 110 South African Law Journal (1993), at p. 450
39
478 U.S. 186 (1986)
40
413 U.S. 49 (1973)
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statute proscribing homosexuals from engaging in intimate sexual A
conduct as invalidon the ground that it violated the right to privacy,
and dignity of homosexual persons. Kennedy, J. in his majority
opinion observed as under:
“To say that the issue in Bowers was simply the right to
engage in certain sexual conduct demeans the claim the B
individual put forward, just as it would demean a married
couple were it to be said marriage is simply about the right
to have sexual intercourse…
…It suffices for us to acknowledge that adults may choose
to enter upon this relationship in the confines of their homes C
and their own private lives and still retain their dignity as
free persons. When sexuality finds overt expression in
intimate conduct with another person, the conduct can be
but one element in a personal bond that is more enduring.
The liberty protected by the Constitution allows homosexual
persons the right to make this choice…This stigma this D
criminal statute imposes, moreover, is not trivial. The
offence, to be sure, is but a class C misdemeanour, a minor
offence in the Texas legal system. Still, it remains a criminal
offence with all that imports for the dignity of the persons
charged. The petitioners will bear on their record the E
history of criminal convictions...
…The present case does not involve minors. It does not
involve persons who might be injured or coerced or who
are situated in relationships where consent might not easily
be refused. It does not involve public conduct or F
prostitution. It does not involve whether the government
must give formal recognition to any relationship that
homosexuals persons seek to enter. The case does involve
two adults who, with full and mutual consent from each
other, engage in sexual practices, common to a homosexual
lifestyle. The Petitioners are entitled to respect for their G
private lives. The State cannot demean their existence or
control their destiny by making their private sexual conduct
a crime. The right to liberty under the Due Process Clause
gives them the full right to engage in their conduct without
intervention of the government. It is a promise of the H
736 SUPREME COURT REPORTS [2018] 7 S.C.R.

A Constitution that there is a realm of personal liberty which
the government may not enter. Casey, supra at 847. The
Texas statute furthers no legitimate state interest which can
justify its intrusion into the personal and private life of
the individual.”
B (emphasis supplied)
Thus, Section 377 prevents LGBT persons from leading a
dignified life as guaranteed by Article 21.
16.2. RIGHT TO PRIVACY

C The right to privacy has now been recognised to be an
intrinsic part of the right to life and personal liberty under Article
21.41
Sexual orientation is an innate part of the identity of LGBT
persons. Sexual orientation of a person is an essential attribute
D of privacy. Its protection lies at the core of Fundamental Rights
guaranteed by Articles 14, 15, and 21.42
The right to privacy is broad-based and pervasive under
our Constitutional scheme, and encompasses decisional autonomy,
to cover intimate/personal decisions and preserves the sanctity
of the private sphere of an individual.43
E
The right to privacy is not simply the “right to be let alone”,
and has travelled far beyond that initial concept. It now
incorporates the ideas of spatial privacy, and decisional privacy
or privacy of choice.44 It extends to the right to make fundamental
personal choices, including those relating to intimate sexual
F
conduct, without unwarranted State interference.
Section 377 affects the private sphere of the lives of LGBT
persons. It takes away the decisional autonomy of LGBT persons
to make choices consistent with their sexual orientation, which
would further a dignified existence and a meaningful life as a full
G
41
K.S. Puttaswamy & Anr. v. Union of India & Ors., (2017) 10 SCC 1
42
K.S. Puttaswamy & Anr. v. Union of India & Ors., (2017) 10 SCC 1, at paragraphs
144, 145, 479 and 647
43
K.S. Puttaswamy & Anr. v. Union of India & Ors., (2017) 10 SCC 1, at paragraph
248, 250, 371 and 403
44
K.S. Puttaswamy & Anr. v. Union of India & Ors., (2017) 10 SCC 1, at paragraphs
H 248, 249, 371 and 521
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person. Section 377 prohibits LGBT persons from expressing A
their sexual orientation and engaging in sexual conduct in private,
a decision which inheres in the most intimate spaces of one’s
existence.
The Constitutional Court of South Africa in National
Coalition for Gay and Lesbian Equality & Anr. v. Minister B
of Justice & Ors. (supra) noted as under:
“Privacy recognises that we all have a right to a sphere of
private intimacy and autonomy which allows us to establish
and nurture human relationships without interference from
the outside community. The way in which we give expression C
to our sexuality is at the core of this area of private
intimacy. If, in expressing our sexuality, we act
consensually and without harming one another, invasion
of that precinct will be a breach of our privacy.”
Just like other fundamental rights, the right to privacy is not an
D
absolute right and is subject to reasonable restrictions. Any
restriction on the right to privacy must adhere to the requirements
of legality, existence of a legitimate state interest, and
proportionality.45
A subjective notion of public or societal morality which
E
discriminates against LGBT persons, and subjects them to criminal
sanction, simply on the basis of an innate characteristic runs
counter to the concept of Constitutional morality, and cannot form
the basis of a legitimate State interest.
The theme of inclusiveness permeates through Part III of the
Constitution. Apart from the equality code of the Constitution F
comprised in Articles 14, 15(1), 16, and other provisions in the
form of Article 17 (Abolition of Untouchability), Article 21A
(Right to Education), Article 25 (Freedom of Conscience and
Free Profession, Practice and Propagation of Religion), Article
26 (Freedom to Manage Religious Affairs), Article 29 (Protection G
of Interest of Minorities), Article 30 (Right of Minorities to
Establish and Administer Educational Institutions) are aimed at
creating an inclusive society where rights are guaranteed to all,
regardless of their status as a minority.
45
K.S. Puttaswamy & Anr. v. Union of India & Ors., (2017) 10 SCC 1, at paragraphs
H
325, 638 and 645
738 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 16.3. RIGHT TO HEALTH
The right to health, and access to healthcare are also crucial
facets of the right to life guaranteed under Article 21 of the
Constitution.46
LGBT persons being a sexual minority have been subjected
B to societal prejudice, discrimination and violence on account of
their sexual orientation. Since Section 377 criminalises “carnal
intercourse against the order of nature” it compels LGBT persons
to lead closeted lives. As a consequence, LGBT persons are
seriously disadvantaged and prejudiced when it comes to access
C to health-care facilities. This results in serious health issues,
including depression and suicidal tendencies amongst members
of this community.47
LGBT persons, and more specifically the MSM, and
transgender persons are at a higher risk of contracting HIV as
D 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 the threat of being ‘exposed’ and
the resultant prosecution.48 Higher rates of prevalence of HIV-
AIDS in MSM, who are in turn married to other people of the
opposite sex, coupled with the difficulty in detection and treatment,
E makes them highly susceptible to contraction and further
transmission of the virus.
It is instructive to refer to the findings of the Human Rights
Committee of the United Nations in Nicholas Toonen v.
Australia (supra):
F
46
Common Cause (A Registered Society) v. Union of India & Anr., (2018) 5 SCC 1, at
paragraph 304; C.E.S.C. Limited & Ors. v. Subhash Chandra Bose & Ors., (1992)
1 SCC 441, at paragraph 32; Union of India v. Mool Chand Khairati Ram Trust,
(2018) SCC OnLine SC 675, at paragraph 66; and, Centre for Public Interest Litigation
v. Union of India & Ors., (2013) 16 SCC 279, at paragraph 25
47
M. V. Lee Badgett, The Economic Cost of Stigma and the Exclusion of LGBT
G People: A Case Study of India, World Bank Group (2014) available athttp://
documents.worldbank.org/curated/en/527261468035379692/The-economic-cost-of-
stigma-and-the-exclusion-of-LGBT-people-a-case-study-of-India (Last accessed on
August 11, 2018)
48
Govindasamy Agoramoorthy and Minna J Hsu, India’s homosexual discrimination
and health consequences, 41(4) Rev Saude Publica (2007), at pp. 567-660 available
H athttp://www.scielo.br/pdf/rsp/v41n4/6380.pdf
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“8.5 As far as the public health argument of the Tasmanian A
authorities is concerned, the Committee notes that the
criminalization of homosexual practices cannot be
considered a reasonable means or proportionate measure
to achieve the aim of preventing the spread of AIDS/HIV.
The Australian Government observes that statutes
B
criminalizing homosexual activity tend to impede public
health programmes by driving underground many of the
people at the risk of infection. Criminalization of
homosexual activity thus would appear to run counter to
the implementation of effective education programmes in
respect of the HIV/AIDS prevention. Secondly, the C
Committee notes that no link has been shown between the
continued criminalization of homosexual activity and the
effective control of the spread of the HIV/AIDS virus.”
(emphasis supplied and internal footnotes omitted)
The American Psychological Association, American D
Psychiatric Association, National Association of Social Workers
and the Texas Chapter of the National Association of Social
Workers in their Amicus Brief in Lawrence et al. v. Texas (supra)
stated as follows:
“III. Texas Penal Code S. 21.06 reinforces prejudice, E
discrimination, and violence against gay men and
lesbians…Although many gay men and lesbians learn to
cope with the social stigma against homosexuality, this
pattern of prejudice can cause gay people serious
psychological distress, especially if they attempt to conceal F
or deny their sexual orientation….”49
(emphasis supplied)
It is pertinent to mention that in India the Mental Healthcare
Act, 2017 came into force on July 7, 2018. Sections 18(1) and
(2) read with 21(1)(a) of the Mental Healthcare Act, 2017 provide G
for the right to access mental healthcare and equal treatment of
people with physical and mental illnesses without discrimination,
inter alia, on the basis of “sexual orientation”.
49
Supra note 16, at page 3
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740 SUPREME COURT REPORTS [2018] 7 S.C.R.

A This gives rise to a paradoxical situation since Section 377
criminalises LGBT persons, which inhibits them from accessing
health-care facilities, while the Mental Healthcare Act, 2017
provides a right to access mental healthcare without
discrimination, even on the ground of ‘sexual orientation’.
B 17. SECTION 377 VIOLATES THE RIGHT TO FREEDOM OF EXPRESSION OF LGBT
PERSONS

17.1.Article 19(1)(a) guarantees freedom of expression to all citizens.
However, reasonable restrictions can be imposed on the exercise
of this right on the grounds specified in Article 19(2).
C LGBT persons express their sexual orientation in myriad
ways. One such way is engagement in intimate sexual acts like
those proscribed under Section 377.50 Owing to the fear of
harassment from law enforcement agencies and prosecution,
LGBT persons tend to stay ‘in the closet’. They are forced not
D to disclose a central aspect of their personal identity i.e. their
sexual orientation, both in their personal and professional spheres
to avoid persecution in society and the opprobrium attached to
homosexuality. Unlike heterosexual persons, they are inhibited
from openly forming and nurturing fulfilling relationships, thereby
restricting rights of full personhood and a dignified existence. It
E also has an impact on their mental well-being.
17.2.In National Legal Services Authority v. Union of India &
Ors. (supra), this Court noted that gender identity is an important
aspect of personal identity and is inherent to a person. It was
held that transgender persons have the right to express their
F self-identified gender by way of speech, mannerism, behaviour,
presentation and clothing, etc.51
The Court also noted that like gender identity, sexual
orientation is integral to one’s personality, and is a basic aspect
of self-determination, dignity and freedom.52 The proposition that
G sexual orientation is integral to one’s personality and identity was

50
Lawrence et al. v. Texas, 539 U.S. 558 (2003); and, National Coalition for Gay and
Lesbian Equality & Anr. v. Minister of Justice & Ors., [1998] ZACC 15
51
(2014) 5 SCC 438, at paragraphs 69-72
52
(2014) 5 SCC 438, at paragraph 22
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]]

affirmed by the Constitution Bench in K.S. Puttaswamy & Anr. A
v. Union of India & Ors.53
In this regard, it is instructive to refer to the decision of this
Court in S. Khushboo v. Kanniammal & Anr.54 wherein the
following observation was made in the context of the phrase
“decency and morality” as it occurs in Article 19(2): B
“45. Even though the constitutional freedom of speech and
expression is not absolute and can be subjected to
reasonable restrictions on grounds such as “decency and
morality” among others, we must lay stress on the need to
tolerate unpopular views in the sociocultural space. The C
Framers of our Constitution recognised the importance of
safeguarding this right since the free flow of opinions and
ideas is essential to sustain the collective life of the citizenry.
While an informed citizenry is a precondition for
meaningful governance in the political sense, we must also
promote a culture of open dialogue when it comes to societal D
attitudes.
46…Notions of social morality are inherently subjective
and the criminal law cannot be used as a means to unduly
interfere with the domain of personal autonomy. Morality
and criminality are not coextensive.” E

(emphasis supplied)
Therefore, Section 377 cannot be justified as a reasonable
restriction under Article 19(2) on the basis of public or societal
morality, since it is inherently subjective. F
18. SURESH KUMAR KOUSHAL OVERRULED
The two-Judge bench of this Court in Suresh Kumar Koushal
& Anr. v. Naz Foundation & Ors. (supra) over-ruled the decision
of the Delhi High Court in Naz Foundation v. Government of
NCT of Delhi & Ors.55 which had declared Section 377 insofar G
as it criminalised consensual sexual acts of adults in private to
be violative of Articles 14, 15 and 21 of the Constitution.
53
(2017) 10 SCC 1, at paragraphs 144, 145, 647
54
(2010) 5 SCC 600
55
(2009) 111 DRJ 1 (DB)
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742 SUPREME COURT REPORTS [2018] 7 S.C.R.

A The grounds on which the two-judge bench of this Court over-
ruled the judgment in Naz Foundation v. Government of NCT
of Delhi & Ors. (supra) were that:
i. Section 377 does not criminalise particular people or identity or
orientation. It merely identifies certain acts which if committed
B would constitute an offence. Such a prohibition regulates sexual
conduct, regardless of gender identity and orientation.
Those who indulge in carnal intercourse in the ordinary course,
and those who indulge in carnal intercourse against the order of
nature, constitute different classes. Persons falling in the latter
C category cannot claim that Section 377 suffers from the vice of
arbitrariness and irrational classification. Section 377 merely
defines a particular offence, and prescribes a punishment for
the same.
ii. LGBT persons constitute a “miniscule fraction” of the country’s
D population, and there have been very few prosecutions under
this Section. Hence, it could not have been made a sound basis
for declaring Section 377 to be ultra-vires Articles 14, 15, and
21.
iii. It was held that merely because Section 377, IPC has been used
E to perpetrate harassment, blackmail and torture to persons
belonging to the LGBT community, cannot be a ground for
challenging the vires of the Section.
iv. After noting that Section 377 was intra vires, this Court observed
that the legislature was free to repeal or amend Section 377.
F 19. The fallacy in the Judgment of Suresh Kumar Koushal &
Anr. v. Naz Foundation & Ors. (supra) is that:
i. The offence of “carnal intercourse against the order of nature”
has not been defined in Section 377. It is too wide, and open-
ended, and would take within its sweep, and criminalise even
G sexual acts of consenting adults in private.
In this context, it would be instructive to refer to the decision
of a Constitution Bench of this Court in A.K. Roy v. Union of
India56 wherein it was held that:
56
(1982) 1 SCC 271
H
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 743
[INDU
[DIPAK
MALHOTRA,
MISRA, CJIJ.] ]

“ 62. The requirement that crimes must be defined with A
appropriate definiteness is regarded as a fundamental
concept in criminal law and must now be regarded as a
pervading theme of our Constitution since the decision in
Maneka Gandhi. The underlying principle is that every
person is entitled to be informed as to what the State
B
commands or forbids and that the life and liberty of a
person cannot be put in peril on an ambiguity. However,
even in the domain of criminal law, the processes of which
can result in the taking away of life itself, no more than a
reasonable degree of certainty has to be accepted as a
fact. Neither the criminal law nor the Constitution requires C
the application of impossible standards and therefore, what
is expected is that the language of the law must contain an
adequate warning of the conduct which may fall within
the proscribed area, when measured by common
understanding….”
D
(emphasis supplied)
The Judgment does not advert to the distinction between
consenting adults engaging in sexual intercourse, and sexual acts
which are without the will, or consent of the other party. A
distinction has to be made between consensual relationships of E
adults in private, whether they are heterosexual or homosexual
in nature.
Furthermore, consensual relationships between adults
cannot be classified along with offences of bestiality, sodomy
and non-consensual relationships. F
Sexual orientation is immutable, since it is an innate feature
of one’s identity, and cannot be changed at will. The choice of
LGBT persons to enter into intimate sexual relations with persons
of the same sex is an exercise of their personal choice, and an
expression of their autonomy and self-determination. G
Section 377 insofar as it criminalises voluntary sexual
relations between LGBT persons of the same sex in private,
discriminates against them on the basis of their “sexual orientation”
which is violative of their fundamental rights guaranteed by
Articles 14, 19, and 21 of the Constitution.
H
744 SUPREME COURT REPORTS [2018] 7 S.C.R.

A ii. The mere fact that the LGBT persons constitute a “miniscule
fraction” of the country’s population cannot be a ground to
deprive them of their Fundamental Rights guaranteed by Part
III of the Constitution. Even though the LGBT constitute a sexual
minority, members of the LGBT community are citizens of this
country who are equally entitled to the enforcement of their
B
Fundamental Rights guaranteed by Articles 14, 15, 19, and 21.
Fundamental Rights are guaranteed to all citizens alike,
irrespective of whether they are a numerical minority. Modern
democracies are based on the twin principles of majority rule,
and protection of fundamental rights guaranteed under Part III
C of the Constitution. Under the Constitutional scheme, while the
majority is entitled to govern; the minorities like all other citizens
are protected by the solemn guarantees of rights and freedoms
under Part III.
The J.S. Verma Committee, in this regard, in paragraph 77
D of its Report (supra) states that:
“77. We need to remember that the founding fathers of our
Constitution never thought that the Constitution is ‘mirror
of perverse social discrimination’. On the contrary, it
promised the mirror in which equality will be reflected
E brightly. Thus, all the sexual identities, including sexual
minorities, including transgender communities areentitled
to be totally protected. The Constitution enables change
of beliefs, greater understanding and is also an equally
guaranteed instrument to secure the rights of sexually
F despised minorities. “
(emphasis supplied)
iii. Even though Section 377 is facially neutral, it has been misused
by subjecting members of the LGBT community to hostile
discrimination, making them vulnerable and living in fear of the
G ever-present threat of prosecution on account of their sexual
orientation.
The criminalisation of “carnal intercourse against the order
of nature” has the effect of criminalising the entire class of
LGBT persons since any kind of sexual intercourse in the case
H
NAVTEJ SINGH JOHAR v. UOI THR. SECY. MINISTRY OF LAW & JUSTICE 745
[DIPAK
[INDU MISRA, CJI J.
MALHOTRA, ] ]

of such persons would be considered to be against the “order of A
nature”, as per the existing interpretation.
iv. The conclusion in case of Suresh Kumar Koushal & Anr. v.
Naz Foundation & Ors. (supra) to await legislative amendments
to this provision may not be necessary. Once it is brought to the
notice of the Court of any violation of the Fundamental Rights of B
a citizen, or a group of citizens the Court will not remain a mute
spectator, and wait for a majoritarian government to bring about
such a change.
Given the role of this Court as the sentinel on the qui vive, it is
the Constitutional duty of this Court to review the provisions of C
the impugned Section, and read it down to the extent of its
inconsistency with the Constitution.
In the present case, reading down Section 377 is necessary to
exclude consensual sexual relationships between adults, whether
of the same sex or otherwise, in private, so as to remove the D
vagueness of the provision to the extent it is inconsistent with
Part III of the Constitution.
20. History owes an apology to the members of this community
and their families, for the delay in providing redressal for the ignominy
and ostracism that they have suffered through the centuries. The members E
of this community were compelled to live a life full of fear of reprisal
and persecution. This was on account of the ignorance of the majority to
recognise that homosexuality is a completely natural condition, part of a
range of human sexuality. The mis-application of this provision denied
them the Fundamental Right to equality guaranteed by Article 14. It
infringed the Fundamental Right to non-discrimination under Article 15, F
and the Fundamental Right to live a life of dignity and privacy guaranteed
by Article 21. The LGBT persons deserve to live a life unshackled from
the shadow of being ‘unapprehended felons’.
21. CONCLUSION
G
i. In view of the aforesaid findings, it is declared that insofar as
Section 377 criminalises consensual sexual acts of adults (i.e.
persons above the age of 18 years who are competent to consent)
in private, is violative of Articles 14, 15, 19, and 21 of the
Constitution.
H
746 SUPREME COURT REPORTS [2018] 7 S.C.R.

A It is, however, clarified that such consent must be free consent,
which is completely voluntary in nature, and devoid of any duress
or coercion.
ii. The declaration of the aforesaid reading down of Section 377
shall not, however, lead to the re-opening of any concluded
B prosecutions, but can certainly be relied upon in all pending matters
whether they are at the trial, appellate, or revisional stages.
iii. The provisions of Section 377 will continue to govern non-
consensual sexual acts against adults, all acts of carnal intercouse
against minors, and acts of beastiality.
C iv. The judgment in Suresh Kumar Koushal & Anr. v. Naz
Foundation & Ors.57 is hereby overruled for the reasons stated
in paragraph 19.
The Reference is answered accordingly.

D In view of the above findings, the Writ Petitions are allowed.

Devika Gujral Petitions disposed of.

E

F

G

57
H (2014) 1 SCC 1