Summary
A five-judge Constitution Bench unanimously overruled Suresh Kumar Koushal and held Section 377 IPC unconstitutional insofar as it criminalised consensual sexual acts between competent adults in private. Sexual orientation is protected by equality, non-discrimination, expression, dignity, privacy and autonomy. Section 377 continues to govern non-consensual acts, acts involving minors and bestiality. Directions require publicity, anti-stigma measures and sensitisation of public officials.
Issues
- Whether Section 377 IPC could constitutionally criminalise consensual sexual conduct between adults in private.
- Whether protection of sexual orientation depends on popular morality, the number of affected persons or legislative action.
- What limits and consequential directions accompany the reading down of Section 377.
Provisions considered
- Section 377, Indian Penal Code, 1860Read down to exclude consensual sexual acts between competent adults in private; retained for non-consensual acts, acts involving minors and bestiality. (¶¶ Misra CJI: 252–253, Malhotra J: 21)
- Section 375, Indian Penal Code, 1860Its expanded post-2013 definition, recognising consent in heterosexual penetrative acts, exposed the discriminatory and arbitrary operation of Section 377. (¶¶ Misra CJI: 205–221, Nariman J: 94)
- Article 14, Constitution of IndiaCriminalisation of consensual adult intimacy failed equality scrutiny and was manifestly arbitrary; fundamental-right protection does not depend on numerical strength. (¶¶ Misra CJI: 233–240, Nariman J: 82, 94–95, Malhotra J: 14)
- Article 15(1), Constitution of IndiaProtection against sex discrimination extends to sexual orientation; facial neutrality cannot excuse discriminatory effects grounded in gender stereotypes. (¶¶ Chandrachud J: 34–53, Malhotra J: 15)
- Articles 19(1)(a) and 19(2), Constitution of IndiaThe criminal prohibition chilled expression of sexual identity and choice and could not be justified as a reasonable restriction by subjective public morality. (¶¶ Misra CJI: 241–247, Nariman J: 83, Malhotra J: 17)
- Article 21, Constitution of IndiaDignity, privacy, autonomy, choice of partner and access to healthcare protect sexual minorities against criminalisation of consensual intimacy. (¶¶ Misra CJI: 149–174, 225–231, Chandrachud J: 54–96, Malhotra J: 16)
- Sections 2(s), 3, 18(1)–(2) and 21(1)(a), Mental Healthcare Act, 2017The statutory approach to mental illness and non-discriminatory access to care reinforced that homosexuality is not a mental illness and that criminalisation obstructs healthcare. (¶¶ Nariman J: 67–74, Chandrachud J: 95–96, Malhotra J: 13.6, 16.3)
Held
- Section 377 is unconstitutional insofar as it penalises consensual sexual acts between competent adults in private, irrespective of whether the relationship is homosexual or heterosexual. Consent must be completely voluntary and free of coercion or duress. Non-consensual acts, acts involving minors and bestiality remain within the provision. (¶¶ Misra CJI: 252–253, Malhotra J: 19, 21)
- Sexual orientation forms part of identity, dignity, privacy and autonomy. LGBT persons enjoy equal citizenship and the full range of constitutional rights; their intimate choices cannot be criminalised merely because a majority disapproves. The lead opinion expressly distinguished companionship from recognition of marriage. (¶¶ Misra CJI: 149–174, 253, Chandrachud J: 145–156, Malhotra J: 16)
- The failure to distinguish consensual from non-consensual acts, and the unequal treatment of consensual intimacy, rendered Section 377 manifestly arbitrary. The post-2013 Section 375 framework further exposed the irrationality of retaining criminal liability for consensual acts under Section 377. (¶¶ Misra CJI: 217–240, Nariman J: 82, 94, Malhotra J: 14)
- Discrimination is assessed by the effect of a law on rights. Section 377, though facially neutral, perpetuated disadvantage based on sexual orientation and gender stereotypes. Chandrachud J rejected the formalistic sex-plus approach; Malhotra J likewise construed Article 15 protection to encompass sexual orientation. (¶¶ Chandrachud J: 34–53, Malhotra J: 15)
- Public decency and morality cannot justify an excessive restriction on expression of sexual identity and consensual intimacy. The threat of prosecution chills personal choice and supplies a means of harassment. Constitutional morality, rather than majoritarian social morality, governs rights adjudication. (¶¶ Misra CJI: 241–247, 253, Nariman J: 78–83, Malhotra J: 17)
- Fundamental rights protect individuals and minorities regardless of population or prosecution figures. Courts must remedy a demonstrated violation without awaiting legislative change. Suresh Kumar Koushal was expressly overruled. (¶¶ Misra CJI: 169–174, 253, Nariman J: 81, 95–96, Chandrachud J: 156, Malhotra J: 19, 21)
- Criminalisation and stigma impede access to healthcare and HIV prevention. Homosexuality is not a mental illness; counselling should support individuals rather than seek to change their orientation. Nariman J directed wide publicity of the judgment, programmes to eliminate stigma and periodic sensitisation of government and police officials. (¶¶ Nariman J: 67–79, 98, Chandrachud J: 68–96, Malhotra J: 16.3)
- Malhotra J clarified that the reading down does not reopen concluded prosecutions but may be relied on in pending trial, appellate and revisional matters. The reference was answered and the petitions disposed of in accordance with the declarations. (¶¶ Malhotra J: 21, Misra CJI: 254)
Result
Section 377 IPC read down to exclude consensual sexual acts of competent adults in private; Suresh Kumar Koushal overruled. Liability for non-consensual acts, acts involving minors and bestiality retained. Publicity, anti-stigma programmes and official sensitisation directed; petitions disposed of.