Plain English Summary of the Judgement

Today, the five-judge Bench partially struck down Section 377 of the Indian Penal Code, decriminalising same-sex relations between consenting adults. LGBT individuals are now legally allowed to engage in consensual intercourse. The Court has upheld provisions in Section 377 that criminalise non-consensual acts or sexual acts performed on animals.

Chief Justice Dipak MisraJustice Rohinton NarimanJustice DY Chandrachud and Justice Indu Malhotra authored four concurring judgements. Read the full judgement here.

Read our judgement matrix here, so you can quickly familiarize yourself with each of the four concurring judgements. Read our pre-judgement matrix here, so you can understand what options the Court had before itself prior to making its judgement.

 

The four judgments unanimously cited fundamental rights violations in reading down Section 377. They found that Section 377 discriminates against individuals on the basis of their sexual orientation and/or gender identity, violating Articles 14 and 15 of the Constitution. Further, they ruled that Section 377 violates the rights to life, dignity and autonomy of personal choice under Article 21. Finally, they found that it inhibits an LGBT individual’s ability to fully realize their identity, by violating the right to freedom of expression under Article 19(1)(a). They all referred to Court’s recent judgements in NALSA (recognised transgender identity) and Puttaswamy (recognised fundamental right to privacy).

 

In partially striking down Section 377, the Bench overruled Suresh Koushal 2013. In Suresh Koushal the Court had upheld the constitutionality of Section 377. Not only did the Bench find that Suresh Koushal failed to recognize how Section 377 violates fundamental rights, but further that it relied on a constitutionally impermissible rationale. Suresh Koushal used the miniscule minority rationale, which holds that since only a small minority of citizens are negatively impacted by Section 377, the Court need not intervene. The Constitution guarantees all citizens, independent of sexual orientation or gender identity, their fundamental rights. The Court is concerned with safeguarding ‘constitutional morality’, not ‘popular morality’. 

 

CJI Misra wrote a judgment on behalf of himself and Justice Khanwilkar. In his judgement, he emphasised an individual’s right self-determination. He stressed that the Section 377 fails to recognize an individual’s ability to consent. He recognized that Section 377 not only discriminates against individuals on the basis of inherent biological determinants, but also on the basis of an individual's choices. Justice Misra emphasised that the Constitution protects an individual’s sexual autonomy and intimate personal choices. He struck down Section 377 on grounds of both ‘manifest arbitrariness’ and the failure to meet the ‘reasonable classification test’.

 

Justice Chandrachud called Section 377 an "anachronistic colonial law" and added that it had reduced a class of citizens to the margins.  He said that non-recognition of the right to sexual orientation also leads to a denial of privacy, a fundamental right recognised in Puttaswamy. Regarding gender identity, he noted that human sexuality cannot categorise individuals using a binary male/female construction. He remarked that the decriminalisation of Section 377 is only a necessary first step in the path to guarantee LGBT individuals their constitutional rights and that the Constitution envisages much more.

 

Justice Nariman emphasised the 2017 Mental Healthcare Act, which recognises that homosexuality is not a disease. He used the Act to show that the distinction between natural and unnatural in Section 377 is manifestly arbitrary and violates Article 14.  Furthermore, Justice Nariman stressed that LGBT individuals have the fundamental right to live with dignity under Article 21. He requested that the Court’s judgement be highly publicizied, so that the stigma against being LGBT is reduced. He requested the government to have its officials, especially police-officials, undergo sensitization training.

 

Justice Malhotra spoke about the fundamental right to health, which flows from the right to life in Article 21. She pointed out that the stigma associated with being LGBT forces LGBT individuals to live closeted lives.  This, in turn, denies LGBT individual access to adequate healthcare. She expressed grave concern about the high incidence of HIV/AIDS and other sexually transmitted diseases in LGBT communities across India.