CJI Dipak Misra and Justice AM Khanwilkar

Not for nothing, the 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’. 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 realisation is one’s signature and self-determined design. One defines oneself. That is the glorious form of individuality.

We must recognise that the concept of identity which has a constitutional tenability cannot be pigeonholed singularly to one’s orientation as it may keep the individual choice at bay.

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 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 of their basic rights since time immemorial.

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 violation of the fundamental right of freedom of expression

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 to be given a meaningful construction which is reflective of their intent and purpose in consonance with changing times.

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, Section 377 IPC in its present form violates Article 19(1)(a) of the Constitution.

Section 377 IPC, so far as it penalises any consensual sexual relationship between two adults, be it homosexuals (man and a man), heterosexuals (man and a woman) or lesbians (woman and a woman), cannot be regarded as constitutional.

SEXUAL ORIENTATION IS ONE OF THE MANY BIOLOGICAL PHENOMENA WHICH IS NATURAL AND INHERENT IN AN INDIVIDUAL