Justice R F Nariman
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 .
A recent enactment, namely the Mental Healthcare Act, 2017, throws a great deal of light on recent parliamentary legislative understanding and acceptance of constitutional values as reflected by this Court’s judgments. 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 was to be considered a mental disorder.
The present definition of mental illness in the 2017 parliamentary statute makes it clear that homosexuality is not considered to be a mental illness. This is a major advance in our law which has been recognised by Parliament itself.
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 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.
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 the wisdom of this court.
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.
Morality and criminality are not co-extensive -- sin is not punishable on earth by courts set up by the State but elsewhere; crime 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.
We may conclude by stating that 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 that has been discussed in some of our judgments. 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 attached to any of them.