Right of privacy of consenting adult:
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 sexual acts of consenting adults in private.
A distinction has to be made between consensual relationships of 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. 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.
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.
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 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 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 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 of such persons would be considered to be against the “order of 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 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 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 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 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, 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 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.
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 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.
iv. The judgment in Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors [(2014) 1 SCC 1] is hereby overruled for the reasons stated.