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14-May-2018 being done in connection with this case at the time the opinion is ... (a) As the Tenth Amendment confirms

THE CRIMINAL LAW (AMENDMENT) ACT 2018 NO. 22 OF 2018

11-Aug-2018 (1) This Act may be called the Criminal Law (Amendment) Act 2018. ... AMENDMENTS TO THE CODE OF CRIMINAL PROCEDURE

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27-Sept-2018 these cases and the Court witnessed highly skilled

16-402 Carpenter v. United States (06/22/2018)

22-Jun-2018 “basic purpose of this Amendment” our cases have recog- ... 10. CARPENTER v. UNITED STATES. Opinion of the Court.

a 10. Adverse judgments relating to the following issues should be

20-Aug-2018 Subject: Amendment to para 10 of the Circular No. 3 of 2018 ... Court have been revised by Board's Circular No.3 of 2018 dated 11.07.2018.

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04-Mar-2020 along with the transfer petitions on 25-10-2018

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11-Aug-2020 substituted by Amendment Act 2005 and in case the father who was ... treated as belonging to a family in the Dayabhaga law. 10.

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06-Sept-2018 10. Writ Petition (Criminal) No. 76 of 2016 was filed for declaring ... 08.01.2018 the Court referred to a two-Judge Bench decision.

THE COMPANIES (AMENDMENT) ACT 2017 NO. 1 OF 2018 An Act

03-Jan-2018 words “other than this Act or the previous company law” shall be inserted; ... cases. Amendment of section 4. Amendment of section 7.

notfctn-49-central-tax-english-new.pdf

13-Sept-2018 49/2018 – Central Tax ... may be called the Central Goods and Services Tax (Tenth Amendment) ... 10 or 11 of the Annual Return (GSTR9). 10.

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IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRIMINAL) NO. 76 OF 2016

NAVTEJ SINGH JOHAR & ORS.

VERSUS

UNION OF INDIA

THR. SECRETARY

MINISTRY OF LAW AND JUSTICE

WITH

WRIT PETITION (CIVIL) NO. 572 OF 2016

WRIT PETITION (CRIMINAL) NO. 88 OF 2018

WRIT PETITION (CRIMINAL) NO. 100 OF 2018

WRIT PETITION (CRIMINAL) NO. 101 OF 2018 WRIT PETITION (CRIMINAL) NO. 121 OF 2018

J U D G M E N T

Dipak Misra, CJI (for himself and A.M. Khanwilkar, J.)

C O N T E N T S

S. No(s). Heading Page No(s)

A. 3-11

B. 11-15

C. Submissions 15-30

D. Submissions on behalf of the respondents

and other intervenors. 31-44

E. Decisions in Naz Foundation and Suresh

Koushal

45-48

F. Other judicial pronouncements on Section 377

IPC ...

48-57

G. The Constitution an organic charter of

57-64

H. Transformative constitutionalism and the

65-74
I. Constitutional morality and Section 377 IPC 74-81

J. 81-89

K. . 89-96

L. .. 96-111

M. Doctrine of progressive realization of

111-118

N. 118

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O. Comparative analysis of Section 375 and

129-140

P. Q.

The litmus test for survival of Section 377

IPC

140-156

156-166

A. Introduction

Not for nothing, the great German thinker, Johann Wolfgang von Goethe, similarly, Arthur from their individualityprofitable to quote a few lines from John Stuart Mill:- and the danger which threatens human nature is not the excess, but the deficiency of personal impulses 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 realization -determined design. One defines oneself. That is the glorious form of individuality. In the present case, our 4 deliberation and focus on the said concept shall be from various spectrums.

2. Shakespeare through one of his characters in a play says

e call a rose by any other name that what really matters is the essential qualities of the substance and the fundamental characteristics of an entity but not the name by which it or a person is called. Getting further deeper into the meaning, it is understood that the name may be a convenient concept for identification but the essence behind the same is the core of identity. Sans identity, the name only remains a denotative term. Therefore, freedom of living, as a facet of life, expresses genuine desire to have it. The said desire, one is inclined to think, is satisfied by the conception of constitutional recognition, and hence, emphasis is laid on the identity of an individual which is conceived under the Constitution. And the sustenance of identity is the filament of life. It is everyday. Identity is equivalent to divinity. 5

3. The overarching ideals of individual autonomy and liberty,

equality for all sans discrimination of any kind, recognition of identity with dignity and privacy of human beings constitute the cardinal four corners of our monumental Constitution forming the concrete substratum of our fundamental rights that has eluded certain sections of our society who are still living in the bondage of dogmatic social norms, prejudiced notions, rigid stereotypes, parochial mindset and bigoted perceptions. Social exclusion, identity seclusion and isolation from the social mainstream are still the stark realities faced by individuals today and it is only when each and every individual is liberated from the shackles of such bondage and is able to work towards full development of his/her personality that we can call ourselves a truly free society. The first step on the long path to acceptance of the diversity and variegated hues that nature has created has to be taken now by vanquishing the enemies of prejudice and injustice and undoing the wrongs done so as to make way for a progressive and inclusive realisation of social and economic rights embracing all and to begin a dialogue for ensuring equal rights and have to bid adieu to the perceptions, stereotypes and prejudices 6 deeply ingrained in the societal mindset so as to usher in inclusivity in all spheres and empower all citizens alike without any kind of alienation and discrimination.

4. The natural identity of an individual should be treated to be

absolutely essential to his being. What nature gives is natural. That is called nature within. Thus, that part of the personality of a person has to be respected and not despised or looked down upon. The said inherent nature and the associated natural impulses in that regard are to be accepted. Non-acceptance of it by any societal norm or notion and punishment by law on some obsolete idea and idealism affects the kernel of the identity of an individual. Destruction of individual identity would tantamount to crushing of intrinsic dignity that cumulatively encapsulates the values of privacy, choice, freedom of speech and other expressions. It can be viewed from another angle. An individual in exercise of his choice may feel that he/she should be left alone but no one, and we mean, no one, should impose solitude on him/her.

5. The eminence of identity has been luculently stated in National

Legal Services Authority v. Union of India and others1, popularly

1 (2014) 5 SCC 438

7 known as NALSA case, wherein the Court was dwelling upon the status of identity of the transgenders. Radhakrishnan, J., after referring to catena of judgments and certain International Covenants, opined that gender identity is one of the most fundamental aspects of l assigned at birth, but a relatively small group of persons may be born with bodies which incorporate both or certain aspects of both male and female physiology. The learned Judge further observed that at times, genital anatomy problems may arise in certain persons in the sense that their innate perception of themselves is not in conformity with the sex assigned to them at birth and may include pre-and post- operative transsexual persons and also persons who do not choose to undergo or do not have access to operation and also include persons who cannot undergo successful operation. Elaborating further, he said:-

Gender identity

internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body which may involve a freely chosen, modification of bodily appearance or functions by medical, surgical or other means and other expressions of gender, including dress, speech and mannerisms. Gender identity, 8 -identification as a man, woman, transgender or other identified

6. Adverting to the concept of discrimination, he stated:-

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