- (1.) Heard Mr. Arvind Datar, learned senior counsel for the petitioner.
(2.) In the instant writ petition, the petitioners who claimed to be directly affected by the offence enumerated under Section 377 of the Indian Penal Code, 1860 (for short, 'IPC'), pray for declaring the said provision as unconstitutional. It is submitted by Mr.Datar that on an earlier occasion, this Court in Suresh Kumar Koushal and another v. Naz Foundation and others, 2014(1) R.C.R.(Criminal) 286 : (2014) 1 SCC 1, has declared the provision to be intra vires and overruled the decision rendered by the Division Bench of the Delhi High Court in Naz Foundation v. Government of NCT of Delhi and others, 2009(3) R.C.R.(Criminal) 523 : (2009) 111 DRJ 1. According to Mr.Datar, Naz Foundation was canvassing the cause as a non-governmental organization by invoking the jurisdiction under Public Interest Litigation whereas the petitioners are directly affected persons. The aforesaid submission leaves us unimpressed.
(3.) It is further submitted by Mr.Datar that the two-Judge Bench decision in Suresh Kumar Koushal (supra) has been guided by the perception of the majority which is based on social morality and stands on a platform distinct from constitutional morality. Learned senior counsel would submit that the fundamental facet of rule of law is dependent on the fulcrum of constitutional provisions in a democracy. Where the constitutional supremacy prevails, any social principle will not be allowed to come in the way. He would also submit that the interpretation placed by the two-Judge Bench under Article 21 of the Constitution is in an extremely narrow compass and, in fact, the two-Judge Bench has been guided by Article 14 of the Constitution. Learned senior counsel has drawn our attention to the later judgment in National Legal Service Authority v. Union of India and others, 2014(2) R.C.R.(Civil) 713 : 2014(2) R.C.R.(Criminal) 534 : 2014(2) Recent Apex Judgments (R.A.J.) 673 : (2014) 5 SCC 438, where this Court has emphasised on "gender identity and sexual orientation". He has commended us to paragraphs 21 and 22 of the said judgment which we think appropriate to reproduce: "21. Gender identity is one of the most-fundamental aspects of life which refers to a person's intrinsic sense of being male, female or transgender or transsexual person. A person's sex is usually assigned at birth, but a relatively small group of persons may born with bodies which incorporate both or certain aspects of both male and female physiology. At times, genital anatomy problems may arise in certain persons, 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. Countries, all over the world, including India, are grappled with the question of attribution of gender to persons who believe that they belong to the opposite sex. Few persons undertake surgical and other procedures to alter their bodies and physical appearance to acquire gender characteristics of the sex which conform to their perception of gender, leading to legal and social complications since official record of their gender at birth is found to be at variance with the assumed gender identity. Gender identity refers to each person's deeply felt 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, therefore, refers to an individual's self-identification as a man, woman, transgender or other identified category. 22. Sexual orientation refers to an individual's enduring physical, romantic and/or emotional attraction to another person. Sexual orientation includes transgender and gender-variant people with heavy sexual orientation and their sexual orientation may or may not change during or after gender transmission, which also includes homo-sexuals, bysexuals, heterosexuals, asexual etc. Gender identity and sexual orientation, as already indicated, are different concepts. Each person's self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom and no one shall be forced to undergo medical procedures, including SRS, sterilization or hormonal therapy, as a requirement for legal recognition of their gender identity. ;