Morality and Patentability of Sexual Inventions

Morality is regularly cited as a ground of objection by the Indian Patent Office (IPO) while examining applications involving sexual inventions relating to aids, devices and stimulants. To understand if any of the patent applications managed to overcome the said objections and proceed to grant, we reviewed patent applications in class A61 relating to sexual aids, stimulants, toys and methods. Details of the patent documents reviewed have been provided in another part of this post.

Out of seventeen (17) sexual inventions we identified, morality objection has been raised in all seven (7) patent applications for which examination reports were issued. Three (3) of them have been either refused or abandoned, and one (1) has been granted. We are assuming that the other three (3) are still in the examination process.

The patent granted after morality objection to patentability relates to a device to massage the prostate. The device is constructed to facilitate application of acupressure to two points in the anus, one between anus and scrotum, and another between anus and coccyx. Though the IPO raised an objection based on morality grounds, it finally concluded that the primary purpose of the invention was not immoral, which we presume is because it is meant for giving acupressure and not for sexual activities.

One of the patent applications that was refused relates to an electro-mechanical sexual stimulation device to be worn during intercourse. The device provides for stimulation of the G-spot and the clitoris simultaneously during intercourse and otherwise, and has been refused on morality grounds.

The abandoned applications after morality objections relate to vibration devices and erection aids. The vibration apparatus provides for a vibration device in a conical shape for vibration on specific points to derive sexual pleasure. The erection aid comprises of an elastic ring or condom with a  miniature device for emitting vibrations. It is meant to maintain and/or aid erection and derive sexual pleasure. Morality objection was raised with respect to these applications and others by the IPO primarily because their primary use is sexual stimulation, support or pleasure. In the IPO’s mind, the use and commercial exploitation of such inventions is obscene, against social/cultural norms, and does not meet legal standards.

IPO however does not take the same approach when it comes to inventions relating to molecules, extracts, and compositions that enhance libido, sexual pleasure and/or enhanced sexual activity. We reviewed examination reports of about ten patent applications involving extracts, compositions, and molecules, and did not find any morality objections in them. Some of the patent applications we reviewed have been provided in a later part of this post.

For some reason, the IPO perceives mechanical, electrical, and electronic sexual inventions differently from those in chemistry and pharma. Though the manner in which each of the said inventions achieves their purpose is different, their primary purpose is the same, which is the enhancement of sexual pleasure, satisfaction or stimulation. It may be argued that all sexual inventions, irrespective of the field, have health benefits, and all of them are used and commercially exploited with the same objective. In the said context, one cannot help but wonder why the IPO treats inventions in different fields differently from the morality perspective.

Morality and Patentability

Section 3(b) prohibits from patentability any invention the primary or intended use or commercial exploitation of which could be contrary to public order or morality or which causes serious prejudice to human, animal or plant life or health or to the environment. The provision provides for three circumstances where an invention’s use may be immoral. An invention will not be patentable if:

  1. its primary use is immoral;
  2. its intended use is immoral; or
  3. its commercial exploitation is immoral.

An invention may be refused a  patent grant based on any of the aforestated. In order to be refused the invention that is subject of examination must be “contrary to morality.”  Whether the use, intended use, or exploitation of an invention is contrary to morality is generally determined based on public perception of morality or social standards. Two tests, risk/benefit analysis and public abhorrence test, are examples of tests that are generally used to assess morality of certain types of inventions such as those in biotechnology and pharma. The examination guidelines of the IPO state that any invention, which is against social, cultural, or legal norms is contrary to morality. The guidelines give human cloning as an example, but do not explain why human cloning is immoral. By its very nature, morality is subjective, the standards on which it is based are subjective, and so are the tests adopted for such assessment.

The 377 Judgment and Social Morality

In the 377 Judgment (NAVTEJ SINGH JOHAR & ORS. Vs. UNION OF INDIA (September, 2018)), the  Supreme Court held that an individual’s sexual identity, orientation, intimacy and choices form part of basic human rights of people, and any intrusion into such areas would amount to violation of fundamental rights. The Court stated in absolutely certain terms that an individual’s sexual autonomy and activities cannot be subject to social morality, which is driven by majoritarian views, popular perceptions/opinions and social sentiments. While holding substantial portions of Section 377 of the Indian Penal Code constitutionally invalid, the Court held that state interference in sexual activities of individuals in private spaces would not meet the standards of constitutional morality, which prefers individual rights and autonomy over  popular perception and social norms. In the light of the said judgment, every individual is free to exercise sexual freedom and choice in any manner she/he wishes, and social morality cannot interfere in any manner.

The sexual right of an individual extends to sexual pleasure, stimulation and action using devices, apparatus or any means, and social morality cannot trump such a right. In other words, using, intending to use sexual aids, devices or instruments is an individual’s personal choice and no one can interfere or judge such a usage based on perceptions of social morality. If an individual’s use of such devices cannot be judged by standards of social morality, neither can their patentability be subject to such a determination. Going by the language of Section 3(b), if the primary or intended use of a  sexual invention is not immoral, the invention also cannot be immoral. If the use is not immoral, how can the sale, offering for sale, or any manner of commercial exploitation of the invention be immoral?

The tests adopted under the patent law for judging morality of inventions may be applied to other inventions, but not for sexual inventions. Every individual has the right to use sexual devices in her/his private space in any manner and such usage meets standards of constitutional morality. A different morality standard cannot be applied while assessing patentability, and social/individual perception and bias cannot play a  role in determining patentability of sexual inventions. The objections being raised by the IPO   with respect to such inventions were never tenable, and are no longer tenable after the clear exposition by the Supreme Court in the 377 case. Hopefully, the IPO will take note of this very important judgment and will refrain from falling prey to social and individual perception/bias.

Patent Applications involving Sexual Inventions

The list of patent applications/patents that were reviewed for this post are provided hereunder.

Patent Applications involving sexual aids, stimulants, toys and methods

Patent Applications Awaiting Examination or Currently under Examinatio

Patent Application No. 1 – IN 1339/KOLNP/2014

Title – Sexual aid device with automatic operation

Abstract A sexual aid device, for allowing a user being a first party of sexual relationship with a second party, to simulate the physiologic reaction of the penis of a human male.The proposed sexual aid device includes a hollow penis body made of flexible or semi-rigid material and containing a plurality of telescopic sections for causing the penis body to be in its erected state when the telescopic sections are maximally propagated and for allowing the penis body to be in its descended default state, when the telescopic sections are maximally contracted; a simulated scrotum made of flexible or semi-rigid material, having a compartment for containing a mechanism for powering the propagation and contraction of the telescopic sections; a mechanism for providing a driving force required for powering the propagation and contraction of the telescopic sections; sensors located on the penis body, for detecting physical contact of the penis body with the body of the second party; a controller for controlling the driving force to cause the telescopic sections to maximally propagate, according to input signals received from the sensors and to time and to return to be maximally contracted, after a predetermined time; a power source for powering the controller and for generating the driving force; and a coupling mechanism for attaching the sexual aid device to the body of the first party. (The abstract has been taken from the application as is and has not been corrected for errors)


Earliest Priority Date – 31/12/2011

Patent Application No. 2 – IN 201727001484

Title – Methods and devices relating to molded adult devices

AbstractAdult devices for sexual and therapeutic purposes are typically developed and marketed into a limited number of developed countries with high disposable incomes. However, these represent a fraction of the total potential adult population and accordingly it would be beneficial in all of these markets to offer low cost, ideally very low cost, but effective devices. Solutions meeting this very low cost manufacturing requirement as well as offering new concepts such as limited use or disposable devices are presented exploiting blow molding techniques. Further, many potential markets present issues not prevalent in historical markets that may make it difficult for individuals to acquire devices, even without the financial issues, and hence solutions are presented wherein adult devices can be acquired and/or marketed in manners that address or mitigate these issues. (The abstract has been taken from the application as is and has not been corrected for errors)


Latest Assignee – OBOTICS

Earliest Priority Date – 10/07/2014

Patent Application No. 3. – IN 8975/DELNP/2015

Title – Device for sexual stimulation having a hollow piston

AbstractThe invention relates to a device (1) for sexual stimulation having a hollow piston (3), a drive cylinder (5), and transmission means (7, 9) for converting a rotational movement of the drive cylinder into an axial movement of the hollow piston, wherein the drive cylinder (5) encloses the hollow piston (3) at least partially. (The abstract has been taken from the application as is and has not been corrected for errors)



Earliest Priority Date – 07/03/2013

Patent Application No. 4 – IN 628/MUMNP/2015

Title – Fluidic methods and devices

AbstractA device for use by an individual for sexual pleasure varying in form, i.e. shape, during its use and allowing for the user to select multiple variations of form either discretely or in combination and for these dynamic variations to be controllable simultaneously and interchangeably while being transparent to the normal use of the device, including the ability to insert, withdraw, rotate, and actuate the variable features manually or remotely. According to embodiments of the invention localized and global variations of devices are implemented using fluidics and electromagnetic pumps/valves wherein a fluid is employed such that controlling the pressure of the fluid results in the movement of an element within the device or the expansion/contraction of an element within the device. (The abstract has been taken from the application as is and has not been corrected for errors)


Latest Assignee – OBOTICS

Earliest Priority Date – 26/9/2012

Patent Application No. 5 – IN 2321/DELNP/2012

Title – Vaginal remodeling device and methods

AbstractThis invention relates generally to apparatus and methods for tightening tissue of the female genitalia by heating targeted connective tissue with radiant energy, while cooling the mucosal epithelial surface over the target issue to protect it from the heat. Embodiments include a handle and treatment tip that has both an energy delivery element and a cooling mechanism. The handle may be a two-handed handle allowing control even while rotating and maneuvering the treatment around the genital opening. The apparatus or system may also include an integrated controller, which may confirm tissue contact without applying RF energy, based only on the temperature of the applicator and the time since the last application of energy from the applicator. (The abstract has been taken from the application as is and has not been corrected for errors)


Latest Assignee – VIVEVE

Earliest Priority Date – 18/9/2009

Patent Application No. 6 – IN 11126/DELNP/2012

Title – Penis Enlargement Exercising System

AbstractA penis enlargement exercising system is disclosed and includes a penis enlargement exerciser, a penis protecting cover, a heating device, and a pubic hair separating plate. The penis enlargement exerciser has a rigid frame and at least one slider, the slider can slide on the frame back and forth; the frame and the slider commonly form a closed circle around a penis of a user. In operation, the penis is put into the closed circle, the slider is forced to move toward the penis to push the slider toward the penis, and then the closed circle is narrowed, so as to cause the penis to be held tightly. Thus, the penis can be enlarged in the circumference and the length thereof, and the penis can be kept healthy by massaging the penis through using the penis enlargement exercising system for a male. (The abstract has been taken from the application as is and has not been corrected for errors)

Inventor – LI HUI

Earliest Priority Date – 18/6/2010

Patent Application No. 7 – IN 2703/MUMNP/2012

Title – Secreting condom

Abstract A male contraceptive device includes a condom-like sheath that is placed over the male genital member and has a dry flavor-infusing agent disposed within the distal end.The distal end is operable to release, eject, or secrete the flavor-altered semen during male ejaculation.The condom-like sheath is shaped to elastically conform to the elongated shape of a male genital member.The sheath has an open proximal end for receiving the male genital member and the distal end has a distal tip that is selectively closed.The distal tip defines a reservoir containing the flavor-infusing agent such that the flavor profile or characteristic of the seminal fluid entering the reservoir is altered.The distal end is operable to permit the release of the altered seminal fluid from the reservoir. (The abstract has been taken from the application as is and has not been corrected for errors)

Inventor – LEVY LINDA

Latest Assignee – PROCTER & GAMBLE

Earliest Priority Date – 29/9/2010

Patent Application No. 8 – IN 4705/DELNP/2009

Title – Sexual aid device and method

Abstract A sexual aid device and method for inserting and occupying space within a human female’s vagina to provide a sensation of increased fullness to the female and a sensation of increased tightness and friction to a penis of a human male during sexual intercourse, thereby enhancing sexual arousal of both the female and the male. The sexual aid can be a member having a bulbous end for insertion and a tapered end for externally grasping and manipulating the member. The tapered end may include a hooked protrusion for providing anal stimulation to the female. The member may contain one or more vibrating devices. The member may further include a generally planar surface featuring a trough and can include two arced terminuses oriented in opposing directions. An internal pellet-rotating device may be installed within the tapered end of the member to produce mechanical friction in and around the vagina. (The abstract has been taken from the application as is and has not been corrected for errors)


Latest Assignee – BLUE DREAMS

Earliest Priority Date – 20/12/2006

Patent Application No. 9 – IN 201637021223

Title – Device and method for inserting lubricating capsule

Abstract An applicator for insertion and lubrication of a body lumen is disclosed having an elongate, hollow, cylindrical outer sheath including a receiving cup at a distal end for receiving a lubrication capsule; and a plunger slidingly received within the elongate, hollow cylindrical outer sheath, the plunger including a piercing element at a distal end adapted to extend into the receiving cup. A liquid-filled soft gel capsule is placed in the receiving cup, and the piercing element is used to puncture the capsule located in the receiving cup prior to insertion of the applicator into the body lumen, and wherein the plunger can be depressed once the applicator is inserted into the body lumen to eject the pierced capsule into the body lumen. (The abstract has been taken from the application as is and has not been corrected for errors)


Earliest Priority Date – 16/12/2013

Patent Application No. 10 – IN 201717014526

Title – Intra vaginal device to aid in training and determining muscle strength

AbstractA device (10) to be inserted in a woman’s vagina to aid in measuring muscles operatively associated with the woman’s vagina. The device (10) includes a motion detector (24) that is a gyroscope and that detects angular movement about at least one axis, and preferably detects angular movement about three mutually perpendicular axes. Preferably the motion detector (24) is a combination of a gyroscope and accelerometer. (The abstract has been taken from the application as is and has not been corrected for errors)


Latest Assignee – ANALYTICA

Status – Application Published

Earliest Priority Date – 29/1/2015

Patent Application No. 11 – IN 103/KOLNP/2011

Title – Massage device

AbstractThe invention relates to a massage device having a device housing, an electromechanical arrangement arranged in the device housing for generating mechanical vibrations, an electronic controller for controlling the electromechanical arrangement, and a power source, connected to the electromechanical arrangement and the electronic controller. the electromechanical arrangement includes at least one coil element and at least one ferromagnetic core arranged parallel or coaxial with the coil element and a cylindrical member, wherein the at least one coil element surrounds the cylindrical member such that the at least one ferromagnetic core is coaxially guided through the cylindrical member, wherein the core has a mass m1, the mass ratio m1:m2 where m2 represents a total mass m2 of the massage device, and the mass ratio is in the range from 1:100 to 1:3.In operation, the massage device as a whole vibrates in a direction substantially parallel to a cylinder axis of the cylindrical member. (The abstract has been taken from the application as is and has not been corrected for errors)


Status – FER Issued

Earliest Priority Date – 16/6/2008

Patent Application No. 12 – IN 6005/DELNP/2012

Title – Entertainment System and Device

Abstract – A console comprising attachments including sex toys and a network interface. A system for communication between consoles and a central server to allow users to participate in a variety of types of remote sex. (The abstract has been taken from the application as is and has not been corrected for errors)


Status – FER Issued

Earliest Priority Date – 23/12/2009

Patent Application No. 13 – IN 6545/DELNP/2008

Title – Bidet having vibrator

AbstractA beauty-care bidet includes an introduction hose for introducing washing water, a water purifier connected to the introduction hose for purifying the washing water introduced through the introduction hose, a head separably coupled to the water purifier and having an open tip end portion communicating with the water purifier, a control valve for cutting off the washing water supplied to the open tip end portion of the head or for regulating a pressure of the washing water, a tip end operating unit detachably attached to the open tip end portion of the head, and a vibrator mounted to the head in such a way that the vibrator can be operatively connected to the tip end operating unit. The tip end operating unit is a bidet-washing insertion device that can be inserted into an intestine or a vagina of a user. (The abstract has been taken from the application as is and has not been corrected for errors)

Inventor – OH YOUNG-KUK

Status – Examination Report Issued. Patent is at amendment stage

Earliest Priority Date – 28/12/2005

Patent Applications which have been refused or abandoned

Patent Application No. 14 – IN 4668/DELNP/2007


AbstractA device for use by a female for sexual stimulation comprising an inner arm dimensioned for insertion into a vagina, to contact the wall of the vagina at or near the G-spot, an outer arm dimensioned to contact the clitoris, and a resilient U-shaped member connecting the inner and outer arms. (The abstract has been taken from the application as is and has not been corrected for errors)



Status – Refused on morality grounds.

Earliest Priority Date – 17/12/2004

Patent Application No. 15 – IN 3639/CHENP/2007

Title – Vibratory Stimulation Apparatus

Abstract Vibratory stimulation apparatus is described for use in providing pleasurable and/or therapeutic stimulation, particularly of the genital area. In contrast to the phallus or dildo-shaped vibrators well-known in the art, the apparatus of the present invention is of a substantial conical shape, with the vibration generator internally near the tip of the cone. Typically, the cone may be 180 mm wide at its base and 115 mm in height. The amplitude and frequency of the vibration applied may be variable. (The abstract has been taken from the application as is and has not been corrected for errors)


Latest Assignee – TWISTED PRODUCTS

Status – Application abandoned. Objection under Section 3 (b) was raised in FER

Earliest Priority Date – 21/1/2005

Patent Application No. 16 – IN/PCT/2002/00837/DEL

Title – Erection aid

Abstract An erection aid comprises an elastic device adapted to be placed around at least a part of a penis, which device is in the form of a condom (1) or a tightening ring (10). The device is equipped with a piezoelectric unit (3), for example a piezoelectric foil, for emission of stimulating vibrations. The device is self-supplied with a battery (7) and an electronic miniature circuit (4) for activation of the piezo-unit (3). (The abstract has been taken from the application as is and has not been corrected for errors)


Latest Assignee – Meditron AS

Status – Application abandoned. FER not found

Earliest Priority Date – 14/03/2000

Applications granted

Patent Application No. 17 – IN470/CHE/2009

Title – Prostate massage apparatus

Abstract – An apparatus for massaging a prostate includes a body having a substantially ellipsoid shape and sized to fit in a rectum through a sphincter, wherein the body comprises a head portion and a neck portion, wherein the head portion is configured to contact the prostate through the rectum wall when inserted in the rectum, and wherein the neck portion has a tapered section with gradually reducing diameters distal to the head portion; and a retainer bar joined the body at one end of the neck portion to form a substantially T-shaped structure, wherein the retainer bar comprises two contact points for contacting a first acupressure point, which is located in the perineum region between the anus and the scrotum, and a second acupressure point, which is located about midway between the anus and the lower end of the coccyx. (The abstract has been taken from the application as is and has not been corrected for errors)


Status – Patent granted. Ground of morality was raised by the examiner which was refused in the final order as the primary purpose of the invention was found moral.

Earliest Priority Date – 3/3/2008

Patent Applications involving compositions or formulations for enhanced sexual activity

  1. Application Number: 2299/CHE/2010




Abstract: “1. A pharmaceutically active compound/chemical isolate extracted from plant Vanda tessellata by a process comprising of (a) finely chopping the plant parts, drying the same either electronically or manually, at an optimum temperature range of 28°C to 40°C; powdering the dried plant material manually or mechanically till a homogenous powder is obtained; (b) extracting the pharmaceutically active composition from said powder with ethyl alcohol; (c) filtering the powder and ethyl alcohol mixture and recovering the filtrate; evaporating the filtrate (alcohol extract) at low temperature 35°C to 40°C; (d) recovering the dried alcohol extract; (e) suspending the dried alcohol extract In water and sequentially extracted with Hexane, choloroform, ethyl acetate and butanol; (f) further separating the chloroform fraction by chromatography into various components resulting in one active component with aphrodisiac properties; (g) testing for aphrodisiac properties by observing mounting behaviour in mice or measuring the Nitric oxide levels in the blood after dosing the mice.” (The abstract has been taken from the application as is and has not been corrected for errors)

Status: Application Abandoned u/s 21(1)

Considered not patentable under sections: 3(c), 3(e) and 3(p)

  1. Application Number: 550/DEL/2011




Abstract: “The present invention relates to an aphrodisiac herbal composition for male individual for natural treatments for the individuals suffering from lack of sexual desire, an arousal disorders, spermatorohea and premature ejaculation and further to increase the sperm count vigor and vitality. The aphrodisiac herbal composition comprises extracts or particulate material from the plants Withania Somnifera, Asparagus Racemosus, Asparagus Adscendens , Cyperus Rotundus, Mucuna Pruriens, Myristica Fragrans, Ipomoeda Digitata, Zingiber Officinale, Tribulus Terrestris and Sida Cordifolia. The aphrodisiac herbal composition is a comprehensive herbal sex power, physical and mental health booster that helps revival of vigor, vitality and physical strength.” (The abstract has been taken from the application as is and has not been corrected for errors)

Status: Application Abandoned u/s 21(1)

Considered not patentable under sections: 3(e) and 3(p)

  1. Application Number: 549/DEL/2011




Abstract: “The present invention relates to a female aphrodisiac herbal composition for natural treatments for the individuals suffering from lack of sexual desire and an arousal disorders. The female aphrodisiac herbal composition of the present invention increased blood circulation to the clitoris, increases stamina, increases sex drive with prolonged performance and further enhancing the female fertility. The aphrodisiac herbal composition comprises extracts or particulate material from the plants Withania Somnifera, Asparagus Racemosus, Mucuna Pruriens, Glycyrrhizia Glabra, Trigonella Foenum, Zingiber Officinale, Tribulus Terrestris, Asphalt and Curculigo Orchodes. The aphrodisiac herbal composition is a comprehensive herbal sex power, physical and mental health booster that helps revival of vigor, vitality and physical strength.” (The abstract has been taken from the application as is and has not been corrected for errors)

Status: Application Abandoned u/s 21(1)

Considered not patentable under sections: 3(e) and 3(p)

  1. Application Number: 1238/DEL/2011




Abstract: “The present invention relates to an aphrodisiac food supplement composition for male individual for natural treatments for the individual suffering from lack of sexual desire, an arousal disorders, Spermatorrhoea and premature ejaculation and further to increase the sperm count vigor and vitality. the aphrodisiac food supplement composition comprises extracts of particular material from the plants GINZENG.ASHVAGANDHA (WITHANIASOMNIFERA),ATMAGUPTA-(MUCUNA PRURIENS,GOKSHURA(TRIBULUS TERRESTRIS),SAFED MUSLI (ASPARAGUS ADSCENDENS), BALA(SIDACORDIFOLIA),CAFFEINE, NIACIN, L-TYROSINE, YOHIMBINE BARK EXTRACT,GABA,CITTRULLINE,CASEIN ISOLATE.MILK SOLIDS” (The abstract has been taken from the application as is and has not been corrected for errors)

Status: Application Abandoned u/s 21(1)

Considered not patentable under sections: 3(e) and 3(p)

Constitutional Morality v. Social Morality

Relevant excerpts from the 377 Judgment are provided hereunder from different opinions of judges.

“Majority opinion – Dipak Misra, CJI (for himself and A.M. Khanwilkar, J.)

  1. The authority in NALSA is one such recent illustration where the rights of transgenders as a third sex was recognized which had been long due in a democracy like ours. This Court ruled: –

“It is now very well recognized that the Constitution is a living character; its interpretation must be dynamic. It must be understood in a way that intricate and advances modern realty. The judiciary is the guardian of the Constitution and by ensuring to grant legitimate right that is due to TGs, we are simply protecting the Constitution and the democracy inasmuch as judicial protection and democracy in general and of human rights in particular is a characteristic of our vibrant democracy.

As we have pointed out above, our Constitution inheres liberal and substantive democracy with rule of law as an important and fundamental pillar. It has its own internal morality based on dignity and equality of all human beings. Rule of law demands protection of individual human rights. Such rights are to be guaranteed to each and every human being. These TGs, even though insignificant in numbers, are still human beings and therefore they have every right to enjoy their human rights.”

  1. The question of freedom of choosing a partner is reflective from a catena of recent judgments of this Court such as Shafin Jahan (supra) wherein the Court held that a person who has come of age and has the capability to think on his/her own has a right to choose his/her life partner. It is apposite to reproduce some of the observations made by the Court which are to the following effect:-

It is obligatory to state here that expression of choice in accord with law is acceptance of individual identity. Curtailment of that expression and the ultimate action emanating therefrom on the conceptual structuralism of obeisance to the societal will destroy the individualistic entity of a person. The social values and morals have their space but they are not above the constitutionally guaranteed freedom. The said freedom is both a constitutional and a human right. Deprivation of that freedom which is ingrained in choice on the plea of faith is impermissible. ?

Constitutional morality and Section 377 IPC

The concept of constitutional morality is not limited to the mere observance of the core principles of constitutionalism as the magnitude and sweep of constitutional morality is not confined to the provisions and literal text which a Constitution contains, rather it embraces within itself virtues of a wide magnitude such as that of ushering a pluralistic and inclusive society, while at the same time adhering to the other principles of constitutionalism. It is further the result of embodying constitutional morality that the values of constitutionalism trickle down and percolate through the apparatus of the State for the betterment of each and every individual citizen of the State.

In one of the Constituent Assembly Debates, Dr. Ambedkar, explaining the concept of constitutional morality by quoting the Greek historian, George Grote, said:-

“By constitutional morality, Grote meant… a paramount reverence for the forms of the constitution, enforcing obedience to authority and acting under and within these forms, yet combined with the habit of open speech, of action subject only to definite legal control, and unrestrained censure of those very authorities as to all their public acts combined, too with a perfect confidence in the bosom of every citizen amidst the bitterness of party contest that the forms of constitution wall not be less sacred in the eyes of his opponents than his own.”49 (Constituent Assembly Debates, Vol. 7 (4th November 1948))

  1. Our Constitution was visualized with the aim of securing to the citizens of our country inalienable rights which were essential for fostering a spirit of growth and development and at the same time ensuring that the three organs of the State working under the aegis of the Constitution and deriving their authority from the supreme document, that is, the Constitution, practise constitutional morality. The Executive, the Legislature and the Judiciary all have to stay alive to the concept of constitutional morality.
  2. In the same speech, Dr. Ambedkar had quoted George Grote who had observed:-

“The diffusion of ‘constitutional morality’, not merely among the majority of any community, but throughout the whole is the indispensable condition of a government at once free and peaceable; since even any powerful and obstinate minority may render the working of a free institution impracticable, without being strong enough to conquer ascendance for themselves.”51 (Grote, A History of Greece. Routledge, London, 2000, p. 93.) This statement of Dr. Ambedkar underscores that constitutional morality is not a natural forte for our country for the simple reason that our country had attained freedom after a long period of colonial rule and, therefore, constitutional morality at the time when the Constituent Assembly was set up was an alien notion. However, the strengthening of constitutional morality in contemporary India remains a duty of the organs of the State including the Judiciary.

  1. The society as a whole or even a minuscule part of the society may aspire and prefer different things for themselves. They are perfectly competent to have such a freedom to be different, like different things, so on and so forth, provided that their different tastes and liking remain within their legal framework and neither violates any statute nor results in the abridgement of fundamental rights of any other citizen. The Preambular goals of our Constitution which contain the noble objectives of Justice, Liberty, Equality and Fraternity can only be achieved through the commitment and loyalty of the organs of the State to the principle of constitutional morality.
  2. It is the concept of constitutional morality which strives and urges the organs of the State to maintain such a heterogeneous fibre in the society, not just in the limited sense, but also in multifarious ways. It is the responsibility of all the three organs of the State to curb any propensity or proclivity of popular sentiment or majoritarianism. Any attempt to push and shove a homogeneous, uniform, consistent and a standardised philosophy throughout the society would violate the principle of constitutional morality. Devotion and fidelity to constitutional morality must not be equated with the popular sentiment prevalent at a particular point of time.
  3. Any asymmetrical attitude in the society, so long as it is within the legal and constitutional framework, must at least be provided an environment in which it could be sustained, if not fostered. It is only when such an approach is adopted that the freedom of expression including that of choice would be allowed to prosper and flourish and if that is achieved, freedom and liberty, which is the quintessence of constitutional morality, will be allowed to survive.
  4. In Government of NCT of Delhi v. Union of India and others,52 (2018 (8) SCALE 72) one of us (Dipak Misra, CJI) observed:- “Constitutional morality, appositely understood, means the morality that has inherent elements in the constitutional norms and the conscience of the Constitution. Any act to garner justification must possess the potentiality to be in harmony with the constitutional impulse. We may give an example. When one is expressing an idea of generosity, he may not be meeting the standard of justness. There may be an element of condescension. But when one shows justness in action, there is no feeling of any grant or generosity. That will come within the normative value. That is the test of constitutional justness which falls within the sweep of constitutional morality. It advocates the principle of constitutional justness without subjective exposition of generosity.”
  5. The duty of the constitutional courts is to adjudge the validity of law on well-established principles, namely, legislative competence or violations of fundamental rights or of any other constitutional provisions. At the same time, it is expected from the courts as the final arbiter of the Constitution to uphold the cherished principles of the Constitution and not to be remotely guided by majoritarian view or popular perception. The Court has to be guided by the conception of constitutional morality and not by the societal morality.
  6. We may hasten to add here that in the context of the issue at hand, when a penal provision is challenged as being violative of the fundamental rights of a section of the society, notwithstanding the fact whether the said section of the society is a minority or a majority, the magna cum laude and creditable principle of constitutional morality, in a constitutional democracy like ours where the rule of law prevails, must not be allowed to be trampled by obscure notions of social morality which have no legal tenability. The concept of constitutional morality would serve as an aid for the Court to arrive at a just decision which would be in consonance with the constitutional rights of the citizens, howsoever small that fragment of the populace may be. The idea of number, in this context, is meaningless; like zero on the left side of any number.
  7. In this regard, we have to telescopically analyse social morality vis-à-vis constitutional morality. It needs no special emphasis to state that whenever the constitutional courts come across a situation of transgression or dereliction in the sphere of fundamental rights, which are also the basic human rights of a section, howsoever small part of the society, then it is for the constitutional courts to ensure, with the aid of judicial engagement and creativity, that constitutional morality prevails over social morality.
  8. In the garb of social morality, the members of the LGBT community must not be outlawed or given a step-motherly treatment of malefactor by the society. If this happens or if such a treatment to the LGBT community is allowed to persist, then the constitutional courts, which are under the obligation to protect the fundamental rights, would be failing in the discharge of their duty. A failure to do so would reduce the citizenry rights to a cipher.
  9. We must not forget that the founding fathers adopted an inclusive Constitution with provisions that not only allowed the State, but also, at times, directed the State, to undertake affirmative action to eradicate the systematic discrimination against the backward sections of the society and the expulsion and censure of the vulnerable communities by the so-called upper caste/sections of the society that existed on a massive scale prior to coming into existence of the Constituent Assembly. These were nothing but facets of the majoritarian social morality which were sought to be rectified by bringing into force the Constitution of India. Constitution, was, in a way, an instrument or agency for achieving constitutional morality and means to discourage the prevalent social morality at that time. A country or a society which embraces constitutional morality has at its core the well-founded idea of inclusiveness. 124. While testing the constitutional validity of impugned provision of law, if a constitutional court is of the view that the impugned provision falls foul to the precept of constitutional morality, then the said provision has to be declared as unconstitutional for the pure and simple reason that the constitutional courts exist to uphold the Constitution.
  10. While testing the constitutional validity of Section 377 IPC, due regard must be given to the elevated right to privacy as has been recently proclaimed in Puttaswamy (supra). We shall not delve in detail upon the concept of the right to privacy as the same has been delineated at length in Puttaswamy (supra). In the case at hand, our focus is limited to dealing with the right to privacy vis-à-vis Section 377 IPC and other facets such as right to choice as part of the freedom of expression and sexual orientation. That apart, within the compartment of privacy, individual autonomy has a significant space. Autonomy is individualistic. It is expressive of self-determination and such self-determination includes sexual orientation and declaration of sexual identity. Such an orientation or choice that reflects an individual‘s autonomy is innate to him/her. It is an inalienable part of his/her identity. The said identity under the constitutional scheme does not accept any interference as long as its expression is not against decency or morality. And the morality that is conceived of under the Constitution is constitutional morality. Under the autonomy principle, the individual has sovereignty over his/her body. He/she can surrender his/her autonomy wilfully to another individual and their intimacy in privacy is a matter of their choice. Such concept of identity is not only sacred but is also in recognition of the quintessential facet of humanity in a person‘s nature. The autonomy establishes identity and the said identity, in the ultimate eventuate, becomes a part of dignity in an individual. This dignity is special to the man/woman who has a right to enjoy his/her life as per the constitutional norms and should not be allowed to wither and perish like a mushroom. It is a directional shift from conceptual macrocosm to cognizable microcosm. When such culture grows, there is an affirmative move towards a more inclusive and egalitarian society. Non-acceptance of the same would tantamount to denial of human rights to people and one cannot be oblivious of the saying of Nelson Mandela ? ?to deny people their human rights is to challenge their very humanity.?
  11. The constitutional courts have to recognize that the constitutional rights would become a dead letter without their dynamic, vibrant and pragmatic interpretation. Therefore, it is necessary for the constitutional courts to inculcate in their judicial interpretation and decision making a sense of engagement and a sense of constitutional morality so that they, with the aid of judicial creativity, are able to fulfill their foremost constitutional obligation, that is, to protect the rights bestowed upon the citizens of our country by the Constitution.
  12. The aforesaid two doctrines lead us to the irresistible conclusion that if we were to accept the law enunciated in Suresh Koushal’s case, it would definitely tantamount to a retrograde step in the direction of the progressive interpretation of the Constitution and denial of progressive realization of rights. It is because Suresh Koushal’s view gets wrongly embedded with the minuscule facet and assumes criminality on the bedrock being guided by a sense of social morality. It discusses about health which is no more a phobia and is further moved by the popular morality while totally ignoring the concepts of privacy, individual choice and the orientation. Orientation, in certain senses, does get the neuro-impulse to express while seeing the other gender. That apart, swayed by data, Suresh Koushal fails to appreciate that the sustenance of fundamental rights does not require majoritarian sanction. Thus, the ruling becomes sensitively susceptible.
  13. In S. Khushboo (supra), this Court, while observing that =morality and decency‘ on the basis of which reasonable restrictions can be imposed on the rights guaranteed under Article 19 should not be amplified beyond a rational and logical limit, ruled that even though the constitutional freedom of speech and expression is not absolute and can be subjected to reasonable restrictions on grounds such as `decency and morality’ among others, yet it is necessary to tolerate unpopular views in the socio-cultural space.

In the obtaining situation, we need to check whether public order, decency and morality as grounds to limit the fundamental right of expression including choice can be accepted as reasonable restrictions to uphold the validity of Section 377 IPC. We are of the conscious view that Section 377 IPC takes within its fold private acts of adults including the LGBT community which are not only consensual but are also innocent, as such acts neither cause disturbance to the public order nor are they injurious to public decency or morality. The law is et domus sua cuique est tutissimum refugium – A man‘s house is his castle. Sir Edward Coke said:- ?The house of everyone is to him as his castle and fortress, as well for his defence against injury and violence as for his repose.?

  1. (v) Constitutional morality embraces within its sphere several virtues, foremost of them being the espousal of a pluralistic and inclusive society. The concept of constitutional morality urges the organs of the State, including the Judiciary, to preserve the heterogeneous nature of the society and to curb any attempt by the majority to usurp the rights and freedoms of a smaller or minuscule section of the populace. Constitutional morality cannot be martyred at the altar of social morality and it is only constitutional morality that can be allowed to permeate into the Rule of Law. The veil of social morality cannot be used to violate fundamental rights of even a single individual, for the foundation of constitutional morality rests upon the recognition of diversity that pervades the society.
  2. (xvi) An examination of Section 377 IPC on the anvil of Article 19(1)(a) reveals that it amounts to an unreasonable restriction, for public decency and morality cannot be amplified beyond a rational or logical limit and cannot be accepted as reasonable grounds for curbing the fundamental rights of freedom of expression and choice of the LGBT community. 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.

Justice Rohington Nariman’s  Opinion

  1. What is remarkable for the time in which he lived is the fact that Lord Macaulay would punish touching another person for the purpose of gratifying “unnatural lust” without their “free and intelligent consent” with a term of imprisonment extendable to life (but not less than seven years) while the penalty for the same offence, when consensual, would be imprisonment for a maximum term of fourteen years (but not less than two years). Even in this most prudish of all periods of English history, Lord Macaulay recognized a lesser sentence for the crime of “unnatural lust”, if performed with consent. Living in the era in which he lived, he clearly eschewed public discussion on this subject, stating:-

“Clause 361 and 362 relate to an odious class of offences respecting which it is desirable that as little as possible should be said. We leave, without comment, to the judgment of his Lordship in Council the two clauses which we have provided for these offences. We are unwilling to insert, either in the text or in the notes, anything which could give rise to public discussion on this revolting subject; as we are decidedly of the opinion that the injury which would be done to the morals of the community by such discussion would far more than compensate for any benefits which might be derived from legislative measures framed with the greatest precision.”

  1. It (Wolfenden Committee Report) then went on to note in paragraph 36 that the evidence before them showed that homosexuality existed in all levels of society and was prevalent in all trades and professions. In paragraph 53, the main arguments for retention of the existing law were set out. Insofar as societal health was concerned, the Committee rejected this for lack of evidence. It went on to state:-

“As regards the first of these arguments, it is held that conduct of this kind is a cause of the demoralization and decay of civilisations, and that therefore, unless we wish to see our nation degenerate and decay, such conduct must be stopped, by every possible means. We have found no evidence to support this view, and we cannot feel it right to frame the laws which should govern this country in the present age by reference to hypothetical explanations of the history of other peoples in ages distant in time and different in circumstances from our own. In so far as the basis of this argument can be precisely formulated, it is often no more than the expression of revulsion against what is regarded as unnatural, sinful or disgusting. Many people feel this revulsion, for one or more of these reasons. But moral conviction or instinctive feeling, however strong, is not a valid basis for overriding the individual’s privacy and for bringing within the ambit of the criminal law private sexual behaviour of this kind. It is held also that if such men are employed in certain professions or certain branches of the public service their private habits may render them liable to threats of blackmail or to other pressures which may make them “bad security risks.” If this is true, it is true also of some other categories of persons: for example, drunkards, gamblers and those who become involved in compromising situations of a heterosexual kind; and while it may be a valid ground for excluding from certain forms of employment men who indulge in homosexual behaviour, it does not, in our view, constitute a sufficient reason for making their private sexual behaviour an offence in itself.”

  1. Justice Blackmun’s dissent then went on to consider the famous judgment in Wisconsin v. Yoder, 32 L. Ed. 2d 15 (1972), in which the Court had upheld the fundamental right of the Amish community not to send their children to schools, stating that a way of life that is odd or even erratic but interferes with no rights or interests of others is not to be condemned because it is different. Referring to Judeo-Christian values, the Court said that the fact that certain religious groups condemn the behavior of sodomy gives the State no licence to impose their moral judgment on the entire citizenry of the United States. Ending with a John Stuart Mill type of analysis, the dissent stated:-

“44. This case involves no real interference with the rights of others, for the mere knowledge that other individuals do not adhere to one’s value system cannot be a legally cognizable interest, cf. Diamond v. Charles, 476 U.S. 54, 65-66, 106 S. Ct. 1697, 1705, 90 L.Ed.2d 48 (1986), let alone an interest that can justify invading the houses, hearts, and minds of citizens who choose to live their lives differently.”

  1. The Latin maxim cessant ratione legis, cessat ipsa lex, meaning when the reason for a law ceases, the law itself ceases, is a rule of law which has been recognized by this Court in H.H. Shri Swamiji of Shri Amar Mutt v. Commissioner, Hindu Religious and Charitable Endowments Dept, 1979 4 SCC 642 at paragraph 29, and State of Punjab v. Devans Modern Breweries Ltd., (2004) 11 SCC 26 at paragraph 335. It must not be forgotten that Section 377 was the product of the Victorian era, with its attendant puritanical moral values. Victorian morality must give way to constitutional morality as has been recognized in many of our judgments. Constitutional morality is the soul of the Constitution, which is to be found in the Preamble of the Constitution, which declares its ideals and aspirations, and is also to be found in Part III of the Constitution, particularly with respect to those provisions which assure the dignity of the individual. The rationale for Section 377, namely Victorian morality, has long gone and there is no reason to continue with – as Justice Holmes said in the lines quoted above in this judgment – a law merely for the sake of continuing with the law when the rationale of such law has long since disappeared.
  2. Another argument raised on behalf of the intervenors is that change in society, if any, can be reflected by amending laws by the elected representatives of the people. Thus, it would be open to the Parliament to carve out an exception from Section 377, but this Court should not indulge in taking upon itself the guardianship of changing societal mores. Such an argument must be emphatically rejected. The very purpose of the fundamental rights chapter in the Constitution of India is to withdraw the subject of liberty and dignity of the individual and place such subject beyond the reach of majoritarian governments so that constitutional morality can be applied by this Court to give effect to the rights, among others, of ‘discrete and insular’ minorities.6 One such minority has knocked on the doors of this Court as this Court is the custodian of the fundamental rights of citizens. These fundamental rights do not depend upon the outcome of elections. And, it is not left to majoritarian governments to prescribe what shall be orthodox in matters concerning social morality. The fundamental rights chapter is like the north star in the universe of constitutionalism in India. Constitutional morality always trumps any imposition of a particular view of social morality by shifting and different majoritarian regimes.

Justice Chandrachud’s Opinion

  1. We are aware of the perils of allowing morality to dictate the terms of criminal law. If a single, homogenous morality is carved out for a society, it will undoubtedly have the effect of hegemonizing or ‘othering’ the morality of minorities. The LGBTQ community has been a victim of the pre-dominant (Victorian) morality which prevailed at the time when the Indian Penal Code was drafted and enacted. Therefore, we are inclined to observe that it is constitutional morality, and not mainstream views about sexual morality, which should be the driving factor in determining the validity of Section 377.
  2. The values of a democracy require years of practice, effort, and experience to make the society work with those values. Similar is the position of non-discrimination, equality, fraternity and secularism. While the Constitution guarantees equality before the law and equal protection of the law, it was felt that the realization of the constitutional vision requires the existence of a commitment to that vision. Dr Ambedkar described this commitment to be the presence of constitutional morality among the members of the society. The conception of constitutional morality is different from that of public or societal morality. Under a regime of public morality, the conduct of society is determined by popular perceptions existent in society. The continuance of certain symbols, labels, names or body shapes determine the notions, sentiments and mental attitudes of the people towards individuals and things.372 Constitutional morality determines the mental attitude towards individuals and issues by the text and spirit of the Constitution. It requires that the rights of an individual ought not to be prejudiced by popular notions of society. It assumes that citizens would respect the vision of the framers of the Constitution and would conduct themselves in a way which furthers that vision. Constitutional morality reflects that the ideal of justice is an overriding factor in the struggle for existence over any other notion of social acceptance. It builds and protects the foundations of a democracy, without which any nation will crack under its fissures. For this reason, constitutional morality has to be imbibed by the citizens consistently and continuously. Society must always bear in mind what Dr Ambedkar observed before the Constituent Assembly: “Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people have yet to learn it.”

142 In the decision in Government of NCT of Delhi v. Union of India373, the Constitution Bench of this Court dealt with the constitutive elements of constitutional morality which govern the working of a democratic system and representative form of government. Constitutional morality was described as founded on a “constitutional culture”, which requires the “existence of sentiments and dedication for realizing a social transformation which the Indian Constitution seeks to attain.” This Court held thus:

“If the moral values of our . Constitution were not upheld at every stage, the text of the Constitution may not be enough to protect its democratic values.”

This Court held that constitutional morality acts a check against the “tyranny of the majority” and as a “threshold against an upsurge in mob rule.” It was held to be a balance against popular public morality.

143 Constitutional morality requires in a democracy the assurance of certain minimum rights, which are essential for free existence to every member of society. The Preamble to the Constitution recognises these rights as “Liberty of thought, expression, belief, faith and worship” and “Equality of status and of opportunity.” Constitutional morality is the guarantee which seeks that all inequality is eliminated from the social structure and each individual is assured of the means for the enforcement of the rights guaranteed. Constitutional morality leans towards making Indian democracy vibrant by infusing a spirit of brotherhood amongst a heterogeneous population, belonging to different classes, races, religions, cultures, castes and sections. Constitutional morality cannot, however, be nurtured unless, as recognised by the Preamble, there exists fraternity, which assures and maintains the dignity of each individual. In his famous, yet undelivered speech titled “Annihilation of Caste” (which has been later published as a book), Dr Ambedkar described ‘fraternity’ as “primarily a mode of associated living, of conjoint communicated experience” and “essentially an attitude of respect and reverence towards fellow men.” He remarked:

“An ideal society should be mobile, should be full of channels for conveying a change taking place in one part to other parts. In an ideal society there should be many interests consciously communicated and shared. There should be varied and free points of contact with other modes of association. In other words there must be social endosmosis. This is fraternity, which is only another name for democracy.”

144 Constitutional morality requires that all the citizens need to have a closer look at, understand and imbibe the broad values of the Constitution, which are based on liberty, equality and fraternity. Constitutional morality is thus the guiding spirit to achieve the transformation which, above all, the Constitution seeks to achieve. This acknowledgement carries a necessary implication: the process through which a society matures and imbibes constitutional morality is gradual, perhaps interminably so. Hence, constitutional courts are entrusted with the duty to act as external facilitators and to be a vigilant safeguard against excesses of state power and democratic concentration of power. This Court, being the highest constitutional court, has the responsibility to monitor the preservation of constitutional morality as an incident of fostering conditions for human dignity and liberty to flourish. Popular public morality cannot affect the decisions of this Court. Lord Neuberger (of the UK Supreme Court) has aptly observed: “[W]e must always remember that Parliament has democratic legitimacy – but that has disadvantages as well as advantages. The need to offer oneself for re-election sometimes makes it hard to make unpopular, but correct, decisions. At times it can be an advantage to have an independent body of people who do not have to worry about short term popularity.”

The flourishing of a constitutional order requires not only the institutional leadership of constitutional courts, but also the responsive participation of the citizenry.377 Constitutional morality is a pursuit of this responsive participation. The Supreme Court cannot afford to denude itself of its leadership as an institution in expounding constitutional values. Any loss of its authority will imperil democracy itself.

  1. Constitutional morality will impact upon any law which deprives the LGBT individuals of their entitlement to a full and equal citizenship. After the Constitution came into force, no law can be divorced from constitutional morality. Society cannot dictate the expression of sexuality between consenting adults. That is a private affair. Constitutional morality will supersede any culture or tradition.

The interpretation of a right in a matter of decriminalisation and beyond must be determined by the norms of the Constitution.

146 LGBT individuals living under the threats of conformity grounded in cultural morality have been denied a basic human existence. They have been stereotyped and prejudiced. Constitutional morality requires this Court not to turn a blind eye to their right to an equal participation of citizenship and an equal enjoyment of living. Constitutional morality requires that this Court must act as a counter-majoritarian institution which discharges the responsibility of protecting constitutionally entrenched rights, regardless of what the majority may believe.380 Constitutional morality must turn into a habit of citizens. By respecting the dignity of LGBT individuals, this Court is only fulfilling the foundational promises of our Constitution.”

Excerpts from Judgment of SUPREME COURT OF INDIA, WRIT PETITION (CRIMINAL) NO. 76 OF 2016, NAVTEJ SINGH JOHAR & ORS. …Petitioner(s) VERSUS UNION OF INDIA, THR. SECRETARY MINISTRY OF LAW AND JUSTICE …Respondent(s), decided on 06th September,2018.

Authored by Dr. Kalyan C Kankanala
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Governing License: CC BY 3.0

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