Majority cannot trump Constitution

NEW DELHI: While handing down a historic verdict decriminalising Section 377, the Supreme Court said the majoritarian view could not extinguish the rights of a minorty community over its sexual preference and that social morality could not be used to snuff out fundamental rights.


Declaring constitutional morality the winner, Chief Justice Dipak Misra said, "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 to preserve the heterogeneous nature of 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 rule of law. The veil of social morality cannot be used to violate fundamental rights, for the foundation of constitutional morality rests upon the recognition of diversity that pervades society." The test of popular acceptance was not valid basis to disregard rights conferred with the sanctity of constitutional protection, he said.

Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra - agreed with CJI's view that "freedom of choice cannot be scuttled or abridged on the threat of criminal prosecution and made paraplegic on the mercurial stance of majoritarian perception".

Justice Nariman differentiated between morality and criminality and said, "Morality and criminality are not coextensive - sin is not punishable on earth by courts set up by the state but elsewhere, crime alone is punishable on earth. To confuse one with the other is what causes the death knell of Section 377."

Justice Chandrachud added, "We are aware of the perils of allowing morality to dictate the terms of criminal law. If a single, homogeneous morality is carved out for a society, it will undoubtedly have the effect of hegemonising or 'othering' the morality of minorities. The LGBTQ community has been a victim of the predominant (Victorian) morality. Therefore, we are inclined to observe that it is constitutional morality, and not mainstream views, which should be the driving factor in determining the validity of Section 377."

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