“Moral indignation, howsoever, strong, is not a valid basis for overriding individual’s fundamental rights and privacy. In our scheme of things, constitutional morality must outweigh the argument of public morality, even if it be the majoritarian view,” a two-judge Bench headed by Chief Justice A P Shah said.
The court passed the order while decriminalising gay sex among consenting adults which was earlier a criminal offence punishable with even life imprisonment.
The Bench, also comprising Justice S Muralidhar, rejected government’s stand which justified penal provision against homosexuality on the ground that it is against public morality and its legalisation would lead to moral degradation in society.
“We are unable to accept the stand of the Union of India that there is a need for retention of Section 377 of the Indian Penal Code to cover consensual sexual acts between adults in private on the ground of public morality,” the court said in its 105-page judgement.
“Popular morality or public disapproval of certain acts is not a valid justification for restriction of the fundamental rights under Article 21,” the court said, adding that “those perceived by the majority as deviants or different are not on that score excluded or ostracised.”
The controversial law on homosexuality was codified 149 years ago when Lord Macaulay introduced the section in the IPC, making carnal intercourse punishable.
Interpreting Section 377 in light of basic tenets of “inclusiveness” of the Constitution, the court said, “A provision of law branding one section of people as criminal based wholly on states’ moral disapproval of that class goes counter to equality guaranteed in the Constitution.”
“The provision of section 377 runs counter to the Constitutional values and the notion of human dignity which is considered to be cornerstone of our Constitution.
“If there is any type of morality that can pass the test of compelling state interest, it must be constitutional morality and not public morality,” the court said.