SC says Section 377 had chilling effect

New Delhi : Holding that the punishment under Section 377 had created a chilling effect, the Supreme Court on Thursday said it was the responsibility of the three organs of the State to curb any "propensity or proclivity of popular sentiment or majoritarianism" to invade the rights of LGBTQ community.

Having said this, the top court trashed its own 2013 judgment that had pointed out that in the last 150 years less than 200 prosecutions were made under Section 377 that constitutes a minuscule fraction of the country's population. This did not make a sound basis for declaring Section 377 IPC ultra vires of the Articles 14, 15 and 21 of the Constitution, it had ruled then.

The top court by its 2013 judgment had reversed the Delhi High Court verdict decriminalising gay sex.

Speaking for himself and Justice A.M. Khanwilkar, Chief Justice Dipak Misra said: "The rights of the lesbian, gay, bisexual and transgender population, cannot be construed to be 'so-called rights' as the expression 'so-called' seems to suggest the exercise of liberty in the garb of a right which is illusory."

Setting aside the top court's 2013 judgment, the Chief Justice said, "Their (LGBTQ) rights are not at all 'so-called' but are real rights founded on sound constitutional doctrine."

The 2013 judgment had said that LGBT community constituted a minuscule minority. CJI Misra said, "The observation... that gays, lesbians, bisexuals and transgenders constitute a very minuscule part of the population is perverse due to the very reason that such an approach would be violative of the equality principle enshrined under Article 14 of the Constitution."

The mere fact that the percentage of population is low does not limit the top court from protecting their fundamental rights, CJI Misra said.

The court also said that the framers of the constitution "could have never intended that the protection of fundamental rights was only for the majority population".

"If such had been the intention, then all provisions in Part III of the Constitution (spelling out fundamental rights) would have contained qualifying words such as 'majority persons' or 'majority citizens'", said the CJI.

This Court is not concerned with the number of persons belonging to LGBTQ community. "What matters is whether this community is entitled to certain fundamental rights which they claim and whether such fundamental rights are being violated due to the presence of a law in the statute book".

The constitutional courts, Chief Justice Misra said, "must not display an iota of doubt and must not hesitate in striking down such provision of law on the account of it being violative of the fundamental rights of certain citizens, however minuscule their percentage may be".

The CJI said that the "sustenance of fundamental rights does not require majoritarian sanction. Thus, the ruling (of 2013) becomes sensitively susceptible."

On the chilling effect that operation of Section 377 IPC criminalizing the consensual sex between two adults of same sex, Chief Justice Misra said, "The immobility due to fear corrodes the desire to express one's own sexual orientation as a consequence of which the body with flesh and bones feels itself caged and a sense of fear gradually converts itself into a skeleton sans spirit."

Asserting that it was the responsibility of the three organs of the State to curb any "propensity or proclivity of popular sentiment or majoritarianism", CJI Misra said, "Devotion and fidelity to constitutional morality must not be equated with the popular sentiment prevalent at a particular point of 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", said the judgment pronounced by the CJI.

"It is for the constitutional courts to ensure, with the aid of judicial engagement and creativity, that constitutional morality prevails over social morality."

The court said: "In the garb of social morality, the members of the LGBTQ 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 LGBTQ 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," the CJI said in his judgment.

Making clear that the Court could not fail to carry out their obligation, the CJI said, "A failure to do so would reduce the citizenry rights to a cipher."