Nine-judge Constitution Bench observes that the chilling effect of Section 377 “poses a grave danger to the unhindered fulfilment of one’s sexual orientation, as an element of privacy and dignity”.

The Supreme Court on August 24, 2017 tore into its own judgment of 2014 upholding Section 377 of the Indian Penal Code, which criminalises consensual sexual acts of adults in private.

The nine-judge Bench observed that the chilling effect of Section 377 “poses a grave danger to the unhindered fulfilment of one’s sexual orientation, as an element of privacy and dignity”.

In separate judgements, the Constitution Bench, led by Chief Justice of India J.S. Khehar, concluded that the 2014 verdict by a two-judge Bench pandered to a “majoritarian” view to turn down the LGBT (lesbian, gay, bisexual, and transgender) community their inherent fundamental rights of life, personal liberty, equality and gender discrimination.

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The 2014 judgement's view that “a minuscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders” was not a sustainable basis to deny the right to privacy, Justice D.Y. Chandrachud observed in his judgement.

Justice Chandrachud was writing for himself, Chief Justice Khehar, Justices R.K. Agrawal and S. Abdul Nazeer on the Bench.

“The test of popular acceptance does not furnish a valid basis to disregard rights which are conferred with the sanctity of constitutional protection. Discrete and insular minorities face grave dangers of discrimination for the simple reason that their views, beliefs or way of life does not accord with the ‘mainstream’. Yet in a democratic Constitution founded on the rule of law, their rights are as sacred as those conferred on other citizens to protect their freedoms and liberties,” Justice Chandrachud observed.

Justice Sanjay Kishan Kaul, in his judgement, seconded Justice Chandrachud, while observing that the “majoritarian concept” does not apply to constitutional rights. “Courts are often called up on to take what may be categorized as a non-majoritarian view... One's sexual orientation is undoubtedly an attribute of privacy,” he added.

Justice Chandrachud observed that the Supreme Court, without any constitutional basis, set aside the historic Delhi High Court judgment of then Chief Justice A.P. Shah.In 2010, the High Court found that Section 377 was a statutory provision targeting the community as a class and amounted to a hostile discrimination on the grounds of sexual orientation violative of the fundamental rights.

“Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual,” Justice Chandrachud wrote.

The apex court notes how the two-judge Bench in 2014 repelled the idea of Section 377 robbing the LGBT community of their “so-called” fundamental rights of privacy and dignity.

Justice Chandrachud said the expression “so-called” used in the 2014 verdict seems to suggest the that dignity is illusory for the LGBT community.

“Their rights are not ‘so-called’ but are real rights founded on sound constitutional doctrine. They inhere in the right to life. They dwell in privacy and dignity. They constitute the essence of liberty and freedom. Sexual orientation is an essential component of identity. Equal protection demands protection of the identity of every individual without discrimination,” Justice Chandrachud observed.

The Bench, however, noted that the question of constitutionality of Section 377 is pending consideration before a larger Bench, and said it should be heard and decided in the appropriate proceedings.