New Delhi: The Constitution Bench of the Supreme Court, in partially striking down Section 377, punctuated "constitutional morality" instead of "societal morality", and said courts on earth can punish only crime, not sin.
"Sin is not punishable on earth by Courts set up by the State but elsewhere; crime alone is punishable on earth," underlined Justice Rohinton F Nariman, penning down his separate judgment.
He emphasised 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 recognised in many of our judgments. Constitutional morality is the soul of the Constitution," said Justice Nariman.
According to the judge, the rationale for Section 377, namely Victorian morality, has long gone and there is no reason to continue with it.
Justice Nariman quoted from an article of US judge Holmes: "A law merely for the sake of continuing with the law when the rationale of such law has long since disappeared".
The judge also addressed an argument made by some religious organisations against intervention by the apex court in the determination of the validity of Section 377.
While the contention was made that it should be left to the government and the Parliament to decide, Justice Nariman shot it down.
"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," he said.
Justice Nariman added that 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," he said.
The judge described the fundamental rights chapter in the Indian Constitution as 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," held Justice Nariman.
His views on constitutional morality found resonance in the judgments, separately authored by Chief Justice of India Dipak Misra, Justices DY Chandrachud and Indu Malhotra.
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