On Section 377, Judge Questions Centre's Decision To Leave It To Court

New Delhi: A Supreme Court judge expressed disappointment over the government’s decision to leave it to the court’s wisdom to take a call on sensitive issues such as the recent challenge to Section 377 of the Indian Penal Code, which criminalised homosexuality between consenting adults, saying that politicians handing such power to the judges are happening on everyday basis.

Justice DY Chandrachud, who was a member of the five-judge constitution bench which ruled that gay sex among consenting adults was no more a criminal offence, said on Saturday that in Section 377 the judgment really represented in that sense the battle between laws of a colonial origin and laws which must truly represent constitutional values.

The judge also said that this concern about the need to harmonise pre-Independence or colonial laws with the ethos of constitutional jurisprudence was reflected in the judgment.

“Why do politicians sometimes hand over power to judges and we see that happening in the Supreme Court everyday. We saw that in 377 where the government told us that we are leaving this to the wisdom of the court and this ‘wisdom of the court’ was too enticing a principle for me not to respond so I responded in my judgment the other day,” said Justice Chandrachud.

“It is well for a judge to remind himself or herself of the fact that flattery is often the graveyard of the gullible,” he quoted from his judgment.

Justice Chandrachud was speaking on the topic, “Rule of Law in Constitutional Democracy”, at the 19th Annual Bodh Raj Sawhny Memorial Oration 2018, organised by National Law University, Delhi. He said that out of the many layers of the judgment, the most significant part was where “we try and give individual dignity, the autonomy, the choice and liberty of an individual, some substantive content”.

“And therefore you find that in some parts of the judgment, there are reference to the fact that says ‘I am as I am and let me be as I am’. There are other judgments which do not regard this right ‘to be that I am’ as something that is immutable,” he said.

He also said that all our identities are shaped by our constant interaction with each other, with the society and one’s self. “…is gender in that sense an identity which is not shaped by our social milieu,” he said.

Noting that Section 377 rested on deep-rooted gender stereotypes, he said that “what 377 did essentially was to say that this is how a man should be and this is how a woman should be. And, this not what a man is and this is not what a woman is.”

“LGBT individuals as well as those who do not conform to societal expectations of sexual behaviour defy gender stereotypes,” he quoted from his judgment.

He further said that the issue is how do you deal with sexual orientation with expression of sex in Article 15 of the Constitution. Section 377, imposing deep prejudices in terms of gender stereotypes, was found to be offensive to Article 15, he said.

“Article 15 also uses the word ‘only’. It says that no citizen shall be discriminated only on grounds of religion, race, caste, sex, place of birth. If you follow a very formalistic ‘Rule of Law’ approach the word ‘only’ means the moment you discriminate against an individual on the ground of sex and something else, that discrimination is valid,” he said. He added that there is a need for emphasising an equal society.

“Rule of Law, if it has to flourish in a constitutional democracy, has to be amidst the diversity of culture, in a plural society,” he said.