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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 judges is happening on everyday basis.

Justice D Y 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 preIndependence 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 every day. 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 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.

“It is well for a judge to remind himself of the fact that flattery is often the graveyard of the gullible” JUSTICE D Y CHANDRACHUD SC judge