Recent SC verdicts needed, but they went too far: Jaitley
Judges get ‘carried away and want to be part of history’ while writing epochal verdicts, says finance minister
NEWDELHI: The path-breaking judgments of the Supreme Court on gay sex, adultery and the entry of women of all ages into Sabarimala were needed, and, in some cases, struck down or changed aspects of law that needed to be struck down or changed. At the same time, however, they are problematic because they ventured beyond the points of law being questioned, and linked these to larger constitutional rights.
That was the opinion of India’s finance minister, Arun Jaitley, who is also one of India’s best known legal minds and who said he had spent time studying all the judgments in detail. The minister was speaking at the 16th Hindustan Times Leadership Summit on Saturday.
“While writing these historical judgments ,” the judges “get carried away and want to be part of history,” he said. “You go a step further.” For instance, explained Jaitley, referring to the gay sex case where the Supreme Court’s judgment made individual sexual activity a part of free speech (a fundamental right).
The court ruled in September that gay sex among consenting adults was not an offence, reading down British-era section 377 of the penal code that penalises people for their sexual orientation.
“Sexual activity as a part of free speech is excessive. The consequences may not be on decriminalisation. But free speech is an entirely different gambit. Free speech can be restrained on grounds of security, sovereignty and public order. And mind you, because there was a tendency to create new fundamental rights every day ..., and say it’s free speech , then do you restrain any form of sexual activity, homosexual or bisexual, in a school, hostel, prison or army frontier – unless in a subsequent view it is clarified this fourth observation that was not necessary for deciding the case. I think it requires further debate.”
In the case of adultery, too, the finance minister said the court ventured into areas best left alone. He clarified that the quashing of the adultery law was in order and said it was “very badly worded”. The old law said that a man could be tried under the adultery law for having a relationship with the wife of another man, without the permission of the latter.
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