Legislation is not the repertoire of the Hon'ble Supreme Court of.India. Appalled to see how the ruling Council of Ministers & the leader of the ruling party are hiding their inactions and running away from their responsibility by hiding behind the decision of the Supreme Court i.e. making it appear that the Supreme Court has always been somehow responsible for the Section 377 of the Indian Penal Code.
Its not for the Supreme Court to decide policy, it will be going beyond its constitutional powers if it decides what is morally wrong or morally right or whether same gender sex is moral or not moral. That is the prerogative of the legislature. There is nothing wrong or right about the decision of the Supreme Court, its just that the legislature should have brought out an amendment to accommodate the changes that take place with the progress of society. It is beyond the judicial capacity of the Supreme Court to decide whether same gender sexual intercourse is okay or not okay.
What the infamous 377 is all about ..
Section 377. Unnatural offences
Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine.
Explanation
Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
If we look closely
In Union of India & Anr. vs. Deoki Nandan Aggarwal AIR 1992 SC 96 a three Judge Bench of the Apex Court observed (vide paragraph 14): "It is not the duty of the Court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provision is plain and unambiguous. The Court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the courts. The Court cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the words used by the legislature the Court could not go to its aid to correct or make up the deficiency. Courts shall decide what the law is and not what it should be. The Court of course adopts a construction which will carry out the obvious intention of the legislature but could not legislate itself. But to invoke judicial activism to set at naught legislative judgment is subversive of the constitutional harmony and comity of instrumentalities. Modifying and altering the scheme and applying it to others who are not otherwise entitled to under the scheme will not also come under the principle of affirmative action adopted by courts sometimes in order to avoid discrimination."
It is amazingly funny how the media and the politicians are taking a high moral ground without understanding the basics of how the constitution of India has divided the power amongst the judiciary, executive and the legislature. What is even more funny is that senior advocates like Indira Jaisingh are overlooking this fact and are criticizing the judgement perhaps in order to get brownie points from the Government or perhaps in an emotional reaction.
The entire episode is a failure of our legislature and not the failure of the Supreme Court. And the entire hype by the media is just because of total ignorance of the division of powers among the three pillars by the Constitution of India.
What is conveniently ignored by everyone is that the Hon'ble bench has held that the legislature is free to bring about necessary legislation on this issue.
And finally a tip on how to effectively criticize a Supreme Court Judgement.
Its not for the Supreme Court to decide policy, it will be going beyond its constitutional powers if it decides what is morally wrong or morally right or whether same gender sex is moral or not moral. That is the prerogative of the legislature. There is nothing wrong or right about the decision of the Supreme Court, its just that the legislature should have brought out an amendment to accommodate the changes that take place with the progress of society. It is beyond the judicial capacity of the Supreme Court to decide whether same gender sexual intercourse is okay or not okay.
What the infamous 377 is all about ..
Section 377. Unnatural offences
Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine.
Explanation
Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
If we look closely
- the law may be poorly written in today's context and perhaps is grossly insufficient but is not unconstitutional per se even though it may be partially immoral and also offensive. (we must remember that unconstitutional does not equate to immoral, it just means whether it is constitutionally acceptable or not and similarly just because a law is constitutional does not always mean it is morally right.)
- There is no mention about mutual consent.
- This section is not only related to same gender sexual intercourse, it covers other aspects as sex with animals, curbing sexual assaults on men and children, etc.
- This section if struck down will need to be replaced with some other law to prevent same gender sexual assaults.
- Does the Supreme Court have the power to write an alternate law?
- Also is there any part of the law that the Supreme Court can partially strike down and retain the protective elements of this section?
In Union of India & Anr. vs. Deoki Nandan Aggarwal AIR 1992 SC 96 a three Judge Bench of the Apex Court observed (vide paragraph 14): "It is not the duty of the Court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provision is plain and unambiguous. The Court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the courts. The Court cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the words used by the legislature the Court could not go to its aid to correct or make up the deficiency. Courts shall decide what the law is and not what it should be. The Court of course adopts a construction which will carry out the obvious intention of the legislature but could not legislate itself. But to invoke judicial activism to set at naught legislative judgment is subversive of the constitutional harmony and comity of instrumentalities. Modifying and altering the scheme and applying it to others who are not otherwise entitled to under the scheme will not also come under the principle of affirmative action adopted by courts sometimes in order to avoid discrimination."
It is amazingly funny how the media and the politicians are taking a high moral ground without understanding the basics of how the constitution of India has divided the power amongst the judiciary, executive and the legislature. What is even more funny is that senior advocates like Indira Jaisingh are overlooking this fact and are criticizing the judgement perhaps in order to get brownie points from the Government or perhaps in an emotional reaction.
The entire episode is a failure of our legislature and not the failure of the Supreme Court. And the entire hype by the media is just because of total ignorance of the division of powers among the three pillars by the Constitution of India.
What is conveniently ignored by everyone is that the Hon'ble bench has held that the legislature is free to bring about necessary legislation on this issue.
And finally a tip on how to effectively criticize a Supreme Court Judgement.
" ............................Read it first............................."
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