Why do politicians sometimes give power to the courts: Judge Chandrachud on section 377

Justice Chandrachud at the NLU in New Delhi. (Express Photo by Amit Mehra)

Two days after making a concurring judgment in the Supreme Court's historic verdict decriminalizing homosexuality, Judge DY Chandrachud expressed Saturday his disappointment at the Center's decision to leave "sensitive questions" to the "wisdom of the courtyard". power to the judges ".

Referring to the affidavit of the Center, which left the decision on petitions challenging the validity of section 377 of the Indian Penal Code to the "wisdom" of the Supreme Court, Chandrachud J. stated: tricky issues such as the power to administer and govern the national capital, the issue of passive euthanasia and the challenge of section 377 in addition to other sensitive issues.

"Why do politicians sometimes pass power to judges and we see that happen every day in the Supreme Court. We saw that in 377, the government told us that we leave this to the wisdom of the court and that this "wisdom of the court" was a too incentive principle for me not to answer, so I told replied in my judgment the other day, "he said.

Read | Verdict of Article 377: The Indian World Has Left

Quoting his 180-page concurring opinion, Judge Chandrachud said, "It is good for a judge to remember that flattery is often the cemetery of the gullible." He was part of the five-judge constitution bench. who toppled Thursday the 39th article of the colonial era, with the Chief Justice of India Dipak Misra and Judges RF Nariman, AM Khanwilkar and Indu Malhotra.

Judge Chandrachud delivered a speech Saturday on the theme of "the rule of law in constitutional democracy" at the 19th Annual Bodh Raj Sawhny Memorial Ceremony in 2018, organized by the National University of Law from Delhi.

Read | Judgment of the Supreme Court on Article 377: 493 pages, 5 judges, a mantra of constitutional morality

He also stated that the judgment in the challenge to section 377 really represented "the battle between the laws of colonial origin and the laws that must truly represent constitutional values."

"There is so much life beyond the law," he said, adding, "We understand the law when we understand the life that exists beyond the law." Every day, judges learn that the work is limited, in terms of its ability to respond to injustice. "

Judge Chandrachud also stated that the decision under section 377 emphasized the need for equal citizenship. (Express Photo by Amit Mehra)

According to Chandrachud JA, the preferred part of his judgment was that in which he quoted the words of Leonard Cohen's song "Democracy". Reading it aloud, he said, "Democracy. He goes through a hole in the air. It comes from feeling, that it's not really real, or that it's real, but it's not exactly there. Wars against disorder, sirens day and night, fires of the homeless, ashes of gays. Democracy is coming.

In his concurring verdict, Chandrachud J. – who was to become India's Chief Justice from November 2022 to November 2024 – stated that it was the court's duty to challenge the constitutional validity of section 377. "The constitutional issues are not decided in concession. The union government's statement does not concede to the petitioners' claim that the legislation is invalid. Even if a concession were to be made, that would not conclude the case for this Court. All the government's position indicates is that it is up to the "wisdom" of the court that the question is left, "he wrote.

Read also | After the verdict of article 377, the police face strangers: men "victims",

Judge Chandrachud also stated that the decision under section 377 emphasized the need for equal citizenship. "Johar (Navtej Johar vs Union of India) also highlights an essential ingredient of ROL (Rule of Law), which we must emphasize today more than ever, namely that the ROL must flourish in a democracy constitutional, must flourish in a society based on a diversity of cultures, in a diversity of ideologies, in a plural society where individuals must be free, "he said.

"We do not just give them the means we have recognized the rights. In this sense, we do not recognize the rights of others. I think the important or the important thing is the effort of the Constitution to transform us, when we recognize the freedom of others, "he said.

"We often believe in our own freedoms. We do not emphasize the importance of recognizing the freedoms of others. "

Chandrachud J. stated that this concern about the need to harmonize pre-independence or colonial laws with the philosophy of constitutional jurisprudence was reflected in the judgment.

He said that among the many layers of judgment, the most important part was "where we try to give substantial individuality to the individual dignity, autonomy, choice and freedom of an individual".

"And therefore, you find that in some parts of the judgment there are references to the fact that says," I am as I am and let me be as I am. "There are other judgments that do not consider this right as "immutable", he said.

Noting that section 377 was based on deeply rooted gender stereotypes, he stated that "what 377 had done was essentially to say that such was the way of life of a man and that it would be a good thing. was so that should be a woman. And that's not what a man is and it's not what a woman is. "

"LGBT people, as well as those who do not conform to society's expectations of sexual behavior, challenge gender stereotypes," he said, citing his judgment.

"Article 15 also uses the word" only ". He says that no citizen should be subject to discrimination based solely on religion, race, caste, sex and place of birth. If you follow a very formalistic "formalistic" approach to law, the word "only" means the moment when you discriminate against someone because of their sex and something else, this discrimination is valid, "he said.

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