Sabarimala Reference : Live Updates From Supreme Court 9-Judge Bench [Day 2]

J Bagchi: if you see J Nariman's judgment, he says there are actually victorian morals which were imposed to indian liberal societies

J Bagchi: mr solicitor, when you are speaking of english and american courts, morality vis-a-viz to sexual acts like sodomy, you should also bear in mind that the idea of sodomy is a Victorian concept of immorality.

In india, the traditional moral thoughts were not at all anti-libertarian in choice

Mehta: i would not very respectfully respond to that because my views are different

Mehta: the judgment of joseph shine in para 152 and 154 not only cites but also fully relies and makes a part of the judgment one professor-cum-lawyer Martin Seigal which binds the country etc

J Nagarathna: institution of marriage and monogamy is precisely for the reason that there should not be multiple partners

Mehta: that is the societal morality

J Kumar: in the judgment, no indian professor quoted?

Mehta: except nivedita menon

Mehta: i have three problems with the judgment

CJI: even if you ignore the cultural or societal norm, let us not bring these principles while testing this provision. how can there be that there is something which is an offence for women and no offence for the man

Mehta: this is the right-right to dignity and equality-which is the foundation of sabarimala

J Nagarathna: institution of marriage in india is based on fidelity of the not only by the wife but husband also

Mehta: and you say its pariarchal? it applies to man equally. you take that oath whether its christian marriage or nikkah or sapatapadi, you take oath to remain faith

when i marry, i don't mortgage my choice of having sexual relationship with someone else, the society norms, cultural ethos accepts that from me

Mehta: fidelity out of marriage is termed by this honble court, which is court of record, as a shackling of sexuality? i am arguing between social v constitutional morality- this is not the jurisprudence of our country

Mehta: "To shackle the sexual freedom of a woman and allow the criminalization of consensual relationships is a denial of this right. Section 497 denudes a married woman of her agency and identity, employing the force of law to preserve a patriarchal conception of marriage which is at odds with constitutional morality"- fidelity, is it a patriarchal conception? it applies to me also, it applies to men also. its not expected only from men

CJI: because it was a one-sided offence, the provision on the face of it was unconstitutional

Mehta: there is something very serious and i have a very serious objection-Nivedita Menon is quoted, JNU professor, known for her views that "indian state is illegally occupying two states" I am not going into it but it has the status of being a part of SC judgment which is a court of record

CJI: if professors who have nothing to do with indian society have occupied so much space, what is wrong with an indian professor

Mehta: your lordships are right

J Nagarathna: even without all this, the validity of the section could have been

Mehta: i am not on validity, it remains invalid

Mehta: "Implicit in seeking to privilege the fidelity of women in a marriage, is the assumption that a woman contracts away her sexual agency when entering a marriage. That a woman, by marriage, consents in advance to sexual relations with her husband or to refrain from sexual relations outside marriage without the permission of her husband is offensive to liberty and dignity"- this is followed in sabarimala, liberty and dignity of women, we barter or mortage our choice of having sexual relationship with someone else except husband or wife-this is the finding, that is the law declared