[Section 377] [Day-1,Session-2] Right To Choose A Partner Is A Fundamental Right Under Art. 21 And Partner Can Be from The Same Sex: Chandrachud.J

Justice Chandrachud remarked that the right of an adult to choose their sexual partner has been observed to be intrinsic to their fundamental right under Article 21 in the Hadiya Judgment , and that such partner could also possibly be of the same sex.After the bench resumed post the lunch hour, Senior Counsel Arvind Datar traced the history of the laws against homosexuality.He submitted that Michael Kirby, former Justice of the Australia, has said that the first reference in this behalf appeared in the Old Testament- “If a man ... lie with mankind, as he lieth with a woman, both of them have committed an abomination: they shall surely be put to death; their blood shall be upon you”“The IPC was the first attempt to codify criminal laws...In Kaushal, this court has said that the IPC reflects the will of the Parliament, while it is a pre-constitution law without any scientific backing...”, he continued.https://twitter.com/LiveLawIndia/status/1016620064102109184In the light of Lawrence v. State of Texas and the rising tolerance to homosexuality in America, he quoted that “the widespread consensus in the first half of the twentieth century that homosexuality was pathological and dangerous has given way, with growing numbers of expert and ordinary Americans regarding it as a normal and benign variation of human sexuality...The federal government, which once prohibited the employment of homosexuals, now prohibits its agencies from discriminating against them in employment”.Mr. Datar criticised the judgment in Suresh Kumar Kaushal in as much as it relies on Ram Krishna Dalmia v. Justice S. R. Tendolkar to apply the principle of presumption of constitutionality to pre-Constitution laws, like the IPC, which have been adopted by the Parliament and used with or without amendment- “Article 372 is also subject to Article 395”, he contended.“What Article 372(1) really says is that all laws in force prior to the commencement of the Constitution shall continue to be in force until altered or repealed...the Article accords power to the President to direct appropriate adaptation of any law to bring it in consonance with the Constitution within 3 years of its commencement...Now that an adaptation order was not issued by the President, it could be understood to mean that the law is constitutionally valid...”, reflected Justice Chandrachud.“An entire range of laws would lose the presumptive value of constitutionality”, observed the Chief Justice in context of the Doctrine of Eclipse.“But it is logically wrong to say that since the Parliament, despite the recommendation of the Law Commission in its 172nd Report, has chosen not to delete section 377, it is constitutional...”, Mr. Datar objected to the observation of the two-judge bench in Suresh Kumar Kaushal.“Because there were no constitutional constraints when the law was made, that is why the shadow is cast”, opined Justice Nariman.In what he described as the befitting response to this observation in Suresh Kumar Kaushal, Mr. Datar quoted former US Supreme Court justice Oliver Wendell Holmes Jr.- “It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past”Reading clauses (1) and (2) of Article 13 together, he argued that if section 377 was introduced in present day, it would not stand the test of Part III of the Constitution, and hence, the provision, as enacted in 1860, could not either.“We attach constitutionality to a Law because it is enacted by a legislature the members of which have been elected by popular will, and also because such a law is subject to the umbrella of Part III...these factors attach a degree of deference to post-Constitution laws which would be absent in case of pre-Constitution laws”, weighed in Justice Chandrachud.In so far as the Suresh Kumar Kaushal judgment factors in the inaction on the part of the Parliament to delete section 377 despite the UOI not having appealed against the Delhi High Court declaring the provision as unconstitutional, Mr. Datar vehemently urged that the fact that there had been no appeal on behalf of the UOI was “all the more reason to strike down section 377”.Further, in as much as the said judgment interprets section 377 as not criminalising a “particular people or identity or orientation”, but merely identifying certain acts which if committed would constitute an offence, the Senior Advocate controverted, saying that the section criminalises a class of people.“Section 377 applies even heterosexually...a man and a woman engaging in anal sex would be violative of the provision”, noted Justice Chandrachud.“Classification is not the criterion; the criterion is the act which may be heterosexual, homosexual or even bisexual...nature and choice are different...there is a distinction between natural orientation and...

[Section 377] [Day-1,Session-2] Right To Choose A Partner Is A Fundamental Right Under Art. 21 And Partner Can Be from The Same Sex: Chandrachud.J

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