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

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

Mehta: let be complete, there is a prayer

Mehta: i want 9 honble judes to read whether this part is a correct statement of law

more than one judge saying: does it bind you

Mehta: 497 could have been declared unconstitutional on grounds of 14 that it is arbitrary and discriminatory

J Bagchi: these are observations of one of the honble justices as CJI points out

Mehta- they are not, i must point this out...

J Nagarathna- you can say the enforcement of fundamental rights need not be on the touchstone of constitutional morality. constitutional morality is in the realm of the constitutional governance, it is not in the realm

Mehta: allow me to finish

J Nagarathna:need not to be palatable to you but its not a subject matter as such

J Bagchi: what the honble CJ is indicating these are observations of one of the honble justices but the ratio based on which joseph shine declared adultry

Mehta: allow me to read

J Bagchi: it is an issue of gender discrimination where equality in gener has not been respected in the law, women has been deemed to be a property not being sui generis...this is the fundamental ratio as we read it

Mehta: the hon'ble court cites hardwick

CJI: subjective view point of professor, some writer whosoever may be, we have no fair idea bout this his eminence but ultimately as such is not under question

Mehta: "The mere fact that adultery is considered unconventional in society does not justify depriving it of privacy protection. The freedom of making choices also encompasses the freedom of making an ‘unpopular’ choice"- in married relationship I can have adulterous relation because that is my private choice, it may be unpopular.

This was articulated by Justice Blackmun in his dissent in Hardwick. There is something more.

CJI: this is a part of the article?

Mehta: statement of law, continues to read

CJI: Seigal has been quoted like second Ambedkar

Mehta: articles of some unknown and becoming part of the judgment binds us and are accepted and followed by your lordships on grounds of constitutional morality. he is a practising law in america