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

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

Mehta-this is what has been done in sabrimala, pls read it

Mehta: some Katherine T. Bartlett, Feminist Legal Methods, Harvard Law Review is quoted-see what the lady said which is a law under article 141 and binds 140 crore indians-"It is not the “common morality” of the State at any time in history, but rather constitutional morality, which must guide the law. In any democracy, constitutional morality requires the assurance of certain rights that are indispensable for the free, equal, and dignified existence of all members of society. A commitment to constitutional morality requires us to enforce the constitutional guarantees of equality before law, non-discrimination on account of sex, and dignity, all of which are affected by the operation of Section 497"

Mehta: Mehta: I beseeched your lordship to read this whether this can be a statement of law- the subject matter is the sexual choice of a woman-"Throughout history, the law has failed to ask the woman question.-" i am unable to assist what is a women question, may be gender question in my limited understanding