SC judge criticises govt for leaving it to 'wisdom of court' to decide on Section 377

A Supreme Court judge expressed disappointment over the government's decision to leave it to the court's wisdom to take a call on sensitive issues such as the recent challenge to Section 377 of the Indian Penal Code which criminalised homosexuality between consenting adults, saying that politicians handing such power to the judges are happening on everyday basis.

Justice DY Chandrachud, who was a member of the five-judge constitution bench which ruled that gay sex among consenting adults was no more a criminal offence, said that in Section 377 the judgment really represented in that sense the battle between laws of a colonial origin and laws which must truly represent constitutional values. 

The judge also said that this concern about the need to harmonise pre-Independence or colonial laws with the ethos of constitutional jurisprudence was reflected in the judgment.

"Why do politicians sometimes hand over power to judges and we see that happening in the Supreme Court everyday. We saw that in 377 where the government told us that we are leaving this to the wisdom of the court and this 'wisdom of the court' was too enticing a principle for me not to respond so I responded in my judgment the other day," said Justice Chandrachud.

"It is well for a judge to remind himself or herself of the fact that flattery is often the graveyard of the gullible," he quoted from his judgment.