Arun Jaitley differs with Supreme Court on Section 377

New Delhi: Finance minister Arun Jaitley Saturday does not agree with some portions of “historic” Supreme Court judgment on decriminalising consensual gay sex that called sexuality a part of free speech. He also questioned portion of judgment on adultery as he felt that it may end up converting the Indian family system into a Western family system.

On the Supreme Court allowing women’s entry into the Sabarimala shrine, Mr Jaitley said such a ruling cannot happen on select practices as it may have many social consequences.

Speaking at an event Mr Jaitley made it clear that the judgment decriminalising gay sex was fine but “the problem comes when writing these historical judgements, you get carried away and want to be part of history and therefore you go a step further”.

While the finance minister agreed with the reasoning given by the court in the judgement that sexual activity is part of Article 21 of the Constitution that guarantees right of life and that no discrimination on the basis of sex should be there, but he argued that he was in tune with with the reasoning that sexual activity is part of free speech.

“Because I think that’s little excessive and consequences of that may not be on decriminalisation. Free speech is entirely a different gambit, it can be restrained on the reasons of sovereignty, security, public order and so on and mind you there is tendency of creating new fundamental rights everyday,” he said.

He went on to point out that “when you convert this into a fundamental right and say its free speech then how do you restrain any form of sexual activity, homosexual or bisexual in a school hostel, prison, army frontier.”

Mr Jaitley, who felt that this particular portion required further debate he said that “this reasoning was not necessary for deciding the case of Section 377 which decriminalised gay sex.”

On the Supreme Court ruling on adultery, he said some of the judges said these are matrimonial offences and personal wrongs and not public wrongs. Questioning this, Mr Jaitley argued; “So therefore it is outside the purview of criminal law. Would that cover bigamy or polygamy also which are personal wrong? Would that cover cruelty? Would that cover dowry offences? Now this logic covering them, then it would be a wholly anti-women judgement.”

While Mr Jaitley “was not in dispute that the very badly worded section on adultery needed to be quashed”, but he felt that “the later view may find a reference in some western journals very favourably but it may end up converting Indian family system into Western family system where the fragility of marriage as an institution itself will increase.” He pointed out that “one probably requires to debate the second part of the observation which again was not necessary for deciding this case.”

On the Sabarimala ruling, Mr Jaitley said if you want to take a progressive step, then Articles 14 and 21 will apply against all religions. The finance minister said that “it can’t happen that you select a practice and apply”.