Sexuality is not free speech, says Arun Jaitley on Section 377 verdict

Team Udayavani, Oct 7, 2018, 10:02 AM IST

New Delhi: Finance Minister Arun Jaitley on Saturday said he did not agree with the portion of the historic Supreme Court judgment decriminalising consensual gay sex that called sexuality a part of free speech, as he felt it raises questions on restraining any form of homosexual or bisexual activity in a school hostel, prison or army frontier.

He also differed on a portion of the top court ruling on adultery, saying 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, he said such a ruling cannot happen on select practices as it may have many social consequences.

Speaking at the HT Leadership Summit, Jaitley said 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”.

He said he fairly 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 added that he completely disagrees 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.

“So 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,” he said.

Stating that this requires further debate, Jaitley said 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.

“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,” he said.

He said he was not in dispute that the “very badly worded section” on adultery needed to be quashed but “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.

“Therefore you probably require to debate the second part of the observation which again was not necessary for deciding this case.”

On the Sabarimala ruling, Jaitley said if you want to take a progressive step, then Articles 14 and 21 will apply against all religions.

“It can’t happen that you select a practice and apply it because that will have many many social consequences in pluralist society like India. If you start stepping into the religious practices and customs and say (Article) 14 must be tested on… personal law and (Article) 14 must be tested in Article 21, then will it apply to polygamy? Will it apply to oral divorces? Will it apply to other religions where ladies are not allowed to enter religious places?

“If you have a selective practice and then you use an argument to say well we will decide this issue in some other case every time it arises. If you are being progressive and bold then it must be uniformly so and that does not seem to be happening….if you are willing to proclaim you must be willing to strike,” he said.