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“Your Lordships can ignore the statements of the Minister... his statements cannot change the law,” said Additional Solicitor General (ASG) P P Malhotra on Monday before a Bench of Chief Justice A P Shah and Justice S Muralidhar.
The Centre also repeatedly told the Bench to ignore an embarrassing affidavit from the Home Ministry equating “the crime of widow re-marriage” with homosexuality and lesbianism.
“One will not go by what the affidavit says, one will not go by what the minister says, one will only go by what the Constitution says... one will only see if the fundamental rights of any person are affected,” the ASG said.
When Chief Justice Shah assured that the court would reach an independent conclusion — “not based on what your minister says or the Law Commission says” — the Centre tried to probe the power of the Bench itself to “change” Section 377. “Judges cannot make or scrap the law, they can only interpret it. Section 377 IPC is the will of Parliament, the will of the people, no matter how wrong it may be,” said the ASG.
Malhotra repeated the same talking to 'The Indian Express' after the hearing. The hearing will continue on Tuesday.


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Home minister is so ineffective and spineless that he says that he is in that position because of Sonia Gandhi. Her opinion on the subject is not known, but is likely to be in line with Pope's `fatwa' on the subject. Courts are really secular, they are not psudo-secular
It is so refreshing to hear atleast one of the central ministe's talks about same sex makes sense. It is said that homosexual feeling is physiological and not by choice. The government should appoint a committee of medical personnel to ascertain the facts before rubbishing the minister who is a doctor. In my view same sex can be decriminalized but same sex marriage should not be legalized since marriage is the union between a man and a woman.
Courts may not be able to make laws. Courts can certainly scrap laws if the judges think that the laws are unconstitutional. What nonsense is the ASG spewing?It is sad to see the archaic language and mentality of the govermnet officials in dealing with 21st century issues.I just hope that the judges have the wisdom and courage to progressively interpret the constitution and ensure equality.
Has Ramodass done any useful work since his apointment. He should be sacked immediately. We have right to say so since we taxpayers pay his salary. Including a bunglow in the heart of the city, whole salary package is not less than Rs 2 lakhs per month. It is total waste of our tax. A country with 500 million people live less than 40Rs per day cannot fford that. There is much better use of the salary we are paying to him.
Gay rights should be seen in the light of male rights. Both are seen as a 'dirty male idea'. Unfortunate, but true!
@Pathetic Jacob: That was the home ministry's statement (well, affidavit), not the union health minister.
The ASG is pleading before the court, to ignore a minister, to ignore an earlier affidavit given by the government, and at the same time questions the honorable court’s powers, of scrapping a law, even if it is bad. Would the ASG please explain that if a law is bad and it cannot be struck down by the courts, where does the common man, who is suffering because of a bad law, go?
How much law does the Additional Solicitor General really know? He says, "Judges cannot make or scrap the law, they can only interpret it." Even a first-year law student knows that in a country like India which has a written constitution, judges can scrap a law if it violates the constitution (Article 13, 32; Marbury v. Madison). That is what the argument is in this case: whether section 377 violates the Constitution. The ASG says that section 377 is the will of the people. Isn't the Constitution the will of the people too?Also, anyone who says that judges cannot make law is also in denial. The whole system of common law is one of judge-made law. Especially in India, our courts have been activist and taken the lead to make laws that Parliament has not enacted. Vishaka v. Rajasthan is an excellent example where rules were made regarding sexual harassment since there was no similar law made by Parliament.
Hey buddy,First of all ban drinking, gambling, and red light areas which do more harm to society. You wont, because if you do, you wont get a single vote next time.Ram Kumar,Chennai,India
They sould just leave homosexual lifestyles as legal from now itself. Otherwise there will have to be a whole rights movement and by the time it does become legal as it undoubtedly will, the public will have become obsessed with homosexuality for or against. At this time there is a very healthy friendship in india among heterosexual men, and also among heterosexual wemen. If the public becomes focused on homosexuality, the current depth of friendship among people of the same sex will become less tolerable, and ordinary healthy friendships will become less, increasing individuality and decreasing community - like has happened in the US and other western countries.
"Crime of widow remarriage"! Such words coming from a respectable minister is just so pathetic.