The government’s argument before the Delhi High Court that judiciary must maintain self-restraint while exercising its power of judicial review came in for severe criticism from the court on Thursday. The Bench of Chief Justice A P Shah and Justice S Muralidhar, while legalising consensual sex between two homosexual adults, rapped the government counsel for advancing the argument that judiciary should leave the task to Parliament as it would amount to encroaching the legislative functions.

“We are constrained to observe that the submission of Additional Solicitor General reflects rather poorly on his understanding of the Constitutional scheme. It is a fundamental principle of our Constitutional scheme that every organ of the state, every authority under the Constitution derives its power... (from it). The judiciary is constituted as the ultimate interpreter of the Constitution,” the Bench said. The Court, which excluded the consensual sexual acts between homosexuals from the purview of Section 377 of the IPC, justified its power to review a legislation saying the issue involved infringement of fundamental rights of a section of society.

During the hearing on the plea seeking decriminalisation of homosexual acts among consenting adults, the ASG had contended, “Judges must maintain judicial self-restraint while exercising the power of judicial review of a legislation.” The government counsel had vehemently argued that judiciary must not encroach into the domain of Parliament.

The Bench said, “It is true that the courts should not ordinarily defer to the wisdom of the legislature while exercising power of judicial review of legislation. But it is equally well-settled that the degree of deference given to the legislature is dependent on the subject matter under consideration.”

... contd.