Moily says govt may amend section 377


Moily has indicated that if the apex court upholds the high court ruling, then the government may suitably amend the relevant penal provisions under section 377 of the Indian Penal Code to make it a law.

"One thing must go to the credit of the Delhi High Court judgement -- it is well-documented, well-researched. I must tell the judges -- the subject may be difficult, but at the same time this is one judgement which has really stood out in the judicial annals of this country," Moily told journalist Karan Thapar in CNN-IBN's "Devil's Advocate" programme, to be aired Sunday 8.30 p.m.

The Supreme Court is adjudicating a bunch of lawsuits challenging the high court's July 2 ruling.

Asked if the government would take any step to change the law and reverse the judgement, Moily said: "There are occasions and occasions where the government will not seek to reverse a judgement."

Endorsing the legality of the judgement, the minister said that the verdict settles an important question of law on liberty and privacy and it would have been "preposterous" for the government to seek its suspension when it came up for hearing in the apex court July 21.

"It is an important question of law -- particularly relating to the constitutional provision of liberty, privacy -- they have given a judgement. As against that, obtaining a stay may be sometimes preposterous, unless we have a final verdict from the Supreme Court," said Moily, when asked why the government did not seek a stay on the ruling.

Moily also conceded that many laws contradict the Constitution and observed that this dichotomy should not continue. He attributed the anomaly to the fact that the Indian Constitution came into being only in 1950, while several laws of the land are from the time of the British rule -- often 100 years old or more. For example, the Indian Penal Code itself is of 1860 vintage.

Moily pointed out that either the Constitution will have to be amended to synchronize with these laws or they will have to be repealed so they no longer contradict the Constitution.

"We have a Constitution -- many a time the Constitution runs parallel to many many laws which were enacted earlier to the Constitution coming into force. This includes many of those provisions, including some of the sections under the IPC or the Evidence Act. Many of these things if they are put to acid test of the Constitution, they may not stand up to the scrutiny of the Constitution," said Moily.

"Maybe either the Constitution makers (should have seen this) or, thereafter, there should have been a proper review, so that either the laws are changed or the Constitution would have been changed, so that there would have been a proper synchronization of the laws of the land and also the Constitution," he added.

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