This is a guest post by BOBBY KUNHU
That subjective morality influences judicial interpretation of law is a given. But, this influence has to remain within the paradigm set by the law and cannot operate outside it or breaking it. So there are two moralities that effect the outcome of any case, one the morality of the law itself and second how the morality of the judge works in the interpretation of the law. It is in this context that judicial attitude towards sexuality has to be analyzed. And for this first the entrenched patriarchy of the legal profession has to be acknowledged. The best evidence for this is the representation of women at every level of the profession from the bench to senor advocates to advocates on record to the lowest echelons of the bar and judicial bureaucracy.
Indian law with respect to sexuality is in a Victorian time warp. It continues to criminalize any sexual activity that is not penile-vaginal penetration, so much so that till recently when the definition of rape was amended and the Protection of Children from Sexual Offences Act was enacted this was the paradigm of penalizing non-consensual sexual predation. Add to it the ingredients of individual judges’ patriarchy and accumulated religious and social conditioning.