The decision of the Supreme Court in Suresh Kumar Koushal vs Naz Foundation, delivered on December 11, 2013, marked a low point in the court’s otherwise illustrious record of protecting civil rights and liberties. The judgment, itself under challenge and pending hearing in open court at the curative stage, suffers from defects of legal reasoning and logic. However, the one thing that the decision does do is that it invites the legislative wing of government to correct the position by amending or repealing Section 377 of the Indian Penal Code.
It is clear, therefore, that the decision of the court does not preclude legislative action on Section 377, and the government remains free to pursue this route of action. In the immediate aftermath of the decision, several prominent members of Parliament had made public statements indicating that the Supreme Court was wrong in upholding the constitutional validity of Section 377. But though nearly two years have passed since then, we remain no closer to a legislative repeal of this section. However, we have several statements being made even now — the most recent one by Union Finance Minister Arun Jaitley — that the Supreme Court needs to “revisit” its decision in Koushal.
If Jaitley made the aforementioned statement sincerely and keeping in mind his occupation of an office of high authority, he should not hesitate to act. A sharp legal mind such as his should easily comprehend that what is pending at the curative stage is a decision on the constitutionality of the provision, and not on its necessity as a matter of policy. Therefore, the question of the desirability of Section 377 is not sub judice. The government is free to legislatively remove or read down this section. Indeed, it has been free all along. However, all that we have seen on this is fine speechmaking by multiple leaders, and no action.
A few days ago, Parliament celebrated the anniversary of the adoption of the Constitution by the Constituent Assembly with a series of discussions on constitutional principles, including the rights to equality, life, dignity and freedoms of speech and expression.
The true test of a Constitution, indeed any legal document, is whether its application and practise affects and uplifts the lives of the subjects of the law. It is in the ability of that document to create and permeate norms of dignity, equality and liberty in the social order, and bring the most marginalised and discriminated against within the purview of a just and humane system. This promise of the Constitution cannot be confined to fine elocution within Parliament; it has to be put to action. Jaitley rightly points out that Section 377 adversely affects millions of Indian citizens and their right to lead a life of dignity and equality.
The question that necessarily arises is whether we must tolerate such discrimination and injustice till the Supreme Court reconsiders its earlier decision. Is it not imperative that such a state of affairs be intolerable to us as a nation, and that we act decisively to alleviate this situation?
It is a duty and an obligation on those who exercise the legislative authority of the state on behalf of us all to move beyond stating the obvious and conveniently passing the issue back and forth between themselves. One could say that the Supreme Court abdicated its duty to uphold citizens’ rights when it decided Koushal. It then found it convenient to state that the legislature should amend the law.
Now, we see a similar passing of the buck, with holders of legislative office stating that the court should reconsider the matter. In this continual back and forth between these wings of authority, with neither of them choosing to perform their constitutional mandate, the human cost of an unjust law keeps rising. It rises in real terms, in the denial of basic human rights and self-identity, in being harassed and blackmailed without legal recourse, in severe mental and emotional trauma, and in a negation of all that is promised by the Constitution.