By upholding Section 377,the court has undermined constitutional values.
The Supreme Court verdict upholding the constitutionality of Section 377 of the IPC has shamed the Constitution. Its decision will be remembered in infamy as one of those decisions that,like Dred Scott,show how liberal democracies can sometimes give rein to a regime of oppression and discrimination under the imprimatur of law. The courts decision is morally regressive,constitutionally dubious,legally arbitrary and smacks of the kind of hypocrisy that gives the rule of law,and the institutions that uphold it,a bad name. When the Delhi High Court,in a magnificent decision,read down Section 377,a new light had been kindled. It looked like the nation was ready to confront its deepest prejudices. The court has,in one fell swoop,extinguished the flame of humanity and reason from our Constitution. It has given free rein to prejudice,hollowed out the meaning of constitutional protections. And in doing so,it has undermined its own authority.
The issue is simple. Does it befit a liberal democracy to criminalise homosexual activity between consenting adults? Does it befit it to be hostage to an archaic concept of natural? Is the criminalisation not an infringement of every value we hold dear: liberty,equality,privacy,the right to life? In this sense,the case is not about gay rights. It is about all of us. It is also about the fact that in a decent society,no one,no matter how small the minority,should be targeted for simply being who they are. The court has,in some literal sense,infringed on the dignity of innocent citizens who just want,like everyone,the right and space to be themselves. To deny them that space is not to uphold some order of nature or a moral value or some tradition. It is simply to let prejudice masquerade as law.
The court has used misplaced formalism to justify its position. It has taken recourse to the idea that if this change in law should be brought about,the courts should not be the forum for doing it. Parliament should do it. Certainly,this column has long argued for more judicial restraint. But the occasion on which the court has chosen to take recourse to that argument is the one occasion where it is inapplicable. This is not just a moral cop-out,but also disingenuous. The court could have,conceivably,sent it up to a larger constitutional bench. It reserved judgment 21 months ago and sat on it. But the court does not seem to realise that hiding behind Parliaments omissions is not a neutral stance; it upholds the constitutionality of an evil law. In the name of deference to an assortment of petitioners,it gives aid and succour to the reactionary elements of a religion rather than its best exemplars.
We can go through complex legal argument and throw about articles and statutory history. But the Supreme Court seems to be so bizarre on this occasion that one has to keep the matter as simple-minded as possible. There is judicial overreach when the court interferes with policy,when it overrides expressly stated legislative intent without any constitutional warrant,when it interferes in day-to-day administration. There is no overreach when the court protects fundamental rights like liberty,when it upholds equality in the face of discrimination,when it upholds privacy in the face of encroachment by the state,when it protects the dignity of the individual against prejudice. This is the primary function of the court. If the court does not want to perform this function,it might as well pack up and go home. The core issue in this case is just this: Section 377,a relic of Victorian times,is by no stretch of the imagination compatible with constitutional principles. The fact that it has not been expressly repealed by Parliament,through a sin of omission,is neither here nor there. Even if it were upheld by Parliament,it would infringe on basic rights and possibly the basic structure. The courts job is to take a stand on constitutionality. It did not do its job on the occasion that warranted it.
The court also displayed a howlingly limited moral imagination. It boggles the mind to think that our judges get upset about red beacons as if that is the epitome of moral degradation. But the same judges do not have the slightest compassion for those who have to suffer in the most intimate and important aspects of their being,for those who have to lead double lives because of social prejudice,and those who are the targets of harassment and violence as a result of a bad law. It gives credence to those who have long suspected that the courts professed sympathy for the powerless is a mere abstraction it wields to enlarge its own power; it does not have the warmth of real humanity behind it.
But this judgment should also be an object lesson for court-society relations. Many have been warning that the tendency to exalt judges as knights in shining armour,based on their rhetorical grandstanding rather than on the soundness and cogency of their legal reasoning,will be counterproductive. It has licensed all kinds of sloppy thinking. Since the only pressure anyone can put on judges is the pressure of public argument,we need to reflect on how prematurely we constructed judges as heroes. It is a bit graceless to single out individual judges,but then how else do we convey criticism of judgments and not have it get lost in an abstraction called the court? Many had pointed out that the much-feted 2G judgment was legally appalling,and Justice Singhvi seems to have brought the same level of confusion to his thinking in this case. This is the kind of thinking that turns the rule of law into opportunism,principle into mere prejudice,morality into convenient formalism and constitutional values into political playthings.
The Supreme Court should make amends and consider a fresh petition (presumably it will be filed) with the fidelity to constitutional values and the moral acumen this case requires. Instead of bringing law in consonance with Indias own highest traditions,and with evolving global human rights law,the court has left us standing as a relic of bygone barbarism. The moral damage it has done is making all of us feel small indeed.
The writer is president,Centre for Policy Research,Delhi,and a contributing editor for The Indian Express
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