Looking backward

On Section 377, the problem is not just what the Supreme Court didn't say, but also what it did

When our Supreme Court rules on constitutional questions, we expect it to look at substance and not form. To borrow from Justice Vivian Bose, we expect it to "[l]ook past the mere verbiage of the words and penetrate deep into the heart and spirit of the Constitution." Past decisions tell us that the SC boldly embraces its core function of interpreting the Constitution, while protecting individuals and minorities that have no recourse when their fundamental rights are violated.

The decision in Suresh Kumar Kaushal vs Naz Foundation is deeply disappointing to those who have faith in the SC. Here is a judgment dismissive of the "so-called rights of LGBT persons", but the reasoning as to why their rights, conferred by the Constitution and confirmed by the Delhi High Court, are not vitiated by Section 377 of the Indian Penal Code is woefully inadequate or conspicuously absent.

Let us, however, leave aside what the court has failed to consider. Let us forget, for a moment, its failure to grasp the social meaning and implications of reattaching the labels of "unnatural" and "criminal" to sexual expression lying at the heart of same-sex love. Instead, let us analyse how the court failed in its constitutional duties and diluted its institutional legacy.

The first question is whether the SC was correct in passing the buck to the legislature, observing in the last paragraph that it was free to consider the question of whether Section 377 should be amended or deleted. In our view, this move can be traced back to the judgment's opening gambit. Here the court states that laws are presumed to be constitutional, based on the "premise that the legislature, being a representative body of the people and accountable to them, is aware of their needs and acts in their best interest within the confines of the Constitution." The fallacy here lies in the fact that the court has left the question of whether Section 377 should be retained to the majoritarian legislative process, while in the same breath observing that the LGBT community forms a "miniscule [sic] fraction of the country's population". What it seems to forget is that a "minuscule" minority does not have the numbers to drum up support in legislative bodies. To borrow from the US Supreme Court's most famous footnote in Carolene Products (1938), "discrete and insular minorities" are unable to access "those political processes ordinarily to be relied upon to protect minorities". The function of a bill of rights in any constitution (like Part III of ours) is to protect individuals and minorities from the "tyranny of the majority", and it falls squarely in the domain of constitutional courts to enforce and protect these rights. It is strange that a court that has never hesitated to venture into the "political thicket" is now using the "presumption of constitutionality" as a justification for kicking the ball to the legislature.

... contd.

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