The framers of the Constitution gave us an Indian Supreme Court with greater powers than any other court of its time. It was a court that the poorest person in the land could approach. For most of its existence, the court has lived up to that promise. Often it has not.
Roughly three years ago the chief justice’s court in the Supreme Court was packed with people. The court was to pronounce on the correctness of the Delhi high court judgement, which had held that Section 377 of the Indian Penal Code did not criminalize adult same-sex consensual sexual relations. There was an air of expectation because in recent years the Supreme Court was often seen as a protector of individual rights. All those expectations were dashed when the court read out its verdict in what has come to be known as the Koushal judgement. The Delhi high court judgement was overruled and homosexuals had once again become criminals in their own country.
The reasons behind the judgement were made available the same day. If there was any solace to be had for cogent constitutional reasoning, that hope too was dashed. The judgement was premised on a misplaced deference to Parliament. The court held that if Parliament had made a law, the courts were required to have a hands-off approach. They were to presume that any law was constitutional.
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It seems that the court forgot that Section 377 was never enacted by the Indian Parliament. It had been enacted in 1860 by the British Parliament and thrust upon the Indian people without any public discussion or debate.
Equally, the idea of judicial deference to Parliament seems puzzling. Any reader of a newspaper today would be aware of judicial activism. Judges do, as indeed they should, take the government to task on a daily basis. The entire premise of judicial review embodied in our Constitution requires that independent judges protect the constitutional rights of the minority against the possible tyranny of the majority. If any law violates any constitutional provision, let alone a constitutional right, it must be struck down. Indeed, Justice G.S. Singhvi, the author of the Koushal judgement, had himself struck down provisions of the Delhi Rent Control Act, 1958 which gave protection to tenants occupying commercial premises. Perhaps property rights were seen to be more precious than personal liberty.
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Three years on, the Koushal judgement continues to be “good” law. It is true that the Supreme Court has given other, more progressive, judgements such as the one recognizing the rights of transgenders. There are also curative petitions and other writ petitions pending that seek a reconsideration of the Koushal judgement. Yet, the judgement has not been stayed or modified and hence holds the field even today.
It is often said that Section 377 has little relevance as it is rarely enforced. Such a view is deeply mistaken. A provision need not be formally enforced when the mere threat of its enforcement can have a chilling effect. There are multiple instances of police and other authorities threatening the invocation of the provision for the purposes of extortion. Affidavits were filed by many persons in the Supreme Court at the time of the hearing of the Koushal case detailing the custodial horrors they had undergone when they had been jailed for suspected violation of Section 377.
Yet the most insidious effect of Section 377 is to warp the relationship between the State and the citizen. In criminalizing the sexual act felt most natural by a class of people, the Section seems to disallow a citizen the freedom to live life to the fullest extent guaranteed by the Constitution. The State has today told us whom we may not love. Tomorrow it may tell whom we have to. The Section also violates basic norms of private sexual conduct. Today the State has been permitted to enter into one bedroom. Tomorrow it may enter all of ours.
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Three years have passed since the Koushal judgement was pronounced. Countless Indians found courage in the Delhi high court judgement decriminalizing sodomy to come out and be proud of themselves. The LGBT (lesbian, gay, bisexuals and transgender) community is made up of people some of whom have grappled deeply with themselves, their identities and their families to have the courage to come out of the closet. The Supreme Court judgement has knocked the belief that at least one pillar of the Constitution would always fight for their corner.
The Supreme Court today enjoys a formidable reputation amongst the public. It would do well to remember that this reputation does not stem from how the court rules today. The court today is basking in the reflected glory of its illustrious former judges. The past judgements of the court guaranteeing Constitutional protection to the neediest has given the court the sheen it has today. Regressive judgements only threaten that reputation. The Koushal judgement may yet be overturned, but its presence on the law reports does no service to the court.
It can only be hoped that the court would find time in its busy docket to take up and overrule the Koushal judgement. The hundreds of thousands of people in the closet are waiting for the court to unlock them and guide them to freedom.
A Supreme Court advocate, Saurabh Kirpal is involved in curative petitions on Section 377, currently pending before the top court. Comments are welcome at firstname.lastname@example.org.