Guest Post by JOHANNES MANJREKAR
The ruling by a two-member bench of the Supreme Court, striking down the judgement of the Delhi high Court which had held that Article 377 – a pre-Constitution, 19th century colonial-era law – violated the spirit and directive principles of the Indian Constitution, seems to break new ground in jurisprudence. In an era where governments worldwide have been engaged in systematically rolling back hard-won civil liberties and individual rights and violating constitutionally guaranteed freedoms and principles, one might be excused for believing that the most urgent duty of an independent judiciary endowed with a reasonable degree of conviction and courage, would be to curb the transgressions of governments against the principles laid down in their own constitutions. The recent ruling of the SC does little to encourage such a belief.
Ignoring some of the language in the SC judgement, which in itself might be worthy of closer scrutiny, there are at least three lines of argument that strike a layman like me as deeply worrisome. The first of these is the claim that it is the prerogative of elected governments to make laws, while the duty of the judiciary is to oversee adherence to these laws. Aside from the fact that, in other instances, the SC has seen fit to issue fiats and ultimatums in executive matters, this seems fair enough. What, however, is left out in this assertion is that it is also the duty of the judiciary to look into the constitutionality of laws, and this is what was at stake in the present case. By passing the buck to the government, the SC has neatly abdicated this crucial responsibility.
The second point of great concern is the reference to “traditional” social values in judging the merits of a case. It is highly debatable whether discrimination against alternate sexual orientations and identities is indeed a “traditional social value”, but even if one were to concede that it was, should that be a guideline for determining the merits of a case? There are innumerable traditional social and religious values that are profoundly inegalitarian and oppressive of certain sections of society by design, and some of the directive principles of the Indian Constitution are meant precisely to guarantee basic human rights and dignity that are denied by such social arrangements and practices. To appeal to the weight of “traditional social values” is to embark on a dangerously slippery slope. One might have expected something better from the highest court in the land than such craven obeisance to dominant social pressures, which do not even necessarily represent the feelings and opinions of a huge part of the population in a rapidly changing social world.
Lastly, there is the downright casual and cavalier reference in the SC judgement to the “miniscule” number of citizens affected by Article 377. Now what would “miniscule” be? Would, say, 10 million people (countries with less than 10 million seem to take themselves quite seriously) be a miniscule number? And on what do the judges base their assessment that the number is “miniscule”? Surely not by extrapolating from how many people in their personal circle of acquaintances have confided in them about their alternate sexual orientations? But let’s not quibble about the numbers – perhaps there are “only” a million people, perhaps 50 million. Does their “miniscule” number render them irrelevant, not numerically significant enough for serious judicial consideration? Is jurisprudence and the determination of right and wrong going to be determined by the numbers of people involved? The judges might just as well have said, in plain and straightforward language: “Who the hell cares? We’re just talking about a small bunch of weirdos here who refuse to be like the rest of us. Let the government worry about what to do with them.”
The flip side of the coin is the importance of large numbers in determining judicial outcomes. Thus the SC saw fit to declare in an earlier case, in which the evidence was dubious at best and the prosecution had clearly indulged in dishonest practices, that a death sentence should be upheld to assuage the wider “social conscience”, a term which might fairly be substituted with “lynch mob bloodlust”.
To spare their Lordships unnecessary bother in future, perhaps we could do away with a lot of court cases by simply having referendums on major cases. Thumbs up you live, thumbs down you die.
‘Democracy for Dummies” – maybe it’s time for another title in the Dummies series.
Johannes Manjrekar is a Faculty Member at Maharaja Sayajirao University of Baroda, Microbiology Department and Biotechnology Centre.