The court needs to reaffirm its central counter-majoritarian purpose in a liberal democracy. It must stop voting and stick to adjudicating
In Koushal v Naz, a two-judge bench of the Supreme Court overturned a 2009 decision of the Delhi High Court decriminalising sodomy by Section 377 of the Indian Penal Code. In doing so, it has recriminalised every Indian who has ever had oral or anal sex (irrespective of the gender of the person they had it with, and irrespective of consent).
Koushal represents two structural failures of the Supreme Court, at least one of which has sometimes been commended as a great success by some commentators. The first structural failure is the near-total abandonment by the Supreme Court of the principle of separation of powers, and its transformation into a populist, legislative court of governance. The second failure, one that flows from the first one, is the court’s routine dereliction of its duty to give reasons for its decisions. Let me explain both of these failures in turn, and how they have facilitated the decision in Koushal.
Playing to the gallery
In Koushal, the court could barely conceal its disdain when it described lesbians, gays, bisexuals and transgendered people as “a minuscule fraction of the country’s population” with “so-called rights.” This may seem bizarre to those of us who believe that one of the primary functions of unelected constitutional courts is the protection of vulnerable minorities from majoritarian excesses. Clearly, a “minuscule” minority should be of particular concern to a counter-majoritarian institution.
The court’s position is easier to fathom if understood in the context of its history following the Emergency imposed by Indira Gandhi. During the Emergency, the court agreed to the suspension of Habeas Corpus, a fundamental right against the arbitrary detention of citizens by the state. After the Emergency, the court started to reinvent itself to gain institutional legitimacy. This reinvention was, however, not in terms of pitting itself against the representative organs of the state, but by competing with these organs. The process, which began in the 1980s, only intensified in the 1990s which saw an end to one-party-dominance in politics. Coalition politics and weak legislatures remain a feature of our politics to this day. The court, in the meantime, became a populist institution of governance — stepping in to fill the void left by an increasingly dysfunctional Parliament. In a country where the majority of the population suffers significant disadvantage, majoritarianism can often become aligned with “progressive” politics. A majoritarian court continued to play to the gallery and wreaked havoc on the principle of separation of powers.
It should not surprise us that this majoritarian populist institution found it impossible to respect the “so-called” rights of a “minuscule” minority. Of course, our courts have sometimes stood up for minority rights. So has Parliament. What matters here is the self-image the court has been allowed to cultivate, which overwhelmingly determines its institutional course of action. This self-image is not that of a counter-majoritarian institution correcting the excesses of democracy, but one that is acutely conscious of the reception of its judgments by the people (such consciousness extends only to the outcome of a case, not its reasoning). Under this model, if representative bodies did a good job of representing the people, the courts would be unnecessary. The court is a political actor, which wants to be judged as politicians are judged. Its legitimacy rests on popular acceptance, not constitutional mandate.
This political context explains, rather than complicates, how the bench in Koushal suddenly discovers the joys of separation of powers. The court first extends the presumption of constitutionality to a pre-constitutional colonial law by suggesting that the democratic Parliament has “adopted” it by failing to amend it. It specifically mentions a 2013 legislation amending the law dealing with sexual assault as proof that “the legislature has chosen not to amend the law or revisit it,” ignoring completely the fact that there was no need for Parliament to do so after the Delhi High Court had read down Section 377 to exclude private sex between consenting adults from its ambit. That the 2013 legislation was enacted after the hearing in Koushal was concluded, thereby affording no opportunity to the parties to challenge its use by the court, is another matter.
This ostensible deference to democratic will is an opportunistic fig leaf of a populist court with little more than contempt for the representative institutions of democracy. In an act of concluding magnanimity to the legislature, the final sentence of the judgment grants it permission to consider the “desirability and propriety of deleting section 377.” The fact that it thought such a clarification was necessary tells us that this is not a court deferential to the legislature — this is a court with unhesitant pretensions of being the legislature.
Duty to give reasons
A key feature of adjudication is the public articulation of reasons after hearing principled submissions by the parties involved, on the basis of which a judge arrives at her decisions. In this respect, adjudication differs from voting, which allows a decision-maker to decide without having to articulate her reasons (or even without having any reason). The following factual inaccuracies, unsupported conclusions, and omissions in the judgment are particularly noteworthy in this regard:
a. The court records the government of India’s position on the case as one defending the criminal provision under review. This, despite the fact that the government had chosen not to appeal the High Court ruling, and its top lawyer — the Attorney General of India — had clearly told the bench that the government supported the High Court’s decriminalisation of adult consensual sex. Remarkably, the court describes the Attorney General as “amicus.” This suggestion in the judgment that the Attorney General was simply a friend of the court appearing in his personal capacity forced him to publicly clarify that he had very much represented the government’s official position in the case.
b. The court found itself able to ignore the voluminous material placed before it to conclude that there was no evidence to show that “homosexuals, gays, etc., are being subjected to discriminatory treatment either by State or its agencies or the society.”
c. Long-standing precedent is clear that Article 14 (right to equality) of the Constitution requires every legal classification to be based on an intelligible differentia and have a rational nexus with a legitimate state objective. The court, while repulsing the Article 14 challenge, finds it sufficient to say that the classification between “[t]hose who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature” is intelligible. It wastes no ink trying to identify the state objective being pursued, or asking whether the measure has any nexus with that objective.
d. Even this half-hearted attempt to give reasons is not made when rejecting the Article 15 (right against discrimination) challenge. No reasons whatsoever are provided.
e. The way the court deals with the challenge under Article 21 (the right to life and liberty) is even more curious. After devoting several paragraphs quoting established precedents on Article 21, the court makes no specific finding with respect to Article 21! After these block quotations, the court moves seamlessly to simply assert that the use of Section 377 to “perpetrate harassment, blackmail and torture” is “neither mandated by the section nor condoned by it.” How the preceding six paragraphs setting out the established doctrine under Article 21 help the Court reach this conclusion, and how this conclusion repels the Article 21 challenge, is anybody’s guess.
The hearing in the case concluded in March 2012, and the judgment was delivered in December 2013, the day before the senior judge on the bench was due to retire. A cavalier attitude to its duty to give reasoned judgments is not uncommon in the court’s jurisprudence. Although unfortunate, this is hardly surprising. The pressure of its workload also results in the constitutional requirement that any constitutional case involving a substantial question of law must be heard by at least five judges (Article 145) being routinely ignored (including in Koushal). Only 0.12 per cent of all cases disposed of by the court between 2005 and 2009 were decided by a bench of five judges or more.
Given such volume, what is surprising is the respectable number of cases where our judges do manage to give reasoned judgments. The fragmentation of the court into small benches deciding thousands of cases every year had led to a situation where even a conscientious judge would find it next to impossible to respect stare decisis, the duty of the court to apply previous decisions (i.e. precedents). For less conscientious judges, the opportunity to cherry-pick precedents is limitless.
Furthermore, the academy simply cannot keep up with the judicial assembly line. Academic criticism is the real check on judicial power in a democracy. In the Indian context, academics are forced to focus on the outcome of the cases alone — only a handful of cases (like Koushal) that really stand out receive proper academic attention.
The outrage that this judgment has inspired among politicians, activists and academics presents an opportunity to rethink the fundamental structural weaknesses of the Indian Supreme Court. Most of the recent debate on the reform of the court has focussed on changing the appointment system of judges (currently, the court appoints its own judges) and dealing with the lack of diversity in the judiciary. While who gets to be a judge is an important issue, unless these structural infirmities are addressed, even Herculean judges cannot change the situation very much. The court needs to reaffirm its central counter-majoritarian purpose in a liberal democracy. It must do less and do it well. It must stop voting and stick to adjudicating.
(Tarunabh Khaitan is the Hackney Fellow in Law, Wadham College, Oxford.)