The wrongness of deference

In upholding the constitutionality of Section 377 of the IPC the Supreme Court has made a judgment that is value-laden, based on a particular worldview that many disagree with

December 16, 2013 01:01 am | Updated December 04, 2021 11:37 pm IST

The Supreme Court, in its judgment in Suresh Kumar Koushal and another v. NAZ Foundation and others (Civil Appeal No. 10972 of 2013) upholding the constitutionality of Section 377 of the Indian Penal Code, has been widely perceived to have espoused a principle of judicial deference to Parliament. This view has forced a shift of focus amongst gay activists and right-thinking citizens to the legislature, in the hope of corrective reform. In deferring to the will of Parliament in a matter that involves testing a statute against the touchstone of the Constitution, the Supreme Court was legally wrong and disingenuous, and seemingly allowed its personal ideological views to determine the interpretation of statutory law. The only silver lining which this otherwise woeful exercise of judicial decision-making provides is an opportunity to reconceptualise the Court in the public imagination, aligning it more closely to the reality of its present functioning rather than its erstwhile glory.

Matter of constitutional law

Three main constitutional questions confronted the Court in this case. First, whether Section 377 which criminalises “carnal intercourse against the order of nature” is discriminatory, thereby violating Article 14 of the Constitution; second, whether it violates the right of LGBT people to live with dignity, protected under Article 21 of the Constitution; third, whether criminalising private consensual acts between adults violates their right to privacy, also protected under Article 21 of the Constitution.

The Court summarily dismissed the first constitutional challenge on the ground that those who indulge in carnal intercourse in the order of nature and against the order of nature constitute different classes. This is a wholly insufficient and unreasoned justification. Instead, the key question should have been whether such classification is reasonable, an issue that the Court did not address. Using an analogy, by the Court’s logic, because men and women constitute different classes it is permissible to say that only men will be allowed to be enrolled as advocates who can practise before the Supreme Court, and not women. Such logic is as much absurd as it is incredible, coming from the Supreme Court of India — though not entirely surprising for those who closely follow the Court’s judgments.

Again, with regard to the argument based on dignity of LGBT people under Article 21, the Court holds that the purported harassment faced on account of misuse of this provision by police officials is neither mandated nor condoned by the Section itself. This is sophistry as it conveniently ignores a central facet of leading a life with dignity, that is, not being criminalised for being oneself. As far as privacy is concerned, the Court’s treatment is frankly unintelligible. It merely cites a key Supreme Court precedent laying down a right to privacy but does not even attempt to apply the law to the facts of the case.

A combination of inadequate justification, sophistry and a woeful non-application of mind makes the unfortunate conclusion inescapable that the judgment ultimately rests on a deep-seated prejudice shared by the two judges that has no place in a legal judgment. For a proper legal adjudication of the issues raised, it is imperative that a review petition is filed and taken up by the Court speedily.

Not a case for deference

Despite the questions in this case being squarely matters of constitutional law, an extraordinarily high degree of deference is shown by the Court to Parliament. This takes two forms — presuming constitutionality of the statute and suggesting that reform of the provision is the prerogative of Parliament, one that it has chosen not to exercise thus far. The former is unproblematic, an established principle of constitutional interpretation. The latter, however, is nothing short of judicial abdication of constitutional duty in the guise of deference. Deference as a principle refers to the attaching of different weights by courts to decisions of elected branches of government on grounds of legitimacy and competence. Widely used in common law jurisdictions, cases where courts defer to the government usually involve questions of government policy, or highly technical matters where the Court recognises its own limitations.

Effective legal remedy

Scarcely has it ever been accepted in a case concerning the fundamental rights of citizens. In fact, the European Court of Human Rights in Smith and Grady, a case pertaining to the United Kingdom’s policy of discharge of homosexuals in the armed forces, not only struck down the policy but found the extent of deference shown by the domestic courts to be violative of the legal requirement of providing an “effective legal remedy” under Article 13 of the European Convention of Human Rights. At the same time, never has the fact of non-reform of a law by Parliament been a reason to defer to it. This is natural since the converse would lead to an absurd proposition where the mere existence of a law creates reason to defer to Parliament thereby rendering futile the raison d’être of a Court as a counter-majoritarian institution.

The Supreme Court, by referring to the fact that Parliament has chosen not to reform the law as a factor which must “guide [their] understanding of character, scope, ambit and import” of the provisions that squarely raise purported violations of fundamental rights, has used deference to shy away from performing its own constitutional duty.

Further, such usage is entirely disingenuous. The Court’s parting words in this case, “[n]otwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 of the IPC from the statute book”, are remarkable. Though in substance a platitude, given that Parliament can legislate on whichever issue it desires without any necessity for a judicial imprimatur, it is phrased as an extraordinary concession on the part of an all-powerful Court as if Parliament were its delegate. It hardly reflects the tone of a genuinely deferential Court.

Re-engaging with the Court

This judgment has understandably caused great dismay amongst LGBT activists and advocacy groups that use judicial intervention to redress grievances against minorities of all stripes in India. Though such dismay is entirely justifiable, the extent of outpouring of rage and grief stems in some measure from the belief that the Supreme Court of India, as a respected judicial institution, would certainly rule in their favour.

Such a view, that the Court will always ‘do the right thing’, is unarguably a testament to the Court itself and its long history of rectitude and progressiveness. But over the last few years such a view has been largely based on a mythical view of the Supreme Court as an apolitical institution, acting when the recalcitrant political class fails to, saying the things that we want to hear. The widespread public support for the Court has thus been built on a combination of support for the result the Court reaches, as well as the nostalgia associated with the heady early days of public interest litigation, enshrined today in popular perception of the Court in mainstream media.

This judgment must lead to deep introspection with regard to this perception. For many years, those who follow the Court have, often privately, rued the abject deterioration of the quality of its judgments. But when a judgment so deficient in its reasoning and so sloppily formulated in a case of such magnitude is delivered, it must serve as a call to arms for all those in a position to critically engage with judicial decisions. Public criticism is the only real accountability device for an otherwise unaccountable institution. It is imperative that the Court is taken to task, not only for this decision, but for all its other decisions whose results we might agree with as citizens, but whose reasoning is inexplicable at best and absurd at worst, using methods that violate every canon of judicial discipline.

At the same time, it is equally imperative to see the Supreme Court of India, not on the basis of what it was meant to be by the framers of the Constitution or what it was in its early history, but what it has become today: an overtly political institution.

On an everyday basis, the Court adjudicates legal and moral questions that affect the lives of millions of people, it makes value judgments, uses its discretion to fill gaps in the law, makes choices in preferring one argument over another. For too long we have refrained from asking the basis on which the Court comes to these conclusions, sanguine in the antiquated and artificial view of the Court comprising a few good, apolitical men. In upholding the constitutionality of Section 377 of the IPC, the Court has made a judgment that is value-laden and based on a particular worldview that many disagree with.

By doing so, it has unarguably exercised a political choice. If it is legitimate for the Court to make such a choice, it is even more legitimate for citizens to ask: who will judge our judges? It is high time the Supreme Court reaps what it sows.

(Arghya Sengupta is founder and research director of the Vidhi Centre for Legal Policy, a New Delhi-based legal think-tank)

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