(PTI Photo/Kamal Kishore)  (PTI9_6_2018_000133B)
(PTI Photo/Kamal Kishore) (PTI9_6_2018_000133B)

Last Thursday, a Constitution Bench of the Supreme Court modified Section 377 of the Indian Penal Code and decriminalised homosexuality involving consensual adults. It was a welcome decision that involved modifying laws to keep pace with the shifting moral codes of society. More to the point, it conferred a certain dignity of life to individuals who had been put on the wrong side of law – and therefore potentially subject to harassment – for exercising choices that were deemed ‘unnatural’ by an earlier generation of lawmakers.

Yet, before we go gush-gush at the wisdom and far-sightedness of the Supreme Court, it would be instructive to look at some of the more awkward ramifications of an unexceptionable judgment.

It would be best to start with a reading of a two-paragraph dissenting judgment by Judge Clarence Thomas in the Lawrence vs Texas case in 2003. That case too involved gay rights and was concerned with the prosecution of two individuals involved in gay sex. Like India’s Supreme Court, Judge Thomas noted that the existing Texas laws against homosexuality is “uncommonly silly”: “If I were a member of the Texas legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through non-commercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.”

However, unlike the majority judgment that deemed strictures on adult homosexuality to be in violation of the 14th Amendment to the US Constitution, Thomas looked at the law as it existed. He argued that his job as a judge of the Supreme Court was not to empower the wronged but to “decide cases agreeably to the Constitution and laws of the United States.” In carrying out his responsibility, he confessed that “I can find (neither in the Bill of Rights, nor any other part of the Constitution) a general right of privacy… or, as the Court terms it today, the ‘liberty of the person both in its spatial and more transcendent dimensions’”.

Justice Thomas was making two substantial points. First, he felt that the judiciary’s job is to focus on the law as it exists. The courts, he felt, could not – on the plea of either common sense or fairness – use the philosophical underpinnings of the Constitution to decide a case. Secondly, the Judge believed that repealing a “silly” and even obnoxious law was the job of the legislature and not the courts.

Judge Clarence Thomas has never been a favourite of the small number of determined activists who believe that the judiciary must not only interpret the law, it must also make it. But that is at the heart of the Section 377 case. Decriminalising homosexuality was long overdue. But the responsibility for modifying the relevant section of the IPC was the job of the legislature. Indeed, that is why MPs and MLAs are also described as law-makers. In this case, the legislature abdicated its responsibility and the judiciary over-fulfilled its functions, even if was for a good cause.

Last year, the Lok Sabha did witness a Private Member’s Bill to remove legal prohibitions on homosexuality. It was, like most Private Member’s Bills, only casually considered and then voted down. In other words, the only occasion the legislature debated the subject, the political wisdom was in favour of retaining Section 377. The argument that this was a relic of Victorian England – and that the UK has subsequently moved on – didn’t seem to cut ice with those MPs who applied their minds to the subject.

Assuming that the MPs who preferred the status quo were guided by prejudice, were their views reflective of the social consensus? If they were truly reflective of the public mood, then the role of the courts will have to be seen in a new light. The Constitution was crafted as a political document. Will we now recast it as a jurisprudence tract?

In his judgment (and I am quoting from an extract attributed to LiveLaw), Chief Justice Dipak Mishra said: “Section 377 is arbitrary. The LGBT community possesses rights like others. Majoritarian views and popular morality cannot dictate constitutional rights. We have to vanquish prejudice, embrace inclusion and ensure equal rights.” These are lofty sentiments that will no doubt find an echo in many quarters. However, there are some conceptual complications that need addressing.

The Constitution of India or, for that matter, the laws that operate in the Republic of India weren’t gifted to us by some divine revelation. They are all man made. The Constitution of India in fact starts with “We the people of India”. This implies that sovereignty vests with the people and is expressed by the representatives of the people, democratically elected on the strength of the adult franchise.

The basis of democracy is the rule of the majority – although there is no prescriptive guideline as to what shape or form the majority must assume. The principle of inclusiveness, however, accords rights and dignity to minorities – whether they be religious, linguistic, ethnic, political or even lifestyle. More to the point, what the Chief Justice calls “popular morality” – used in the widest sense – has been the guiding force of democracy and is at the heart of the Constitution. Yet, the judgment says “Majoritarian views and popular morality cannot dictate constitutional rights.” Since majority views are the fountainhead of constitutional rights, this assertion can well be interpreted as meaning that judicial pronouncements are above the norms of democracy. I don’t know if this was indeed what the Supreme Court meant but it certainly comes across as such.

Maybe it is to avoid getting caught up in such theoretical muddles that the law makers should exercise their primary responsibility of making and changing laws, leaving the courts to get along with their primary job of resolving conflicts in law. This may sound terribly old fashioned but it could avoid needless battles in future.

Swapan Dasgupta is a senior journalist and Member of Parliament, being a presidential nominee to the Rajya Sabha.

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