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Notes on Section 377 [Decriminalization of homosexuality]

This post is the reproduction of the remarks I had prepared for the meeting of the NUALS Constitutional Law Discussion Group held on 13/09/2018 regarding the judgement of the court in Navtej Singh Johar v. Union of India. For the references, please check link here.

Navtej Singh Johar v. Union of India

Preliminary Notes on the Judgement from a cursory reading

By Ananth Krishna Subbulakshmy

Bench: Dipak Misra, CJI, A.M. Khanwilkar J., R.F. Nariman, J., D.Y. Chandrachud J., Indu Malhotra J.,

Opinions by : 1. Dipak Misra, joined by Khanwilkar; 2. R.F. Nariman; 3. D.Y. Chandrachud; 4. Indu Malhotra

Concerning: Section 377 of the IPC, Article s 14, 19 & 21 of the Constitution of India


Held: Section 377, as far as it penalizes consensual acts between two adults is unconstitutional as it fails under Article 14, 19 and 21.

Text of prepared remarks

Hello, and good evening everyone!

We are here to discuss the Judgement of the Supreme Court of India in the case of Navtej Johar v. Union of India delivered on 06/09/2018. The court in its decision read down section 377 of the Indian Penal Code, 1860 decriminalizing homosexual activities. I am not attempting to phrase a comprehensive criticism of the judgement here, but merely those things that I noted down as I read parts of the Judgement. As such, do not take this to be my final word on the topic. Please note that this is not reflective of the views of anyone else or that of this group. I am speaking here right now as an individual. With those provisos, let me start.

Generally,

The Navtej Johar Judgement (‘Judgement’ hereinafter) of the court is extremely bloated, verbose and is filled to the brim with unnecessary literary and case references. This follows in line with the earlier Judgements of the Supreme Court and the High Courts since the 1990s. For example, the NJAC Judgement in 2015 was 1,042 pages and the Puttuswamy Judgement which was 547 pages long. The median length of a US Supreme Court decision in 2010 was around 8,000 words while the Navtej Johar decision is around 1,12,000 words.  Some unfortunate soul once said that “Brevity is the soul of wit”. The Supreme Court, if that proverb is to be believed, do not have their wits about them. This trend among the Constitutional Courts in our country is an unfortunate one, which reflects a new normal where buzzwords and fancy lingo has replaced the proper discussion and debate of Constitutional and Legal issues in Judgements. The Judgements are not meant to provoke thought and incite discussion among the public, but the Judges of the court engaging in one upmanship or showmanship in an ‘activist’ frenzy. The Judgements of the court, with its verbosity builds a wall around itself and the masses of the republic, who do not have an advanced understanding of English that is necessary to comprehend the diatribes of the venerable Judges of the court. People like us, law students who have learnt English from say Kindergarten, and whose profession demands the proper use of the language have to jump through hoops to grasp the judgement. Imagine how hard it would be for a 19 year old youth who only knows simple english, but wants to know and understand the court’s decision. The elitism that has dominated the judiciary seems to have only tightened its grip in the last 20 years, unfortunately.

Literary references

The Judgement of the court is littered with references to various literary greats, from Oscar Wilde to Shakespeare to Goethe. Do these references serve any purpose? I doubt it does. A literary reference or two would have added flair to the judgement, but it seems to me that the references only bloat and add more blather to the Judgement.

‘Transformative Constitutionalism’

One of the other features of this Judgement is the numerous references to ‘transformative constitutionalism’, a concept expounded in ‘Transformative Constitutionalism: Comparing the apex courts of Brazil, South Africa and India’ edited by Oscar Vilhena, Upendra Baxi and Frans Viljoen. The first reference by the Supreme Court of India to ‘Transformative Constitutionalism’ appears to be in an 2017 Judgement by Justice A.K. Sikri.

This reference in 2017 combines with the 24 references to Transformative Constitutionalism in the Johar Judgement, makes it quite clear that the court consists purely of purposivists, or ‘living constitutionalists’, which of course a textualist would have known for long. I suspect this references by CJI Misra and Justice Chandrachud would have an effect on the much anticipated Sabarimala Judgement.

‘Constitutional Morality’

Another reference in the Johar Judgement is to ‘Constitutional Morality’, a term whose use in the context in India can be traced to the Constituent Assembly debates. The Chairman of the Drafting Committee, Dr. B.R. Ambedkar makes a reference to the term on 4th November 1948. The Johar Judgement has 77 references to the term, with Misra emphasizing the superiority of social morality over constitutional morality in his opinion. Justice Nariman in his opinion states that Section 377 reflects ‘Victorian Morality’ which has been replaced by ‘Constitutional Morality’ and therefore ‘there is no reason to continue with [it]’.

Justice Chandrachud holds similarly that:’Therefore, we are inclined to observe that it is constitutional morality, and not mainstream views about sexual morality, which should be the driving factor in determining the validity of Section 377.’ Later he states: ‘Constitutional Morality will supersede any culture and tradition.’ His opinion has numerous references to the  term, and at a glance seems to be the one with the most among the four opinions of the court.


Justice Malhotra, in her short opinion (thank the Devi for that!) makes two references to the term: Firstly, stating that the criminalization of homosexuality will not withstand the test of constitutional morality, and secondly states that the criminalization runs counter to Constitutional Morality and therefore to legitimate social interest.

Regarding the Presumption of Constitutionality

One of the preliminary considerations in any such case is the presumption of constitutionality of the section. [For the benefit of the first years, the presumption of constitutionality is a fundamental conception in a constitutional republic. It is presumed that the statute that is being challenged is Constitutional, unless proven otherwise.] While CJI Misra’s judgement brushes away the presumption by stating that once a prima facie violation is shown (as in this case according to him), then the presumption has no role. What intrigues me is the treatment to this rule of interpretation in the hands of Justice Chandrachud. His argument is rather novel.  He argues that pre-constitutional laws cannot be presumed to be constitutional. His argument is that the presumption of constitutionality is based on the idea that the parliament is aware of its limitations and therefore cannot transgress the limitations imposed in the constitution. But since the IPC was not enacted by the Indian Parliament, and it was not adapted to brought into line with the constitutional scheme under Article 372, such a presumption does not exist. I doubt the wisdom of such a change in the rules of constitutional interpretation – the legitimacy of the Constituent Assembly is derived from the Indian Independence Act of 1947, a legislation of the Parliament of the United Kingdom. The Constitution of India, and therefore the Republic and the powers of the Supreme Court of India derive from this legitimacy.

Conclusion

There is much more that can be written and said about this judgement. I have no doubt that one can write a book on merely this judgement. Sadly, I have neither the time nor patience to do so. I will expand my thoughts on the Judgement as and when I can, so that a more complete picture is available to this who want the same.

The decriminalization of homosexuality has been a long time coming, and I think it was never in doubt after the judgement of the court in Puttuswamy. The consequences of this judgement are immense. It’s ripples will undoubtedly be felt throughout our lifetimes. To me, the immediate concern is whether the philosophical underpinnings reflected in this judgement by CJI Misra and Justice Chandrachud will translate into the Sabarimala Judgement. [The Sabarimala case was heard by the same bench]

Thank you,

Jai Hind.


Special Thanks to Akbar Zaheer.

#September2018 #Speech #PreparedTexts #Homosexuality #Krishna

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