The true ‘unnatural crime’: abdicating the constitutional duty of judicial review

On January 31, 2017, the Home Office in the UK posthumously pardoned more than 50,000 gay and bisexual men, including the literary genius Oscar Wilde under the “Turing Law”. Although not without it critics, this is a powerful symbol of seeking to redress injustice committed against gay men and another step in recognising the rights of those of alternative sexualities.  These men were convicted under British statutes that criminalised same sex acts between consenting adults.

Photo: Tim Evanson. Source: Wikimedia.

Photo: Tim Evanson. Source: Wikimedia.

Colonial vestiges

These laws have replicas across the world – as the British Empire grew, it transplanted its own laws that mirrored prevailing morality, criminalising homosexuality in several of its former colonies.

In India, a similar vestige of colonialism exists. The Indian Penal Code drafted by Cambridge graduate Lord Macaulay contains Section 377, which criminalises same sex acts.  Upon Independence, India adopted a Constitution that is widely recognised as liberal and progressive, which guarantees equality to all citizens regardless of faith, caste or sex.  The Constitution empowered the judiciary with wide powers of judicial review, and like in most constitutional democracies, the judiciary is the final arbiter of the constitutionality of any legislative or executive action. The judiciary has for the most part fulfilled the faith vested in it by the framers of the constitution by staying true to the Constitution.

Appeals to the judiciary

It is therefore to the judiciary that members of the LGBT community took their hopes to strike down the Section 377. The Delhi High Court in a well-reasoned, well-crafted decision, “read down” Section 377 stating that the criminalisation of same sex relationships counted against the right of citizens to a life with dignity, liberty and privacy and to be treated equally and not be discriminated against on the grounds of sex (which the Delhi High Court interpreted to include sexuality as well).

The Indian government at the time supported the decision and chose not to appeal it. A private individual appealed to the Supreme Court in 2013, in what became known as the Koushal case, obtaining the reversion of the decision, in effect (re)criminalisling even consensual same-sex relationships. This judgement has deeper implications not only for the movement for LGBT equality, but also for the role of each of the branches of government in preserving constitutional values.

Recriminalising and creating unapprehended criminals

Among the arguments made to the Supreme Court to decriminalise homosexuality was that that the existence of the offence in the statute book persecuted an entire class of persons – the LGBT community. In response, the Supreme Court stated that it was certain acts that were criminalised, rather than individuals or a class of people.

This is a tautological argument – individuals that commit acts that are penalised for acts fundamental to their existence. The Supreme Court also stated that if the acts were consensual, the individuals would not be reported and should therefore not fear prosecution or punishment. A former High Court judge, Justice Leila Seth, writing in the New York Review of Books laid bare the ramifications of this line of reasoning – she said the judgement implied that her bisexual son, celebrated poet and writer (and Oxonian) Vikram Seth would be an “unapprehended felon” in the country of his birth. Vikram Seth himself made a powerful statement by appearing on the cover of an Indian magazine as a suspected felon, holding up a slate with the words “Not A Criminal”.

This reasoning of the Supreme Court has been brought into question by another judgement on the rights of transgender persons, pronounced within months of the original decision – which states that every individual has the right to choose their own gender. The judgement stated that transgender individuals are entitled to the equal protection under the law and to all benefits provided by the state, including affirmative action in educational institutions and government jobs and separate public toilets. It is rather ironic then, that this judgement accords benefits to transgender individuals and protects them against discrimination, while an earlier judgment continues to criminalise them on account of a colonial-era statute.

Judicial abdication in countering majoritarianism

The Supreme Court in the Koushal case also said that the LGBT community was a “minuscule” minority, and stated that the Parliament could consider striking off the provision or amending it. Does being a minuscule minority preclude the protection of constitutional rights? Is the court right in referring the matter to Parliament? After all, perhaps a significant change like this should happen through the political process, through the arm of the government that represents the will of the people. Would a change effected through representative democracy be more enduring?

These questions go to the root of the notions of liberty and the manner in which the state and its institutional arrangements must preserve it; and are especially apposite in this aged of vexed politics.

Philosophers like Mill and Issaih Berlin tell us the liberty is about freedom from domination and freedom to lead a life of ones choosing. States therefore guarantee certain rights to all their citizens. However, governments run the risk of crude majoritarianism and exploitation of the vulnerable and marginalised. This is much more so in matters relating to the rights of the minority where voting by the majority may not the best manner in which to achieve a just outcome. There are multiple ways in which this “tyranny of the majority” may manifest itself, but often the most insidious tends to be in matters of “collective morality” or “righteousness” where the majority may not take into account implications of their decision. If the majority votes to make homosexuality illegal, they believe they are expressing a deeply felt moral principle, but may not understand that this may conflict with the Constitution providing equal rights for all, and that the law enforcement authorities may abuse the LGBT community.

The doctrine of separation of powers therefore vests in the judiciary a special character, as a counter-majoritarian institution, appoints it as the so-called “least dangerous branch” of government. It may be tempting to dismiss courts as elitist, to scorn at their un-elected power that does not respect the will of the people expressed through an election or referendum  (as we saw happen in the UK after the Supreme Court decision on Brexit). However, judicial review has the purpose of protecting the right of non-domination of individuals and classes of persons; as well as of upholding constitutional morality, when it conflicts with majoritarian morality. This is an obligation courts across the world must continue to abide by, even as the executive and legislature seek to impose the majoritarian will, often in defiance of their constitutional values. It is therefore the duty of courts to uphold rights of minorities, even and perhaps especially, when the political process and other branches of government may not.

In India, following the Koushal ruling, two attempts were made in Parliament to amend the law through the political process, which were defeated by a brute majority. This makes the abdication by the Supreme Court even more tragic.

What next?

The matter is back before the Supreme Court, where a fresh petition on the issue is being considered. Can one draw hope from developments in parts of the world  to expand the rights of LGBT persons- from marriage equality and  protection against discrimination to posthumous pardons?  Could the Court respond to a “boomerang“ effect? It is perhaps best not to be complacent about this, given also the counter-currents of more repression on LGBT rights across the world – in Russia, most of Africa and the Middle East?

A final question that the case raises is of what should be criminalised. And to answer, it is perhaps apt to look to the silver-penned Oxonian poet, Vikram Seth’s lyrical response to this:

Through love’s great power to be made whole
In mind and body, heart and soul
Through freedom to find joy, or be
By dint of joy itself set free
In love and in companionhood:
This is the true and natural good.

To undo justice, and to seek
To quash the rights that guard the weak—
To sneer at love, and wrench apart
The bonds of body, mind and heart
With specious reason and no rhyme:
This is the true unnatural crime.

Richa Roy is currently studying for a Master of Public Policy at the Blavatnik School of Government. She is has practiced banking, finance regulation and anti-corruption law and been at the forefront of legislative and regulatory reform in India in these areas.

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