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THE COURTLY WAY

- It must be asked if equality is possible here

The Supreme Court’s decision to uphold a law criminalizing unnatural sex in Koushal versus Naz has justly provoked outrage. Apart from criminalizing homosexual activity, the decision is startling for eschewing all attempts at reasoning. It illustrates, more than previous decisions have managed, the nature of judicial authority in India. The court’s principal assertion was that “those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute different classes; and the people falling in the latter category cannot claim that Section 377 suffers from the vice of arbitrariness and irrational classification”. This is a bizarre claim because it lacks an inquiry into whether or not the differentia — between intercourse in the ordinary course and against the order of nature — is an intelligible one. Imagine an alternate scenario. The State enacts a law that all blue-eyed children are ineligible for primary education. Under the court’s reasoning, this law does not suffer from arbitrariness because blue-eyed children can be distinguished from other children. But if this is the standard of review to be adopted, what protection is offered at all? Most government actions will distinguish between some individuals and others and some groups and others. The question is never whether differential treatment adopts a particular criterion; it is whether that criterion is a meaningful one backed by reasons in its support.

To make matters worse, the court suggested that rights depend on the numerical strength of the persons or group claiming the right: “While reading down Section 377 IPC, the Division Bench of the High Court overlooked that a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years less than 200 persons have been prosecuted (as per the reported orders) for committing offence under Section 377 IPC and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.” Rights attempt to guarantee the political and moral independence of each individual, regardless of whether that individual is part of a majority or minority. Their entire point is that they are not subject to contingent matters, such as the numerical strength of a belief held, because they rest on notions of value that are not held contingently. The court’s claim has profound implications for what counts as legitimate State action. Under the reasoning embraced, a law declaring that the government is allowed to choose 200 people a year whose phone it can tap for any reason whatsoever is valid, because 200 is “a miniscule fraction of the country’s population”.

The court offers two further reasons in support of its decision. First, it argues that the high court, “in its anxiety to protect the so-called rights of LGBT persons... extensively relied upon the judgments of other jurisdictions” and that such judgments “cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian legislature”. This claim is a trivial one. No one suggests that foreign decisions should be “applied blindfolded”. The question, which the court never asks, is whether those decisions offer reasons that might better justify the court’s eventual conclusions. Their significance lies in their potential content, not in their unambiguous pedigree. They are, what H.L.A. Hart would have called, a permissive source of law. Second, the court suggests that the best resolution of the case at hand lies within the legislative domain — it is not for courts to change laws. But this claim cannot be made by courts where a Constitution vests them with the power of reviewing laws, and they routinely exercise that power. It is no small irony that one of the few issues on which a court is actually mandated to act is one in which it refuses responsibility.

Notice how this attempt to shift responsibility to the legislature makes judicial review a matter of judicial convenience. In doing so, it illustrates how the court has abandoned all traditional constraints upon its institutional role. The legitimacy of courts rests in guaranteeing processes that offer reasons for accepting outcomes. This aspiration is sought to be achieved in several ways, such as the importance of giving parties a fair hearing, the necessity for adequate counsel, and the justification for a decision through a certain kind of reasoning. Legal reasoning is a complex enterprise, but its components are familiar — the use of precedent to ensure fairness across similar case scenarios and to enable predictability in legal norms, forms of interpretation that display a certain degree of faith with legal materials, and so forth. This form of reasoning is quite distinct from what we might call pure politics, and indeed gives courts the special role that they can claim to have in a democracy. Legitimacy takes a different form when compared with legislatures. As the judge, Aharon Barak, once put it, “Judges are not representatives of the people and it would be a tragedy if they became so.”

Can courts serve as forums of principle and provide legitimacy to political outcomes which mere representation cannot do? This question is largely an empirical one, and the global pattern of courts might suggest that we have been far too sanguine about their capacities. Regardless of whether this is true, Koushal vs Naz reveals that the Supreme Court now does not even find it necessary to give the impression that it serves this institutional role. For years, its power has been expanded by the decline of India’s representative institutions and its ability to position itself as an overarching protective force. Its remarkable innovation in Indian political life has been its substitution of politics.

In such a scenario, one wonders whether judicial verdicts can hold social legitimacy. People might accept decisions they disagree with if they feel those decisions are the outcome of fair processes and legitimate reasons. But there is no way to rationalize decisions such as Koushal v. Naz except through the lens of either power or prejudice. Above all else, the decision signals that equality in contemporary India has become a meaningless ideal — proclaimed by all but guaranteed by none. Equality aims to articulate an anonymity principle, that people will be judged regardless of their particular circumstance, and demands that situations in which the State distinguishes one person from another must be supported by reasons that are justifiable to all; those included within and those excluded by the distinction adopted. Equality requires that if one person is treated differently from another, we must be able to explain why it is so. It is in this way that it aims to be the antithesis of arbitrariness, and guarantee moral and political independence. But it is easy to see that this ideal is now comprised across the board, from reservation policies which can offer no reason for why OBCs are treated identically with SC/STs to personal laws which assert that women have fewer rights than men or that as a Muslim I must accept the personal law board speaking on my behalf even though I have not elected it to power. Koushal v. Naz is only the latest, but certainly the most shameful, instance of this. Can anyone now offer reasons for why the LGBT community should accept the coercive power of a State as legitimate when it does not treat them as free and moral individuals?