In a gallant effort, Congress MP Shashi Tharoor brought in a bill to decriminalise homosexuality last week. It is rare to see the sort of promptness that was evident, for a change, in our representatives—the bill was promptly rejected, without any discussion.
In a democracy, all matters should be up for debate, but not all matters should be up for vote. Our legislators, of course, seem to hold the precise opposite view—certain matters aren’t even worthy of debate and all matters are up for vote—even matters that concern the most personal of rights and liberties of a significant part of our population. The truth in certain matters, it appears, is so eminently evident that it shouldn’t even be up for discussion in the largest democracy in the world.
The principles that bind governments, preventing them from doing what they will, and set limits on what legislators can decide, are the principles of constitutionalism and individual rights. These principles were best articulated by the libertarian theorist Robert Nozick:
“Individuals have rights, and there are things no person or group may do to them (without violating their rights).”
The legislature should not have an unfettered power to deny rights—that is why there are procedural constraints that ensure that all matters go through a due process; and institutional constraints that check the abuse of power by the legislature (or, for that matter, by the other branches of the government).
The primary institutional constraint over the legislative branch is our judicial system. On many occasions in the past, the judiciary has asserted its authority and has emerged as a defender of the constitution and individual rights. Judges are motivated by a very different set of considerations than the legislature (not by vote banks or elections, for one), and it is this is what allows them, often times, to give a greater consideration to justice and check the excesses of the legislature.
It was this dispassionate consideration for justice that allowed the High Court to arrive at its monumental ruling in 2008—a decision that was commendable not merely for its boldness, but that it was firmly grounded in constitutional morality and principles. Section 377, the court had held, violated the right to Life, Liberty, Privacy and Dignity. It drew a distinction between public and constitutional morality. As A P Shah, who had headed the 2009 HC Bench later remarked, “Why should someone’s fundamental life choices be shaped by archaic notions of public morality?”
That is the fundamental task of the judiciary in such matters—to examine the validity of laws through the framework of the constitution. Its primary commitment is not to public opinion or public morality, but to constitutional principles.
Justice requires that we be blind to religious and cultural prejudices. This is not to say that culture and religion do not matter; but that these are not the only, or even the prime considerations in matters of justice. Justice, before anything else, is a matter of principle, and our primary commitment needs to be to the principle of liberty—the one value that allows for the peaceful expression of all others.
A variety of cultural values can find expression through liberty. But a culture that restricts liberty would necessarily tread along a certain path–favouring a particular set of values while restricting the peaceful expression of others. Justice lies not in maintaining a historical narrative or upholding certain cultural values; it lies in treating everyone justly—in extending the same rights and protection of law to everyone.
The 2013 Supreme Court Judgement, in stark contrast to the High Court Judgement, saw nothing constitutionally untenable in a law that criminalises sexual acts among consenting adults; a section that in effect discriminates against a significant chunk of the population and has been used as a tool for harassment. The court noted that ‘only a minuscule fraction’ of people constituted LGBTQ (which of course, is a blatantly wrong assessment, but that is beside the point), and that there had only been ’200 convictions in the law’s 150 year old history.’ Should such matters, even if they are true, have any bearings on considerations of justice? Is justice a matter of numbers? Is a law any less unjust merely because it hasn’t been fully exploited in exploiting people?
While noting no constitutional infirmities in the matter, the judiciary left it to our representatives to amend the law. And how our representatives dealt with the matter was evident with what transpired last week. It is true that Private member bills are rarely passed into law, or even taken up for consideration; but the manner in which Tharoor’s bill was met with derision, sneers and even sexual innuendos by the members of our esteemed parliament is disquieting to say the least.
The way forward seems uncertain—Tharoor was optimistic and willing to ‘try again’ in an interview he gave recently. A group of lawyers has submitted a proposal to the Delhi government to tackle the issue by issuing a clarificatory amendment ‘saying consenting same-sex intercourse between adults does not constitute carnal intercourse against the order of nature.’
The road ahead is fraught with legal challenges, let alone cultural ones. In this climate, what is certainly heartening is that there are liberal voices that have supported amending 377—the Congress has come out in support and even certain voices in the BJP have expressed that the matter needs to be reconsidered. These voices need to be applauded each step of the way, on what now appears to be a very long journey.
This article was first published on Spontaneous Order.