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The decision of the Supreme Court in Suresh Kumar Koushal v. Naz Foundation militates against our core constitutional beliefs and our understanding of fundamental human rights. It undermines the dignity of the LGBT community and trivializes the problems they face. A surprise, then, that it came from a man who has consistently sought to promote a policy of “Constitution above all”.
Justice GS Singhvi retired on Wednesday as the senior-most Judge of our Apex Court. It was the end of a six-year tenure at the Supreme Court, one that was littered with several bold judgments. Rahul Singh, writing in The Mint, calls it a ‘remarkably eventful’ tenure. The 2G verdict was its high watermark, of course; a decision that simultaneously attacks Big Corporate and the Government is not to be sniffed at. Questions were no doubt raised about the propriety of the judiciary entangling itself in what was essentially an executive decision. However it was, in many senses, a trademark Justice Singhvi judgment. It demonstrated a philosophy that valued the protection of fundamental constitutional principles over and above any strict notions of the judiciary’s role. In the 2011 Delhi Jal Board case, for example, he suggested that the judiciary often issues directions for ‘ensuring that the right to equality, right to life and liberty no longer remains illusory’ and that debates regarding the ‘bogey of judicial activism’ often attempt to ‘tire out those who genuinely espouse the cause of the weak and poor’. It demonstrated a philosophy that valued the protection of fundamental constitutional principles. It demonstrated fearlessness and an indifference to political pressure that would also characterize his orders in the NOIDA land matter (and more recently, in the Red Beacons case). Towards the end of the 2G judgment, while justifying the Court’s decision to take up the issue of Spectrum Allocation, Justice Singhvi notes:
“However, when it is clearly demonstrated before the Court that the policy framed by the State or its agency/instrumentality and/or its implementation is contrary to public interest or is violative of the constitutional principles, it is the duty of the Court to exercise its jurisdiction in larger public interest and reject the stock plea of the State that the scope of judicial review should not be exceeded beyond the recognised parameters. When matters like these are brought before the judicial constituent of the State by public spirited citizens, it becomes the duty of the Court to exercise its power in larger public interest and ensure that the institutional integrity is not compromised by those in whom the people have reposed trust and who have taken oath to discharge duties in accordance with the Constitution and the law without fear or favour, affection or ill will and who, as any other citizen, enjoy fundamental rights but is bound to perform.”
It is a philosophy that could so easily have been transposed and applied in Koushal. When the judgment was pronounced at 10.30 AM, one felt that this was a case of restraint versus activism. One felt that Justice Singhvi had probably been conservative in his approach (not in his mindset), and had felt that his hands were tied. That might have been (arguably) wrong and inconsistent with his previous decisions, but perhaps defensible. However, a reading of the judgment shows that while he continues to believe that judicial review is possible and necessary in certain circumstances, he believes that this was not a fit case to exercise that option. Sample Paragraph 33:
“It is, therefore, apposite to say that unless a clear constitutional violation is proved, this Court is not empowered to strike down a law merely by virtue of its falling into disuse or the perception of the society having changed as regards the legitimacy of its purpose and its need.”
His argument, therefore, is not that S. 377 is wholly within the legislature’s purview. His argument, in fact, is that a clear constitutional violation has not been proven.
Later, in what can only be termed as a cursory assessment of a catena of Supreme Court judgments, Justice Singhvi quickly dismisses the claims on Article 14 and Article 21. In fact, he cites all the correct decisions of the Supreme Court but chooses not to take that law to its logical end. For example, he fails to show how there is a rational nexus to a legitimate purpose behind treating the sexual preferences of homosexuals and heterosexuals differently, an exercise that jurisprudence of the Court mandates. With Article 21, he again avoids the only thing that he had to demonstrate: that there was compelling State interest behind criminalizing homosexual conduct, and thereby restricting their right to privacy. The judgment does not even consider Article 15, which formed the bedrock of the Delhi HC’s 2009 decision. (For a more detailed legal deconstruction of yesterday’s order, see here (Siddharth Narain on Kafila), here (Gautam Bhatia on IndConLawPhil) and here (Aparna Chandra in The Mint)).
The unkindest cut was his reducing the discussion to the ‘so-called rights’ of the homosexual community and to the ‘less than 200 persons’ who have been affected. This was not just about some illusory rights. This was about constitutional rights, about the values of inclusiveness that we hold dear. This is about those notions of equality and dignity that ensure that this country does not operate according to the whims of a capricious majority. This is not about the LGBT community’s right to indulge in some stray acts, but a question of their identity.
It is tragic that the very principle that facilitated Justice Singhvi’s interference in the 2G decision and numerous other decisions should now be so wilfully ignored in his decision in Koushal. To be sure, there is nothing to suggest that Justice Singhvi has an archaic mindset, or that he is regressive, or (to use a word that is being bandied so cruelly and casually) a bigot. Indeed, to cast this decision in the same mould as Dred Scott or ADM, Jabalpur would be a grave injustice to a brave and upright Judge. This is not a situation where a Judge’s personal prejudices or political leanings have led to this unfortunate outcome. A thorough reading of the transcript of proceedings before the Supreme Court would demonstrate that Justice Singhvi was neither narrow-minded, nor was he swayed by arguments of ‘morality’ and ‘Indian culture’. My limited personal interaction with him as a Judicial Intern in February-March 2012 confirmed his reputation as a man of high integrity and a man who respected the Constitution and the rights it accords to all communities.
However, this appears a decision of a Judge who never really grasped the fundamental nature of the right at stake and the core constitutional values that deserved to be protected. This was the decision of a Judge whose rigid reading of the Constitution ignored the fact that the Constitution protects such an essential identity of a person (in stark contrast to the visionary manner in which Justice AP Shah read Article 15 in the Delhi High Court). This was the decision of a Judge who did not think he’d seen and heard enough to exercise his power of judicial review and strike down a facially neutral provision of the law. Was this the wrong decision? I certainly think so. Was it bigoted and ‘morally compromised’? No. He was a good judge who got this one terribly wrong.
What next, then? The Respondents and allied groups have vowed to fight the good fight to the end. A review is in order, though it is doubtful whether it will be admitted. The Supreme Court has repeatedly emphasized the limited scope of its review powers, stating that “review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility” (Sow Chandra Kanta v. Sheik Habib, 1975 SC). The other hope is that the Parliament is jolted into action. Never before has the LGBT movement been so strong and unified. Remember here that the Government did not even oppose the Delhi High Court decision. Politicians across party lines have come out in support of the LGBT community and criticized the judgment. Kapil Sibal and P. Chidambaram have both indicated that the legislature would exercise its prerogative. One even hopes that in an election year, some party feels the need to score brownie points by pushing this through. This is an issue that could do with some politicization. As for Justice Singhvi, one wishes that he did not have to leave on this note.
Sahil Kher is a lawyer practicing in the Bombay High Court and a graduate of the National Law School of India University, Bangalore. He was a judicial clerk under Justice Singhvi’s chambers in February-March 2012.