That Constitution Thingy
Ravi Mundoli -
Sunday, July 12, 2009 10:27 PM
It's been a remarkable couple of weeks for the country. On July 2nd, the Delhi High Court struck down sections of Section 377 of the Indian Penal Code which criminalised certain consensual sexual acts between adults by stating that they were "against the order of nature". This must be a truly remarkable event in the history of Indian jurisprudence. On the personal front, I was living in Cambridge, Massachusetts when the state legalized same-sex marriages and can remember May 17, 2004 when there was a crowd (by US standards!) outside City Hall. Some of them were people applying for licenses, some were from the press, and some were merely there to celebrate a rare and precious civil liberties victory. July 2nd, 2009 in Chennai felt very similar, inside my head, even if there wasn't a crowd dancing on the streets.
Anyway, that is all mostly beside the point. The Delhi HC's judgement received pretty much the expected response from the usual suspects. The liberals loved it, the conservatives and some religious heads seem to disagree (even if it is in mostly incoherent and apoplectic ways), and it probably scarcely registered in the consciousness of the <$2 per day income aam aadmis. Much newsprint, TV and radio coverage, and internet bandwidth has been expended in the last two days on the pros on cons of this landmark, and a visit to your neighbourhood search engine should reveal all.
So for the purposes of this post, I will try and dabble in constitutional law, one of the several areas (including mathematics, music, sports, colour discrimination) in which I am equally competent (meaning zilch). For a much more comprehensive review by someone who actually knows what he is talking about, see here. Some of the more understated but perhaps most crucial aspects of the Naz Foundation vs Government of NCT of Delhi are to be found in the actual text (PDF) of the judgement. One of the most striking features is how the HC repeatedly uses the framework of the Indian Constitution to justify its position.
The defendants (i.e. the Government) argued that Section 377 "...was responding to the values and morals of the time in the Indian society..." Further, they apparently argued that "Social and sexual mores in foreign countries cannot justify de-criminalisation of homosexuality in India." and that "...in western societies the morality standards are not as high as in India." The judgement goes on to cite several cases from abroad pertaining to the legalisation of gay sex, and cases from India dealing with privacy as a fundamental right etc. and then makes this remarkable statement:
Thus popular morality or public disapproval of certain acts is not a valid justification for restriction of the fundamental rights under Article 21. Popular morality, as distinct from a constitutional morality derived from constitutional values, is based on shifting and subjecting notions of right and wrong. If there is any type of “morality” that can pass the test of compelling state interest, it must be “constitutional” morality and not public morality...The argument of the learned ASG that public morality of homosexual conduct might open floodgates of delinquent behaviour is not founded upon any substantive material, even from such jurisdictions where sodomy laws have been abolished. Insofar as basis of this argument is concerned, as pointed out by Wolfenden Committee, it is often no more than the expression of revulsion against what is regarded as unnatural, sinful or disgusting. Moral indignation, howsoever strong, is not a valid basis for overriding individuals's fundamental rights of dignity and privacy.In our scheme of things, constitutional morality must outweigh the argument of public morality, even if it be the majoritarian view.
Quite apart from it's unambiguous statement on individual rights, what is interesting is that nowhere in the judgement did the court feel the need to cite anything older than the constitution (or the Constituent Assembly) to justify its stand. There is no pleading of the inclusiveness-of-Indian-culture-for-the-last-47,000-years and depiction-of-homosexuality-in-Indian-culture-for-the-last-47,000-years variety to justify its stand. The judges seem to say, "Here is the Constitution. Here is how we interpret it, and here is why. You no likey-likey? Too bad." Such a refreshing contrast from the Supreme Court judgement in the Afzal Guru case where it stated that the "...collective conscience of the society..." demanded the ritual murder of the accused. Ambedkar emphasized this primacy of individual rights over "collective morality" when in a Constituent Assembly debate he said:
It is said that the new Constitution should have been drafted on the ancient Hindu model of a State and that instead of incorporating Western theories the new Constitution should have been raised and built upon village Panchayats and District Panchayats. There are others who have taken a more extreme view. They do not want any Central or Provincial Governments. They just want India to contain so many village Governments. I hold that these village republics have been the ruination of India. I am therefore surprised that those who condemn Provincialism and communalism should come forward as champions of the village.What is the village but a sink of localism, a den of ignorance, narrow-mindedness and communalism? I am glad that the Draft Constitution has discarded the village and adopted the individual as its unit.
Strong stuff, wot?
The constitution itself is a remarkable document. With 395 articles, 12 schedules and 94 amendments, it may verily be the only constitution in the world today that you can use not only to buttress your arguments, but also to physically bludgeon your opponent with if she proves to be excessively annoying. It borrows from all over the world, and yet is unique, idiosyncratic and somehow distinctly Indian. It seems to be a tricky beast at the best of times, and it's nothing short of a wonder that for nearly 60 years the document and the republic have somehow managed to keep each other bumbling along in hopefully the right general direction.
While the Naz Foundation judgement will go down in history, there have been other cases in the past that have been equally or perhaps even more important. These are the Roe v. Wades and the Brown v. Board of Educations of Indian law. In Kesavananda Bharati vs The State of Kerala, the Supreme Court held that the judiciary could review and strike down amendments to the constitution made by Parliament which conflict with or seek to alter the basic structure of the constitution. This seems to be a bit of a 2-edged sword.
My very very very rudimentary understanding of this is that it is closely tied up with the right to property. (See here for one way of looking at things.) At its heart the conflict was about the following: One of the promises held out by an independent India was the creation of a more egalitarian society with the abolishment of feudal land ownership. To do this, the government would have to take land from the zamindars and re-distribute it. But the zamindars could use the new republic's constitution to point out that this would violate their fundamental right to property, and the courts would agree. So something called the Ninth Schedule was created, into which were put laws that allowed the government to do this sort of land reform, without those actions being subject to judicial review. In Kesavananda Bharati, the SC tried to fight back and say that there was some stuff that could not be touched, even by Parliament.
Another landmark is Maneka Gandhi v. Union of India, in which the SC "expanded the scope and content of the right to life and liberty by introducing the concept substantive due process to Indian law."
It's a fascinating tussle, this push-me pull-you thing that goes on between the constitution, parliament and the courts. Some "configurations" make sense, some cause a serious amount of internal conflict, and some are/were downright non-sensical. Another couple of centuries of a secular democratic republic, and we'll probably sort it out.