Why the Judgement Scrapping Section 377 Is a Vision Statement

The innate transformative trait of our Constitution, as rightly observed by the bench, complements the idea of a progressive realisation of rights. The apex court would do well to apply this vision to the momentous civil liberties issues that it has to deal with in the coming days.

On Thursday, when a five-judge bench of the Supreme Court pronounced its momentous verdict in the long awaited Section 377 case, it not only ensured reparation for its dismal performance as the protector of fundamental rights in the Suresh Kumar Koushal case (2013), but also chartered a progressive roadmap for the realisation of fundamental rights under our Constitution. As I had hoped earlier here, the bench led by Chief Justice Dipak Misra in its 493-page judgment has drawn on the idea of our Constitution as an all-embracing, evolving document. The immediate impetus to the LGBTQIA+ movement in India aside, the judgment is a vision statement for future interpretation of the Constitution, particularly in reference to Part III that deals with fundamental rights.

Transformative constitutionalism

In testing the legality of the previous decision in Koushal’s case, the bench – through the opinions of the Chief Justice and Justice D.Y. Chandrachud – has placed reliance on the concept of ‘transformative constitutionalism’. This doctrine – often evoked by the Constitutional Court of South Africa to interpret its own Constitution – essentially implies that a constitution ought to adapt and transform with the changing needs of the times. The obvious influence of South African jurisprudence is evident in the ubiquity of the decisions of the Constitutional Court of South Africa through the entire length of the Navtej judgment.

The end of Apartheid resulted in perhaps one of the most progressive Constitutions in the world being brought into force in the Republic of South Africa. A relatively recent document, the Constitution of South Africa (1997) contains extensive provisions (similar to our Part III) that declares the fundamental rights of its citizens.

In the past, harmonious notes have been struck by our Supreme Court in alluding to the ‘living’ and ‘dynamic’ nature of our Constitution. Justice Vivian Bose had, way back in 1951 when our Constitution was merely an adolescent, called it a ‘living organism’ that should be allowed to grow sturdily in the “democratic way of life, which is the free way.” As the Navtej decision nods with approval at this doctrine to be used as a device to interpret our constitution, great promise holds for the future of civil liberties adjudication in India.

The principle of non-retrogression

This innate transformative trait of our Constitution, as rightly observed by the bench, complements the idea of a progressive realisation of rights. However, the Chief Justice’s opinion goes a step further in introducing the principle of non-retrogression of human rights into our jurisprudence. This crucial principle in International Human Rights Law broadly enjoins a State that has progressively achieved a certain level of human rights protection to its citizens from causing any reduction in that status at a future time. A retrogressive measure (permitted only in compelling circumstances as a temporary measure) necessarily leads to backward steps in the enjoyment of human rights.

By its judgment, the Delhi high court in 2009 had secured a particular, elevated status to the LGBTQIA+ community in India which came to be reduced to its original regressive position in 2013 by the Supreme Court in Koushal’s case. The Court applied the principle of non-retrogression to hold that the 2013 judgment required reconsideration. Illustratively, another scenario for the application of the principle could be that once the right to privacy has been declared as Part III right in India, it would be in violation of the principle, for a future bench of larger strength (and with possibly sophist reasoning) to reverse this position.

A vision statement

That said, any person who has had to read the decisions of the Supreme Court – particularly, it’s recent ones – would agree that prolixity often tends to sink the all-important reasoning. One may wonder then, if these lofty ideals summoned from foreign lands will serve any real purpose other than as constitutional flourish. In this case, I hope that the answer is in the affirmative and the reasons for it will have to be analysed in terms of the impact of Navtej decision on all three organs of the State.

As far as the higher constitutional courts are concerned, this decisive judgment on the interpretation of the Constitution will act as a charter for future rights-based issues to be decided keeping in mind its transformative nature. I would even risk a claim that the principle of non-retrogression would act as a mandate on our courts to inevitably apply progressive human rights ideals when it comes to rights-based issues. The judgments in the Sabarimala entry case, the case concerning the provision on adultery and the Aadhaar case are awaited, and the principle may be applied in all these cases.

The Union of India’s stand throughout this litigation has been bemusing to say the least. From having two departments bearing conflicting stands before the Delhi high court, to deciding to not challenge its decision in the Supreme Court, filing a review petition against the eventual Koushal decision and then “leaving it to the wisdom of the Court” in the recent hearings, the present government did well in its latest stand to stay out of the way of the atonement by the court. However, the directions passed by Justice Nariman to the government to introduce programmes to remove the stigma associated with the community is one that forces its hand – despite the present dispensation’s majoritarian tendencies – to work towards the over-arching constitutional vision in the Navtej judgment.

The Parliament has been a mute spectator for at least 68 years (since the Constitution), although the provision has been on the statute books for more than a century. The Supreme Court in 2013 left it to the wisdom of the Parliament to enact suitable amendments to the law, which never came. The argument that striking down Section 377 would amount to ‘judicial legislation’ was most aptly dealt with by Justice Nariman, who opined that “fundamental rights do not depend on the outcome of elections.” When the Constitution is guided by the ‘north star’ of fundamental rights, it is not for the Parliament – a creature of the Constitution – to paddle away in the opposite direction, or worse, (as they did in this case) stay still.

To view the Navtej judgment for its immediate effect is to look at it from the perspective of a person standing too close to an elephant. There is a clear, larger vision for our Constitution. Today, we celebrate an extraordinary story of how love successfully resisted the law and the Courts looking towards the rainbow. Tomorrow, I will send up a prayer: that the Supreme Court applies this vision to the momentous civil liberties issues that it has to deal with in the coming days.

Govind Manoharan is an Advocate practicing at the Supreme Court of India and was part of the team representing some of the interveners supporting the Navtej petition.