On 28th April 1976, during the Emergency imposed by Indira Gandhi, a Supreme Court bench decided by majority of four to one judges that the state had the right to detain any person without having to justify the detention before a court of law. In its infamous judgment in the case of Additional District Magistrate, Jabalpur, the Court had shamefully upheld the Executive suspension of the writ of habeas corpus, a most basic constitutional guarantee of liberty to a citizen against the power of the state.
On 11th December 2013, a bench of the Supreme Court comprising Justice Singhvi and Justice Mukhopadhaya unanimously decided in Koushal v Naz Foundation that the state is entitled to criminalise (and imprison for life) consenting adults who engage in victimless sexual acts in private. Although LGBT people, whose romantic love finds sexual expression primarily through these acts, are the most direct victims, now anyone who has ever engaged in oral or anal sex is a criminal on the loose. With the badge of criminality come its attendant implications: you can be fired from your job and discriminated against in every sphere of life with impunity.
At the heart of each case was this central question: what are the constitutional limits on the powers that the democracy can exercise over its citizens. These limits are prescribed in a Constitution which promises justice, liberty and equality to the people in its preamble, and guarantees the rights to equality, free expression, and life and liberty in a bill of rights. It doesn’t take genius to figure out that if the guarantee of liberty means anything, it means that the state cannot detain a person without good cause, nor can it punish adults for consensual sexual expression in their bedroom.
On both occasions, the judges involved (with the honourable exception of the dissenting judge in ADM, Jabalpur, Justice Khanna) made a mockery of the Constitution and made its promises to the people ring hollow. On both occasions, they held that there are no effective limits on what the state can do to the people. Citizens became playthings in the face of whimsical, arbitrary power of the state. At least the majority judges in ADM, Jabalpur had something of an excuse, even if no justification. They were deciding during the dark days of the Emergency, when everyone—judges included—was scared of a paranoid dictatorial government. No such excuse seems available to the bench in Koushal. What is worse, as other posts on this blog and elsewhere have pointed out, the judgment in Koushal fails even to perform the fundamental judicial task of providing reasons for its judgment. The ‘judgment’ is a series of long quotations from previous cases, with little effort to explain how these cherry-picked precedents relate to the case at hand or justify the conclusions that the judges ultimately reach.
I will do a point-by-point critique of the judgment in another post. Here I just want to say that the judgment is a sign of a deeper institutional malaise. There are moments in an institution’s life which should force a rethink of its central purpose. ADM, Jabalpur was one such moment. After the Emergency, the Supreme Court vigorously reinvented itself as the people’s court. The ‘80s saw it reading rights expansively and standing up for groups forsaken by the democratic process—slum-dwellers, prisoners, and bonded labourers. It fought hard to re-earn the legitimacy it had lost in ADM, Jabalpur. Quite successfully. Too successfully.
By the ‘90s, the Court was beyond reproach. Cheered on by liberals and progressives, it came to be seen as the last beacon of hope in a context where institutional paralysis and corruption was fast becoming the norm. The Court’s excesses since the late ‘90s have been well-documented. Too much power and too little criticism is a lethal combination.
The Court’s spectacular failure in Koushal to stand up for basic liberty, and the astonishing wisdom and courage displayed by some political parties since the judgment should force another fundamental reflection. The role of and the relationship between the judiciary and politics need to be reassessed. The lazy liberal scepticism of democratic politics and the dangerous unquestioned faith in the courts need questioning. Parliament needs to start working again, courts need urgent reform. Civil society and the academy must continue to be vigilant, to prevent these instruments of the democracy from turning on its people.
In the next post, I will show that it was not just the individual failure of the judges involved to rendezvous with reason that resulted in Koushal. The problem is deeper. It lies in the structural deficiencies and institutional infirmities that the Indian judiciary has come to be afflicted with. After its second ADM, Jabalpur moment, the Supreme Court needs another reinvention. This time, however, we cannot leave the task to the judiciary alone.