The Suresh Kumar Koushal Vs NAZ Foundation and Ors. judgment is now in the public domain. You can read the full verdict here. There verdict may not have serious legal infirmities but the court could have given the same legal reasoning without making some of the insensitive comments.
Consider Para 43 :
43. While reading down Section 377 IPC, the Division Bench of the High Court overlooked that a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years less than 200 persons have been prosecuted (as per the reported orders) for committing offence under Section 377 IPC and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.
This is a preposterous argument but coming from the highest court of this country it is even more dangerous. Fundamental Rights, especially those under consideration operate at an individual level and the constitutional validity of any law has got nothing to with a headcount of the number of people getting affected by it. If homosexuality is recognized as a fundamental right, then even if one person out of a billion is a homosexual, then the court must take necessary steps to protect his right. It could actually be argued that smaller the affected group, greater is the burden on judiciary to protect their rights from the State and also from the majority.
As rightly pointed out by Apar Gupta, Justice Singhvi recently stayed his own order in Campa Cola demolition case because he was distressed and could not sleep well. If a Judge could be so moved by property loss of 102 illegal flat owners, it is not clear as to why he is ignoring the plight of “less than 200” persons on a far more crucial right.
Consider Para 52:
52. In its anxiety to protect the so-called rights of LGBT persons and to declare that Section 377 IPC violates the right to privacy, autonomy and dignity, the High Court has extensively relied upon the judgments of other jurisdictions. Though these judgments shed considerable light on various aspects of this right and are informative in relation to the plight of sexual minorities, we feel that they cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian legislature.
As mentioned in my previous blog, it is true that the Delhi High Court based its verdict on many other jurisdictions which in my opinion is not appropriate, however the same argument can be made with a bit of sensitivity and the words “so-called rights” , “in its anxiety” could have been avoided.
It should also be noted that the same Judge who cancelled 122 2G licenses because the allocation was based on a first-come-first-serve basis, which is arbitrary and ultra vires the provisions of Article 14 (constitutionality of the auction policy was later clarified through a presidential reference) gave the reasons of judicial restraint, respect for the parliament and will of the people for not expanding the definition of “sex” in Article 14 to include “sexual orientation”.
Notwithstanding the above objections, I still believe judicial restraint is a good thing and the court is correct in leaving this issue to the parliament. A quick reading of constituent assembly debates around Article 14 indicates that apart from discrimination on the grounds of religion, race, caste, sex or place of birth various other things like “dress worn by any nationality”, “political creed”, “color” were debated but there is no mention of “sexual orientation” anywhere. To recognize homosexuality is important but desirability is not the basis on which constitutionality of any legislation should be decided. It is true that the Judiciary expanded Fundamental Rights very aggressively in India– Right to life includes Right to live with dignity, Right to clean air, Right to sleep etc but we have already reached a peak where almost every policy decision is questioned for some constitutionality. The judiciary should stick to the text of the law (there is no such animal as spirit of the constitution) and leave the legislative work to parliament. On this principle the verdict looks correct.