The Supreme Court of India has been touted as the most powerful court in the world. Any reader of this paper would be keenly aware of the influence that the judgments of the Court have on the politics of the country as well as the daily lives of common citizens. The mechanism of public interest litigation devised by judges has helped the courts to reach out and remedy injustices wherever they exist. In politics, the court has mandated the declaration of assets of candidates in elections to further the cause of transparency. From directing the serving of mid-day meals to ordering the use of CNG to combat air pollution, the Supreme Court has intervened to ensure a better life for the common person. None of these directions existed in law but were fashioned by the courts through an interpretation of multiple provisions of the Constitution.
So, it is a bit puzzling that when it comes to the fundamental rights of one of the weakest sections of society, the queer community, the Court decided to adopt a philosophy of judicial restraint. While the marriage equality judgment is complex and deals with multiple issues, the one clear outcome is that the majority has refused to recognise the right to a civil partnership as well as the right of queer couples to adopt. This outcome is more surprising given that the majority recognises the real and constant discrimination faced by the LBTQIA community. The judgment records that “this deprivation has to be addressed” — just not by the Court. Instead, the majority has merely expressed a fond hope that the legislature would step in and remedy these grave injustices. It seems that the Court forgot that it was the failure of Parliament to ensure justice that compelled the petitioners to file the petitions.
This deference to Parliament was also the argument of the government, which the majority seems to have wholeheartedly endorsed. Unfortunately, this position is wrong both in law and in morality. The Court, when faced with deprivations and systemic injustices, is constitutionally required (and not merely empowered) to step in and provide relief. This is not an instance of the judiciary overstepping its boundaries; it is a constitutional obligation of the Court.
The framers of our Constitution were alive to the multiple forms of discrimination that existed in the country at the time of Independence. They were also aware that electoral politics, while essential in a democracy, was not the surest way to achieve justice for all. The ultimate task of defending the fundamental rights of all citizens was placed upon the constitutional courts of the country. The Supreme Court has been explicitly mandated to strike down laws which violate any fundamental right (Article 13). Any person has the right to petition the Court for enforcement of her fundamental rights by filing a petition under Article 32, a provision that B R Ambedkar referred to as the heart and soul of the Constitution. The power of the courts, therefore, flows from the same charter which empowers the legislatures to make law. It is no less legitimate than the right of Parliament to enact law.
Further, the Constitution not only empowers the Court to invalidate unconstitutional laws but also envisages a system of checks and balances by which the judiciary can compel the government to act in a manner required by the Constitution. To urge that the Court is powerless in the face of a situation created by a legislative vacuum is to put a premium on constitutional immorality. It gives free rein to future parliaments to defeat fundamental rights by creating complex laws which grant some citizens their rights while denying them to others. As per the argument of the government, it is theoretically possible to have legislation permitting adoption only if the parents are of the same caste. Or, Parliament could pass a law by which the minimum age of marriage under the Special Marriage Act — the only act under which people of different religions can marry — would be raised to 50 years. If these examples outrage us, it is because they are unconstitutional as well as unconscionable.
Perhaps, the greatest concern with the argument of limited judicial competence is ethical rather than purely legal. This is because it seeks to equate majoritarianism and democracy. Our constitutional values do not give dictatorial powers to the elected legislators any more than they permit the judges to be silent spectators to wanton violations of fundamental rights. Relying upon the goodwill of the majority to defend the rights of an oppressed minority was as fantastical a notion in 1950 as it is today. Platitudes and commiseration cannot replace substantive rights and relief that the queer community needs immediately. Justice Khanna, when he penned his famous dissent in the ADM Jabalpur case, which upheld the suspension of fundamental rights during the Emergency, said that he was appealing to the brooding presence of the law and an intelligence of a future age. Time proved him right. It can only be hoped that the marriage equality case will also be looked at sooner rather than later by wise and empathetic judges.
The writer is a senior advocate at the Delhi High Court and is the author of, most recently, Fifteen Judgments: Cases that Shaped India’s Financial Landscape