affiliated to the International Association of Constitutional Law
In Koushal v Naz—the case being touted as one of its worst judgments—a two-judge bench of the Indian Supreme Court has overturned a 2009 decision of Delhi High Court which had struck down the criminalisation of sodomy by s 377 of the Indian Penal Code 1860 as unconstitutional. In doing so, it has recriminalized every Indian who has ever had oral or anal sex (irrespective of the gender of the person they had it with, and irrespective of consent).
Many commentators have already pointed out the spectacular lack of constitutional and judicial aptitude, understanding of human rights and compassion in the judgment (see these excellent commentaries by Vikram Raghavan, Gautam Bhatia, Pratiksha Baxi, Mayur Suresh, Siddharth Narrain, Arghya Sengupta, and Shreya Atrey among others). In this post, I will focus on the deeper structural and institutional decline of which this judgment is a painful symptom. If Koushal were read simply as the failure of a couple of judges to get the law right, India would miss a rare opportunity to treat the root causes of the malaise.
Koushal represents two structural failures of the Indian Supreme Court, at least one of which has sometimes been commended as a great success by some Indian and foreign commentators. The first structural failure, one that many progressives see as a model for how the judiciary should be organised, is the near-total abandonment by the Supreme Court of the principle of separation of powers, and its transformation into a populist, legislative court of governance. The second failure, one that flows from the first failure, is the Court’s routine dereliction of its duty to give reasons for its decisions and the Indian legal academy’s failure to hold it accountable for this dereliction. Let me explain both of these failures in turn, and how they have facilitated the decision in Koushal.
Failure I: Judiciary as a Counter-majoritarian Institution
In Koushal, the Court could barely conceal its disdain when it described lesbians, gays, bisexuals and transgendered people as ‘a miniscule fraction of the country’s population’  with ‘so-called rights’ . This may seem bizarre to those of us who believe that one of the primary functions of constitutional courts is the protection of vulnerable minorities. Clearly, a ‘miniscule’ minority should be of particular concern to a counter-majoritarian institution.
The Court’s position is easier to fathom if understood in the context of its history following the authoritarian Emergency imposed in India in the mid-70s by Indira Gandhi. During the Emergency, a scared Court agreed to the suspension of Habeas Corpus. After the deeply unpopular Emergency was lifted and the country returned to democracy, the Court started to reinvent itself to gain institutional legitimacy. This reinvention was, however, not in terms of pitting itself against the representative organs of the state, but by competing with these organs. The process, which began in the ‘80s, only intensified in the ‘90s which saw an end to one-party-dominance in politics. Coalition politics and weak legislatures remain a feature of Indian politics to this day. The Court, in the meantime, became a populist institution of governance—stepping in to fill the void left by an increasingly dysfunctional Parliament. In a country where the majority of the population suffers significant disadvantage, majoritarianism can often become aligned with ‘progressive’ politics. A majoritarian Court continued to play to the gallery and wrecked havoc on the principle of separation of powers. As it laid down detailed guidelines, took up cases without any litigant, appointed commissioners, created policy, and micro-managed implementation, it was cheered on by civil society, while meek politicians barely managed occasional squeals of disapproval. Its occasional retrogressive missteps were brushed aside as aberrations, and the Indian Supreme Court, regularly invoking its popular Public Interest Litigation jurisdiction, came to be seen as a model of progressive judiciary by many people in India, and outside India.
It should not surprise us that this majoritarian populist institution found it impossible to respect the ‘so-called’ rights of a ‘miniscule’ minority. Of course, Indian courts have sometimes stood up for minority rights. So has the Indian Parliament. What matters is the self-image the Court has been allowed to cultivate, which overwhelmingly determines its institutional course of action. This self-image is not that of a counter-majoritarian institution correcting the excesses of democracy, but one that is acutely conscious of the reception of its judgments by the people (such consciousness extends only to the outcome of a case, not its reasoning). Under this model, if representative bodies did a good job of representing the people, the courts would be unnecessary. The Court is a political actor, which wants to be judged as politicians are judged. Its legitimacy rests on popular acceptance, not constitutional mandate.
This political context explains, rather than complicates, how the bench in Koushal suddenly discovers the joys of separation of powers. The Court first extends the presumption of constitutionality to a pre-constitutional colonial law by suggesting that the democratic Parliament has ‘adopted’ it by failing to amend it! [28, 32]. It specifically mentions a 2013 legislation amending the law dealing with sexual assault as proof that ‘the legislature has chosen not to amend the law or revisit it’, ignoring completely the fact that there was no need for Parliament to do so after the Delhi High Court had read down s 377 to exclude private sex between consenting adults from its ambit. That the 2013 legislation was enacted after the hearing in Koushal was concluded, thereby affording no opportunity to the parties to challenge its use by the Court, is another matter.
This ostensible deference to democratic will is an opportunistic fig leaf of a populist Court with little more than contempt for the representative institutions of democracy. In an act of concluding magnanimity to the legislature, the final sentence of the judgment grants it permission to consider the ‘desirability and propriety of deleting section 377’ . The fact that it thought such a clarification was necessary tells us that this is not a Court deferential to the legislature—this is a Court with unhesitant pretensions of being the legislature.
Failure II: The Duty to give Reasons
A key feature of adjudication is the public articulation of reasons after hearing principled submissions by the parties involved, on the basis of which a judge arrives at her decisions. In this respect, adjudication differs from voting, which allows a decision-maker to decide without having to articulate her reasons (or even without having any reasons). The Indian Supreme Court in Koushal fails to respect this fundamental judicial duty at so many levels that it is difficult to escape the conclusion that the Court seems to be voting, not adjudicating. The following factual inaccuracies, unsupported conclusions, and omissions in the judgment are particularly noteworthy in this regard:
The judgment seems to have been written carelessly, perhaps even in a hurry—the hearing in the case concluded in March 2012, and the judgment was delivered in December 2013, on the day before the senior judge on the bench was due to retire. A cavalier attitude to its duty to give reasoned judgments is not uncommon in the Indian Court’s jurisprudence. Although unfortunate, this is hardly surprising. The Court has a total strength of 30 judges, who usually sit in benches of 2. In 2011 alone, they decided some 47,000 admission matters (the Court sets aside two days every week to hear admission applications!), of which 9,070 were admitted for regular hearing. The main reason for this staggering docket, apart from the size of the country, is its remarkably liberal invocation of its ‘special leave’ jurisdiction, which allows review petitions from any court or tribunal in the country to be placed directly before the Supreme Court (Article 136, Constitution). A direct approach to the top Court deprives it of the benefit of the considered views of the courts below, and should be allowed very rarely. The pressure of its workload also results in the constitutional requirement that any constitutional case involving a substantial question of law must be heard by at least five judges (Article 145) being routinely ignored (including in Koushal). Only 0.12% of all cases disposed of by the Court between 2005 and 2009 were decided by a bench of five judges or more.
Given such volume, what is surprising is the respectable number of cases where Indian judges do manage to give reasoned judgments. The fragmentation of the Court into small benches deciding thousands of cases every year had led to a situation where even a conscientious judge would find it next to impossible to respect stare decisis. For less conscientious judges, the opportunity to cherry-pick precedents is limitless.
Furthermore, the academy simply cannot keep up with the judicial assembly line. Academic criticism is the real check on judicial power in a democracy. In the Indian context, academics are forced to focus on the outcome of the cases alone—only a handful of cases (like Koushal) that really stand out receive proper academic attention. This reinforces the judicial belief that all they need to do is to make the outcome generally palatable; all else will probably be ignored. Thus, the judges decide as if they were politicians, and they are judged as if they were politicians—based not on how they reason but on the way they vote.
The outrage that this judgment has inspired amongst politicians, activists and academics in India presents an opportunity to rethink the fundamental structural weaknesses of the Indian Supreme Court. Most of the recent debate on the reform of the Court has focussed on changing the appointment system of judges (currently, the Court appoints its own judges!) and dealing with the lack of diversity in the judiciary. While who gets to be a judge is an important issue, unless these structural infirmities are addressed, even Herculean judges cannot change the situation very much. The Court needs to reaffirm its central counter-majoritarian purpose in a liberal democracy. It must do less and do it well. It must stop voting and stick to adjudicating.
Dr. Tarunabh Khaitan is Hackney Fellow in Law at Wadham College, Oxford.
Suggested citation: T. Khaitan, ‘Koushal v Naz: The Legislative Court’ U.K. Const. L. Blog (22nd December 2013) (available at http://ukconstitutionallaw.org).
Postscript: Some readers have emailed to ask about the possibility of review. Although this is a judgment of the highest court of the land, because of the proliferation of 2-judge bench rulings, the Court has had to invent two further review stages to challenge its own judgment–a (rarely invoked) review jurisdiction and then a (very rarely used) ‘curative’ jurisdiction. The government has been the first of the parties to seek review. Other petitioners are expected to follow suit. How the Court will react remains to be seen.