Sunday, December 15, 2013

The Judiciary is Independent, But Are We?

(Also read one of our previous article on 'Homosexuality In Legalitywritten by Shashank Sahay )

The newspapers and social networking sites are overflowing with criticism of the Supreme Court's decision Suresh Kumar Koushal & Anr. v. NAZ Foundation & Ors., which has upheld the constitutional validity of section 377 of the Indian Penal Code and upheld the illegality of homosexual intercourse.

am reminded an incident which took place in my first year of law school. I was attending a guest lecture on 'Constitutional Jurisprudence' by the then sitting  Hon'ble Supreme Court Judge, Justice Markandey Katju. During the Q&A session, one of my professors asked the Hon'ble Judge why the judiciary was not doing anything substantial to tackle the problem of the corrupt politicians and MPs. Justice Katju shot him down immediately (not literally), "It is you who vote for these people, it is you who put them in power, and then you come crying to the courts!", Justice Katju shouted.
With that the Q&A session had come to an end.

Indeed we ourselves choose our leaders and in the end we ourselves complain about their actions. Instead of picking our law-makers more carefully, we approach the courts, and hence we have become overly dependent on the judiciary. We don't want to look for other solutions, but we only want the judges to wave their magic wand (or slam their gavel) and make everything right.

In India unlike in England, the Supreme Court holds an unmatched position. In India it is the Constitution which is supreme, not Parliament, while in England it is  the parliament which is supreme. Once the Supreme Court passes a judgement, it cannot be repealed, not even if the Judges who passed it are removed by Parliament. It is only the President, who has the power to grant pardons or remit the sentence of a person convicted by the Courts, and even this power is scarcely used.

So if the Supreme Court is so all-powerful, what stops it from declaring homosexuality to be legal? Section 377 of the IPC (a code enacted over 150 years ago) prohibits unnatural sexual intercourse. The provision existed almost a century before the Constitution. Now, did the framers of the Constitution intend that homosexuality be legalized some day? There is no indication of a positive answer and a negative one is more likely. But even then, the Supreme Court could easily have gone beyond its power and declared homosexuality to be legal. But the Supreme Court must be nobler than that, and so it has been. How can we expect the Supreme Court to punish those who abuse their power, when the  Supreme Court itself abuses its power? The Supreme Court has chosen a higher path and stayed within the limits of its power.

It is my humble request to the people, especially those criticizing the SC on social networking sites and the media, to stop appealing to the Courts for every problem and to start appealing to the law-makers you have chosen. After all it is they who serve you, and not vice versa.

I would like to end this article by drawing focus on the last paragraph of the Supreme Court's judgement :

"While parting with the case, we would like to make it clear that this Court has merely pronounced on the correctness of the view taken by the Delhi High Court on the constitutionality of Section 377 IPC and found that the said section does not suffer from any constitutional infirmity. Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same..."

The author is a member of, the largest community of Indian bloggers.


1 comment:

  1. What this judgments did was classify homosexuals as a separate class devoid of equal rights. If you can somehow trudge though the judgment and point out which part makes an ounce of sense, I will concede. They talk about the law not being constitutionally invalid by overlooking a majority of the fundamental rights. If by pronouncing them as a minority and shooting them down while passing hundreds of judgments every year in favor of SC/ST and OBc's is not hypocrisy, I donot know what is.