How easy it is to lose faith in an institution you respected. When it comes to finding Section 377 unconstitutional, it’s one whammy after another. After the Indian Supreme Court failed abysmally in its duty of protecting the fundamental rights of citizens, comes the latest news that the review petition filed by the Naz foundation and the government itself has been rejected. Till now, the saving grace of the Indian setup was the intelligent, progressive, and aggressive judiciary who protected our fundamental rights as required by the Constitution. It is now apparent that those duties have been forgotten or actively ignored.
I’m sick and tired of hearing people defend the SC by saying “It’s parliament’s job to create law, not the court’s”. No shit. But they are conveniently ignoring another crucial aspect of the judiciary – namely the power of judicial review. This is so important that it’s enshrined in Article 13 of the Constitution. Here it is:
- All pre-constitutional laws, if in part or completely in conflict with the Constitution, shall have all conflicting provisions deemed ineffective until an amendment to the Constitution ends the conflict. In such situation the provision of that law will again come into force, if it is compatible with the constitution as amended. This is called the Doctrine of Eclipse.
- In a similar manner, laws made after adoption of the Constitution by the Constituent Assembly must be compatible with the constitution, otherwise the laws and amendments will be deemed to be void ab initio.
- In such situations, the Supreme Court or High Court interprets the laws to decide if they are in conformity with the Constitution. If such an interpretation is not possible because of inconsistency, and where a separation is possible, the provision that is inconsistent with constitution is considered to be void. In addition to article 13, articles 32, 226 and 227 provide a constitutional basis to judicial review in India.
Oops. Looks like not only is it parliament’s job to create laws, it’s the Supreme Court’s job to ensure that those laws are consistent with the Constitution. Otherwise those laws are invalid.
Ding ding ding! Checkmate.
So let’s have no more bullshit about how the Supreme Court only has to interpret the law and that it’s not its job to create law blah-de-blah-de-blah. What we want…what we demand is that the SC follow the damn Constitution and strike down laws that go against it. That is its job. That is its mandate. That is one of the prime purposes of its existence!
It gets even better. Over the years, the Supreme Court has repeatedly held that privacy is a fundamental right in India. In fact, the scope and breadth of the fundamental rights have been constantly increasing as courts not just in India, but around the world take a more and more expansive view of phrases like “right to life”. So it’s hardly surprising that the Delhi HC held that the freedom to do whatever you want in your bedroom was a fundamental right.
But if we are to take the recent rulings of the SC at face value, we are to simply accept that the government has a right to pry into people’s bedrooms. That the criminalization of a person’s sexual activities are in no way incompatible with the Constitution! This is not the nature of the country I’m living in!
If this Section 377 is not unconstitutional, please tell me what the hell IS unconstitutional.This is as unconstitutional as it gets! Every civilized country in the world has recognized this simple fact. Hell, most intelligent Indians have recognized it too. And the institution which is supposed to be on top of such things, which is charged with upholding the liberal values of our Constitution feels it’s ok! I’m not even sure anymore whether or not this is all some huge practical joke by the SC.
And let’s get one thing out of the way. Section 377 is not just about gays and homosexuals. It affects everyone since it criminalizes all so-called “unnatural” sexual activities…including oral sex between consenting adults! It makes criminals of us all. Are you happy with that? Are you happy being a criminal in your own country by expressing love in the privacy of your room? This is abhorrent and goes against all principles of natural justice.
And the SC has allowed this blatantly unconstitutional law to stand??? Unbelievable! What the f*** is wrong with them?
Dear SC. Please note that we’re not asking you for something special. We just want you to do your bloody job!