INDIA
The living document is liberally interpreted by judicial champions to fortify our way of life against assaults on our liberty
The Indian Constitution is the longest and the most detailed Constitution in the world. However, that doesn’t mean that every Constitutional problem has an answer in the Constitution itself.
The fact that India has inherited the common law tradition (as opposed to civil law tradition) has meant that rules of interpretation have allowed judges to be creative. But Indian judges have been more creative than others in the common law world.
It is accepted that while the legislatures have the power to make laws, courts alone have the power to interpret the law. In the UK, Parliament is supreme; superior courts (High Courts and Supreme Court) can only interpret the law. They don’t have the power to strike down legislation. In the US, superior courts can not only strike down laws, but also read into their Constitution what is not explicit but what is implied, as was done in the recent judgment on privacy by our Supreme Court. While powers of interpreting laws are vested in all courts in India, our superior courts, the High Courts and the Supreme Court, have the power also to strike down legislations. In fact, our Supreme Court has gone further. It has also limited the power of Parliament to amend the Constitution. For instance, in the case of Keshavananda Bharati, the Supreme Court held that while Parliament can certainly amend the Constitution, it cannot do so and amend away the “basic features” of the Constitution. The basic features were held to be entrenched in the Indian Constitution. This seminal judgment preserves the core elements of the Constitution. No Indian Parliament can amend them away.
There have been differences within the court about the interpretation of the nature of the fundamental rights in the Constitution and how they relate to each other. This issue came up in the Supreme Court in AK Gopalan, a case involving preventive detention of the petitioner. The issue that arose was the interrelationship between the fundamental rights of equality and non-discrimination (Articles 14, 15 and 16), rights to fundamental freedoms viz., to free speech, to form assemblies, to form associations, to move throughout India, to reside and settle anywhere in India and to practice professions etc, [Article 19(1)] and the right not to be deprived of personal liberty or life without procedure established by law [Article 21]. In Gopalan, the majority held that each of these fundamental rights is distinct, separate and operates in silos. They are not in any way linked. Consequently, a challenge to any law would require the petitioner to ascertain what the object of the law is. That would answer the question of which fundamental right the law sought to deprive. Once that was determined, the petitioner could only invoke that fundamental right. This is in contrast to an exercise undertaken to find out which fundamental right would be infringed by the law. In Gopalan, the petitioner argued that his fundamental rights of equality, fundamental freedom and personal liberty were all violated. However, the court declined to allow the invocation of all those rights. The court held that only Article 21 could be invoked as the object of the Act was to curtail rights only under that Article. The minority, however, held the direct and inevitable effect of the law was on diverse fundamental rights, which could all be invoked. This case was decided in 1950.
It took another 20 years for Gopalan to be overruled. In RC Cooper, a case involving nationalization of the 14 private banks, the Supreme Court followed the minority in Gopalan and held that the effect of a law was the prime consideration for the invocation of fundamental rights. This ruling in RC Cooper was later affirmed in Maneka Gandhi in 1978, involving the liberty of the petitioner to go abroad. Thus, after Maneka Gandhi, it is settled that fundamental rights are not locked in silos but that the streams of fundamental rights converge, intermingle and that there is a confluence of these streams. This is in accord with the international law on human rights, which considers human rights inextricably linked to each other.
Maneka Gandhi also strengthened the rigours of Article 21. Till then, it was considered that any law passed by the legislature, which deprived a person of liberty or life was sufficient, provided the procedure established by law for that purpose was just, fair and reasonable. However, in Maneka Gandhi, the Supreme Court also held that the substantive law itself must also be fair, just and reasonable.
While Maneka Gandhi placed fundamental rights on a firm footing, it has to be remembered, it was decided after the Emergency when the Supreme Court stooped to its lowest.
During the Emergency, fundamental rights were suspended and a large number of people were detained. Petitions were filed in different High Courts challenging the detentions and seeking the release of the detainees. The matters ultimately reached the Supreme Court. The government argued that as fundamental rights were suspended, nobody had the right to approach the courts on the ground that their fundamental fights were violated. The Supreme Court, in ADM Jabalpur, held that once fundamental rights had been suspended, which was permitted during an emergency, it was not open to anybody to challenge the deprivation of their liberty, and even life, in the courts. This was a terrible blow to the soul of the Constitution. Though this judgment was remedied by the amendments in the Constitution after the Emergency, it was only in 2017, in the privacy case (Justice Puttaswamy vs. Union of India), that the Supreme Court overruled the judgment of ADM Jabalpur. The deep wound inflicted by the judiciary on the Constitution had to be remedied by the Supreme Court itself.
The Supreme Court also does not boast of a good record on sexuality rights. The infamous Section 377 of the IPC deals with what is euphemistically titled as ‘unnatural sex’ was engrafted by the British in 1861 on to the Indian legal landscape. Prior to that Indian law — be it Hindu, Muslim, Buddhist, Jain or Sikh law — did not criminalise any sexual activities. However, the British at that time were sexually conservative and anathematic to the Indian sexual mores, particularly the Hijras and other transgender or homosexual communities. Section 377 was included in the IPC, which criminalized persons, who “voluntarily had carnal intercourse against the order of nature with any man, woman or animal.” Penetration was required by the explanation to constitute the offence. Thus, penile penetration is essential but consent is immaterial. Most of the cases under Section 377 IPC till date have implicated penile non-vaginal sex. Naz Foundation challenged the constitutional validity of Section 377 in the Delhi High Court to the extent that it criminalized consensual sexual acts between adults in private. It contended that it was against the fundamental rights to equality and non-discrimination before law under Article 14, discriminatory on the grounds of sexual orientation under Article 15, violative of the right to personality of an individual under right to freedom of expression guaranteed by Article 19 and violative of the right to privacy, dignity and health under Article 21. The Delhi High Court in the seminal judgment of Naz Foundation vs State of NCT upheld the petitioner’s contentions. The Court read down Section 377 and held that to the extent that it criminalized sexual acts between consenting adults in private, it was unconstitutional. The decision was appealed against in the Supreme Court in Suresh Koushal v. Naz Foundation case. The Supreme Court on December 11, 2013, set aside the Delhi High Court judgment.
The petitioners filed review and curative petitions against the decision of the Supreme Court in Koushal. Two important events have occurred in the meantime, which have made the success for the petitioners almost certain.
In Koushal, the Supreme Court ignored the changes in the rape law, which had taken place after the arguments were heard in Koushal but before the judgement was passed. Prior to the Criminal Law Amendment of 2013, the rape law under Section 375 IPC was applicable when a man had non-consensual sexual intercourse with a woman in the nature of penile-vaginal penetration. After the Amendment, the definition of rape was broadened to include all other non-consensual sexual acts rape, including penetrative sex of all types, including penile-anal or penile-oral sex. However, if there is consent to these sexual acts, it is not rape under Section 376 IPC. The non-consensual sex between heterosexual couples are now carved out of 377 and included under the definition of rape under Section 375 IPC. Thus, Section 377 is only applicable to men having sex with men, irrespective of consent. However, if heterosexual couples have penile non-vaginal sex consensually, they would no longer be penalized under Section 377 IPC. Hence, Section 377 is clearly discriminatory on the ground of sex.
The second important event is that in the Privacy judgment recently pronounced by the Supreme Court, Justice Puttuswamy vs Union of India. The case arose out of the challenge to the Aadhaar project, and ultimately the Aadhaar Act. The petitioners based part of their arguments on the understanding that the Supreme Court had held that there was a fundamental right to privacy recognized by the Supreme Court in earlier judgments of MP Sharma and Kharak Singh. However, the counsel for the government of India disputed this position. The matter was referred to a five-judge bench and ultimately to a nine-judge bench.
In a unanimous decision, all the nine judges held that the fundamental right to privacy was implicit in the Constitution. In doing so, the Supreme Court overruled earlier judgments of MP Sharma and part of Kharak Singh and made an important observation in respect of privacy, which is worth reproducing. Privacy, it held, “is the constitutional core of human dignity… Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy. Privacy protects heterogeneity and recognises the plurality and diversity of our culture. While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place. Privacy attaches to the person since it is an essential facet of the dignity of the human being.”
While doing so a number of judges also held that the Supreme Court in Koushal did not properly appreciate the fundamental right to privacy. If the Koushal matter had been before the nine-judge Puttuswamy bench, it would surely have been overruled. It is thus only a formality for it to be overruled. Thus, there is good and legitimate expectation that Section 377 IPC will be history soon.
The author is a Senior Advocate practicing in the Supreme Court of India
During the Emergency, fundamental rights were suspended and a large number of people were detained. Petitions were filed in different High Courts challenging the detentions and seeking the release of the detainees. The matters ultimately reached the Supreme Court. The government argued that as fundamental rights were suspended, nobody had the right to approach the courts on the ground that their fundamental fights were violated. The Supreme Court, in ADM Jabalpur, held that once fundamental rights had been suspended, which was permitted during an emergency at that time, it was not open to anybody to challenge the deprivation of their liberty, and even life, in the courts. This was a terrible blow to the soul of the Constitution.
Delhi High Court, in the seminal judgment of Naz Foundation vs State of NCT, upheld the petitioner’s contentions. The Court read down Section 377 and held that to the extent that it criminalized sexual acts between consenting adults in private, it was unconstitutional. The decision was appealed against in the Suresh Koushal v. Naz Foundation case
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