Koushal v Naz: ADM Jabalpur 2.0

On 28th April 1976, during the Emergency
imposed by Indira Gandhi, a Supreme Court bench decided by majority of four to
one judges that the state had the right to detain any person without having to
justify the detention before a court of law. In its infamous judgment in the
case of Additional District
Magistrate, Jabalpur
, the Court had shamefully upheld the Executive suspension of the writ
of habeas corpus, a most basic constitutional guarantee of liberty to a citizen
against the power of the state.
On 11th December 2013, a bench of the Supreme
Court comprising Justice Singhvi and Justice Mukhopadhaya unanimously decided
in Koushal v Naz Foundation that the state is entitled to criminalise (and imprison for life)
consenting adults who engage in victimless sexual acts in private. Although LGBT
people, whose romantic love finds sexual expression primarily through these
acts, are the most direct victims, now anyone who has ever engaged in oral or
anal sex is a criminal on the loose. With the badge of criminality come its
attendant implications: you can be fired from your job and discriminated
against in every sphere of life with impunity.
At the heart of each case was this central question: what are the
constitutional limits on the powers that the democracy can exercise over its
citizens. These limits are prescribed in a Constitution which promises justice,
liberty and equality to the people in its preamble, and guarantees the rights
to equality, free expression, and life and liberty in a bill of rights. It
doesn’t take genius to figure out that if the guarantee of liberty means
anything, it means that the state cannot detain a person without good cause,
nor can it punish adults for consensual sexual expression in their bedroom.
On both occasions, the judges involved (with the honourable exception of
the dissenting judge in ADM, Jabalpur, Justice Khanna)
made a mockery of the Constitution and made its promises to the people ring
hollow. On both occasions, they held that there are no effective limits on what
the state can do to the people. Citizens became playthings in the face of
whimsical, arbitrary power of the state. At least the majority judges in ADM, Jabalpur had something of an excuse, even if no justification. They were deciding during the dark days of the Emergency, when
everyone—judges included—was scared of a paranoid dictatorial government. No
such excuse seems available to the bench in Koushal. What is worse, as
other posts on this blog and elsewhere have pointed out, the judgment in Koushal fails even to perform the
fundamental judicial task of providing reasons for its judgment. The ‘judgment’
is a series of long quotations from previous cases, with little effort to
explain how these cherry-picked precedents relate to the case at hand or
justify the conclusions that the judges ultimately reach.
I will do a point-by-point critique of the judgment in another post.
Here I just want to say that the judgment is a sign of a deeper institutional malaise.
There are moments in an institution’s life which should force a rethink of its
central purpose. ADM, Jabalpur was one such moment. After the Emergency, the Supreme Court vigorously
reinvented itself as the people’s court. The ‘80s saw it reading rights
expansively and standing up for groups forsaken by the democratic
process—slum-dwellers, prisoners, and bonded labourers. It fought hard to re-earn
the legitimacy it had lost in ADM, Jabalpur. Quite
successfully. Too successfully.
By the ‘90s, the Court was beyond reproach. Cheered on by liberals and
progressives, it came to be seen as the last beacon of hope in a context where
institutional paralysis and corruption was fast becoming the norm. The Court’s
excesses since the late ‘90s have been well-documented. Too much power and too
little criticism is a lethal combination.
The Court’s spectacular failure in Koushal to stand up for basic liberty, and the astonishing wisdom and courage
displayed by some political parties since the judgment should force another
fundamental reflection. The role of and the relationship between the judiciary
and politics need to be reassessed. The lazy liberal scepticism of democratic politics and
the dangerous unquestioned faith in the courts need questioning. Parliament
needs to start working again, courts need urgent reform. Civil society and the
academy must continue to be vigilant, to prevent these instruments of the democracy
from turning on its people.
In the next post, I will show that it was not just the individual
failure of the judges involved to rendezvous with reason that resulted in Koushal. The problem is deeper. It lies
in the structural deficiencies and institutional infirmities that the Indian
judiciary has come to be afflicted with. After its second ADM, Jabalpur moment,
the Supreme Court needs another reinvention. This time, however, we cannot
leave the task to the judiciary alone.
Written by
Tarunabh Khaitan
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  • I think we are overreacting to the Supreme Court decision. A reading of the last para suggests that the court is asking the population of this country to make the legislature enact a law and not the judiciary. For how long can the judiciary continue to act on behalf of the people. In the light of the recent (quasi?) political movements including Anna Hazare's, AAP, and the Nirbhaya, perhaps, the Supreme Court thought it fit to leave the matter to the people and the Parliament. High time, we ask our legislature to enact a law.

  • I thought the whole point of fundamental rights was to ensure the protection of minorities precisely because the majoritarian political process could not give them that protection?