I recently wrote 3 guest posts for the Indian Constitutional Law and Philosophy blog reflecting on the legal journey of section 377, culminating in the just-concluded hearings in the Supreme Court. 

In the first post, titled “Inclusive Pluralism or Majoritarian Nationalism”, I argued that the Court should use an expansive reading of Article 15 when reading/striking down s 377. Much of my work on Article 15 is hyperlinked in this post. I argued for this position for two reasons: 

First,  “The Court inflicted a material injury and an expressive wrong on the LGBTQ people of India. The correction must go beyond the material too, and include an expressive remedy. The Court must make sure that its apology is full-throated, and not muted. One way to do so is to un-condemn and celebrate the difference of those it hurt and insulted under the pluralistic ambit of Article 15.”

Second, in the correct political context, ” the dominance of inclusive pluralism as the defining feature of our constitutional identity itself is at stake. Majoritarian nationalism is waging a spirited battle, not just for continued political relevance but for the very soul of our polity. It doesn’t just seek to win the game, it is trying to change the rules of the game. Which side the Court comes down on, and how robustly, may not determine, but will surely affect the outcome of this battle over defining who We, the people of India, really are.”

In the second post, “On the Presumption of Constitutionality for Pre-Constitutional Laws”, I argued that the decision of the Supreme Court in “Anwar Ali Sarkar set a clear, if usually ignored, precedent of a 7-judge bench that pre-constitutional laws do not deserve the presumption of constitutionality. The idea was revisited even more strongly in the Supreme Court’s opinion in Anuj Garg”. The post ended with this advice: “The Supreme Court, following the High Court’s progressive ruling animating constitutional interpretation with the value of swaraj, will do well to lay the foundations of a decisively anti-colonial jurisprudence by confirming that pre-constitutional laws are not owed the presumption of constitutionality.”

The third and final post, “Against Natural Rights”, argued that the Supreme Court should *not* declare the right to intimacy as a ‘natural’ right–a declaration of this right as a ‘fundamental constitutional right’ will suffice. I showed that the only coherent reading of Kesavananda Bharati on the issue of natural rights was the opinion of Justice Khanna, that “It is up to the state to incorporate natural rights, or such of them as are deemed essential, and subject to such limitations as are considered appropriate, in the Constitution or the laws made by it. But independently of the Constitution and the laws of the state, natural rights can have no legal sanction and cannot be enforced.” 

Furthermore, “Apart from being potentially in breach of stare decisis, the resurrection of the natural rights discourse in Puttaswamy is unfortunate and unnecessary. It is unnecessary because everything the Court needs doctrinally and normatively is already available in the constitutional provisions and values, its historical ethos, and its basic structure. These constitutional resources are sufficient to hold that habeas corpus cannot be suspended, that transgender persons have a fundamental right to equality, non-discrimination and liberty, and that the right to privacy is a fundamental, irrevocable, constitutional right. Seeking additional support from a dubious notion of natural rights does no good, and has the potential to do harm.” The natural rights discourse has often promoted conservative/orthodox Christian values, often in conflict with our contemporary understanding of human rights. Wary of its sometimes libertarian, sometimes reactionary pedigree, I suggested that the Court should roll back its embrace of ‘natural rights’ in Puttaswamy.

After all, “The natural order of things has seemed unfair from the vantage point of those on its margins. Arguments invoking the natural order have a habit of getting in the way of things as they should be. Ours is a transformative rather than an acquiescent constitutional heritage. It is a tradition informed by voices from the margins of society, and not just its natural core. That is the tradition we need to invoke as we extend the ethos of inclusiveness to a long-excluded minority, rather than rely on an at-best elusive, at-worst reactionary, notion of natural rights.” 

Written by
Tarunabh Khaitan
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1 comment
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