Naz and Reclaiming Counter-Majoritarianism
The term “counter-majoritarian” has, more often than not, been used in a derogatory fashion – especially when it is used to describe an institution like the Supreme Court. However, after the Supreme Court’s ruling on S.377 of the Indian Penal Code, whereby it re-criminalized homosexuality after four years of it being decriminalized in India, it may be time for the Supreme Court to actively engage with the idea of being a “counter majoritarian” institution when required.
Judicial review has primarily arisen from the idea that in a functioning democracy, there is a need for a balancing institution to keep the majoritarian view in check. According to Dworkin, a counter majoritarian institution, like the Supreme Court, is tasked with the responsibility of protecting the rights of minorities and shielding them from the majoritarian voices not in consonance with a nation’s constitution as well as universally accepted norms of human rights.
In this context, a few points stand out in Suresh Kumar Kaushal v. Naz Foundation and Anr, which overturned the Delhi High Court’s decision decriminalizing homosexual conduct. In para 43 of its judgment, the Supreme Court categorically stated that the Delhi High Court, while decriminalizing homosexual activities, ignored the fact that members of the LGBT community form a miniscule fraction of the country’s population and, therefore, the High Court’s reasoning was misplaced in striking down the law
Furthermore, in para 32, the Court held that the will of the legislature was reflected by the fact that the law remained unamended even after the passing of the 2013 amendments to the Indian Penal Code. (However, at the same time it conveniently ignored the fact the Government per se did not prefer an appeal and, in fact, accepted the legal soundness of the High Court’s verdict [para 21]).
Additionally, in para 52, by stating that the Parliament would be the final arbiter as regards the “so called rights” of the lesbian, gay, bisexual and transgender community, the Supreme Court has pushed this issue, a political non-starter, into the political realm: one which is inherently majoritarian in nature.
These observations by the Supreme Court highlight its misplaced approach to the recognition and protection of the rights of minority groups in this country. By taking such a majoritarian stance, the Court has not only ignored history (i.e when the will of the majority was disregarded to bring about progressive social change by allowing widow remarriage and also criminalizing the accepted social practice of immolation of a widow on her husband’s funeral pyre, to name a few instances). It has also ignored constitutional values so eloquently enunciated as “constitutional morality” by the Delhi High Court. It has put the dignity that the LGBT population is most certainly entitled to in the hands of a hetero-normative populace with deep-seated notions of gender norms and stereotypes rooted in tradition and religion.
By following an isolationist approach based on majoritarian views, and ignoring the ever evolving global rights movement, as well as comparative constitutional jurisprudence, the Supreme Court runs the risk of being a status quo-ist, and not a progressive, institution. This is simply not acceptable in a country which claims to be the largest democracy in the world.
The rule of law necessitates governance by law and not governance by the mere will of the majority. While this assertion may seem antithetical to the normative understanding of the “law”, especially in a democracy, it can safely be said that sometimes the rule of law and the “rule of the majority” can be mutually exclusive. As highlighted above, there are, and have been, certain instances that require institutions to disregard majoritarian sentiments and turn towards higher constitutional principles. The Court may have tried to be counter-majoritarian in the past, but cherry picking its approach depending on how it feels on a particular issue (as evidenced by its treatment of LGBT rights as “so called rights”), and its misplaced deference to a majoritarian institution like the Parliament, especially in matters of civil liberties, not only delegitimizes its existence as an institution, but also questions the very meaning of the rule of law.