Of Koushal v NAZ Foundation’s Several Travesties: Discrimination and Democracy

by | Dec 12, 2013

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About Shreya Atrey

Shreya Atrey is an Associate Professor in International Human Rights Law at the Department for Continuing Education and the Faculty of Law, based at the Bonavero Institute of Human Rights. She is the Editor of the Human Rights Law Review and an Official Fellow of Kellogg College. Her research is on discrimination law, feminist theory, poverty and disability law. Her monograph, Intersectional Discrimination (OUP 2019), which won the runners-up Peter Birks Book Prize in 2020, presents an account of intersectionality theory in comparative discrimination law. Shreya is currently working on project on 'Equality Law in Times in Crisis' funded by the British Academy. Previously, Shreya was based at the University of Bristol Law School (2017-19). She was a Max Weber Fellow at the European University Institute, Florence in 2016-17 and a Hauser Postdoctoral Global Fellow at the NYU School of Law, New York in 2015-16. She completed BCL with distinction and DPhil in Law on the Rhodes Scholarship from Magdalen College, University of Oxford.

There are many things wrong about the 98 page decision of the Indian Supreme Court in Suresh Kumar Koushal v NAZ Foundation. The Court’s extensive quoting but tenacious refusal to engage with the text of the Delhi High Court judgement (of which this case is an appeal); reciting but refusing to analyse the arguments made before the Court in any depth; the “self-restraint” in exercising judicial review which bleeds into the abdication of the constitutional mandate to review laws at the altar of fundamental rights; a misplaced reliance and eventual misapplication of the presumption of unconstitutionality; and the glaring absence of any well-considered constitutional analysis based on fundamental rights leading to the final decision of overturning the decision below that read down s 377 of the Indian Penal Code to de-criminalize consensual sex between consenting homosexuals. All these aspects present a wide template for criticising a rather unexpected, and deeply shocking decision.

Barely a day after celebrating the Human Rights Day and a few down registering a win for Indian democracy through the Delhi Assembly Elections with an impressive debutant performance of the grassroots Aam Aadmi Party (Common Man Party); we are handed the Koushal decision – leaving a disparaging impact upon human rights adjudication, in the name of upholding democracy. The core of the decision lies in the Court’s understanding of its role in adjudicating fundamental rights of the citizens and how it uses, rather poorly, the theories of separation of powers, democracy, judicial self-restraint and deference, all within the smokescreen of presumption of constitutionality (para 26), for dogging a concrete legal analysis. It is the manner of using this doctrine, which the Delhi High Court might have underplayed in its assertion that “there is no presumption of constitutionality of a colonial legislation”, which is problematic. The trouble lies in the Court’s failure in carrying the doctrine through to analyse the evidence before it for rebutting the initial presumption in reference to the Constitution. That is what the Court had previously done in Anuj Garg for a pre-constitutional provision stating that: ‘Although it is saved in terms of Article 372 of the Constitution, challenge to its validity on the touchstone of Articles 14, 15 and 19 of the Constitution of India, is permissible in law.

The lack of a full appreciation of the rebuttal based on fundamental rights, whilst jumping to the final decision that s 377 has no constitutional infirmity, is legally untenable. For the Court, the decision seems to have been made simply with the fact that a presumption existed at all. In its zeal to save s 377 it forgets that although presumed to be constitutional, the provision may still have to withstand constitutional scrutiny. The absence of any real and critical constitutional analysis is disturbingly omnipresent. The oversight in relation to Article 15 of the Constitution (the anti-discrimination guarantee) is perhaps most fatal. Whilst equality gets a passing reference (para 42), the Court turns a complete blind eye to the well-crafted Article 15 analysis of the Delhi High Court. In this way, the apex court at the end of 2013 further diminishes an already deplete discrimination jurisprudence in India.

Both Anuj Garg and the Delhi High Court had very carefully revived the content and scope of Article 15 by: (i) giving meaning to the harm of discrimination as infringing upon individual autonomy; (ii) realising the salience of grounds for extending the protection to ‘analogous’ grounds; and (iii) establishing a stricter standard of scrutiny in discrimination cases. The Court in Koushal bypasses even a bare mention of the discrimination framework before reaching its conclusion on Article 15. Had the Court referred to this framework it would have been reminded of its role in human rights adjudication. As noted in Anuj Garg: ‘It is for the court to review that the majoritarian impulses rooted in moralistic tradition do not impinge upon individual autonomy.’

It is the significance of rights like Article 15 on the right against discrimination which remind the Court of the value and consequence of protecting those rights. A Court which appreciates the prohibition of certain devious distinctions, also understands what it has to do in regards those distinctions. Repeated reliance on footnote four of Carolene Productsdoes little to aid the Court’s myopia where it should have ordinarily seen that ‘prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities’. By leaving it to the democratic procedures of the Parliament, the Court bypasses its own constitutional mandate of reinforcing democratic processes through judicial review. Instead, it abdicates the essential role of adjudicating upon a breach of fundamental rights, especially in relation to, ‘miniscule fraction of the country’s population’ (para 43), who have a right not to be discriminated against on the basis of their sexual orientation.

Shreya Atrey is a DPhil Candidate in Law at the University of Oxford, Chair of Oxford Pro Bono Publico and a regular contributor to the OxHRH Blog.

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