IN THE GENTEEL WORLD of the law, judicial disagreements are usually papered over. Differences of opinion get reconciled through friendly chats between judges, and where that fails, resort is had, occasionally, to horse-trading—‘give-and-take’ in polite language—which leads to a united front being presented to the outside world, especially in fractious cases. In some countries, a deeply entrenched culture of deference ensures that judges seldom openly challenge positions taken by their more senior brethren. In short, public displays of disunity are rare.
Two weeks ago, however, saw a striking exception to this trend in the Supreme Court of India. Three judges, two of them relatively low in the pecking order (the third has since retired), took on the might of the Chief Justice of India (CJI) and delivered a coup de grâce to his attempt to rewrite the law in a controversial area of public policy.
At stake in the dispute was not only the outcome for the litigating parties, but the fate of a cardinal principle of governance and the rule of law—namely, the separation of powers between the legislature and the judiciary. It would be no exaggeration to say that, had the three judges pulled their punches and gone along with the views of the CJI, the constitutional edifice would have suffered another hammer blow.
The case in question (Supriya Chakraborty & Anr vs Union of India) involved an attempt by a group of activists to redefine the concept of marriage in Indian law through judicial fiat. The activists were seeking, in essence, to get same-sex marriages recognised and given identical legal status as that enjoyed by marriages between heterosexual couples. That attempt failed.
It is not the purpose of this column to analyse or assess the merits of the rival arguments on the substantive issues which came up before the court. The issue of same-sex marriages, which formed the core of the case, is a complex one, with arguable points on both sides of the divide. What is sought to be canvassed instead is the view that those points are more appropriately addressed in forums other than courts of law.
For far too long, the Supreme Court has pushed the boundaries of judicial review to breaking point. The architects of the Indian Constitution quite sensibly included the power of judicial review as part of the checks and balances essential for a country aspiring to be governed by the rule of law. But, even with all the epic tussles that the judiciary had to face against domineering executives and pliant legislatures, the Constitution-makers could not have foreseen the extent of the power grab that has ensued in the past quarter-century. Among other things, judges have appropriated to themselves the power to appoint other judges and to micro-manage administrative and governance matters to such an extent that the lines between adjudicating and governing have been all but blurred.
The reasons for this extraordinary turn of events are many and varied, but key factors include: a growing failure on the part of the executive to discharge its obligations, leaving the vacuum to be filled by the judiciary; overweening ambition and populist tendencies on the part of some judges, through a combination of guile and a talent to play to the gallery, to convince the people that the judiciary was their only hope against corruption and other ills; the ‘judicialisation’ of problems which are essentially political in nature; the runaway growth of ‘rights’ (many of which do not even find mention in the Constitution); and weak governments which allowed ‘function creep’ by judges to go unchecked.
The result has been catastrophic. Apart from skewing the finely crafted balance in the Constitution, this judicial overreach has engendered exaggerated expectations among ordinary people. A further cause for worry is that there has been a precipitous fall in standards of competence and integrity in the judiciary.
There will be a flurry of activity over the high-powered committee that the government has undertaken to constitute to suggest measures to help same-sex couples. The CJI’s push for civil unions as an alternative was rebuffed categorically by the three dissenting judges. The government will, it is hoped, conduct the promised review with thoroughness
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The same-sex marriage case offers some object lessons which it may not be too late to heed. The case should not have been allowed to cross the threshold of the Supreme Court. The subject-matter of the litigation cannot reasonably be said to be justiciable; it fell squarely within the province of the legislature, notwithstanding assertions to the contrary from the CJI. Second, much of the arguments presented to the court—and some of the discussion in the leading judgment—consisted of little more than unsupported assertions, sociological mumbo-jumbo, and flaky conjectures. In the place of reasoned arguments and doctrinal dissection, what the court offered was repeated assertions of “constitutional morality”—a catch-all mantra which is as arbitrary as it is dangerously subjective.
There was, of course, much virtue-signalling in the leading judgment. In a further nod to political correctness, the CJI also included gratuitous insults to those who disagreed with his view of how individual dignity should be protected; he referred disparagingly to the “morality of the mob” (citing his own observations from a previous judgment). For additional support, he pressed in aid contentious documents of doubtful probative value emanating from self-appointed ‘experts’ as well as selective opinions whose reasonableness remain untested.
Echoing the CJI’s sentiments but with far less presentational slickness was a concurring judgment by Justice Sanjay Kishan Kaul. He offered many platitudes to equality, non-discrimination, historical injustice and suchlike, even going so far as to assert that the Special Marriage Act 1954 (a law which Parliament enacted to allow inter-religious and inter-caste marriages to be solemnised and which the same-sex lobbyists targeted to serve their purposes) is unconstitutional, only to add swiftly that the court could do nothing about it (even the Chief Justice balked at entering such a finding).
Against that deeply depressing landscape, there is one silver lining which cannot be ignored. It has to do with the bold stand taken by the three dissenting judges, Ravindra Bhat, Hima Kohli and PS Narasimha (the first two penned a joint judgment, and Justice Narasimha supplemented it with a hard-hitting offering of his own). What stands out in these decisions is the judges’ clear-headedness and fidelity to principle. In essence, they make the simple but important point that, whatever one may think about the rights and wrongs of the treatment of homosexuals (and they make no judgment on that), the court cannot be the forum for agitating such issues. In fairly pithy language— without any embellishments or highfalutin phrases, much less decorative props from trendy academics—they argue, in effect, for a return to first principles in the matter of Constitutional adjudication.
It is extremely unlikely that the present round of litigation on this thorny issue will be the last. Experience should tell us that another attempt will be made to re-run the arguments, possibly through a review petition, before a Bench that will, hopefully, take a more relaxed view of the niceties of separation of powers, etc. More immediately, there will be a flurry of activity over the high-powered committee that the government has undertaken to constitute to suggest measures to help same-sex couples, short of granting them marriage rights. The CJI’s push for civil unions as an alternative was rebuffed categorically by the three dissenting judges. Many would see this as little short of a bloody nose for the CJI.
The government will, it is hoped, conduct the promised review—headed by the Chief Secretary— with thoroughness, professionalism, lack of haste, and obliviousness to pressures from any quarter. Since the exercise includes engagement with a wide range of stakeholders and consultations with state governments, it will be surprising if the process can be completed quickly. The government should spare no effort to dampen expectations of an early result.