This is just a quick jotting.
News items are reporting that a bench of the Supreme Court has referred a petition to the Chief Justice of India, seeking 'quashing' of Section 377 IPC - the anti-gay law as it is now commonly called (Hindu link here, NDTV here, and Times of India here). It is also reported that the petition is fronted by various individuals of public persona, challenging the provision on grounds of it violating their sexual freedom (could be Article 19 and/or Article 21). The Division Bench before whom the petition was posted agreed to send it to the Chief Justice, to decide whether it should be tagged with the curative petitions filed against the decision in Suresh Kumar Koushal v. Naz Foundation & Ors.
If the Supreme Court in Koushal held that the Legislature is the one responsible for deciding whether a statutory provision must be repealed - for that is effectively the import of the submissions in this case - then one asks what has happened in the Legislature regarding this? Very little, lamentably. In the years post Koushal, we have managed to hear the Union Minister for Law stated once in parliament that the Government will engage consultations. A private member's bill was presented by MP Shashi Tharoor, but was not allowed to be introduced in the Lok Sabha. Consequently, no debate has been raised in parliament on this issue.
Here things become interesting. For one, I do agree with the argument that seeking judicial repeal of statutes is contrary to a democratic setup with an elected parliament. But every theory holds with a certain premise, and the premise behind the separation of powers doctrine is three functioning pillars of democracy. It would perhaps be better to call it the balance of powers, for if one pillar fails the balance must still be maintained. Many would argue that the Indian Legislature is teetering on the verge of collapse, with little or no engaged debate on proposed legislation. In light of this, it becomes important to place the spotlight on the rejection of the private member's bill in the Lok Sabha. Could it be construed as the Legislature considering and then deciding against any change to Section 377 IPC, or as the Legislature failing to consider the question itself?
The Supreme Court, ideally, should address this question as it could help refine an important area in the legal terrain of substantive due process in India. Perhaps, the Constitutional Bench could arrive at some limited exception to allow the Supreme Court to step in and consider issues of substantive due process where the Legislature has just booted the question without consideration. It might go a long way in re-tilting the lop-sided balance between the institutions of our democracy.