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Supreme Court Strikes Down Article 377: Judicial Activism and India's Fundamental Rights

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Sep 11, 2018 10:54 AM 6 min read

The 6th of September 2018 will be remembered as a landmark day in the history of Indian jurisprudence. The Supreme Court, the highest body tasked with the interpretation of the Constitution of India and associated laws, struck down the colonial era Section 377 of the Indian Penal Code which criminalized same-sex relations.


There has been enough written about 377 itself and why it made sense for it to be repealed in modern society, but it is also important to look at the structure of the decision making process of the Supreme Court. What really happens when such a provision in law is challenged? Can we challenge any and all laws? Can we go directly to the Supreme Court if we feel aggrieved? How does the Supreme Court decide if a law is good or bad? What happens after the judgment is made? This article will attempt to answer some of these questions and hopefully help you understand how laws affect you and society at large.



Fundamental Rights

On 9 December 1946, representatives of the Indian provinces, princely states and chief commissioners of provinces met together for the first time as the Constituent Assembly of India. Their task - draft a Constitution which would underpin the democratic exercise in a soon-to-be independent country. On 26 January 1950, the longest written Constitution in the world came into effect - concluding a remarkable exercise that produced an even more remarkable document, thus setting the course for our democracy.


One of the foundational parts of the Constitution is Part 3 (Articles 12 - 35), which deals with Fundamental Rights. These include individual rights and also remedies if these rights are violated in any form.


The fundamental rights are (for an in-depth and word-to-word reading, go here):


Right to Equality (Articles 14-18)

  • Article 14 - Equality before law and equal protection of laws
  • Article 15 - Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
  • Article 16 - Equality of opportunity in matters of public employment
  • Article 17 - Abolition of Untouchability
  • Article 18 - Abolition of Titles

 Supreme Court Strikes Down Article 377: Judicial Activism and India's Fundamental Rights


Right to Freedom (Articles 19-22)

  • Article 19 - Guarantees six freedoms - freedom of speech, peaceful assembly, forming associations, freedom of movement throughout India, to reside in any part of India, to practice any profession
  • Article 20 - Protection in respect of conviction for certain offences
  • Article 21 - Protection of life and personal liberty
  • Article 21A - Right to Education (added recently after enactment of the Right to Education Act)
  • Article 22 - Protection against arrest and detention in certain cases

 Supreme Court Strikes Down Article 377: Judicial Activism and India's Fundamental Rights


Right against Exploitation (Articles 23-24)

  • Article 23 - Prohibition of trafficking in human beings and forced labour
  • Article 24 - Prohibition of employment of children in factories etc


Right to Freedom of Religion (Articles 25-28)

  • Article 25 - Freedom of conscience and free profession, practice and propagation of religion
  • Article 26 - Freedom to manage religious affairs
  • Article 27 - Freedom as to payment of taxes for promotion of any particular religion
  • Article 28 - Freedom as to attendance at religious instruction or religious worship in certain educational institutions


Cultural and Educational Rights (Articles 29-30)

  • Article 29 - Protection of interests of minorities
  • Article 30 - Right of minorities to establish and administer educational institutions

Supreme Court Strikes Down Article 377: Judicial Activism and India's Fundamental Rights

Right to Constitutional Remedies (Articles 32-35)


  • Article 32 - Remedies for enforcement of rights
  • Article 33 - Power of Parliament to mofidy the rights in their application to Forces etc.
  • Article 34 - Restriction on rights while martial law is inforce in any area
  • Article 35 - Legislation to give effect to the provisions of this part



Fundamental Rights and the Supreme Court

I’d suggest you read the above list twice, because only then will you start to realize the importance of these basic rights today. In 1950, they were nothing less than revolutionary - giving women and minorities equal rights, and allowing everyone to vote. In contrast America only gave African Americans the right to vote in 1965, a full 15 years after Indians irrespective of caste, religion, sex, economic and literary barriers came together for the largest democratic exercise in history - the first elections to the Parliament.


What you will also realize is that a lot of these rights are subjective - for example what does Article 21 - the right to life and personal liberty - actually mean on the ground? For all their path breaking ideas, our Constitution makers preferred not to get into details, leaving it to the wisdom of future generations to figure it out for themselves. In case of any confusion, the Supreme Court is the final authority on what each word of the Constitution actually means on the ground. Hence the exalted position that the SC holds in Indian polity.


If a citizen feels that any of her fundamental rights have been violated by the State, they can directly approach the Supreme Court. This is a vast and unabridged power - the SC is a direct protector of the citizen’s fundamental rights.


How the Supreme Court deliberates on laws

This now leads us to our next question - once the SC is approached, how does it decide whether a law is good or bad? The Court primarily relies on the Constitution itself and interprets the provisions vis-a-vis the laws. Any law that is held to be against the Fundamental Rights is automatically struck down.


Let’s take the example of Section 377. A law that criminalizes sexual relations between two citizens has been held to be against Article 14 (right to Equality), and Article 21 (right to life and personal liberty). In addition, the Court also ruled that since the Right to Privacy was held to be a part of the right to life and personal liberty earlier this year, the right to bodily privacy and sexual autonomy was a natural progression.


Any law that restricts homosexuals from their natural actions will act against their right to equality, and right to life and personal liberty. This is the key to Section 377 being struck down. “It typecasts LGBTQ individuals as sex-offenders, categorising their consensual conduct on par with sexual offences like rape and child molestation. Section 377 not only criminalises acts [consensual sexual conduct between adults] which should not constitute crime, but also stigmatises and condemns LGBTQ individuals in society,” Justice Chandrachud said.

Supreme Court Strikes Down Article 377: Judicial Activism and India's Fundamental Rights


Right - so that’s to the death of Section 377 (which no government in power has opposed in Court ever - a stand which the Court criticized). But here’s what’s even more interesting - there are more cases being heard in Court over the next few weeks which will stretch the interpretation of these Fundamental Rights to the limit. One is a petition to allow women between the age of 15-50 to enter Sabari Mala, a shrine in Kerala where women have not been allowed - theoretically this does violate Article 14 (the right to equality) of women since they are treated differently. Another one is on the validity of Aadhaar - does the implementation of a nationwide scheme like Aadhar and its compulsory use for various services violate the right to privacy (part of Article 21)? Really big days ahead for our democracy. Fingers crossed.


What should you take away from this article?

You as a citizen have fundamental rights guaranteed to you by the Constitution, which are protected by the Supreme Court. This is an extremely powerful provision, and to be aware of what these rights imply is the first step to being an informed citizen.


I leave you with a couple of quotes from the judgment which underpins what our Constitution and democracy is all about.


“Morality cannot be martyred at the altar of social morality. Only Constitutional morality exists in our country.”

“Majoritarian views and popular views cannot dictate constitutional rights. LGBT community possesses human rights like all other sections of society. Equality is the essence of the constitution. 377 is arbitrary.”


More nuggets here.


Highlights from the verdict.


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