— Narasimhan Vijayaraghavan
Terming the matter of same-sex marriages as having “seminal importance”, the Supreme Court on 13th March,2023 said that a batch of petitions seeking the legal validation of same-sex marriage will now be heard as a constitutional case by a five-judge bench from April 18,2023 .The proceeding will be live-streamed.
There is no doubt that it is a matter of ‘seminal importance’. But is there a limit to the remit of even the Supreme Court of India in examining any and every issue of ‘seminal importance’. Merely because of its ‘seminal importance’ does an issue rise to the status of justifying !assumption of jurisdiction’ by the apex court. Undoubtedly, it relates to a matter of life and more, to our fellow brethren. But does it morph into a constitutional issue from being a simple policy decision fit for Parliament to discuss,debate and decide.We shall explore.
Art. 245. (1) of our Constitution reads: Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State.
The critical expression is ‘making law’. Would ‘legal validation of same-sex marriage’ amount to conferment of non existent rights, as on date. And be a case of Supreme Court ‘making law’ which lies in the exclusive domain of our legislatures? Or, in the absence of any legal bar or prohibition ( rather than enabling provision) can the court conclude that it would be ‘discriminatory’ to prevent same-sex marriage?
Yes, issues of ‘seminal importance’ do arise. But of multiple genre. Even as the pleadings get settled before the Supreme Court, the debate in the court of public opinion has begun in right earnest.In a rare sense of unanimity and unbelievable convergence: Muslim, Jain, Sikh and Christian leaders, along with the RSS viz.read Hindu, are opposing same-sex marriage arguing that it contravenes religious scriptures, societal values and the natural family order.
We shall confine to legal remit viz. law. And not go elsewhere or beyond. Judiciary is entrusted with the responsibility to ‘interpret’ law ‘made’ by legislature. They are not ‘supposed’ to ‘make’ law themselves. Excuse me, to those in the know, that is ‘theory in academia and practice in court as much cheese is different from chalk’ as Chief Justice P N Bhagwati put it.
To quote from Rai Sahib v State of Punjab ( 1955 -SC) cited in Asif Hameed v State of J&K (1989 -SC): “ Although the doctrine of separation of powers has not been recognized under the Constitution in its absolute rigidity, the Constitution makers have meticulously defined the functions of various organs of the State. The legislature, Executive and Judiciary have to function within their own spheres demarcated in the Constitution. No organ can usurp the function of another. While exercise of powers by the legislature and executive is subject to judicial restraint, the only check on our own exercise of power, is the self-imposed discipline of judicial restraint”.
In Chander Hass (2007-SC) it was said that “Judges must know their limits And not try to run the government . They must have modesty, humility and not behave like Emperors. There is broad separation of powers under the Constitution and each of the organs of the State must have respect for the others and must not encroach into each others’ domain”.
And Black’s Law Dictionary would suggest, “Judicial Activism was a philosophy of judicial decision making whereby judges allow their personal views about public policy, among other factors, to guide their decision”
This is theory. What is the practice? Read Visakha v State of Rajasthan (1997-SC) “ In the absence of enacted law to provide for effective sexual harassment and abuse, more particularly against sexual harassment at work places, we lay down the guidelines and norms specified herein after for due observance at all work places or other institutions, while a legislation is enacted for the purpose. This is done in exercise of the power under Art.32 of the Constitution for enforcement of the fundamental rights and it is further emphasized that this would be treated as the law declared by this Court under Art.141 of the Constitution”.
Visakha guidelines were ‘made’ law by Parliament in Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act,2013. ‘Making law’ came latter, you see.
“ There is a myth strongly nurtured by the Anglo-Saxon tradition and propagated by many jurists that judges do not make law, they merely interpret the law. Law is there, existing and immanent, and judges merely find it. The law making function does not belong to them but it belongs to the legislature and the judges merely reflect what the legislature has said……it has been deliberately constructed in order to isolate judges against vulnerability for what they decide, because they can always plead helplessness( even if the law they declare is unjust) by saying that it is the law made by the legislature and they have no choice but to give effect to it. It is only natural that judges wish to exercise power but not be accountable to anyone for such exercise. It is also natural for them to indulge in the fiction that they are merely carrying out the intention of the legislature or discovering the immanent something called the law”.
Hard hitting and absolutely as blunt as it comes. Next time, some academician or a court of law talks of this ‘myth’, he/they better recall these words of a former Chief Justice of Supreme Court of India in My Tryst with Justice,2013.
Benjamin Cardozo (1870-1938) one of the most influential Judges of the US Supreme Court even while saying , “The judge even when he is free is not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal or beauty or of goodness. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence” also said, “ I take judge-made law as one of the existing realities of life” (The World of Benjamin Cardozo-Richard Polenber-2012 reprint) .
On the other side of the spectrum: In Dayaram v Sudhir Batham (2012-SC) it was said, “This Court has neither re-written the Constitution nor resorted to judicial legislation. The judicial power was exercised to interpret the Constitution as a living document and enforce fundamental rights in an area where the will of the elected legislatures have not expressed themselves”.
To paraphrase the top court: Our judgments should not be read as judge-made law. While interpreting, if we issue directions or guidelines to take the place of absentee legislations to fill the vacuum, then we are only interpreting the law. Touche!
Let’s indulge in a bit of Constitutional tourism. There is the classic duel between Lord Denning and Lord Simmonds in Magor and St.Mellons RDC v Newport Corporation of 1952 vintage : “We do not sit here to pull the language of Parliament to pieces and make nonsense of it. We sit here to find out the intention of Parliament and carry it out and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis”.
Simmonds described Denning’s foray as ‘naked usurpation of legislative function under the guise of interpretation’ If a gap is disclosed the remedy lies in an amending Act”. But Denning has been vindicated more often than not subsequently and his dictum “Do Justice in spite of law’ has travelled across borders.. His ‘moulding of the law to keep with the times’ has found favour with the House of Lords and found resonance with the ‘masses’ too, even if the critics have had enough ammunition to keep them in business.
It would suffice to support this evolution with Kleinwort Benson Ltd v Lincoln City Council in 1998 (4) All ER 513 where the celebrated common law rule that a payment under mistake of law was irreversible, was overcome by a majority, “ because a more robust view of the development of law was called for’.
Critics hollered that this was ‘gross transgression of legislative terrain and what of the period of limitation’. The recent decisions of the UK Supreme Court on environmental law have gone far from the ‘restrictive days’ as in South Staffordshire Tramway Company case in 1891 (1) QBD 402, Cabell v v Markman in 1969 (1) WLR 928.So, the truth is that UK too is not so enamoured of the concept of “Judicial Legislation’ being anathema, and the academia may not have fully reconciled with it yet.
Coming to US, the expression ‘Judicial Activism’ was coined by Arthur Schlesinger Jr. in Jan,1947 in an essay in the Fortune Magazine. Thomas Jefferson, US President had a colourful expression for it, in “despotic behaviour of Federal Judges”. In the US, Marbury v Madison of 1803 vintage itself, on upholding juridical review, was a classic departure and it has been followed by scores of decisions as in Brown v Board of Education in 1954, Roe v Wade in 1973 ( now reversed in 2022 in Dobbs’ decision), the famous Miranda v Arizona directions of 19, Dickenson v US City Boerne in 1997 and so on. Antonin Scalia, on the Supreme Court Bench for the past 26 years notwithstanding, sticking to his ‘originalism’, the majority verdicts have all seen blatant departures so much so that a fellow Judge Anthony Kennedy has said, “ An activist Court is a court that makes a decision which you don’t like, one opposes as usurpation”.
The bottomline is again that whatever the academia may preach or suggest or say the Judges do espouse in US too, the felicity or faculty of ‘Judicial legislation, despotic or not’ said Lawrence Tribe a Harvard law professor.
The clincher on where we may be headed in India, is in classic and vintage Justice Antonin Scaliaspeak in Obergefell v. Hodges,[It is a landmark case of the Supreme Court of the United States on June 26th,2015. when it ruled by a wafer thin 5:4 majority ruled that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment of the Constitution].
Scalia wrote in his inimitable pungent prose: This is a naked judicial claim to legislative — indeed, super-legislative — power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judgment.” A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.
In the course of just nine pages, Scalia called the opinion of Justice Anthony M. Kennedy (whose was the swing vote) with whom he had served on the court for 28 years, “a judicial Putsch,” “pretentious,” “egotistic,” “silly,” and filled with “straining-to-be-memorable passages.”
Scalia memorably told his colleagues that their backgrounds made them “strikingly unrepresentative” of the American people: “This Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination.”
We do not want repeat more of the same. On either side of the divide. Just asking: Is our Supreme Court always able,ready,keen and willing to ‘make law’? Or they refrain at times? Or express judicial restraint? Or they pick and choose the occasion? What guides them while giving themselves a ‘free pass’? Or what holds them back them when they make a choice? Can we divine a precision tool at play? Is there an objective standard that is at work to divine the formula? Questions with no easy answers.
Sorry, even the best trained and well informed would struggle to zero in on any tool or ‘settled precedent’ to second guess our Supreme Court. It would be hazardous to even try. So, we refrain or guardedly express restraint.
It may suffice to submit that the one iconic occasion when the Supreme Court gave a pass to rational exuberance, when it was well poised to. It chose not to ‘make law’, when We the People would have loved them to.
That was on 27th August, 2014, in the case of Manoj Narula v. Union of India [Writ Petition (Civil) No. 289 of 2005], while dealing with the issue of choice of Ministers, a Constitution Bench per majority held that “it can always be legitimately expected, regard being had to the role of a Minister in the Council of Ministers and keeping in view the sanctity of oath he takes, the Prime Minister, while living up to the trust reposed in him, would consider not choosing a person with criminal antecedents against whom charges have been framed for heinous or serious criminal offences or charges of corruption to become a Minister of the Council of Ministers. This is what the Constitution suggests and that is the constitutional expectation from the Prime Minister. Rest has to be left to the wisdom of the Prime Minister.”
The Supreme Court imposed a limit on itself. Gave up its remit to Parliament saying ‘the power belonged there’. Now read what they said in Manoj Narula: “ In Municipal Committee, Patiala this Court referred to Parent of a student of Medical College and held that legislation is in the domain of the Legislature. It was said: “It is so well settled and needs no restatement at our hands that the legislature is supreme in its own sphere under the Constitution subject to the limitations provided for in the Constitution itself. It is for the legislature to decide as to when and in what respect and of what subject- matter the laws are to be made. It is for the legislature to decide as to the nature of operation of the statutes.”
28. More recently, V.K. Naswa referred to a large number of decisions of this Court and held that the Court cannot legislate or direct the Legislature to enact a law. It was said: “Thus, it is crystal clear that the court has a very limited role and in exercise of that, it is not open to have judicial legislation. Neither the court can legislate, nor has it any competence to issue directions to the legislature to enact the law in a particular manner.”
29.However, a discordant note was struck in Gainda Ram wherein this Court issued a direction to the Legislature to enact legislation before a particular date. It was so directed in paragraphs 70 and 78 of the Report in the following words:
“70. This Court, therefore, disposes of this writ petition and all the IAs filed with a direction that the problem of hawking and street vending may be regulated by the present schemes framed by NDMC and MCD up to 30-6-2011. Within that time, the appropriate Government is to legislate and bring out the law to regulate hawking and hawkers’ fundamental right. Till such time the grievances of the hawkers/vendors may be redressed by the internal dispute redressal mechanisms provided in the schemes.
“78. However, before 30-6-2011, the appropriate Government is to enact a law on the basis of the Bill mentioned above or on the basis of any amendment thereof so that the hawkers may precisely know the contours of their rights. This Court is giving this direction in exercise of its jurisdiction to protect the fundamental rights of the citizens.”
30. The law having been laid down by a larger Bench than in Gainda Ram it is quite clear that the decision, whether or not Sec.8 of the Representation of the People Act, 1951 is to be amended, rests solely with Parliament”.
So, which Supreme Court will show up in the matter of ‘seminal importance’ of ‘validating same-sex marriage’? Visakha to ‘make law’ or Manoj Narula to let the final imprimatur ‘rest solely with Parliament’.
Without taking sides on the issue of ‘seminal importance’, one can say it is a mouth watering or heart warming or gut wrenching prospect.
As We the People wait with bated breath, you be the JUDGE.
(Writer is author of Constitution & its Making/Working,OakBridge,2020/2021- a practicing advocate in the Madras High Court)