When the executive passes on the googlies to the Apex Court

Justice D Y Chandrachud is disappointed because the legislature sometimes hands over power (to decide sensitive issues) to the judiciary. According to him, it has happened in issues such as the power to govern the National Capital, the issue of passive euthanasia and (more importantly) challenge to Section 377, among other issues.

Justice Chandrachud is one of the five Apex Court judges, who in a landmark verdict last week, decriminalised homosexuality by scrapping Section 377. Two days after the judgment, he expressed his disappointment over lawmakers' role, while delivering a lecture on the topic "Rule of Law in Constitutional Democracy", at the 19th Annual Bodh Raj Sawhny Memorial Oration 2018, organised by National Law University, Delhi.

LGBTQ community, activists and politicians - who supported the cause - have always wanted Parliament to amend the colonial era law, instead of leaving it to the Supreme Court's constitutional bench. They should be happy to see their own expression coming from the judge who would be Chief Justice of India in a couple of years. There have been voices from politicians that supported decriminalisation of homosexuality.

Former union minister Milind Deora is one such. Proud that he was among the first to support LGBTQ through his writings, he said he was also sad as the Apex Court had to do the job of the Parliament. The Deoras, in political circles, do not blame a particular regime because they know that they were a minority that stood for the LGBTQ cause, and promised to walk the extra mile to ensure a constitutional right to freedom. Some young BJP leaders like Poonam Mahajan too have welcomed the verdict, despite allegations that her party, like other 'conservatives', would not have tabled a gay sex bill.

Sensitivity lies elsewhere
The answer to the judge's dissatisfaction lies in the agreement that political parties reach out to the courts when they think fulfilling a particular demand may upset a certain section of people. The ruling party takes the lead in such matters and the opposition supports it for reasons both sides find suitable to their vote bank politics.

It also happens when a controversial lawmaking needs to be avoided because of political compulsions. The examples are - the Shah Bano case of 1986, and more recently a SC directive that diluted the SC/ST (prevention of atrocities) Law. The judgments in both cases were reverted by Parliament.

In Shah Bano's maintenance case, a minister in Rajiv Gandhi cabinet Arief Mohammad Khan had quit in protest of his government's stand because he wanted justice for Muslim women. In another development that is expected to see a clash between the two important institutions of our democratic set-up, the SC/ST Act which has been restored to its original format, was challenged last Friday. The Apex Court has sought the Centre's response in six weeks.

In some sensitive issues, the SC avoids a face-off with Parliament. Last year, while ruling against the triple talaq, it asked the Union Government to make a law to this effect. The BJP has passed the bill in Lok Sabha, but Rajya Sabha has stalled it as the opposition, doesn't want it.

Useful trick
Moving court, directly or indirectly, has become a way to fast-track or delay things at the government level. There have been instances in which a policy decision was taken to save the face of (the government) and challenged immediately in the court because getting it stayed gave the government time to work on its political side-effects.

In securing LGBTQ rights, the community fought a long battle on its own. "We are not just empowering them whose rights we recognised. I think more important or equally important is the effort of the Constitution to transform ourselves, when we recognise the freedom of others," Justice Chandrachud said. Next stop for LGBTQ is legalising same-sex marriages, inheritance and adoption. Going by past actions, the conservative politicians are not expected to do much in this regard. So, it should be over to the Apex Court, yet again.

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