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Much of the focus on Naz Foundation has centred upon how S. 377 of the IPC (the impugned provision that outlaws homosexuality) is a “colonial-era law“. That much is true. It is also true that, assuming the values of our colonial government were fundamentally different from the values that animate our democratically elected legislature, there is a strong case for legislatively repealing S. 377. However, what does the colonial nature of legislation imply for the Courts that are tasked with interpreting it, or adjudicating upon its constitutional validity? A change in values cannot, in itself, be a guiding principle, because surely the best judgment of societal values – at least in theory – will be made by the institution that is most accountable to the people. There is, therefore, a problem of institutional competence in the Court substituting its analysis of public values for the legislature.

At the same time, however, there is an important question of process to consider here. What is it that we value about democracy, and why do we consider democratic decisions presumptively legitimate? It surely cannot be simply because they are taken by a majority vote; as Isaiah Berlin rightly pointed out in his seminal Two Concepts of Liberty,  there is no real difference in being oppressed by a minority and being identically oppressed by a majority. Democratic theory scholars, therefore, focus on the manner in which decisions are arrived at. Dworkin, for instance, argues  that a functioning democracy must accord equal concern and respect to all members of the polity by ensuring that they have a voice in, a stake in, and an independence from, collective decisions (see the Preface to Dworkin’s Freedom’s Law). In other words, what is key here is participation: if I am allowed to participate in the decision-making process in a way that my interests and autonomy are given appropriate respect, then I can reasonably accept the final decision as being, in a sense, my own decision (and therefore binding upon me), even though I might substantively disagree with it.

What this implies is that the legitimacy we accord to democratic decisions is conditional – conditional upon substantive participation by the members of the polity. In a famous book called Democracy and Distrust, Harvard scholar John Hart Ely made this the central idea of his theory of judicial review. Ely recognised the centrality of process to the democratic legitimacy – and he understood that the democratic process often functions – in real life – in a way that is less than perfect. A process of periodic, nationwide elections could end up ensuring the systematic exclusion of “discrete and insular minorities” (a phrase that has its genesis in Footnote Four of the US Supreme Court’s famous Carolene Products case). And this is where the Court would step in – judicial review was consistent with democracy insofar as the Court’s decisions voiding or otherwise interfering with legislative choices played essentially a “representation reinforcing” role. Ely’s theory of democracy, therefore, is essentially a representative-participatory theory that combines majoritarianism with judicial protection of minority rights on the basis of their exclusion from meaningful participation.

The shape of the argument will now be evident: colonial-era statutes, being passed by the dominion legislature, suffer from a fundamental lack of democratic legitimacy, being the decisions of a distinctly unrepresentative process. But here’s the catch: the Indian Constitution has an express savings clause for dealing with precisely this issue. According to Article 372(1):

“… all the laws in force in the territory of India immediately before the commencement of this Constitution… shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority.”

So even if the democratic legitimacy of colonial laws was suspect, the Constitution itself, the ultimate source of law, validates them through inaction: parliament confers democratic legitimacy on colonial legislation by omitting to repeal them. This makes eminently good sense both as a matter of principle and pragmatically: as a matter of principle, legislative imprimatur can be given both by commission and by omission (as long as the omission is intentional, as it is here); and practically,  it would have been an administrative nightmare in 1947 to wipe out all laws and start from a clean slate.

So that seems to be the end of the matter. Article 372 indicates that colonial-era legislation is to be treated no different from ordinary legislation merely by reason of its origin. Yet, is it? Let us consider the following illustration:

Griswold v Connecticut and Roe v Wade are two famous American decisions that, by locating an “interstitial” constitutional right to privacy not found in the express words of the American Constitution, struck down laws prohibiting contraceptives and abortion respectively. Critics and defenders of the decision have divided over whether a right to abortion as a facet of the right to privacy can actually be extracted out of the text and structure of the Constitution. However, in his book, America’s Unwritten Constitution, Professor Akhil Amar offers a different argument: he points out that the laws at issue in Griswold and in Roe were both passed before the Nineteenth Amendment to the United States Constitution, that first accorded the right to vote to women, in 1920; in other words, both legislations were passed at a time when women could not vote. The Nineteenth Amendment recognised that not allowing women to vote was fundamentally illegitimate, and had always been so. Therefore, by virtue of this reason, laws before 1920 were undemocratic because unrepresentative; and in true John Hart Ely-esque fashion, the Court’s decisions in Griswold and Roe can be seen as protecting the interests of those who were blocked from participating in the decision-making process that gave rise to the impugned laws. 

But here’s the problem: by this logic, every law – and not just Connecticut’s anti-contraceptive law and Texas’ abortion statute at issue in Griswold and Roe – before the Nineteenth Amendment is illegitimate. Yet what Article 372 of the Indian Constitution makes explicit, is implicit more generally: in the ninety-three years after the Nineteenth Amendment, if certain laws haven’t been repealed, surely that means that whatever their democratic status before, they have been impliedly accepted by a democratic, participatory legislature’s failure to repeal them.

Yet let us now make a distinction between two kinds of law: laws that, while based on an exclusionary decision-making process, have little or nothing to do with the groups that have been excluded (e.g., contract legislation); and laws that directly affect the interests of excluded groups (e.g., an abortion statute). The implication-by-failure-to-repeal argument works well for the first kind of laws; but there are at least two reasons to question it for the second: first, that by reason of neutrality, the first kind would have come out much the same regardless of exclusion; and once the exclusion issues are corrected, because these laws are of general application, repealing them if they are generally inconvenient would not be too difficult. For the second kind of laws, which, because of their particularity, would be affecting a specific group, it is the group would then have to make the move to have them repealed. This explains why – even in the absence of Article 372 – we might consider the Indian Contract Act presumptively constitutional after 1947 – arguably, the unrepresentative nature of the colonial legislature did not significantly affect the law, and in any event, it would be very easy to have it repealed if it was no longer in conformity with the democratic will. These conditions are absent for the second kind of – interest-affecting – laws.

And secondly – and much more importantly –  if the second type was allowed to stand, then – in the words of Ely – you are essentially imposing a double-burden upon the once-excluded group (see p. 169, Democracy and Distrust): not only did they have no say in the framing of the original legislation that touched upon their interest, but now the burden is being placed upon them to drudge up the necessary parliamentary support to have them repealed. Not only is this more difficult because these laws are of a specific-interest type, but purely as a matter of fairness: surely it is far more equitable to reverse the onus: it should be for those who wish to maintain the legislation after the representation issued have been resolved, who should have to make the effort to do so. Here is Ely on point:

To put on the group affected the burden of using its recently unblocked access to get the offending laws repealed would be to place in their path an additional hurdle that the rest of us do not have to content with in order to protect ourselves – hardly an appropriate response to the realisation that they have been unfairly blocked in the past.

We now have strong reasons of democracy to question the presumptive constitutionality of pre-1947 laws of the second type; there is no doubt that S. 377 falls within this category, because it fundamentally affects the interests of a specific group (homosexuals), and was passed without their representation (some would argue that homosexuals are even now a discrete and insular minority, in Ely’s terms, but we need not go into that at the moment). Does Article 372 stand in the way? No, it doesn’t – because we are not arguing that S. 377 is impliedly repealed. What we are arguing, however, is that S. 377 should not be accorded the standard protection of the presumption of constitutionality – because for all the reasons above, the presuppositions that justify that presumption are conspicuously absent.

Let us summarise the argument in the following steps:

a) S. 377 is a piece of legislation that was passed without representation from the constituency that it negatively impacts, i.e., homosexuals; therefore, it cannot be treated as presumptively constitutional

b) After the entry into force of the Constitution, let us assume that homosexuals were fully represented; nonetheless, to argue that S. 377 became constitutional by virtue of the (now representative) legislature’s failure to repeal it imposes an unjust burden upon the previously unrepresented homosexuals

c) Article 372 provides a barrier to treating the law as void, but provides no barrier to removing the presumption of constitutionality

This, I would submit, is how the colonial-era nature of S. 377 is constitutionally relevant to the Court’s enquiry in Naz; and further, how the Court should – as a matter of principle – approach other legislation in which the law in question is a pre-1947 law.