The principles of constitutionalism
A small argument on the judicial activism has begun in response to the court case on section 377 of the IPC. The argument broadly goes like, “The parliament is the sovereign and should be the body that decides on rules that attempts to change the moral behaviour of the society, otherwise just changes lack democratic sanction.” It is, in fact, a valid fear and holds true for majoritarian democracies like say the UK, where the parliament is the undisputed supreme. This assumption of uninterrupted sovereignty of the parliament does not hold for constitutional democracies. The sovereignty and the responsibilities of the legislative are guided by the constitution and the judiciary can impose constraints, on the legislation, that flows from accepted principles of the constitution.
Courts across liberal constitutional democracies have restricted the elected parliaments from legislating anti-terror laws against privacy, and for surveillance or like in Germany have called such laws unconstitutional. In fact, these examples also demonstrate one of the causes of friction in the EU where the constitutional democracies in mainland Europe could not maintain a smooth working relationship with the sovereign parliamentary democracy of the UK.
Eventually, the criticism of the Indian Supreme court on 377 has to stem from the interpretation of the constitution. They are within their powers to interpret that sections of the Indian Penal Code do not subscribe to the constitution. And, if the majority is sufficiently agitated with that interpretation the parliament obviously can overrule the courts.
It is likely that the SC took the strategically incorrect path for ‘reforming’ the society, or probably it made the correct choice to prioritize the individual’s rights over the strategic decision of slowly caressing the society into reform. It is my understanding that India is a constitutional democracy unlike the UK, and the parliament can be challenged or directed on its understanding of the constitution. The process followed in section 377 shows how the constitution wished the Indian institutions should work, it was not a failure of that proposed institutional process. One could argue that this process, where the executive asked the judiciary to make a judgement based on the constitution, reflected the principles of constitutionalism.
Though, one may during a separate debate wish to argue that institution chose a bad strategy, or that a majoritarian democracy is better suited model for a complex society than the constitutional democracy that India is.
