Promising move

IN a review petition filed before the Supreme Court on December 20, the Central government has made a strong case for a reconsideration of Koushal . The petition contends that the judgment is contrary to well-established principles laid down by the court enunciating the width and ambit of Fundamental Rights under Articles 14, 15 and 21 of the Constitution.

It cites earlier judgments of the Supreme Court to show how a statute may, with the passage of time, become arbitrary and unreasonable. The petition argues that it is the prerogative of the state to defend the constitutionality of statutes and not of third parties and therefore the special leave petitions should have been dismissed at the stage of admissibility itself.

The petition states that if a statute is declared unconstitutional, Parliament has no further role to play to add or endorse a judicial declaration. There are several instances where the court has actually struck down statutes or constitutional provisions but they continue to be there because the legislature has not formally repealed them.

The presumption of constitutionality and judicial restraint are not applicable or relevant to the present case as a clear violation of constitutional principles has been demonstrated, the petition states. It also says that the Supreme Court lost sight of the principle of judicial review and that the power of judicial review is not guarded by parliamentary processes.

It further submits that the judgment has not shed any light on what goes against the order of nature. It has also not taken into record the affidavits filed by the Ministry of Health and Family Welfare in 2012, which showed the impact of Section 377 on the health of MSM (men having sex with men) populations.

Critiquing the court’s argument about the number of individuals impacted by Section 377, the petition states that the number of people affected is irrelevant when it comes to deciding the constitutional validity of a statute. The court has also not gone into arguments made by the respondents about how Section 377 violated the right to life, privacy and health, it says.

Sagnik Dutta and V. Venkatesan