Why Can’t the Constitution Bench Hearing Same-sex Marriage Pleas Concurrently Also Hear Kashmir Petitions?

A five-judge bench of the Supreme Court had declined to stop the Centre from carving out two centrally-administered union territories (UTs) out of Jammu and Kashmir

Shobha Aggarwal, Countercurrents, 20 April 023: Tension between Executive and Judiciary is healthy for democracy.   According to Lord Woolf “the tension is acceptable because it demonstrates that the courts are performing their role of ensuring that the actions of the Government of the day are being taken in accordance with the law. The tension is a necessary consequence of maintaining the balance of power between the legislature, the executive and the judiciary.”

In India at present the ostensible tension between the Executive and the Judiciary is by and large superficial. What is apparent in fact is that Supreme Court of India (SC) is indulging in masterly inactivity in cases the judgement whereof may embarrass the government of the day. Such a scenario is dangerous for the democracy. It is also dangerous for the democracy when the top court of the country picks and chooses constitutional cases it would finally adjudicate without regard to the fundamental principle of first come first served. In not too distant past during the Internal Emergency (1975-77), the Supreme Court of India abdicated its constitutional mandate to protect the fundamental rights of the citizens of India and the same spectre is visible again to perceptive observers.

A constitution bench of the SC on Tuesday, 18 April 2023 started hearing arguments on the petitions pending before it on the issue of same-sex marriage etc. The first such petition was filed in the Supreme Court in November 2022. The question that arises: why is the alacrity shown by the SC in listing the same-sex marriage petition filed as recently as November 2022 not shown for all the constitutional matters filed prior to it?

In 2019 after the abrogation of Article 370 and bifurcation of the erstwhile state of Jammu and Kashmir (J&K) into two Union territories by the Central Government many petitions were filed in the Supreme Court challenging the same. (Kashmir petitions for short). A five-judge bench of the Supreme Court had declined to stop the Centre from carving out two centrally-administered union territories (UTs) out of Jammu and Kashmir. I was present in the Supreme Court on 1 October 2019 when Justice S.K. Kaul had said in the open court that the SC could always “turn the clock back”. However the petitions have not been listed for hearing after 2 March 2020 when a five judge constitution bench of the Supreme Court declined to refer the petitions to a larger bench. Since then the matters have been mentioned before the Court many times for urgent listing but not taken up so far.

In the meanwhile many administrative, executive and legislative steps have been taken by Government of India in J&K which will in times to come change the whole ethos of Kashmir society. On 13 February 2023, a division bench of the Supreme Court presided over by S.K. Kaul, J. dismissed a challenge to the constitution of the Jammu and Kashmir Delimitation Commission to readjust constituencies in the new Union Territory. This was an opportunity to at least freeze the clock if not turn it back. Was this a signal to the people of Kashmir that the Supreme Court will not adjudicate the constitutionality of the abrogation of Article 370 and bifurcation of the state of Jammu and Kashmir as it as a hard case to decide and that it will simply shove the matter under the carpet till such time that the legality and constitutionality of these actions become academic? If the Supreme Court had the will to decide the Kashmir petitions it could have done that any time. In fact “eleven different cases were heard and disposed off through virtual hearings by a constitutional bench constituted during COVID-19 times, …” (The Wire, 25.05.2022)

If the Kashmir petitions were to be decided as per law and constitution the people of J&K are likely to get justice. In my humble opinion the SC judges – if they adjudicate the petitions will have no option but to strike down the Presidential Orders abrogating Article 370 and The Jammu and Kashmir (Reorganisation) Act of 2019. If not, the future historians may compare them to the judges in the ADM Jabalpur case.

Contrast this with the same-sex marriage petitions which are being heard out of turn. Were the Supreme Court to grant rights of marriage, adoption etc to LGBTQIA community, it would be projected as a liberal court to the whole world. India would then become one of the few countries which grant these rights to LGBTQIA community. Such an image is beneficial to the Indian Government as it projects India as a liberal democracy to the world – the opposition to the same-sex marriage petitions by the Union of India in the court notwithstanding. Let’s not forget that “ 2023 V-Dem report refers to India as “one of the worst autocratisers in the last 10 years” in a blurb on page 10 and places India in the bottom 40-50% on its Liberal Democracy Index at rank 97. India also ranks 108 on the Electoral Democracy Index and 123 on the Egalitarian Component Index.”(The Wire, 07.03.2023)

It is my ardent hope that the present Chief Justice of India would not let history repeat itself. During the Internal Emergency it was the liberty of citizens of India which was at stake, this time around inter-alia it is the liberty of the people of Jammu and Kashmir. They should not be kept in a limbo for an infinite period of time. The same constitution bench that is hearing same-sex marriage petitions should – after the final arguments are over in the latter petitions – immediately hear the Kashmir petitions.

Post Script: (1) Lest someone think that I am not sensitive to LGBTQIA rights I may state for the record that I am a member of AIDS Bhedbhav Virodhi Andolan (ABVA) since its inception in 1988-89. ABVA had brought out the first Citizens’ Report on the status of homosexuality in India in 1991 titled “Less than Gay”. The report included a Charter of Demands which inter alia asked for full repeal of Section 377 of Indian Penal Code as well as marriage and adoption rights for the LGBTQIA community. In 1994 ABVA filed the first petition in India in the Delhi High Court asking for striking down of S. 377 in toto. The petition was filed by ABVA through me as none of the other ABVA members were willing to take the risk. All the known LGBTQIA activists were too scared to lend their names then. In fact no other NGO till 2001 joined our endeavor. Since 1991 I have along with ABVA consistently campaigned for gay rights.

(2) In an earlier piece written on 04.08.2020 in Countercurrents.org I had reasoned why Justice S.K. Kaul should recuse himself from hearing Kashmir petitions. I had then hoped that the petitions would be heard soon. It didn’t happen. Now that Justice Kaul is due to retire on 25.12.2023, he could be part of the bench as I don’t want to be seen to be depriving him of putting the clock of history back in Kashmir – even if it is by way of a dissenting judgement!!!

[Shobha Aggarwal is lawyer based in Delhi. Email: pilwatchgroup@gmail.com]