On Thursday, Indian Supreme Court struck down Section 377 of the Indian Penal Code, a colonial law that still repressed LGBTQ Indians seven decades after independence. Colonialism distorted Indian society: It favored some groups and disfavored others. The legacy of these colonial wrongs endures in democratic India because majority rule does not necessarily take note of minority concerns—despite every citizen’s theoretical equality under the Indian Constitution. Colonial prejudice is also refracted through modern opinion when, for example, people have defended Section 377 on the basis that it preserved “traditional Indian culture” despite its literally having been written to impose British legal views on the subcontinent. The Indian Supreme Court stepped in last week and argued forcefully that courts have a unique duty to protect minorities, in this case the queer community, against majoritarian disfavor or apathy.
The judgment is a major victory for privacy, and the right to privacy is a prerequisite for decolonizing law. Colonial governance in British India was based on the presumption that colonial officials were almost always right while Indians were almost always being nefarious. Under such a system of surveillance and control, privacy was impossible.
When Indians became equal citizens of a republic instead of subjects of a foreign king-emperor, they still had no right to privacy. Supreme Court judgments in the first two decades of independence found no constitutional basis for it. The post-colonial Indian state, especially the police, has at times acted like a colonial power against its own people. For example, police frequently abuse citizens’ rights using the threat of lengthy pretrial detention knowing that the law is tilted in law enforcement’s favor. Many repressive colonial laws like those governing vagrancy are still on the books because any law that was in force in January 1950 when the Constitution was adopted remains good law until it is explicitly repealed or overruled. (The United States Supreme Court, by contrast, has invalidated vague vagrancy laws as an infringement of due process.)
The Indian Supreme Court overhauled privacy jurisprudence in 2017’s Puttaswamy decision. Before then, the right to privacy was hotly contested: In 2009, the Delhi High Court struck down Section 377 as a privacy violation—but the India Supreme Court reinstated it in 2013’s notorious Koushal decision. Puttaswamy, however, put the Koushal decision in grave doubt. A nine-judge panel found unanimously that the Constitution does, in fact, guarantee citizens a right to privacy. The court, which has 31 members, rarely meets in such large panels and does so only for cases that are likely to have a sweeping impact. Puttaswamy is therefore an unusually strong precedent.
Once Puttaswamy was decided, the outcome on Section 377 was not a great surprise. Indeed, probably seeing the writing on the wall, the government declined to defend Section 377. In Puttaswamy, Justice Dhananjaya Chandrachud called out the 2013 ruling, writing that it must be revisited in light of the right to privacy. Jurisprudence on transgender rights has also evolved since Koushal. Transgender people—who despite their traditional role in Indian society, were actively oppressed by the colonial state and not particularly well-treated after Independence—were granted expansive rights in the 2014 NALSA ruling that they had never received through electoral politics. Gender minorities are now protected against discrimination in work and education, and have the right to represent themselves as a third gender, rather than being forced to choose between male or female.
The most jaw-dropping conclusion in Koushal—which all four opinions in the recent case took pains to slap down—was that there are too few queer people in India to warrant the court’s involvement in securing their constitutional rights. Justice Rohinton Nariman’s concurrence is uncompromising on the Constitution’s position: “One such minority has knocked on the doors of this Court as this Court is the custodian of the fundamental rights of citizens. These fundamental rights do not depend upon the outcome of elections.”
The role of courts in upholding the rights of minorities has arguably never been more important in India. The ruling Bharatiya Janata Party came to power in 2014 deploying an electoral strategy that largely side-steps the need to win any minority votes. This muscular majoritarianism feeds upon whipped up grievances against minorities, as well as vigilantism. Muslims make up 14 percent of the Indian population, but there are currently no Muslim members of Parliament from the BJP in the Lok Sabha, the directly elected lower house.* Broadly speaking, minorities have less reason than ever before to trust the political process to treat them as equal citizens. The Supreme Court is therefore crucial for securing the rights of citizens in a country that is itself more diverse than Europe.
Appointments to the court are theoretically non-political. But unfortunately, the process—in which a group of judges known by the vaguely sinister title “collegium” chooses—is controversial. For one thing, the collegium is not mentioned in the Constitution but was developed through the court’s own jurisprudence. The fact that a small group of insiders chooses its own successors inherently raises questions. Chief Justice Dipak Misra, who heads the collegium, was publicly criticized earlier this year by four of his fellow judges for how he runs court business.
In Poland, the ruling Law and Justice (PiS) party has politicized appointments to the judiciary in order to prevent legal obstacles to its majoritarian program. In 2015, the outgoing Civic Platform government fiddled with the composition of the Constitutional Tribunal, and PiS went nuclear in response. The party completely overhauled the system by forcing judges’ retirements and placing various independent legal mechanisms under the partisan Ministry of Justice. One alleged (but dubious) goal for this judicial purge is to remove lingering communist influence. After nearly 30 years of post-communism, this is a deep-state fantasy that papers over a brazen entrenchment of the ruling party’s political advantage.
In the U.S., of course, federal court appointments are openly political, unlike in Poland or India. The whataboutery that both parties equally politicize the court is undercut by the unprecedented chicanery of the Merrick Garland affair. Republican nominees, including Judge Brett Kavanaugh, have a vision of “equal justice under law” that ignores the role of the court in ensuring constitutional remedies for groups disfavored in electoral politics. Kavanaugh made this clear primarily through what he omitted in his testimony, notably the Obergefell v. Hodges decision that legalized same-sex marriage in 2015.
Following the India Supreme Court’s decision on Thursday, it was jarring to switch between coverage of the jubilation in India, over the court’s support of citizens over a repressive colonial law, and Kavanaugh’s evasive testimony. The nominee’s elusive and dishonest responses made it clear that Americans should not expect him to bravely uphold minority rights if he joins the U.S. Supreme Court.
*Correction, Sept. 11, 2018: This article originally stated that there are no Muslim BJP members of India’s Parliament. There are two Muslim BJP members in the upper house, the Rajya Sabha, whose members are chosen by state legislatures or appointed by the president.