Wednesday, December 11, 2013

A series of mostly rhetorical questions to the people complaining on Facebook about the Indian Supreme Court decision upholding the constitutionality of laws criminalizing homosexual acts

1. The decision itself can be found here. Have you read it, even if only briefly? Did it occur to you to even search for it? Have you read a summary of the main arguments the court advanced? Do you know which protections in the Indian constitution the law was alleged to have violated?

2. In your opinion, is there such thing as a law that is sound policy but nonetheless unconstitutional?

3. In your opinion, is there such thing as a law that is poor policy but nonetheless constitutionally valid?

4. Related to #3, the court stated in its decision:
"It is, therefore, apposite to say that unless a clear  constitutional violation is proved, this Court is not empowered  to  strike  down  a  law merely by virtue of its falling  into  disuse  or  the  perception  of  the society having changed as regards the legitimacy of  its  purpose  and  its need."
Do you agree?

5. If you did not agree in #4, on what basis should the court decide which laws to strike down?

6. If you did agree in #4, how do you personally decide whether you think a law is constitutional or not? How does this relate to your answer to #1?

7. The court concluded its decision with the following:
"While parting with the case, we would like to make it clear that  this Court has merely pronounced on the correctness of  the  view  taken  by  the Delhi High Court on the constitutionality of Section 377 IPC and found  that the  said  section  does  not  suffer  from  any  constitutional  infirmity. Notwithstanding this verdict, the competent legislature  shall  be  free  to consider the desirability and propriety of deleting  Section  377  IPC  from the statute book or amend the  same  as  per  the  suggestion  made  by  the Attorney General."
If you do not like the policy implications of the current decision, why is your displeasure directed at the court, and not the relevant legislature, who has had the power to repeal this law all along but chose not to exercise it? Or the voters for the politicians in said legislature?

8. If a court comes to a decision that supports good policy by utilising arbitrary and shoddy reasoning that departs from what it has stated before, can you think of any negative consequences to this? Do you think these consequences are important or not?

9. Related to #8, what is the value of precedent? Do you think it is important that the likely decision of the court on a particular legal question is mostly predictable in advance to legislators and citizens?

I'm not holding my breath for any answers.

Economists are often astounded at the sheer number of people who have little appreciation for basic principles of economic reasoning. On the other hand, the appreciation for economics is ubiquitous when compared with the legal equivalent - the number of people who have zero conception that a court case has any important dimensions other than whether you personally would have voted to support the law or principle whose constitutionality is being called into question.

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