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.