Singhvi’s decision is based on an assumption that the only point of a democracy is to pay heed to the will of the majority. But Ambedkar and his peers weren’t concerned as much with providing a structure for majoritarianism as they were with providing a foundation for a particular kind of parliamentary democracy, in which each branch of the state provided checks and balances to the other. To this end, laws, whether enacted before or after the constitution came into force, have to conform to the individual rights that the constitution confers. This means an unelected judge who struck down legislation for its unconstitutionality would not be acting contrary to principles of democracy, but would rather, as Dworkin has argued, be fulfilling the true ends of legitimate government. Suhrith Parthasarathy explains why the Supreme Court’s decision on Section 377 is profoundly anti-democratic.
Posted on: Thu, 16 Jan 2014 09:14:30 +0000
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