Equal moral membership: Naz Foundation and the refashioning of equality under a transformative constitution

Abstract

ABSTRACTThe 2009 judgement of the Delhi High Court in the Naz Foundation vs NCT of Delhi, which decriminalized homosexuality, was widely celebrated; and the Indian Supreme Court’s reversal of that judgement in 2013 equally widely decried. Most of the analysis of the Delhi High Court’s judgement, however, tends to focus on its progressive outcome. In this essay, by reconstructing the judgement through focusing on parties’ submissions and arguments before the Court, I argue that the importance of Naz Foundation lies in how it advanced the Indian Constitution’s overarching vision of social transformation by radically re-imagining the Constitution’s promise that “the State shall not deny to any person equality before the law or the equal protection of law”. Moving away from a sterile equality jurisprudence based on rational classification and “arbitrariness”, Naz Foundation linked the Constitution’s equal protection and non-discrimination clauses to advance an alternative jurisprudence founded in ideas of inclusion, dignity, autonomy and remedying structural disadvantage. In doing so, I will argue, it presented a new vision of equality that is truer and more faithful to the Constitution’s transformative character, and opens up new possibilities for discrimination jurisprudence in the years to come.