Equal Moral Membership: Naz Foundation and the Refashioning of Equality

Abstract

The judgment of the Delhi High Court in Naz Foundation vs NCT of Delhi (2009), which effectively decriminalised homosexuality in India by down Section 377 of the Indian Penal Code (the anti-sodomy law) has been celebrated for its progressive outcome. This paper argues that Naz Foundation was an important judgment not only for its impact on the LGBT community, but because of its reasoning, which sought to profoundly reshape Indian constitutional equality jurisprudence, and bring it in line with the Indian Constitution's transformative character. Reconstructing the judgment by reading it alongside the written submissions and the arguments advanced by the parties, this essay argues that at the heart of Naz Foundation was the understanding that situations of complex inequality were ill-served by the traditional reasonable test; rather, Indian equality jurisprudence required the fashioning of a legal test that read together equal protection and non-discrimination, and shifted the focus from classification to disadvantage and exclusion. Although Naz Foundation was subsequently reversed by the Supreme Court, its reasoning remains of great importance in the trajectory of Indian equality jurisprudence, and of transformative constitutionalism.