Insular and Inconsistent: India's Naz Foundation Judgment in Comparative Perspective

Abstract

In this short essay, my co-author, Nilesh Sinha, and I analyze the Indian Supreme Court's recent decision in Koushal v. Naz Foundation in comparative perspective. Naz Foundation​ upheld the constitutionality of Section 377 of the Indian Penal Code, which criminalizes carnal intercourse against the order of nature. The Court arrived at this judgment despite strong evidence suggesting that this law has been misused by police to harass and intimidate members of the Indian LGBT community in violation of their rights to equality and privacy, among others. We aim to make two contributions to the academic literature and to in​crease awareness of this recent development. First, we argue that the Court's dismissive attitude towards the use of comparative materials is both counterproductive and contrary to its past practice. The decision below in the Delhi High Court relied extensively on both international and comparative sources of law. However, the Supreme Court rejected this methodology, claiming that it was inappropriate to consider any non-Indian sources when determining the constitutionality of a law passed by the Indian Parliament. The Supreme Court also trumpeted the value of judicial restraint and respect for separation of powers. This retreat from comparative materials and the adoption of a more modest judicial role is not adequately explained and does not accord with the Court's past fundamental rights jurisprudence, which is famous (or notorious) for its creativity and interventionism on behalf of marginalized groups. The result is a haphazard and poorly reasoned judgment. Second, we compare ​the Naz Foundation​ judgment with same-sex rights cases from the United States and South Africa. This comparison reveals the Indian Supreme Court's lack of appreciation for the dignitary and discrimination-based harms that the LGBT community experiences as a result of laws like Section 377. It also shows how disengaged the Indian Supreme Court is from international developments in this area, as same-sex rights have rapidly gained greater recognition and protection. We argue that the Court's opinion would have ​benefitted substantially from comparative engagement. Ideally, this engagement would not entail mindless borrowing from international sources, but would use foreign cases dialogically as a means to better locate and understand the normative assumptions behind Indian Constitutional law.