Abstract
Making Comparative Constitutional Law Work: Naz Foundation and the Constitution of India
Highlights
The recent decision of the High Court of Delhi in Naz Foundation v
N.C.T. of Delhi and Others, in which the Court declared the unconstitutionality of a colonial legislation to the extent that it penalizes consensual sexual intercourse by adult homosexual individuals in private, is currently in appeal before the Supreme Court of India
The judgment is considerably inventive, creating a stir in public debate about the fundamental rights to dignity, privacy and others, which continue to remain largely nebulous in Indian jurisprudence
Summary
Having had the privilege of witnessing the courtroom proceedings in the State’s appeal to the Supreme Court of India from the hotly debated decision of the High Court of Delhi in the landmark (as it is frequently termed) case, Naz Foundation v. – Penetration is sufficient to constitute the carnal intercourse necessary to the offence described .’ In declaring this provision unconstitutional, the High Court seems to have risked losing the legitimacy of its decision, using a yet uncertain jurisprudence on rights like dignity and privacy – which find no explicit protection in the Constitution – to justify its stance, instead of clarifying, using a more traditional legalistic approach, the kinds of acts that Section 377 penalises. In this way, the Court could have safely excluded sexual intercourse between consenting adult homosexuals as falling outside the scope of this provision, without drawing too much criticism. I have, refrained from selecting a single issue for discussion and will instead, in this article, attempt to provide an understanding of why the use of comparative constitutional law in Naz Foundation is considerably new and different, and, in this way, illustrate how it lends greater legitimacy to the Court’s decision based on this innovative methodology
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