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

Written by  Rehan Abeyratne & Nilesh Sinha

On December 11, 2013, the Indian Supreme Court issued a controversial ruling in Koushal v. Naz Foundation. It upheld the constitutionality of Section 377 of the Indian Penal Code, which criminalizes “carnal intercourse against the order of nature.” This decision reversed a 2009 Delhi High Court judgment holding Section 377 unconstitutional in its application to consensual, private sexual acts among adults, including homosexual intercourse. The Supreme Court’s judgment has already been analyzed in detail, with commentators noting its doctrinal flaws and muddled reasoning.

While we agree with much of this criticism, our focus is not on the substance of the Indian Supreme Court’s judgment, but on its troubling methodology. Unlike the Delhi High Court, which drew extensively on international and foreign legal materials, the Supreme Court adopted an insular approach in its Naz Foundation judgment. In the past, the Supreme Court has been willing to use international and foreign law as a means to shed light on the meaning and scope of domestic constitutional rights. In Naz Foundation, however, the Supreme Court rejected any engagement with non-Indian sources of law. Such narrow-mindedness, in our view, is misplaced and counterproductive. We argue that the Court should have undertaken comparative analysis for two reasons: (1) this approach would be consistent with its past fundamental rights jurisprudence; and (2), the Naz Foundation judgment could have benefitted substantively by engaging with the experiences of other jurisdictions on similar issues.

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