Forswearing 'Foreign Moods, Fads or Fashions'? Contextualising the Refusal of Koushal to Engage with Foreign Law
National University of Juridical Sciences Law Review (NUJS LR), July 2014, Forthcoming
18 Pages Posted: 13 Jul 2014 Last revised: 30 Mar 2015
Date Written: July 12, 2014
This essay has been written for a special issue of the NUJS Law Review (forthcoming July 2014) that focuses on various aspects of the judgment of the Supreme Court of India in Suresh Kumar Koushal v. Naz Foundation ("Koushal"). Koushal upheld the constitutionality of Section 377 of the Indian Penal Code which criminalises sexual conduct that is "against the order of nature." This essay focuses on a narrow and specific issue: the role that foreign and comparative law played in the court's reasoning.
The judgment in Koushal engages only minimally with foreign and comparative law. This is in stark contrast to the Delhi High Court’s judgment in Naz Foundation v. Union of India that was consequently overruled.
This essay focuses on this lack of engagement with foreign law in Koushal from three perspectives. First, it critically examines the reasons advanced and the domestic precedents cited in Koushal to justify the outright rejection of foreign law. Second, it focuses on the record of the principal author of the judgment – Justice Singhvi – to assess whether the learned judge has been consistent in his attitude towards comparative law in other adjudicatory contexts. Finally, it contextualises the treatment of foreign law in Koushal against the Indian Supreme Court’s longer historical record of engaging with foreign and comparative law. The essay draws attention to inconsistencies in Koushal’s internal logic and to larger problems raised by the failure to critically engage with foreign and comparative law.
Keywords: Supreme Court of India, Naz Foundation, Suresh Kumar Koushal, LGBT rights
Suggested Citation: Suggested Citation