Koushal v Naz: Judges Vote to Recriminalise Homosexuality

(2015) 78(4) Modern Law Review 672–694

Oxford Legal Studies Research Paper No. 08/2015

11 Pages Posted: 1 Mar 2015 Last revised: 9 Jan 2018

See all articles by Tarunabh Khaitan

Tarunabh Khaitan

University of Melbourne - Law School; University of Oxford - Faculty of Law; NYU Law School; Berkeley Center on Comparative Equality Law

Multiple version iconThere are 2 versions of this paper

Date Written: February 28, 2015

Abstract

In Koushal v Naz, the Indian Supreme Court overturned a High Court judgment which had declared unconstitutional section 377 of the Indian Penal Code criminalising ‘carnal intercourse against the order of nature’. In doing so, it has rebranded gay and transgendered Indians as criminals. This case note explores some of the structural problems that led to this judgment. The first problem is the transformation of the Court into a populist, quasi-legislative, institution that sees itself as a tool of governance. This has put significant pressure on its counter-majoritarian role. The second infirmity relates to the sheer size of the Court’s docket (given its wide jurisdiction and lax standing rules), coupled with the Indian legal academy’s inability and unwillingness to continuously demand judicial fidelity to the law. These factors have led to the normalisation of unreasoned or poorly-reasoned judgments and a breakdown of stare decisis.

Keywords: Public Interest Litigation, Koushal, Naz Foundation, Indian Supreme Court, Constitution, Gay Rights, Section 377

Suggested Citation

Khaitan, Tarunabh, Koushal v Naz: Judges Vote to Recriminalise Homosexuality (February 28, 2015). (2015) 78(4) Modern Law Review 672–694; Oxford Legal Studies Research Paper No. 08/2015. Available at SSRN: https://ssrn.com/abstract=2571568

Tarunabh Khaitan (Contact Author)

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