Koushal v Naz: Judges Vote to Recriminalise Homosexuality

9 Pages Posted: 2 Jul 2015

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

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Date Written: July 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 Indian Supreme 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 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: Koushal, Naz Foundation, Homosexuality, Indian Supreme Court, Constitution, Gay Rights, section 377, public interest litigation

Suggested Citation

Khaitan, Tarunabh, Koushal v Naz: Judges Vote to Recriminalise Homosexuality (July 2015). The Modern Law Review, Vol. 78, Issue 4, pp. 672-680, 2015. Available at SSRN: https://ssrn.com/abstract=2625829 or http://dx.doi.org/10.1111/1468-2230.12133

Tarunabh Khaitan (Contact Author)

University of Melbourne - Law School ( email )

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