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Naz Foundation III

Rosalind Dixon, Professor of Law, UNSW Australia Faculty of Law; Rishad Chowdhury, Partner, Verus Advocates, Delhi.

The Indian Supreme Court is soon likely to hear Curative Petitions challenging its judgment in the Naz Foundation case [available at http://judis.nic.in/supremecourt/imgs1.aspx?filename=41070], which reversed the judgment of the Delhi High Court partially striking down Section 377 of the Indian Penal Code (and thus, effectively, re-criminalized private, consensual sexual intercourse by gay men). The judgment of the Delhi High Court was written about here earlier, and the difficulty of predicting the likely outcome in the Supreme Court emphasized [See http://www.iconnectblog.com/2009/07/the-lawrence-of-india-pt-2-the-supreme-court-sequel/].

Curative Petitions before the Indian Supreme Court are a (judge-created) final remedy after a judgment of the Supreme Court has otherwise attained finality, are scarcely ever allowed, and are ordinarily – at least in terms of the black letter law – confined to alleged breaches of natural justice in the Court’s decision-making process. Curative Petitions are heard by the three senior-most Justices of the Court, along with the Justices on the Bench originally. It is of some significance that the Court has agreed to hear the Petitions in open Court, since such Petitions are ordinarily considered in chambers without an oral hearing.

It is well-known that the very large number of Judges on the Indian Supreme Court, and the related phenomenon of the Court sitting in Benches (normally 12-13 Benches), causes significant uncertainty about the outcome in individual cases, and in the court’s jurisprudence more generally. This phenomenon has been criticized by many observers, and acknowledged by the Court itself (for example, by Justices S.B. Sinha and Aftab Alam in the context of the imposition of the death sentence).

Nowhere, perhaps, has this been more apparent than in the context of the Naz Foundation judgment, which saw the Supreme Court take a radically different approach from that taken by the Delhi High Court – significantly more deferential to Parliament, and far more sceptical of the relevance of the jurisprudence on gay rights in the Western world. Just months after the judgment of the Court, another two-judge Bench of the Court delivered a judgment [available at http://supremecourtofindia.nic.in/outtoday/wc40012.pdf] in a Public Interest Litigation filed seeking judicial intervention to protect the rights of transgender persons, and took a radically different approach. In this particular Writ Petition, the Supreme Court concluded that gender identity was an integral facet of ‘sex’ as a prohibited ground of discrimination under the Indian Constitution, and passed a series of directions aimed at securing the safety and well-being of the transgender community.

While the legal issues facing the Court there were certainly somewhat different, Section 377 loomed large, and few were convinced by the Court’s assertion that it had nothing to say on the Naz Foundation judgment. [See, for example, Raju Ramachandran, One Court, Two Mindsets available at http://m.indianexpress.com/article/opinion/columns/one-court-two-mindsets/2038052/]

In the transgender rights case, the Supreme Court extensively refers to both international covenants and the decisions of various constitutional courts, seemingly to confirm its own view of the requirements of the Indian Constitution. In terms of Indian constitutional law, the Court seemed particularly troubled by what it concluded was the ‘untouchable’ status of transgender persons. Clearly, in this case, international human rights norms meshed well with the Court’s understanding of this form of discrimination as another form of constitutionally-forbidden ‘untouchability’. In contrast, the Court in Naz Foundation does refer to foreign jurisprudence (which was extensively referred to in the High Court’s judgment and in arguments before the Supreme Court itself – see, for example, this excellent discussion by Sujit Choudhry http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1673378), but ultimately dismisses this line of jurisprudence as one which could not be ‘applied blindfolded’.

Doctrinal differences (and differences in narrative) in the respective approaches to the equality challenge and to the treatment of foreign jurisprudence are not the only points of divergence in the two cases. Naz Foundation has had a chequered history, with the Delhi High Court invalidating the statutory provision only in the second round of litigation, after the Supreme Court set aside an earlier High Court judgment that no concrete injury was asserted and remanded the matter to the High Court for fresh consideration. In sharp contradistinction, the transgender rights judgment arose out of a Writ Petition filed directly in the Supreme Court, under Article 32 of the Constitution (permitting direct recourse to the Supreme Court for the enforcement of fundamental rights). The Writ Petition was filed in 2012, and the judgment delivered in 2014. Naz Foundation, on the other hand, was reserved for judgment for about a year-and-a-half, after lengthy arguments in the Supreme Court. Again, while constitutional litigation is unpredictable the world over, these uncertainties are arguably magnified in the context of the structure and functioning of India’s constitutional courts.

Given that two of the Judges on the Bench hearing the Curative Petitions are party to the dismissal of the Review Petitions challenging the judgment, it is more than possible that these Petitions will meet the same fate as the Supreme Court’s original judgment. The Court’s revisiting the issue, however, reminds us of certain peculiarities of constitutional dialogue in the Indian context: it is not only competing narratives about Indian constitutionalism, which inform sometimes opposing decisions in the Indian Supreme Court. It is also the size and structure of the Court, the fact that it invariably sits in Benches, the many different types of constitutional jurisdiction it exercises, and the variations this often produces in different constitutional cases. If the Naz Foundation judgment were able to draw greater attention to that, and how it might best be addressed, that would be at least one positive side-effect to a decision that many view as deeply disappointing.

Suggested citation: Rosalind Dixon & Rishad Chowdhury, Naz Foundation III, Int’l J. Const. L. Blog, May 16, 2014, available at: http://www.iconnectblog.com/2014/05/naz-foundation-iii

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Published on May 16, 2014
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