NUJS Law Review
Volume  6 – Issue 4

Amidst strong reactions against the decision of the Supreme Court in Suresh Kumar Koushal v. Naz Foundation, this paper argues that the Court has done all that it is expected to do under the Constitution and the law established under it. The respondents, especially the Union of India, have unsuccessfully asked it to do what the Constitution does not expect it to do. The remedy against § 377 lies with the people through their Parliament, and not in the courts. Read More

The Supreme Court in Suresh Kumar Koushal v. Naz Foundation has missed an opportunity to build on the earlier Delhi High Court decision and shape rights jurisprudence in a creative and rights enhancing manner. Instead it has reverted to a restrictive reading of the law that is full of logical and analytical inconsistencies and the incorrect use of precedent. This demonstrates an unwillingness to appreciate and assess the compelling evidence that was placed before it. In this piece, I will focus on the mass of material that the court did not take into account while arriving at its decision. These include the Attorney General’s submissions, affidavits of parents of Lesbian Gay Bisexual and Transgender persons, and scientific material placed before the Court. I will also examine the arguments in the judgment related to presumption of constitutionality, vagueness of law and the dichotomy between the sexual act and homosexual identity. Read More

The Supreme Court of India’s decision in Suresh Kumar Koushal v. Naz Foundation, besides lacking in legal logic, also displayed a marked absence of another essential judicial quality: that of empathy. It is also a virtue that was in abundant display before the Delhi High Court both during the Naz Foundation hearings and then again in the text of the judgment. In tandem with the Supreme Court’s lack of empathy was an attempt to annul a discourse of queer intimacy that the Delhi High Court had brought into the judicial imagination in India. This essay will scrutinize the Supreme Court’s attempt to separate humanity from carnality, acts from identity and sex from love in light of the hearings before the Court. Read More

The judgment of the Supreme Court in Suresh Kumar Koushal v. Naz Foundation 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. Read More

The recent protests against the Supreme Court verdict on the constitutionality of § 377 of the Indian Penal Code, 1860 were based on the argument that matters of sexuality between consenting individuals is a matter of private orientation and choice and hence the state has no right to intervene and criminalize them. While I oppose the state’s right to intervene in consensual sexual relations, I want to argue against pushing matters of sexuality into the confines of private space and want to suggest instead that the normativity of sexual expressions should be debated more rigorously, not in the criminal proceedings of the court, but in the social, cultural and political spaces. Not only because the personal is political but because sexual experiences remain essentially a matter of phantasms, representations and imaginations and are hence necessarily collective and cultural. Critically discussing two ‘supposed to be’ taboo-breaking films on minority sexuality – Blue is the Warmest Color and The Sessions – I aim to show how heterosexual male fantasies, anxieties and biases resiliently and potently circulate in our culture and colour all forms of sexualities. The debates on the recent Supreme Court verdict should open up matters of sexuality for robust political and public deliberation, and in doing so, challenge the circulation of hetero-normative male fantasies intimately shaping ideas about (especially female) sexuality Read More

The Supreme Court of India recently upheld the constitutionality of § 377 of the Indian Penal Code and thus recriminalized adult consensual private same sex conduct. In doing so, the judgment overturned a four-year old Delhi High Court decision finding § 377 unconstitutional on the basis that the Section violated the rights to life and personal liberty of lesbian gay bisexual and transgender persons living in India. Evidence shows that antisodomy and same sex criminalization laws, such as § 377, have predictable and detrimental health effects. Such laws create legal and social barriers to effective prevention and treatment of HIV/AIDS. The resulting limited access to medical information and treatment for life-threatening conditions (HIV/AIDS) violates the constitutionally guaranteed and internationally recognized right to health of lesbian gay bisexual and transgender persons and men who have sex with men. However, this paper argues that public health arguments to repeal homophobic laws may act as a double-edged sword if not appropriately placed within a human rights framework. Basing the repeal of such laws on a public health rationale (namely, the increased prevalence of HIV/AIDS in these high risk communities as well as amongst the general population) only further associates lesbian gay bisexual and transgender persons and men who have sex with men with sexual diseases and haphazardly premises their rights on medical reports and expertise and not their fundamental human rights. Reports, affidavits and articles submitted on behalf of the petitioners and interveners in Suresh Kumar Koushal v. Naz Foundation indicate that § 377 creates a discriminatory environment through the institutionalization of stigma and police harassment, negatively impacting the access to HIV/AIDS prevention, treatment information and resources for gay bisexual and transgender persons living in India. Furthermore, international comparative studies of countries in which same-sex conduct is criminalized demonstrate consequential reduced access to HIV/AIDS information and services. In such countries, high-risk groups (e.g. men who have sex with men) are ashamed and afraid to provide vital sexual information to health providers for fear of social harassment and potential arrest. The Supreme Court’s recent decision to reinstate § 377’s application to private consensual same sex conduct unfortunately overlooks these important health considerations, and will likely lead to similar negative health outcomes— thus, in turn, resulting in constitutional violations of the right to health and, consequently, the right to life of the sexual and gender minority persons living in India. Read More

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