Navigating the Noteworthy and Nebulous in Nazi Foundation
Volume 2 Issue 3 (2009)
The paper is an exhaustive critique of the Nazareth Foundation judgment – besides a comprehensive evaluation of the Court’s treatment of applicable constitutional rights and doctrines, such as the right to privacy, equality, constitutional morality, severability and many others, it also makes interesting observations on the style in which the judgment has been written, and the Court’s treatment of legal sources, such as legislative history, prior decisions and foreign materials, some of which are characterised as ‘soft’ law. The judgment’s remarks on the statements of the Prime Minister and the health minister on Section 377 and the citation of a webcast reflect a modernizing approach to the treatment of legal sources. On substantive legal aspects, the boldest advance of the judgment is quite clearly its invocation of substantive due process reasoning to test legality under Article 21, which may carry it a step further than Maneka itself. Second, the Court has accepted the possibility of implied desuetude of a statutory provision, which is an interesting point and could therefore be raised more strongly in appeal. Third, the author points out that recourse to a privacy-based argument may well be insufficient to protect the rights of gays in India, as for them the ‘private’ arena is often a shared public place. Fourth, the Court has not made observations on the ‘personal liberty’ aspect of Article 21, a step it could have taken. The author suggests that the Court could have used the ‘new equality’ doctrine of arbitrariness under Article 14, which would be more in line with Indian constitutional jurisprudence, instead of using the more stringent test of strict scrutiny, which may not be legally sustainable. The author concludes that such an elaborate effort by the Delhi High Court affirms its position as one of the most important constitutional courts in the country, which has used innovative methods to push the boundaries of existing jurisprudence.