Forswearing “Foreign Moods, Fads Or Fashions”? – Contextualising The Refusal Of Koushal To Engage With Foreign Law
Arun K. Thiruvengadam
Volume 6 Issue 4 (2013)
The judgment of the Supreme Court in Suresh Kumar Koushal v. NazFoundation 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 ont his 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.