Logic and Coherence in Naz Foundation: The Arguments of Non-Discrimination, Privacy and Dignity

Logic and Coherence in Naz Foundation: The Arguments of Non-Discrimination, Privacy and Dignity

Volume 2 Issue 3 ()

In this paper I evaluate three arguments of the Delhi High Court’s decision in the Naz Foundation case. First is the argument that sexual orientation is analogous to ‘sex’ in Article 15 of the constitution. I term this argument ‘the sex-based’ argument and argue that though it is logically sound , it is not supported by the judgments that the court cites; nor thus the court properly lay out the exact nature of this powerful argument. I further argue that the ‘sex-based argument’ should be employed along with the ‘common thread’ argument which is supported by the text of the judgment and is also desirable in the light of the argument acting as a precedent for interpreting Article 15 of the Constitution. The second argument I examine is that of the right to privacy and autonomy. Here I argue that the decision has enriched the discussions on the right to privacy in India, but at the same time has committed us to pursuing a notion of privacy based on personhood, which at present has very little specific content. I also argue that the court has used the concepts of privacy and autonomy without adequately clarifying their meaning. Instead it grounds them in a concept of human dignity, which again is a highly contested concept, with many accusing it to be a place holder at best. This takes me to the third argument of the court, which is on human dignity. Here I try and briefly demonstrate the problems associated with the use of this concept. In spite of this I argue that the process of reasoning followed by the court is compatible with principles of adjudication which are well founded in legal theory. I focus particularly on the ideas of coherence in adjudication and the nature of judicial law making.

Cite as: Pritam Baruah, Logic and Coherence in Naz Foundation: The Arguments of Non-Discrimination, Privacy and Dignity, 2 NUJS L. Rev. 505 (2009)