Lost in Appeal: The Downward Spiral from Naz to Koushal
Volume 6 Issue 4 (2013)
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.