Dispatch from Bombay: Naz Foundation v. Union of India

Posted on July 16th, 2009 by Katherine Franke

option-2Gulnar Mistry graduated from Columbia Law School with an LLM this May and is now a Junior Counsel at the Bombay High Court.  She offers the following observations about the Delhi High Court’s ruling invalidating India’s Sodomy Law:

On July 20, the Supreme Court of India will hear a fast-tracked petition against the recent Delhi High Court order decriminalizing consensual gay sex. Never has there been such fist-biting over a matter that least concerned the fist-biters. Astrologers, yoga gurus, religious leaders have come together to oppose what they see as being a dilution of morals and a vicious foreign encroachment on Indian culture. When confronted with the same absurd suggestions in private debates on the topic, I feel compelled to quote a nameless writer who said that homosexuality was not the Western import; homophobia was.

The decision of the Delhi High Court is one that all of us should-and most of us are-tremendously proud of;indianprotester as lawyers, as citizens, as individuals, sexual preference notwithstanding. But in a country that lives in different centuries all at once, the role of the courts is brought sharply into focus. What should the courts do when confronted with an intellectual and moral chasm that divides the public as it does in such a case? Is it a dilemma at all? For the Delhi High Court, it does not seem to be. And rightly so. Sharply distinguishing popular morality from constitutional morality, stating that the sphere of privacy deals with persons not places, recognizing the hitherto unrecognized realities of harassment, exploitation and degradation that so many are subjected to and reiterating that the spirit of Man is at the root of the right to life and liberty under our constitution, the court pointed a resolute finger in the direction of what ought to be.

The counter-argument is that personal liberty cannot be stretched to an extreme; what’s next, they ask, do we legalize prostitution? I would, but that is an argument for another day. Large-scale anxiety has also ensued on the question of same-sex marriages-what will happen to the sanctity of marriage? This, in a country where a local actress is all set to tie the knot, on national television, as part of a reality show.

India ProtesterDoes there exist a forum outside of the judiciary where these battles may be fought? Perhaps. Does there exist a forum where these battles will be won? Unlikely. Politics and lobbying are rarely, if ever, viable options within the Indian system. Where so much of what we consider sacred depends upon exclusion, appeals to public perception or a collective conscience do not bear fruit. Decisions like that of the Delhi High Court reinforce the view that the judiciary is the pivot upon which our society will turn. For the moment, we wait for the Supreme Court’s decision on the issue at hand.

In dealing with the Indian Constitution our courts have, on occasion, let us down. Naz Foundation v. Union of India is not one of those occasions. And one hopes that in the years to come the courts will declare, as they have in the past, that just because things are a certain way does not mean that they should be.


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