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K oushal v N az : Judges Vote to Recriminalise Homosexuality
Author(s) -
Khaitan Tarunabh
Publication year - 2015
Publication title -
the modern law review
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 0.37
H-Index - 22
eISSN - 1468-2230
pISSN - 0026-7961
DOI - 10.1111/1468-2230.12133
Subject(s) - homosexuality , jurisdiction , law , institution , order (exchange) , political science , legislature , legislation , sociology , economics , finance
In K oushal v N az the I ndian S upreme C ourt overturned a H igh C ourt judgment which had declared unconstitutional section 377 of the I ndian P enal C ode criminalising ‘carnal intercourse against the order of nature’. In doing so, it has rebranded gay and transgendered I ndians as criminals. This case note explores some of the structural problems that led to this judgment. The first problem is the transformation of the I ndian S upreme C ourt into a populist, quasi‐legislative, institution that sees itself as a tool of governance. This has put significant pressure on its counter‐majoritarian role. The second relates to the sheer size of the C ourt's docket (given its wide jurisdiction and lax standing rules), coupled with the Indian legal academy's inability and unwillingness to continuously demand judicial fidelity to the law. These factors have led to the normalisation of unreasoned or poorly‐reasoned judgments and a breakdown of stare decisis .