Saturday, August 8, 2009

The Naz Foundation Case

The students leading the discussions on the Naz Foundation case have the following opinions to offer on the issues discussed at the Forum:


The Naz foundation judgement is a path breaking judgment in many ways. Since the social and criminal issues have been debated to death in the public discourse, we believe it is germane to look at the vital constitutional implications. These were discussed under the following heads:
1. Importation of Sexual Orientation into sex through analogy.
2. The horizontal application of fundamental rights.
3. The usage of the doctrine of strict scrutiny.
4. Privacy, dignity and constitutional morality.


Article 15(1) of the Indian Constitution prohibits discrimination on various grounds including sex. In the Naz foundation case the Delhi High Court cited various case law to say that you can import terms into Article 15(1) by analogy. The court interpreted sexual orientation as being analogous to sex and thus held that discrimination on these grounds is prohibited.
In order to analyse whether this can be done and is constitutionally valid it is fruitful to look at the various theories of constitutional and statutory interpretation. Every theory starts from the premise that the primary source of interpretation must be the words. If there is any ambiguity we look at external and internal aids to construction.
The first theory that can be used in the analysis is the original intent theory.
In this you look at the Original intent in other words what framers intended. There are two strands of this, semantic Originalism based on what the framers intended to say, and what they intended to do. This can be understood using the example of school segregation. When the laws of school segregation were overturned in Brown v Board of education, a lot of people opposed this saying that the framers did not intend this. The argument being that as the body reflecting popular sovereignty only the legislature has the authority to do this. Seen from this perspective, Naz foundation judgment is clearly wrong as when framers spoke of article 15 they did not mean sexual orientation, for if the framers had intended that sexual orientation should be read in to sex then article 377 would have been unconstitutional or read down at 26th January 1950 itself.
It can be argued that maybe the framers specifically intended that law should not reflect changes in the original values that the framers thought desirable and that it requires the long and hard consideration needed for a constitutional amendment.
3. According to Justice Antonin Scalia constitution is to be considered in the court as the paramount law. The constitution has an effect superior to other laws, is the sort of law that is the business of the courts, an enactment with a meaning that is fixed and ascertainable though derived known to those learned in law. If constitution was not this but something that would apply to current societal values then should not the legislature rather than the courts determine its content?
4. Lack of an Alternative: If there is to be consistency and predictability then there must be a consensus that judges will adopt something to replace originalism. Question is what can this be? Locke? Mills? Rawls ideas? Though originalists also have differences they have a common point of departure.
5. Once the original import of the constitution is cast aside to be replaced by fundamental values of the current society why are we invited only to “expand on” freedoms and not contract them? Consider the Coy v iowa case. Two young girls were permitted to testify against the defendant by using a screen. It was argued that this violated the right of the sixth amendment allowing the criminal defendant to be confronted with the witnesses against him. This a contraction of the rights of the accused. Similarly the US Supreme Court has narrowed the contract clause of the constitution well short of its meaning. How can we not see this as a contraction of our rights?
Thus the idea is even if one is to assume that the constitution was intended to be this evolving document. Is it the courts prerogative to do this?
According to this theory such a reading of sexual orientation being analogous to sex is wrong.
General criticisms against the originalist interpretation.
1. It is very difficult to ascertain the original understanding of an ancient text. It involves looking at the constitution, amendments, and Constituent assembly debates, understanding the social and political atmosphere of the time. More suited to the historian than the lawyer.
2. There are many instances of confusion regarding the interpretation. For example in the Myers case, Justice Taft held that the president had the owner of both appointment and removal of executive officers as the British crown has these powers and son when the framers of the American constitution used the word executive power they were including both. This case cited Fleming v Page to say that the association of removal with appointment is not incompatible with the republican form of government. However the Fleming v page case also held that with respect to the distribution of political power there was a major difference between the united states and Britain and that there was no resemblance regarding the powers of the executive forms of the government. As can be seen there are multiple and every differing interpretations.
3. Lawrence tribe Harvard law professor feels that for provisions like the ninth amendment, the originally understood content of these provisions has nothing to do with how they are applied today. Constitution invited the judges to expand freely on freedoms.
4. Stanford dean Paul Brest “practise of constitutional decision making should only look at the practises which are fundamental to our society. Text, original understanding precedent is important, but they are defeat able in the eyes of changing public values.”
5. Yale professor Owen Fiss says whatever the constitution originally meant the constitution makers should give concrete meaning and application to those values that give society its identity.
6. Whole idea being that the judge might allow his own predilections to intervene. Difficult to distinguish between political values important to him personally and those values which are considered important by the society.
The Second theory of interpretation:
Dworkin says you must distinguish between what the framers intended to say and what they intended their words to achieve. Consider the segregation case again. By virtue of the fact that a term like equality used ( broad term) and did not use narrow definition like non segregation shows intent to lay down a principle that cud be interpreted according to changes in social conditions. Like Hart makes a difference between concept and conception. For example you have the concept of democracy and various conceptions like Plato’s rule of elected aristocracy, parliamentary and presidential democracy. When framers use democracy they lay down a concept not conception so you can interpret democracy as parliamentary and presidential democracy both are fine. Dworkin says moral reading of the constitution. On this ground you can defend Naz. Framers said non discrimination on basis of sex so allowed for importation by analogy.
Newest theory by Bruce Ackerman
In “we the people” he argues you have certain things called constitutional moments when because of widespread political exigencies you need a break in the position of law. May not be supported by precedent but is justified by the exigencies. He believed that each judgment writes a story. You must stay within the framework is what Dworkin says. Ackerman says at times due to the situations prevailing due to the exigencies can break with precedent and move in new direction. For example Keshavananda Bharati is a constitutional moment. Naz is one too can say it is demanded by exigency though case law does not. Constitution has to be seen as a dynamic instrument. This is something courts should do.

The Naz Foundation judgement in Paragraph 104 states as an obiter that Article 15(2) is meant to be read horizontally, that is, that Article 15(2) is available against individuals. The issue of whether the fundamental rights are to be read as enforceable against citizens or against the state only is a contentious topic in constitutional law today. While Classical Liberal theory and early cases such as Samadasani v. Central Bank of India and Vidya Verma v. Shiv Narain Verma seem to lean towards an understanding of these rights being “vertical”. A recent reaffirmation of this is seen in the Zoroastrian housing case. However, do such ideas need to be reassessed in today’s context? We find that today, the State has given up control over the commanding heights of the economy to private actors. Authors such as Upendra Baxi also suggest that with globalization marks the birth of new forms of territorialisation/de-territorialization of diverse state forms within which the duties of allegiance and powers of governance stand routinely recast, performed and exercised. Further, we find incidents where celebrities such as Emran Hashmi have been denied access to housing, allegedly on the basis of their religion, indicative perhaps of an existing trend in society, where the need for enforcement of fundamental rights against other citizens is necessary. A more horizontal application of Fundamental Rights can be seen in ruling of the Supreme Court. For one, we find that the definition of State under Article 12 has been ever expanding, settling today to mean any “agency or instrumentality” of the State (ruling in the Ajay Hasia case). Further we see instances of DPSPs being read into the Fundamental rights, increasing the responsibility of private actors by enhancing the responsibility of the state (MC Mehta v. Kamal Nath). Moreover, we find that private actors are being included as respondents in Writ Petitions resulting unfavourable remedy to those whose right have been violated by bodies that are not the state (Vishaka Judgement).
The horizontal/vertical divide raises many important questions. One such question is whether the current test for the meaning of the word “state” is sufficient, given changing circumstances. The Zee Telefilms standard of “functionality” was rejected. But do circumstances today require a relook at the definition of the State? Flowing from this is the debate over what the responsibility of private parties are? While the constitutional scheme subscribes to equality, are private individuals expected to adhere to these standards and can the state force private bodies to comply with such values? On the one hand, private bodies are separate from the government for this very reason, that they can make autonomous decisions, or on the other hand, should such autonomy be waived depending on the degree of the discrimination? Can private parties be excused if their intent is associative discrimination for the promotion of the interests of a specific group? Can their discrimination be excused if there are other viable alternatives? Or is it that such changes cannot be determined by the courts at all, and such application can only be at the initiative of the legislature? There is the additional matter of the consequence of horizontality as well. Will the courts be able to bear the burden of multiplied litigation? If this were to be controlled, what standard could be applied?

The Naz foundation judgement touched on many issues dealing with the right
to life. The court held that the right to privacy is violated by this and that interference into this personal sphere of life was considered to be arbitrary and illegal, as privacy was not just about occupying free private space, but to develop and express your personality. The
homosexuals right to dignity is violated through their constant harassment and their inability to live a fulfilling life. Further, the court held that constitutional morality is not the morality of the public. But the values espoused by the constitution, such as equality and

However, the moot point in this regard is whether the ruling of court ensures the homosexual couple a meaningful livelihood. While sexuality is in some cases not crucial to one’s functioning in public life, most noticeably in the sphere of healthcare, with regard to employment, housing, etc. sexuality may not be relevant. The most impact that the acceptance of alternate sexualities would have is on personal laws, though currently, LGBT rights in regard to adoption, marriage, IVF, etc. are not on par with heterosexuals.

The second matter of discussion was on international jurisdictions and what the Naz foundation borrowed from other countries. There was extensive usage of case law from countries like USA, where homosexuality has been decriminalized, through cases such as Bowers v. Hardwick and Lawrence v. Texas. Reference is made to the Wolfenden Report and to cases from Australia.

The issue of going beyond mere decriminalization of homosexuality is relevant here, as recently performance and registration of civil unions has been permitted by the government here. While several rights have been accorded to LGBT groups even in international jurisdictions, such as adoption, IVF, surrogacy, etc. there is still apprehension with regard to
granting equality in terms of marriage. Is there a time right to grant homosexuals the right of marriage or perhaps civil union even? Do these issues warrant a new analysis of equality, which goes beyond the conventional rational nexus and intelligible differentia test, which can account for the manner in which different people experience inequality and how this is such an experience can be caused by inaction as well? Can such inequality be remedied by the government at all and is this process of acceptance hindered by the hetero-normativity of advertisements and movies?


Strict Scrutiny is one of the three standards for judicial review of legislative. These standards of legislative and administrative action are a rational basis, Intermediate scrutiny, Strict scrutiny. In this process Governmental action is subjected to careful judicial inquiry and scrutiny so as to ensure that the personal right of equal protection of the laws has not been infringed. The relevant case laws are Regents of the University of California v. Bakke 438 US 265 and (1978) Parents Involved in Community Schools v. Seattle School District, (2007). Indian cases are Saurabh Chaudri and Others v. Union of India and others, (2003), Ashok Kumar Thakur v. Union of India, (2008), Anuj Sharma’s case (2008).
The important issues discussed in this regard as seen in the forum were: The various tests that can be used to check the constitutionality of any statute namely the rational basis test, heightened scrutiny test and then strict scrutiny. There is a gradation here in that strict scrutiny that requires a state interest. In this the presumption of constitutionality is taken away.

The theory good but the big criticism is that the Strict Scrutiny is strict in theory and fatal in fact. No government action can survive all 3 prongs of the test. It is used even in the US only to strike down affirmative action measures. The US also has softer affirmative action like diversity quotient not reservations. Government can prefer higher diversity quotient than others. Such measures are however routinely struck down by Strict Scrutiny.

An important matter for discussion is the validity of the usage of strict scrutiny in the Indian scenario. While the Anuj Garg case was reported in 2007 and upheld the usage of strict scrutiny, while the Ashoka Kumar Thakore judgement looked upon the strict scrutiny test as a threat to the laws in place. However, the Anuj Garg case was reported only in December 2007 and hence could not be used by the judges in the Supreme Court case while deciding the Ashoka Kumar matter. There is a recent Madras High Court judgement Lifestyle Influence Spa v. Government of Tamil Nadu, also upholds the usage of strict scrutiny.

The Naz foundation case read the two cases harmoniously, however, the larger matter of debate is whether the doctrine of strict scrutiny needed to be applied at all. Would the rational basis standard have been sufficient?

These questions are relevant because while harmoniously reading the cases the Delhi High Court ruled that strict scrutiny would apply in all cases except those of affirmative action. But how is it to be ascertained, what exactly constitutes affirmative action?


The matters discussed in the forum were chosen due to their contemporary importance and due to their potential for altering the existing positions of law on many constitutional matters. We find that many of the interpretations are contentious. Currently, it is important also to ask: are these interpretations likely to be accepted by the Supreme Court? Are such interpretations wise strategy, if the interests of many affected by s. 377 are at stake?

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