Tuesday, July 07, 2009

Navigating the Noteworthy and Nebulous in Naz Foundation-I

There have been few, if any, cases whose proceedings have been closely followed and judgment keenly awaited as Naz Foundation. The verdict was eagerly anticipated, not just by lawyers and court watchers, but also by activists and a broad cross-section of ordinary people. Acutely aware of their role in contemporary history, the judges on the Naz Foundation bench did not disappoint. Their conclusion that Section 377 is unconstitutional vis-à-vis consensual adult sex is set in the elegant tapestry of a carefully spun decision embroidered with copious citations. The judges display great courage and craftsmanship in fashioning a historic decision heard loud and clear, not only in India, but across the world.

I, for one, first got word about the decision from a friend in Dhaka who e-mailed her South Asian friends about the breaking news. It helped that the Delhi High Court immediately made the decision available on its website, and the BBC promptly posted a link spurring downloads across the globe. A friend called me from New York to say that he could not retrieve the judgment because the high court’s server was clearly overloaded. Over the weekend, the New York Times’ story on Naz Foundation was among the top ten most popular stories on the newspaper's website. Naz Foundation is likely to rival the mango this summer as India’s top export! I don't know of any other Indian case that has enjoyed this much fame.

The beauty of Naz Foundation is that it skillfully mixes originalism (rarely used by Indian judges anymore) with pragmatism in constitutional interpretation. It is a product of considerable strategizing, deep thinking, and extensive research. At the same time, the judges display great humanism, sensitivity, and empathy -- qualities rarely displayed in most Blackstonian judicial monasteries. The decision's artful prose, which sounds almost poetic in several places, is tempered by humility and modesty. Its cadences have the unmistakable stamp of Chinnappa Reddy's compassion and Bhagwati’s forensic reasoning without the distraction of Krishna Iyer's bombast.

Symbolically as well as substantively, Naz Foundation marks a radical change in our Republic’s constitutional jurisprudence. It fundamentally alters the relationship between a large disenfranchised, yet mostly silent and dispersed, minority and the hegemonic Indian state. For that reason, I believe it genuinely qualifies for that often gratuitously misused epithet of legal writing: "a landmark judgment." Yet, like all landmark judgments, Naz Foundation has its strengths, weaknesses, and penchant for controversy. To crudely adopt local imagery, the decision has the grandeur of the Red Fort's majestic ramparts as well as the confusion of Old Delhi's maze of bazaars, crowded streets, and alleys. In assessing this bewildering landscape, I’ll celebrate today the judgment's impressive monuments that display great judicial architecture and craftsmanship. In tomorrow’s post, I will deal with Naz Foundation’s not-so glamorous dimensions.

1. At its core, Naz Foundation is an emphatic reiteration of the vision of our Republic’s Founders to establish a just, inclusive, and tolerant India. Mindful of the bitter and shameful legacies of our history, our Founders were especially unwilling to countenance any form of social exclusion. This is evident in, among other things, Article 17’s unprecedented constitutional prohibition on “untouchability” -- a term deliberately left undefined in the Constitution. Naz Foundation extends the command of Article 17 to abolish new avatars of disability based on sexual identity or orientation. The decision is also a reminder (not so much to India, but other less-enthusiastic jurisdictions) that a constitution is a living document, and its protections must be dynamically interpreted to apply to new situations and challenges.

2. In affirming privacy as a fundamental right under Article 21 (the Constitution’s guarantee of life and personal liberty) and invoking it to partially invalidate Section 377, Naz Foundation constitutes a bold revival of substantive due process reasoning that has been rarely used by Indian courts. Perhaps, in this respect, Naz is the Son or Daughter of Menaka because the former is an unmistakable progeny of the latter. (A better child than Varun Gandhi at any rate). For it was in Menaka Gandhi that the Supreme Court, fighting the real and imagined ghosts of Gopalan, endorsed the use of substantive due process to embellish the Constitution’s fundamental rights and freedoms.

In the thirty-two years since Menaka Gandhi was handed down, the Supreme Court has expanded the scope of Article 21 to discover a whole host of new rights, such as education, health, and shelter, in cases such as Unnikrishnan. However, most of those “new” rights are socio-economic in nature and are recognized in the Constitution’s Directive Principles. Moreover, the underlying cases (with the exception of Unnikrishnan) in which these rights were “discovered” did not require the courts to set aside or invalidate any central or state statutes.

If Naz Foundation remains undisturbed or is affirmed by the Supreme Court, it will be only third time -- by my reckoning -- that an Indian court has used substantive due process to discover a new civil and political right (privacy) and invalidate a statute for transgressing that right. The only other decisions to use substantive due process in this manner are Mithu, where the Supreme Court struck down Section 303 of the Penal Code for prescribing mandatory death sentences for life convicts who commit murder and Canara Bank, where the Court invalidated an Andhra Pradesh revenue law that compromised confidential banking information of customers. Rathinam, in which the Court invalidated criminal sanctions under Section 309 of the Penal Code for suicide attempts, also used substantive due process reasoning. But, as we all know, Rathinam was subsequently overruled by a constitution bench in Gian Kaur.

3. Naz Foundation abandons the Supreme Court's reticence about privacy in Kharak Singh, Gobind, and Rajagopal and forcefully asserts that there is such a right in Article 21's guarantee of life and liberty. While that itself is a noteworthy constitutional milestone, the Delhi High Court has gone even further by arguing that privacy concerns focus on “persons” rather than places. In so doing, the High Court articulates a unique non-spatial and portable understanding of privacy. This understanding seeks to liberate privacy from its traditional focus on protecting the sanctity of the home, bedroom, (or, perhaps, in this case, the closet). This subtle, but skillfully reasoned, aspect of Naz Foundation is its most attractive constitutional feature. I suspect that it is this feature that will ensure the case is cited for many years to come in courts and classrooms. I should say, however, that tomorrow I will quarrel with the high court’s reasoning and actual conclusion on this issue. So, this is only qualified praise.

4. I am especially struck by Naz Foundation's insistence on a strictly secular approach in adjudicating constitutional claims. It wisely avoids any reference to religious or moral dimensions, even though petitioners explicitly touched upon them in oral and written submissions (they argued that Section 377 was based on "Judeo-Christian" values). In this respect, Naz Foundation is strikingly different from other substantive due-process cases, such as Rathinam, its closest relative in some respects. In his rambling opinion in Rathinam, Justice Hansaria quoted extensively from religious and spiritual sources to support his thesis that the Constitution protects a right to die. By contrast, Naz Foundation is content with citing only the secular icons of our past, Nehru and Ambedkar. Their personal views on homosexuality remain publicly unknown, but their political philosophy would appear to tolerate it.

5. Unlike any other decision before it, Naz Foundation has the unique potential to diminish popular, but irrational, moral condemnation of stigmatized groups. Witness the headlines in the Indian press reporting the decision “It is ok to be Gay,” “Sexual Equality,” “Gay and Finally Legal,” and “Sexual revolution in India.” It is for this reason, perhaps, that my good friend, Lawrence Liang argues that Naz Foundation is India’s Roe moment. Indeed, the mass publicity and fanfare heralding the decision presents a rare opportunity for activists to reshape public opinion and influence a wider social debate about gay rights. This is especially important, as in the long run, gays and other disaffected groups cannot only rely on courts to advance their civil rights agenda. They must build new political coalitions and engage the legislative process.

6. Naz Foundation gives new meaning to identity politics in India. Dominant political and legal conceptions of identity focus on groups traditionally knitted together by religious, caste, or linguistic ties. By acknowledging the distinct status of persons, whose only common bond is sexual orientation, and addressing them as a collective (actually using the phrase "LGBT"), Naz Foundation recognizes the emergence of new social identities while carefully sidestepping lingering concerns about their elite roots and urban biases.

7. Finally, the decision bolsters the Delhi High Court's reputation for being India's most important constitutional court apart from the Supreme Court. In recent years, the High Court has produced some innovative decisions that push the boundaries of our constitutional jurisprudence. Two notable gems are Maqbool Fida Hussain v Raj Kumar Pandey, 2008 (6) Del. 533 (decrying misuse of obcenity prosecutions) Justice and Parents Forum for Meaningful Education v. Union of India, A.I.R. 2001 Del. 212 (affirming constitutional rights of children and outlawing corporal punishment in Delhi schools). Naz Foundation is the latest milestone in the Delhi High Court's impressive track record, and a demonstration that one does not always need to depend on the Supreme Court for constitutional salvation.

(This post, written entirely in my personal capacity, will be continued tomorrow).

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