Friday, September 10, 2010

Naz and Comparative Constitutional Law

Sujit Choudhry, one of the leading figures in the field of comparative constitutional law, has just made available on ssrn a wonderful paper titled 'How to Do Comparative Constitutional Law in India: Naz Foundation, Same Sex Rights, and Dialogical Interpretation'. The abstract of the paper is as follows:

How should Indian courts do comparative constitutional law? Does the practice of cosmopolitan citation carry with it the necessary implication that Indian constitutional adjudication is part of a trans-national conversation on the relationship between rights, democracy, courts and the rule of law that knows no jurisdictional boundaries? Or is comparative analysis entirely inappropriate to the interpretation of a document that, is the embodiment of the Indian political identity?

In this chapter, I offer a provisional answer to these questions, by puzzling through the recent judgment of the Delhi High Court in Naz Foundation v. Union of India, which held the application of section 377 of the Indian Penal Code to consensual sexual acts of adults in private to be unconstitutional. Comparative constitutional law did real work in Naz Foundation. But Naz Foundation neither used comparative materials in a way that was universalist, nor rejected their relevance because of a commitment to the particular and distinctive national character of the Indian Constitution. Rather, the court reasoned dialogically with comparative materials, and used them as interpretive foils to identify, reframe and enforce the premises of the Indian Constitution that were articulated at its adoption. Thus, the Indian courts join their counterparts in the United States, Canada, and South Africa in adopting the dialogical model of comparative constitutional interpretation.

At the heart of Naz Foundation is the analogy between untouchability and sexual orientation. In a growing number of constitutional systems, courts have condemned discrimination on the basis of sexual orientation, and interpreted constitutional guarantees of liberty and/or privacy in a non-discriminatory manner to encompass sexual intimacy between same sex partners. The question was whether the holdings and reasoning of those foreign courts resonated with pre-existing Indian constitutional premises. Naz Foundation held that they did. The court appeared to regard sexual orientation and untouchability as analogous, and accordingly seems to have reasoned that the Indian Constitution should condemn discrimination on the latter basis as much as on the former. Naz Foundation demonstrates that there is a way to do comparative constitutional law seriously that not only acknowledges, but also affirms, the notion that the Constitution is a reflection of the modern Indian political identity.
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