ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846

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Struggling for Reason

Fundamental Rights and the Wrongs of the Supreme Court

The judgment of India's highest court has re-established discrimination based on sexual orientation. A close reading of the judgment upholding Section 377 of the Indian Penal Code indicates that the Supreme Court misread the Constitution and legal precedent. More worryingly, it failed to uphold the fundamental rights of Indian citizens.

On 11 December 2013, the Supreme Court of India overturned one of the landmark judgments of the Indian judiciary, the Delhi High Court’s Naz Foundationvs NCT, Delhi. In doing so, the Court effectively re-criminalised millions of lesbian, gay, bisexual and transgender (LGBT) individuals across the country, just four years after the lower court had allowed them the status of equal moral citizenship.

In the days that have elapsed since the judgment was declared, it has already gone down in public discourse as one of the Supreme Court’s most reviled decisions, spoken of in the same breath as “Mathura”, where police officers accused of raping a tribal girl were acquitted on the grounds that she was “habituated to sex” and “ADM Jabalpur”, where it said the writ of habeas corpus could validly be suspended in conditions of declared state emergency. Suresh Kumar KoushalvsNaz Foundation has been accused of being a cowardly judgment, one that masks prejudice and law and is full of logical inconsistencies and short on legal reasoning. It is the utter inadequacy of reason in this judgment that we will assess in this article, through an overview of the major themes of the judgment.

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