KoushalvNaz: Judges Vote to Recriminalise Homosexuality

Abstract

In Koushal v Naz the Indian Supreme Court overturned a High Court judgment which had declared unconstitutional section 377 of the Indian Penal Code criminalising ‘carnal intercourse against the order of nature’. In doing so, it has rebranded gay and transgendered Indians as criminals. This case note explores some of the structural problems that led to this judgment. The first problem is the transformation of the Indian Supreme Court 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 Court'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.

Broadening understanding of accountability ecosystems in sexual and reproductive health and rights: A systematic review

“…These studies interpret the State’s role as duty-bearer to implement national and sub-national accountability strategies to protect citizen’s economic, social and cultural rights. These tended to be examples of NGOs, both progressive and conservative ones, use of strategic litigation or public interest litigation as an instrument to enforce accountability for infringements of human rights, for example in Chile [ 46 ], Argentina [ 40 ], China [ 20 ], Harayana state in India [ 43 , 45 ]. In the second sub-theme, accountability for upholding constitutional rights, there was a particular focus on the protection of specific economic, social and cultural rights as outlined in the constitution, namely in South Africa, Nigeria, Malawi, Somaliland and Kenya [ 27 , 44 , 47 – 49 , 55 ].…”

“…Another set of studies focus on civil society organisations, preparing or bringing cases on the violations of sexual and reproductive health and rights before court [ 35 , 40 , 42 – 43 , 46 , 51 ]. Finally, a group of studies focuses on the role of the courts and the possibilities within the respective countries’ constitutions to protect access to reproductive health and LGBT access [ 27 , 44 – 45 , 47 – 50 , 55 ].…”