Koushal v Naz: Judges Vote to Recriminalise Homosexuality
| Author | Tarunabh Khaitan |
| Date | 01 July 2015 |
| DOI | http://doi.org/10.1111/1468-2230.12133 |
| Published date | 01 July 2015 |
CASES
Koushal vNaz: Judges Vote to
Recriminalise Homosexuality
Tarunabh Khaitan*
In Koushal vNaz 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.
INTRODUCTION
In December 2013 in the case of Suresh Kumar Koushal vNaz Foundation1
(Koushal), a two-judge bench of the Indian Supreme Court (the Court) over-
turned a celebrated 2009 decision2of the Delhi High Court which had declared
the criminalisation of consensual oral or anal sex between adults by section 377
of the Indian Penal Code 1860 unconstitutional. In doing so, it has
recriminalised all penetrative non-peno-vaginal sex, including oral and anal sex.
This is irrespective of the gender of the person involved, and irrespective of
consent, although the implications of this recriminalisation for India’s diverse
population of sexual minorities are clearly particularly dire.
The case has important implications, and not just for India. Section 377 of
the Indian Penal Code was the original embodiment of the homophobic
moral panic that gripped the ruling elite in the British Empire. In criminalising
‘carnal intercourse against the order of nature’, the Empire sought to impose
*Associate Professor and the Hackney Fellow in Law, Wadham College, Oxford. The author is grateful
for the excellent research assistance provided by Amba Kak and Arthad Kurlekar.
1 (2014) 1 SCC 1: (2014) 3 SCC (Cri) 1.
2Naz Foundation vGovt (NCT of Delhi) (2009) 111 DRJ 1. See also a special issue of the National
University of Juridical Sciences (NUJS) Law Review on the High Court judgment: (2009) 2 NUJS Law
Review 3 at http://www.nujslawreview.org/articles-archives.html (last accessed 14 February 2015).
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© 2015 The Author. The Modern Law Review © 2015 The Modern Law Review Limited. (2015) 78(4) MLR 672–694
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
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