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How academia came of age with 377: SC relied on these Indian journals, blawgs in pro-gay rights judgment

Indian law journals get some love from the SC
Indian law journals get some love from the SC

As it had widely signposted, the Supreme Court has taken a tragically overdue but also eventually progressive step by decriminalising consensual sexual acts between persons of the same sex today, which had infamously been prohibited under Section 377 of the Indian Penal Code. It held Section 377 to be arbitrary, irrational and unconstitutional.

But the judgment is not just an overdue development for human rights and a victory for the many lawyers and activists who worked tirelessly for more than a decade on this: it could also be a major celebratory moment for Indian legal scholarship.

The Supreme Court’s judgment has referred to articles published in a special issue of the NUJS Law Review journal four times (as then reported on Legally India, the NUJS Law Review had in 2009 carried a special issue covering articles from several experts on the Naz Foundation judgment of the Delhi High Court, before it had been overturned by a short-sighted Supreme Court judge on his last day in office).

The Supreme Court also cited an article from the Jindal Global Law Review: Zaid Al Baset, “Section 377 and the Myth of Heterosexuality”, Jindal Global Law Review, Vol. 4 (2012).

Furthermore, the influential Indian Constitutional Law and Philosophy blog by Gautam Bhatia has also been cited in the judgment (“The Unbearable Wrongness of Koushal vs Naz Foundation” from 2013), in addition to an article of his in the Indian Law Review (Equal moral membership: Naz Foundation and the refashioning of equality under a transformative constitution, Indian Law Review, Vol. 1 (2017), at pages 115-144, published by Routledge Taylor & Francis).

The following authors and articles from the NUJS Law Review had been cited:

  • Shamnad Basheer, Sroyon Mukherjee & Karthy Nair, “Section 377 and the ‘Order of Nature’: Nurturing ‘Indeterminacy’ in the Law”, Vol. 2(3) (2009) (here) (Cited in Para 28, Page 33 of Justice Dr. D.Y. Chandrachud’s judgment)
  • Saptarshi Mandal, "’Right To Privacy’ In Naz Foundation: A Counter-Heteronormative Critique”, Vol. 2(3) (2009) (here) (Cited in Para 62, Page 76 of Justice Dr. D.Y. Chandrachud’s judgment)
  • Tarunabh Khaitan, “Reading Swaraj into Article 15: A New Deal For All Minorities”, Vol. 2(3) (2009) (here) (Cited in Para 15.2, Page 23 of Justice Indu Malhotra’s judgment)
  • Dipika Jain & Kimberly Rhoten, “The Heteronormative State and the Right to Health in India”, Vol. 6(2) (2013) (Cited in here) (Cited in Para 68, Page 86 of Justice Dr. D.Y. Chandrachud’s judgment)

Update: A sixth article from the NUJS Law Review had also been cited: Same-Sex Love and Indian Penal Code §377: An Important Human Rights Issue for India, written by Robert Wintemute.

Update: Furthermore, three articles from the Economics and Politics Weekly (EPW) were also cited, by Animesh Sharma in 2008, Alok Gupta in 2006, and Danish Sheikh in 2017.

Compared to the average Supreme Court judgment, there was an unusually high reliance on Indian legal resources in this judgment, perhaps reflecting the amount of interest in the case and the amount and quality of scholarship that had been produced.

The court therefore did not have to look at as much resources and literature from abroad, and this could mark the possible beginning of an era where Indian legal scholarship will attain more self-sufficiency.

Editor’s note: If you spot any other citations of Indian journals in the judgment, please let us know and we’ll update.

NUJS journal history: By MP Singh and students

NUJS’ special Naz Foundation issue was spearheaded by a team of editors who had worked during vacations and internships to churn out the issue under the guidance of editor-in-chief Prof MP Singh, the then vice chancellor of NUJS.

The editorial board was student-led, and comprised of Shekhar Sumit (now an MBA candidate at Yale School of Management who worked at Herbert Smith Freehills), Arindam Madhuryya, Associate at Carey Olsen, London, Mriganka Shekhar Datta (now Regional Counsel at Dimension Data), Deepak Raju (now Associate, International Trade & Dispute Resolution at Sidley Austin LLP in Geneva), Abhishek Tripathy, now an officer of the Indian Revenue Service (Indian Income Tax Department) and Abhyuday Agarwal, co-founder and COO of iPleaders and Lawsikho, Salonika Kataria, now at Herbert Smith Freehills, and Ushasi Das, now senior manager at ITC. All of them graduated from NUJS between 2009 to 2011.

Professor MP Singh, who had been an editor of VN Shukla’s Constitution of India and former dean of Delhi University’s law faculty and the then vice-chancellor of NUJS, had come up with the idea of starting a student-driven journal during his days in University of Columbia.

Madhuryya Arindam commented: “Professor MP Singh used to tell us how the US Supreme Court judges used to frequently rely on scholarly articles published in US journals when they faced with difficult questions of law which had broader implications for society. It was his dream to start a journal of this nature in India.”

There was also initial criticism when people heard that the editorial board was student-led with limited intervention of the editor-in-chief.

“The model has now been validated. The design, modelled on a Western format, was created with the vision that research-based journals can contribute to judgments and shaping policy. The articles published in the journal focus on issues and challenges faced in India,” said Arindam.

“Instead of big names, the journal valued content, editorial freedom and gave powers to students,” added Abhishek Tripathy. “At a time when social media was new, student involvement led to the journal interacting with the public through its Facebook and Twitter pages.”

“It is a quarterly journal - the high frequency of publication requires it to constantly generate a high volume of research and scholarship, which leads to significant development of Indian talent,” explained Abhyuday Agarwal. “Student-involvement has brought in a remarkable level of consistency. After more than a decade, this remains the only quarterly that is regular with its issues and is entirely student edited. The journal is now in its eleventh year.”

Its current editor-in-chief is Justice Amit Talukdar, current acting vice-chancellor of NUJS. It is published in physical form by the Eastern Book Company, and is also indexed in popular international legal research tools such as HeinOnline and Westlaw. Articles published in the journal’s previous 42 issues are available for accessed online for free here.

==Reference: Excerpted quotes from the NUJS Law Review

dc:Justice Indu Malhotra, noting the commonality between the grounds specified in Article 15, is based on the ideas of ‘immutable status’ and ‘fundamental choice’ by referring to the following quote by John Gardner (from John Gardner, On the Ground of Her Sex(uality), 18(2) Oxford Journal of Legal Studies, 167 (1998)) to provide context to the aforesaid commonality:

“Discrimination on the basis of our immutable status tends to deny us [an autonomous] life. Its result is that our further choices are constrained not mainly by our own choices, but by the choices of others. Because these choices of others are based on our immutable status, our own choices can make no difference to them. .... And discrimination on the ground of fundamental choices can be wrongful by the same token. To lead an autonomous life we need an adequate range of valuable options throughout that life.... there are some particular valuable options that each of us should have irrespective of our other choices. Where a particular choice is a choice between valuable options which ought to be available to people whatever else they may choose, it is a fundamental choice. Where there is discrimination against people based on their fundamental choices it tends to skew those choices by making one or more of the valuable options from which they must choose more painful or burdensome than others.”

(Para 15.2, Page 23 of Justice Indu Malhotra’s judgment, citing Tarunabh Khaitan, Reading Swaraj into Article 15: A New Deal For All Minorities, 2 NUJS Law Review, 419 (2009))

Justices Dhananjaya Y Chandrachud has referred to the following articles published in NUJS Law Review:

“At the very outset, we must understand the problem with the usage of the term ‘order of nature’. What is ‘natural’ and what is ‘unnatural’? And who decides the categorization into these two ostensibly distinct and water-tight compartments? Do we allow the state to draw the boundaries between permissible and impermissible intimacies between consenting adults? Homosexuality has been documented in almost 1500 species, who “unfortunately are not blessed with rational capabilities (and the propensity to ‘nurture’ same sex thoughts) as are found in mankind.

(Para 28, Page 33 of Justice Dr. D.Y. Chandrachud’s judgment, citing Shamnad Basheer, Sroyon Mukherjee and Karthy Nair, Section 377 and the ‘Order of Nature’: Nurturing ‘Indeterminacy’ in the Law, NUJS Law Review, Vol, 2 (2009))

Thus, it is imperative that the protection granted for consensual acts in private must also be available in situations where sexual minorities are vulnerable in public spaces on account of their sexuality and appearance.”

(Para 62, Page 76 of Justice Dr. D.Y. Chandrachud’s judgment, Saptarshi Mandal, Right To Privacy’ In Naz Foundation: A Counter-Heteronormative Critique, NUJS Law Review, Vol. 2 (2009), at page 533)

“In the evolution of its jurisprudence on the constitutional right to life under Article 21, this Court has consistently held that the right to life is meaningless unless accompanied by the guarantee of certain concomitant rights including, but not limited to, the right to health.”

(Para 68, Page 86 of Justice Dr. D.Y. Chandrachud’s judgment, citing Dipika Jain and Kimberly Rhoten, The Heteronormative State and the Right to Health in India, NUJS Law Review, Vol. 6 (2013))

Read full SC section 377 judgment (PDF)

Photo by Ludovic Bertron

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