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

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Naz 2: A Critique

This article argues that Naz 2 holding against the indictment of the unconstitutionality of Section 377 is specious, to say the least. It points out that the reasoning is quite peculiar in many parts, and that while its institutional integrity might be at stake for the Supreme Court, for millions of the sexual minorities, it is nothing less than their fundamental human right to live with dignity that is at stake.

The Naz 2 decision of the Supreme Court (SC) reverses the progressive, egalitarian, inclusive, and constitutionally wise decision of the Delhi High Court (HC) (Naz 1: see Baxi 2011 for a detailed analysis) and it has been criticised by liberal opinion in India (Sheikh and Narrain 2013) and everywhere. In one fell swoop, Naz 2 took away everything that the Delhi HC had conferred on sexual minorities. The SC denied not merely the right to perform same sex acts but also their status as m­inorities, describing them as “minuscule”, ruling as “not proven” the terror and torture they undergo at the hands of p­olice, and holding laconically that theirs was not a complaint against denial of identity rights but an unsustainable plea for immunity for the performance of acts contrary to “nature”.

SC justices do not like their hC brethren to have the last say on constitutional matters, and our Constitution allows them that last say. The only “sin” of Naz 1 was to write a v­irtually unappealable decision, for it covered every aspect of the matter. Presumably, the HC did so because it was directed by the SC on 3 November 2004 to consider a “fresh decision” on the constitutional validity of Section 377, overruling its own earlier decision that “the p­etition cannot be filed to test the validity of the legislation, and…it cannot be entertained to examine the academic challenge”.

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