Reflections on the litigation strategy in Naz Foundation, and comparative notes

I believe the Naz Foundation case has the potential to become one of the most significant cases in Indian constitutional jurisprudence, and I am glad that we are following its route through our legal system closely on the blog. (Thanks, Tarunabh, for monitoring the case, and for the link to the excellent Lawyers Collective site). On a separate note, I am glad that others are emulating Mr. Venkatesan’s example of providing a public record of the arguments delivered by counsel in significant cases (which is distinct from the other useful strategy of making the written arguments of counsel available to the public). I am struck by the order of constitutional arguments adopted in the petition and in oral arguments by counsel for the Naz Foundation, Anand Grover. Lawyers seeking to repeal/read down 377 have clearly decided to bank heavily on the equality arguments (based on Articles 14 and 15), and have chosen to use the liberty claim (based on Article 21) more as a back-up argument. While this makes sense from a normative and analytical standpoint, it is a risky strategy. India’s constitutional jurisprudence on equality is still quite conservative, especially in non-quota cases (some scholars have argued that even in quota cases, the Court’s equality jurisprudence is muddled and unclear, and not necessarily very progressive). The Supreme Court’s leading precedents on equality still adopt a very formal approach, which grants a great deal of deference to governmental choices because the “classification test” with its emphasis on “reasonableness” allows a great deal of latitude to governments. The Supreme Court of India has so far not sought to emulate the example of the apex courts in Canada and South Africa, which have rejected the similarly formal tests adopted in the US, and have embraced conceptual ideas and evolved judicial tests that seek to attain substantive equality. (There is, by now, a good deal of literature on the difference between judicial tests of substantive and formal equality, and I would encourage readers with an interest in such issues to follow up on this). By contrast, India’s Article 21 jurisprudence on liberty is substantially (and substantively) more developed. So, at least at first blush, it would make sense to pitch the constitutional case against section 377 on grounds aimed at Article 21 rather than Article 14. In the end, I think there are good reasons for going with the strategy adopted by the lawyers for the petitioners in the Naz Foundation case. Our fabled Article 21 jurisprudence is actually quite muddled, and as a matter of constitutional doctrine, it is not clear where the definitional boundaries of ‘life’ and ‘personal liberty’ lie in India. Moreover, for those seeking to spread greater awareness of alternative sexuality lifestyles, while also removing some of the stigma attached to them, an argument based on equality is more appealing than one based on personal autonomy or liberty. This case presents a good opportunity for our judicial system to re-examine old precedents on equality, and to consider whether the time has come for our legal system to embrace notions of substantive equality in areas beyond caste (and possibly gender). In an earlier post, Tarunabh has alluded to some signs of this shift, as evidenced in the recent decision of the Supreme Court in the Anuj Garg case. The Naz Foundation case would seem to be ideally placed to test whether the Supreme Court is prepared to go further down the path suggested in Anuj Garg. The lawyers for Naz Foundation have not, in fact, chosen one over the other, and have indeed grounded their challenge on both equality and liberty, highlighting the intertwined nature of the rights conferred by both provisions. It remains to be seen how the judiciary will respond to this nuanced strategy. I am struck by the fact that the tensions noted above within the Indian constitutional landscape are remarkably similar to those perceived within the US. The starkness of the similarity was made clear to me when I followed a recent debate between two Yale constitutional law scholars on the appropriate constitutional strategy to adopt in gay rights cases in the US. Both agree that ultimately, the two arguments are inter-linked and should be used in tandem. However, Kenji Yoshino argues that courts should (and will) lead with the liberty argument. Heather Gerken, by contrast, argues that courts should (and will) lead with the equality argument. The second round of the debate is available here.
What is fascinating about this debate is that it is informed not just by normative considerations, but also by a deep understanding of what the U.S. Supreme Court has actually done in cases involving liberty and equality claims in recent years. Academic debates in Indian constitutional scholarship are rarely able to achieve such a heady mix of these two important factors that guide how cases are eventually decided by courts.
I hasten to add that as the debate clearly shows, there are several aspects to the American scenario that are unique to that jurisdiction, and I am not for a moment suggesting that lawyers in India should simply apply arguments from the US in India. It is not clear, for instance, that the peculiar conditions within the Roberts Court that make either liberty or equality a more promising route are at all replicated on the current Indian Supreme Court. Still, I think a consideration of the American debate may be useful for lawyers and scholars in India, if only to review their own positions. An aside: the debate among Yoshino and Gerken was triggered by a symposium which sought to mark the many contributions of the Harvard constitutional scholar, Lawrence Tribe. In this essay, Yoshino pays a touching tribute to Tribe’s long involvement with gay rights cases, and the profound impact his constitutional scholarship has had on the current generation of US gay rights cases. Gerken’s essay paying similar tribute to Tribe is here. (These longer essays also provide greater elaboration on the themes mentioned in the respective blog posts by Yoshino and Gerken). To people who wonder whether it matters at all what constitutional arguments courts use to reach their final decisions, Yoshino’s piece will provide illumination on how a constitutional scholar’s prescient thinking can lead to a mini-revolution in rights jurisprudence.

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