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The student community of NALSAR strongly condemns the Supreme Court judgment in Suresh Kumar Koushal v. Naz Foundation. This decision turns its back on a history of rich Constitutional jurisprudence while denying basic dignity and humanity to a large number of people across the country. As a campus with a vibrant and visible LGB community, we are deeply saddened that the Supreme Court has declined to recognise the basic human rights of LGBTIQ people as equal citizens under this Constitution. We understand that our contribution to the legal community has just begun, but we also emphasize that as future upholders of the Institution, we are deeply concerned and affected by this decision of the Apex Court. This decision does not acknowledge the discrimination and harassment that LGBTIQ persons face on a daily basis. And hence we feel the need to express our opinion. In terms of legal analysis, this decision fails to take into consideration established tenets in Constitutional law. The Article 14 analysis admits that no uniform test can be culled out to determine what constitutes carnal intercourse against the order of nature. And yet, the court finds that an intelligible differentia exists so as to create a classification between acts that are against the order of nature and those that arent. The court then completely misses the second part of the test wherein a rational nexus needs to be established between the classification and the object sought to be achieved. Here we find a court upholding an Article 14 challenge to a criminal provision without even mentioning the purpose or supposed good that the law was enacted to realise. The Article 14 analysis is further mired by the court finding that 200 reported cases to be indicative of too miniscule a minority for recognizing that the right to equality is infringed by Section 377. The court does not seem to realise that looking at reported decisions is only scratching at the surface of discrimination and intolerance against the LGBTIQ communities. It does not tell about the deep marginalisation that transgender people face, whose absence in our university is telling of the long way forward towards the community finding a voice in influencing law and policy making. We find that this is a very dangerous precedent to set for minorities of different kinds in such a diverse country as India. We believe that equality analysis cannot be reduced to a numbers game. The judgment, further, does not even consider Article 15 except for a single passing mention to state that it has not been infringed. We find that there is also no analysis of the much needed expansion of Article 15 that was espoused in Naz Foundation v. NCT. We regret that the Supreme Court lost an important chance to progressively read Article 15 so that it can have real meaning for all minorities, including persons with disability. Though the court refers to the privacy-dignity-liberty link, we find that it fails to apply the case law cited and safeguard the privacy of each of us against intrusion by the state. The court states that the Delhi High Courts analysis was influenced by foreign law and hence is not tenable. As
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law students, we are aware that Comparative law is an important part of Constitutional law analysis. The famous basic structure doctrine, substantive due process read into Article 21 and the prevention of sexual harassment guidelines in Vishaka are some prominent examples of the use of foreign law. Further, the right to privacy has been propounded as part of the right to life and liberty in numerous Indian case laws including Kharak Singh v. State of UP, Gobind v. State of MP, PUCL v. Union of India. These cases clearly establish that there must be a countervailing state interest that is superior and paramount. The judgment, however, lists no such reason(s). In todays age, where surveillance and state monitoring has become such a global malaise, we find that the judgment does not harbinger a bright future for the rights of an ordinary citizen against the might of the state machinery. The judgment ends by leaving a competent legislature free to consider the desirability and propriety of deleting Section 377. We are deeply saddened that this court, despite its strong history of public interest litigation, has declined to act in role as a counter-majoritarian institution. The very idea of judicial review is to ensure that a Constitutional limit is placed on the actions of the state, so as to safeguard the basic rights and liberties of minority groups and other people who cannot stand up against the might of the state. Further, the court does not take into account that LGBTIQ people are insular minorities who approached the courts for the very reason that discrimination and harassment excludes one from mainstream decision making. We find that the same judge has led the way in a previous decision in Delhi Jal Board: The superior courts will be failing in their constitutional duty if they decline to entertain petitions filed by genuine social groups, NGOs and social workers for espousing the cause of those who are deprived of the basic rights available to every human being, what to say of fundamental rights guaranteed under the Constitution. And yet, the court did not find it necessary to exercise jurisdiction to decriminalise queer identities in our country. Sexuality and gender identity are, in our unequivocal opinion, intrinsic aspects of a persons identity. We stand by the statement of the Home Ministry as submitted in its affidavit to the Supreme Court bench, dated 1st March, 2012, that we can find no fault with the reasoning of the Delhi High Court. We support the decision of the government to file a revision petition in this case. We hope that our apex court will undo the jurispathic effects of this judgment and take this opportunity to pronounce unequivocally on the right to be different, to have a voice and to be considered an equal member of our society, with all aspects of our identities included. As future lawyers, we call out to the legal community to take the first step by ensuring that their work spaces are inclusive and open to all. It is with deep heartbreak that we hear about the exclusion and sexism that women in the legal profession face and we would like to remind all law people that they must lead the way in living the values of inclusiveness and respect for all people of all gender and sexual identities, that, as the Delhi High Court reminds us, is the underlying theme of the Constitution.
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Till that moment and beyond, we pledge our support to the Queer Community and continue to promote an open space wherein the rights of everyone are upheld and celebrated. We pledge ourselves to diversity and inclusivity.

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