Making Comparative Constitutional Law Work: "Naz Foundation" and the Constitution of India

The recent decision of the High Court of Delhi in Naz Foundation v. N.C.T. of Delhi and Others, in which the Court declared the unconstitutionality of a colonial legislation to the extent that it penalizes consensual sexual intercourse by adult homosexual individuals in private, is currently in appeal before the Supreme Court of India. The judgment is considerably inventive, creating a stir in public debate about the fundamental rights to dignity, privacy and others, which continue to remain largely nebulous in Indian jurisprudence. What makes the decision most interesting, and contentious, is its heavy reliance on foreign sources — the judgments of foreign legal systems, as well as international texts. To what extent do external sources contribute, if at all, to the legitimacy of a judicial outcome? This question cannot go unanswered in the context of an issue so deeply embedded in societal perceptions of morality, and finds special relevance in India, and its body of elaborate constitutional jurisprudence today. In this paper, the author seeks to address some of the concerns regarding the use of comparative constitutional law in judicial decision-making, particularly in a democracy like India, in an endeavour to justify its use in Naz Foundation.