NUJS Contributes to the Section 377 Judgement

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At a time when the nation celebrates the power of the judiciary in bringing about a much needed positive change in the form of reading down of the 'arbitrary' and 'irrational' section 377 of the Indian Penal Code, NUJS is honoured to have the academic work of its journals and the efforts of its graduates being recognised in this recent landmark judgement.

Five articles from the NUJS Law Review, the quarterly flagship journal of the University run by its students, found a mention in the historic judgement. Three of the five articles that were cited were taken from a special issue of the Law Review (Vol. 2, Issue 3) in 2009 on the Naz Foundation judgement.

1. In Para 28, page 33 of Justice Chandrachud’s judgement the article titled ‘Section 377 and the Order of Nature: Nurturing Indeterminacy in the Law’ authored by Shamnad Basheer, Sroyon Mukherjee and Karthy Nair was used to substantiate the point wherein the watertight compartmentalisation of the term ‘natural’ was questioned.

Shamnad pride

2. In Para 62, page 76 of Justice Chandrachud's judgement the article authored by Saptarshi Mandal titled ‘Right to Privacy’ in Naz Foundation: A Counter-Heteronormative Critique’ is seen to be applied in substantiating the need for protection of sexual minorities in private as well as public spaces.

Mandal pride

3. In Para 68, page 68 of Justice Chandrachud's judgement the article titled ‘The Heteronormative State and the Right to Health in India’ authored by Dipika Jain and Kimberly Rhoten which was used in the judgement to highlight the need for the right to life to be accompanied by the right to health and other concominant rights without which the right to life would lack any meaning.

Health pride

4. In Para 15.2, Page 23 of Justice Indu Malhotra’s judgment the article titled 'Reading Swaraj into Article 15: A New Deal for Minorities' authored by Tarunabh Khaitan was referred to with respect to the quote of John Gardener which was seen to be helpful in understanding the underlying commanlity between the grounds mentioned in article 15 that is based on the ideas of 'immutable status' and 'fundamental choice'.

Khaithan pride

5. In the Part J of the judgement, Page 125 of the jdugement the article titled 'Same-Sex Love and Indian Penal Code §377: An Important Human Rights Issue for India' authored by Robert Wintemute which was cited to reiterate the fact that there was no global south exception to the Toonan principles in the clarifiication by the committee in the case X vs. Columbia

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 (Dr.) M.P. Singh, the then Vice Chancellor of NUJS.

The editorial board was led by students comprising of Mr. Shekhar Sumit, Mr. Arindam Madhuryya, Mr. Mriganka Shekhar Datta, Mr. Deepak Raju, Mr. Abhishek Tripathy and Mr. Abhyuday Agarwal and Ms. Ushasi Das. All of them graduated from NUJS between 2009 to 2011. [Legally India]

Similarly, the Journal of Indian Law and Society which is a peer-reviewed journal of the National University of Juridical Sciences, Kolkata also found a mention in the judgement.The article titled 'Disgust or Equality? Sexual Orientation and Indian Law' by Martha C. Nussbaum was cited in the part where the court drew a distinction between public and constitutional morality.

JILS pride

Martha C. Nussbaum,“Disgust or Equality? Sexual Orientation and Indian Law”, Journal of Indian Law and Society, Vol. 6 (2010).

The judgement also recognised the academic work of Mr. Shubhankar Dam from the Class of 2005 titled 'Suresh Kumar Koushal and Another v. NAZ Foundation and Others (Civil Appeal No. 10972 of 2013)' which was used inorder to provide reasoning for the criticism of the Suresh Kumar Koushal case with respect to Article 14 on the ground that it fell short of the minimum standards of judicial reasoning that may be expected from the Supreme Court.

Dam pride

Shubhankar Dam, “Suresh Kumar Koushal and Another v. NAZ Foundation and Others (Civil Appeal No. 10972 of2013)” Public Law, International Survey Section (2014).

In addition to this, Maithili Pai from the Class of 2017 and Ashutosh P Shukla from the Class of 2016 who are law clerks-cum-research assistants to Justice D.Y Chandrachud and Justice Indu Malhotra, who authored concurring opinions, assisted the hon'ble judges in their capacity.

At NUJS we value this huge step forward in the recognition of equality and respecting individual autonomy and we take immense pride in congratulating everyone who contributed to this victory.

We also feel that this beautifully drafted judgement is a must-read for every citizen of this country regardless of their involvement in law or legal education. We are attaching the full copy of the judgement below for the convenience of all our readers.

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