The Indian Supreme Court Ruling in Koushal v. Naz: Judicial Deference or Judicial Abdication?

Sujitha Subramanian

Research output: Contribution to journalArticle (Academic Journal)


In the December 2013 Koushal v. Naz ruling, the Supreme Court of India reversed a lower court judgment and reaffirmed the constitutional validity of Section 377 of the Indian Penal Code, which, among other things, criminalizes homosexuality in India. The Supreme Court maintained that Section 377 applies to specific sexual acts, irrespective of gender or sexual orientation, and does not infringe the constitutional provisions of Article 21 (protection of life and liberty), Article 14 (equality), and Article 15 (prohibition against discrimination). Crucially, the Supreme Court of India exercised “judicial self-restraint” on the basis that the pre-Independence colonial legislation represented the “will of the
people.” This approach of conservative judicial positivism marks a sharp departure from the Supreme Court of India’s “hyper-activist” character.
This Article examines the contextual background of the Supreme Court ruling and argues that Koushal v. Naz serves as an illustration of “judicial abdication” rather than “judicial deference.” Whilst commentators have so far focused on the judiciary’s failure to apply its constitutional mandate to substantively protect fundamental rights, this Article focuses on judicial decision-making. The Article argues that the Supreme Court’s failure in Koushal v. Naz to articulate its legal reasoning is acute and foundational and constitutes a considerable vacuum in
judicial logic. Despite its ninety-eight-page-long verbose ruling, the magnitude of the Supreme Court’s “incoherent-reasoning” leaves the court vulnerable to accusations of being influenced by non-legal factors. Consequently, the Article argues that the ruling in Koushal v. Naz exemplifies the need for legal discourse to continue initial but fragmented attempts to systematically study judicial decision making in India in a manner that incorporates methodologies that go beyond traditional models of judicial reasoning.
Original languageEnglish
Pages (from-to)711
Number of pages762
JournalThe George Washington International Law Review
Issue number4
Publication statusPublished - 2015


Dive into the research topics of 'The Indian Supreme Court Ruling in Koushal v. Naz: Judicial Deference or Judicial Abdication?'. Together they form a unique fingerprint.

Cite this