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ABSTRACT
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.
I. INTRODUCTION
In December 2013, the Supreme Court of India in Suresh Kumar Koushal v. Naz Foundation (Koushal v. Naz) upheld the constitutional validity of Section 377 of the Indian Penal Code (IPC), which punishes anyone who voluntarily has "carnal intercourse against the order of nature with any man, woman or animal" with imprisonment for up to life.1 Koushal v. Naz overruled Naz Foundation v. Government of NCT of Delhi (Naz v. Delhi), where the Delhi High Court held Section 377 to be unconstitutional to the extent that it criminalizes consensual sexual acts between adults in private.2 By overruling...