The recent decision of the Supreme Court of India to uphold the criminalization of homosexuality in the country has been the target of criticism by the lawyer and activist Arvind Narrain, founder of the organization Alternative Law Forum. The case demonstrates the challenges for the construction of a transformative constitutionalism in emerging countries – the central topic of a book released earlier this month by Pulp (Pretoria University Law Press).
Arvind Narrain on Transformative constitutionalism from Zeytoon Films on Vimeo.
In this video statement broadcast at the book launch in São Paulo, Narrain talks about the case filed by the Naz Foundation requesting the suspension of section 377 of the Indian Penal Code, which bans homosexual relationships.
Since it was first filed, in 2001, the case has received unceasing support from Indian civil society. The judiciary finally gave in to the pressure and, in 2009, the Delhi High Court issued a ruling in favor of the organization. At the time, the judges based their decision on the concept of constitutional morality and guaranteed the right to intimacy for the LGBT community.
In February this year, however, the Indian Supreme Court overturned the Delhi court’s ruling and upheld the prohibition on homosexual relationships. Narrain described the decision as “a bad day for law and love”.
Read here the article by Arvind Narrain on the Naz Foundation case.
According to the lawyer, the decision of the Indian Supreme Court to uphold section 377 demonstrates that transformation via constitutionalism ultimately depends on the people interpreting the law. He also stated that the decision clashes with the progress made in this area by countries such as Brazil and South Africa.
Read here the article by Samuel Friedman and Thiago Amparo on the decision of the Supreme Court of Brazil in the case on homosexual union.
Read here the article by Jaco Barnard-Naudé on the decision of the Supreme Court of South Africa on the same subject.