[Reader-list] Is the Naz decision the Rose v. Wade of India

[Lawrence Liang]

Posted on Kafila.org



Is the Naz decision the Rose v. Wade of India

There are surprisingly few constitutional cases in India which have  
had the same symbolic power that cases like Roe v. Wade (affirming the  
right of abortion) or Brown v. Board of Education (dissolving racial  
segregation in schools) have had in the political history of the  
United States.  For sure, there are a  number of important  
constitutional cases which have contributed significantly to the  
democratic history of India. Kesavananda Bharati’s espousal of the  
basic structure doctrine, Maneka Gandhi’s introduction of due process  
in Art.21, but these cases  seem to have an appeal largely within the  
legal fraternity. They are also cases where the relief sought by the  
petitioners have had little to do with the final outcome of the case,  
and it is highly doubtful whether his Holiness Kesavananda Bharati had  
any investment in the long term impact of the basic structure doctrine  
(not to mention that Kesavananda Bharati just doesn’t roll of the  
tongue as easily- in terms of recall value).  Is it possible then that  
Naz Foundation v. Government of Delhi is the first equivalent of a  
case whose name conjures up the history of particular struggle,  
celebrates the victory of a particular moment and inaugurates new  
hopes for the future.



Before we argue about why Naz has the potential to become a Roe v.  
Wade, it would perhaps be useful to establish what Roe v. Wade and  
Brown v. Board of education did for the history of struggles for  
rights in the US.  R v. Wade stands as the dividing line between the  
Liberals and the Conservatives in the US and in the third presidential  
debate between Obama and McCain, a significant portion of time was  
spent discussing judicial nominations, particularly to revisit Rv.  
Wade. Every Republican president since 1980 has asked for an  
overturning of Roe v. Wade.



R v. Wade emerged at a time when many feminists and women’s rights  
activists were encouraging State legislatures to liberalise their  
abortion laws. Given the rather haphazard success in the arena of  
legal reform, another strategy was to shift the battle to the courts  
and success in cases like R v. Wade made it irrelevant whether or not  
there was a success in policy reform. There have been a fair number of  
critics of this strategy too, with people arguing that political  
reform is generally more desirable and longer lasting than judicial  
reform. Ruth Ginsberg for instance has argued that Roe v. Wade  
actually halted a political process that has been moving in a reform  
direction.



So the first characteristic of cases like Wade is the use of the  
judiciary and innovative interpretations of the Constitution to settle  
a controversial area and establish rights for unpopular minorities or  
to establish a ruling against public morality as defined by the  
majority. But if this were the only criteria then there would be many  
more cases with the same appeal and power as Wade and Brown.



Both Wade and Brown represent moments in the history of struggle that  
finally culminated in a judicial victory. These victories have been  
highly significant because they generally exist in the realm of what  
we could call the radical politics of impossibility. What would have  
been impossible to imagine is suddenly made possible through an  
innovation that  does not merely change the conditions of the group  
whose rights and demands are in question, but  changes the horizon of  
possibility for the law and for constitutional interpretation itself.



Thus Roe v. Wade did as much for the expansion of the idea of privacy  
as it did in establishing the right of women to terminate their  
pregnancy. These cases are also marked by the fact that they often  
open a Pandora’s box and are in that sense not the culmination of  
struggle, but the beginning of one. But even these two reasons would  
not be enough to establish what is special and enduring about Brown  
and Wade. These are after all matters of public reason, and public  
reason rarely the accounts for why things have a special place in our  
hearts. It therefore might be appropriate then to turn to reasons of  
the heart to see why something becomes a Roe v. Wade.



When Obama was a senator, he voted against the confirmation of John  
Roberts, the current chief justice of the United States, and a well  
known conservative.   In his speech in the Senate, Obama said Justice  
isn’t about some abstract legal theory or a footnote in a casebook. It  
is about how our laws affect the daily reality of people’s lives –  
whether they can make a living and care for their families; whether  
they feel safe in their homes and welcome in their own nation. Obama  
added that while  he would agree with 95% of the decisions arrived at  
by Roberts, ‘ in those 5% of hard cases, the constitutional text will  
not be directly on point. The language of the statute will not be  
perfectly clear. Legal process alone will not lead you to a rule of  
decision. In those circumstances, your decision about whether  
affirmative action is an appropriate response to the history of  
discrimination or whether the general right of privacy encompasses a  
more specific right for women to control their reproductive decisions,  
the critical ingredient is supplied by what is in the judge’s heart.



The real success of Wade, Brown and Naz foundation can then be  
measured not only by their contribution to democratic ethos or the  
Jurisprudence that they inaugurate but by the tears that they provoke.  
The spontaneous outburst of emotion on the pronouncement of the Delhi  
High Court, the tears of joy that people had while listening to the  
judgment in Court hall No. 1 of the Delhi High court, or from people  
following it on the news, the telephone calls with people wishing each  
other happy Independence Day after the judgement – these are the  
things that legendary cases like Wade and Brown are made of. And these  
are all the ingredients that seemed to be present in the Naz  
foundation decision. When was the last time you remember crying about  
a constitutional decision?



Naz foundation decision has also enabled the rekindling of our romance  
with a text whose recent career has left one a little brokenhearted –  
the constitution. Justice Pathak in Kesavananda Bharati  says that  
“the constitution is not an arena of quibbling by lawyers with long  
persons. It is a Heritage or possession and it should be the object of  
your love”.

The Naz foundation judgement once again makes the constitution worthy  
of our love and affection. It is of course too early to say whether  
this romance with Naz will stand the test of time,  and like all  
relationships there will be disenchantment, disgruntlement and perhaps  
even cynicism that will creep in, but for now let us enjoy the  
slightly trippy lightheadedness that only a new love is capable of  
providing and toast the much delayed but very welcome arrival of the  
Roe v. Wade of India.





Lawrence Liang