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

[Rahul Asthana]

Dear Lawrence,
Brilliant Article.Thanks for sharing!

Rahul


--- On Mon, 7/6/09, Lawrence Liang <lawrence at altlawforum.org> wrote:

> From: Lawrence Liang <lawrence at altlawforum.org>
> Subject: [Reader-list] Is the Naz decision the Rose v. Wade of India
> To: reader-list at sarai.net
> Cc: commons-law at sarai.net
> Date: Monday, July 6, 2009, 12:16 PM
> 
> 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
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