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

[Ravi Agarwal]

Dear Lawrence,

Wonderfully argued! Please also deliberate on Justice Kaul's recent High
Court judgment on artistic freedoms. It too has larger issues at stake, and
plays out in a very contested current debate.

Best
ravi


On Mon, Jul 6, 2009 at 12:16 PM, Lawrence Liang <lawrence at altlawforum.org>wrote:

>
> 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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