D. McDonald-Norman, ‘Koushal v. Naz Foundation and the Lessons of International Refugee Law’, in Sarasu E. Thomas (ed), Gender, Human Rights and Law, 2016, 161-183

Abstract

In its decision in Suresh Kumar Koushal and anor v NAZ Foundation and ors (Koushal), the Supreme Court of India declared that section 377 of the Indian Penal Code, which criminalises sexual acts ‘against the order of nature,’ does not contravene the Constitution of India. By analysing Koushal in light of contemporary debates in refugee law, this article aims to identify potential alternate directions for Indian constitutional law with regard to the rights of lesbian, gay, bisexual, transgender and queer (“LGBTQ”) people. Scholars and practitioners in international refugee law have developed innovative means by which decision-makers, including judges, may give regard to forms of harm not visible through regard to state records and actions alone, and in doing so to rethink settled notions of what constitutionally-prohibited forms of ‘harm’ may be. These innovations may be drawn upon in future legal advocacy on behalf of LGBTQ people in India.