Vol. XL No. 1

Sovereignty and Social Change in the Wake of India’s Recent Sodomy Cases

Abstract: American constitutional law scholars have long questioned whether courts can truly drive social reform, and this uncertainty remains even in the wake of recent landmark decisions affecting the LGBT community. In contrast, court watchers in India—spurred by developments in a special type of legal action developed in the late 1970s known as public interest litigation (PIL)—have only recently begun to question the judiciary’s ability to promote progressive social change. Indian scholarship on this point has veered between despair that PIL cases no longer reliably produce good outcomes for India’s most disadvantaged and optimism that public interest litigation can be returned to its glory days of heroic judicial intervention. Perhaps no pair of cases so nicely captures this dichotomy as the 2009 decision in Naz Foundation v. Government of NCT of Delhi, which decriminalized sodomy, and the 2012 decision in Koushal v. Naz Foundation, which overruled Naz. This paper uses public interest litigation and India’s recent sodomy cases to demonstrate that the relationship between state actors and citizens is often far less stable than the democratic ideal of “citizen sovereignty” would suggest. I argue, first, that supporters of public interest litigation should neither give up on PIL suits as a means of effecting social reform nor imagine that PIL suits can ever reliably produce desirable outcomes. As a type of legal action, public interest litigation simply cannot be reverse engineered in this way. But second, I show why this unreliability is not as worrisome as it might first appear to be, by analyzing the well-documented and widely critiqued shift in PIL cases at the end of the twentieth century. While earlier PIL cases reflect the Indian Constitution’s commitment to government-led social reform and the sharing of sovereignty between citizens and the state, contemporary PIL cases reflect the Constitution’s commitment to an agency theory of sovereignty whereby government merely acts on behalf of citizens. Neither vision of sovereignty is paramount over the long run, and shifts in public interest litigation reflect the productive and dynamic equilibrium between the two.

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