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 is 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 Dwivedi 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.