Who can prefer an appeal before the Supreme Court

A landmark legal development has been the United States Supreme Court's branding of the contentious Federal Defence of Marriage Act (DOMA) as unconstitutional in Hollingsworthv. Perry. While doing so it also rejected an appeal from a Californian lower court's decision invalidating Proposition 8, a statute that sought to discriminate against homosexual people. In fact, the court refused to go into the merits of Proposition 8 stating that the appellants did not have the requisite locus standi to invoke the court's (Supreme Court's) jurisdiction as the appeal was not preferred by the State of California but by a group of private individuals who had sponsored the proposition.

The decision is particularly important in the Indian context as an appeal against the Delhi High Court's 2009 Naz Foundation judgment is pending before the Indian Supreme Court. In that decision the High Court deemed Section 377 of the Indian Penal Code to be unconstitutional for criminalizing sexual relations between consenting homosexual adults. The interesting point about the appeal is that the original respondents to the case, The National Capital of Delhi and The Union of India haven't preferred it, with the Attorney General unequivocally stating the Government's full acceptance of the High Court's verdict. Who then are the appellants? They are a motley of private individuals from different sections of the society, thus giving rise to obvious jurisdictional issues. In light of the US Supreme Court verdict the Indian Supreme Court may not even go into the merits of the case as the appellants, not being the state but private individuals, do not have the right to enforce the statute they seek to defend, thereby invalidating their locus standi. However, will the Supreme Court follow this route? In an erudite and brilliantly written piece Mr. Vikram Raghavan, a senior counsel with the World Bank, has sought to elucidate this interesting legal principle.