The most significant court ruling in memory was recently handed down. I hope you were paying attention. Its called Naz Foundation. It is made in India and, if affirmed, may well eclipse the likes of Roe v. Wade or Brown v. Board of Education in both symbolic and substantive influence on the global legal stage. In early July, the Delhi High Court decrimalized gay sex in private. This decision could affect more people, more profoundly and in more ways than any other court ruling in any other country in recent decades.

Some background first.

In Naz Foundation, the petitioners were challenging Section 377 of the Indian Penal Code. The Code was drafted mostly by one Lord Macaulay, a man woven from the finest Victorian cut. The Code was a labor of (heterosexual-only) love of sorts which he had begun drafting some two decades before it was eventually enacted in 1860. Macaulay, a poet, historian, politician and a lifelong bachelor, was heavily influenced by the ideas of the great utilitarian philosopher Jeremy Bentham.

Until Bentham, the very idea of gathering criminal offenses in one central document was controversial. In Britain, criminal laws were then (and still are) a salad of judge-made law and offenses drawn from various statutes. Bentham just wanted to bring some sense to it all. While Bentham’s views on codification never caught traction in his mother country, his intellectual fingerprints are all over the Napoleonic Code and, through Macaulay, the Indian Penal Code as well.

The target of the Naz Foundation challenge was Section 377. It goes like this: “Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine.” It’s the type of definition that you could sail an oil tanker through, but Lord Macaulay thought its meaning was plainly obvious, if utterly disgusting. While other offenses were lavished with explanatory notes, Macaulay was mum on this one. He explained that the drafters were “unwilling to insert, either in the text or in the notes, anything which could give rise to public discussion on this revolting subject.”

Had Bentham been alive when Section 377 was drafted – instead of sitting dead in a glass box in University College London where he peers at passersby to this day – he surely would’ve roundhouse kicked Macaulay. That Lord Macaulay would’ve codified such an offense would have upset old Bentham to no end. “In persons of weak minds, anything which is unusual and at the same time physically disgustful is apt to excite the passion of hate.” Bentham was not only one of the eighteenth century’s lone feminists and animal rights proponents, but also a gay rights activist of sorts. He thought it unjust to punish, let alone criminalize, behavior that poses no harm to other people. He once quipped that it “is wonderful that nobody has ever yet fancied it to be sinful to scratch where it itches.”

Section 377’s ambiguity left deciphering its meaning to the imagination of police and judges. Not a good thing. And so, in the century and a half since its enactment, Section 377 has been interpreted to criminalize everything from anal sex between men, anal sex between a man and a woman, oral sex and mutual masturbation. Any sexual relations that was not procreative or failed to comport with the nebulous ‘community standards’ test was criminalized under the section.

The Delhi High Court’s reinterpretation of Section 377 stamps out this nonsense. It is fantastic news for gay, lesbian, bisexual and transgendered people, not to mention others who want to spice up their hanky panky without incurring the state’s wrath. In a country of 1.2 billion that’s a lot of decriminalized sexual touching. While the ruling won’t automatically transform the lived reality of most LGBT persons, it will hopefully begin curtailing the tragic history of police and judicial abuse. Equally important, the ruling already has fostered a much-needed discussion and debate on LGBT issues in India.

But that’s not all. The ruling’s potential to impact lives far beyond this issue and India’s borders lies in its reasoning rather than its ultimate holding. In fact, the holding itself was not particularly radical on some levels. The Court did not declare Section 377 unconstitutional but rather clarified that its ambit does not include sexual activities between adults in private. This may have been the result of the petitioner’s litigation strategy – they presciently didn’t request that the section be struck – and perhaps the judges’ calculation that striking the section altogether would have forced the government to table alternative legislation with all the populist pitfalls that would entail. This way, the government can wade clear of the issue, political dynamite that it unfortunately is.

Yet the Court’s reasoning nonetheless breathes much-needed life into India’s Constitution, which has failed to live up to its drafters’ promise (not to mention its world record length, clocking in at 117,000 words).

It achieves two important things insofar as future petitioners are concerned. First, it recognizes a robust right to privacy flowing from the Constitution’s guarantee of life and liberty. Second, it establishes a much enriched interpretation of equality. In so doing, it opens the door to other equality and due process claims not only by the LGBT community, but by other marginalized populations as well. Claims against discrimination based on sexual-orientation (including same-sex marriage), gender, caste, religion and ethnicity stand on much firmer ground as a result of Naz Foundation. Another important element of the ruling is that it further legitimizes the use of case law from foreign jurisdictions – here, the court cited cases from jurisdictions as varied as Canada, United States, Britain, Hong Kong, Fiji and Nepal.

All this and we haven’t even gotten to the four-fifths of humanity that happen to live outside India. The ruling is very well placed to have an impact beyond the country’s borders.

In the first instance, India is a rapidly emerging economic and political player on the world stage. With this expanding clout, others will increasingly take note of India’s legal developments. Second, courts in other developing countries can cite Indian case law without being vulnerable to charges of value imperialism. The decision reinforces the notion that the recognition of gay rights and those of other stigmatized groups are not the monopoly of so-called developed countries. Finally, the court’s analysis is of particular relevance to other former British colonies that are based wholly or partly on common law, including Pakistan, Bangladesh, Singapore, Sri Lanka, Nigeria, Kenya, Uganda and so forth. Indeed, many of these countries have criminal offenses that mimic word-for-word the Indian Penal Code’s Section 377 (recall that the Code was the first of its kind in the British empire and was thus widely emulated).

All of this hinges on the Supreme Court affirming the Delhi High Court’s decision later this year. Naz Foundation was challenged not by the government, but rather by a yogi and a politician. There is good reason to believe the judgment won’t be vacated altogether: the Supreme Court had ordered the Delhi High Court to consider the petition in the first place after the latter had dismissed it based on lack of standing. Moreover, the Indian government has yet to mount a concerted and united response to the ruling; the internal squabbling, which had resulted in one ministry lodging a brief supporting the petition and another rejecting it, has not abated post-ruling.

There is however a risk that the Supreme Court will keep the result but strip out the very parts of the ruling’s rationale which make it most attractive from a precedential point of view. For a case that has the potential to become a global landmark ruling, this would be a tragedy.

The Israeli Supreme Court is a fascinating creature operating in a unique environment. It rules on fundamental questions of human rights, national security and church-state separation with a regularity not seen in any other court in the world.

The court’s role as guarantor of minority and human rights in the Israeli context cannot be over-emphasized. The mix of Israel’s political system and longstanding security concerns poses immense risks to minority rights. Security incidents can cause huge swings in public opinion. The Gaza rockets of early 2009, the launch of the intifadah in 2000 and the string of Hamas bus bombings in 1996 did more to bring first Netanyahu, then Sharon, then Netanyahu again into power than anything the candidates said or did. When there is blood in the streets, the people want action and they want it now. Add to this Israel’s model of extreme proportional representation and a unicameral legislative body, and the court’s role becomes even more critical in ensuring that human rights are protected in the face of the public consternation.

Israel’s Supreme Court is unique in several respects. Over the past three decades it has interpreted very broadly two notions that block legal actions before many other high courts: justiciability, what subjects fall under the court’s jurisdiction, and standing, who can come before the court. Virtually anyone who has a beef with a government action, whether in Israel proper or in the occupied territories and regardless of whether they have been personally affected, can petition the court for relief.

As a result, here-and-now Bush-v.-Gore-scale interventions by the court are very common. Imagine if Amnesty International could have dragged Secretary of Defense Donald Rumsfeld before the U.S. Supreme Court to explain how American forces were complying with the Fourth Geneva Convention during the U.S. siege of Fallujah in November 2004. And that the Court could subpoena the testimony of commanders on the ground while the battle was raging. Or that the detention of inmates in Guantanamo could have been challenged at the 2002 opening of the facility, rather than as a weathered fait accompli in June 2006, when the Court finally ruled that detainees were entitled to certain minimal protections.

But that’s not all that’s special about the Israeli Supreme Court. It has also single-handedly created a constitution, the good old Israeli way: two parts improvisation and three parts chutzpah. MacGyver would have been proud. You see, Israel never got around to drafting a constitution. What Israel did have were a series of Basic Laws that at the state’s creation was envisaged as forming draft chapters of an eventual constitution. But the status of these Basic Laws was never spelled out nor was their precedence over regular statutes ever explicitly set out. In 1992, two Basic Laws, on human dignity and liberty, and on freedom of occupation, were passed. They weren’t considered terribly important at the time: they passed by votes of 32-21 and 23-0 in the 120-member parliament. But led by the brilliant former Chief Justice Aharon Barak, the Supreme Court conjured a constitutional revolution by interpreting these Basic Laws as conferring upon it the right to overturn legislation that violates the rights spelled out in the laws.

And overturn laws it did. Over the past two decades the Supreme Court’s activism has gotten many right wingers in a tizzy – one critic calling it the “occupied territory of the Israeli Left” – particularly in cases dealing with national security and religion. The Court has banned the use of torture, re-routed the separation fence in the West Bank, banned the use of human shields by the Israeli army, issued injunctions on the destructions of Palestinian homes in the Gaza Strip, granted civil rights to gays and lesbians and challenged the use of government lands in Israel proper to promote Jewish settlement. Listening to some right-wing accounts, you may conclude that the Court is the only thing standing between the Israeli army and complete ‘victory’ against terrorism.

Yet it’s not the liberal poster child that its right-wing detractors make it out to be. The Court has upset the human rights community by okaying targeted assassinations in the occupied territories, its refusal to rule on the legality of government-approved settlements in the West Bank and not going far enough on the separation-fence decision. It has also generally been criticized for being overly deferential to the defense establishment’s arguments in cases involving national security. Indeed, many on the left see the Court as a fig leaf that provides moral legitimacy for the Israeli government’s violations of human rights in the occupied territories.

The Netanyahu government is now attempting to stem the Court’s activism by altering its composition through the judicial-selection process. Molding the court can be done more quickly in the Israeli context compared to other countries such as the U.S. because there is a mandatory retirement age of 70 years. Traditionally, the selection of high-court judges was fairly immune from political interference. The committee comprises three current high-court judges, two members of the Israel Bar Association and three members of Knesset and the Justice Minister (who usually is also a member of Knesset, but doesn’t have to be).

Historically, the three judges were seen as proponents of so-called judicial activism and usually their views prevailed because at least one of the Knesset members was a proponent of judicial activism. This time around, however, Netanyahu lobbied on behalf of the position that has traditionally always gone to the largest opposition party. Instead of a fairly centrist Kadima member of Knesset (Tzipi Livni’s party), the position instead went to a stridently right-wing politician from the National Union, one of the smaller opposition parties that supports a Greater Israel policy. Now, the four politicians on the committee, along with one of the Israel Bar Association representatives, form the first-ever right-wing majority on the committee. This may be tempered by the requirement of a seven-member majority for appointing judges, but it is clear that the judges on the committee will no longer enjoy the influence over appointments they once had – and that Israel sorely needs.

In a country with a litany of real and perceived existential threats and few checks and balances on government power, this spells trouble. Let the court packing begin.

These people will now have to move. In a landmark 220-page ruling handed down in mid-June, the Constitutional Court of South Africa confirmed the order to evict the settlers. Opinions diverge as to the soundness of the court’s decision, but this much is clear: this kind of issue would have never even made it to court in another country.

The meat and potatoes of your typical constitution are issues such as the separation of power between the branches of government, the division of labor between levels of government and the limitation of government’s ability to intrude on individual rights. The South African constitution encompasses these and the Court has blazed a trail that would induce profuse salivation amongst liberals worldwide. For example, in spite of reigning public views more traditional than those in more established democracies, the Court has struck down the death penalty and legalized same-sex marriage.

Where the court is truly unique, as showcased in the Joe Slovo judgment with regard to the right to housing, is in enforcing positive government obligations in the social and economic sphere. The high courts and constitutions of the developed world generally leave such matters to the purview of the legislative and executive branches of government – they spell out an individual’s freedoms rather than a government’s obligations. Many developing countries’ constitutions do indeed spell out such social and economic rights but are typically ineffectively enforced due the lack of independence and legitimacy of the courts or the lack of will or ability on the part of the state to carry out a court’s pronouncement.

In another country a lower court would have simply issued an eviction order since the residents were occupying municipal land which the municipality had asked them to leave in 2006. However, unlike other constitutions, Section 26 of South Africa’s constitution provides that all have “the right to have access to adequate housing” and that the “state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of this right.” This moves the analysis into terrain traversed by few other courts around world.

As Judge Ngcobo noted in his judgment: “what apartheid bequeathed to the new democratic government was poverty, landlessness, inadequate housing with resultant overcrowding and the mushrooming of informal settlements… [t]he inclusion of justiciable socio-economic rights in the Constitution is a manifestation of the commitment to addressing these conditions.” The Court had first ruled on section 26 in 2000 when it ordered the government to provide minimal housing – without defining ‘minimal’ – for a group of informal settlers it had evicted and then moved them to a soccer field with no shelter from the elements.

The Joe Slovo case was far more complex and delicate than this and subsequent decisions. The community to be evicted was much bigger and more established than previous cases. The residents were being evicted from public rather than private lands. And the case was very high profile, with the residents having marched to City Hall and having blockaded traffic on the busy N2 highway in September 2007.

There was also a political twist. The national government had a stake in evicting the residents because the N2 site was a national pilot project in the drive to eliminate so-called informal settlements. While millions of housing units had been built since the end of apartheid, at least four million still lived in squalid settlements with no access to safe housing, sewage, clean water and electricity. The project was conceived by Lindiwe Sisulu, daughter of famed Walter Sisulu, who was imprisoned with Nelson Mandela on Robben Island for 26 years.

The residents argued that they should be allowed to stay on the land because the community was established for well over a decade. They felt that the municipality had tacitly consented to their taking of the land by providing them with basic services. As the Court would later acknowledge, the government had broken a string of promises that they would be re-settled back in Joe Slovo after more permanent structures were built. The new residential units would be too few in number and too high in cost for all but the wealthiest of the Joe Slovo residents. The government also failed to properly consult with the community as to an appropriate place to re-locate them.

In rejecting the residents’ pleas against eviction, the Court showed the type of deference to the other branches of government that usually precludes other high courts from considering such issues altogether. Yet the Court didn’t write the government a blank check. Most striking, it required the government to re-locate the residents to “adequate housing” and spelled out in considerable detailed what this entails. For example, it laid out how big the housing units must be, of what materials they must be constructed, that the community’s roads must be paved and so forth. It acknowledged the string of broken promises by the government and ordered the government to fulfill a promise previously made to the residents that 70% of the housing units eventually built on the site would be provided to former Joe Slovo residents. It also ordered the government to consult further with the residents regarding the re-location.

While the judges were unanimous in supporting the order, they lodged five separate opinions. The diversity of their respective analyses is matched only by that of their own personal stories. The Court is a poster child for diversity compared to virtually any other high court. Justice Yacoob of Indian descent and blind. Justice Moseneke studied law in prison on Robben Island and helped draft South Africa’s constitution. Justice O’Regan, born in England and one of three women on the eleven-member court. Justice Ngcobo practiced for many years in the KwaZulu area and clerked for a U.S. court of appeal.

Then there is Justice Albie Sachs, Jewish. He lost an arm and is blind in one eye due to a bombing in Mozambique in 1988 orchestrated by apartheid-era security service in its bloody campaign against anti-apartheid activists. Sachs was lucky compared to Joe Slovo’s wife, who was killed by a letter bomb in Mozambique several years before. Sachs had a hand in choosing the Court’s current location in Johannesburg on the site of a former prison where many political prisoners had been held. While this metamorphosis is of little solace to the residents of the Joe Slovo settlement, the continuing independence and intellectual vigor of Court is a matter to behold in a place where at one time or another were imprisoned Mahatma Gandhi and Nelson Mandela, not to mention Joe Slovo himself.