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Why we shouldn’t pin too much hope on the Supreme Court de-criminalising homosexuality this week

Unless there's a dramatic change to established jurisprudence, the Court is unlikely to interfere with its earlier judgement on IPC Section 377.

More than six years after the Delhi High Court read down Section 377 of the Indian Penal Code to be inapplicable to mutually consenting adults, and two years after the Supreme Court reversed that landmark verdict, there’s hope in the gay community that the colonial prohibition on homosexual acts may be lifted. On Tuesday, the Supreme Court will hear a curative petition against the dismissal of the review petition against its judgement in Suresh Kumar Koushal v Naz Foundation. This is the last chance in court for the opponents of IPC Section 377 to get the Koushal judgement overturned.

The curative petition itself is a curious judicial creation – there is no mention of it in the Constitution or in any statute. It is a remedy in law that was created by the Supreme Court in its verdict in Ashok Hurra v Rupa Ashok Hurra, where the finality of a judgement of the Supreme Court granting divorce by mutual consent to a husband and wife was challenged by the wife through a Writ Petition under Article 32. While holding that the final judgement of the Supreme Court cannot be challenged in such a manner, the apex court did however carve out a new remedy – the curative petition.

The curative petition can only be filed once the review petition against a judgement is dismissed, and even then on two narrow grounds – failure of natural justice (that is, the petitioner wasn’t heard by the court), and undisclosed bias of the judge hearing the case which adversely affected the petitioner. Also, a curative petition is supposed to be filed only with the certificate of a Senior Advocate attesting that the narrow grounds on which a curative petition may be filed stand fulfilled.

In practice, the Supreme Court dismisses almost all curative petitions purely on examining the papers alone. Usually such cases are placed before a bench of the three senior-most judges and the judges who had delivered the main judgment. In fact, the court must expressly grant permission for a curative petition to be heard in open court, and the Koushal case is a rare instance when it has.

The grounds for the curative petition being so narrow, it is hard to see the Supreme Court interfering with its own judgement in the Koushal case. For one, it is technically not sitting in appeal against the Koushal case or even undertaking a review where obvious errors in the judgement might be corrected. Rather, the court will have to be satisfied that one of the two narrow grounds on which curative petitions may be allowed are present in this case.

Given how elaborately the Koushal case was heard and argued in the Supreme Court, and given the number of parties and interveners who participated in the hearings then, it is difficult to contend that the Supreme Court failed to hear anyone. Nor is there any allegation that the judges in the case were personally biased in favour of those who wanted Section 377 upheld.

Finding success

To date, only three curative petitions have been successful in getting the final judgement of the Supreme Court overturned.

The first of these was State of MP v Sugar Singh, where a judgement of the Supreme Court had overturned the acquittal awarded by the High Court in favour of a co-accused in a crime, without sending notice to them at all. This obvious error was not noticed in the review petition either and it was only at the stage of the curative petition that the egregious mistake was noticed and the judgement of the Supreme Court set aside.

In the two other cases however, the Supreme Court seems to have widened the scope of the curative petition somewhat.

In a curative petition filed by the National Commission for Women in National Commission for Women v Bhaskar Lal Sharma, the Supreme Court recalled an order where it had held that kicking of a woman by the mother-in-law would not amount to cruelty. Although the case was at the initial stage, the Supreme Court in its earlier order had quashed it, finding that an offence under Section 498-A of the IPC was not made out. While the court does not identify the reason for recall under either of the two narrow grounds, it recalled the order anyway and overturned the earlier decision to allow the trial to proceed. In effect, the Supreme Court sat in appeal over its own order, although it justified it on the basis of its extraordinary powers under Article 142 of the Constitution.

The case of Navneet Kaur v NCT of Delhi is more interesting. Here, the death sentence of Devendra Pal Bhullar was sought to be commuted on the ground of delay in carrying out the execution. The Supreme Court initially refused to do so, but in a subsequent case, Shatrughan Chauhan v Union of India, ruled that the judgement in Bhullar’s case was wrong in law. Bhullar’s wife, Navneet Kaur, then filed a curative seeking to overturn the earlier Supreme Court judgement in Bhullar’s case and get his death sentence commuted. The Supreme Court agreed with her, commuting Bhullar’s death sentence to life imprisonment. Coincidentally, the bench which delivered the Bhullar judgement which was overturned featured Justices Singhvi and Mukhopadhyaya, who also delivered the judgement in the Koushal case.

Second thoughts?

Although it doesn’t say so, the Supreme Court seems to create new grounds for allowing curative petitions in National Commission for Women and Navneet Kaur cases. Of particular relevance to the Koushal case would be the Navneet Kaur case, where subsequent events or judgements have rendered the earlier verdict bad in law. In the context of IPC Section 377, it is possible that the Supreme Court’s subsequent judgement in NALSA v Union of India recognising the rights of transgendered persons could be used as a basis to overturn Koushal.

However, two factors make this line of reasoning difficult. First, in Navneet Kaur’s case itself, the Supreme Court records that the then Attorney General of India, Goolam E Vahanvati, had conceded that Bhullar’s death sentence should be commuted to life. It also says that it is not laying down a principle of law, so much as passing a judgement by consent of parties. Second, the NALSA judgement distinguishes (and distances) itself from the Koushal verdict without commenting on the correctness of the Koushal judgement.

Still, the National Commission for Women case gives us one instance of where the court, if it wants to recall an earlier order that seems wrong in law, will not allow technicalities to get in the way. The very fact that the Supreme Court wants to give an open court hearing to see if Koushal should be overturned suggests that the judges might have some second thoughts about the correctness of Koushal. Whether this actually leads to the overturning of Koushal is still to be seen – though, barring a dramatic change to established jurisprudence by the Supreme Court, it seems highly unlikely.

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