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section 377

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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What to look for when buying your first car in India

Hint: It doesn’t have to be a small car.

When it comes to buying their first car, more Indians are making unconventional choices. Indian car buyers in 2016 are looking for an automobile that is a symbol of their aspirations and sets them apart from the herd. Here are a few things you should consider when buying your first car:

Look beyond small cars

According to the JD Power India Escaped Study (2015), the percentage of new-vehicle shoppers who considered a small car reduced by 20% over three years—from 65% to 45%. Buyers are now looking at bigger, affordable cars and luckily for them, there are more choices available. Known as compact sedans, these cars offer the features of a sedan, are larger than hatchbacks and contain a boot. These sedans offer the comfort and features that once only belonged to expensive luxury cars but at a price that’s within the reach of a first-time car buyer.

Design and styling is important but don’t forget utility.

It’s a good idea to have a car that has been designed over the past three years and doesn’t look outdated. Features like alloy wheels and dual beam headlamps add to the style quotient of your vehicle so consider those. Additionally, look for a car with a sturdy build quality since Indian urban conditions may not always be kind to your car and may furnish it with scrapes and dents along the way.

Image Credit: Volkswagen
Image Credit: Volkswagen

Does it test-drive well?

In 2014, 35% of new-vehicle buyers researched vehicles when they were buying but by 2015, this number had risen to nearly 41% according to the JD Power study. While the internet is the primary source of research in India, the best source of information about a car is always a test drive. Listen to the sales person and read all online reviews, but test every feature to your satisfaction.

Where do you plan to drive?

Look for a car that’s spacious and comfortable while being easy to drive or park on our crowded city roads. Compact sedans are perfectly suited for Indian driving conditions. Some of them come with parking assistance and rear view cameras, rain sensors and front fog lights with static cornering that are excellent driving aids. If you plan to use the car for long drives, compact sedans that provide cruise control, a tilt and telescopic adjustable steering wheel and a front centre armrest would be perfect. On road trips with family members who usually pack more than necessary, extra elbow room inside and good boot-space is a blessing.

Is the model about to be discontinued?

Never buy a model that is going to be discontinued because it could result in difficulty finding spare parts. Buying an old model will also affect your resale value later. In 2015, according to the same report, 10% of shoppers considered newly launched car models as against 7% in 2013—a strong indication that newer models are being preferred to old ones.

Diesel or petrol?

Diesel and petrol cars have different advantages, and it’s best to take a decision based on the distance you plan to drive on a regular basis. While petrol cars are usually priced lower and are more cost effective when it comes to service and maintenance, diesel cars typically have better mileage due to higher efficiency and provide a smoother drive due to higher torque. Additionally, diesel is the cheaper fuel. So it makes more economic sense to buy a diesel car if you are driving long distances every day.

Most importantly, safety always comes first.

Look for a car that is built sturdy and pays extra attention to safety features like Anti-lock Braking Systems (ABS), side impact bars and dual front airbags. Safety is also a function of the design and features such as a galvanized steel body add to the strength of the build. It’s important to remember not to make trade-offs on safety for less important features when choosing variants.

Buying your first car is an important milestone in life. And the new Volkswagen Ameo has been designed with several first-in-segment features to cater to all the needs of a first-time car buyer in India. Its bold design and elegant styling along with state-of-the-art features like cruise control, reverse parking camera and sensors, and intelligent rain sensors set it apart from other cars in its class. Its safety features are also a notch above, with dual front airbags that are standard in every variant and side impact bars. A sturdy galvanized steel body and laser welded roof cocoon its passengers from harm, and its modern ABS, that is also standard in all variants, prevents the wheels from locking when you brake hard. A six-year perforation warranty and a three-year paint warranty ensure that the car body is protected from scratches and dents. The Ameo comes in both petrol and diesel variants. Check out all the features of the Ameo here. Also hear the experience of two first time car buyers in the video below.


This article was produced by the Scroll marketing team on behalf of Volkswagen and not by the Scroll editorial team.

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