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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“My body instantly craves chai and samosa”

German expats talk about adapting to India, and the surprising similarities between the two cultures.

The cultural similarities between Germany and India are well known, especially with regards to the language. Linguists believe that Sanskrit and German share the same Indo-Germanic heritage of languages. A quick comparison indeed holds up theory - ratha in Sanskrit (chariot) is rad in German, aksha (axle) in Sanskrit is achse in German and so on. Germans have long held a fascination for Indology and Sanskrit. While Max Müller is still admired for his translation of ancient Indian scriptures, other German intellectuals such as Goethe, Herder and Schlegel were deeply influenced by Kalidasa. His poetry is said to have informed Goethe’s plays, and inspired Schlegel to eventually introduce formal Indology in Germany. Beyond the arts and academia, Indian influences even found their way into German fast food! Indians would recognise the famous German curry powder as a modification of the Indian masala mix. It’s most popular application is the currywurst - fried sausage covered in curried ketchup.

It is no wonder then that German travellers in India find a quite a lot in common between the two cultures, even today. Some, especially those who’ve settled here, even confess to Indian culture growing on them with time. Isabelle, like most travellers, first came to India to explore the country’s rich heritage. She returned the following year as an exchange student, and a couple of years later found herself working for an Indian consultancy firm. When asked what prompted her to stay on, Isabelle said, “I love the market dynamics here, working here is so much fun. Anywhere else would seem boring compared to India.” Having cofounded a company, she eventually realised her entrepreneurial dream here and now resides in Goa with her husband.

Isabelle says there are several aspects of life in India that remind her of home. “How we interact with our everyday life is similar in both Germany and India. Separate house slippers to wear at home, the celebration of food and festivals, the importance of friendship…” She feels Germany and India share the same spirit especially in terms of festivities. “We love food and we love celebrating food. There is an entire countdown to Christmas. Every day there is some dinner or get-together,” much like how Indians excitedly countdown to Navratri or Diwali. Franziska, who was born in India to German parents, adds that both the countries exhibit the same kind of passion for their favourite sport. “In India, they support cricket like anything while in Germany it would be football.”

Having lived in India for almost a decade, Isabelle has also noticed some broad similarities in the way children are brought up in the two countries. “We have a saying in South Germany ‘Schaffe Schaffe Hausle baue’ that loosely translates to ‘work, work, work and build a house’. I found that parents here have a similar outlook…to teach their children to work hard. They feel that they’ve fulfilled their duty only once the children have moved out or gotten married. Also, my mother never let me leave the house without a big breakfast. It’s the same here.” The importance given to the care of the family is one similarity that came up again and again in conversations with all German expats.

While most people wouldn’t draw parallels between German and Indian discipline (or lack thereof), Germans married to Indians have found a way to bridge the gap. Take for example, Ilka, who thinks that the famed differences of discipline between the two cultures actually works to her marital advantage. She sees the difference as Germans being highly planning-oriented; while Indians are more flexible in their approach. Ilka and her husband balance each other out in several ways. She says, like most Germans, she too tends to get stressed when her plans don’t work out, but her husband calms her down.

Consequently, Ilka feels India is “so full of life. The social life here is more happening; people smile at you, bond over food and are much more relaxed.” Isabelle, too, can attest to Indians’ friendliness. When asked about an Indian characteristic that makes her feel most at home, she quickly answers “humour.” “Whether it’s a taxi driver or someone I’m meeting professionally, I’ve learnt that it’s easy to lighten the mood here by just cracking a few jokes. Indians love to laugh,” she adds.

Indeed, these Germans-who-never-left as just diehard Indophiles are more Indian than you’d guess at first, having even developed some classic Indian skills with time. Ilka assures us that her husband can’t bargain as well as she does, and that she can even drape a saree on her own.

Isabelle, meanwhile, feels some amount of Indianness has seeped into her because “whenever its raining, my body instantly craves chai and samosa”.

Like the long-settled German expats in India, the German airline, Lufthansa, too has incorporated some quintessential aspects of Indian culture in its service. Recognising the centuries-old cultural affinity between the two countries, Lufthansa now provides a rich experience of Indian hospitality to all flyers on board its flights to and from India. You can expect a greeting of Namaste by an all-Indian crew, Indian food, and popular Indian in-flight entertainment options. And as the video shows, India’s culture and hospitality have been internalized by Lufthansa to the extent that they are More Indian Than You Think. To experience Lufthansa’s hospitality on your next trip abroad, click here.

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This article was produced by the Scroll marketing team on behalf of Lufthansa as part of their More Indian Than You Think initiative and not by the Scroll editorial team.