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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The incredible engineering that can save your life in a car crash

Indian roads are among the world’s most dangerous. We take a look at the essential car safety features for our road conditions.

Over 200,000 people die on India’s roads every year. While many of these accidents can be prevented by following road safety rules, car manufacturers are also devising innovative new technology to make vehicles safer than ever before. To understand how crucial this technology is to your safety, it’s important to understand the anatomy of a car accident.

Source: Global report on road safety, 2015 by WHO.
Source: Global report on road safety, 2015 by WHO.

A car crash typically has three stages. The first stage is where the car collides with an object. At the point of collision, the velocity with which the car is travelling gets absorbed within the car, which brings it to a halt. Car manufacturers have incorporated many advanced features in their cars to prevent their occupants from ever encountering this stage.

Sixth sense on wheels

To begin with, some state-of-the-art vehicles have fatigue detection systems that evaluate steering wheel movements along with other signals in the vehicle to indicate possible driver fatigue–one of the biggest causes of accidents. The Electronic Stability Program (ESP) is the other big innovation that can prevent collisions. ESP typically encompasses two safety systems–ABS (anti-lock braking system), and TCS (traction control system). Both work in tandem to help the driver control the car on tricky surfaces and in near-collision situations. ABS prevents wheels from locking during an emergency stop or on a slippery surface, and TCS prevents the wheels from spinning when accelerating by constantly monitoring the speed of the wheels.

Smarter bodies, safer passengers

In the event of an actual car crash, manufacturers have been redesigning the car body to offer optimal protection to passengers. A key element of newer car designs includes better crumple zones. These are regions which deform and absorb the impact of the crash before it reaches the occupants. Crumple zones are located in the front and rear of vehicles and some car manufacturers have also incorporated side impact bars that increase the stiffness of the doors and provide tougher resistance to crashes.

CRUMPLE ZONES: Invented in the 1950s, crumple zones are softer vehicle sections that surround a safety cell that houses passengers. In a crash, these zones deform and crumple to absorb the shock of the impact. In the visual, the safety cell is depicted in red, while the crumple zones of the car surround the safety cell.
CRUMPLE ZONES: Invented in the 1950s, crumple zones are softer vehicle sections that surround a safety cell that houses passengers. In a crash, these zones deform and crumple to absorb the shock of the impact. In the visual, the safety cell is depicted in red, while the crumple zones of the car surround the safety cell.

Post-collision technology

While engineers try to mitigate the effects of a crash in the first stage itself, there are also safe guards for the second stage, when after a collision the passengers are in danger of hitting the interiors of the car as it rapidly comes to a halt. The most effective of these post-crash safety engineering solutions is the seat belt that can reduce the risk of death by 50%.

In the third stage of an actual crash, the rapid deceleration and shock caused by the colliding vehicle can cause internal organ damage. Manufacturers have created airbags to reduce this risk. Airbags are installed in the front of the car and have crash sensors that activate and inflate it within 40 milliseconds. Many cars also have airbags integrated in the sides of the vehicles to protect from side impacts.

SEATBELTS: Wearing seatbelts first became mandatory in Victoria, Australia in 1970, and is now common across the world. Modern seatbelts absorb impact more efficiently, and are equipped with ‘pre-tensioners’ that pull the belt tight to prevent the passenger from jerking forward in a crash.
SEATBELTS: Wearing seatbelts first became mandatory in Victoria, Australia in 1970, and is now common across the world. Modern seatbelts absorb impact more efficiently, and are equipped with ‘pre-tensioners’ that pull the belt tight to prevent the passenger from jerking forward in a crash.

Safety first

In the West as well as in emerging markets like China, car accident related fatalities are much lower than in India. Following traffic rules and driving while fully alert remain the biggest insurance against mishaps, however it is also worthwhile to fully understand the new technologies that afford additional safety.

So the next time you’re out looking for a car, it may be a wise choice to pick an extra airbag over custom leather seats or a swanky music system. It may just save your life.

Equipped with state-of-the-art passenger protection systems like ESP and fatigue detection systems, along with high-quality airbags and seatbelts, all Volkswagen cars have the safety of passengers at the heart of their design. Watch Volkswagen customer stories and driver experiences that testify its superior German engineering, here.

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

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