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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Swara Bhasker: Sharp objects has to be on the radar of every woman who is tired of being “nice”

The actress weighs in on what she loves about the show.

This article has been written by award-winning actor Swara Bhasker.

All women growing up in India, South Asia, or anywhere in the world frankly; will remember in some form or the other that gentle girlhood admonishing, “Nice girls don’t do that.” I kept recalling that gently reasoned reproach as I watched Sharp Objects (you can catch it on Hotstar Premium). Adapted from the author of Gone Girl, Gillian Flynn’s debut novel Sharp Objects has been directed by Jean-Marc Vallée, who has my heart since he gave us Big Little Lies. It stars the multiple-Oscar nominee Amy Adams, who delivers a searing performance as Camille Preaker; and Patricia Clarkson, who is magnetic as the dominating and dark Adora Crellin. As an actress myself, it felt great to watch a show driven by its female performers.

The series is woven around a troubled, alcohol-dependent, self-harming, female journalist Camille (single and in her thirties incidentally) who returns to the small town of her birth and childhood, Wind Gap, Missouri, to report on two similarly gruesome murders of teenage girls. While the series is a murder mystery, it equally delves into the psychology, not just of the principal characters, but also of the town, and thus a culture as a whole.

There is a lot that impresses in Sharp Objects — the manner in which the storytelling gently unwraps a plot that is dark, disturbing and shocking, the stellar and crafty control that Jean-Marc Vallée exercises on his narrative, the cinematography that is fluid and still manages to suggest that something sinister lurks within Wind Gap, the editing which keeps this narrative languid yet sharp and consistently evokes a haunting sensation.

Sharp Objects is also liberating (apart from its positive performance on Bechdel parameters) as content — for female actors and for audiences in giving us female centric and female driven shows that do not bear the burden of providing either role-models or even uplifting messages. 

Instead, it presents a world where women are dangerous and dysfunctional but very real — a world where women are neither pure victims, nor pure aggressors. A world where they occupy the grey areas, complex and contradictory as agents in a power play, in which they control some reigns too.

But to me personally, and perhaps to many young women viewers across the world, what makes Sharp Objects particularly impactful, perhaps almost poignant, is the manner in which it unravels the whole idea, the culture, the entire psychology of that childhood admonishment “Nice girls don’t do that.” Sharp Objects explores the sinister and dark possibilities of what the corollary of that thinking could be.

“Nice girls don’t do that.”

“Who does?”

“Bad girls.”

“So I’m a bad girl.”

“You shouldn’t be a bad girl.”

“Why not?”

“Bad girls get in trouble.”

“What trouble? What happens to bad girls?”

“Bad things.”

“What bad things?”

“Very bad things.”

“How bad?”

“Terrible!!!”

“Like what?”

“Like….”

A point the show makes early on is that both the victims of the introductory brutal murders were not your typically nice girly-girls. Camille, the traumatised protagonist carrying a burden from her past was herself not a nice girl. Amma, her deceptive half-sister manipulates the nice girl act to defy her controlling mother. But perhaps the most incisive critique on the whole ‘Be a nice girl’ culture, in fact the whole ‘nice’ culture — nice folks, nice manners, nice homes, nice towns — comes in the form of Adora’s character and the manner in which beneath the whole veneer of nice, a whole town is complicit in damning secrets and not-so-nice acts. At one point early on in the show, Adora tells her firstborn Camille, with whom she has a strained relationship (to put it mildly), “I just want things to be nice with us but maybe I don’t know how..” Interestingly it is this very notion of ‘nice’ that becomes the most oppressive and deceptive experience of young Camille, and later Amma’s growing years.

This ‘Culture of Nice’ is in fact the pervasive ‘Culture of Silence’ that women all over the world, particularly in India, are all too familiar with. 

It takes different forms, but always towards the same goal — to silence the not-so-nice details of what the experiences; sometimes intimate experiences of women might be. This Culture of Silence is propagated from the child’s earliest experience of being parented by society in general. Amongst the values that girls receive in our early years — apart from those of being obedient, dutiful, respectful, homely — we also receive the twin headed Chimera in the form of shame and guilt.

“Have some shame!”

“Oh for shame!”

“Shameless!”

“Shameful!”

“Ashamed.”

“Do not bring shame upon…”

Different phrases in different languages, but always with the same implication. Shameful things happen to girls who are not nice and that brings ‘shame’ on the family or everyone associated with the girl. And nice folks do not talk about these things. Nice folks go on as if nothing has happened.

It is this culture of silence that women across the world today, are calling out in many different ways. Whether it is the #MeToo movement or a show like Sharp Objects; or on a lighter and happier note, even a film like Veere Di Wedding punctures this culture of silence, quite simply by refusing to be silenced and saying the not-nice things, or depicting the so called ‘unspeakable’ things that could happen to girls. By talking about the unspeakable, you rob it of the power to shame you; you disallow the ‘Culture of Nice’ to erase your experience. You stand up for yourself and you build your own identity.

And this to me is the most liberating aspect of being an actor, and even just a girl at a time when shows like Sharp Objects and Big Little Lies (another great show on Hotstar Premium), and films like Veere Di Wedding and Anaarkali Of Aarah are being made.

The next time I hear someone say, “Nice girls don’t do that!”, I know what I’m going to say — I don’t give a shit about nice. I’m just a girl! And that’s okay!

Swara is a an award winning actor of the Hindi film industry. Her last few films, including Veere Di Wedding, Anaarkali of Aaraah and Nil Battey Sannata have earned her both critical and commercial success. Swara is an occasional writer of articles and opinion pieces. The occasions are frequent :).

Watch the trailer of Sharp Objects here:

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This article was published by the Scroll marketing team with Swara Bhasker on behalf of Hotstar Premium and not by the Scroll editorial team.