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Section 377 opinion: The spectre of forum shopping and why a presidential reference would be ‘dangerous’

Advocate Alok Prasanna Kumar argues against a presidential reference as a tool to cure Koushal v Naz, as suggested in a previous column by Sudhir Krishnaswamy and Shishir Bail.

Today the Supreme Court has rejected a review of its own Section 377 judgment. A curative petition too will likely end in failure, given the high rate of rejection for review and curative petitions.

But while there is much wrong with the Koushal v Naz judgment (“Koushal”), we should not give in to the temptation that Section 377 cannot be struck down by a Constitutional Court and must instead be left to Parliament to repeal. For one, there isn’t even a cogent argument to that effect you will find on reading the Supreme Court of India’s judgment in Koushal.

In their piece published on Legally India on 20 January 2013, Sudhir Krishnaswamy and Shishir Bail proposed an alternative, quite different method to overturn Koushal: a reference under Article 143 of the Constitution. This would, frankly, be dangerous.

Relying upon the Supreme Court’s opinion In re Natural Resources Allocation 2012 (“Natural Resources”), they contend that the “view of law” taken in Koushal could be “reviewed” (or overturned) by a Bench of five judges obligated to hear a Presidential Reference under Article 143.

This, they contend, is far superior “strategically” than a review since it allows the Court to rectify, within the bounds of judicial process, what is essentially a wrong judgment in law and develop the law in a coherent manner, and most importantly, re-state the vital principle that questions of Constitutional interpretation be decided by a Bench of five judges as was the intention of the framers.

As to their last point, I have no disagreement. Koushal definitely involved a substantial question of interpretation of the Constitution and should not have been decided by a Bench of two judges. Would the judgment have been different if it had been heard by a Bench of five judges? It is impossible to say so. Much would have depended on the then Chief Justice of India and the composition of the Bench as determined by him. Moreover, the parties could and should have raised this issue in the course of argument, but having failed to do so, it is no more possible for them to raise it in review.

However, the main thrust of their argument - that a reference under Article 143 should be preferred to engage with the Constitutional questions - not only misunderstands the purpose of Article 143 and the finding of the Supreme Court in the Natural Resources case and earlier precedents but is also dangerous in that it allows parties to forum shop within the Supreme Court, seeking and getting larger Benches until they get a favourable result.

Article 143 and in Re Natural Resources

Sudhir and Shishir, in my view, fundamentally misread Natural Resources. The Court did not rectify or remedy any finding of law made by the Bench in CPIL v Union of India of 2013 (the “2G judgment”). It is obvious, from a plain reading, that the 2G judgment never intended to lay down as a matter of law, that auctions were the only constitutional method of disposition of natural resources. It was very clearly obiter dicta and said as a matter of general principle, and if there was genuine confusion over the same, this has been cleared up by the Supreme Court in In Re Natural Resources. The Court affirms and upholds the finding made on the facts in the 2G case and also the principle of law that where an allocation of resources is made by changing the requirements to suit certain parties, it will be unconstitutional for having violated Article 14.

The Natural Resources Judgment only restates what has long been recognized as law by the Supreme Court itself in fairly categorical terms by the Supreme Court of India in In re Cauvery Disputes (1991):

“When this Court in its adjudicatory jurisdiction pronounces its authoritative opinion on a question of law, it cannot be said that there is any doubt about the question of law or the same is res integra so as to require the President to know what the true position of law on the question is. The decision of this Court on a question of law is binding on all courts and authorities. Hence under the said clause the President can refer a question of law only when this Court has not decided it. Secondly, a decision given by this Court can be reviewed only under Article 137 read with Rule 1 of Order 40 of the Supreme Court Rules, 1966 and on the conditions mentioned therein. When, further, this Court overrules the view of law expressed by it in an earlier case, it does not do so sitting in appeal and exercising an appellate jurisdiction over the earlier decision. It does so in exercise of its inherent power and only in exceptional circumstances such as when the earlier decision is per incuriam or is delivered in the absence of relevant or material facts or if it is manifestly wrong and productive of public mischief.” (para 85, page 145)

It is not open to the President to refer a decided case of the Supreme Court to the Supreme Court under Article 143 asking it to reconsider its views in that case, whether or not the finding is not to be overturned.

In this respect, I am not clear what Sudhir and Shishir hope the Government would achieve with a Presidential Reference. On the one hand, it is stated that the Presidential Reference will “review the law” laid down in the Koushal case, but not interfere with the actual finding made in the Koushal case. If it means Section 377 continues to be upheld as constitutional while the judgment criticized by the Supreme Court for being poorly reasoned, it would be a terrible waste of institutional time merely for the what would, at best, be a Pyrrhic victory. On the other, it is contended that the reference will allow the Executive to move the Supreme Court to have “a second look at the propositions of law laid down in individual cases”. If that isn’t forum shopping, I don’t know what else is.

Forum shopping

The spectre of forum shopping is not a fanciful one. Some have said that it has been attempted by the Government in the “clarification in the guise of a review” in the Black Money case (Ram Jethmalani v Union of India (2011) 9 SCC 751). It was successfully attempted by a private party in the AR Antulay case (AR Antulay v RS Nayak (1988) 2 SCC 602). To give it the garb of legitimacy by resorting to it just for those cases where one disagrees with the law and the reasoning, is to give it no legitimacy at all. To quote Justice Venkatachaliah in the AR Antulay case:

“I venture to say that the proposed remedy and the procedure for its grant are fraught with far greater dangers than the supposed injustice they seek to relieve and would throw open an unprecedented procedural floodgate which might, quite ironically, enable a repetitive challenge to the present decision itself on the very grounds on which the relief is held permissible in the appeal. To seek to be wiser than the law, it is said, is the very thing by good laws forbidden. Well trodden path is the best path.” (AR Antulay page 691, para 117)

Surely, it does not behoove a landmark human rights judgment to follow the path of the Black Money case and the AR Antulay case that seem to actively encourage forum shopping. Whether Koushal lays down the correct law in respect of Article 14 and Article 21 and gay rights is a matter that should be decided by a Constitution Bench in a case that comes before the Court in its natural course and not in one where a larger Bench has been contrived to achieve this result.


The suggestion by Sudhir and Shishir to refer Koushal to the Supreme Court of India under Article 143 of the Constitution not only misunderstands well established law laid down by the Supreme Court, but also seems to encourage forum shopping, questioning seriously the principle of finality of judgments by the Apex Court.

As J Venkatachaliah best put it, the well-trodden path is still the best path and in this case, there are many such well-trodden paths still available to aggrieved parties to undo the damage that Koushal may have caused.

Alok Prasanna Kumar is an advocate and a senior resident fellow at the Vidhi Centre for Legal Policy. The views expressed herein/above are purely the author's own and are not made on behalf of Vidhi Centre for Legal Policy nor reflective of any other person or body's view on the matter. 

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