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Section 377, Koushal v Naz: Why reference would be better than review

Krishnaswamy: Reference preferred
Krishnaswamy: Reference preferred
Sudhir Krishnaswamy and Shishir Bail argue that a presidential reference against the Supreme Court’s reversal of the Delhi high court’s judgement in Naz, is strategically superior as it provides the court with the institutional process and scope for enquiry that is necessary to address the critical constitutional questions that have arisen through the Supreme Court’s judgement that overruled the lower court.

The decision of the Supreme Court in Suresh Kumar Koushal vs Naz Foundation last month met with outrage and, more surprisingly, approval from different quarters of the Indian social and political landscape. The union government took the lead in exploring legal means to overcome the decision closely followed by other petitioners and interveners.

Obvious strategies

As the Constitution and other rules of procedure do not provide for an appeal against a judgment of the Supreme Court, even where such a judgment is delivered by a two-judge bench, the legal strategy has been focused on the ‘legislative option’ and the ‘review option’.

The ‘legislative option’ is for parliament to amend the Indian Penal Code, 1860 through the legislative process or through an ordinance. Now that Parliament has been adjourned new legislative proposals are unlikely before the next general election. As the BJP has expressed support for this judgment the ordinance route is effectively closed.

The ‘review option’ includes review petitions and subsequent curative petitions that are instruments used by parties aggrieved by orders of the Supreme Court, to overcome errors apparent on the face of the record, consider new evidence or engage with any other sufficient reason. On 21st December the Government filed a review petition before the Court and it is likely that other petitioners and interveners will file petitions before the expiry of the 30 day limit.

In this piece, we suggest that the effort to overcome the Koushal judgment has much to learn from the recent opinion of the Supreme Court in the 2G Presidential Reference, and a serious exploration of the Reference option.

The 2G presidential reference

In its February 2012 judgment in the ‘2G case’ (CPIL vs Union of India) the Supreme Court, speaking again through Justice Singhvi along with Justice A.K. Ganguly, categorically prescribed the public auction as the only means for the state to transfer or alienate all natural resources.

Justice Singhvi declared that “while transferring natural resources, the State is duty bound to adopt the method of auction by giving wide publicity so that all eligible persons can participate in the process.” This opinion had effects far wider than telecom licences and was in direct conflict with earlier long standing legislations, executive orders, and decisions of the Supreme Court.

For example, the Mines and Minerals Regulation and Development Act 1957 permits different methods for the alienation of mineral resources. In response to the 2G case the central government along with a number of the parties to the litigation before the Supreme Court, filed Review Petitions against the decision. However, before this review petition could be heard and decided upon by the same Bench comprising Justices Singhvi and Ganguly, it was curiously withdrawn by the Central Government. In its place, the Central Government, acting through the President, filed a reference to the Supreme Court under Article 143, in sum and substance challenging the validity of this decision and its prescription of public auction as the only method for the disposal of natural resources by the Government.

Before the 2G case the Supreme Court had historically taken the view that the presidential reference was not to be treated as providing a means for the Central Government to appeal against individual decisions of the court. However, faced with the judgment in the 2G case, the Bench hearing the presidential reference supplied a nuanced interpretation of precedent and Constitutional provisions to hold that while the opinion in a presidential reference could not interfere with the decision in an individual case, it could in fact review the view of law expressed. So the Court preserved the operative portion of Justice Singhvi’s judgment and the method of public auction for the alienation of 2G telecom licenses but effectively overruled the legal proposition that prescribed auctions for the alienation of all natural resources.

Strength and coherence

The decision in the 2G Presidential Reference is significant, as it gives the executive arm of the Government a new ‘reference option’ to move the Supreme Court to have a second look at the propositions of law established in individual cases. As there is no criminal prosecution challenged under Koushal, the reference court will not go into any holding that affects individual rights.

Crucially, this second look is by a Constitutional Bench of the Court with a minimum of five judges and invariably different judges from the originating Bench. In a Court where increasingly, important Constitutional matters are heard and decided by small Benches of two judges, contrary to the mandate of the Constitution (See Nick Robinson: Structure Matters, The American Journal of Comparative Law 2013), the reference option ensures that constitutional issues are examined by Benches of appropriate strength.

Further, as adherence to judicial precedent by numerous smaller Benches has considerably weakened if not completely broken down, the reference option lets the Supreme Court clarify applicable precedent and develop judicial doctrine in a coherent and enduring fashion.

Too much of the response to Koushal has focussed on the legislative and review option and the Central Government have, like in the 2G case, hastily opted for the latter. However, we argue that the reference option after the 2G case has become the only substantive method of constituting a Bench of appropriate strength to engage with constitutional questions with the required gravitas.

As Ronald Dworkin reminds us, we subject ourselves to Law’s Empire to individually and collectively purify our moral worth. A reference to the Supreme Court is only way that the court will get a second opportunity to exercise its counter-majoritarian role to protect the fundamental rights of a discrete and politically marginalised minority and thereby renew our constitutional project.

Sudhir Krishnaswamy and Shishir Bail are faculty at the Law, Governance and Development Initiative of Azim Premji University, Bangalore

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