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Why approaching the SC afresh on 377 is the only way: Chetan Gupta looks beyond Koushal

Gupta: Another wayGupta: Another wayThe upcoming curative petition against the reversal of Naz has equally, if not more, dismal prospects of bringing a desired result as the review of that judgment which was dismissed unsurprisingly, argues Delhi advocate Chetan Gupta.

Gupta demonstrates how the language of the Supreme Court judgement reversing Naz gives immense scope for approaching the court afresh, instead of trying to get the reversal set aside or waiting for legislative action.

On 27 January 2014, the Indian SC refused to review its judgment in Suresh Kumar Koushal and Ors. v. Naz Foundation and Ors[1] (“Koushal”) which overturned the judgment of the Delhi High Court holding Section 377 of the Indian Penal Code, 1860 to be unconstitutional insofar as it illegalised consensual sexual acts between adults.[2] Much has already been written about the ways in which Koushal is deeply flawed, both legally and morally, and I wholeheartedly agree with all those pieces.[3] However, by way of this article, I propose that rather than expending energies towards attempting to get the Court to set aside Koushal, the interests at stake would pragmatically be better served by using the language of Koushal to approach the Court afresh.[4]

Footnotes:

[1] Civil Appeal No. 10972 of 2013, full text available at here‎.

[2] Section 377 reads as follows-

377. Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine.

Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offense described in this section.“

[3] See for eg. Indian Express / Times of India / New Yorker

[4] The Court is also at a crossroads, with the public beginning to question the faith it had so unquestioningly reposed in it after legislature and executive ineptitude and lassitude led to the Court becoming a super regulator, administrator and arbiter all rolled into one. Two of its former judges have recently been accused of sexual harassment. In such circumstances, it is easy to imagine the Court wanting to present a united front and not overturn a recently pronounced judgment. The review was heard by a bench which comprised one judge who had heard the original petition, and another puisne judge, who is in line to be Chief Justice of India. Institutional image would have weighed with both these judges. Sadly, the majority of India’s population probably does support a ban on homosexuality, thereby also making the decision to uphold Section 377 a popular one beyond the voices heard in India’s liberal media.

[5] Order XL of the Supreme Court Rules, 1966. Note however, that the SC has in recent times been willing to exercise the power of review. See for ex. UoI v. Namit Sharma, available here, where it reviewed and set aside its own judgment relating to qualifications for Information Commissioners appointed under the Right to Information Act, 2005, holding that it suffered from a mistake of law.

I do not support awaiting legislation, because fundamental rights are by their very nature anti majoritarian and cannot be left to the caprices of majoritarian parliamentary democracy. It is squarely the province of a constitutional court to vindicate such rights.

Given the limited grounds available in a review before the Supreme Court viz. new material not available at the time of original hearing and an error apparent on the face of the record, the failure of the review is unsurprising.[5] The parties have now filed a curative petition, which in my opinion has even more dismal prospects given that the only grounds available in such a petition are a demonstrable violation of the principles of natural justice and/or an undisclosed bias on the part of the judges who originally heard the petition in question.[6]

While the curative petition has now been listed for hearing in open court next week, and I sincerely hope that the Court decides to reconsider its decision in Koushal, one must be alive to the possibility that nothing will come of it, specially since the same judges who dismissed the review petition will also participate in hearing the curative petition.

Let us therefore turn to the language of Koushal itself to see if there are any chinks in its rhetorical armour. In paragraph 38 at page 77, the Court after setting out various precedents under Section 377 holds as follows-

However, from these cases no uniform test can be culled out to classify acts as “carnal intercourse against the order of nature”. In our opinion the acts which fall within the ambit of the section can only be determined with reference to the act itself and the circumstances in which it is executed. All the aforementioned cases refer to non consensual and markedly coercive situations and the keenness of the court in bringing justice to the victims who were either women or children cannot be discounted while analyzing the manner in which the section has been interpreted. We are apprehensive of whether the Court would rule similarly in a case of proved consensual intercourse between adults. Hence it is difficult to prepare a list of acts which would be covered by the section. Nonetheless in light of the plain meaning and legislative history of the section, we hold that Section 377 IPC would apply irrespective of age and consent. It is relevant to mention here that the Section 377 IPC does not criminalize a particular people or identity or orientation. It merely identifies certain acts which if committed would constitute an offence. Such a prohibition regulates sexual conduct regardless of gender identity and orientation.” (emphasis supplied)

It goes on to say at paragraph 51 at page 91:

51. Respondent No.1 attacked Section 377 IPC on the ground that the same has been used to perpetrate harassment, blackmail and torture on certain persons, especially those belonging to the LGBT community. In our opinion, this treatment is neither mandated by the section nor condoned by it and the mere fact that the section is misused by police authorities and others is not a reflection of the vires of the section. It might be a relevant factor for the Legislature to consider while judging the desirability of amending Section 377 IPC. (emphasis supplied)

The judgment also (most likely erroneously) claims at para 40 at page 78 that insufficient material was placed before the Court to enable it to reach a finding of unconstitutionality:

40. The writ petition filed by respondent No.1 was singularly laconic inasmuch as except giving brief detail of the work being done by it for HIV prevention targeting MSM community, it miserably failed to furnish the particulars of the incidents of discriminatory attitude exhibited by the State agencies towards sexual minorities and consequential denial of basic human rights to them. Respondent No.1 has also not furnished the particulars of the cases involving harassment and assault from public and public authorities to sexual minorities.

[6] The curative petition was evolved by the Supreme Court using its plenary powers to do justice under Article 142 of the Constitution of India in its judgment in Rupa Ashok Hurra vs Ashok Hurra & Anr. Some academics have also proposed filing a Presidential Reference under Article 143 of the Constitution of India. This is not a good idea for the reasons stated in this response to the original article on Legally India.

[7] 539 U.S. 558 (2003). However, in other countries such as South Africa, a facial challenge sufficed to invalidate similar laws. See National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others, [1998] ZACC 15.

[8] Paraphrasing Scalia J. in Doe v. Reed, 130 S. Ct. 2811 (2010) concurring in an opinion rejecting a First Amendment challenge to a Washington law requiring the public disclosure of the identities of voters in referendums seeking to overturn legislation-

Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously (McIntyre)and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.”

To my mind, the passages extracted above demonstrate that the door for a fresh constitutional ‘as applied’ challenge, is not merely ajar, but wide open. Koushal was distinctly a facial challenge, and can be distinguished as such in any future litigation. A facial challenge is when the constitutionality of a provision is challenged irrespective/de hors of the manner or the circumstances in which it is applied. Therefore, Koushal was not concerned with any specific instance in which Section 377 was abused. It pleaded that on a bare reading of the provision it offended various provisions of the Indian Constitution, including, inter alia, the right to equality under Article 14 and the Right to Life under Article 21.

On the other hand, an ‘as applied’ challenge would present a specific case relating to Section 377 and attempt to state that Section 377 is unconstitutional on account of the results it produces in that case.

Such a challenge would ideally be presented by an adult who is prosecuted or harassed under Section 377. In the United States, much work went into waiting for and preparing for an appropriate case in which to mount an ‘as applied’ challenge. Those efforts culminated in the decision in Lawrence v. Texas[7]. Cometh the hour, cometh the man/woman. Naz and others should now work towards finding someone willing to brave the rigours and publicity that such a constitutional challenge will entail and building up a comprehensive factual record for such a litigation. Democracy occasionally requires the exhibition of civic courage for rights to be given their due.[8] Without belittling the efforts of Naz and others till date, it seems, sadly, that more is required. In the land of Gandhi, it would befit those with civic courage to court arrest and prosecution to bring home the absurdity of Section 377.

Such an ‘as applied’ challenge may be brought either before the High Court (to have two bites at the cherry, since an appeal would lie to the Supreme Court from any verdict it may render) or directly before the Supreme Court, with the latter course of action probably being preferable. An ‘as applied’ challenge would require the Court to squarely face up to the question of whether it wishes to criminalise and prosecute adult individuals engaging in consensual acts. It would also provide the Court with a face saving opportunity to redeem itself and mend the tear it has rent in our liberal Constitution’s fabric.

Chetan Gupta is currently a practicing advocate before the Delhi High Court and Supreme Court of India and read for the BCL in 2008 at Exeter College Oxford.

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Like +1 Object -1 kianganz 28 Apr 14, 15:33
Typo now corrected - Gupta *read* for the BCL in 2008, not will read.
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Like +2 Object -0 Mata 28 Apr 14, 17:08
1) Reading about the "as applied" kind of challenge for first time.

2) Would like to know the origin's of "as applied" kind of constitutional validity challenge.

3) And whether our Indian Court have accepted the doctrine ?
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Like +1 Object -1 Chetan Gupta 29 Apr 14, 06:00
1. and 2. The distinction is common in US Constitutional law and is frequently utilised by their Supreme Court.

3. I'd have to see if any Indian court has expressly used the distinction. However, this wouldn't change the fact that a specific instance of abuse of Section 377 would be a different case from Koushal. Indian courts have recognised that a law may be facially neutral yet be unequal in its application.
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Like +2 Object -1 Eddie Merckx 28 Apr 14, 23:46
Interesting argument Chetan. Wonder if someone will pursue this.
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Like +1 Object -1 Chetan Gupta 29 Apr 14, 06:01
In the good old days, Merckx did all the pursuing! :)
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Like +1 Object -0 Ragavendran Gopalakrishnan 29 Apr 14, 11:15
(1) Do we know the date and time of the upcoming open court hearing?

(2) Agreed that the prospects of the curative petition are bleak, given that Sathasivam, who has openly spoken against Section 377 in a 2009 Tamilnadu speech, has now retired, leaving just Lodha and the two that rejected the review petitions to hear oral argument. But, doesn't the recent transgender verdict present a conflict within the Supreme Court, the need to resolve which is an irresistible argument for reopening Koushal, changing at least Dattu's mind?

This conflict couldn't be more explicit - in one of its dispositive paragraphs, the April 15 opinion reads:
"We, therefore, conclude that discrimination on the basis of sexual orientation or gender identity includes any discrimination, exclusion, restriction or preference, which has the effect of nullifying or transposing equality by the law or the equal protection of laws guaranteed under our Constitution"
Why did it include sexual orientation if, as the opinion went to great lengths to clarify in the beginning, it didn't apply to gays, lesbians, and bisexuals, and that it wasn't commenting on the constitutionality of Section 377?
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Like +0 Object -0 Chetan Gupta 30 Apr 14, 08:12
1. The curative was originally to be listed this week, but is not shwoing on the causelist. There is speculation (Courtwitness1 on twitter) that it may now only come up after other Consti Bench matters (in which case I think it'd be a rather long wait).

2. I agree that the two are difficult to reconcile. However, it might be easier to present a fresh petition allowing the Court some wriggle room to distinguish Koushal rather than getting them to say that Koushal was wrong. This would also mean that the petition could be heard by someone other than curative bench. Dattu J. is not ordinarily given to changing his mind, as those who appear before him will know.
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Like +0 Object -0 Neel Kamal 04 May 14, 15:59
Chetan, from the questions you have raised here regarding the Koushal case, it is clear that there is a whole lot of vagueness involved in the Koushal case and, indeed, in the whole Section 377 rule. And, talking of vagueness, I notice that the American legal system has the principle of voiding laws that are too vague to be practical or just. Have a look at this Wikipedia entry:

http://en.wikipedia.org/wiki/Void_for_vagueness

The arguments presented in favour of the "void for vagueness" doctrine give me the impression that Section 377 of the Indian Penal Code qualifies fully for being declared null and void on grounds of vagueness.

Another point in favour of abolishing this section is that of the "chilling effect" mentioned in the above article, which again seems significant in American law. Section 377, as has been repeatedly explained, makes it very hard for health workers in India to provide proper intervention against sexually transmitted diseases like HIV/AIDS, because the target groups hesitate to accept such intervention because of being criminalised for their "unnatural" acts.

Would welcome your inputs on all this.

Sincerely,

Neel Kamal
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Like +0 Object -0 Chetan Gupta 08 May 14, 09:27
Hi Neel,

Thanks for your comments. The void for vagueness argument has already been made in respect of Section 377. See for ex. the grounds taken in this review petition-

http://orinam.net/377/wp-content/uploads/2013/12/377_ReviewPetition_NazFoundation.pdf

On the merits, I don't see a problem with retaining Section 377 on the books as long as it is appropriately read down judicially.

Re chilling effect, the doctrine normally applies to speech, but I see no reason why the argument can't be extended to other rights as well. Not sure whether the exact term 'chilling effect' was used by the original Naz petitioners, but the argument that the 377 interferes with the efforts of health workers was definitely made.

Best,

Chetan
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Like +0 Object -0 Dr. Vijay Thakur 04 May 14, 18:25
Have been waiting for this analyses for months..excellent and hope Naz realises that infirmities on their side are also partly responsible for the failure. Suggest that different activists file cases in different States of the Republic and then club it at Supreme Court,
Also as in the case of CEDAW use International Treaties and Conventions that India is a signatory to as back rationale/justification. Also scientific research on the experience of "being gay" needs to be used.
Reading down the judgement on "third gender" can invoke a similar temper from the Hon'ble Justice/s
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