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Counter-counterpoint: Why a prez reference of the 377 judgment is still the best option and is neither dangerous nor forum shopping

Shishir Bail: Succes of legislative process dwindling
Shishir Bail: Succes of legislative process dwindling
Countering Alok Prasanna Kumar’s counter-argument earlier this week, Sudhir Krishnaswamy and Shishir Bail counter that a presidential reference remains the best course of action to remedy the Supreme Court’s reversal of the Delhi high court’s judgement that struck down section 377.

On 20 January we had argued in Section 377, Koushal v Naz: Why reference would be better than review that a reference by the President of India to the Supreme Court under Article 143 of the Constitution was the better option than a review of Suresh Kumar Koushal.

The reference option emerges from a reading of the opinion delivered by a 5 judge bench of the Supreme Court in In RE: Special Reference 1 of 2012 (the 2G Presidential Reference). We appreciate Alok Prasanna Kumar’s effort in responding to our argument [in the article The spectre of forum shopping and why a presidential reference would be ‘dangerous’, published on 28 January], but for the reasons set out below are unable to appreciate his criticism.

Kumar invokes the law laid down in In Re Cauvery Disputes (Cauvery-II), specifically Paragraph 85 of this judgment, to show that “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…”

We are puzzled by his lack of attention to the portions of the 2G Presidential Reference, which specifically cites and distinguishes paragraph 85. Taking great pains, the five-judge bench in that case, speaking through Justice DK Jain, clarified this passage in the following manner:

Therefore, references in Para 85 to “decision” and “view of law” must be severed from each other. The learned Judge observes that in case of a decision, the appellate structure is exhausted after a pronouncement by the Supreme Court. Therefore, the only option left to the parties is of review or curative jurisdiction (a remedy carved out in the judgment in Rupa Ashok Hurra Vs. Ashok Hurra & Anr.15). After the exercise of those limited options, the concerned parties have absolutely no relief with regard to the dispute; it is considered settled for eternity in the eyes of the law. However what is not eternal and still malleable in the eyes of law is the opinion or “view of law” pronounced in the course of reaching the decision. Justice Sawant clarifies that unlike this Court’s appellate power, its power to overrule a previous precedent is an outcome of its inherent power when he says, “…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….” (Para 45, Page 52; emphasis supplied)

Thus Kumar cites Paragraph 85 of Cauvery II, without referring to the nuanced manner in which this paragraph has been clarified in the 2G Presidential Reference and thereby fails to take note of possibly the most salient outcome of that opinion.

On the plainest reading, the 2G opinion states that while in a presidential reference the Supreme Court cannot interfere with the effect of an earlier decision on the parties before it; it can overrule the operation of that decision as a precedent in subsequent cases. The overruling of a judgment of a Supreme Court as a precedent is not in fact an exercise of appellate jurisdiction, but is an exercise of the inherent power conferred specifically on that Court.

Hence, we were right to conclude that as Suresh Kumar Koushal was not a regular criminal appeal, a Reference to a large Bench would only enquire into the expression of a ‘view of law’ by Justices Singhvi and Mukhopadhyay.

As a result of the 2G Presidential Reference, this ‘view of law’ could be looked at again through the reference procedure, and thereafter overruled if this was deemed fit by a bench of 5 judges. Given that this decision affects the vital interests of millions in the country, we do not feel that such an outcome would be a ‘pyrrhic victory’.

Mr Kumar also argued that our interpretation of the opinion in the 2G Presidential Reference was dangerous as it “allows parties to forum shop within the Supreme Court, seeking and getting larger benches until they get a favourable result.”

We are unclear in what sense Mr Kumar uses the word ‘parties’ here. The President of India was neither a party in the 2G Case (CPIL) nor in Suresh Kumar Koushal. Article 143 confers a very specific, selective power on the head of the Indian State. To argue that our interpretation of the 2G opinion would result in the doors of the Supreme Court being thrown open to mischievous litigants is at the very least, a misunderstanding of the ‘party’ which may use Article 143.

It is relevant to note that in the 2G cases, the review petitions were withdrawn before the Reference was entered. Our earlier suggestion was made before the Supreme Court rejected the Review Petition filed by the Central Government. In the current circumstances as the Review has already been rejected and the Curative Petitions are underway the willingness of the Supreme Court to overrule the proposition of law in Suresh Kumar Koushal in the exercise of its inherent power under Article 143 is unlikely.

The current practice of the Supreme Court in appointing benches for various matters is chaotic, with little regard to subject matter or strength of the bench. (Nick Robinson, Structure Matters, The American Journal of Comparative Law, 2013)

Our response to Koushal was to explore the options created by the Supreme Court to clear up its own mess. The 2G Presidential Reference is one such option.

Undoubtedly, the legislative process may be the best means to settle this question, however the possibility of a successful use of that process in this case dwindles by the day.

All evidence now points to the decision in Suresh Kumar Koushal continuing as good law for some time to come. Hence, once such a dispute is submitted to the judicial rather than the legislative branch, we must explore all opportunities to overcome this harsh ruling.

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

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