Reviewing Koushal: Counting Down the Errors Apparent on the Face of the Record
The seven review petitions filed in the case of Koushal v Naz Foundation (“Koushal”) are an exercise in drawing up the rather lengthy list of errors apparent on the face of the Supreme Court of India’s record.
On 11.12.13 the Supreme Court in Koushal reversed the Delhi High Court decision in Naz Foundation v Government of NCT (“Naz Foundation”) which had declared section 377 of the Indian Penal Code unconstitutional insofar as it criminalised consensual sexual acts of adults in private. Each of the petitions painstakingly reminds the Supreme Court of the arguments which although it had heard and read during the long drawn litigation, chose to forget while writing the Koushal decision.
Error Apparent on the Face of the Record
The Supreme Court can quash an order for error apparent on the face of the record. The error must be one of law not fact, and it must be manifest or patent and not mere error. Errors can only be traced in ‘Speaking Orders’ of the Court, that is, those which enunciate the reasons in law on which a decision is made. The Supreme Court’s order in Koushal enunciates its reasons quite clearly, though incorrectly, for reversing the decision in Naz Foundation. The errors apparent on a bare perusal of Koushal reasoning are now being challenged before the Supreme Court.
Review Petition by Mental Health Professionals
The review petition in Dr. Shekhar Seshadri & Others v Suresh Kumar Koushal & Others, recounts forty-one errors apparent on the face of the record. The ground for challenge is the material error on the face of the record ensuing from the failure to consider their contentions as the only party before the Supreme Court with professional expertise in the medical and mental health issues of LGBT persons. The Supreme Court in Koushal had reversed the Delhi High Court decision citing the petitioners’ failure to establish a factual foundation for the challenge to the constitutionality of section 377. The justices found the challenge “singularly laconic” and “wholly insufficient”, which “miserably failed” at establishing the particulars of the discrimination claim. In this petition, and in six others, the effort has been to remind the Court of not just the formidable factual foundation established before the Koushal Court, but in turn demonstrate the amnesiac outlook of the Court towards the case of review petitioners.
Two grounds covered by the mental health professionals are noteworthy. First, they show that the Koushal Court’s ruling on the lack of a factual foundation violates the doctrine of res judicata which debars litigation on an issue that has already been settled. The Delhi High Court had previously rejected the constitutional challenge to section 377 for lack of cause of action; but on appeal, the Supreme Court order dated 03.02.2006 remitted the case for adjudication before the High Court. The lack of cause of action had since not been contended at any stage. The issue of ‘lack of factual foundation’ had thus attained finality through the order of a four-judge bench on 03.02.2006 and its subsequent restitution in the Koushal decision is contrary to the doctrine of res judicata.
Secondly, the petition reiterates earlier submissions in the Supreme Court and those considered before the Delhi High Court, that: i) homosexuality was not a mental disorder but a normal and natural variant of human sexuality; and ii) the criminalization of LGBT persons adversely affected their mental health. These contentions were considered and reaffirmed in the Naz Foundation judgement at paragraphs 67-70. They were further submitted in detailed written and oral arguments along with authoritative scientific literature and remained uncontroverted in the Koushal Court. The Supreme Court’s failure to deal with these submissions is a material error that has resulted in a serious miscarriage of justice.
Error and Failure
Although the legal boundaries of a review petition simply require the petitioners to reveal an error apparent on the face of the record, the review petitions do this and more. They remind the Court to not just avoid an error, but to fix a colossal case of non-performance. The review stands for a reminder of the Court’s essential judicial function—to not abdicate its primary task of reviewing materials and making a decision based on the actual case raised before it. The review then asks the Court to not just do its job well, but perhaps simply to first do its job at all.