Curing the Koushal Malady

Danish Sheikh 30th April 2014

“We are of the view that though Judges of the highest Court do their best, subject of course to the limitation of human fallibility, yet situations may arise, in the rarest of the rare cases, which would require reconsideration of a final judgment to set right miscarriage of justice complained of. In such case it would not only be proper but also obligatory both legally and morally to rectify the error.”

With these words in Rupa Ashok Hurra v. Ashok Hurra, the Indian Supreme Court articulated the notion of the curative petition. The final level at which the Court’s jurisdiction might be invoked, the curative is a limited remedy enshrining the principle of ex debito justitiae – that any technicality should not outweigh the course of justice, even if the technicality here be something as significant as the finality of a legal decision.

On 22nd April 2014, the Court took an important step towards realizing this doctrine’s potential by agreeing to hear the curative petition filed against its decision in Suresh Kumar Koushal v. Naz Foundation in open Court. This is the final stage in the story of the constitutional challenge to Section 377 of the Indian Penal Code. By way of criminalizing “carnal intercourse against the order of nature”, the provision has been used as a tool of persecution against the LGBT community in the country since its inception in 1860. After a landmark 2009 victory in the Delhi High Court that resulted in reading down the section to exclude consensual same-sex intercourse, the matter was appealed by various private groups before the Supreme Court. With its Koushal decision in December 2013, the Court reversed the former ruling, effectively recriminalizing homosexuality. That it did so with devastatingly poor legal reasoning fuelled the strong backlash against it – and will prove significant for the hearing of the curative.

As mentioned, a curative petition is a limited remedy, one which may be invoked in instances where the judgment in question causes the perpetuation of irremediable injustice, where it would be oppressive to judicial conscience or where it shakes public confidence in the judiciary. These grounds are clearly applicable to Koushal. Amongst the notable omissions on behalf of the Court include its failure to accurately apply the constitutional test of equality under the law in a coherent manner; its complete non-consideration of the constitutional test of non-discrimination that was articulated by the Delhi High Court to include sexual orientation as protected category; and its inability to appreciate the voluminous evidence of persecution of the LGBT community and appreciate the link between the penal provision and its direct and inevitable oppressive effects. This last stand is one that another bench of the Supreme Court recently contradicted in National Legal Services Authority (Nalsa) v. Union of India. Amongst its other findings, the Nalsa court noted that “Section 377, though associated with specific sexual acts, highlighted certain identities, including Hijras [biological males who reject their “masculine” identity in due course of time to identify either as women, or “not-men”, or “in-between man and woman”, or “neither man nor woman”] and was used as an instrument of harassment and physical abuse against Hijras and transgender persons”.

The importance of the curative may also be attested to by the manner in which the Koushal judgment has perpetuated a continuing state of injustice. The curative petition testifies to an increase in police harassment, a sharpening of social prejudice, individual suffering of psychological trauma and reduced self-esteem, and employment being jeopardized amongst its other adverse effects.

J. Banerjee notes in his Ashok Hurra concurrence:

Can it be said that the justice delivery system of the country is such that in spite of noticing a breach of public interest with a corresponding social ramification, this Court would maintain a delightful silence with a blind eye and deaf ear to the cry of a society in general or even that of a litigant on the ground of finality of an Order as passed by this Court ?

The Koushal court’s silence in the face of this kind of suffering was deafening, tarnishing the legacy of the Supreme Court. It now stands to the curative bench to set the judicial record straight.

Author profile

Danish Sheikh is an advocate at the Alternative Law Forum, currently on sabbatical at the University of Michigan Law School.

Citations

Danish Sheikh, “Curing the Koushal Malady” (OxHRH Blog, 1 May 2014) <http://humanrights.dev3.oneltd.eu/?p=6977> [date of access].