In 2009, the High Court of Delhi decriminalized same-sex relations between consenting adults in India, holding that Section 377 of the Indian Penal Code, which penalised “carnal intercourse against the order of nature”, could not be applied to consensual homosexuality (Naz Foundation vs NCT of Delhi). Four years later, sitting in appeal, the Supreme Court of India reversed the High Court’s decision, and then dismissed an application for review (Suresh Kumar Koushal vs Naz Foundation). Ordinarily, this would have been the end of the matter for a generation or so, before the Court could be persuaded to reconsider its judgment. However, uniquely among constitutional and apex courts, the Indian Supreme Court has created something called the “curative jurisdiction”, which allows proceedings to continue even after the dismissal of a review, and for the Court to overturn its own decision, in certain rare and limited circumstances.
There is some controversy over the exact scope of the “curative jurisdiction”. On a narrow reading, a curative petition can succeed only if it is shown that a necessary party was not heard by the Court, or if judicial bias is proved. On a broader reading, however, it is argued that the curative jurisdiction can be invoked to correct gross and patent errors in a judgment, which have and can result in great injustice. In either event, the exercise of this jurisdiction is extremely rare: in the twelve years since it invented the curative proceeding, the Court has allowed a curative petition on only five occasions.
In 2014, the Naz Foundation petitioners made a significant breakthrough when they persuaded the Court to depart from its usual practice of deciding curative petitions “by circulation” in the judges’ chambers (i.e., without oral arguments). The Court agreed to hear the petition in “open court”. In January 2016, a further breakthrough was achieved when the three most senior judges of the Supreme Court, who – as per the rules – were hearing the curative petition, decided to refer it to a larger bench of five judges. As reflected in the order of the three-judge bench, this was because, in the opinion of the Court, the petition raised important and far-reaching questions of law – even at the curative stage.
Although the Court’s observations were promising, the odds remained stacked against the curative petition succeeding: the demands of stability and finality, and the fear of an opening of the floodgates, would have been likely to stay the Court’s hand, even if the judges now hearing the case thought that the 2013 decision, delivered by their predecessors, was incorrect.
In the month of August, however, an entirely unexpected and unforeseen development occurred, which might have changed the equation entirely. A nine-judge bench of the Supreme Court was constituted to decide whether or not the Indian Constitution guaranteed a fundamental right to privacy (Puttaswamy vs Union of India). The privacy case arose out a constitutional challenge to the Indian State’s biometric identification scheme (“Aadhaar”), during the course of which the Attorney-General argued that there was no express or enumerated right to privacy under the Constitution.
To settle the constitutional question, a nine-judge bench was established. At the end of August, by a unanimous order, the Court held that privacy was indeed a fundamental right under the Constitution. More specifically, however, a plurality of four judges singled out Koushal vs Naz Foundation as a judgment that was clearly and evidently wrongly decided. In particular, the plurality observed that the Koushal judgment’s holding that only a “minuscule minority” engaged in same-sex relations completely misunderstood the nature and concept of rights. The plurality went on to hold that, in its view, sexual orientation was definitively protected under the fundamental right to privacy. The plurality’s view on the correctness of Koushal vs Naz Foundation was endorsed explicitly by one of the five separate opinions, and implicitly by the others, all of which held that the right to intimate decision-making was a facet of privacy. The plurality also concluded by noting that it was not specifically overruling Koushal only because that case was still pending in curative proceedings.
The judgment of the nine-judge bench should make it clear that the premise of Koushal vs Naz Foundation is no longer valid. Consequently, when the Court next hears the curative petition, it can do one of three things: overturn the Koushal judgment then and there, and restore the judgment of the Delhi High Court; remand the case for a fresh hearing in view of the holding in the right to privacy case; or, acknowledge that Koushal is no longer good law, while refraining from invoking the curative jurisdiction. In this last eventuality, the moment the Court dismisses the curative petition, a fresh challenge to Section 377 is almost a certainty – and that will allow the Court to overrule Koushal in the normal course of things.
Whatever the outcome of the curative petition, the Supreme Court’s privacy judgment has ensured that sooner or later, consensual same-sex relations in India will be judicially decriminalized.
(Disclaimer: The writer was part of the legal team assisting the Petitioners in the January 2016 curative hearing, and part of the legal team assisting the Petitioners in the right to privacy case)