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Navtej Singh Johar & Ors. v. Union of India Ministry of Law and Justice Secretary Writ Petition No. 76/2016

On the 8th of January, 2018, a three judge bench of the Supreme Court ordered that the Suresh Koushal decision which upheld the constitutionality of S.377[1] requires reconsideration. The court so ordered while hearing a writ petition challenging the constitutionality of S.377 (Navtej writ). Substantively, the judges stated emphatically that the “litmus test” for finding S.377 unconstitutional was if it offends constitutional morality, regardless of how societal morality on the issue was poised. Should a people exercise the “inherent” right to their sexual orientation within the confines of constitutional morality, the court stated, they will receive the protection of Article 21.[2] To be sure, S.377 is still constitutional, both because the Navtej writ is not finally disposed and because the Suresh Koushal ruling is still in operation. However, these observations no doubt strengthened the judicial discourse on the protection of sexuality rights. However, this blog is not about these substantive proclamations. Instead, in this blog, I will attempt to answer two procedural questions which arise from this January order of the Supreme Court:

  1. Was the Supreme Court empowered to admit the Navtej writ given that the Suresh Koushal decision is due to come up for hearing in the curative process? [Yes]
  2. How does the order passed in this writ, affect the 377 curative petition[3], if at all? [Not at all]

However, before delving into these inquires, a few preliminary matters need to be clarified.

WHAT IS A CURATIVE PETITION?

A case goes through two stages at the Supreme Court: judgment and review. A curative petition is a petition that can be filed after the disposal of the review petition. It is a judicially created process at having yet another look at the decision. Its genesis is owed to the Ashok Hurra Case (2002, SC) which stated that although finality of a decision is very important for certainty and stability of a legal system, the inherent powers granted to the Supreme Court allow it to reconsider its decision to prevent miscarriage of justice. The court then laid down illustrative grounds for understanding miscarriage of justice:

  1. Petitioner must show a violation of principles of natural justice. If they were not a party to the proceedings in the Supreme Court, they must show that the decision adversely affects their interest; if they were a party to the proceedings they must show that they had not been served with notice and the proceedings went on as if he had been served notice [this last ground was successfully pleaded in one of the three successful curative petitions—MP v. Sugar Singh]; or
  2. The judges at the Supreme Court proceedings failed to disclose their connection to the subject matter or parties, which gives an apprehension of bias disadvantaging the petitioner.

Aside from these points, the curative petitioner must also show:

  1. The points raised in the curative have been raised in the review;
  2. A senior lawyer must certify as to the fulfilment of the conditions 1-3
  3. Three of the senior-most judges, along with the judges that heard the original Supreme Court decision will then preside over the matter. The curative petitioners have to make those arguments in these petitions which can demonstrate either points 1 or 2 above (or other grounds which can point to miscarriage of justice)[4] at the first stage to get the petition admitted. If the petition is admitted, the Hurra case says, “the same bench” must hear the matter on merits. The phrasing “same bench” here is confusing. Does it mean the same bench which originally heard the case or does it mean the same bench which is considering the curative? This issue does not arise in the 377 curative as both judges who originally heard the case have since retired. However, I will address this issue here for completeness. Sometimes, the same bench that admits the curative decides, barring of course, the judges that retired since the curative was admitted [see, for example, Bhaskar Lal Sharma v. Monica, Navneet Kaur]. Sometimes, another bench decides though the admitting bench is still on the rolls [for example, MP v. Sugar Singh][5].

This procedure has now been formalized and is housed in Order XLVIII of the Supreme Court Rules, 2013. However, it is important to note that the curative petition arguments are gateway arguments. Once the petition is admitted on points 1 and 2 above (or other miscarriage of justice grounds), the original cases are restored (in our case, the petitions filed by Suresh Koushal etc. and Naz and others at the Supreme Court level) and the court now hears arguments on the points addressed in those filings.

  1. MAINTAINABILITY OF THE NAVTEJ WRIT

This brings us to the point of maintainability of the Navtej writ. Lawyers for Navtej Johar asserted in their writ that the issues raised by their writ petition are “varied and diverse” from those raised in the 377 curative. I argue that this distinction is only surface level and it is unnecessary. It is surface level because once the curatives are admitted, the original SLPs and written submissions will be restored and arguments will once again be heard on the merits of those filings. Those who followed the Kaushal arguments in 2012, will recall that they were chiefly around Articles 14, 19, and 21 of the constitution. The Navtej writ also makes Article 21 arguments[6] and so substantively, both petitions will be raising similar arguments.

This distinction is also unnecessary because Res Judicata only operates between “the same parties and in respect of the same cause of action.” [Sanjay Singh v. UPSC, SC 2007]. That means that the same parties cannot bring a case based on the same grounds once the Supreme Court has decided the dispute between them (assume review, curative are all done). In the Navtej writ, parties are different from the Suresh Koushal proceedings even though the subject matter is the same (i.e. constitutionality of 377). This is legally permissible. On this point, consider the case of Sanjay Singh v. UPSC. Here, unsuccessful candidates at a judicial selection exam challenged the scaling method deployed by the examiners to calculate scores. This exact question had come up before the Supreme Court earlier in a case called UPSC v. S.C. Dixit wherein the scaling method was found constitutional. This decision was reaffirmed at the curative level as well. The UPSC sought to argue that Sanjay Singh’s case should be dismissed because the Dixit case had already found the same scaling method constitution. The Supreme Court replied that the ratio decidendi [logic of the decision, loosely] of a previous case can always be challenged by a subsequent case [in fact, this is how legal reasoning changes]. What cannot be changed is the order in the previous case. This literally means that a subsequent court cannot pass an order reversing the final order of a prior judgment.[7] This would in the Koushal context mean that the Navtej court cannot pass an order which changes the result of the Koushal review from “dismissed” to “admitted” [See Sanjay Singh, para 10]. However, a subsequent proceeding filed in the court challenging the rationale of the Koushal judgment by different parties is not prohibited.

Similarly, if the parties remain the same but the points of dispute between them change, they can file a writ even though a curative petition on different points has been dismissed. However, since this point is not in issue in the context of the 377 litigation, I am not pressing it here. What conspires from this discussion then is that the Supreme Court was empowered to admit the Navtej writ even as the 377 curative is “pending.

  1. HOW DOES THE NAVTEJ ORDER AFFECT THE 377 CURATIVE?

The Navtej order does not affect the 377 curative in any way. As of now, the 377 curative petition has not been admitted. The last hearing on the curative matter was on the 2nd of February, 2016. In that hearing, a three judge bench of the Supreme Court ordered that the petition should be placed before a five judge bench to decide whether the petition should be admitted, in the first instance. If the five judge bench admits the curative, it will then decide whether the original Supreme Court decision was right on the law. Therefore, at this time, the curative has not been admitted, and the review process being over, for all practical purposes, the decision of the Supreme Court is final [See on this point, Ashiq Hussain Faktoo, SC 2008]. For an analogy, consider a judgment of the High Court that has not been appealed to the Supreme Court. Although hypothetically, the decision could be overturned, until an appeal is admitted to the Supreme Court, the decision is final as between the parties. Similarly, until the Supreme Court admits the curative petition, the review decision is final. The curative and the Navtej are two entirely different beasts; the results of one, leave alone an intermittent order, does not automatically decide the fate of the other.

Now, the lawyers of the Navtej writ have two choices. The first is to argue that the Navtej writ be tagged along with the curative hearing, assuming the curative is admitted. In that situation, the fates of these two petitions will be tied. The other, and perhaps, the more profitable path is for the lawyers to argue that the curative and the writ be heard separately so that assuming that the 377 curative fails to overturn Koushal on merits, there is yet another chance for the constitutionality of 377 to be decided via the Navtej writ. This has been done once before in the case of Abdul Gabbar Khan. Khan appealed in the Supreme Court claiming compensation on the basis of the Bhopal gas tragedy settlement. A curative on the same issue was already pending in the Supreme Court[8].  Khan’s counsel was successfully able to argue that the appeal be decided after the court had heard the curative even though the court had suggested that the appeal and the curative be tagged together.

[1] S. 377 of the Indian Penal Code criminalize carnal intercourse against the order of nature.

[2] Fundamental right to life.

[3] What I refer to collectively as the 377 curative is actually a bunch of curative petitions filed by Naz Foundation, parents of LGBT persons, professors, mental health professionals, Academics Ratna Kapur et. al., Voices Against 377 and Mr. X.

[4] The different curative petitioners have tried to demonstrate a miscarriage of justice through different techniques. For example, Naz has tried to show that the Koushal decision omitted to consider the amended S. 375 while pronouncing the decision. The mental health professionals have chiefly argued that the expert opinion and scientific evidence provided by them on homosexuality was not considered by the Supreme Court. For other arguments raised to demonstrate miscarriage of justice see, curative petitions filed by some of the other petitioners here.

[5] The judges who decided the actual Supreme Court judgment complained of had since retired.

[6] Primarily, that the right to sexuality, sexual autonomy and sexual partner are rights protected by the fundamental right to life guaranteed by the Indian constitution (Article 21).

[7] See especially on this point, para 21 of Shaukat Hussain Guru v. Delhi Writ Petition (Criminal) 106/2007) and U.P.S.C. v. Subhash Chandra Dixit Civil Appeal 8609/2013.

[8] At the last hearing on this matter, the court directed that the matter be heard in open court to decide the issue of admission, in the first instance. The matter has since not been listed for such a hearing.

My thanks to Ramki and Adv. Mihir Samson for helping me figure out where curatives and the Navtej writ can be found online. My thanks also to my young cousin, Smriti, who helped in so many intangible ways to make sure that this blog goes up on time. 

 

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Kirankumar Rameshbhai Devmani v. State of Gujarat [(2014) 71 VST 555 (Guj)]- Part 2

In Part 1 of this post, I summarized the arguments of the parties and the decision of the court. In this part, I will deal with the three remarkable features of the case I had mentioned before: 1. the court’s attempt to give meaning to the morality of the constitution[1], and to apply this meaning in this case; 2. legal incompetence at official levels, and how it can delay and frustrate day to day affairs of people; and 3. the place occupied by same sex sexual relations in the case. To refresh the memory of readers, the present case involved a film about a boy who discovers that he is gay. The film, through the boy, depicts various difficulties faced by gay people in society. The film was refused tax exemption given to all Gujarati colour films and the petitioner who is the producer and director of the film challenges this refusal. See full factual scenario in Part 1.

  1. CONSTITUTIONAL MORALITY

In Part 1, I had explained how the court found the withholding of tax exemption as illegal and subsequently that such withholding would amount to a violation of the free speech and expression right under Article 19(1)(a) of the constitution. To more fully explain how diverse points of view can co-exist in democratic constitutional schemes, it delved into the morality of the constitution. It found that the peaceful co-existence of a “plurality of ideologies” was not only one of the aims but also one of the guiding principles of our constitutional scheme [para 31]. In the words of the court:

In the constitutional scheme of things that we have adopted in our country, plurality of ideologies and different viewpoints are accepted and respected. In a topic as one on hand, there are bound to be as many view points as are colours in a rainbow. No single view point may be fully correct or fully incorrect and yet all of them can peacefully co-exist.” [para 31].

It further went on to state that this plurality of ideologies allowed different viewpoints to stand so long as they did not violate the constitution. Such reasoning goes a long way to re-establish the constitutional values on which the Indian constitution has been drafted and to re-position the judge as a dispassionate protector of those values. This is especially important to motivate State actors (eg. government employees, judges etc.) to set clear boundaries between their personal beliefs and the beliefs of the constitution and to remind them that when they are acting in the capacity of their office, the only set of values that they can legitimately chase are those enshrined in the constitution. Contrast this with the Suresh Kumar Koushal case in which the court called the LGBT population a “miniscule fraction” [para 43] arguing for “so called rights” [para 52] betraying a sense of antipathy and revulsion for the community. For further reading on the kind of language used by the Supreme Court in the Suresh Kumar Koushal case see, Danish Sheikh, “The Quality of Mercy Strained: Compassion, Empathy and Other Irrelevant Considerations in Koushal v. Naz” (2013) 6 NUJS L Rev 585.

Apart from reminding institutional actors of their duties, the court has also re-assured them that their upholding a particular right would not mean their personal sympathy for the right, as long as the right is merited by the constitution. Such logic would attempt to persuade judges personally unsympathetic certain claims, to apply constitutional standards and abjure their personal opinions when in the business of adjudication.

“Endorsing one’s right of expression does not imply endorsement of his view point. In any vibrant modern democratic society, divergent viewpoints is not only inevitable but is considered as a healthy sign. Diverse and antagonistic viewpoints can coexist and survive side by side peacefully in a modern cultured society.” [para 50].

This re-assertion of constitutional values and not personal viewpoints on which a case ought to be decided is reminiscent of the reasoning of the Delhi High Court in the Naz case. There, the Delhi High Court expressly stated that regardless of popular opinion on the topic of homosexuality, S. 377 should be held to be unconstitutional if it did not pass the threshold of fundamental rights:

Popular morality, as distinct from constitutional morality derived from constitutional values, is based on shifting and subjecting [sic] notions of wrong and right. If there is any type of morality that can pass the pass the test of compelling state interest, it must be constitutional morality and not public morality” [para 79].

 

  1. OFFICAL INEPTITUDE

The second remarkable thing about this case is how clearly it demonstrates official ineptitude and delaying tactics used by authority figures. In this case, there was a clear policy highlighted for refusing tax exemptions. As per para 4 of the policy, the only films that could not receive the exemption were films that depicted “evil customs, blind faith, sati, dowry, and such social evils and those which are against national unity.”  There were no other reasons to refuse the exemption and there was no discretion in this matter. Yet, the Commissioner of Entertainment Tax (“Commissioner”) refused the exemption to the film on grounds that it had been given an A certificate by the Censor Board, a reason beyond the scope of the policy. In order that the he may make a representation against this wholly illegal reason, the producer approached the Commissioner either in person or through letters on the 24th of April, 2013, 26th of April, 2013, 29th of April, 2013 and the 16th of May, 2013 before he could hear back from him. He even penned a letter to the Chief Minister complaining about the non-consideration of his requests for representation. Therefore, 5 letters had to be written only to get attention to an application which had been refused on grounds not even present in the policy. These dates are taken on record by the court in the case.

After multiple letters were sent to him, the Commissioner ultimately replied asking the producer to delete certain dialogues and mute certain words, and to submit a signed affidavit to that effect before his film could be tax exempt. The Commissioner was not empowered to do so and acted beyond the scope of his powers. When the producer refused to comply, the Commissioner once again rejected the exemption application. Even when the Ministry of Information and Broadcasting directed the Commissioner to identify a “basis” for his refusal, the Commissioner failed to fathom a policy reason for refusing tax exemption. Instead he content himself with reasons such as the film did not have a useful message, it could create friction between members of society, it was controversial, it promoted homosexual ideology, and other reasons highlighted in Part 1.

The law on paper may provide limited reasons for refusing tax exemption but a private actor is caught in a frustrating legal web when authority figures act clearly outside the scope of those powers and assume for themselves grounds for refusal which do not exist as per government policy. For this producer, this meant a long drawn legal battle and the delay of the release/tax exempt status of the film. It is unknown whether there was any departmental action taken against the Commissioner for acting outside his scope. However, the court did acknowledge that the commissioner’s objections were, “wholly misguided based on fallacious premises” [para 53]. The Commissioner’s refusal was not just a misapplication of a rule of law, it was the complete avoidance of it. Such avoidance delayed a simple application by nearly a year. What a weapon (accidental/deliberate) legal incompetence can be.

  1. SPACE OCCUPIED BY SAME SEX RELATIONS

The final important legal manoeuvre of note in this case is the manner in which the court put the Suresh Kumar Koushal case in perspective. One would imagine that with that decision coming out in December, 2013 and finding that same sex sexual relations were a kind of criminal unnatural sex, a High Court ruling in February, 2014 may find difficulty in allowing tax exemption to a film about homosexuality. However, this court was quick to find that the Suresh Kumar Koushal case had no application to the present query. That case concerned itself with some forms of sex which had been criminalized and not with the criminality of a certain sexual orientation. Although it is important to understand that S.377, Indian Penal Code, 1860 (“S.377”) has a disproportionate impact on the LGBT community, it is also important to understand that it does not criminalize homosexuality, and it’s continued existence cannot be used as reason to deny any conversation about the LGBT community, or to deny other rights of the community. The legal clarity displayed by the court is laudable. Till the time that this section occupies a place in the law books,  reasoning of this kind can lead the way for other State authorities/private persons that may have otherwise been persuaded by the existence of S. 377 to deny claims with a LGBT association.

 

 

[1] All references to the constitution in this post refer to the Constitution of India, 1950.