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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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Shivam Santosh Dewangan v. State of Chhattisgarh 2016 CriLJ2819

On the 27th of April, 2016, a single judge bench of the Chhattisgarh High Court granted bail pending trial in a rape case. The prosecutrix, a transgender woman who had undergone sex re-assignment surgery (“SRS”) commenced a sexual relationship with the accused upon a promise to marry. When that promise was broken, she lodged an FIR alleging rape, among other things. This case concerned the bail application of the accused who had been imprisoned following the FIR.  Sexual relationships based on (later) broken promises to marry may qualify as rape but this blog is not an opinion on that issue. Neither is it an opinion on bail proceedings. Instead in this blog, I focus on two of the reasons for the grant of bail: 1. The court’s incorrect finding that the prosecutrix was not a woman only because all her female sex organs had not fully formed post SRS; and 2. The court’s incorrect implication that the prosecutrix could not be raped only because her vagina was not fully developed. I argue that these findings are incorrect in law and end up excluding certain legal subjects from the protection of rape law.

REASONS FOR GRANTING BAIL

Before expanding on the reasons for bail, we recall that rape, as per the Indian Penal Code, 1860 (“IPC”), is a crime that can be committed only against a woman. The judge granted bail for the following reasons: 1. She was not entirely a woman i.e. “…her sex ha[d] not changed in tune with gender characteristics from male to female even after SRS surgery.”[1] 2. According to her medical report, her vagina was not completely formed and her secondary sexual characteristics were still developing; 3. There was a year long delay in filing the FIR 4. No semen was found on her clothes; 5. No custodial interrogation of the accused was required; and 6. The prosecutrix was a 23 old adult. I will deal in depth with reason 1 and 2 and make some general observations about reasons 3-6 in respect of bail proceedings. Bail proceedings are not a determination of the merits of the case i.e. whether the accused is guilty or not. Generally, in non-bailable offences like rape, the accused cannot demand bail as a matter of right.[2] Moreover, in cases such as rape, if there is an appearance of guilt, bail shall be denied. Therefore, it is common, to my understanding, for courts to consider the kinds of evidence it did to arrive at the bail decision.[3] This is despite the fact that some of the evidence they examine may be thrown out as inadmissible at the trial stage, or the conclusions drawn from them may be legally incorrect as I will demonstrate below.[4] However, in this blog, I am not focussing on the merits or demerits of such kinds of bail proceedings.2.

COURT’S INCORRECT CONCLUSION THAT THE PROSECUTRIX WAS NOT A WOMAN (REASON 1)

The question in the case was one concerning rape—primarily, whether sexual intercourse on a promise to marry is rape, if the promise is later broken. The short legal answer to that question is yes, it may be rape.[5] Now, though he had been chargesheet-ed on a rape complaint (S.375, IPC), the accused argued that the prosecutrix was not a woman because her sexual characteristics had not developed. Accordingly, he could not have raped her. Examine this report from the medical officer in which he found that the vagina and the secondary sexual characteristics of the prosecutrix had not fully developed:

“Examine [sic] patient is a transgender [sic] has undergone sex change surgery 3 years back around 2013 at Dr. Kalda Clinic. Second Sexual Character on developing stage, has not started menses. Axillary hair+, Vagina is incompletely formed. No sign of injury seen over the anal region or vaginal area. 2 slides prepared from the anal region area. From the above clinical finding about sexual intercourse cannot be told.” [para 7]

The prosecutrix had undergone SRS in 2013. The Supreme Court in 2014 had declared that all transgender persons had a fundamental right to their self identified gender and any insistence on SRS is both illegal and immoral (Directions 2 and 5). Therefore, a transgender person can self indentify as either a man, a woman or third gender (Direction 2). If SRS was not required then there was no reason to medically examine the prosecutrix as to her sex characteristics. Her self-determination as a woman should have been sufficient to place her in the category of “woman” for the purpose of the allegation of rape. Some transgender persons undergo the SRS and some do not. However, that is not a legal requirement to be recognized as either a transgender or a woman as per the NALSA judgment. Instead, this court erroneously relied on the exposition of J. Sikri in NALSA on the experience of SRS. In para 103 of NALSA, J. Sikri explained that SRS is not an overnight process. By this the judge only sought to explain the steps involved in a SRS operation—from the decision, to the hormone therapy and the psychiatric evaluation and then the operation. He did not wish to point out that even after the SRS, the sexual features do not develop overnight, and even if he did, the directions abovementioned given by the full court render inquiry into the state of sex characteristics irrelevant. Therefore, the court’s conclusion that the prosecutrix was not a woman is incorrect in law.

STATE OF DEVELOPMENT OF SEX ORGANS AND IMPLICATIONS OF SUCH INQUIRY: CREATION OF LEGAL SUBJECTS WHO CANNOT BE RAPED (REASON 2)

Reason 2 for the grant of bail stated that the vagina of the prosecutrix was not fully formed, implying that she could not be raped. The court stated: “…further considering the fact that her vagina is not fully developed and the secondary sexual characters are on developing stage, as case of the prosecutrix is falling under Section 375(a) of the Indian Penal Code… this Court is of the view that it is a fit case to release the applicant on bail.” [para 12]. 375(a) of the IPC states that, “a man is said to commit rape if he (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person…”

First, rape under 375(a) can be committed by insertion of penis into places other than the vagina as well: the mouth, the anus, the urethra. There was no reason therefore, for the court’s exclusive focus on vaginal penetration under the 375(a) charge. To be sure, the court did observe that there were no signs of anal injury.  Not only is this still an incomplete coverage of 375(a), lack of injury is not determinative of innocence in rape cases—especially ones of this sort. Irrespective, it was not lack of anal injury but absence of a fully developed vagina that featured in the list of reasons provided by the court for granting bail.

Second, 375(a) penalizes non consensual penetration into the vagina, and not non-consensual penetration into a medically correct vagina. Inquiry into the medical correctness and dimensions of the vagina not only misses the point of rape law which punishes “Offences Affecting the Human Body” [Chapter under which Rape Provisions are housed], such inquiries end up creating legal subjects who “cannot” be raped: post- SRS transgender women with incompletely formed vaginas, intersex women with ambiguous genatalia and biological women whose vaginas don’t fit the medical category, for example. For this prosecutrix such a determination has created this quandary: though the court is treating her as a woman because she has undergone the SRS, and the court refers to the prosecutrix with a feminine pronoun, it is implying that the prosecutrix cannot be raped because she does not have a fully formed vagina. At the same time, her SRS operation has taken her out of the category of a man and therefore S. 377, IPC is not attracted. Therefore, she may have been raped but accused, if found guilty, will neither be punished for rape (376, IPC) nor under 377, IPC. Finally, if courts are going to require a medically correct vagina standard to grant relief in rape cases, how will law address rape cases of transgender women who do not undergo SRS? One immediate answer is that such cases may be handled under 377 but this solution leaves the transgender woman divided against herself, a woman for all purposes, but a man for the purposes of rape law. Lawyers, judges, legislators and others in the business of law need to know more about how transgender persons understand their body before they can formulate satisfactory solutions for their criminal law needs.

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[1] Para 12.

[2] See Section 437 of the Code of Criminal Procedure, 1973: When Bail May be Taken in Case of Non-Bailable Offence.

[3] For a general understanding on the jurisprudence behind bail see K.N. Chandrashekharan Pillai, “Bail” in R.V. Kelkar’s Criminal Procedure (Eastern Book Company, 2014) 289-344.

[4] For a contrasting viewpoint, see Abhinav Sekhri, “Reversing the Presumption of Innocence- Part III” http://theproofofguilt.blogspot.co.uk/2015/05/reversing-presumption-of-innocence-part_9.html

[5] The key question to be answered in this situation is whether the prosecutrix consented to the sexual intercourse only because she believed the accused’s promise to marry to be true? Without expressing an opinion on whether this is a good test, I present some preliminary observations on how the Indian courts apply this test. The court applies the test in this fashion: 1. If there are other reasons which could have influenced her decision, the courts have not found sex based on broken promises to marry as rape. Other reasons include love between the parties, absence of evidence that the accused never intended to keep his promise to marry when he made it, prosecutrix’s consent despite knowledge of insurmountable caste differences etc. 2. There is no hierarchy of reasons– the prosecutrix may have loved the accused but consented to a sexual relationship only because he promised to marry her; the court does not go into this inquiry. 3. The court’s real test appears to be a search for a dispassionate (pun intended) yes in promise to marry cases which connects with how female sexuality is construed. The woman is construed as a passive recipient of sex and therefore any desire on her part to have sex which pre-dates the promise counts against her rape charge. Key cases on this point are: Uday v. State of Karnataka AIR 2003 SC 1639; Deelip Singh @ Dilip Kumar v. State of Bihar AIR 2005 SC 203; Jayanti Rani Panda v. State of West Bengal and Anr. 1984 CriLJ 535.

Curiously, presence of factors other than the promise to marry lead the court to conclude that the prosecutrix could not have really relied on the promise to marry before having sex; love, caste differences etc. weaken the authenticity of the promise. There is of course another way to read these factors which is this: could not the love, the desire to united over caste differences lead the prosecutrix to believe even more in the promise to marry? Not only does the court promote a cynical view of love and sex, it places the burden of this cynicism on the prosecutrix: the prosecutrix should have been aware that the promise to marry could not have been real owing to caste differences; the court doesn’t conclude or raise a presumption that the accused never intended to marry, owing to insurmountable caste differences, when he promised to marry [see this claim esp. in light of how S.114A of the Indian Evidence Act, 1872 shifts the burden of proof on the accused and presumes lack of consent when the prosecutrix in a rape trial alleges lack of consent.]

My thanks to Arushi Garg for pointing me in the direction of the key cases on this topic, and also for the enlightening discussion on the theory and practice of cases concerning sex on a promise to marry. Arushi is a doctoral student in the law department at the University of Oxford. Her research focuses on conviction rates in rape cases in Delhi.