How to move forward in lesbian and gay rights case

By Shreya Gupta, Bharucha & Partners
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Arecent judgment of the Supreme Court of India has led to an uproar among human rights activists. A large section of the society believes that the overturning of Delhi High Court’s decision in the case of Suresh Kumar Kaushal & Another v NAZ Foundation & Ors violates the fundamental rights of lesbian, gay, bisexual and transgender (LGBT) persons, guaranteed under articles 14, 15, 19 and 21 of the constitution of India.

Court’s findings

The two-judge bench comprising Justice Singhvi and Justice Mukhopadhaya upheld the constitutional validity of section 377 of the Indian Penal Code, which criminalizes “unnatural” sexual acts. In pronouncing its judgment, the court observed that the number of LGBT persons in India is insignificant and does not warrant the designation of a “class” for the purposes of article 14 of the constitution and consequently could not be subject to discrimination.

Shreya Gupta
Shreya Gupta

The court said that Delhi High Court was too reliant on foreign decisions, which cannot be blindly used as aids to interpret Indian laws, as to do that would not appeal to the Indian sense and sensibility.

The judgment was also founded on strict adherence to the theory of separation of powers. The Supreme Court held that the appropriate forum to debate issues such as the efficacy and validity of a law was the legislature and not before the courts. The responsibility of looking into the constitutional validity of section 377 was, therefore, left to the legislature.

Whatever the merits (or demerits) of the Supreme Court’s decision, it is clear that it will be challenged.

Challenge ahead

The NAZ Foundation has evinced its intention to appeal the judgment and many politicians have voiced their disapproval, with a promise of enacting protective laws to overturn the law currently in force, being the law laid down by the Supreme Court in its judgment. The question that therefore arises is: What judicial remedies are available to the NAZ Foundation?

The most obvious remedy that would come to mind is filing a writ petition under article 32 of the constitution, the ultimate guarantor and protector of fundamental rights. However, it is a settled position of law that the remedy under article 32 cannot be obtained through an appeal. Further, a constitutional bench of the Supreme Court, in Rupa Ashok Hurra v Ashok Hurra, has enunciated that article 32 cannot be used to assail the correctness of a decision rendered by the Supreme Court.

Recourse available

The Constituent Assembly, however, took care to ensure that aggrieved litigants were not left without any recourse. The Supreme Court was given inherent jurisdiction to entertain a “review” petition under article 137 of the constitution and to reconsider and reverse its own decision where there are compelling and substantial reasons to warrant this course.

As has been adumbrated by the Supreme Court in Suthenthiraraja v State a review petition would be maintainable so long as there has been a “miscarriage of justice”. The court further stated that the phrase “miscarriage of justice” was all embracing.

The inherent power of review would, in any event, be available where there has been deprivation of fundamental rights of a citizen or any legal rights of the petitioner. Such a petition would ordinarily have to be heard by the same bench which pronounced the judgment to be reviewed. The possibility of filing a “curative petition” provides a further safeguard in case a review petition has been erroneously dismissed, “to prevent abuse of [the court’s] process and to cure a gross miscarriage of justice”, as stated in the Rupa Ashok Hurra case.

Five-judge bench

It may also be open to the NAZ Foundation to seek recourse under article 145(3) of the constitution and make an application to the chief justice of the Supreme Court to constitute a bench comprising at least five judges to hear the case and examine the correctness of the decision of the smaller bench.

Article 145(3) expressly provides that in any case which involves a substantial question of interpretation of the constitution (in this case, whether section 377 of the Indian Penal Code flagrantly violates the fundamental rights of LGBT persons), a bench of no less than five judges must be constituted, unless the proposition has already been decided by a constitutional bench of the Supreme Court. This would not only provide clarity and objectivity on the legal position but would also protect against the predilections of individual judges.

Whichever mode is adopted by the litigants, we hope that the matter is taken forward and the issue put to rest once and for all.

Shreya Gupta is an associate at Bharucha & Partners.

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