The Koushal judgment exhibited a total disconnect with the expanding horizon of human rights. The balance must be rapidly restored by institutional action of the Supreme Court

The human rights of LGBTQ (Lesbian, Gay, Bisexual, Transgender, and Queer) people have reached centre stage. Curative petitions have been referred to a Constitution Bench with observations by Chief Justice of India (CJI) T.S. Thakur that “the issues sought to be raised are of considerable importance and public interest …”.

When Michael Kirby, a distinguished former Judge of the High Court of Australia and a former President of the International Commission of Jurists, delivered the 2013 Tagore Law Lectures, his theme was ‘Sexual Orientation and Gender Identity — a new province of law for India’. In 1999, Justice Kirby had publicly shared with the world that he was homosexual.

Since the early 1990s, the non-profit Lawyers Collective led by Anand Grover (the lead counsel in the Naz Foundation case) has been in the vanguard of asserting, upholding and enlarging the rights of people living with and vulnerable to HIV, including homosexual men and transgender people.

Lawyers Collective invited Michael Kirby and Edwin Cameron (then in the Court of Appeal and now a Judge of the South African Constitutional Court) to conduct a series of judicial workshops on HIV/AIDS and related issues in the 1990s and 2000s. One of these workshops was inaugurated by former CJI J.S. Verma (then Chairperson of the National Human Rights Commission). Justice Cameron publicly revealed that he was himself both homosexual and HIV-positive. Justice Kirby describes the event:

“The effect on the audience was electric. His courage and dignity attracted respect. At the end of the session, Justice Verma publicly embraced Justice Cameron in a spontaneous gesture of solidarity and appreciation for his sharing his knowledge and experience of the epidemic with judicial colleagues in India.”

From symbolism to reality

This warm embrace changed from symbolism to reality when the Delhi High Court delivered its judgment on July 2, 2009 (Chief Justice A.P. Shah and Justice S. Muralidhar) decriminalising Section 377 in the case of consensual adult sex in private in the Naz Foundation case. LGBTQ people could breathe easier, free of the yoke of criminality. It opened up a new world of dignity, privacy and equality for them.

After enjoying this freedom for four years, five months and nine days, the Supreme Court judgment in Suresh Kumar Koushal (Justices G.S. Singhvi and S.J. Mukhopadhaya) came like ‘Rahu’ eclipsing their rights and reversing the Naz Foundation judgment. If Justice Kirby and Justice Cameron were to visit India after the Koushal judgment, would they be treated as honoured guests or as suspected felons?

In fairness to the reader I must disclose that I appeared in the review for Naz Foundation in the Delhi High Court, which was dismissed on November 3, 2004 on the ground of lack of cause of action (Chief Justice B.C. Patel and Justice Badar Ahmed). Later the Supreme Court set aside this order and remanded the matter. I also appeared in the preliminary stages in the Supreme Court in the Koushal case for some parents supporting Naz Foundation.

Second, I wrote an article in The Hindu on October 12, 2006 (“Human rights versus Section 377”) where I argued that homosexual practices between consenting adults in private should be decriminalised. My article adverted to the rich jurisprudence of the European Court of Human Rights (ECHR) liberating homosexuals and lesbians. It also referred to the U.S. Supreme Court decriminalising homosexual behaviour between consenting adults in private by invalidating a Texas law while reversing its earlier decision. Justice Clarence Thomas in the dissenting minority, despite upholding the law, characterised it as “uncommonly silly” and observed: “If I were a member of the Texas legislature, I would vote to repeal it.”

Third, I am the parent of a son who is homosexual.

The curative jurisdiction

It is an oft-repeated fallacy that the curative jurisdiction of the Indian Supreme Court can be invoked only when there is a denial of natural justice, or a person who is not a party is adversely affected, or a person who is a party is not served, or the judge is biased.

The leading judgment in Rupa Hurra holds: “The upshot of the discussion in our view is that this Court, to prevent abuse of its process and to cure a gross miscarriage of justice, may reconsider its judgments in exercise of its inherent power… It is neither advisable nor possible to enumerate all the grounds on which such a petition may be entertained.” In fact, a curative petition was allowed in National Commission for Women v. Bhaskar Lal Sharma , by a Bench of three judges observing, “Accordingly it was too early a stage, in our view, to take a stand as to whether any of the allegations had been established or not… Accordingly we allow the curative petitions… and recall the judgment”. This was in a case of miscarriage of justice where matrimonial disputes led to allegations of criminal conduct. Again, in Devender Pal Singh Bhullar’s case the curative petition was allowed, reducing the death penalty to life imprisonment on the ground that the earlier decision was per incuriam in the light of a subsequent decision. The other ground was the medical condition of Bhullar.

The Naz Foundation judgment declared that Section 377 in so far as it criminalised consensual adult sex in private violated Articles 21, 14 and 15 of the Constitution. It brought human rights of LGBTQ people in line with international legal norms applied in Europe, the U.S., Canada, South Africa, Australia, New Zealand, Hong Kong and Fiji among others.

The Universal Declaration of Human Rights adopted on December 10, 1948 states that “all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood”. December 10 is Human Rights Day. Ironically, on December 11, 2013, a liberating and internationally acclaimed judgment was reversed by the Supreme Court after over four years.

A subsequent judgment delivered by the Supreme Court (Justices K.S. Radhakrishnan and A.K. Sikri) on April 15, 2014 in National Legal Services Authority v. Union of India recognised a third gender status for transgender people and their fundamental rights as human beings. The underlying reasoning of this judgment is wholly inconsistent with the Koushal judgment and a Constitution Bench is essential for resolving this conflict.

The way forward

Miscarriage of justice is writ large in the Koushal judgment. LGBTQ people are treated as “unapprehended felons” — a great blow to the doctrine of equality, privacy and dignity embodied in liberal judgments of our Supreme Court under Articles 21, 14 and 15. It has caused enormous public mischief and, as represented by the Ministry of Health, contributes to gravely exacerbating the spread of HIV.

The Koushal judgment diminished the high standing of Indian human rights jurisprudence. It ignored a long line of the ECHR judgments. It exhibited a total disconnect with the expanding horizon of human rights. Without being pejorative, a queer judgment on queer people has muddied the waters of India’s human rights record.

The balance must be rapidly restored by institutional action of the Supreme Court. The reference of the curative petitions to a Constitution Bench is the first step in the right direction.

Lord Denning observed, “The doctrine of precedent does not compel your Lordships to follow the wrong path until you fall over the edge of the cliff. As soon as you find that you are going in the wrong direction you must at least be permitted to strike off in the right direction.” The pithy observation of Justice Robert H. Jackson of the U.S. Supreme Court is also worth recalling: “I see no reason why I should be consciously wrong today because I was unconsciously wrong yesterday.” To conclude with the admirable words of Justice V.R. Krishna Iyer: “Horace wrote: ‘But if Homer, who is good, nods for a moment, I think it a shame.’ We, in the Supreme Court, do ‘nod’ despite great care to be correct, and once a clear error in judgment is revealed, no sense of shame or infallibility complex obsesses us or dissuades this Court from the anxiety to be ultimately right, not consistently wrong.”

(Anil Divan is a senior advocate of the Supreme Court. Email: anildivan@gmail.com.)

The Naz Foundation judgment brought human rights of LGBTQ people

in line with international legal norms