The Supreme Court’s referring the curative petition seeking “curing of the defects in the 2013 judgment” in the Suresh Kumar Koushal v Naz Foundation case, which had upheld the validity of section 377 of the Indian Penal Code which criminalises homosexual intercourse, to a constitutional bench has come as a bit of a pleasant surprise to most observers.
The bench of three judges comprising the Chief Justice of India, TS Thakur, and Justices AR Dave and JS Khehar have decided to refer the curative petition and the main questions of the correctness of the Koushal judgment to a Constitution Bench composed of at least five judges of the Supreme Court.
While the detailed order of reference is still awaited and hasn’t yet been made public by the Supreme Court on its website, reports seem to agree that the Constitution Bench of the Supreme Court will not be limiting itself to just the question of whether or not the Koushal judgment should be reconsidered, but will also be reconsidering the correctness of the Koushal judgment itself.
A Constitution Bench is so called because clause (3) of Article 145 of the Constitution of India mandates that where a substantial question of law as to the interpretation of the Constitution arises in a case, such case should be heard and decided by a bench of no fewer than five judges. While the Supreme Court scrupulously followed this clause in the early years, given the enormous increase in workload over the decades since, it is common to find benches of three and two judges deciding cases of constitutional interpretation. With the pressure of backlog, and the time it takes to hear and decide important constitutional questions, it is no surprise that Chief Justices of India, who have the sole discretion to constitute such benches, have put such cases on the backburner.
However, the trend seems to be changing. Most recently Chief Justice Lodha and now under Chief Justice Thakur have set up Constitution Benches more frequently than in the recent past. Indeed, Monday, February 1, saw the rare sight of three simultaneous Constitution Benches conducting hearings in the Supreme Court.
The Naz Foundation curative will not be the first to be heard by a five judge bench of the Supreme Court. The curative petition filed by the Central Bureau of Investigation against Keshub Mahindra in the Bhopal Gas Tragedy case was heard and decided by a bench of five judges of the Supreme Court, though strictly speaking, there was no question of constitutional interpretation in that case.
Nevertheless, it is beyond doubt that the constitutional validity of Section 377 of the IPC raises important questions of constitutional importance. The judgment of the Delhi High Court in Naz Foundation is very elaborately reasoned and interprets the term “sex” as it appears in Article 15 of the Constitution prohibiting discrimination, to include “sexual orientation” thereby reading down Section 377 to not apply to consensual sex between adults. The judgment also bases its conclusion on the principles of human dignity and privacy as they have been read into the Constitution of India by previous Supreme Court judgments. All of these are important issues that concern the interpretation of the Constitution and it begs the question as to why this case wasn’t heard by a Constitution Bench in the first instance instead of the two judge bench which decided the Koushal case.
Nevertheless, the fact that the Supreme Court referred the case to the Constitution Bench suggests that the Supreme Court does indeed have second thoughts about the correctness of its judgment in Koushal’s case. When the Chief Justice will constitute a bench of five judges to hear this case is anyone’s guess, but if recent trends are anything to go by, CJI Thakur can be expected to set up the bench and have this matter heard within this year. Reports suggest that he assured the counsel in the hearing on Tuesday that the Constitution Bench for this would be set up “shortly”.
Of course there’s no guarantee that the Supreme Court will necessarily set aside its earlier judgment and uphold the Delhi High Court’s reading down of Section 377. Much will depend on the composition of the Constitution Bench and the prism with which the judges on the bench choose to view the constitutional issues presented before them. It is entirely possible that the judges may still take a very narrow view and conclude that it is not a fit case to exercise curative powers, without going into the merits of the challenge to Koushal’s case. Yet, having come this far, especially with the latest order of reference, one hopes that the judges will be persuaded to take a deep and probing look into one of the most controversial judgments of the Supreme Court.