Guest post by Naren Pai.
“We have gone through the Review Petitions and the connected papers. We see no reason to interfere with the order impugned.” Through this crisp statement, the Apex Court on 28th January 2013 dismissed the review petitions filed on its 11th December 2013 ruling on Constitutional Validity of IPC 377 (Koushal V Naz) which set aside the 2009 judgement of Delhi HC reading down IPC 377. One of the common commentaries to the court’s dismissal of review petitions is that this is not a new precedent and it is the norm with review petitions. While this could be considered a plausible explanation for people thinking why such a grave injustice is done by the Apex Court by refusing to hear volumes of review pleas and personal accounts filed as affidavits, backed by FIRs, it cannot be an excuse for refusing to review a ‘flawed’ judgement.
That this case has come into public light like no other case has in the recent past, that the visual media has covered it so extensively, that there have been protests erupting against it both online and on-streets, that there have been editorial stands by leading dailies backing the set aside Delhi HC order, why is there at all such a norm that review petitions are almost always rejected without much thought and energy spent on them, is a pertinent question. The oral arguments began on February 2013 and ended on March 2013, the order was reserved till December 2013. One must wonder the judiciary’s selective agility while it dismissed volumes of petitions (8 review petitions, filed by Union of India, Naz foundation and other NGOs and individuals including noted mental health professionals, academicians, parents of LGBTQ identified people and celebrated filmmaker Shyam Benegal) in matter of hours.
Now it might be inappropriate for individuals unaware of judicial processes to question the manner in which the review petitions were handled, it is certainly not inappropriate to feel distressed over the whole situation. Since this was one of the biggest hopes after the December 11 ruling, the fact that this option now stands exhausted is terrifying to think of. A cursory reading of any of the review petitions will make it clear that the impugned judgement could be considered flawed in too many ways. Beginning with the fact that cases concerning Constitution’s interpretation in statutes or constitutionality of pre-constitutional laws need to be heard by a bench of minimum of five judges, to the fact that the petitioners who moved the SC after Delhi HC’s order have very vague standing to question the verdict, in that it hardly affects them and their undefined religious/cultural/social “morality” could be easily questioned. The reviews sought to point out “errors apparent on the face of record” in the judgement that took very less cognizance of detailed personal accounts, failures in establishing rationale behind the state’s need to prevent consensual “unnatural” sexual/carnal acts that have no defined and established harm to the society, etc.
What this review episode has done is, it has thinned our faith in judiciary and its role in playing a counter-majoritarian institution. It definitely raises far too many questions about the irrefutable absolution of judiciary itself. Why is a tool gifted by the Constitution to question the judgements on technical points alone treated as mere formality? Would the court really be setting a dangerous precedent if it allowed too many of its judgments to be reviewed and subsequently corrected? Is this not contrary to the ideology behind the recent SC judgement of commuting 15 death sentences? How is rejecting a review plea without looking into the merits of it different from sitting over a clemency plea for ages thereby raising hopes of individuals? Why is the court selectively moved by the plight of individuals whom the ruling actually affects but considers irrelevant third parties’ moving the court appropriate? Can anybody claiming to represent the moral standing of society decide and dictate your personal morality despite it being well within constitutional morality is the real Koushal conundrum. The highest court by upholding this right of third party individuals to base a personal identity, expression and assertion of it on a perpetually evolving notion of morality and in addition criminalizing this self-expression sets a dangerous precedent; one far more dangerous than allowing a lot of reviews (read pointing fingers) on the court’s judgements would.
While corruption seems to be the mood of coming assembly elections, it might not be so hard to describe this country’s system as one that makes you to run from pillar to post to avail your rightful piece of document-a state sanction. The Koushal ruling just does this to a million individuals who identify themselves as LGBTQ (lesbian, gay, bisexual, transgender and queer) and family and friends of LGBTQ in a magnified level. In addition, the court demands an absolute submission to this ruling, till a house constituted by the majorities take out time to talk about the rights of minorities (in ascending order of their minisculity). The repetition that IPC 377 does not affect just the LGBTQ community is required but not without noting that it aims to target and thereby marginalize this already ostracised community. The lack of empathy in ‘supporters of 377’ who subconsciously are driven by the fact that it, the IPC in question, does not affect them because they do not belong to the LGBTQ community is another dangerous trait that has gotten the Apex Court’s nod. Perhaps, if there is anything that can be defined as being against social, cultural, religious and even natural morality, it is this apathy for non-normative identities and assertions.
Editor’s note: This poem by Vikram Seth is apt here:
Through Love’s Great Power
Through love’s great power to be made whole
In mind and body, heart and soul –
Through freedom to find joy, or be
By dint of joy itself set free
In love and in companionhood:
This is the true and natural good.
To undo justice, and to seek
To quash the rights that guard the weak –
To sneer at love, and wrench apart
The bonds of body, mind and heart
With specious reason and no rhyme:
This is the true unnatural crime.