When the Supreme Court (SC) said on Tuesday that the Section 377 case “involves very large and significant constitutional issues”, it implicitly acknowledged that the main case itself ought to have been heard by a Constitution bench. The language of Article 145(3) of the Constitution is clear: “The minimum number of judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution… shall be five.” This is often not done in the SC when cases involving the constitutional validity of laws come up for hearing, because the court feels it is only applying “well-settled principles”. But there was nothing “well-settled” in the jurisprudence of the SC at the time when it first took up the case.
In the context of the rights of the LGBTQ community, the questions which would arise are: One, whether “the order of nature” could form the basis of classification in the context of the right to equality under Article 14, especially when the entire debate was about whether there was such a universal order of nature; two, whether “sex”, in Articles 15(1) and (2), which prohibit discrimination on such grounds in addition to others by the state and private citizens respectively, includes sexual orientation; three, whether the right to freedom of expression under Article 19(1)(a) includes freedom of sexual expression; and four, whether sexual expression and privacy are part of an individual’s right to life and dignity under Article 21 of the Constitution. So the curative bench has done the right thing in sending the case to a Constitution bench.
Let us try to see the long road ahead. The Constitution bench will first have to decide on “admitting” the curative petition. Since the reference is to a Constitution bench, it does not necessarily have to be to the three seniormost judges and the judges who delivered the original judgment (who have now retired), which would be the normal procedure for curative petitions under the rules of the SC. Thus, the composition of the Constitution bench would be a matter of great interest.
There are already two Constitution benches regularly in session, and a third has been specially constituted to hear the Arunachal case. It is within the chief justice’s powers to decide whether he would like to assign it to one of these three benches or whether he wants to constitute an entirely new bench to hear this case. It would, however, be legitimate to expect that a case of such importance would be heard by a bench that has the chief justice presiding.
A curative petition is a remedy that the SC has itself given to the citizen, in acknowledgement of its own fallibility in Hurra. Of course, the court has cautioned us and itself that it is not intended to be easily resorted to. It is, however, clear that it is part of its inherent power and is intended, among other things, to cure a gross miscarriage of justice. The court has refrained from cataloguing the grounds on which it would entertain a curative petition. It has illustratively given two examples, namely, violation of principles of natural justice, and judicial bias. In two subsequent cases where the court allowed curative petitions, it did not stick to these two narrow grounds. In fact, the court corrected the obvious error in its earlier judgment in one case, and took into consideration the change in law on account of its own subsequent decision in the other.
And so there are several grounds on which the Constitution bench can recall its judgment in the 377 case: One, the very many legal errors in the reasoning in the original judgment (it is beyond the scope of this article, and very painful, to recount those errors); two, its complete incompatibility with its subsequent judgment in the transgender case; three, the failure to comply with the principles of natural justice. The court referred to the 2013 amendments to the IPC relating to sexual offences in the aftermath of the Delhi gangrape of December 16, 2012 and held that if Parliament had wanted, it could have revisited Section 377 as well when it was dealing with other sexual offences. The court said Parliament’s failure to do so would guide the court’s “understanding of character, scope, ambit and import” (sic). These amendments were passed long after the judgment was reserved in the case in March 2012, and if the court was taking these developments into account, the parties ought to have been given an opportunity to address arguments on this issue. If they had been given this opportunity, the lawyers representing the LGBTQ community would have been able to demonstrate that this was a complete non-sequitur.
(If Parliament is creating new offences or expanding the scope of existing offences, is it of any consequence that it was not deleting an existing offence and did it absolve the court of its duty to strike down an unconstitutional provision?) Four, the judgment was kept reserved for a period of 20 months after the conclusion of oral arguments. This can give rise to a legitimate grievance that the arguments could not have been fresh in the memory of the judges and so oral hearing was nothing but an empty formality. (If Order XX of the Code of Civil Procedure requires lesser judges to deliver judgments within 30 days, which can go up to a maximum of 60 days, shouldn’t superior courts deliver their judgments at least within six months?)
When the case comes up before the Constitution bench, the process of admitting the curative petition, recalling the judgment and hearing fresh arguments can be a continuous, seamless one. But the final outcome is going to depend entirely on the composition of the bench. After all, the transgender judgment became possible only because of a very fortunate combination of judges. Many moons ago, when Indira Gandhi superseded three judges, her close advisor Mohan Kumaramangalam was candid. He said that the social philosophy of judges mattered. The legal fraternity reacted piously, saying that judges can have only one philosophy, “the philosophy of the Constitution”. They completely missed the point. After all, doesn’t the judges’ social philosophy inform their understanding of the Constitution?