SC hearing a curative petition on Section 377 is a welcome sign of its willingness to review its verdict.
The Supreme Court’s decision to hear arguments on the curative petition filed to “rectify” its Section 377 verdict sends out an important and welcome signal. In December 2013, it upheld the constitutionality of Section 377 of the IPC in Suresh Kumar Koushal & Anr vs Naz Foundation & Ors. Consequently, the Delhi High Court verdict of 2009 that read down the provision and decriminalised homosexuality stood reversed. The curative petition route now offers the SC an opportunity to set right its shocking verdict.
A curative is usually considered by the three seniormost judges of the SC, as it was in this case, and their willingness to hear it in open court indicates serious deliberation on the issue at the highest levels of the judiciary. After the hearing is completed, the court will decide whether the petition is to be admitted and the case heard afresh by a separate bench. The power of the SC to correct its own erroneous verdicts stems from its “plenary powers” under Article 142 of the Constitution — to “do complete justice in any cause or matter pending before it”.
For good reason, the court has kept the bar high for the admission of a curative, which may be filed after the dismissal of a review petition. It is not a legal instrument or appeal of “last resort”. The SC treats curative petitions as a “rarity” and usually admits them only in the face of apparent bias or violation of principles of natural justice. In this case, the SC would be eminently justified if it were to admit such a petition. The judgment in Suresh Kumar Koushal left the amendment of Section 377 to Parliament — an act of abdication by the court which must take the lead in upholding minority rights. The court also did not address the legal arguments by the LGBT community, such as the violation by Section 377 of Articles 15 (discrimination on the grounds of sex) and 21 (the right to life and personal liberty).
It is imperative that the court makes a sincere effort to address concerns raised by its verdict on Article 377. For guidance, it need only look back to its own sterling judgment earlier this month that granted legal recognition to transgenders. “Sometimes a change in the law precedes societal change and is even intended to stimulate it,” the court held. Whether it is through a curative petition or a fresh appeal to a larger constitutional bench, the onus of striking down Section 377 is on the apex court.