Monday, January 27, 2014

Koushal Review Set for January 28th

The Supreme Court's website lists the review petition for Koushal as coming up for consideration on January 28th. The Orinam blog provides a nice primer on how the review process works in general, and for Koushal in particular. As it points out we won't know for certain when Koushal will be reviewed until the night before it is - nor will we know if it will be reviewed behind closed doors (which is the norm) or in an open hearing.

The Koushal judgment has received widespread criticism since it was handed down in December both for reinstating India's anti-sodomy law (Section 377 of the IPC) and for the particularly poor reasoning and quality of the judgment. Leila Seth has this particularly compelling and poignant critique of the Supreme Court's judgment in yesterday's Times of India.

Under the Supreme Court's Rules review petitions are heard by the same judges who heard the original petition (in this case Justice Singhvi has retired, so the review petition will be heard by Justice S.J. Mukhpadhaya and one other judge). Review petitions rarely succeed, in part because they are heard by the same judges who decided the original case. In this case there is a new judge who will join Justice Mukhopadhaya in hearing the review petition. Also, the Union of India, which had decided not to appeal the High Court judgment striking down Section 377 took the rare step of intervening to also file a review petition. Given this unusual combination and the public criticism of the judgment perhaps there is more reason than normal to be optimistic about the chances of success of a review petition in this case, but such chances are still highly uncertain. The best possible outcome for those seeking a review would be a stay on the Supreme Court's December judgment (thus reverting the law back to the Delhi High Court judgment that had struck down 377) and a referral to a larger bench. Likely it would take some time for such a larger bench to be constituted.

If the review petition is not successful there is no possibility of further review of the same case. Instead, those looking to overturn Koushal will have to turn elsewhere. On the judicial front one obvious route would be to seek a new petitioner who has been harmed by 377 and take the challenge to court again, trying to attack 377 from a different angle. Alternatively, Sudhir Krishnaswamy and Shishir Bail have a compelling piece in Legally India arguing that a Presidential reference should be made concerning Section 377. This strategy would have the benefit of ensuring the matter would be heard by five judges. Also, it might best fit the government's political mood. Given looming elections and a cramped parliamentary calendar it seems like the current government has little appetite to use its political capital to amend section 377 legislatively. However, it is clear that many in the current government disagreed with the Supreme Court's judgment in Koushal. The presidential reference option would allow the government to force the issue on the Court again - basically showing it was doing something about the Supreme Court's judgment without actually finding a legislative solution (which would be the simplest and most satisfactory remedy).

For now though, all eyes are on the review petition.

[Update (Jan. 28, 2014): The review petition was dismissed by the Supreme Court today. I should have mentioned that the petitioners can still file a curiative petition (as laid down in Rupa Ashok Hurrah vs. Ashok Hurrah 2002 (4) SCC 388). The success of such curiative petitions are rare. In 2011, 3 review petitions were accepted - a success rate of about .12% by my calculations. 0 curiative petitions were accepted in 2011. The low success rate for curiative petitions is in large part because one has to show amongst other things that "in the proceedings a learned Judge failed to disclose his connection with the subject-matter or the parties giving scope for an apprehension of bias ..." Another way that the Koushal judgment could be reconsidered is if another judgment given by the Supreme Court seems to directly conflict with it. For example, the Supreme Court is currently hearing a case on the rights of Transgender persons. If the decision in this case conflicts with the decision in Koushal or the judges in this matter think Koushal as it impacts their case was decided wrongly than the issue can be referred to the CJI who can create a larger bench. Finally, in response to Krishnaswamy and Bail's piece in Legally India there is this response by Alok Prasanna Kumar today also in Legally India criticizing the idea of asking for a Presidential Reference for Koushal.]
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