Taking Sexuality Seriously: The Supreme Court and the Koushal Case – Part I

On Wednesday morning, Justice Ganpat Singh Singhvi donned his black robes one last time. The judge with a smiling face had a busy day ahead of him. After hearing several cases, he would attend a late-afternoon retirement party on the Supreme Court’s lawns. But Singhvi’s first appointment was in the Chief Justice’s Court. Retiring judges spend their final day in that majestic chamber. There, a large crowd eagerly awaited Singhvi. They had gathered to hear his widely anticipated last judgment.

The underlying case involved Section 377 of the Indian Penal Code. That section forbids “carnal intercourse” against the order of nature. The penalty can extend to life imprisonment. In 2009, the Delhi High Court declared this section unconstitutional. It held that the provision impermissibly restricted sexual relations among consenting same-sex adults.

Suresh Kumar Koushal challenged the high court’s ruling in the Supreme Court. Koushal describes himself as a “socially-spirited” individual. He practices astrology in retirement. A ragtag band of religious groups and individuals joined Koushal in his appeal. They shared no particular religious or ideological creed. They came together with the singular belief that homosexuality is an abomination. Koushal & Co.’s appeals were assigned to Singhvi and his colleague, S.J. Mukhopadhaya. Oral arguments in the case concluded in April 2012. Yet, Singhvi waited until his very last day as a judge to announce his verdict.

At 10.30 a.m., Singhvi took his seat beside the Chief Justice. Mukhopadhaya was busy elsewhere. So, it was left to Singhvi to do the honours. Looking over the crowd, Singhvi cleared his voice. The high court’s decision, he announced, was legally unsustainable. Section 377 was perfectly consistent with the Constitution. It must remain on the statute book. He gratuitously added that Parliament could simply delete the section if it so wanted.

The backlash began almost immediately. Social media lit up with rage. The Supreme Court bar condemned the decision. Television channels featured non-stop coverage against the judgment. Newspaper op-eds seemed uniformly critical. And there was also considerable disquiet across the political spectrum. The Finance Minister’s criticism of the ruling was particularly hard hitting. Sonia Gandhi, on whom Singhvi had lavished praise, offered a sharp critique. Even Singhvi’s former intern disapproved of his boss’s reasoning.  

Sheltered by the Court’s insular corridors, Singhvi did not anticipate this furious reaction. An appellate lawyer by training, Singhvi has been a judge for 23 years. He was first appointed to the Rajasthan bench. In 1994, he was transferred to the Punjab and Haryana High Court. His early tenure in Chandigarh was largely uneventful. Yet, as he climbed the seniority ladder, Singhvi’s fortunes began to change. In April 2004, Singhvi reportedly instigated his brother justices to abstain from work en-masse. They were protesting against their high court’s chief justice. In hindsight, the provocation seems so absurdly trivial. The chief justice had reportedly questioned whether sitting judges should accept free memberships in a local golf club. Singhvi and his colleagues felt that the chief justice had exceeded his authority. They staged an unprecedented judicial “strike.”

Neither President Abdul Kalam nor the Supreme Court seemed amused by these developments. Singhvi’s role seemed particularly bizarre because he had previously held that judicial strikes were illegal. As public criticism mounted, Chief Justice Khare summoned Singhvi and reprimanded him. Singhvi paid dearly for his role in the golf-club affair. It almost certainly delayed his appointment as a high court chief justice. It held up his promotion to the Supreme Court. And it probably cost him the chance to be Chief Justice of India.

Despite his late arrival, Singhvi’s Supreme Court tenure lasted six years. During this time, he managed a docket with several important matters. Until Koushal, his most notable decision was the 2-G Licenses Case. In a sweeping order, Singhvi and his now disgraced colleague, A.K. Ganguly, cancelled 122 telecom licenses as they were improperly awarded. That order drew the government’s ire and caused considerable market uncertainty. But the judgment cast Singhvi as a resolute crusader against government corruption. He was hailed as the aam aadmi’s judge. Emboldened, Singhvi went on to deliver other important opinions. These include the Bhullar Case in which he held that delays don’t mitigate the death penalty in terrorism cases. Singhvi was rebuked for departing from the Court’s previous capital-punishment jurisprudence. But his stature remained relatively unscathed. As Singhvi prepared to retire, one commentator even suggested that he would go down as among the Court’s greatest justices.

After Koushal that premature assessment seems wildly off the mark. Singhvi
was ambushed at his own retirement party by a hostile gaggle of television cameras. Reporters demanded to know why he had reversed the high court. The justice bravely tried to maintain his cool. Running his hand over a female reporter’s head, Singhvi suggested that she read his judgment. That suggestion did little to quell the outrage. No recent judge’s stock has fallen so fast and so suddenly.

As many commentators have pointed out, Koushal is bad in so many ways. Where does one even begin? The oral arguments seem like a good place. The Supreme Court does not typically provide transcripts of its hearings. Luckily for us, there are detailed, but unofficial, records available. They reveal that Singhvi and Mukhopadhaya seemed rather unprepared for the case. The judges asked many questions. But they failed to systematically sort through the issues.

During the the hearings, both judges volunteered some really quaint and antiquarian gems. Singhvi boasted that he had never met a gay person in his life. (A similar comment later haunted U.S. Supreme Court Justice Powell). Mukhopadhaya openly wondered what a bisexual was. He also insisted that transgendered persons aren’t really homosexuals. Singhvi tried to portray a landmark South African Constitutional Court ruling as the work of a homosexual judge. Worse, the bench freely invoked deeply offensive stereotypes without any apology or reservation. Mukhopadhaya claimed that hijras are always “recipients.” Kothis, he volunteered, have a “feministic way of talking.” Neither judge grasped why sexual orientation leads to discrimination, pain, and suffering. What’s the big deal, the judges appeared to ask repeatedly. The Court utterly failed to take sexuality seriously.

Jurisdiction ranks among Koushal’s many legal blunders. As I’ve previously argued,
the Court did not seriously inquire whether Koushal and his cohorts had
adequate standing to maintain their appeals. The judges failed to meaningfully
examine what harm Koushal suffered. How was he or the other appellants affected
by the high court’s ruling? 

The Koushal appeals were filed under Article 136 of the Constitution. That provision authorizes the Court to grant “special leave” in appeals from any lower court’s decision. It is true that Article 136 offers the Court extraordinarily wide jurisdiction. But this jurisdiction cannot be automatically invoked. Among other things, Court needs to be satisfied that appellants are properly before it. As Justice Krishna Iyer colourfully cautioned: “though parties promiscuously provoke this jurisdiction, the court parsimoniously invokes the power.” To be sure, Article 136 is not a regular appellate provision. It only confers residual jurisdiction. The Supreme Court may accept an appeal against a lower court’s decision only if its interference is warranted. Koushal and the other appellants do not explain why the Court’s intervention was necessary. How were their interests affected?

It’s important to remember that many appellants, including Koushal, were not parties to the high court proceedings. When asked about their standing, they claimed that homosexuality hurts their religious sentiments. Others argued that homosexuality was against public morality. It is difficult to see how these vague assertions can provide a valid basis for their appeals. Even so, Singhvi undiscerningly granted leave to every single appellant. He did so in full knowledge that none of the primary parties before the high court wanted to appeal (the Union of India, the Delhi government, and the Naz Foundation (which was the original petitioner)). Thus, Koushal violates the Court’s settled law and practice.

Rather than appraise the appellants’ standing, Singhvi seemed strangely focused on Naz Foundation. Particularly galling is his assertion that Naz Foundation’s case lacked a “factual foundation.” In other words, the high court should have simply dismissed the petition for want of evidence. Singhvi mentions two prior cases to support this reasoning. But, as Carl Gardner explains, those cases aren’t particularly helpful to him. Both stand for the basic proposition that a party must submit adequate pleadings in support its case. Naz Foundation easily met that standard. It submitted a mountain of written submissions and supporting materials. If Singhvi had applied the same standard to the appellants, they would have been denied a hearing. Their written submissions miserably fail to offer a compelling set of reasons for why their appeals matter. 

I’m afraid I cannot find a single case where the Court has acted in such an extraordinary manner. To my knowledge, the Court has never before accepted an appeal from an uninterested third party in lieu of the principal parties before a lower court. To use a cricket analogy, the two opposing teams left the stadium after a full and fair game. They’ve accepted the umpire’s rulings and the final result. It seems inconceivable that a spectator can subsequently recall both teams and demand a re-match involving him. 

Under our Constitution, it is the State’s primary responsibility to enforce existing laws. It is also the State’s sovereign prerogative to defend laws that are challenged before courts. It is extremely rare for a government — whether central or state — to waive that prerogative when faced with an adverse high court decision. Anuj Garg, which Singhvi cites approvingly, was one such instance. In that case, the high court struck down a ban enacted in 1914 on female bartenders. The Delhi government chose not to appeal the high court’s decision.
But the petitioner chose to do so, as it was not fully satisfied with the decision. The Delhi government was eventually impleaded as a respondent in the appellate proceedings. Once this happened, the government felt it really ought to defend the bartender restrictions. And so it did.

In Koushal, the Central Government could have adopted the same approach as the Delhi government in Anuj Garg. It could have defended Section 377 even though it was not the appellant. But the Central Government decided against that strategy. That’s because a group of senior ministers accepted the high court’s ruling. They felt that there was no need for further litigation. The government would abstain from asking the Court to revive the statute. The government even opposed a stay of the high court’s ruling while the appeals were pending before the Supreme Court.

The Attorney General explained all this to the Court in no uncertain terms.  But none of it had any impact on Justice Singhvi. The judge seemed untroubled that a sovereign government prerogative was, in effect, being outsourced to third parties. Those parties had established neither their stakes nor their competence to defend Section 377. Yet, largely relying on their arguments, the Court reinstated a law that the government itself believed was anachronistic. In sum, these jurisdictional dimensions offer a compelling basis for the Court to promptly review or “cure” Koushal.

Part II follows here.

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  • Nicely put!

    As a side, would the decision in Kusum Ingots (AIR 2004 SC 2321) also close another avenue for Koushal et al, in that the enactment of a legislation (or conversely, in this case, a HC judgment saying that a part of a legislation is unconstitutional) by itself is not a cause of action to approach under 226 (or here, 136)?

  • 1. This is not the first judgment where judiciary has shown self-restraint.
    2. same sex marriage and carnal intercourse is a socio-legal issue like Euthanasia, judiciary always has to see the social fabric of India.
    3. How can the state allow carnal intercourse. It is unnatural as the human body does not support it. The lubrication mechanism of the human body is clear example of that. (It also leads to cancer and many STDs). If still the citizens demand such a freedom as a matter of right, then on that logic taking drugs is also correct, suicide is also correct. The state cannot allow these freedoms because it harms the citizens themselves. (Julius Stone).
    4. And why criticize the judge just because he is retiring? He might be old school, but he is qualified to do his job. The judgment is a reasoned order. It is not as lame as saying – i dismiss the appeal because its bad.
    5. on Art 136- we all know the amount of powers vested with the SC to permit standing of a party. Although it could be one of the criticisms, it is not fatal to the decision. It is constitutionally valid.
    6. Justice Singhvi might be hated by many people, but he has laudatory judgments to his credit. Your blog oozes a lot of ridicule for the judge may be because you highly support the issue. Being a law student we should be dispassionate and avoid personal comments on judges. At least he is not going berserk like Justice Katju.