Former Law Commission chairman Justice AP Shah on Saturday criticised the Supreme Court for reversing a Delhi high court verdict de-criminalising homosexuality in India, saying the top court turned away from decades of its own history of protecting individual freedoms and rights of minorities.
“Instead of a progressive, rights-enhancing decision, the Supreme Court exercised judicial restraint and relied on the presumption of constitutionality. This came as a particular surprise, since the Union of India had not filed an appeal against the Delhi high court’s verdict in the Naz Foundation case”, said justice Shah who had authored the HC verdict as its chief justice.
Delivering the ninth Justice VM Tarkunde Memorial Lecture on “Section 377: From Hostility and Hatred to Courage and Freedom”, Justice Shah said for many decades the LGBT community had been stigmatised and persecuted in India.
He, however, welcomed the recent statement of Prime Minister Narendra Modi that the society needed to change its outlook towards transgender community.
Welcoming open criticism of the SC verdict on Section 377 of the IPC by finance minister Arun Jaitley and Congress leader P Chidambaram, he wondered if political parties were ready to bite the bullet on the issue.
While the SC is seized of a curative petition on the issue, Justice Shah said, “Changing public notions around homosexuality may well eventually lead to a change in the law.”
The lecture was attended by many judges, senior advocates including Soli Sorabjee and Ram Jethmalani, veteran journalist Kuldeep Nayyar, author Vikram Seth and a large number of activists. Sorabjee described Justice Shah’s lecture as “brilliant and scholarly”.
Section 377 of the Indian Penal Code criminalises “carnal intercourse against the order of nature”. The archaic law criminalises even consensual sexual acts between adults in private and prescribes imprisonment for life or imprisonment which may extend to 10 years and fine.
Justice Shah - a known votary of rights of sexual minorities welcomed the Supreme Court’s 2014 decision in NALSA v. Union of India on the rights of transgenders. “The Court affirmed that transgenders had the right to self-identification of their gender as male, female or third gender, as part of their fundamental rights. Most significantly, the Court declared that no one could be discriminated on grounds of “sexual orientation”,” he noted.
He said the deference shown to the colonial-era law, even when it ran contrary to our Constitutional values, and our fundamental rights, seemed incongruous.