Pol climate favours decriminalising homosexuality:Justice Shah

Former Chief Justice of Delhi High Court A P Shah, who decriminalized homosexuality, today said the Supreme Court made a "mistake" by overturning his verdict and the political climate now favours a re-thinking on the controversial colonial penal provision.
The judge, who wrote the judgment for the bench also comprising Justice S Muralidhar, was critical of the Supreme Court verdict saying it made a "mistake" and failed to correct in the review petition and now has an opportunity to rectify it in the pending curative petition to decriminalise section 377 of IPC which prohibits consensual sexual intercourse between same sex people.

He said that with a single stroke of pen the apex court "criminalised the existence of a class of people who are now condemned to live in shadow of fear".
"Today, the Supreme Court has the opportunity (while hearing curative petition) to correct the mistake it made... and redeem its glorious status as protector of fundamental rights," he said
Senior BJP leader Arun Jaitley and Congress' P Chidambaram, both of them leading lawyers, had recently criticised the apex court verdict retaining section 377 of IPC a criminal offence.
"The political climate is not averse to the idea of change as many think it to be. When Naaz foundation judgment came, the then Law Minister Veerappa Moily favoured striking down section 377 of IPC although he later called for a consensus on the issue.

"Lately, Arun Jaitley of BJP and P Chidambaram of Congress publicly criticised the Supreme Court judgment and said that laws criminalising homosexuality need a re-think. Congress, Left and AAP have taken a clear stand on section 377," Justice Shah, who retired in 2010, said.

Justice Shah held that the apex court was also wrong that the LGBT community was minuscule fraction of the population.
"There are studies that in a human population, the conservative number of LGBT persons is about 2 per cent.
"If you put in correct perspective, this is greater in number than Sikhs, Jains, Buddhists, Parsis. How do you decide who is part of minuscule minority that is worthy of being protected?," he said while speaking at the ninth Justice V M Tarkunde Memorial Lecture here.

Justice Shah said the question to be decided before the high court was why should someone's ability and dignity be judged by his/her sexual preference.
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Justice Shah, who was categorical in coming out in support of LGBT community, said this discrimination cannot be allowed to continue and added that he was at the lecture to speak against this "wrong."
Highlighting the impact of the HC judgment, he said there was visible change after the verdict as the middle class has now stopped joking about homosexuals and gay pride parades now take place regularly.
He added that the SC in its judgment observed that parliament was free to repeal section 377 but till now parliament has not even tried to repeal the provision.

"With no political expediency to act, parliament has not even tried to repeal the Victorian era section 377... When there is no attempt or possibility of registering solutions, the responsibility shifts to judiciary to step in and safeguard the minorities," he said.
He said that due to the fear of prosecution, there is hesitation in coming out as gay and lesbian persons.
He also referred to Justice M B Lokur's remarks in recent NJAC judgment in which he has spoken about how the present political executive would not permit appointment of a gay judge in the benches of high courts or Supreme Court.

"The Supreme Court in Suresh Kumar Koushal and another v Naaz Foundation seems to have ignored all the social and political history, unwarranted and unprovoked cultural prejudices and instead its judgment is based on a statement that respondents miserably failed to furnish the particulars of the incidents of the discriminatory attitude exhibited by the state agencies towards sexual minorities," he said.
He also referred to the 2015 verdict of a US court which held same sex marriage valid and said "this decision has some bearing on my judgment.