New Delhi: AP Shah, Former Chief Justice of Delhi High Court, who had decriminalized homosexuality, said on Saturday that the Supreme Court overturning his verdict was a “mistake” and added that the current political climate was favorable for a rreconsiderationof the issue.
Justice Shah said that the pending curative petition to decriminalize Section 377 of the Indian Penal Code (IPC) would give the SC a chance to rectify its “mistake” which it had failed to correct in the review petition.
Section 377 of the IPC prohibits consensual sexual intercourse between people of the same sex.
The judge criticized the top court for its decision to “criminalize 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.
Recently, the SC decision to retain Section 377 also came under fire from senior BJP leader Arun Jaitley and P Chidambaram of Congress, who are both leading lawyers.
“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 favored striking down section 377 of IPC although he later called for a consensus on the issue,” stated Justice Shah.
“Lately, Arun Jaitley of BJP and P Chidambaram of Congress publicly criticized the Supreme Court judgment and said that laws criminalizing homosexuality need a re-think. Congress, Left and AAP have taken a clear stand on section 377,” added Justice Shah, who retired in 2010.
Shah added that the notion of the LGBT population being a minority is also a misconception of the court.
“There are studies that in a human population, the conservative number of Lesbian Gay Bisexual Transgender 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 the minuscule minority that is worthy of being protected?” he said while speaking at the ninth Justice VM Tarkunde Memorial Lecture.
According to Justice Shah, the main question to be placed in front of the court was whether a person’s dignity and ability should be judged on the basis of his/her sexual preference.
“Why should someone’s fundamental life choices conditioned by other people’s prejudice, ignorance, and stigmatization? Why should a sizable population of Indians be treated as criminals simply for accepting who they are,” he said.
The judge also added that policymakers in India believed that the concept of homosexuality was imported from the West and doesn’t have any roots in India.