In May, 2008 when A.P. Shah took over as Chief Justice of the Delhi High Court, he came with a reputation. He had spent the larger part of his career in the Bombay High Court, where he had ruled that no political party had a legal right to call for a bandh because it violated the fundamental rights of Bombayites. He made the Shiv Sena and the BJP deposit fines of 20 lakh rupees each, and directed that the money be used to improve public services in the city. In another case, Justice Shah had prevented the Maharashtra government from suppressing Doordarshan’s telecast of a film about terrorism in Punjab and Ram Ke Naam, a documentary about the Ayodhya issue. At the Madras High Court, where Justice Shah had spent two years building up the infrastructure of justice delivery, he set up a child centre in the family court, mediation centres in the districts and decentralised training programmes for judges.
Standing at the back of Court No.1 in Delhi, while complaining about the heat and the parking, a small group of public interest lawyers noted his arrival with measured hope.
On Thursday the same lawyers, joined by many more, gave Justice Shah a standing ovation at his farewell. They came in such large numbers that even the cavernous Court No.1 could not contain them, and large screens were set up in the corridors and atrium to relay the event. In less than two years as Chief Justice of Delhi, Justice Shah’s name has become associated with a number of rulings that have changed the city, but many people will remember him for the judgment that decriminalised homosexuality.
When the Delhi High Court limited Section 377 to protect consensual gay sex, they did so on constitutional grounds so stringent that the Central government hesitated to appeal the order, despite having lost. It is true that historical events like this aren’t achieved by a single man alone. There was much serendipity behind the decision, the breadth and form of which hadn’t even been expected by optimistic queer activists. To begin with, next to Justice Shah sat Justice Dr. S. Muralidhar, a man with a long experience of human rights jurisprudence and the criminal law. For once, the weight of legal argument and research was on the side of the marginalised. The lawyers arguing for decriminalisation were Anand Grover, an experienced human rights lawyer and the dynamic, young Senior Counsel Shyam Divan. Divan also brought to the case the personal education and commitment that comes from having a prominent queer activist as a family member. Their arguments were fed with solid research by a dedicated team of young lawyers in cities across the country, and supported by arguments emailed in by Oxford faculty. But without the leadership of Justice Shah, even Aristotle’s arguments could not have succeeded.
The 377 judgment drew media attention to the winds of change rustling through the High Court. In subsequent months, Justice Shah, Justice Muralidhar and other associates on the Bench have become something of a newspaper phenomenon, punctuating timely rulings with direct, apt critique. For instance, when an overzealous Delhi government was on its way to sending beggars back to their native states, Shah and Muralidhar intervened to stop them. “Poverty is not a crime,” they observed. “It’s strange that a criminal can reside in the city but if someone is asking for alms, then he is thrown away.”
Last month, as temperatures dropped to 4 degrees, the MCD demolished a night shelter for the homeless on Pusa road. Responding to a newspaper article, Justice Shah and Justice Endlaw directed the MCD to restore the shelter immediately, demanding “(The) Commonwealth Games is after 10 months, and for the city’s beautification you will throw out people in a chilling winter like this?” The MCD has now been directed to draw up a plan to construct 144 permanent shelters for the homeless across the city.
In a stream of rulings like these above, Justice Shah has led bench after bench in defending those very ordinary Dilliwalas — cycle-rikhshawalas, the disabled, slum-dwellers and most recently the victims of the 1984 massacres — whom no one else has time to remember.
Very recently, the Supreme Court itself made a rare, self-critical comment. “Of late, there has been a visible shift in the courts approach in dealing with the cases involving the interpretation of social welfare legislations,” said the ruling, authored by Justice Singhvi. “The attractive mantras of globalisation and liberalisation are fast becoming the raison d’etre of the judicial process.” In a time when the government and the judiciary have fallen into a hard consensus on corporate-led development, modest regard is paid to its social and environmental cost. Many courts place implicit trust in the intentions of companies and in the idea that any corporate interest result directly in the improvement of the lives of others. The time spent on corporate disputes has increased as the importance given to matters concerning the underprivileged has fallen.
It’s this context that has made Justice Shah’s court an extraordinary one. Late last year, a judgment of Justice Shah’s reminded a corporation of its obligations to pay the city back, he directed Apollo Hospitals to give 33 per cent of its beds and 40 per cent of its Out Patient services for free, as they’re legally bound, saying, “Health care… cannot be left to be regulated solely by the invisible hands of the market.”
During his brief tenure on the bench, Justice Shah’s judgments have held off some of the Darwinian forces trying to morph Delhi into a city free of too-poor people. When Justice Shah retires, the mark of his work will be the relief of India’s gay and transgender citizens, sick Indians receiving healthcare, disabled people with government jobs and children who have a place to sleep tonight.