Former Law Commission chairperson Justice A.P. Shah on Saturday said the political climate in the country at present was right to bring about a change in the law against homosexuality by repealing Section 377 of Indian Penal Code, as key representatives of major political parties have criticised the Supreme Court verdict that struck down decriminalising of gay sex.
Though the individual leaders of different political parties have taken a stand against Section 377, the move would depend on the extent to which the parties as a whole are prepared to “bite the bullet” and truly embrace inclusiveness and fraternity as being the guiding spirits of the Constitution, said Justice Shah.
Delivering the Ninth V.M. Tarkunde Memorial Lecture at India International Centre here, Justice Shah said while the Supreme Court has an opportunity to reconsider its 2013 judgment when it takes up curative petitions to examine legal infirmities in its earlier verdict, both the Legislature and the Judiciary need to act independently. “But act now they must,” he affirmed.
The former Judge pointed out in the presence of a galaxy of legal luminaries that Prime Minister Narendra Modi had occasion a few weeks ago to say that transgenders have been treated unjustly in India and the government needed to change its outlook, including through changes to its law and regulations.
Justice Shah, the then Chief Justice of Delhi High Court, headed a Bench which delivered the breakthrough judgment in the Naz Foundation case in July 2009 decriminalising homosexuality and striking down Section 377, in so far as it punished consensual sexual acts of adults in private, as violative of fundamental rights enshrined in the Constitution. The Supreme Court reversed the judgment in 2013.
Justice Shah’s lecture, organised by the Tarkunde Memorial Foundation, was devoted to the theme, “Section 377: From hostility and hatred to courage and freedom”.
Justice Shah affirmed that the law on homosexuality could not be a never-ending game of toss-and-catch between the Legislature and the Judiciary.
“Today, the Supreme Court has the opportunity to correct the mistake it made in Koushal case (2013 judgment) and redeem its glorious status as the protector of fundamental rights, by asserting that when it comes to the dignity of the individual and the fraternity, constitutional morality should trump religious and social morality,” said Justice Shah.
He regretted that the apex court, with a single stroke of a pen, had criminalised the very existence of an entire class of people, who were now condemned to live “in the shadow of the law, in fear, and in oppression, and who are told that their idea and expression of love was against the very order of nature.”
Former Attorney-General Soli Sorabjee, veteran journalist Kuldip Nayar, senior advocate Ashok Desai, sitting and former judges attended the lecture.
