Criticising the Supreme Court judgment that re-criminalised homosexuality, former Delhi High Court Chief Justice and Law Commission Chairperson Justice A P Shah said the apex court bench had “ignored the counter-majoritarian role of the judiciary”. Justice Shah was speaking at the Tarkunde Memorial Lecture at the India International Centre Saturday.
“The Supreme Court neither engaged with the change in English law nor with changing social mores globally. Instead, the court’s views suggest that the legitimacy of a law is unquestionable, regardless of its origins in an imposed foreign morality or contrary evidence, scientific or otherwise. In fact, the high court’s extensive consideration of international developments were brushed aside by the Supreme Court,” he said.
Shah also commented that the bench “chose to be guided by the low prosecution rate under Section 377” and ignored the violation of fundamental rights of the LGBTQ community.
To protect the rights of the LGBTQ community, social mores need to be changed first, said Shah. “The battle to safeguard the rights of LGBTQ persons will not be won simply by political or judicial action removing Section 377; the battle will finally be won when everyone in India — whether in big cities or small towns, in police chowkis or hospitals — will truly believe that LGBTQ persons are no different,” said Justice Shah, adding that there was a need to take urgent steps to repeal Section 377.
“It cannot be a never-ending game of toss and catch between the legislature and the judiciary. Someone must take up the gauntlet. Both the legislature and the judiciary need to act independently, but act now they must,” he added.
“Sexual minorities have been reduced to so called unapprehended felons after the judgment,” he said.
The lecture was attended by a plethora of legal luminaries and judges. The Tarkunde Memorial lectures are held in the memory of Justice V M Tarkunde of the Bombay High Court.