On July 2, 2009, a Delhi High Court bench comprising then Chief Justice A P Shah and Justice S Muralidhar had ruled that consensual intercourse between two adults was not illegal. It was a Thursday.
On another Thursday nine years later, the Supreme Court has overturned a 2013 ruling of the apex court that had reinstated gay sex as a criminal offence after four years of decriminalisation following the Delhi High Court order.
In its 2009 order, the bench of Justices Shah and Muralidhar had said, “…In our view, Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs are. It cannot be forgotten that discrimination is anti-thesis of equality and that it is the recognition of equality which will foster the dignity of every individual.”
“We declare that Section 377 IPC,insofar as it criminalises consensual sexual acts of adults in private, is violative of Articles 21 [Right to Protection of Life and Personal Liberty], 14 [Right to Equality before Law] and 15 [Prohibition of Discrimination on Grounds of Religion, Race, Caste, Sex or Place of Birth] of the Constitution,” the judgment had said.
However, the order had ruled, “The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors.”
While Justice Shah retired from Delhi High Court in 2010, Justice Muralidhar was seen on Thursday hearing and deciding the cases listed before him as per the roster. He looked calm and composed as always and heard over 60 cases listed before him, including an appeal against acquittal of accused in 1987 Hashimpura massacre case.
The Section 377 judgment was, however, not the only ruling for which the division bench of Justices Shah and Muralidhar is remembered. When the Delhi government was on its way to sending beggars back to their native states, Justice Shah and Justice Muralidhar intervened. “Poverty is not a crime,” they observed.
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