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What about the maid,asks Delhi HC former CJ Shah

Justice Shah,delivered the pathbreaking judgment that decriminalised gay sex in India.

Written by Aneesha Mathur | New Delhi |
December 21, 2013 2:23:00 am

Chairman of the Law Commission of India Justice A P Shah on Friday pointed out that the noise about Devyani Khobragade’s treatment by US authorities was drowning out the question of the diplomat’s maid.

Justice Shah,who as Chief Justice of Delhi High Court delivered the pathbreaking judgment that decriminalised gay sex in India,also said that the current diplomatic stand-off,and suggestions that US diplomats be handed out retaliatory treatment,was “simply going beyond limits”.

“One thing which I felt that we are missing the point is about the victim… What about the maidservant?” Justice Shah said at the Idea Exchange programme at The Indian Express,when asked to comment on the controversy.

Justice Shah,who recently attended a conference of the International Labour Organization (ILO),said a global consensus was emerging in the body that “something over and above” the legal minimum wages should be paid to foreign domestic servants or “live-in employees,as they have no set hours of work”.

Justice Shah gave the example of a recent judgment by a court in Israel,where a foreign live-in employee had demanded overtime payment as per the law. “How can overtime be computed in such cases? It is not eight hours,it is 24 hours (of work). So therefore,it is difficult to apply that act,” he said.

The retired judge expressed surprise at the salary being paid to Sangeeta Richard,the woman who was taken to the US by Khobragade allegedly after furnishing false visa information,and said that suggestions that India should perhaps begin arresting US diplomats for homosexuality,which is illegal in India,were absurd.

“There are diplomatic tough questions,but there should be some limits,” Justice Shah said. Senior BJP leader Yashwant Sinha suggested this week that if Khobragade could be arrested for paying less than the US legal wage,the government should “arrest and punish” gay US diplomats because following the recent Supreme Court ruling,homosexuality is “completely illegal” in India.

Justice Shah declined to comment on the SC judgment striking down his 2009 order on consensual gay sex,but said that the ‘majority rules’ principle needed to be kept separate from fundamental rights in a “modern democracy”.

“The very purpose of fundamental rights is to withdraw certain subjects from the vicissitudes of political controversy,to place them beyond the reach of majorities,” Justice Shah said. “If the issue of morality is to be decided by the majority,as represented by the legislature and Parliament,then the fundamental rights have no meaning.”

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