Whatever I had to say I wrote in my 2009 judgment: Justice Shah

Whatever I had to say I wrote in my 2009 judgment: Shah

TIMES OF INDIA dated 12.12.2013

New Delhi: The legal community reacted with disappointment at the Supreme Court verdict on homosexuality on Wednesday. Senior lawyers criticized the judgment, lamenting that a great opportunity provided by the Delhi HC has been lost. 
    Leading lawyer Harish Salve, in a volley of tweets, said the judgment was a huge letdown. “Such a case should never have been heard by two judges only. Article 145 of the Constitution mandates important questions of constitutional law should be heard by a bench of five judges.” He urged: “It would be a good argument in a fresh petition challenging Section 377 to argue that this precedent be ignored.” If the court is happy to examine fiscal policies, deference to law when human dignity is concerned is a turnaround in jurisprudence, he tweeted, adding: “A battle lost is not a war lost. The issue of decriminalisation should be raised over and over again until accepted — it HAS to be accepted… Today gay sex. Tomorrow atheism? Day after, refusing to wear black pants on, say, Saturdays? Nanny state? Morality can and should be the basis of all laws.” 
    Additional solicitor general Indira Jaising said the penal provision for homosexuality reflects a “medieval mindset” and raises questions as to why the bench looked to the legislature to decide on the issue when the SC reviewed so many other matters. She said, “It’s surprising the court, which does judicial review on many issues, has put the ball in the Parliament’s court to decide on homosexuality.” 
    Former attorney general Soli Sorabjee, who supported the PIL movement against section 377 IPC from the outset, termed the order retrogressive. “The Delhi HC didn’t legalize samesex marriage. It only decriminalized homosexual activities between two consenting adults in private. You can’t blame people for having different orientation.” He added, “They can ask for reconsideration of the judgment before a different bench.” 
    Co-author of the HC verdict, retired Delhi chief justice A P Shah, couldn’t hide his disappointment. But Shah declined to give a view, saying, “I haven’t read the SC judgment so it’ll be difficult to comment. Whatever I had to say I wrote in my 2009 judgment.” 
    WHAT THE SC JUDGES SAID 
    Section 377 of Indian Penal Code does not suffer from the vice of unconstitutionality and the declaration made by the Delhi high court (decriminalizing consensual gay sex between adults in private) is legally unsustainable 
    Competent legislature shall be free to consider the desirability and propriety of deleting Sec 377 from the statute book or amend the same as per the suggestion made by the AG 
    In its anxiety to protect the so-called rights of LGBT persons and to declare that Sec 377 IPC violates the right to privacy, autonomy and dignity, the high court has extensively relied upon the judgments of other jurisdictions (foreign countries) 
    Though these judgments (from foreign countries) shed considerable light on various aspects of this right and are informative in relation to the plight of sexual minorities, we feel that they cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian legislature 
    The writ petition filed by Naz Foundation was singularly laconic in as much as except giving brief detail of the work being done by it for HIV prevention targeting MSM community, it miserably failed to furnish the particulars of the incidents of discriminatory attitude exhibited by the state agencies towards sexual minorities and consequential denial of basic human rights to them