I was intensely dejected by Supreme Court’s Verdict over Section 377: Justice A.P Shah

Former Delhi High Court Chief Justice and Law Commission of India Chairman Justice Ajit Prakash Shah expressing his views over the Supreme Court’s Judgment on Section 377 said the verdict was disappointing. Speaking to Karan Thapar on Devil’s Advocate in CNN-IBN justice shah said,” It is very difficult to say, but given the subject matter of the appeal I thought that our views would prevail.”

Live Law brings to you the full text of the interview along with the video.

Karan Thapar: Justice Shah let me start with the first question, were you expecting the Supreme Court to overturn your judgment over you taken by surprise?

Justice A.P Shah: Karan, I would say that the, I learned about this decision when I was abroad and I remembered the people who use to attend the hearing and they felt, I read in many newspapers and their interviews, they felt liberated by 377 judgment, my first feeling was deep sadness about those people, the LGBT community.

Karan Thapar: So in other words you deeply regretted what the Supreme Court had done.

Justice A.P Shah: No I would say that I was disappointed.

Karan Thapar: Disappointed, but why you were surprised, or did you in your heart feel this would happen?

Justice A.P Shah: Not really I thought that the judgment, as in today’s times I mean would be sustained this was my expectation. But really it’s not material today because the Supreme Court has overturned the judgment and today section 377 is again on the statute book.

Karan Thapar: So the overturning actually came as a nasty shock to you?

Justice A.P Shah: I would not use the expression ’shock’ I would say that it is disappointing; it was a sort of disappointment.

Karan Thapar: But the important thing Justice Shah is you genuinely expected that your judgment would be sustained by the Supreme Court.

Justice A.P Shah: No it is very difficult to say that for any judge to say that his judgment would be sustained by the higher court but given the subject matter of the appeal I thought that our views would prevail.

Karan Thapar: Let’s come to some of the arguments the Supreme Court has countered your judgment with, to begin with the Supreme Court had said that the Lesbian, Gay, Bi-sexual, and Transgender community is only a minuscule fraction of the population of India and secondly they have said that in 150 years there have been less than 200 people prosecuted under Section 377 and the Supreme Court has concluded, “this cannot be a sound basis for declaring Section 377 unconstitutional”. Is constitutionality to be judged by the number of people affected or by the number of oppressive prosecutions?

Justice A.P Shah: Let me put it in a different perspective, See our democracy is based on twin principles of rule by majority and the protection of fundamental rights. Now fundamental rights are meant to be, they are kept beyond the reach of the majorities, their certain subjects are taken away from the vicissitudes of political controversies, so it is the duty of the Court to protect the Fundamental rights, the fundamental rights cannot be allowed to be trampled by the majority on the basis of number So I feel that the whole object of keeping the human rights in fundamental rights section is to protect them.

Karan Thapar: I take your point, what you are really saying is fundamental rights are fundamental even when they are applying to a small fraction of population, isn’t that right??

Justice A.P Shah: yes

Karan Thapar: And therefore just because it’s a small fraction it doesn’t mean the right is not fundamental and doesn’t need to be protected.

Justice A.P Shah:  No, No of course I mean there is no exception in the fundamental rights that it will not apply to the minorities it will apply to the minorities and by the way Karan…

Karan Thapar: So the minuscule fraction argument is wrong?

Justice A.P Shah: It doesn’t appeal to me, I mean minuscule, minority is not, when in the context of human rights I don’t think that is a relevant consideration.

Karan Thapar: Now a second argument made by the Supreme Court and I am going to quote is, “the mere fact the section is misused by police authorities and others is not a reflection of the vires of the section”, although alternate view is that misuse of section 377 is not simply abuse of the law here misuse is intrinsic to an inherent and very character of the law, which view do you agree with?

Justice A.P Shah: Let me tell you that just give you an example, there was a law in British times called ‘Criminal Tribes Act’ so certain tribes and communities were declared and made criminals simply by their identity because they use to police this tribes and communities and lunacs were included in the act, and a provision was made that they have to be policed because of their suspicious acts under section 377 so Jawaharlal Nehru spoke very passionately against this law , he said that ‘such laws are violate they are concrete a very civilized notion of criminal justice system’ , so you are targeting a person because of his  sexual orientation because of his identity .

Karan Thapar: and therefore misuse of Section 377 is inherent in very character of 377.

Justice A.P Shah: No, it is not really about the misuse of the law, because a law itself unfairly targets certain people on the basis of their sexual orientation.

Karan Thapar: I want to stop you; it’s a very important thing that a law itself unfairly targets a certain section of people because of their sexual orientation, “the law itself is unfair”?

Justice A.P Shah: the law itself is, that was the view which we took in Naz Foundation.

Karan Thapar: Now a third thing that the Supreme Court has argued in his judgment that I want to once again quote,” Section 377 does not criminalize a particular people or identity or orientation, it merely identifies certain acts which is committed would constitute an offence.” The problem is penile odor or penile anal sex is how male homosexual   express their love for each other if u criminalize the act surely ipso facto you are criminalizing the orientation and the identity and therefore you are criminalizing the people who share that identity.

Justice A.P Shah: No, that’s correct; really it’s against the order of the nature carnal intercourse against the order of nature is the draft made by Mr. Macaulay which was repeated throughout the colony, now this very concept was has been debated in U.K and the law was repealed to that extent in 1957 so between the consenting adults this is not an offence in UK and many other countries after 50’s.

Karan Thapar: And you were trying to follow the same logic and the same principles in India that between consenting adults what they do in private should not be considered criminal?

Justice A.P Shah: No, the principle which we followed is that the public morality is the reason why the legislature has made this enactment, but this public morality should be judged on the touchstone of the constitution and therefore this would violate it a private act between the consenting adults cannot be criminalized.

Karan Thapar: Once again I want to tease out for the audience in a simple meaning what you are saying, what you are saying is public morality which is the concern of an individual cannot influence constitutional morality which is based upon constitutional fundamental rights.

Justice A.P Shah: Values from the constitution is not a popular morality like untouchability was approved by the majority.

Karan Thapar: you are saying something very interesting by implication, what you are saying is that this judgment by the Supreme Court overturning your judgment actually allowed constitutional morality to be determined in terms of public morality  or individual morality.

Justice A.P Shah: (Smilingly) I won’t comment on that but this is what we held.

Karan Thapar: your smile suggests that the judges of the Supreme Court had made a mistake even though even you can’t as a former Chief Justice of Delhi High Court actually say it in so many words.

Justice A.P Shah: Again I said I won’t comment on that.

Karan Thapar: But let me go back to the point I was making when I quoted the Supreme Court that they were not criminalizing a particular people or identity or orientation, I put it to you that if you criminalize the way that person makes love, then by criminalizing the act you are automatically criminalizing the person that you are either committing that person to be celibate for life or if he performs a sexual act he becomes the criminal.

Justice A.P Shah: Now it is almost a unanimous opinion in the psychologists or in the medical community that it is not a disease its and another expression of human sexuality.

Karan Thapar: Its god given!!

Justice A.P Shah: Of course it is, if you see our ancient scriptures and temple images you’ll find that homosexuality was practiced in ancient and medieval India.

Karan Thapar: It’s not alien to Indian custom.

Justice A.P Shah: It’s not alien; the law which was brought by the British is alien to this country.

Karan Thapar: So then if I read what you are saying correctly you are agreeing aren’t you not, the Supreme Court made a mistake, they say that we are criminalizing an act but we are not criminalizing any orientation, people or identity they made a mistake because if you criminalize the act and that act is a way of certain type of person makes love, then you are criminalizing the persons as well unless that person is forced to celibate thereafter.

Justice A.P Shah: Yes I would say that this amounts to criminalizing the act, it has now been established that it is not possible for a person to simply switch on or switch off his sexual orientation some people might claim that it can be cured but it’s not possible so as you said that any particular act is criminalize it would mean that criminalizing his sexual orientation as a class.

Karan Thapar: and therefore you are criminalizing the person as a class, now forth seeing what Supreme Court has said and once again I want to quote that, “this court is not empowered to strike down a law because the perception of society has as regards to the legitimacy of its purpose and its need”, that’s like saying morals may change but the law is immutable and frozen in its time. Are laws frozen in time???

Justice A.P Shah:  Karan let me give few examples, for instance in Dredscot the US Supreme court held that the slavery is constitutional; Congress may intervene in amendment in the constitution, the segregation was considered to be valid by the US Supreme Court but ultimately in 60’s brown v. Board of education came, the law was changed and few other examples.

Karan Thapar: So what you are saying, when times change, thinking change, laws must change.

Justice A.P Shah:  the courts in India following the sub judgments of UK and American courts held that the women should not be allowed to practice because that would bring immorality in the judiciary system.

Karan Thapar: So what you are saying Mr Shah that it is the duty of the courts to change laws or re interrupt with laws when the perception and attitude of society changes.

Justice A.P Shah: No I would say that the laws would have to be interpreted as the times change, the thinking change, definitely the interpretation and approach of the court will also change there is nothing unnatural about it.

Karan Thapar: And that is the critical point of the Supreme Court has actually not understood did actually said the opposite haven’t they?

Justice A.P Shah: That I would not be commenting upon.

Karan Thapar: I understand I am embarrassing you by forcing you to do that but let me talk about the content and wording of 377 in the context of what we are now discussing, this is the language of 377, “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal“ Can an explanation or meaning or definition of the phrase against the order of nature which was accepted in 1860 still applied 150 years later in 2013?

Justice A.P Shah: As I state against the order of nature that is a provision introduced on the basis of presumed shared by barbarical morality that is based on the principle that the carnal intercourse is only for the purpose of recreation, this was the interpretation given by the courts in India in section 377 and this seems to be the idea behind the section, that has become perhaps absolute in the change in the recent times.

Karan Thapar: Because intercourse is now not just for procreation it’s also for recreation.

Justice A.P Shah: No the idea change, I agree with you Karan because there are other instance like live-in-relationships which was condemned and the Supreme Court said that it is not a sin in the Said judgment…..

Karan Thapar: so the Supreme Court has itself taken a very different stand on live-in relationship compared to the stand taken recently taken on homosexuality.

Justice A.P Shah:  Yes

Karan Thapar: there are certain contradictions in the Supreme Court’s position.

Justice A.P Shah: Yes especially for you to say that where there is contradiction.

Karan Thapar:  Finally! Finally! If you look at that judgment delivered 12 days ago after spending 96 pages to argue that section 377 is constitutionally valid in the last paragraph the Supreme Court says once again I am going to quote:

“Notwithstanding this verdict the competent legislature should be free to consider the desirability and propriety of deleting section 377 or amending the same.” I put it to you that at last thought since very uncomfortably or even or even contradicts the proceeding 96 pages.

Justice A.P Shah: I really, there is no explanation as to why the law was not changed by introducing the due laws in the wake of the December , last year’s December or this ,  why parliamentarians change it at the spot as the parliament to decide at that point.

Karan Thapar: Well, Can I interrupt at a point?

Justice A.P Shah: But the when it comes to the court really the issue has to be decided on the basis of the, whether it stands the scrutiny of the constitutional principles and not because whether the parliament enacted or not.

Karan Thapar : your making a very important person  , that was an argument made by the Supreme Court when they overturned the judgment one of the thing they said is ,”Parliament has on many occasions considered 377 , considered sexual laws and not overturned it  and they said that they done it recently as earlier this year and therefore the Supreme Court said that if the Parliament hasn’t  over done it perhaps we shouldn’t either. And you are pointing out that it is not a logic that appeals you.

Justice A.P Shah: No, ultimately a legislation has to be tested on the basis of the violation of the fundamental rights and not because the law is enforced for a long time.

Karan Thapar: One last thing that the Supreme Court also said that your judgment has cited judgments from foreign jurisdiction which says it refuse to apply ipso facto to India. Now the croak is the Supreme Court frequently cites foreign judgments while making its own judgment to corroborate or to influence or to support, so it is in rather contradiction of the Supreme Court to suddenly claim we can’t accept foreign judgments in Justice Shah’s judgment or we will upheld wherever we want.

Justice A.P Shah: No, I would say the foreign judgments are freely used the principles, international treaties, international conventions are freely used to interpret the constitution itself and the statutory laws; there is no doubt about it.

Karan Thapar: Let it put it like this, many people believe that the critical job in our system where we have a separation of power between the executive, the legislature and the judiciary, the critical function of the Supreme Court is to uphold fundamental rights. Here in the case of Section 377, 10 millions of affected Indians the court has deliberately refused to uphold fundamental rights. Where that does leaves the court???

Justice A.P Shah: Now a review application has been filed, I don’t know what is likely to happen but it is the legislature must intervene.

Karan Thapar: I’ll come to the legislature move in time, but by failing to uphold the fundamental rights in this instance, is this Supreme Court guilty and derogation of it?

Justice A.P Shah: I do not wish to comment on that.

Karan Thapar: But the millions of Indians think it is you are aware of that for millions of Indians the Supreme Court lowered its standing and failed to perform its sacred duty, you are aware of that aren’t you?

Justice A.P Shah: that might because the perception you are placing before me but I think I should not comment on this.

Karan Thapar: The government has moved a review petition, what do you think is the likely hood that the Supreme Court will actually

Justice A.P Shah: Well it is difficult to predict what would happen to review petition, it is for the court to decide whether to review the judgment or not.

Karan Thapar: the government also want that the review petition must be heard in open court . Do you think that it is something that the Supreme Court should agree to??

Justice A.P Shah: No again it’s for the court to decide that to hear or not

Karan Thapar: If you were on the Supreme Court, were you being in the favor of open hearing?

Justice A.P Shah: No I was not on the Supreme Court one and secondly, it’s a very hypothetical question

Karan Thapar: My last question, track record of review petition 95-96% of them actually refused, would the curative petition is that what to be moved??

Justice A.P Shah: It is also a remedy open to the petitioners.

Karan Thapar: In the meantime and this is beside truth till this judgment is overturned 377 is the law of the land, what this mean for Indian bisexuals, transgender, gays and lesbians?

Justice A.P Shah: I think Mr Vikram Seth put it in a very correct perspective and he asked the question, whether he is a criminal? Therefore the whole community LGBT would be regarded as suspect of committing crimes under section 377 and we described in our judgment about LGBT community as unapprehended felons that so they are not arrested or prosecuted but still they are regarded as criminals.
Karan Thapar: Is this an injustice done to them?

Justice A.P Shah: Of course in our view it was injustice when we delivered our judgment.

Karan Thapar: You removed the injustice and the Supreme Court has slapped injustice to that.

Justice A.P Shah: Now this is what we delivered our judgment, the Supreme Court held with the appeal, I do not say anything on that.