February 11, 2010
Justice A.P.Shah who wrote the verdict in Naz India (Section 377)
case retired as chief justice of the Delhi High Court on February 11th.
With that verdict, in which he was assisted by Justice S.Muralidhar,
he can take credit for lifting at one stroke the threat of persecution from
the largest number of queer people in history.
It is a verdict which is now being contested in the Supreme Court
by bigots and haters of human rights, and its future is not certain.
But as it stands now, since the Supreme Court, to its credit, refused
to stay the judgment pending the progress of the case, gays and lesbians
in India are no longer subject to the injustice of Section 377 of the IPC,
and for this we have to thank Justice Shah.
If the Naz India case was all he was to be known for, that would be enough, but in fact it is just one of an amazing number of progressive verdicts delivered by Justice Shah in his career at the Bombay, Madras and finally Delhi High Courts.
For example he:
- overruled the government’s decision to ban Anand Patwardhan’s documentaries in 1997
- ordered the railways to give compulsory access to disabled people
- recognised the rights of Muslim women to receive maintenance beyond the i
ddat period and of the rights of Hindu second wives to receive maintenance
- ruled that political parties that called for Bandhs imposed on the rights of ordinary citizens
- recognised the employment rights of AIDS patients
- directed the government to act to save the environment of Hill stations, and even ordered the beautification of Girgaon Chowpatty and Juhy beach, something all ordinary citizens of Mumbai can thank him for
- pushed the judiciary to open up to computerisation and electronic access to the courts
Rather strangely, this link does not note his two most path breaking
recent judgements - in the 377 case and the recent Right To Information
case where he headed a bench that said that no authority in India was
exempt from RTI rules, not even the Supreme Court. Its a judgment
that has shaken his superiors on the Supreme Court, to the point where
they must now either accept it, or get into the embarassing position of having to hear a case against themselves.
With the 377 case, given Justice Shah’s track record,
we were always hopeful of a positive verdict.
But Justices Shah and Muralidhar took it even further.
y rooting their decision so strongly in the basic principles of
our constitition, and specifically citing the words of Dr.Ambedkar
and Pandit Jawaharlal Nehru to reinforce it, they immensely
added to the strength of the case that has now gone to the Supreme
Court. It may still be overturned, but doing so will not be easy and in that
lies our best hope for ultimate success.
Today we can only give our profound thanks to Justice A.P.Shah for steering us to this position.
Perhaps the best way to end this tribute would be with Justice Shah’s own words, which he read out in court on the day of the verdict. This was the only portion of the judgment he read out, and it was what brought tears to the eyes of all the activists in court that day.
He read:
“The notion of equality in the Indian Constitution flows from the
‘Objective Resolution’ moved by Pandit Jawaharlal Nehru on
December 13, 1946. Nehru, in his speech, moving this Resolution
wished that the House should consider the Resolution not in a spirit
of narrow legal wording, but rather look at the spirit behind that
Resolution.
He said, ”Words are magic things often enough,
but even the magic of words sometimes cannot convey
the magic of the human spirit and of a Nation’s passion……..
(The Resolution) seeks very feebly to tell the world of what
we have thought or dreamt of so long, and what we now hope
to achieve in the near future.”
[Constituent Assembly Debates: Lok Sabha Secretariat, New Delhi: 1999, Vol. I, pages 57-65].
“If there is one constitutional tenet that can be said to be
underlying theme of the Indian Constitution, it is that
of ‘inclusiveness’. This Court believes that Indian Constitution
reflects this value deeply ingrained in Indian society, nurtured
over several generations. The inclusiveness that Indian society
traditionally displayed, literally in every aspect of life, is manifest
in recognising a role in society for everyone.
Those perceived by the majority as “deviants’ or ‘different’ are
not on that score excluded or ostracised.
“Where society can display inclusiveness and understanding,
such persons can be assured of a life of dignity and nondiscrimination.
This was the ’spirit behind the Resolution’ of which Nehru spoke so
passionately. 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
antithesis 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 it criminalises
consensual sexual acts of adults in private, is violative of
Articles 21, 14 and 15 of the Constitution.
The provisions of Section 377 IPC will continue
to govern non-consensual penile non-vaginal sex
and penile non-vaginal sex involving minors.
By ‘adult’ we mean everyone who is 18 years of age and above.
A person below 18 would be presumed not to be able to consent
to a sexual act. This clarification will hold till, of course, Parliament
chooses to amend the law to effectuate the recommendation of the
Law Commission of India in its 172nd Report which we believe
removes a great deal of confusion. Secondly, we clarify that our
judgment will not result in the re-opening of criminal cases
involving Section 377 IPC that have already attained finality.”
- Vikram Doctor
