Finding fault with the Supreme Court decision that two years ago refused to declare homosexuality as legal and referred the question of repealing Section 377 of IPC to Parliament, former law Commission Chairman AP Shah on Saturday confronted judiciary by questioning why this same logic was not made applicable to the verdict on NJAC where no deference was shown to “legislative wisdom”.
In a frontal attack to the SC decision of December 11, 2013 (Suresh Kumar Koushal v Naz Foundation) by which the landmark decision by Delhi High Court to decriminalise Section 377 was set aside, Shah, who co-authored the decision as Chief Justice of Delhi HC, felt that the SC order was a “mistake” and saw possibility of an attempt to correct the mistake following a recent judgment by SC that recognised transgender to be treated as the third sex. A curative petition against the 2013 verdict is yet to be decided by the SC.
Delivering the Ninth VM Tarkunde Memorial lecture on “Section 377: From Hostility and Hatred to Courage and Freedom”, Justice Shah said, “The SC has the opportunity to correct the mistake it made in Koushal and redeem its glorious status as protector of fundamental rights by asserting…constitutional morality should trump religious and social morality.”
Shah also said, “…no such deference to legislative wisdom was shown (by SC) in the recent judgment on NJAC….with a single stroke of a pen, the SC criminalised the very existence of an entire class of people, who are now condemned to live in the shadow of the law, in fear, and in oppression.”