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: yesKaran 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...

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

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