Homosexuality and the Indian law

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This is a collection of articles archived for the excellence of their content.

SC erred in overruling HC on gay sex: Justice Shah

The Times of India, Sep 05 2015

Pradeep Thakur

SC erred in overturning HC verdict on gay sex: Justice Shah

Former Law Commission chairman Justice A P Shah, who as chief justice of Delhi high court delivered the landmark judgment decriminalizing homosexuality by reading down Section 377 of IPC, has slammed the Supreme Court for reviving the controversial penal provisions by quashing the HC verdict. Speaking for the first time on the issue, Justice Shah told TOI that the apex court had erred in entertaining petitions from various religious organizations and in overturning the HC verdict. “It is very difficult to get a consensus from the political class. So it really should be done by the court in this case,“ he said, adding that the verdict was widely accepted by all sections of society .“What happened after the Delhi HC judgment? The then law minister said the judgment was a `brave' one, and the government itself decided not to appeal,“ Justice Shah said. Slamming the SC for quashing Delhi high court's judgment decriminalizing homosexuality by reading down Section 377 of IPC, Justice A P Shah said on Friday that it was difficult “to turn the clock back“ and hoped that a curative petition pending in the apex court may have some effect.The curative petition is the last judicial resort available to petitioners seeking review of an SC verdict, though it has been pending in the apex court since April 2014. The government made no effort after the SC verdict to bring ammendments in the law decriminalizing homosexuality .

The Delhi HC had, in a 2009 judgment, held that a person could not be discriminated on the basis of sexual orientation and the penal provision violated the funda mental rights of the LGBT (lesbian, gay , bisexual and transgender) community and was unconstitutional.

In its judgment, a bench of Justices Shah and S Muralidhar had decriminalized homosexual acts between two consenting adults in private.The verdict was opposed by religious outfits and an individual who moved the SC which quashed the HC verdict. Enacted by the British, Section 377 of IPC has been on the statute books since 1860 and provides for punishment for up to life imprisonment for “carnal intercourse against the order of the nature with any man, woman or animal“.