Indian judge: Supreme Court made a mistake on gay ban

Justice Ajit Prakash Shah

Justice Ajit Prakash Shah

A retired senior judge and Chairperson of India’s Law Commission has criticised the country’s Supreme Court for failing to legalise gay sex in 2013.

Speaking at a lecture on Saturday, Justice A P Shah said the court made a “mistake” by not striking down the criminalisation of homosexuality, arguing that it had “ignored the counter-majoritarian role of the judiciary.”

He claimed that, “Instead of a progressive, rights-enhancing decision, the Supreme Court exercised judicial restraint.”

Shah said that, “The Supreme Court neither engaged with the change in English law nor with changing social mores globally.

“Instead, the court’s views suggest that the legitimacy of a law is unquestionable, regardless of its origins in an imposed foreign morality or contrary evidence, scientific or otherwise.”

Shah further slammed the court for using the fact that the law was rarely enforced to prosecute LGBT people as a justification for its decision.

“Sexual minorities have been reduced to so called unapprehended felons after the judgement,” Shah said, adding that the court had “criminalised the existence of a class of people who are now condemned to live in shadow of fear.”

He urged the court, which is currently considering a petition to review its decision, to “correct the mistake it made… and redeem its glorious status as protector of fundamental rights.”

Section 377 of the Indian Penal Code, which makes it illegal to be gay, carries penalties including life imprisonment.

The law was struck down in 2009 by the Delhi High Court, while Shah was its chief justice, but was then reinstated in December 2013 by the Supreme Court.

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