'If an issue of morality is to be decided by majority, then fundamental right has no meaning'

The Idea Exchange

Retd Delhi HC Chief Justice and the man behind a landmark verdict decriminalising homosexuality, Justice A P Shah feels the Supreme Court setting aside that order is unfortunate. At this Idea Exchange moderated by Senior Editor (Legal Affairs) Maneesh Chhibber, he also talks about his new assignment as Law Commission chief, where he is looking into electoral reforms, live-in relationships and age of juvenility

Maneesh Chhibber: Can you explain how you wrote your Section 377 judgment?

I wouldn't like to comment on the Supreme Court judgment but that doesn't bar me from speaking about the rights of LGBTs, the Constitutional morality we talked about in the high court case, and the government's position.

Let me start with this — some speak of this as a 'western disease'. First of all, it is not western. Temple imagery and essential scriptures show there is some evidence of homosexuality being practised in this country... The British brought in Section 377 and there is the presumption that one of the reasons was (they feared) their army and daughters would be tainted by Oriental vices... What is so startling is that Section 377 travelled back to England. Later it was repealed, in the sense that their judicial committee recommended that for consenting adults it should not be a crime. This is the position in almost all of Europe, US.

There are critical nuances of the (Supreme Court) judgment which I would not like to go into, but I would like to tell you about how far it is permissible for the State to legislate on the ground of public morality. What is envisaged by the Constitution is not popular morality. Probably public morality is the reflection of the moral normative values of the majority of the population, but Constitutional morality derives its contents from the values of the Constitution.

... contd.

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