9 Years On, How Section 377 Verdict Vindicated Justice AP Shah

How Justice AP Shah’s Naz Foundation judgment was vindicated and validated by the five SC judges, nine years later.

Justice AP Shah, the Delhi HC judge who first gave dignity to the LGBTQ community.

(Photo: Altered by The Quint)

As historic as the Constitution bench judgment of the Supreme Court in Navtej Johar vs Union of India is, it helps to remember the long and fraught journey of the litigation to challenge Section 377 of the Indian Penal Code.

It would also not do any harm to forget the Delhi High Court’s judgment in Naz Foundation vs NCT of Delhi where a two-judge bench of Chief Justice AP Shah and Justice Muralidhar first read down Section 377 to decriminalise consensual sexual acts between consenting adults.

Re-reading Justice Shah’s judgment in Naz Foundation, nine years later, one finds that it foreshadows almost all the major arguments used by the judges in Navtej Johar.

The constitutional reasoning for reading down Section 377 are based on a nuanced and careful reading of Articles 14 (guaranteeing equality) and Article 21 (guaranteeing protection of life and liberty).

Broadening the Definition of ‘Sex’

His interpretation included an expanded reading of the term “sex” in Article 15 of the Constitution to include “sexual orientation”, as a protected category against discrimination. In that, Justice Shah was only carrying forward the trend of interpreting the Constitution to meet the needs of the times, rather than sticking strictly to the original interpretation of the words.

Bringing Dignity and Privacy into the Ambit

Likewise, the arguments on dignity and privacy under Article 21.

Even before the Aadhaar case in the Supreme Court prompted the nine-judge bench of the Supreme Court to elaborate on the right to privacy, Justice Shah’s judgment in Naz Foundation traces the history of the right in depth in the context of gay rights, linking privacy to the freedom to choose.

Of course other aspects of privacy related to informational freedom and bodily integrity were not in the picture yet and have only been dealt with in the Puttaswamy case, but it is suffice to say that Justice Shah’s approach towards the constitutional right to privacy has been accepted and built upon by the Supreme Court.

Section 377 Prohibits Public Health Efforts to Combat HIV/AIDS

Apart from linking it to concepts such as dignity and privacy, Justice Shah also links the need to decriminalise consensual homosexual acts to the right to health.

He finds that, far from inhibiting the spread of HIV/AIDS, a provision such as Section 377 inhibits public health efforts to combat the same. In this he cut through the clutter and made sense of the utterly contradictory stand taken by the Union government in the case – with the Ministry of Home Affairs arguing that Section 377 should be retained and the Ministry of Health arguing that it need not be.

This approach to locating the need for reading down Section 377 in the context of public health finds echo also in the concurring opinions of the judges of the Supreme Court in Navtej Johar.

Welcoming ‘Constitutional Morality’ into the Discourse

Most interesting, and one which continues to be Justice Shah’s stellar contribution to constitutional jurisprudence in India, is the use of “constitutional morality” as a standard to test laws and actions against.

While there had been judgments in the past which have used this concept (Ambedkar himself referred to it famously in a speech to the Constituent Assembly), it was perhaps Justice Shah who used it to the greatest effect in giving richness and depth to the fundamental rights guaranteed in the Constitution.

One can see the influence by just looking at how often the Supreme Court of India has mentioned it. Of the 26 judgments which use the term (excluding Suresh Koushal which simply cites the relevant passage from Naz Foundation and totally ignores it) 21 were delivered after 2009.

Whether used by counsel to make an argument or by the court to develop constitutional law, it would seem that Justice Shah managed to bring “constitutional morality” into the discourse through his judgment.

It will go down as a failing of the collegium system that a judge of Justice Shah’s calibre did not make it to the Supreme Court. The reason is no secret – it was the animus of one judge of the Supreme Court who was on the collegium at the time that kept Justice Shah out of consideration for elevation to the court. Nevertheless, one can safely say that Justice Shah has had the last laugh.

His landmark judgment, first set aside by a two-judge bench in Suresh Koushal, now finds redemption and validation in the form of a Constitution Bench judgment of the Supreme Court.

Whatever the vagaries of current events, we can be rest assured that history will be kinder to Justice AP Shah.

(The author is an advocate based in Bengaluru and has assisted the Law Commission of India in preparing its 253rd Report when Justice AP Justice Shah was its Chairman. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)