‘Gay Sex is Not A Crime and it Can Not Be Punished by law’ (Commission Chief)
PUNE: Justice Ajit Prakash Shah, who authored the judgment that decriminalized homosexuality as chief justice of the Delhi High Court in 2009, said here on Friday that homosexuality was neither a disease, nor punishable under any penal laws.
The Supreme Court had overturned the Delhi high court judgment on December 11, 2013 on the grounds that only the Parliament can change Section 377 of the Indian Penal Code, which deals with homosexual sex.
Justice Shah, who is now chairman of Law Commission of India, said that homosexuality is another way of sexuality and an expression of love towards the same sex. "I can only say, in another case, the same court has said that the red beacon (on vehicles) offends the dignity of citizens. If that is the case, I don't think how (Section) 377 will not offend the dignity of a person," Shah said at an interaction with students at the Bharati Vidyapeeth's New Law College (BVNLC) here on Friday.
Shah cited a TOI report on Friday which carried the Indian Psychiatric Society's statement saying that homosexuality is not a mental illness or disease and said, "(Yoga guru) Baba Ramdev has said that he can cure such sexual habits. The fact is, homosexuality is not a disease. It is another way of sexuality and this can not be punished under present penal laws. It's not just expert medical bodies, but even the World Health Organisation has dropped homosexuality from its list of diseases."
"In our judgment, we never said homosexuality is justified or not justified. The judgment merely states that you can not make this conduct criminal under the penal laws," Shah said.
On the prospect of the Lokpal Bill creating a parallel authority to the Supreme Court, Shah said, "The Lokpal idea is drawn from the Swedish concept of Ombudsman, which is about good governance and not necessarily corruption. An Ombudsman is accountable to the Parliament. We started talking about Lokpal due to corruption in high places. We do need some effective mechanism to check this."
"However, with no disrespect to any person, the Jan Lokpal Bill, drafted by (Arvind) Kejriwal and Anna Hazare, according to me, would create a monster, which is not accountable to anybody. The Jan Lokpal Bill is fraught with great dangers," he said. "Even the Lokpal Bill, passed by the Parliament, is weak and suffers from inadequacies. I have given my presentation on this to the Rajya Sabha panel on the Lokpal Bill," he added. "Corruption won't vanish by creating one more authority. Lokpal has become too controversial an issue. I wish it had been enacted way back and implemented in a smooth manner," he said.
On appointment of judges, Shah said, "The National Judicial Commission would be a way to look forward considering that the present system of collegium has not worked in the wake of criticism like it is opaque, there is no accountability and no transparency. The Judicial Appointments Commission Bill, which is referred to the Parliamentary standing committee, would hopefully bring some change. But, the commission ought to be established as a truly independent body making judicial appointments purely on the basis of merit."
Mukund Sarda, BVNLC principal, made the introductory remarks while senior academicians Uttamrao Bhoite and K D Gaur were present.
JudgeSpeak
On quota: "Reservation has to stay considering the realities of rural India where discrimination on the basis of caste still exists."
On trial by media: "There is no serious analysis of judicial pronouncements in media. Trial by media is a real menace. The Arushi murder case is an example."
On death penalty: "I don't see in a modern democracy, death penalty should be permitted."
On Judicial Service: “We do need an all India judicial service cadre along the lines of the IAS."
The Supreme Court had overturned the Delhi high court judgment on December 11, 2013 on the grounds that only the Parliament can change Section 377 of the Indian Penal Code, which deals with homosexual sex.
Justice Shah, who is now chairman of Law Commission of India, said that homosexuality is another way of sexuality and an expression of love towards the same sex. "I can only say, in another case, the same court has said that the red beacon (on vehicles) offends the dignity of citizens. If that is the case, I don't think how (Section) 377 will not offend the dignity of a person," Shah said at an interaction with students at the Bharati Vidyapeeth's New Law College (BVNLC) here on Friday.
Shah cited a TOI report on Friday which carried the Indian Psychiatric Society's statement saying that homosexuality is not a mental illness or disease and said, "(Yoga guru) Baba Ramdev has said that he can cure such sexual habits. The fact is, homosexuality is not a disease. It is another way of sexuality and this can not be punished under present penal laws. It's not just expert medical bodies, but even the World Health Organisation has dropped homosexuality from its list of diseases."
"In our judgment, we never said homosexuality is justified or not justified. The judgment merely states that you can not make this conduct criminal under the penal laws," Shah said.
On the prospect of the Lokpal Bill creating a parallel authority to the Supreme Court, Shah said, "The Lokpal idea is drawn from the Swedish concept of Ombudsman, which is about good governance and not necessarily corruption. An Ombudsman is accountable to the Parliament. We started talking about Lokpal due to corruption in high places. We do need some effective mechanism to check this."
"However, with no disrespect to any person, the Jan Lokpal Bill, drafted by (Arvind) Kejriwal and Anna Hazare, according to me, would create a monster, which is not accountable to anybody. The Jan Lokpal Bill is fraught with great dangers," he said. "Even the Lokpal Bill, passed by the Parliament, is weak and suffers from inadequacies. I have given my presentation on this to the Rajya Sabha panel on the Lokpal Bill," he added. "Corruption won't vanish by creating one more authority. Lokpal has become too controversial an issue. I wish it had been enacted way back and implemented in a smooth manner," he said.
On appointment of judges, Shah said, "The National Judicial Commission would be a way to look forward considering that the present system of collegium has not worked in the wake of criticism like it is opaque, there is no accountability and no transparency. The Judicial Appointments Commission Bill, which is referred to the Parliamentary standing committee, would hopefully bring some change. But, the commission ought to be established as a truly independent body making judicial appointments purely on the basis of merit."
Mukund Sarda, BVNLC principal, made the introductory remarks while senior academicians Uttamrao Bhoite and K D Gaur were present.
JudgeSpeak
On quota: "Reservation has to stay considering the realities of rural India where discrimination on the basis of caste still exists."
On trial by media: "There is no serious analysis of judicial pronouncements in media. Trial by media is a real menace. The Arushi murder case is an example."
On death penalty: "I don't see in a modern democracy, death penalty should be permitted."
On Judicial Service: “We do need an all India judicial service cadre along the lines of the IAS."
Vishwas Kothari,TNN
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