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Delhi High Court judge who legalized gay sex saddened by Supreme Court ruling

The Delhi High Court judge who legalized homosexuality in India in 2009 has spoken out against the Supreme Court ruling that overturned his decision, saying he feels deeply sad for India’s LGBTI community
AP Shah
Photo by CNN India

Former Delhi High Court judge AP Shah who legalized homosexuality in India in 2009 has spoken of his disappointment at the decision by two Supreme Court justices to overturn his decision.

‘My first feeling was deep sadness about those people, the LGBT community,’ Shah, who is now India’s Law Commission chairman, said during a interview on CNN India on Sunday.

‘I was disappointed … Given the subject matter of the appeal, I thought that our views would prevail.’

Shah also spoke in depth on the issue to the Indian Express, saying it was ironic that India was holding on to a law the British had passed to suppress what they thought were Indian vices.

‘Some speak of this as a “western disease,”’ Shah told the newspaper.

‘First of all, it is not western. Temple imagery and essential scriptures show there is some evidence of homosexuality being practiced 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.’

Shah said it was vital that the majority did not decide the rights of minorities.

‘What is envisaged by the Constitution is not popular morality,’ Shah said.

‘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.’

‘For instance, untouchability was approved by the majority, but the Constitution prohibited untouchability as a part of social engineering. [Wife burning] was at one time approved by the majority, but in today's world, it would be completely inconsistent with the Constitution.’

The Indian Government says it wants homosexuality to be legal again but is seeking a judicial review of the Supreme Court’s decision rather than putting forward legislation of its own to solve the issue as there is an election in 5 months.

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