Judge who legalised homosexuality hurt at not being elevated to SC

Chief justice Ajit Prakash Shah of the Delhi high court, who scripted landmark judgments legalising homosexuality and bringing the office of the chief justice of India within the ambit of the Right to Information Act, today said he was "hurt" at being bypassed for elevation to the Supreme Court.

"I cannot pretend that I am not hurt," justice Shah said during an interaction with reporters on his last working day. "A sense of hurt is always there. These things happen in life."

Justice Shah, who has been described by some of India's top jurists as the judge most deserving of elevation to the Supreme Court, said it was for the people to decide why he was not elevated.

"I think it is for the people to judge why I was denied... It really hurts as a human being," justice Shah said.

The Supreme Court collegium bypassed justice Shah, one of the most senior high court chief justices, for elevation while recommending to the Centre names of other judges who were junior to him in October 2008.

The government refused to accept the collegium's decision and returned the file. But it had to accept the recommendation when the collegium refused to give in.

Justice Shah, who took over as chief justice of the Delhi high court on May 11, 2008, retires on Saturday after a tenure of around 21 months.

The justice, who wrote the path-breaking verdict legalising homosexuality among consenting adults, said he was a bit apprehensive of people's reaction to the verdict.

"On that day, I did not switch on my TV till 8:30pm as I was not sure about the kind of reaction the judgment would provoke," he said, admitting that even he had earlier thought that homosexuality could not be legalised in the country.

"While attending a workshop in Mumbai, I met some gay activists and I had said at that time that it was difficult for the courts in India to strike down the criminal provision on gay sex. But ultimately the case would come to my way and I would decide the matter," he said.

Another controversial judgment pronounced by justice Shah related to whether the chief justice of India's office comes within the ambit of the RTI Act. He decided against the consistent stand taken by chief justice of India KG Balakrishnan.

The justice said the office of the chief justice of India comes within the purview of the transparency law and the higher judiciary should not shy away from public scruitny.

He also directed the Delhi government to appoint special educators for students suffering from various disabilities and ordered 3% reservation for the disabled in jobs in public-sector undertakings.

Justice Shah expressed unhappiness at the misuse of the weapon of PIL (public-interest litigation) for publicity.

"PILs are vastly misused," he said. "The purpose was to protect the interests of the general public and the rights of the poor (which) were neglected... These are all perversion of PIL. We must address the problems of the weakest sections of society."

With regard to the charge of corruption in the judiciary, justice Shah
said there is corruption but it is minimal at the higher level. "I will not be telling you the truth if I say no corruption is there in the judiciary. It is a reality, corruption does exist, but minimal corruption is there in the higher judiciary."

As for guidelines for the media while covering sensitive court cases, he said the courts had nothing to do with this. "There has to be some self-regulating mechanism for the media," he said.

It was an emotional day not only for justice Shah but also for the staff and lawyers as they bid him farewell. Justice Shah remained busy the whole day meeting court staff, journalists, and lawyers from the high court bar since entering the court at 10am.

Justice Shah brought several reforms in the high court, including setting up the first arbitration centre in India and launching two e-courts.