“The beauty of the Constitution is that it compels us to unlearn our prejudices”: Menaka Guruswamy discusses the Section 377 judgment

10 September 2018
Shahid Tantray for The Caravan
Shahid Tantray for The Caravan

On 6 September, in a landmark unanimous verdict, a five-judge bench of the Supreme Court partially struck down Section 377 of the Indian Penal Code to decriminalise sexual relations between consenting adults. The provision had long been a tool of oppression used against the Indian queer community and its decriminalisation marked a momentous recognition of basic human rights in the country. In 2009, a bench of the then chief justice of the Delhi High Court AP Shah and Justice S Muralidhar ruled that the provision violated the right to equality and right to life in the Constitution. Four years later, on a petition filed by an astrologer, Suresh Kumar Koushal, a division bench of the Supreme Court, presided over by the justices GS Singhvi and SJ Mukhopadhaya, overturned the high court’s verdict, upholding the constitutionality of Section 377.

The Supreme Court’s 2013 verdict was challenged in a review petition, which was dismissed, and multiple curative petitions remained pending for years, till the apex court began hearing the case, in July this year. The bench, comprising the chief justice of India, Dipak Misra and the judges AM Khanwilkar, DY Chandrachud, Rohinton Nariman and Indu Malhotra, heard several petitioners, intervenors and respondents in the case before pronouncing its verdict in a nearly 500-page judgment. Four judges wrote separate and concurring opinions—Misra wrote on behalf of himself and Khanwilkar—reading down Section 377 and expounding on the fundamental rights to equality, liberty and a life with dignity for the queer community. Each opinion acknowledged the historic discrimination suffered by the community and emphasised that majoritarian values cannot defeat constitutional morality. “Society cannot dictate the expression of sexuality between consenting adults,” Chandrachud writes. “That is a private affair. Constitutional morality will supersede any culture or tradition.”

Among the lawyers heard by the court is the advocate Menaka Guruswamy, who argued on behalf of petitioners from the Indian Institute of Technology in Delhi. Guruswamy has been among the leading lawyers involved in the struggle to decriminalise Section 377 since before the 2013 verdict. In her arguments before the Supreme Court, she asked, “How strongly must we love, knowing we are unconvicted felons under Section 377?” She further argued that the court must not only read down Section 377, but ensure that the queer community in India is guaranteed its fundamental rights and liberties under the Constitution. In an interview with Arshu John, an assistant editor at The Caravan, Guruswamy discusses her journey in the case, the idea of “constitutional morality” as described in the judgment, and the doors that it has opened up for the Indian queer community. “I think now and forever,” she said, “to trigger the constitution using her soul, LGBT Indians would not hesitate before going to court.”

Arshu John: How did you come to be associated with this case?

Menaka Guruswamy: Through the process of the actual loss in 2013 [in the Suresh Kumar Koushal case], after the initial shock, your professional instincts kick back in—of being litigators. Initially, Arundhati [Katju, a lawyer who also worked on the case] and I chatted a lot about what accounts for the loss. We were both left with this question that Justice Singhvi asked in court. He asked [the then additional solicitor general] PP Malhotra, “So Mr Malhotra, do you know any homosexuals?”

Arshu John is an assistant web editor at The Caravan. He was previously an advocate practicing criminal law in Delhi.

Keywords: Section 377 homosexuality Constitution sexuality Supreme Court BR Ambedkar
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