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

By Arshu John | 10 September 2018

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?”
All the petitions and interventions in court, they were all public-interest petitioners—parents, psychiatrists, [the filmmaker] Shyam Benegal, organisations, institutions. They are doing very important, ground-breaking work. But the question remained—did anyone know a homosexual? And the question remained unanswered in that courtroom. Arundhati and I were very struck, later when we were thinking through the decision. In many ways, that question lingered.
As litigators you have to ask yourselves- in the things you can control, are there any gaps in the case? And the big gap we found was that there were no LGBT individuals exercising their constitutional rights to trigger cases in courts. As a litigator, for me, the stories that are the most powerful to tell are the stories of you speaking for your client whose constitutional rights have been violated. Those are the strongest petitions. [BR] Ambedkar calls Article 32 the soul of the Constitution. Why does he call it the soul of the Constitution? Because he knows, it is the soul of the constitution and it will trigger the constitution for you. It is the most intimate way an Indian citizen can tell her story to a judge. And I want to reemphasise that—tell her story to a judge. And it is not being deviated, and we felt that this was very important.
In 2015, we drafted the first [writ] petition. In 2016, we filed. In 2018, five more petitions come to court, including the IIT petitions, which I argued. Now, we have writ petitioner after writ petitioner, LGBT person after LGBT person, saying, “This is my life, this is who I am. I’ve come to court and I would like the promises of the constitution extended to me as well.” I think now and forever, to trigger the constitution using her soul, LGBT Indians would not hesitate before going to court.

AJ: Is that going to be a possible recourse now? Can members of the LGBT community approach the court on the claim of a violation of the right to equality?
MG: Certainly. The judges are very clear. Justice Malhotra and Justice Chandrachud have said Article 15 will apply. [Article 15 of the Constitution prohibits discrimination on the grounds of religion, race, caste, sex, or place of birth.] Sex includes sexual orientation. So sex is a prohibited ground of discrimination in the Indian constitution. Sexual orientation has been read into that. That means if there is an employment-discrimination claim—if an LGBT Indian has been discriminated in the employment arena by virtue of her sexuality, she can go to court.
This is a constitutional court adjudicating a case. This is a case of principle. You are clarifying that the constitutional conception of full fundamental rights applies also to a section of society that has been stigmatised. This is firm constitutional foundation. Supreme Court judges don’t pass judgments where they [discuss] each and every ground in every context. It is impossible. But you create constitutional principle. And then you build on it.

AJ: The reliefs you sought from the court in your petition were quite expansive. How has that fared against the judgment?
MG: We were very clear in all the petitions that we argued that we were pushing for equality, equal protection, equal rights, non-discrimination, expression, and right to life and liberty. And between the four judgments, the justices have firmly stated an understanding of LGBT Indians, and constitutional claims firmly located in the fundamental-rights chapter of the Constitution. We are very gratified.
I think the beauty of this Constitution is it compels us to unlearn the prejudices we hold true, that we may have grown up with. This Constitution says, “Look, there is a fraternal concept of this country.” This is a major foundation. It is a wonderful set of four judgments across the board. That is also very powerful that you have four judgments, five justices, feeling so strongly. This was not a narrow win, this was unanimous. They engaged constitutional principle—I remember arguing Article 15 with some trepidation, saying that sex includes sexual orientation, and they had questions.
I have heard from other countries—Malaysia, Sri Lanka, Trinidad and Tobago—because the Supreme Court is looked to. I think that is part of the imagination, but it is not discussed often. The Indian Supreme Court is a court whose judgments are really looked up to by apex courts in the global south, especially by courts in the former colonial belt.

AJ: A fundamental aspect of this judgment is its reliance on “constitutional morality.” What is this, and what does it really entail?
MG: What is constitutional morality? It is all these cases that are anticipated and adjudicated by the Supreme Court. Constitutional values are a conceptual fabric—think of it as a highly expandable fabric that you wrap yourself around with each individual instance that you bring to the court. It an expansive concept like basic structure. It will be adjudicated and applied per case.
Someone asked me a while ago in an academic setting, “You rely on Ambedkar so much”—I talk about [his work], I’ve quoted him extensively when I write—“Why is that?” The reason is very simple: Ambedkar is timeless. I use his thoughts from the Constituent Assembly in an assortment of cases—LGBT rights, allegations of extra-judicial killings by security personnel, special police officer in Chhattisgarh.
And I think you know, if Ambedkar were here, he would be thrilled with this use of it. I am very sure, in cases like this, the rare moments, I think if our drafters were around—the women and the men, and the figures of the constituent assembly—they would have looked at the judgment and every judgment like this and would have said, “Good job.”
It is particularly gratifying to have a constitution that can be deployed, a court that responds to the deployment, but also to have had founders and dreamers who have given us the imagination, who have given litigators and petitioners the imagination and the moral certainty that you are on the right side of this constitution. That is what is so incredibly powerful about what these drafters put together for us. My vision of being a lawyer, my vision of what you say in court—the stories that you tell and the moral certainty with which I can sit—really, I think is driven by these debates and by what the framers put in place.

AJ: How does one determine the constitutional morality in cases where there would be a clash? For instance, if there was a clash between the religious rights secured under Article 25 of the Constitution, and other conflicting constitutional values.
MG: I think we must understand that the judiciary itself is a dynamic concept. It is not static. A part of the problem with codified personal laws is that they assume that religion at that moment is static. That is not the truth. People of faith are also dynamic individuals. You see the evolution of how we practice our faith in small things—a Hindu woman lighting a funeral pyre. We have seen that play out in the recent past, when a famous political figure died. These are all ways in which religion that is dynamic. Women going to inner sanctum of a temple, women on triple talaq—these are all dynamic concepts. Let’s leave the law and the court out of this. Let’s engage with religion and faith conceptually. People of faith, young people or older people—is there no change we see on how they engage with faith? Are not younger Hindu women engaging with faith differently than older Hindu women? Is that them stepping out religion or is that religion showing that it is adapting? I feel the problem is the analysis, the lens that is imposed on this. A static religion, with the constitution running along, is not an accurate lens. It is religion and constitution both being dynamic and moving along, and meeting each other.
This a young country, whether we like it or not. Young people are aspirational, not just materially, but they are also aspirational in terms of their faith, in terms of their families, in terms of their life, and clearly as we’ve seen, in terms of love. And they will lead dynamic lives, and with them will change things.
In the Mughal period, that a woman could issue coins in her name as Begum Badshah was inconceivable. Who is to say, in this rapidly changing, large, diverse, vast, complicated land of ours, that this is how you practice, gender or religion or faith? Who would have said in India 200 years ago that at a point in the future, you will have a sovereign nation, that is this country, which will outlaw untouchability? Who would have conceived of that? Even Ambedkar gives up on temple entry at one point and says we must focus on education.
But here we are, you have young men and women in this country of different faith wanting to access their place of manifestation of that faith or worship.

AJ: What is the way forward, in order to work towards that dynamic change?
MG: Like all judgments, this will be a work in progress. The judges have expected the government to initiate the sensitisation of sexual orientations. Justice Nariman’s mention of the police is so important—the police has been such a force of brutalisation of the LGBT community. Change will happen. It will take time, but we will all, as a society, have to fight for it. India is not a free land—it is fascinating, but not free—we will have to fight for it. There will be claims of discrimination, there will be claims of violation of equality. The only difference is that now you have a platform.
It is going to take hard work. This will take activism, this will take litigation, this will take education, and most importantly, I think this will take thoughtfulness. The government will have to be thoughtful, the trial courts will have to be thoughtful when these cases come to court. But the doors to constitutional citizenship has been opened, and now how you enter and what you do with that entrance, is going to be a work in progress that will take tremendous hard work. As we’ve seen with caste struggles, with women’s movements, and with religious minorities—it is a day-to-day battle. It will be a thoughtful battle, hopefully.

AJ: How do we fight those battles, particularly in the context of intersectional minorities such as the transgender community?
MG:
Especially with the transgender community, how hard it has been to implement the NALSA [judgment] is a case-in-point. The one takeaway is that there has to be more strong organisational responses. It would be good to see more organisations being established all over the country. And this is not just on the LGBT [community].
I really think that movements have it so hard in India. To some extent, the only organised movements that have really flexed muscle—and there’s something to be learnt from it—have been the trade union movements in the country. At the end of the day, India will transform with organised movements. You need that in small towns, big cities, in rural India, urban India. Also, now political parties  have to step up to the plate. They have to take on board this constitutional morality that includes LGBT Indians. They need to mature, they need to be welcoming, they need to unlearn their prejudices, if they exist, and they need to step into this new India. It’s a collective project.

AJ: On that note: Justice Chandrachud’s judgment included his comments about the government of India not taking a stance on the constitutionality of Section 377 and leaving it to the “wisdom of the court.” After the judgment as well, the government is yet to issue any official comment or statement about the verdict.
MG:
(laughs) I was taught by my senior I worked with that, when you win a case, you have to display grace. As a litigator, I think I will display grace. As a citizen and an officer of the court, I would really expect and hope that this government will be thoughtful and realise that it represents all Indians, and not just a section of India, and implements the judgment in the spirit that it is meant to be. This judgment presents a real opportunity for the government to be the people’s government. It can only enhance them as well and I would really hope for that.
But you know, I think we have to keep doing what we do. There isn’t a holiday for securing and protecting the constitution. I’m sure that activists all over the country, for lawyers and for other people, this is a moment of great energising as well. There will be celebration—and now back to work. We will go back to work.

This interview has been edited and condensed.

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

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