Section 377 : "The Supreme Court spoke for 1.3 billion Indians", Menaka Guruswamy

Bar & Bench September 9 2018

Shruti Mahajan and Murali Krishnan

In what is being termed as a historic judgment across the board, the Supreme Court on September 6 decriminalized consensual sex between adults regardless of their gender. Rendering a new lease of life to the LGBTQ community of India, the Apex Court recognized the equal right to love in a 493-page judgment.

“How strongly must you love knowing you are unconvicted felons under 377 IPC?…this is love that must be constitutionally recognized and not just the sexual act.” Menaka arguing before the Supreme Court in Navtej Singh Johar v Union of India

This statement, made by advocate Menaka Guruswamy, was arguably one of the strongest and most moving submissions made before the Constitution Bench of the Supreme Court during the four-day-long hearing in a challenge to the archaic law under Section 377 of the IPC.

In this conversation with Bar & Bench, Menaka Guruswamy talks about the judgment, the journey of the case, and more.

After the setback in 2013, how did the fresh challenge come about? Is there a story you’d like to share?

After the 2013 decision by the Supreme Court in Suresh Kumar Koushal, all lawyers including us went through the process of filing review, curative etc. But at least five of us who had worked on that case felt that we needed to introspect and change strategy.

Sometimes, loss in a case teaches you a lot more than winning a case. My senior, Mr. Ashok Desai, always told me that if we over-celebrate a win, we will have to over-mourn a loss. I think I have learned and internalized that. We don’t over celebrate wins so that we can still think through a loss. So, we as lawyers introspected on what we could do differently.

One question that was posed in 2013 by one of the judges on the Bench was ‘do you know any gay people?’ It was posed to a law officer and he responded in the negative.

In litigation all over the world, when gay rights are under consideration, and there is a prayer for overruling a sodomy statute or an unnatural sexual offences statute, the key to that has always been to humanize LGBTQ people.

So, one of the things we realized was that in the absence of Article 32 writ petitions, and in the absence of LGBTQ Indians actually coming to Court themselves, the stories were harder to tell in Court. Courtrooms are set up to tell stories. And I think that is something I have learned during other cases as well. It is important to humanize the units before the Court.

Thus, we decided that the strategy would be different and we would have to trigger, in Dr. Ambedkar’s words, the soul of India’s Constitution – Article 32. We decided that we should take the stories of LGBTQ Indians to the Supreme Court.

So you deliberately opted out of the PIL route?

Yes. I think this is something, I as a lawyer, have introspected. I do a lot of Public Interest Litigation and I am delighted to do it. But one downside of PIL is that it has made the affected parties invisible.

As a legal strategy, it is in many ways easier to do PILs and it is more difficult to do Article 32 litigation because the briefs have to be qualitatively different in the latter.

In a 32 petition, the petitioner has to actually tell a story of loss to the Court. I also feel that petitioner who comes to the Court by way of a 32 litigation shares a very intimate relationship with his or her Constitutional court. As a legal strategy and as a Constitutional strategy, this is something that we felt was significant.

We also hope that with this case, there is also more reflection and thought process on how we take Constitutional issues to Court – do we opt for public interest litigations or do we actually opt for Article 32 litigation? Dr. Bhimrao Ambedkar was very clear with what he expected from Article 32. He envisaged it as a critical way to enforce Indian Constitutionalism, and I suspect that with this case, it has been proved right.

Immediately after the 2013 December verdict, the NALSA judgment came out which dealt with a section of the LGBTQ community? How crucial was that judgment?

I think the NALSA judgment was incredibly important and credit is due to Justices KS Radhakrishnan and AK Sikri for writing that judgment. I think it has made a tremendous difference in the lives of transgender Indians.

However, there was something that in this case which was different from NALSA case. Historically, transgendered Indians have very much been present in our popular imagination. They are present in our literature, our learning, our towns, maybe in our homes. You do not have to explain to a judge who is a transgender.

I am not saying that their lives have been very easy or that they have been able to enjoy the fruits of the Constitutional promises. In fact, it is still far from it and much needs to be done.

However, what I am saying is that in the case of lesbian, gay and bisexual citizens, we were talking about imaginary petitioners, as these were not people whom judges or for that matter anybody comes across. So, that imagination had to be amplified in Court, which is what we tried to do in Navtej Singh Johar.

But clearly, the foundation of this was laid down by NALSA and Puttaswamy.

When you were planning to move the Court, did the fact that the curative petition against the 2013 verdict which was/is pending deter you? Were you apprehensive?

No. The threshold for a curative petition is a different threshold. The grounds for curative are clearly laid down in Ashok Hurra.

I think sometimes as lawyers and litigators, you have to take a hint from the Court. So, I don’t think it worried us.

Given that the curatives had been pending and given that there was a threshold of Hurra and given that the implications of Suresh Kumar Koushal were evident including threat of prosecution, it made sense to think about what can be done to this trajectory of the Indian Constitution.

Section 377 is a very vague provision because it does not define an unnatural offence. It was still retained in the statute book for more than 150 years. In fact, Justice DY Chandrachud in his judgment states, “Macaulay’s legacy – the offence under Section 377 of the Penal Code – has continued to exist for nearly sixty eight years after we gave ourselves a liberal Constitution.” Are you surprised?

I think that is a very pertinent question. As a post-colonial country, we should have a very serious Constitutional conversation with ourselves. There has been very little law reform when it comes to many colonial legislations. Section 377 is one of them – a big part of them. But it is not all of what needs to be reformed in free India’s legal telling.

Am I surprised that we have done so little law reform of a coloniser’s legal framework? Absolutely. Am I horrified that we have let this remain, that we have not fought or introspected that Parliament has not initiated a large scale serious law reform effort to remedy so much of a coloniser’s legal framework? Yes, I am.

I think our drafters would be very disappointed at how little we have reformed, and how many pieces of legislation stay on the book simply because it was convenient for a Governor General representing a colonial power to have it on the books. The colonial imagination was that of Indians as subjects and not as citizens.

But in free India, surely, it is citizenship that we have to guarantee and we definitely need that law reform effort.

Do you think our efforts towards law reform are ad hoc and there is no proper framework or planning towards that end?

Absolutely. They are mostly ad-hoc. In fact, the Court is often caught in a situation where it has to do law reform because of the crying need for a particular penal provision or a statute or an entire piece of legislation to be reformed. That is exactly what is happening.

In many ways, the Court bears the brunt of the unwillingness of the Indian State to engage in a very serious, well-thought out law reform project in tune with Constitutional values.

This is the case not just in India, but in most of the post-colonial world. Why is this the case? It is because it suits rulers, colonial or otherwise, to have certain dynamics in place.

So, apart from all the wonderful things that this judgment will bring to this country – the conversations on Constitutional morality and equality and dignity and life and liberty – the other important debate that it should usher in is about the desperate need to reform the Indian legal system.

In that context, the Centre never took a stand. It left it to the wisdom of the Court. Thoughts?

We lawyers and litigants many times do that (smiles).

The current government’s stance has been quite similar to the previous government’s position. I would rather look ahead and move on.

One of the things about litigation is that we have to display grace. And I think that this is a moment of grace. We have this wonderful decision and we are deeply aware of the historic nature of this judgment. As an officer of the court and as a lawyer, I am extremely proud of this judgment by the Supreme Court – not just because it means something in India. But this judgment will be looked at all over the globe.

I can guarantee you that, right now, lawyers, litigators and activists are gearing up to challenge unnatural sexual offences statutes all over the old colonial world. Navtej Singh Johar will be one of the cases counsel will cite. In fact, they may well start with it.

So I think it is a very big moment. There are two real stars at this moment – the Constitution of India, and the Supreme Court of India. We must let them both bask in this moment.

In your concluding submissions, you urged the Court to go beyond striking down Section 377 by giving some direction for civil rights of the LGBTQ community. The ASG however, objected to that tooth and nail. And the Court has not gone into that aspect.

My primary arguments were on the Equality Doctrine, Articles 14, 15, 19 and 21.

And I believe that all four judgments deal with this. They locate not just decriminalization of the section, but also the Constitutional understanding of extending equality, equal protection, dignity, life, liberty and non-discrimination to LGBTQ Indians.

It is really impossible as a lawyer to expect more from a Constitutional Court? I think that we are gratified that the Court has gone this far.

I am particularly happy that the judges looked into Constitutional morality. It is extremely important in the times that we are living in today.

Some of your submissions have been extensively relied upon by the Court. For example, your submission on how criminalizing acts based on gender stereotypes violates Article 15, which Justice Chandrachud has discussed at length. How does that make you feel?

As an officer of the Court, there really is a no higher compliment than your submissions being reflected in a judgment. We are deeply humbled.

Menaka Guruswamy and Arundhati Katju with the petitioners in the case

I think it is this question which we face when taking up law for graduation – why law? Why is being a lawyer special? Why is writing about law special?

I think it is special because by the tools of our trade, we can expand a human being’s freedom. So, to be a small part of that is really gratifying. This is why I went to law school.

Does the fact that the Centre has not taken a stand yet on the outcome of the case make you feel apprehensive going forward, particularly when it comes to securing further rights for the LGBTQ community?

The judgment was delivered two days ago. I think the drafters of India’s Constitution expected future generations to be thoughtful. I think as lawyers, we want to be thoughtful and examine the judgment and understand it.

I am sure the government also wants to be thoughtful and wants to reflect. I think their Constitutional obligation is to look to values such as fraternity, equality, life, liberty and dignity.

In many ways, what the Constitution demands from each of us is not just that we embrace the other, but also that we unlearn our prejudices. We should unlearn the assumptions we make about things that we do not understand. I would expect that all of us need to participate in that project. We all need to unlearn our prejudices.

I think that the Supreme Court, with this judgment, has spoken categorically about the sensitization and unlearning that needs to happen. We must all re-examine long held assumptions, about many things. We should all be part of that project, including the government.

Chief Justice Dipak Misra has spoken of the doctrine of non-retrogression in his judgment. Is this the first time that an Indian Court has made mention of the same in a judgment?

“A good Constitutional court gives you well-reasoned judgments that explore history, Constitutional trajectory and terrain.”

Absolutely. I think that the Chief Justice’s judgment was wonderful. There is a lot in all of the judgments that I have not usually seen. The directions for sensitisation, non-retrogression, progressive realization, the observation by Justice Indu Malhotra that history needs to extend to LGTBQ Indians and their families an apology, are all extraordinary.

This is the thoughtfulness that India’s Constitution expects from us. I think that in the pitched, shrill debate of politics in this country today, what a good Constitutional court does is that it gives you well-reasoned judgments that explore history, Constitutional trajectory and terrain. That has been done by all the four judgments.

That sets up the terms for the only acceptable way in interacting with each other – that it will not be majoritarianism or popular morality, but Constitutional morality which will govern us.

Are you contemplating any future action based on this judgment?

(Smiles) Something, which, I have done in the past when I feel that we have achieved a wonderful outcome, is to celebrate with a glass of Horlicks. So the first thing I am doing today is to get Horlicks!

Once that is done, we will take stock. What is really nice about today is that there is something lovely about renewing the faith, in a text, in a Court. I am a great believer in the Constitution and the Supreme Court, and the potential of both to expand freedom in India.

It is a really big moment for this country. We are not just a country of 1.3 billion Indians. We are 1.3 billion Constitutional stakeholders, and the Court spoke for all of India yesterday. I think that is a very big thing.

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