Lesbian couple Menaka Guruswamy and Arundati Katju were nominated as India’s most influential people in 2019 by Time magazine. The couple were key advocates in the legal argument against section 377, leading to a remarkable victory for India! Let’s take a look at their journey and how the victory against section 377 was not only a professional triumph but also a personal one for the two advocates.
In 2009 a judgement was made by the Delhi High Court which effectively repealed section 377, the law that criminalises homosexuality. On 11th December 2013, the Supreme Court of India set aside the 2009 judgement and declared queer sexuality as “carnal intercourse against the order of nature” reimposing section 377. The court also stated that “a miniscule fraction of the country’s population constitutes of gays, bisexuals or transgender and that the High Court had erroneously relied upon international precedents in its anxiety to protect the so-called rights of LGBT persons”. In an interview with CNN, Arundati expressed her disappointment, saying, “It is not nice to be a ‘criminal’ who has to go back to court as a lawyer to argue other cases.”
Menaka and Arundati who are also colleagues, helped the Naz Foundation file a review petition against the Supreme Court order on Section 377 with compelling reasons to overturn the judgement. But on 28th January 2014, the Supreme Court dismissed the review petition, upholding its earlier judgement once again. According to Menaka, during the hearing of the review petition, a senior judge asked a law officer whether he himself knew any homosexuals. The officer laughed and claimed that he was “not that modern”. An assumption that queerness was a mental sickness imported from the west had prevailed among Menaka and Arundati’s colleagues. At that point the couple realised that the judge had no idea about queer expression and that they, as queer advocates, were themselves invisible to the judges.
In an interview with the Oxford Union in England, Arundati said, “There have been mental health professionals, parents of queer people, teachers and a member of parliament, who all spoke about the impact that section 377 had on LGBT people. But there were never LGBT people in court, speaking in their own voices about what it meant to live life under a sodomy law”.
Arundati and Menaka realised how critically important it was for queer people to come out and they set about motivating the LGBTQ+ community to pursue their rights in the court.
In June 2016 Navtej Singh Johar, a queer dancer from India, along with four other queer Indians, filed a petition fearlessly coming out as queer despite its criminal status. The case was noted as Navtej Singh Johar vs Union of India. The petition argued that Section 377 violated the right to privacy as it subjected LGBT people to the fear that they would be humiliated or shunned because of “a certain choice or manner of living.” This bold move by the queer community to fearlessly speak in their own voices against section 377 helped Arundati and Menaka educate the law officers that queerness was not a fiction or a “western illness” but, in fact, a reality. However, with more queer people and organisations coming forward with their own petitions against 377, the case went on went on for two years.
The matter was heard on 17th January 2018 by a five-judge bench of the Supreme Court. In the same year Arundati also led the filing of another petition with 20 queer students from reputed technology institutes of India. These young queer students argued that the upholding of section 377 left them with no choice but to flee from India to live a dignified life.
How strongly must we love?
The fight continued for five years but the advocates, the queer community and its allies did not let up, no matter how exhausting it got. More queer people joined in and the backlash against previous judgments in support of section 377 was evident n to only in India, but around the world.
“How strongly must we love knowing we are unconvicted felons under Section 377? My Lords, this is love that must be constitutionally recognised and not just sexual acts.” These words of Menaka Guruswamy during the final arguments in the Navtej Singh Johar vs Union of India case moved the courtroom to tears.
Finally, on 6th September 2018, a landmark judgment overturned the 157-year-old colonial-Victorian law, thanks to Arundhati Katju and Menaka Guruswamy with the support of many queer people and allies. Guruswamy and Katju revealed that the victory was personal as well as professional, when for the first time, they came out as a couple after overturning the judgement.
Supreme Court Justice Indu Malhotra, while reading the judgement said “An apology [is owed] to members of the LGBT community, for the ostracisation and persecution they faced because of society’s ignorance”. This will forever remain a remarkable and a significant day in the history of India!
Menaka and Arundati are now on a mission called “The Marriage Project” which not only seeks to legally recognise queer marriages, but also entitle queer couple to the same privileges afforded to heterosexual married couples: life insurances, property legislation, health and education facilities and so on. Menaka had also raised a petition that a “couple of any background who do not categorise under the recognised social norms should also be protected under the law”. This not only gave raise to many queer couples coming forward to support the petition but many inter-caste, mixed faith and mixed race couples too.
While Menaka and Arundati’s attempt to broaden the horizons for freedom to love is commendable, the debate on how divorce procedures, in case of a legalised queer marriage, should differ from the present divorce procedures designed for heterosexual couple, is ongoing. However, having taken early steps towards queer freedom, the Indian LGBTQ+ community is eagerly awaiting that long awaited leap into the legislation of same-sec marriage so they, like everyone else, can live and love with dignity.