By Dushyant Shekhawat Sep. 06, 2018
Seven decades ago, one generation of freedom fighters drove British colonisers away from this country. Today, another generation has seen one of their lingering relics off for good. Menaka Guruswamy is one of the many participants who’ve helped win us the right to love who we want.
Goodbye, and good riddance to Section 377. In what will be remembered as a historical moment for equal rights in India, the Supreme Court took the long overdue step of striking down the Victorian relic that was Section 377. The law will no longer distinguish between different kinds of love, and it’s been a long, arduous journey to get to this point, and it’s taken years of hard work from individuals like Menaka Guruswamy. The Supreme Court lawyer will be forever remembered as the advocate whose petition led to today’s paradigm-changing decision by the Supreme Court.
When the Supreme Court, in 2013, overruled the Delhi High Court’s 2009 decision to scrap 377, Justice G S Singhvi declared that he had “never met a gay person”. This must have come as a shock to the thousands of LGBTQ Indians across the country, for whom this statement was a denial of their very existence. In response to Justice Singhvi’s remarks, Guruswamy filed a writ petition to scrap 377 on behalf of five citizens: Dancer and artist Navtej Singh Johar and his partner journalist Sunil Mehra, restaurateur Ritu Dalmia, hotelier Aman Nath, and marketing professional Ayesha Kapur. Guruswamy also represented a group of IIT students in the matter.
While the LGBTQ community’s struggle for acceptance is decades old – and will likely continue in the foreseeable future – the legal battle gathered steam in the mid-2000s with petitioners like the Naz Foundation leading from the forefront. The final charge has been led by Guruswamy and her legal team. Her arguments in court have been vehement and impassioned; she has not flinched from referring to 377 as an “arbitrary” and “unconstitutional” law that violated the fundamental rights of Indian citizens. In a far cry from Justice Singhvi’s assertion of never having met a gay person, Guruswamy brought the plight of Indians suffering due to 377 into sharp relief, directing the court’s attention to individuals whose lives had been directly affected.
Danish Sheikh, one of the petitioners, told the Deccan Chronicle newspaper earlier this year, “Ms Guruswamy did not give a chance to the judges to ask about the existence of the LGBT persons, instead she went ahead acknowledging the presence of the petitioners who stood in the courtroom, also invoking the names of those who were not present. Never has this happened before.”
Today’s judgement provided not only redressal, but also expressed shades of regret that a section as discriminatory as 377 has been allowed to rule the lives of so many Indians until today.
One of the crucial differences between the litigation pursued by Guruswamy’s team and the earlier attempts to strike down or alter 377 has been a reorientation of the arguments. Rather than a PIL filed by an NGO, Guruswamy presented the Supreme Court with a writ petition filed by citizens of India, who felt their fundamental rights were being violated. What this means, as put forth by journalist Shivam Vij in an article titled “Why the Legal Challenge to 377 is Much Stronger This Time”, is that the Supreme Court can no longer say that it’s a minuscule minority that is affected, because this is not a PIL but a writ petition. Now that Indian citizens have approached the Supreme Court because their fundamental rights are being violated, it becomes the court’s duty to provide redressal.
Today’s judgement provided not only redressal, but also expressed shades of regret that a section as discriminatory as 377 has been allowed to rule the lives of so many Indians until today. In her statement, Justice Indu Malhotra said, “The society owes an apology to the LGBTQ community for the years of stigma imposed on them.” These words, and this verdict are true landmarks for Indian society, and Menaka Guruswamy is but one of the many, many people who have participated in this struggle for whom this will be a fitting finale.
The battle to strike down 377 can best be described as a freedom struggle, and individuals like Guruswamy, the petitioners, the many NGO members that approached the courts before them, and every member of the LGBTQ community that has suffered because of the law are freedom fighters. Seven decades ago, one generation of freedom fighters drove British colonisers away from this country. It’s only fitting that today, another generation sees one of their lingering relics off for good.