(This story was first published on 5 September 2020. It has been reposted from The Quint's archives to mark three years since Section 377 was read down.)
[This is an exclusive excerpt from ‘Sex and The Supreme Court’ (Hachette, 2020), a book on the landmark judgments passed by the apex court on sex, sexuality and gender, written by the legal luminaries and petitioners at the heart of the cases. The editor of the book and author of this excerpt, Saurabh Kirpal, was the counsel for Navtej Johar, Ritu Dalmia and others in the case that led to the striking down of Section 377 of the Indian Penal Code.]
The Constitution is, so to say, the holy text; it does not merely confer rights on individuals but also has the power to transform the lives of oppressed people. And if the Constitution is the holy text, the judges would be the high priests.
Without a sensitized and empathetic judiciary, the words of the Constitution would be empty promises. It was judicial indifference that resulted in Section 377 being retained on the statute books, and it was the clear presence of empathy that resulted in Section 377 being read down.
Nowhere was the empathetic attitude of the Court as apparent as in the judgment of Justice Indu Malhotra. In the memorable concluding words of her judgment, she said this: