Arundhati Katju On LGBT+ Community’s Battle to Strike Down Sec 377

Lawyer Arundhati Katju talks about the legal battle to strike down Section 377. 

Published
Gender
4 min read

Producer: Garvita Khybri
Editor: Mohd Irshad and Ashutosh Bhardwaj

Supreme Court lawyer Arundhati Katju, who argued against the constitutionality of Section 377 with lawyer Menaka Guruswamy delivered a keynote speech on the importance of the judgment at St Xavier’s College’s annual festival ‘Malhar’.

She discussed the many years of struggle that led to the judgment. Here’s an excerpt from her speech:

Section 377 was never only about carnal intercourse… it was actually about the right to citizenship. And the right to citizenship that’s been guaranteed to us under our Constitution.

So, if you think of the Constitution and what it guaranteed to us – one, as rights-bearing citizens; secondly, as members of the federation; and thirdly, who would be governed by these Constitutional institutions: the judiciary, the executive, and the parliament – so 377 was about the limitations it placed on LGBT+ individuals as citizens. The limitation against being able to express yourself freely, the limitation against being a full and equal member of society.

The main thing I want to emphasise (about the IIT petitioners) is that they were much younger. You are never too young. You don’t need to wait for anybody’s permission. 50 percent of the country is under the age of 25, and 65 percent of the country is under the age of 30. What are your aspirations for India? What is it that you hope to achieve? What is the kind of country that you hope to live in?

What is really striking about them is that they had an aspiration of citizenship. They had not lived 40, 50, 60 years and changed their lives around the sodomy law. They believed that they could have relationships, they could choose the profession that they want, they could live where they wanted to... right here in India.

They didn’t have to go abroad to live these lives. They didn’t want to travel to metros to live this life. They wanted to be able to do it wherever they were born and brought up, to live in their own communities, to live in their own hometowns, and to have this full life of citizenship, to really believe that you have a claim to that.

We were able to do that (have LGBT+ individuals in court as petitioners) because of Article 32 of the Constitution.

It makes sure that if your fundamental rights are violated, you’re able to go directly to the court. So, Article 32 is a remedy. The right to go to the SC is itself a right guaranteed under the Constitution, and that’s what we invoked.

Why is the Indian Constitution framed this way? Why is there this concern with federalism and ensuring federal structure, and protecting the rights of the state and the Centre?

It is of course (due to) India’s freedom struggle… it is the birth of India’s freedom that guarantees us these rights. And the Constitution is drafted against the backdrop of this horrific violence which is taking place, and these questions we are still grappling with today, in terms of minority rights, in terms of the rights of the individuals...

In a way, it’s the promises that we make to each other – that we will conduct life in the Union with certain guarantees and certain protections enforced, which are meant to be there for each and every one of us. That is actually the amazing promise of India’s Constitution. And the SC of India is tasked with protecting the rights of its citizens.

You have the right to choose your partner.

And that comes on the back of a long line of judgments where the court has protected the rights of inter-faith couples and inter-caste couples. And it said that even if you go against what the majority thinks or what the majoritarian social values might be, the court and the Constitution are there to protect you.

I want to end by just saying that this win came on the back of a loss. We had a win in 2009 from the Delhi High Court, then we lost in 2013, and then we won in 2018. It’s easy to think that maybe this is just the onward march of history, that hona hi tha, that rights are inevitable and that we live in a world where rights will keep progressing – that isn’t actually the case. You can win, you can lose.

Sometimes you win and then you lose. You have to go back to the drawing board and really think about, “How do I need to change the narrative?” and “How do I need to change my own thinking about a certain issue to get to the country that I want to live in?”

It is because we understand that there was a promise that was made to us under the Constitution, and that promise was that we would live within a Constitutional framework.

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