Section 377 under the India Penal Code hungover LGBTQ+ lives for years, criminalizing their very existence to exist. Lawyers Menaka Guruswamy and Arundhati Katju fought to change that—and won.
Pride flag in New Delhi, India. Nishta Sharma. Unsplash.
Since 1861, when India was under British colonial rule, there was a section of the India Penal Code that crimilized homosexualtiy as it was “against the order of nature”. In 2013, protestors fought for the code to be recognized as unconstitutional in the eyes of the law, but in a historic case titled Suresh Kumar Koushal vs. Naz Foundation, the Bench stated “We hold that Section 377 does not suffer from… unconstitutionality and the declaration made by the Division Bench of the High Court is legally unsustainable.” Although they would not mark it unconstitutional, the Bench also stated, “Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 from the statute book or amend it as per the suggestion made by Attorney-General G.E. Vahanvati.” To put in more simple terms, the Bench wanted to redirect who made the decision, and stated the matter should be decided by Parliament, itself, not just the judiciary.
In 2016, the case was revisited by three Court members and they decided to pass it on to a five-member court decision. It was not until a year later when the LGTBQ+ community of India saw results. In 2017, in the Puttuswamy case, the Court ruled that “The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21” - a historic decision which overruled a previous case that said there is no right to privacy in India. The Court also found that “sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.” Essentially, they condemned discrimintion and give validity to the rights of the LGTBQ+ community.
It wasn’t until September 2018, though, when the Court ruled “in so far as it criminalises consensual sexual conduct between adults of the same sex” in the Navtej Singh Johar v. Union of India case. According to an article in the Guardian, chief justice Dipak Misra stated that “Criminalising carnal intercourse under section 377 Indian penal code is irrational, indefensible and manifestly arbitrary”. Misra goes on to say “Social exclusion, identity seclusion and isolation from the social mainstream are still the stark realities faced by individuals today, and it is only when each and every individual is liberated from the shackles of such bondage … that we can call ourselves a truly free society.”
Now, a year later, two lawyers who worked on dismantling Section 377 came out as a couple. In an interview with CNN’s Fareed Zakaria, Menaka Guruswamy and Arundhati Katju announced that they were a couple. Ms. Guruswamy stated that they fought so hard because "That was when [they] decided that [they] would never let the LGBT Indians be invisible in any courtroom".
The couple’s decision to come out was met with raved support, one user on Twitter congratulated them and added, “Personal is indeed political”. Which is true - queer people anywhere are responsible for queer people everywhere because to fight for the rights the community deserves, the community must do it as a unit, rather than individually.
Menaka Guruswamy and Arundhati Katju’s accomplishments are not limited by the strides they have made with Section 377, but also with the visibility they have given to the LGBTQ+ community - in India and across the world. They represent the strength and power the LBGTQ+ community has when they preserve despite the setbacks.
OLIVIA HAMMOND is an undergraduate at Emerson College in Boston, Massachusetts. She studies Creative Writing, with minors in Sociology/Anthropology and Marketing. She has travelled to seven different countries, most recently studying abroad this past summer in the Netherlands. She has a passion for words, traveling, and learning in any form.
