377: The legal battle against India’s anti-LGBTQ law

An individual may go to court, but a change to a law affects everyone. So who is this larger community and how do we ensure that legal activism empowers everyone? What does the judgement really mean and what can we hope for in the future?

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Four days in court. We meet petitions and lawyers. We discuss whose voices get heard and what a difference words can make. Did privilege play a significant role and was the framing of arguments inclusive of the queer community at large or just a select few?

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Many fresh voices enter the arena: using Article 32, five highly accomplished individuals (Navtej Singh Johar and others) and 20 students from IIT submit their petitions to the Supreme Court. They are represented by Menaka Guruswamy and Arundati Katju. We meet Saurabh Kirpal, a lawyer on their team who explains to us how a fresh Article 32 petition differs from the curative petitions that remained pending.

And then Puttuswamy happened: the 2017 case which ruled that the Aadhar biometric ID system violated Article 21 of the constitution. The judgment went through and corrected a long list of landmark cases that involved privacy, and one of them was Suresh Kumar Kaushal.

So in January 2018, Chief Justice Dipak Mishra hand-picks the new petition and the 377 battle is reignited. A court date is set: June 6, 2018.

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Mirror Now news clip about IIT petitioners: https://www.youtube.com/watch?v=nam0m8SsUpI

The Supreme Court of India had dealt a devastating blow to the LGBTQI community but the fight wasn’t over. In 2009, queer people were classified as a class of their own and were guaranteed their fundamental rights. So even though 377 was back, they hadn’t forgotten what victory felt like. There was no going back.

How does the dual role of the Supreme Court and the volume of cases handled, affect the quality of justice delivered? What really is the purpose of our top court?

Tarunabh Khaitan gives us a much needed civics lesson, and Anand returns to tell us how they handled the setback. While they prepared, another interesting case developed: NALSA vs Union of India—another public interest litigation case to provide trans-people categorisation as a third gender.

While most of India lauded the progressive verdict, and debated the future, an astrologer named Suresh Kumar Koushal successfully petitioned the Supreme Court to turn back the clock. He used a Special Leave Petition that allowed him to appeal the Delhi High Court decision in a higher court.

The courtroom atmosphere was very different this time around. The focus shifted from a discussion about fundamental rights to one about the wording of law. We look at its impact on three important articles: Article 14 (equality), Article 15 (non-discrimination) and Article 21 (liberty). And we also learn about a legal principle called de minimus and how it was used in the case.

This case brought to light one of the struggles of India’s Supreme Court: the conflict in its dual role as a constitutional court as well as the highest court of appeals.

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The battle is won, but even four years later, is it having the intended impact on the level of the street? Is the high court judgement trickling down, and is life actually improving for the gay community?

Legal researcher Gowthaman Ranganathan joins us as guest host and explains why high court judgements don’t always make a difference to people’s everyday lives. He tells us about a police case in Hassan, Karnataka, where 13 men had been arrested under Section 377, even though the law had been struck down years earlier.

Gowthaman talks to us about where this verdict intersects with class, caste and economic status and what true, inclusive, grass-roots change should look like. How might we redistribute not just equality on paper, but equality of wealth, of power, and of respectability.

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Gay Priori, a book by Libby Adler

So far we have looked at the side fighting against 377. But what were they up against? Apart from the Union Government who was required to be there, a few other individuals joined the defense of their own volition.

In this episode we take a look at the other side. Journalist Shivam Vij recounts his meeting with Mr. BP Singhal, a hindutva writer and with Joint Action Council, Kannur founder, Purushottaman Mulloli. We also get to see how poorly those views translate into actual court proceedings. The result is a resounding victory for the gay community—homosexuality is decriminalised. The judges also introduce an important legal concept: constitutional morality.

What role can the constitution play in progressing the views of the wider public? How key is it in preventing the oppression of a minority?

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The Delhi High Court dismisses the petition, but the coalition against 377 is ready—all the discussion and collective planning has made the movement resilient. They fight back and have the case reinstated by the Supreme Court. Things start to heat up and many more voices join the cause, bringing personal stories, affidavits and testimonies about the horrors of 377.

How do you get a large coalition of activist groups to come together? How do you ensure disagreements are positive and that feedback turns actionable?

Anand talks us through the meetings they had and we meet some of the lawyers and activists who were key to the mobilisation of a strong collective voice for the petition.

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Naz Foundation has officially filed a petition in the Delhi High Court. But not everyone within the community was pleased with the process. Apart from the opposition in court, Anjali and Anand also faced criticism from the wider community on how they had handled the filing.

Was this the correct angle to use, and were they even the right people for the job? Was petitioning with HIV rather than equality going to have a lasting impact on sexual rights?

We go through some of the criticisms of the approach and what was done to make future discussions more inclusive.

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Thomas Babbington Macaulay is the author of the Indian Penal Code—the laws that govern our country. He was key to drafting the words in Section 377. He was also key in forcing Indians to learn English customs under the British rule. This connection is no accident—homophobia is not natural or part of our history, it had to be taught.

What is the history of homosexuality in pre-colonial India, and what were the attitudes of people at the time?

We meet Dr Ruth Vanita and Dr Jyoti Puri and learn just how carefully the British defined homosexuality, outlawed it, and taught people to react with horror and disgust at its very mention, both in India and across the British Empire.

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