Menaka Guruswamy: LGBT Indians deserve protection of their court, their constitution, their country

The sheer force of Menaka Guruswamy’s arguments on July 11 seemed to rip through the tangles of legal discourse and force the Supreme Court to confront the human cost of Section 377

By Danish Sheikh

Advocate Menaka Guruswamy is representing alumni, graduates and current students of the IITs—all of whom are from the LGBTQ community—who have filed one of several writ petitions challenging the constitutionality of Section 377 IPC, currently being heard by a five-judge Constitution bench in the Supreme Court of India. Section 377 of the Indian Penal Code criminalises same sex relations, regardless of consent, and effectively criminalises homosexuality. On behalf of her clients, Guruswamy is seeking from the apex court a declaration to the effect that Section 377 violates Articles 14, 15, 19 and 21 of the Constitution. An eyewitness account follows of Guruswamy’s impassioned plea to the court during her submissions on Wednesday July 11, when she asked the bench, "How strongly must we love knowing we are unconvicted felons under Section 377? My Lords, this is love that must be constitutionally recognised, and not just sexual acts."

Day 2 of the Section 377 Constitution Bench hearings in the Supreme Court on July 11 also featured some of the most powerful court craft I have had the privilege of witnessing, courtesy Menaka Guruswamy.

It wasn’t the fact that Guruswamy was the first female lawyer to speak in a testosterone-packed litigation (and courtroom), though that was crucial. It wasn’t the fact that she made it a point to address the sole female judge on the Bench time and again, though that was significant.

It was rather the sheer force of her arguments that seemed to rip through the tangles of legal discourse and force the Court to confront the human cost of Section 377.

In 2012, the judges in Suresh Kumar Koushal vs Naz Foundation would keep asking the lawyers about the existence of LGBT persons. Today, Menaka Guruswamy acknowledged the presence of the petitioners who stood in the room, while also invoking the names of those who weren’t there.

These are the individuals the law affects, and in story after story, she told the judges how many lives were going by living under the shadow of this law.

In no uncertain terms, Menaka Guruswamy reminded the Court of its duty to not just give a hearing to LGBT people criminalised by Section 377, but to bridge the gap towards emancipation, to fulfil a promise that harks back to the framing of the Constitution

She opened up the space of what it meant to be queer, speaking of the right to love, of the Court’s own mandate in protecting individuals, of times when district judges had protected runaway inter-caste lovers from their families.

She spoke about the law’s specific impact on transgender persons, on how it impeded the promise of full citizenship that NALSA pointed towards.

In no uncertain terms, she reminded the Court of its duty to not just give a hearing to LGBT Indians, but to bridge the gap towards emancipation, to fulfil a promise that harks back to the framing of the Constitution.

At one point, ASG Tushar Mehta attempted to interrupt Menaka Guruswamy, prompting Chief Justice Dipak Misra to snap: “Let her speak!”.

She spoke, and today, we were heard.

Queer rights lawyer Danish Sheikh is observing the court proceedings in writ petitions challenging the constitutionality of Section 377 IPC, currently being heard by a Supreme Court Constitution bench

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