When the cause list or roster for Thursday’s cases in the Supreme Court was released the evening before, lawyer Menaka Guruswamy had just landed in Hyderabad with her team to appear in another matter. She didn’t have time to even leave Hyderabad airport because the case that would define her potentially for all times to come, was listed for judgement the very next morning. The Chief Justice of India (CJI) Dipak Misra was heading the five-judge constitution bench that would rule if homosexuality would continue to remain illegal in India.
Having fought for gay rights and equality for years, the Ivy League and Oxford educated lawyer finally saw the goal within reach. “I have literally turned around to fly back to Delhi,” she told this writer, after boarding her flight back. Did she think they’d win? Yes, their time had finally come. After a rollercoaster ride, which saw the dreaded Section 377 (which made penetrative anal sex, amongst other sexual acts, illegal and punishable up to life imprisonment) being done away with in 2009, only to be brought back by the Supreme Court in 2003, here was that rare glimmer of hope that things were going to be set right again. That love of all kinds was going to be accepted, not termed “against the order of nature” by any state or law enforcement agency anymore. And they weren’t disappointed.
Poetic!!! Bumped into the magnificent Anjali Gopalan Naz Foundation at Hyderabad Airport. We’re all heading to Delhi for 377 judgement. Truly magic! #377 #constitution #beatingheart pic.twitter.com/pBhkPjsgoo— Menaka Guruswamy (@MenakaGuruswamy) September 5, 2018
Chief Justice of India Dipak Misra quoted Goethe—“I am what I am, so take me as I am”—as he took away the weapon that had allowed policemen to harass young people, employers to deny jobs, parents to shame and rush their gay wards to mental asylums.
At 11.30 am, the honourable bench of five started reading out the 493 page judgement, but from the CJI’s words, the unanimous verdict was clear, reducing the courtroom and the community glued to it through various screens, to tears and jubilation. “These words are profound,” said writer Sandip Roy, “However ‘out’ you are, I don’t think there’s anyone who hasn’t felt the pain of having to shove themselves into a box, which they don’t quite fit into. And it has left scars even though some of us have gotten better at disguising those scars.”
The judges didn’t stop there. While our politicians refuse to be accountable for their actions day in and day out, while the riot afflicted hear that no one is responsible for killing and raping their loved ones and burning their homes, the Supreme Court tendered an apology to the 7% of the population, who make up the gay community.
“History owes an apology to the LGBT community and their families, for the delay in providing redressal for the ignominy, ostracism they have suffered through the centuries,” said the only woman judge on the bench, Justice Indu Malhotra, proving that it’s never too late to say sorry.
“I think Justice Malhotra really captured the essence of our core constitutional value, which is to make reparations and heal. And if we want to heal, the first step is to acknowledge where we have gone wrong,” said Menaka Guruswamy, “I think it really revealed something very deep about our top court, that it is an introspective institution, that it accepts when it makes mistakes, and it changes course.”
IIT Guwahati student Rommel, who was one of the petitioners in the case, and among the many who were packed inside the courtroom, felt tears streaming down his face as he heard Justice Malhotra. His family in Assam had been surprisingly accommodating after he came out to them, but his campus proved far tougher. “Listening to this apology, I cried. I don’t think I can explain those emotions.”
“I think this apology is a big teaching for political parties,” said IITian petitioner Debo Saha. “Every kind of minority is under attack right now in this country. The government needs to show some kind of sympathy at least. They should be sensitive and realise that they need to apologise to the country.”
But an apology doesn’t heal all wounds. Not for Ali, who is still searching for answers about why, when his partner was gang-raped by men, the police refused to register an FIR. “It was four years ago and he used a dating app. When he met his date, he took him on his motorcycle and gang-raped him. The police called him filthy names and turned the tables on him, threatening to book him under Section 377.” It may be a horrific story, but one that isn’t out of the ordinary in the Section 377 fight. The judgement is full of such crimes, of little girls being forced out of school hostels and young men qualifying for the IAS, but not being allowed in. To all of them and Ali, Menaka Guruswamy says, “That time is over. The Supreme Court has shown that it is the people’s court—and for LGBT men and women, this is everyone’s country and constitution.”
September 6th’s judgement isn’t the magic wand that’s going to instantly transform the country and take away centuries old prejudices. But the Supreme Court has laid down the law, and activists and lawyers like Menaka Guruswamy promise to treat this as just one battle won. After all, the battle for gender justice continues.
As gay rights activist Lesley Esteves puts it, “Like many other women lawyers, Menaka Guruswamy fights for equal rights, while also battling systemic misogyny in our male-dominated legal system. I’ve personally witnessed over the years, the rage directed towards her from men who can’t stand the fact that here’s a woman who will speak on equal terms...who will, when necessary, approach the courts in search of justice without their ‘guidance’ and oversight. In this case, they were outnumbered by men who truly believe in gender equality and worked along with Menaka for a desperately needed victory for LGBTQ rights. Again, like many women, she has taken so much of their abuse and hatred in her stride and stayed focused on her goals, but it has not been easy. I’m so glad that young women lawyers are seeing a role model like her. We need more Menakas in the bar and in the bench.”
Sunetra Choudhury is Political Editor at NDTV and a contributing editor at ELLE India.