Arundhati Katju: Section 377 was never only about sex, it was actually about right to citizenship

Arundhati Katju is the civil and criminal litigator known most notably for her role as lead co-counsel in the historic Supreme Court striking down of Section 377 of the Indian Constitution on 6 September, 2018. After the judgement, she made waves when she and her co-counsel Menaka Guruswamy came out as a couple and were named amongst TIME’s 100 most influential of 2019. Katju believes in the power of stories to change the law, something reflected in the duo’s legal strategy. They decided to bring in LGBTQIA+ Indians to court so humanise them instead of just telling their stories, and affording judges the opportunity to connect with individuals and understand their struggles. Those who filed writ petitions were Bharatnatyam dancer Navtej Singh Jauhar, journalist Sunil Mehra, celebrity chef Ritu Dalmia, hoteliers Aman Nath and Keshav Suri, business executive Ayesha Kapur, and 20 alumni and students from the IITs. Also read: _Our freedoms are fragile, as we must remember on 73rd Independence Day and Sec 377 ruling anniversary_ The proceedings and judgement were lauded as focusing not just on sex, but love and the lives of LGBTQIA+ individuals. Importantly in the judgement, the only female judge on the panel, Indu Malhotra, recognised the struggled of not just LGBTQIA+ individuals but also their families, remarking that history owed them an apology, which Katju considers an important acknowledgement. [caption id=“attachment_7163131” align=“alignnone” width=“825”]  Arundhati Katju. Photo credit: Facebook/@Girliyapa.[/caption] On the occasion of India’s 73rd Independence Day, Arundhati Katju delivered a keynote address titled ‘From Criminal to Citizen: LGBT+ Rights in India’ at Conclave, Malhar, the annual festival of Mumbai’s St Xavier’s College; she is the first woman to be a keynote speaker in Conclave’s 10 year history. A condensed version of Katju’s speech can be read here: It’s my privilege to wish each of you a happy Independence Day. And I think this is special to all of us, because on the other side of [Section] 377, this is the first time that as full and free and equal citizens we’ve been able to say this to each-other. So, Happy Independence Day! 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. Fifty 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 [IIT petitioners] 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 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. So what does Article 32 say? Dr Ambedkar called Article 32 the heart and soul of the Constitution. It allows us as citizens to go directly to the Supreme Court of India to seek enforcement of our fundamental rights. So there is, in a sense, an unmediated relationship between the citizen and the top court of the land. There’s nothing that comes in between you. And as a Constitutional remedy, this is unique among Constitutions of the world. 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. One of the fundamental findings that the judgement has is that it says that citizens of India enjoy, under the right to life, the freedom of choice. You have the right to choose.

You have the right to choose your partner.

And that comes on the back of a long line of judgements 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 just end by 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 hee 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.