Wednesday, October 31, 2018
Menaka Guruswamy

By Peter Boisseau

When India’s Supreme Court recently changed its position and struck down a nearly 155-year-old colonial era law criminalizing gay sex, it had as much to do with shifting perceptions of love as with new legal interpretations, one of the lead lawyers representing petitioners in the case told an audience at the 2018 David B. Goodman Lecture.

The historic Sept. 6, 2018 decision was a stunning reversal for a court that just five years earlier ruled against LGBT Indians, and stories of fear and discrimination from individual petitioners is what seemed to turn the tide, said Menaka Guruswamy.

Those petitioners included more than two dozen lesbian, gay, bisexual and transgender people, from national celebrities and business leaders, to students and alumni of the revered Indian Institutes of Technology.

“It was an exemplary act of courage given that by becoming petitioners, they were proclaiming their own criminality,” said Guruswamy, the BR Ambedkar Research Scholar and Lecturer at Columbia Law School.

The historic Sept. 6, 2018 decision was a stunning reversal for a court that just five years earlier ruled against LGBT Indians, and stories of fear and discrimination from individual petitioners is what seemed to turn the tide

“It made sense to ask the court: How it could be expected that these supposed builders of modern India could discover and invent when they themselves were fearful of being discovered for who they were and how they love?”

The impact the petitioners made was evident as the justices sprinkled their legal reasonings with poignant reflections and philosophical observations about the nature of love, she said, sharing a vivid personal account of a moment in history for the world’s largest democracy.

Chief Justice Dipak Misra began his judgement by quoting German writer Johann Wolfgang von Goethe: “I am who I am, so take me as I am.”

Another justice on the five-member panel observed that “love is the enduring truth” that makes life meaningful. His colleague shared an anecdote about walking along the beach in Mumbai and seeing police harass same-sex couples for holding hands.

Justice Indu Malhotra – the only woman on the panel – said “history owes an apology” to India’s LGBT community for the delay in ensuring their rights.

“The apology the female justice extended almost broke my inscrutable litigator resolve,” said Guruswamy. “I wanted to pump my fist in the air that morning.”

She said the momentum shift from the demoralizing 2013 decision to the euphoria of 2018 was fuelled in part by the optimism of her litigation team’s younger clients and a change in tactics to rely more heavily on the personal petitions to the court.

“It was a different journey than institutional or public interest litigation, which is how we had approached the case previously when we lost in 2013 in front of the very same Supreme Court,” said Guruswamy.

“These petitions were the most intimate way to approach the constitutional court of the land, and they would herald the beginning of a journey to freedom for LGBT Indians, who would now and forever tell their own stories to their own court in their own names.”

Too often, there is an artificial distinction made between the law “and what makes the law,” Guruswamy added in an interview after her lecture.

“All statutory law, in fact, reflects the assumptions that lawmakers make about people’s lives, and their emotional responses to those lives. So it only seems right to talk about and litigate certain kinds of cases where you actually navigate emotions like love.”

The heady emotions of a decision that effectively “emancipates” more than 90 million LGBT Indians -- the second largest minority group in India after Muslims -- comes against an ominous political backdrop, Guruswamy told the audience in a lecture she entitled “The Jurisprudence of Freedom: The Rise of India’s World Court.”

Indian politics is currently dominated by a “ruthless populist regime” that uses organized violence and intimidation to repress any group or demographic that is seen to be different or dissenting from the status quo, she said.

With national elections scheduled for 2019, voters will be watching closely to see how political parties react to the supreme court’s judgement on LGBT rights.

Other nations may be watching too. Guruswamy predicted the ruling could have a domino effect, especially on former British colonies with discriminatory laws against same-sex relationships and LGBT communities. 

“This jurisprudence of freedom will resonate across former colonies all over the world who have laws inspired by Victorian, and not local, morality,” she said.

“It’s hoped by many that the judgement will inspire introspection in Sri Lanka, Trinidad, Belize, Pakistan, Malaysia, Singapore, Kenya and many other nations where such laws are enforced.”

For its part, the Indian court has signalled it will be guided by “constitutional morality” as the country distances itself from its own colonial past.

The court made clear that constitutional morality is “legally definitive.” It found Sec. 377 of the Indian Penal Code, introduced by the British in 1864, clearly violated the nation’s constitutional protections for all Indians.

In doing so, it went even further than anticipated by declaring those protections apply not only to private acts but public spaces, said Guruswamy.

“In a swift five years from 2013 to 2018, India went from being the world’s largest democracy which criminalized its LGBT citizens, to one that not simply decriminalized them, but also affirms their constitutional rights for equality, dignity, life, liberty and protection from discrimination.”

The court case was a first step that now has to be translated into political action and the enforcement of those rights, Guruswamy told the audience in a Q&A session following her lecture.

She noted that when the United States Supreme Court issued a ruling in the 1950s declaring racially segregated public schools were unconstitutional, the federal government had to send troops to protect black students from white protesters.

“The business of change takes more than a court judgement.”

Responding to a question from 1st year U of T law student Paniz Khosroshahy, Guruswamy said she was fascinated by how deeply some of the Indian justices seemed to appreciate “queer theory,” which focuses on the gamut of sex and gender stereotypes.

“This is about the business of life, like pensions and estate taxes. It’s about walking down the beach holding hands with your partner and not being harassed by the police, or taking your kid to school and being recognized as their parent.”

Asked how India can move forward on LGBT rights both culturally and politically, Guruswamy told 2nd year Osgoode Hall law student Nofil Nadeem that it is important to recognize that the Indian law criminalizing same-sex relations was colonial, not indigenous.

Prior to becoming a British colony, India did not have a history of passing laws against LGBT citizens, she noted.

“The real quest of decolonization is the ability to appreciate what existed before.”

Watch the video of the lecture