The lawyers fighting to change India’s law on homosexuality
With the Supreme Court set to debate Section 377 – a colonial-era law criminalizing homosexuality – we look at the lawyers trying to introduce change
India’s Supreme Court is about to make a crucial decision that will have a major bearing on the nation’s future. A group of lawyers, armed with last year’s historic nine-judge Constitutional bench judgment declaring privacy a fundamental right, petitioned the top court to strike down the criminality of Section 377 of the Indian Penal Code that outlaws homosexuality.
An earlier challenge to the criminalization of homosexuality was struck down by a two-judge bench of the Supreme Court in 2013. But now lawyers seeking the decriminalization of Section 377 point out that the nine-judge privacy judgment overturned some key points used in the 2013 ruling.
This has now made the earlier ruling unproductive and set fresh grounds for the case to be heard by a larger constitutional bench of the Supreme Court.
Section 377 is seen by many as an outdated moral legacy imposed by a colonial government more than a century ago. The group of dedicated and public-spirited lawyers have challenged this archaic statute in an attempt to help shape a more modern India. Here are the people challenging the colonial-era law.
Shyam Divan, an alumnus of the University of Bombay’s law faculty, became an overnight star after his arguments in front of the nine-judge Constitutional bench. His arguments delved into constitutional law to convince the judiciary that privacy was not an esoteric right. During the hearings, Divan took the judges through complex constitutional laws from across the world, arguing that privacy was fundamental to personal freedom as enshrined in the Indian Constitution.
He has also been at the forefront of the challenge against India’s ambitious digital identity program, called Aadhaar. His arguments pointed out how millions of Indian citizens were losing their basic rights because of the digital identity program. His father Anil Divan was an eminent lawyer who also fought some of the most influential cases in the country, including one that led to landmark changes in India’s anti-corruption laws.
While arguing against Section 377, Divan called on the court to declare a “right to intimacy,” saying it should be an individual’s right to life and personal liberty. However, Divan’s stance, in this case, contrasts with his recent stance in the case of Hadiya, a Hindu woman who embraced Islam and married a Muslim. Angered by her decision to change religion, Hadiya’s family went to the Kerala High Court, which nullified her marriage.
The high court’s judgment was overturned by the Supreme Court in March, where Divan represented Hadiya’s father, who argued against her right to choose her partner, and he called her a “vulnerable adult.”
Guruswamy was the first Indian whose portrait was put up at Rhodes House in Oxford. A Rhodes Scholar, Guruswamy acknowledged the honor in her acceptance speech, but did not mince her words in criticizing Rhodes’ troubling legacy of colonialism. She has also taught at Yale University and the New York University’s School of Law.
Graduating from India’s most prestigious law school, she went to Oxford to get a degree in civil law and a gained a Masters from Harvard University before returning to Oxford for her PhD. She interned with one of India’s finest civil liberties lawyers, a passion that has defined her work in constitutional law. She was appointed as an ‘amicus curie’ by the Supreme Court in a case involving fake encounters by security forces in India’s north-eastern state of Manipur. She helped uncover several gruesome killings that led to a spate of prosecutions.
Guruswamy is representing students who are part of a pan-India 350-member organization of lesbian, gay, bi-sexual and transgender students. All hail from the prestigious Indian Institute of Technology. Guruswamy repeatedly addressed Justice Indu Malhotra, the only woman judge on the five-judge bench. Guruswamy pointed out the rampant discrimination against homosexuals in the application of laws on domestic violence, “because homosexuals have not been allowed to exist, as per Section 377.”
Guruswamy’s arguments on the effect of Section 377 on “love, life and liberty” were lauded by the gay community. “How strongly must we love knowing we are unconvicted felons under Section 377? My Lords, this is love that must be constitutionally recognized, and not just sexual acts,” she said.
A short-lived, but landmark moment for gay rights in India came in 2009 when the Delhi High Court decriminalized homosexuality while hearing petitions led by then HIV/AIDS and sexual health non-profit Naz Foundation. The case was led by Anand Grover.
In 2013, however, the Supreme Court stayed the Delhi High Court judgment, making homosexuality a crime again. Grover is representing Naz again in a bid to revoke the top court’s 2013 judgment.
Grover has spent more than three decades in legal activism, concentrating on homosexuality and helping HIV patients. In 1988, he fought the first HIV-related case that reached Indian courts, and included the right of HIV-infected persons to retain their jobs. Grover lost the case, but ultimately delved deeper into the cause. In 1997, the Bombay High Court made HIV-based discrimination in public sector employment illegal, in a case fought by a ‘Lawyers Collective,’ a non-profit organization founded by Grover in 1981.
Grover has also fought against patents for antiretroviral drugs – like those used to control HIV/AIDS – to ensure their manufacture and pricing is not monopolized.
Representing them is former attorney general of India Mukul Rohatgi, a vocal supporter of decriminalizing homosexuality. In 2016, when the Supreme Court ordered a review of Section 377, the government remained unrepresented as Rohtagi had certified – before being made attorney general – that the top court’s 2013 judgement needed to be reviewed. Supreme Court rules require such verifications from a senior advocate.
Rohatgi can reportedly argue a case “even if briefed for two minutes” before a hearing and is known to show an aggressive demeanor in the courtroom.
As Prime Minister Narendra Modi government’s top counsel, Rohatgi came to be known for several controversial arguments. In the Right to Privacy case, for example, Rohatgi argued against treating privacy as a fundamental right and said citizens did not even have the absolute right over their bodies. Needless to say, the government lost the historic case and his arguments were set aside.