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A Month On: India’s LGBTQ Rights Ruling

Last month, the Indian Supreme Court, in a unanimous decision by a five-judge panel, overturned a colonial era statute criminalizing same-sex relations. Now a month removed from the ruling, The Politic decided to take another look at the historic ruling.

Arundhati Katju, co-counsel for the petitioners, turns to 2012 as the beginning of the judicial movement toward the decriminalization of gay sex. At that time, Katju and her co-counsel, Menaka Guruswamy, were called to the Supreme Court to defend the 2009 Delhi High Court ruling that Section 377 of the British Penal Code, which criminalized same-sex intercourse, was unconstitutional. The resulting 2013 ruling in Suresh Kumar Koushal v. Naz Foundation overturned the 2009 decision, which emboldened Katju and Guruswamy as they attempted to build a strategy to win back gay rights.

“We needed a change in strategy and we needed to get back to court,” Ms. Katju told The Politic. The lawyers then decided to use an old technique in order to push their appeal forward: the writ petition.

“A writ petition is basically one of the oldest devices of common law which allows for people to move to court and say my particular right has been infringed,” explained Rohit De, a Yale historian of modern South Asia and expert on Indian constitutional law, in an interview with The Politic. Katju and Guruswamy sought out important Indian public figures, like the classical dancer Natvej Singh Johar and his journalist partner Sunil Mehra, in the hope that they would come out to the Court to file a writ petition prior to any ruling on the question of their rights.

Johard and Mehra ultimately petitioned the Court, as did a group of students from India’s top universities. These claims were instrumental, as they went directly to the Supreme Court and opened the door for anyone to go before the Court to explain how their rights had been infringed. This was unprecedented: during the hearings for the 2013 case, the judges never heard the direct testimony of LGBT Indians because the case was filed by a constellation of social and religious organizations who believed that the 2009 ruling violated their rights. As a result, Katju and Guruswamy could only call upon experts like doctors, public health officials, and psychologists to testify.

The petitioners and their lawyers were optimistic after the hearings for the case last summer. The judges asked questions that signaled that they were open to overturning the 2013 precedent. And, interestingly, some conservative politicians, like Prime Minister Narendra Modi, declined to take a side in the case.

“They strictly did not take an active role in campaigning,” said Steven Wilkinson, Yale Nilekani Professor of Political Science, of the ruling conservative party, Modi’s Bharatiya Janata Party (BJP), in conversation with The Politic.

For Katju, the ruling “has exceeded our whole expectations, both in terms of the judgement itself and how strongly it comes out to say that LGBT people have rights of equality, dignity, and privacy under the Constitution.”

In the wake of the ruling, there have not been any national studies on hate crimes and discrimination, so it is difficult to know how well the judgement has been implemented across India. Yet, recent court cases have favored LGBT individuals: the Kerala High Court in late September decided in favor of a lesbian couple after one partner had been forcibly detained by her family when she wished to move in with her partner.

“The way the courts are leaning is going to change because they have received such a strong message from the Supreme Court,” said Katju, pointing to the case in Kerala as an example of how courts are turning in favor of LGBT rights. The Indian judicial system, Katju suggested, seems well on its way to providing greater protection to gay people across the country.

However, some onlookers are worried that the ruling will not extend protections to everyone in India.

“How will the ruling affect the historically oppressed castes?” questioned Supriya Gandhi, a senior lecturer in Yale’s Religious Studies department, in an interview with The Politic. Gandhi, who was born to parents of different castes, worried that the decision may only impact the higher, English-speaking castes in Indian society.

“One of the things that makes this judgement really remarkable is that it speaks to the individual, it speaks to the right of individuals not to conform,” explained Katju, rejecting the assertion that the rights of those from lower castes will not be respected.

Both Katju and Professor De noted that the judgement will be widely cited in other postcolonialist international jurisdictions and that it was a true turning point for the Court.

“Since there weren’t too many Indian precedents, [Indian Supreme Court judges] relied on a number of international precedents from places like Trinidad, Nepal, and South Africa,” De remarked, adding, “So, the judges see themselves as a part of a larger community of law that is forging norms.” Because the Indian Supreme Court used international precedents and carries influence as an independent postcolonialist court, its decision figures to loom large in similar cases facing other British colonies like Singapore, Kenya, and Sri Lanka.

Katju did not hesitate to bring the US into the conversation surrounding the international significance of the decision: “At this moment, when we are looking globally, the US Supreme Court now has a majority of conservative judges. So, I think it is really important in this global context that the Indian Supreme Court has come out so strongly to speak of minority rights and to see itself as a protector of minorities.”

Going forward, the judgement left room for further litigation on the issue of gay rights in India, as well as a path to overturn other parts of the British Penal Code and other colonial laws still on the books in the country.