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Advocate Arundhati Katju has been involved with the challenge to Section 377 in the Supreme Court for a long time. And the Constitution Bench’s verdict decriminalising the archaic provision was in stark contrast to the disappointment she, as well as members of the LGBTQ community, faced in 2013.
In this interview with Bar & Bench, Arundhati Katju recounts the journey of the case, the impact the judgment could have on foreign jurisdictions, and more.
How has the journey from 2013 to now been?
It has been a long journey and it has had its ups and downs. 2013 was a big blow, but today is a day to celebrate. A lot of the credit goes to the petitioners.
Sometimes, you have to go through a period of struggle to get something good in the end, and we are very lucky that it has happened.
What did you, as lawyers, do differently this time from 2013 while approaching the Supreme Court?
This time, what was important was to have LGBTQ people at the forefront and to make sure that their stories were heard. The problems of this law, the weight of this law needed to be shown. It is not just the fear that you will be prosecuted, but really it is the shadow that hangs over the lives of LGBTQ people. It was really important to communicate that to the Court.
Sometimes, it can be difficult to imagine what life is like for sexual minorities.
We were very lucky that we had such wonderful petitioners who came forward and spoke about their lives, and how they had to live under the shadow of this law.
Whether it is Sunil Mehra, who talked about sitting for the IAS mains and not going for the interview because he was worried about not being able to live a full life under the shadow of 377, or the IIT petitioners who were much more hopeful about what life could offer them as gay people, including choices on where to work, where to live.
It [the strategy] was really to communicate those stories, and that is possible under Article 32 of the Constitution.
Article 32 allows individuals to approach the Court with their stories. It’s almost like a one-on-one communication, where individuals can go to Court and tell their stories. That is the power of Article 32.
Do you think this judgment will now open a window of dialogue for Parliament to bring a law in place granting civil rights to LGBTQ Indians?
Definitely, steps are going to have to be taken to take the journey forward.
What the judgment says very strongly is that the individual and individual autonomy are strongly protected by the Constitution. It speaks about the transformative Constitution, so it envisages social change and that the Constitution itself is a vehicle for social change.
So definitely, there is a journey ahead of us. But today is a day for celebration. It is the end of a long journey that started in the 1990s and I think that before we start taking stock of what has to be done ahead, it is important to take a pause to look back and to celebrate the petitioners and what they have done.
The aspect of mental health in relation to the LGBTQ community was also addressed in the judgment. What steps do you think need to be taken to sensitize our society as a whole?
Justice Rohinton Nariman in his judgment has said that the job the government has now is to disseminate the judgment and make sure that it reaches government officials at all levels, and especially the police.
If that’s done first, that’s a huge step in itself, because a lot of day-to-day interaction that people have is with the law enforcement agencies.
Aside from that, a lot of change has to come through the media. The media has consistently raised these issues in a positive fashion. So social change takes time, but this judgment is a huge part of that.
In the absence of the government taking a specific or strong stand in this issue, has the role of the media and activists now become even more pronounced in making sure that social change takes place?
I can’t say if it has become more pronounced or not, but the media has always had a role (in bringing social change). The government also has its role to play in ensuring that the minorities live with freedom and with confidence, and it needs to continue playing that role.
How do you think this judgment is going to impact other jurisdictions, maybe across the world?
It is definitely going to have a huge impact. A lot of the time, we don’t appreciate how much the Indian Supreme Court is cited in Constitutional Courts across the world. I know that in Trinidad and Tobago, in Greece, in Kenya, they’ve been looking at their own issues of LGBTQ rights and they’ve considered the Koushal judgment, they’ve considered the Puttuswamy judgment and I think the next judgment that they will look to is Navtej Singh Johar.