Constitution must recognise love, not just sexual acts: Menaka Guruswamy on Sec.377

Hyderabad: The hearing on the challenge to the constitutionality of Section 377 of the Indian Penal Code turned out to be a rare opportunity to witness the first female lawyer in the case, Menaka Guruswamy, displaying incredible craft.

Her defence left the LGBT community misty eyed. 

Representing IIT petitioners of the LGBT community, Ms Guruswamy on day two of the hearing reminded the court that, “this is love that must be constitutionally recognised and not just sexual acts.” 

In her emotional yet powerful arguments, Ms Guruswamy stressed on how IPC Section 377 has curtailed the freedom of expression and the right to form associations has been infringed.

At one stage, Additional Solicitor General, Tushar Mehta intervened and asked her not to traverse beyond the scope of the petition, viz constitutionality of the section. The CJI snubbed the ASG and allowed her to proceed. 

She told the court about the law’s impact on transgender persons and how it hampers the promise of full citizenship. Justice Rohinton Nariman came to her rescue and said she can argue whatever she wanted to argue.

Danish Sheikh, a petitioner who was witness to the arguments gave this newspaper an insight into the courtroom proceedings.  “Ms Guruswamy did not give a chance to the judges to ask about the existence of the LGBT persons, instead she went ahead acknowledging the presence of the petitioners who stood in the courtroom, also invoking the names of those who were not present. Never has this happened before. Pointing to us she said: These are the individuals the law affects; they (LGBT) are spending their lives under the shadow of this law (section 377).

“She spoke about the law's specific impact on transgender persons, on how it impeded the promise of full citizenship that NALSA pointed out. She reminded the court of its duty to not just give a hearing, but to bridge the gap towards liberation of the LGBT to fulfil a promise that dates back to the framing of the Constitution.” 

She got precedence to argue over other senior and eminent counsel like Ashok Desai, Shyam Divan and C.U. Singh and she proved her mettle.

Ms Guruswamy's arguments were backed by reports from Indian and American psychiatric bodies, which called homosexuality a normal sexual orientation. She also cited judgments from various courts in the US and UK to drive home her point that Section 377 is a menace.

Lawyer Anand Grover reminded the court through his submissions that the judgment would be a potentially powerful shield for the community and should be composed accordingly.  

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