377: The legal battle against India’s anti-LGBTQ law ATS Studio

An individual may go to court, but a change to a law affects everyone. So who is this larger community and how do we ensure that legal activism empowers everyone? What does the judgement really mean and what can we hope for in the future?

Show Notes
All clips and voices used in this podcast are owned by the original creators.

The following guests appeared in this episode:


Anand Grover
Saurabh Kirpal
Chayanika Shah, member of LABIA, an LBT collective
Tarunabh Khaitan
Arvind Narrain
Anjali Gopalan

References

NDTV news clip about Section 377 ruling: https://www.youtube.com/watch?v=0XB_Uut5eOc
Arundhati Katju and Menaka Guruswamy on an NDTV panel: https://www.youtube.com/watch?v=AbY-_8XmaoY

Four days in court. We meet petitions and lawyers. We discuss whose voices get heard and what a difference words can make. Did privilege play a significant role and was the framing of arguments inclusive of the queer community at large or just a select few?

Show Notes
All clips and voices used in this podcast are owned by the original creators.

The following guests appeared in this episode:


Saurabh Kirpal
Akhilesh Godi, petitioner
Danish Sheikh
Gowthaman Renganathan
Jaya Sharma
Vidya
Vivek Divan
Anjali Gopalan
Ritu Dalmia

Many fresh voices enter the arena: using Article 32, five highly accomplished individuals (Navtej Singh Johar and others) and 20 students from IIT submit their petitions to the Supreme Court. They are represented by Menaka Guruswamy and Arundati Katju. We meet Saurabh Kirpal, a lawyer on their team who explains to us how a fresh Article 32 petition differs from the curative petitions that remained pending.

And then Puttuswamy happened: the 2017 case which ruled that the Aadhar biometric ID system violated Article 21 of the constitution. The judgment went through and corrected a long list of landmark cases that involved privacy, and one of them was Suresh Kumar Kaushal.

So in January 2018, Chief Justice Dipak Mishra hand-picks the new petition and the 377 battle is reignited. A court date is set: June 6, 2018.

Show Notes
All clips and voices used in this podcast are owned by the original creators.

The following guests appeared in this episode:


Shyam Divan
Saurabh Kirpal, lawyer
Ritu Dalmia
Jayna Kothari
Anand Grover
Anand Vasudevan, IIT alum

References

Arundhati Katju and Menaka Guruswamy Time 100 interview: https://www.youtube.com/watch?v=sqsEtc8dq5c
Katju and Guruswamy at the Oxford Union: https://www.youtube.com/watch?v=-Lp6H4YYN-k
CNBC TV18 news clip Supreme Court reopening hearing on S377: https://www.youtube.com/watch?v=rz98mgrXmz8
Al Jazeera news clip on Puttaswamy verdict: https://www.youtube.com/watch?v=LYkWqWWvv7s
NDTV news clip about Puttaswamy’s implications for privacy: https://www.youtube.com/watch?v=DgDz2uGMjCE
Republic World news clip about Supreme Court judges speaking out against the then Chief Justice of India: https://www.youtube.com/watch?v=OcoXml36tss
Ritu Dalmia’s interview with NDTV: https://www.youtube.com/watch?v=DV8RXUSg4BE
Keshav Suri interview with ET Now: https://www.youtube.com/watch?v=bsWlFbX348Y

Mirror Now news clip about IIT petitioners: https://www.youtube.com/watch?v=nam0m8SsUpI

The Supreme Court of India had dealt a devastating blow to the LGBTQI community but the fight wasn’t over. In 2009, queer people were classified as a class of their own and were guaranteed their fundamental rights. So even though 377 was back, they hadn’t forgotten what victory felt like. There was no going back.

How does the dual role of the Supreme Court and the volume of cases handled, affect the quality of justice delivered? What really is the purpose of our top court?

Tarunabh Khaitan gives us a much needed civics lesson, and Anand returns to tell us how they handled the setback. While they prepared, another interesting case developed: NALSA vs Union of India—another public interest litigation case to provide trans-people categorisation as a third gender.

While most of India lauded the progressive verdict, and debated the future, an astrologer named Suresh Kumar Koushal successfully petitioned the Supreme Court to turn back the clock. He used a Special Leave Petition that allowed him to appeal the Delhi High Court decision in a higher court.

The courtroom atmosphere was very different this time around. The focus shifted from a discussion about fundamental rights to one about the wording of law. We look at its impact on three important articles: Article 14 (equality), Article 15 (non-discrimination) and Article 21 (liberty). And we also learn about a legal principle called de minimus and how it was used in the case.

This case brought to light one of the struggles of India’s Supreme Court: the conflict in its dual role as a constitutional court as well as the highest court of appeals.

Show Notes
All clips and voices used in this podcast are owned by the original creators.

The following guests appeared in this episode:


Anjali Gopala
Tarunabh Khaitan
Vivek Divan
Danish Sheikh, legal scholar and activist

References

NDTV news clip about Ramchandra Siras being fired: https://www.youtube.com/watch?v=mMP_ACinZf4
NDTV news clip about Siras’ death: https://www.youtube.com/watch?v=M_RYPBZhnwo
NDTV interview with lawyer Tripti Tandon after the 2009 Delhi High Court ruling on Section 377: https://www.youtube.com/watch?v=M_RYPBZhnwo
Aaj Tak interview with Suresh Kumar Koushal: https://www.youtube.com/watch?v=WQD3TcAsRCY
Supreme Court of USA oral arguments in Bostock v. Clayton County: https://www.supremecourt.gov/oral_arguments/audio/2019/17-1618
CNN news clip on US Supreme Court verdict in June 2020: https://www.youtube.com/watch?v=wxzRZmTXwPE
Republic World interview with PP Malhotra: https://www.youtube.com/watch?v=yPz3qp0qp7U
NDTV interview with Justice Singhvi: https://www.youtube.com/watch?v=vP5wLDGEe_o
NDTV news clip with Arvind Narrain: https://www.youtube.com/watch?v=IKeuTIFySwk

The battle is won, but even four years later, is it having the intended impact on the level of the street? Is the high court judgement trickling down, and is life actually improving for the gay community?

Legal researcher Gowthaman Ranganathan joins us as guest host and explains why high court judgements don’t always make a difference to people’s everyday lives. He tells us about a police case in Hassan, Karnataka, where 13 men had been arrested under Section 377, even though the law had been struck down years earlier.

Gowthaman talks to us about where this verdict intersects with class, caste and economic status and what true, inclusive, grass-roots change should look like. How might we redistribute not just equality on paper, but equality of wealth, of power, and of respectability.

Show Notes
All clips and voices used in this podcast are owned by the original creators.

The following guests appeared in this episode:


Co-host: Gowthaman Ranganathan
Vani Subramanian, activist
Jayna Kothari, lawyer
Jaya Sharma
Maya Sharma, author and activist

References
Gay Priori, a book by Libby Adler