In a nation where an estimated 90% of marriages are arranged, it wasn’t surprising that the government chose to go against same-sex love. After all same-sex love doesn’t fit in to the template, structures, laws and social norms that define a marriage. The fluidity that comes with choice, love and passion that drives such affection, the honesty that is attached to breaking the norm, are hard for a government to engage with.
If choice is offered (and therefore equality), what would happen to the whole system of arranged marriages fixed over the years on the basis of caste, class, colour, economics, regions, religion – much of what one sees in mainstream classified matrimonial ads?
A battle for civil rights
Last week, in response to a batch of petitions, the government stated in the Supreme Court that any change in the current laws that govern marriage would lead to “complete havoc with the delicate balance of personal laws”. Now, all that the petitioners had asked for was that the laws be interpreted to include same-sex marriage, indirectly seeking to expand the institution of marriage. Nothing more. They had merely sought a solemnisation of their love into marriage, not necessarily because they want the institution desperately, but simply for the civil rights attached to the marriage act.
Imagine my dear heterosexual friends, a situation where your spouse is in hospital and you are denied rights over her or him and treated like some stranger just because you aren’t a “blood relative”. Think for once that if your spouse passes away and you are denied the automatic right over inheritance and a will is challenged, what it may feel like. Think of the tediousness involved in setting up a joint bank account where queer couples can’t and are compelled to set up a company through which they run an account. You can’t travel across the globe with your spouse as a spouse. And there is more.
But simply the petitioners – representing the emotions of many queer people – are not taking away your rights. They are just saying fundamentally the choice of marriage, with the civil rights attached to it, should be theirs too.
Delegitimising love
The Centre in its 50-page affidavit has said many predictable things but what is most shocking is its comments on homosexuals. It has said that the reading down of Section 377 by the Supreme Court “neither intended to, nor did in fact, legitimise the human conduct in question”. That verdict, the government adds, only decriminalised “a particular human behaviour”. If same-sex marriage is recognised, it would not merely create “havoc” with “personal laws” but would also lead to “legitimising a particular human conduct”.
While such language reeks of homophobia and disregards the Section 377 order, it also ignores an official statement from the Indian Psychiatric Society of June 2018 that said that homosexuality was not an illness. Lawyers following the case believe this is a ploy or tactic. By using the language it has, the government aims to suggest that homosexuality is still not okay and cannot be “legitimised” or brought into the larger consciousness of society. Therefore, homosexuality should be limited just to the bedroom and to a sexual act.
The government not only sticks to the normative binaries of female and male and how the various marriage acts pertain to “biological” genders, it has claimed that any decision on this matter should reside with the legislature and not the judiciary. Although this is an old argument put forth by previous governments in the case of Section 377, such a situation would be like seeking heaven in hell, says an activist.
The affidavit goes on to invoke every other marriage act – Parsi to Christian to the Special Marriage Act – spelling out who a bride and bridegroom is. The affidavit also refers to a number of related laws and clauses that protect women in particular in the case of divorce and alimony, domestic violence and so on. Legal experts state that such examples are based on the assumed normative structures of a marriage where a woman is assumed to be the weaker sex and the man, the stronger one.
Denial of rights
In short, the Centre wishes to say same-sex couples don’t fit since it is unclear who is male and who is the female, how then would the related laws play out, points out a lawyer. The counter to this, of course, lawyers say, is to expand the various marriage acts and use words such as “gender and sexual orientation” rather than male and female. That way everyone is included and no one is left behind. The question then is not about male and female, it is about offence and protection, crime and punishment and so on. Now, isn’t that simple given that everyone’s rights remain intact?
The government, on its part, has tried to give its own reading of the Section 377 verdict as well as the Puttuswamy case on privacy, saying neither of them should be treated as conferring “a fundamental right of being recognised in a marriage under Indian personal laws”. In a sense, the government suggests that decriminalising homosexuality doesn’t mean homosexuals have fundamental rights and are equal.
They also wish to ignore one of many points reportedly made in the Puttuswamy case which says “subjecting LGBT persons to hostile treatment is impermissible because it subjects them to criticism from society, posing grave dangers to the unhindered fulfilment of ones’ sexual orientation”. Being treated as unequal is a form of “hostile treatment” and being disallowed from an “unhindered fulfilment of ones’ sexual orientation”, which includes marriage, is to be treated as a denial of a basic right.
A debate on priorities
The queer community is split on whether same-sex marriage is a priority. Anti-discrimination laws and the creation of larger alliances with other minority groups aimed ultimately to have a more equal citizenry would have been preferred, say several activists. It is imperative to provide safeguards for basics such as access to education and healthcare, banning conversion therapy, anti-bullying laws, right to inheritance and safety and non-discrimination at the workplace, amongst others.
It is said that love itself is a privilege and not easy to find in a regressive, largely homophobic society. “Where were we when a young boy in Chennai died of suicide. Or when a lesbian was tied to a tree and beaten up in Madhya Pradesh. What about the student at IIT Roorkee who died of suicide too. Does marriage solve these issues that happen day in day out?” asked an activist, echoing the views of many who prefer a battle for civil rights rather than marriage.
Yet, it is hard to deny that equality is a choice and same-sex marriage is one of them, claim those who support the current petitions in the Delhi High Court.
Earlier in December, speaking at the Rainbow Lit Fest’s Digital & One series, author and member of Parliament Shashi Tharoor said that anti-discrimination law was the bedrock for change when it comes to discrimination on any ground, including sexuality. He also saw the relevance of the battle for same-sex marriage, understanding the emotions and needs of queer couples. But if these cases went badly, the focus should shift to civil rights, he said. The argument should be, “for example, a pair of homosexuals in a stable relationship are unable to have any civil rights when it comes to hospital operations, automatic inheritance rights, choosing a place of burial,” and so on.
Speaking at the same digital series, queer activist, Rituparna Borah who recently got engaged to her partner, Amrita Tripathi, said she wasn’t averse to marriage but felt that there were too many privileges attached to it – the many civil rights that Tharoor referred to. Filmmaker Sridhar Rangayan and his partner of 26 years, Saagar Gupta, had learnt to live without such rights and aren’t in any hurry.
Yet, it should be an option and choice for anyone to pick, argues Nicola Fenton who has been in a relationship with Raga Olga D’Silva for over 13 years. Having lived in New Zealand, India and UK, they had never once thought of marriage as such, secure in their love and what they had built over the years. It was only when Nicola fell ill during the lockdown last year that the two realised the advantage heterosexual couples had over them. Raga, after all, was not immediately treated as the spouse to Nicola, denying her dignity and equity.
Even as the debate on the relevance of the current petitions continue, the final outcome on what happens lies in the Courts and is a hotly followed topic within the queer world. While many are peeved at the government’s response – even supporters of the current regime – there is a great deal of hope in the case given that the Delhi government has pretty much left everything to the courts to decide and therefore aren’t opposing same-sex marriage. The next date of hearing is April 20, 2021 and most likely the petitioners will get a chance to place their arguments and counters to the affidavit submitted by the government.