Saakhi is a Sunday column from Mrinal Pande, in which she writes of what she sees and also participates in. That has been her burden to bear ever since she embarked on a life as a journalist, writer, editor, author and as chairperson of Prasar Bharti. Her journey of being a witness-participant continues.
Much discussion has been generated recently about legally validating gender neutrality and making same-sex marriages legal. All sensible people agree that this is not about right or wrong but it is the logical next step after the legalisation of homosexuality.
But judging by the reports, the state, which seems to favour prescriptive heterosexuality, has finally come up with the single biggest wedge to block debates around the right for independent sexual preferences, dissociating sexuality from procreation, and the large recorded cases of incest, marital rape, and abuse of wife and children within heterosexual families. The Centre’s submission on the subject is reflective of the deeply hostile wave of political and religious conservatism sweeping across the land.
Illustration: Pariplab Chakraborty
It says: “..marriage originates even under the so-called secular special marriages Act 1954, in Personal law….The right to marry is not absolute and is always subject to the statutory regime provided by the competent legislature.” Therefore, said the solicitor general, on behalf of the state, that if the petitioners’ argument that the state cannot regulate personal relationships, were to be accepted, the law on bestiality or incest could also be challenged on the same grounds!!
Some ideas are not new but need constant affirmation from the ground up. One of these is that men and women no matter what their sexual orientation remain intrinsically human and neither can be seen as a large sheet of socially driven genetic encoding or biological givens. Unlike the issue of heterosexual marriages, same-sex marriage it seems is being argued mostly as destructive of an age-old social construct. And the state feels it may not be possible for the court to interpret the Special Marriage Act in isolation from personal laws.
Lo kallo baat! As they say in colloquial Hindi. There now, speak further on the issue if you can!
Logic, as they say, is in the eye of the logician! Not too long ago, when establishing rape or adjudicating on temple/mosque entry rights to young women gender, we saw gender being interpreted as something determined by purely biological factors, not as a social construct. In the case of the Sabarimala temple, the sole woman judge on the bench putting in a dissent note, let the cat out of the bag when she linked the traditional denial of entry to ancient socio-religious taboos on possibly menstruating young women of reproductive age. It was argued then that since religion is above rational thought, the taboo could not be removed on constitutional grounds.
Oh dear, this view really complicates the question for the LGBTQ community. Are men and women pushing for legal validity for same-sex marriages going to be evaluated as per the secular constitution that puts women and men as social creatures on par with each other? Or do even men and women stepping out of heterosexual marriage preferences still remain a sum total of their biology with the important issues of their personal lives controlled and defined by personal laws?
Representative image. Photo: Maico Pereira/Unsplash
One of India’s best-selling magazines has just done a cover story on the issue. The cross-dressing male on the cover is a hirsute man in a jazzy sari with jewellery and make-up with (an obviously false) long braid wrapped in strands of jasmine hanging down to his toes. As you mull over the image, you realise how cunningly male-to-female transsexuals may be lampooned to convince the public that for traditional marriages, the essential desirability of accepted female sexuality must be the right norm. Also, the traditional male and his viewpoint must remain the final arbiter of family and kinship patterns both in law and social life.
The image is affirming subtly that by supporting legalisation of same-sex marriages, the (already much-reviled) liberals might end up making the manly males a laughing stock. Once that happens and India accepts alternate choices in marriage, the carefully hidden dominance of males by virtue of being a He–Man, “Mard”, in society, politics and the courts might become visible and be ultimately declared legally untenable.
True, equality is not easily definable. But in law there is a formal approach: those similarly situated must be treated equally. But women from housewives to female politicians and many sportswomen have so internalised the male viewpoint over the centuries as the only and the right one, that they at best take a protectionist approach like Smriti Irani leading a procession to demand justice for Nirbhaya. Or like P.T. Usha says female wrestlers must seek the court’s intervention instead of sitting on a public dharna and tarnishing our national image. In the case involving a Dalit rape in Unnao, and women wrestlers demanding justice for their gross physical abuse by their boss, both recede into silence.
“With all the historical baggage we carry,” writes the late Justice Leila Seth, one of the truly emancipated legal minds India, has produced, “it is difficult to understand and appreciate true equality. ..there are no definite parameters. What might have looked just and fair a century ago, in the manner of the treatment of women, no longer looks just and fair..”(Talking of Justice –p24).
Gaining the right to enter a few temples or Dargahs or legalisation of same-sex marriages good and progressive steps though they all are not likely to speed up India’s race towards true gender equality in a major way given the increasingly intolerant attitude of the state towards socio-religious aberrations threatening its own interpretation of Dharma and Personal laws.
At the time of writing, the Centre, through the solicitor general, has told the constitutional bench of the Supreme Court of India headed by the chief justice of India, to let the parliament tackle the bunch of petitions demanding marriage equality rights under secular laws for the LGBTQIA communities. Should the court delegate the matter of defining and interpreting personal laws to the parliament, its final verdict may at best provide women with an opening, a crack in the wall, between law and society that they can try and crack and deepen some more later.
For gender equality, of both the statutory and constitutional kind, and understanding the real nature of crimes against transmen and women, the nation must move beyond abstract legalities and focus on the real-life experiences of the petitioners. The system must look into the eyes of both girl and boy victims of various bosses, family elders, Babas as also the young couples frequently beaten up by cops for being in a homosexual relationship.
It is time we realised that the real goal for a democratic parliament is not to make legal categories that will only trace and freeze the status quo but to confront various older laws by widening all apparent cracks in the laws that no longer protect but are misused to deny basic rights to disempowered marginal groups. There is little to choose between a patriarchal family or a state quoting patriarchal personal laws built above gender, caste and ethnic faultlines centuries ago.
Mrinal Pande is a writer and veteran journalist.