Let me begin this article by identifying myself as an ally of the LGBTQIA+ community. An ally is a person who identifies as a cisgender and heterosexual individual but believes in the cause of the queer community. But this also explains that I have some particular rights, sanctioned to me just because I am a cis-heterosexual individual. One of those rights is also the right to marriage and to choose my partner. This right, which is not established anywhere under Indian law is again and again breached by political, socio-cultural and religious discourses. With bills like Love-Jihad, the sanctity of the legal structure is only seen crumbling under the reign of the central government. Given that most of the legal structure revolves around the Right to Personal Liberty in India regarding marriage, Article 21 of the Constitution of India has only made it too wide for any discussion or reformation.
The Issue of Same-sex Marriage
But why are we talking about it right now? Well on 17th October, 2023 the question of same-sex marriage was addressed in the Apex court of India. Under the case Supriyo v. Union of India the court rolled out a verdict that is a win in certain ways, but largely a loss for the fellow Indians who belong to the Queer community. Another reason to talk about the verdict is the rationale for wanting something like a same-sex marriage right. Let’s focus on this aspect for some time. I would ask the cis-het reader to come down from the seat of privilege for a second and consider the possibility of a right being prohibited to you which is inherent in the social structure you belong. Such an argument hinges on the choice to exercise that right. The choice of a cis-het and conventional gender norm following a person to marry is based on their “Personal Liberty”. At that point, marriage ceases to be a political discourse. It is this inherently flawed assumption of the majority that aids them with the privilege to either marry their partner or not. Such a right, ideally, should be exercisable for every individual who is a member of the state yet, a person belonging to the margins of the gender norms does not have such privileges.
The fact of the matter is that laws related to family and marriage can never be just personal. It’s a declaration that goes against not just basic socio-cultural formations but also against the Indian law articulation. The concept of Personal Law is present in Indian legal discourse abundantly but it only addresses distinct religious laws. For Narendra Subramanian, the question of Personal Law is not just focusing on multicultural and religious aspects but also affected nation formation after the independence of India. Let’s focus on a para from his book, Nation and Family:
The different approaches taken to nation formation, the recognition of religion and cultural diversity, and the regulation of family life are part of the larger trend of the emergence of distinctive forms of modernity and reconstructed traditions across the world since the eighteenth century, in the course of state centralization, colonial and other transregional exchanges, and capitalist development.
Subramanian took examples from multiple nations (India, Turkey, Tunisia, etc.) and discussed how all of them addressed cultural diversity, reconstruction of traditions and the multiplicity of family formation. This particularly points to the fact that nations have time and time again acknowledged that culture, the “common shared meanings of the masses” (as Raymond Williams taught us) changes and have reworked the legal structure accordingly. Within multicultural societies, the question of minorities exists as well, much like any other democratic structure. Nations attempted to reform these laws according to the secular structure they followed, while still allowing some rights intact to these groups. Despite such active participation of the state, the court and the nation in these practices, the question of the same-sex marriage act remains underwhelming today in the 21st century.
I would like to discuss one more pressing issue before moving on to the verdict itself. The issue of marriage as a site of gendering, injustice and inequality. Marriage as an institution marred by perspectives from long-gone ancient law-givers like Manu, only makes the case of India more complicated. But here we need to understand that the Indian culture is not governed by laws written down in Manusmriti. The idea here is that the cis-het conception of the traditional marriage system is a symptom of the patriarchal formation of societies. Malvika Rajkotia discusses in her book, Intimacy Undone, the plight of women in marriage. But Rajkotia’s analysis of the lawyer as a patriarchal subject opens some light for discussion. She discusses how these “societal heroes” become hindrances in divorce law, showing their majoritarian attitudes instead of being “polar opposites of the patriarchal strictures”. Thus, in no possible way are the lawyers free from value judgments or objectivity in their reading of the law.
The Verdict
The bench for the aforementioned case Supriyo v. Union of India consisted of five judges, namely: The Chief Justice of India, D.Y. Chandrachud, Justice S.K. Kaul, Justice S.R. Bhat, Justice Hima Kohli and Justice P.S. Narsimha. Several petitioners were involved in the hearing with multiple previous cases in discussion. I am considering here, the conclusion of the verdict with selective parts of the document regarding the case. The conclusion of some 366-page long document was shortened to 19 bullet points. Even without going much into the extensive legal discussion that went into the verdict itself, one can see certain shortcomings from the Apex court of the country. The issue, again is that there is no right to marriage in the Indian Constitution. Even though the Chief Justice involved marriage under Article 21 during Justice KS Puttaswamy (retd) and another v. Union of India and others back in 2017, the present case seems to be against such an idea. As points “g.” and “h.” narrates, the Constitution of India can neither express marriage as a fundamental right nor can it reform the Special Marriage Act due to its “limitations”. Moreover, such a disavowal is fulfilled through questioning the State. For CJI Chandrachud, the Court lacks the authority to prescribe a law regarding marriage and must leave this case to the parliament.
The legislative body of India is largely under the control of the BJP, the ruling central party. The Court denies the State to discriminate against Queer individuals. But isn’t it inevitable discrimination to allow a regime that questioned Senior Advocate Saurabh Kirpal’s credibility for being openly gay, when he was about to be appointed as a Judge in Delhi High Court? As one of my college colleagues expressed, he doesn’t know what he is more afraid of. The fact that the centre would never legislate Queer related marital laws, or that it would. The centre has ministers in power who have openly declared their queermisic stance. To leave such a responsibility in the centre’s hands seems dangerous to say the least.
Breakaway from Earlier Held Beliefs
The verdict did break some stereotypes and traditional beliefs regarding marriage; namely, points “b.” and “c.”. The Apex Court of India has declared Queerness to be natural. To be particular the document also jots down multiple words which are Indian in origin for non-binary individuals. These terms are “hijras, kothis, aravanis, jogappas, thiru nambis, nupi maanbas and nupi maanbis” (81). The Court also went on to describe how some of these terms are unique to the Indian identity and English terminology fails to provide suitable translations. This situated a vague term like “Queerness” within the ancient and national discourse of India, legitimising its “Indian-ness” and naturalness.
The Supreme Court also shunned the opinion that the Queer identity is “urban and elite”. The position of the Court in this instance was to highlight the several instances of queer union all over India in regional and rural spaces. Many academic sources were cited including Ruth Vanita’s Love’s Rite: Same-Sex Marriage in India and Maya Sharma’s Loving Women: Being Lesbian in Unprivileged India. Both of these works coming from a feminist standpoint recording the Queer experience in India which is certainly neither urban nor elite. The document also directly quoted the individuals who were interviewed by these authors.
Apart from this, the next point of contestation was the dynamic nature of marriage. The Court agrees with this dynamicity in the face of the argument that marriage as an institution is static and traditional. The Court also declared how it cannot control what form of marriage is valid and which is invalid. Taking the example of Interfaith and Inter-caste marriages, the Court attempted to provide evidence that the institution keeps on changing.
Possibilities
So, let’s come to the last arena of the question of Same-Sex marriage. From an outsider’s perspective, the possibility of same-sex marriage seems to be in a dire state. Even most of the petitioners, justifiably, expressed their disapproval of the Court. Talking to an advocate for this article, I asked him, “Does it matter if a credible person like CJI Chandrachud declares Queerness to be natural?” Unsurprisingly, he said no. But he added later that this verdict does provide a structure (be it hollow as of now) for future governments to frame a law. A possibility amongst the sea of underwhelming sighs.
As Ambedkar once wrote in favour of social reform before a political reform in the context of caste and INC in the 20th century, I wonder if we could learn something from him. To situate social reform before political reform one needs to question the society and its underlying structures before we can head on confront the political proper domain of the problem. Socially, the LGBTQIA+ community presents a rupture in our understanding of society. Even though people see the community every day in their lives, to give them basic human rights like choosing to marry the person they like, seems too much. I personally think from the standpoint of the Structuralist school of thought that social reform can, at least start.
For Structuralism the question of language and representation through language matters a lot. Structuralists, consider language as the medium through which one understands reality. Any and every society is structured through its language not vice versa. Theorists like Stuart Hall and Roland Barthes were the pioneers of the school and were very vocal about their political understandings of the world. My point is that by situating the Queer identity within language as “natural” and “non-Western” the CJI has legitimised the social structure if not legalised it. Multiple terms which are the norm for the academia and for the social context they come from, were addressed in a document for the Court of Law. Within the document presented in the Apex Court, we find mentioning of academic feminist and Queer voices, voices from the margins and ruling out the Nationalist discourse where a traditional norm like marriage is declared to be dynamic. What we have in front is an event of mass identification for the people who usually don’t get spaces to identify with.
Conclusion
So, this was my take. I know a cisgender-heterosexual man is the last person who should be giving his take on such an issue but I also believe the outlook towards the verdict has overwhelmingly been that of dejection. I see an intersectional appeal where the Queer community stand face-to-face with their oppressors and demands justice through language which is a privilege that conventionally gendered individuals take for granted. In this case, it comes down to the citizens of a state to honour our fellow country individuals. Be it social or political, reform is needed for same-sex marriage to be a norm in India.
About the Author …
Bilal Khan is a student at EFLU, in the MA Literary and Cultural Studies program. He has done his undergraduate in BA English (Hons.). His interests lie in continental philosophy, psychoanalysis, cultural studies and semiotics. His opinion is that philosophy and literature are inherently connected and should be seen as two branches that cannot exist without one another. In this ideology lies the basis of all his critical engagements.
Bilal is also an Associate Editor of Your Voice Magazine and The Dialogue Box Blogs.
