Opinion As a queer person and a lawyer, I believe it is illegal to deny same-sex couples the right to marry

Let me deal with his arguments one by one. His first argument was that the bench did not pay enough attention to the Solicitor-General’s comment that queer couples’ children may have psychological impediments. A recent study in the British Medical Journal found that “most of the family outcomes are similar between sexual minority and heterosexual families, and sexual minority families have even better outcomes in some domains. Relevant social risk factors of poor family outcomes included stigma and discrimination, poor social support and marital status, etc”. The argument that Parliament should examine this, is thus, unfounded. When the CJI pushed back at the Solicitor-General, the latter said that it was his personal opinion. It is, in fact, a claim backed by science. I was in court that day, and to hear this claim made at the bar, made me feel dehumanised as a queer lawyer.

The second argument that he makes is that marriage is a samskara, or a holy union. Marriage stopped being a samskara the moment divorce was allowed. Marriage is now merely a status conferred by law, much like citizenship, as Indira Jaising argued (‘Unions of our own choice’, IE, March 16). Notably, both the cases that he relies on were pronounced prior to Navtej Singh Johar v Union of India, and NALSA v Union of India. Both cases changed how we look at indirect discrimination in constitutional law, and more importantly, how the law looks at gender and sexual minorities. Discriminating on the grounds of gender and sexual orientation — which, the current marriage laws do — is illegal. These laws are not in conformity with the fundamental rights in part III and are thus, prima facie, illegal. Mahmood also ignores the recent pronouncement of the Supreme Court in Deepika Singh v Central Administrative Tribunal (2022) which held that atypical manifestations of the family deserve equal protection from the law. He furthers this argument by saying that Hindu Marriage Act and the Special Marriage Act are already “modern” and we do not need to make them “ultra-modern”. These are not legal terms. Our Constitution is a transformative document. It must evolve with the times, and if a statute does not comply with the Constitution, it must be struck down or read down so that it is in line with constitutional philosophy.

In his piece, Mahmood also claims that queer relationships are “extraordinary”. I agree with him. They are extraordinary because they are formed by two people who survive, in most cases, marginalisation, discrimination, and systemic abuse and come out of it with the ability to love and thrive. They are extraordinary because they are seldom conforming to societal norms about expressions of love. But does that mean that they are not deserving of the protection of the law? No. On the contrary, the law must make sure that it protects such a relationship with greater sensitivity.

Mahmood’s final argument seems to be that the Transgender Persons (Protection of Rights) Act, 2019 must be amended to regulate “homosexual unions”, which in his view are a “special category, different from the socially predominant norm of heterosexual unions and should, in the fitness of things, be governed by a special law”. This demonstrates a lack of understanding of the difference between gender and sexuality by Mahmood. The 2019 Act was made for protecting the rights of transgender persons, and not “homosexual unions”. Homosexual unions, as he puts it, are between two persons of the same sex. A transgender person is a person whose sex differs from their gender. The two phrases are distinct. The 2019 Act was enacted to ensure the protection of the rights of transgender persons and their welfare. A transgender person may not necessarily be homosexual, and vice versa.

My final problem with his piece is that he talks about “same-sex” marriage. The parties before the court are not just same-sex couples. There are transgender, non-binary, and other queer persons before the Court too. This framing of the marriage equality debate as a fight for “same-sex” marriage has the classic signs of trans erasure that the queer rights movement has rightly been accused of.

“Introduction of constitutional law in the home is most inappropriate. It is like introducing a bull in a china shop,” wrote Justice A B Rohatgi in his judgment in Harvinder Kaur vs Harmander Singh Choudhry (1983). Ironically, his son and India’s former Attorney General, Mukul Rohatgi, is one of the lawyers for the petitioner making exactly the opposite argument. But of course, us lawyers are no strangers to sons disagreeing with their father’s judgments. Ironically, K S Puttuswamy v Union of India, which laid down the right to privacy and forms the basis of some arguments for marriage equality, saw Justice D Y Chandrachud overrule his father, former CJI Y V Chandrachud’s judgment in ADM Jabalpur v Shivkant Shukla. The Constitution rightly regulates state action when it interferes with the intimate relationship of persons. As judges say when they disagree with their brother judges, “I respectfully disagree”.

The writer is a lawyer at the Supreme Court of India and a bioethicist