Two years ago, the Supreme Court struck down a colonial-era law that had made homosexuality a criminal offence in India — the judgment expanded the idea of constitutional freedom and equality in a substantial way. It is disappointing, then, that the solicitor-general of India chose to oppose a public interest litigation in the Delhi High Court seeking the registration of same-sex marriages under the Hindu Marriage Act, 1955 in the name of “our law, legal system, society and values”.
In a young nation and a constitutional democracy, to pit so-called unchanging, eternal “values” against the liberties of a citizen does disservice to both society and law — both of which are capable of embracing change. One needs only to look back at the decades-long mobilisation of ideas, experiences and protests — outside the courtroom — that resulted in the decriminalisation of homosexuality to see this long journey. A vibrant civil rights movement, it succeeded in pushing a big swathe of Indian society towards acceptance of queer identities. Before the British had imposed a narrow Victorian framework of sexuality on the subcontinent, homosexuality had existed and been acknowledged as a mode of being — as is evident from religious texts and sculptures — even if it was not celebrated in the mainstream. Over the years, a deepening of democracy and similar movements have pushed Indian laws towards such change, from a woman’s right to inherit property to the right to be recognised as guardians of their children. The solicitor-general’s argument that the 2018 Supreme Court judgment “merely” decriminalises homosexual life — “nothing more, nothing less” — is a narrow reading of that landmark decision. In off-the-cuff remarks, he also argued that statutory provisions of the law cannot recognise a same-sex union, given that such a marriage makes traditional roles redundant. In cases of domestic violence, he asked, “Who will be treated as a wife?” But laws such as the Protection of Women from Domestic Violence Act, 2005 accord protection to live-in partners, irrespective of their marital status. There is no reason to believe that government, civil society and the courts cannot un-knot legal tangles, if any.
They must, in fact, do more and own up to the radical promise of the SC ruling: What is no longer criminal deserves the space to flower and shape its own destiny. Marriage is entwined with emotional as well as material realities. All individuals, straight or queer, being equal in the eyes of the Constitution, it is only natural that the queer community will demand such a legal recognition. To reach that eventual goal, a wider conversation is needed.
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