Marriage equality: What good is symbolic recognition of one’s relationships sans rights?

If the central government has not debated marriage in the parliament despite private members’ bills, how likely is that happening anytime soon?

By Sayan Bhattacharya
Published: Tuesday 25 April 2023
The National Commission for the Protection of Child Rights has already filed a petition in the Supreme Court opposing adoption by gay couples. Representative photo: iStock.

The five-judge Constitution Bench of the Supreme Court was set to hear pleas seeking legal recognition of same-sex marriage on April 24, 2023. But the proceedings have been postponed as some judges tested positive for COVID-19.

When the piece was being written, three days of hearing marriage equality petitions had concluded in the Supreme Court and certain themes had already emerged from the previous hearings that offer indications about the road ahead

The central government has opposed the inclusion of queer and transpersons within the ambit of marriage. In a recent interview, Kiran Rijiju, the Union Minister of Law and Justice, emphasised that marriage is an ancient institution that should be debated in the parliament by elected representatives and not in a court of law.

Also read: Same-sex marriages: Reproductive and sexual rights shouldn’t be different based on sex and gender

The ruling party, which staunchly advocates for a ‘one nation, one language, one culture’ mode of governance, has been undermining the federal structure of the Indian state. However, the Centre is now suddenly latching onto federalism when it comes to marriage equality.

Its petition to the Supreme Court stated the court should invite all the states as parties to the matter if it proceeds with the hearings. In fact, the central government’s position on marriage has been consistent.

Even though it did not contest the decriminalisation of Section 377 during the Navtej Singh Johar vs Union of India hearings in 2018, it cautioned that if sexual orientation becomes a fundamental right, it could promote bestiality, incest and sadomasochism.

It reminded the court that the Hindu Marriage Act, 1955 disallowed sapinda marriages (cousin marriages). Solicitor-General Tushar Mehta, representing the centre in the hearings, harped on biology as the basis of the definition of man and woman and this binary as the foundation of a Hindu marriage. This prompted Chief Justice DY Chandrachud to point out that gender does not depend on genitals.

While several petitioners in this case ask for a gender-neutral reading of the Hindu Marriage Act, legal scholar Saptarshi Mandal points out that the Act is based on a sex-based understanding of kinship in which there are prohibitions on which unions between kin are allowed or disallowed.

Think of Mehta harping on incest during the 2018 hearings. Thus, to make gender non-normativity commensurable with the Hindu Marriage Act would be effectively asking for a complete overhaul of the legal understanding of the Hindu family.

The five-judge bench, however, seemed to reassure the state that it was not proceeding in that direction. It would only focus on the Special Marriage Act and not personal laws. This raises a fundamental question. Even if the court were to rule in favour of the marriage equality petitions, what would be the scope of the judgment if the questions of divorce, maintenance and succession, which are under the ambit of personal laws, remained outside its purview?

So, is this whole discourse more about its rhetorical force and less about its material ramifications? One step towards many a legal battle for family law reforms?

It is important to remember that some progressive judgments in the last decade have not been met in spirit by the state. Think of the privacy judgment of 2017 and its absolute violation by the state, which hordes personal information in the name of national security. Or, the 2014 National Legal Services Authority (NALSA) vs Union of India verdict in which the Supreme Court enshrined the rights of Indian citizens to gender expression, irrespective of medical intervention. Yet, the Transgender Persons (Protection of Rights) Act, 2019, was passed only in 2019.

In violation of the Supreme Court ruling, it asked for medical intervention if a trans person identifies oneself in the gender binary. So, it is very likely, the struggle for marriage equality will be a long and arduous one, irrespective of a court judgment.

If the central government has not debated marriage in the parliament despite private members’ bills, how likely is that happening anytime soon?

The National Commission for the Protection of Child Rights has already filed a petition with the Supreme Court opposing adoption by gay couples.

The National Council for Education Research and Training (NCERT) has removed from its website a teacher-training manual towards increasing the inclusion of transgender children in school education after massive outrage by the right-wing media. If this is the larger backdrop of gender discourse in the country, how do we focus on marriage as a standalone issue?

Let us return to the NALSA verdict. It had ruled for affirmative action for trans persons by providing reservation in education and employment as Other Backward Classes (OBC).

However, the Transgender Persons Act includes no such provision. On March 27, 2023, a three-judge bench comprising judges DY Chandrachud, JB Pardiwala and PS Narasimha declined to entertain an application in the Supreme Court seeking clarification on horizontal reservations for that transpersons. Here, it is important to note that Chandrachud and Pardiwala are also part of the bench hearing the marriage equality petitions.

Grace Banu, trans activist and founder of the Trans Rights Collective, led by Dalit transpersons, was the petitioner. Her questions were simple. There are trans persons, both from upper castes and oppressed castes. How could all of them be lumped as OBC?

Drawing from the principle of horizontal reservations for women and persons with disability in vertical categories such as SC, ST and OBC, there should be horizontal reservations for trans persons too. But the court responded that the petitioner should pursue other legal remedies.

Apart from Karnataka, which guarantees 1 per cent horizontal reservation and Tamil Nadu, which classifies them as the most backward classes, transpersons have received no legal guarantee to education and livelihood, almost a decade since the NALSA verdict. What good is a symbolic recognition of one’s relationships when one is not even recognised as a full citizen in the country? Can intimacy be extricated from economic precarity?

Finally, among the 20-odd petitions for marriage equality, there is a clutch of petitions led by queer feminists Rituparna Borah, Chayanika Shah, Minakshi Sanyal and Maya Sharma, along with six anonymous queer and trans individuals who have raised a vital question that is being missed.

If marriage is a pathway to recognition from one’s natal family, how do we think of all the violence the family perpetrates on trans and queer individuals?

They often find refuge among friends and larger community networks, which eventually become chosen families.

This petition is accompanied by a report filed by the People’s Union of Civil Liberties and the National Network of LBI Women and Transpersons that demand legal recognition of such chosen families and the right to exit the violent natal family.

If the law intends to affirm trans and queer experiences, such demands must become the centre of any discourse on intimacy in which varied forms of relationships, not limited to marriage, must receive legal protection and rights.

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Sayan Bhattacharya is an assistant professor at the Harriet Tubman Department of Women, Gender and Sexuality Studies, University of Maryland.
Views expressed are the author’s own and don’t necessarily reflect those of Down To Earth

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