“My Lords, may I say that that was the most nerve wracking lunch of my life,” said Senior Advocate Menaka Guruswamy, beginning to address the Constitutional Bench in the afternoon on April 25.
I was one of thousands of people across India watching the Supreme Court of India (SC) livestream the Marriage Equality petitions’ hearings on YouTube. But it felt like more than just ‘watching.’ The hearings are being broadcast as a Webex meeting. Driven to necessity by the COVID-19 pandemic, we have used online meeting spaces to love, grieve, agitate and organise. The familiarity of the format invites you in, the proceedings morph into the internet table we are all sitting at, the gravity of the machinery of democracy tugs at you, the people mill about.
Having worked to catalogue and preserve the courtroom documents of the litigation against Section 377 of the Indian Penal Code (Sec 377 IPC), I am thrilled at being able to access oral arguments in the SC without physically being in Court 1. Adv. Guruswamy explained her lunch time nerves, “How do I sum up a conversation that, perhaps, Mr Kripal, Ms Katju and I have contemplated having in this Court for many decades of our life?” Humanising history is part of my work as an archivist.
This access inspires new ways of interpreting queer history and maintaining legal memory. Video cameras and photography being prohibited on court premises before, stories of Adv. Shyam Divan’s impassioned oration during Naz hearings in the Delhi High Court are recounted as cherished memories by those who were present. Today, we get to witness for ourselves the different advocates, bodies wrung by emotion as they speak to the Justices. One is reminded that bodies, especially queer bodies, are tied to the law.
On 18 April, day 1 of the court hearings, in a repartée between CJI DY Chandrachud and Solicitor General Tushar Mehta (representing the Indian government), the CJI remarked that the notion of a biological man or woman was not absolute and that “it’s not just a question of what your genitals are.” To which, Mehta insisted that it was indeed a question of one’s genitals, whereby a man would mean a “biological man” only, limiting in his interpretation the legal definition of marriage to be exclusively between “biological men” and “biological women.”
The absence of legal recognition of same-sex marriage in India has, however, never impeded homosexuals from marrying. Urmila and Leela, two police constables in Madhya Pradesh married each other in a simple temple ceremony in 1987, the following year they were both fired from their posts when their superintendent discovered that they were married. Female-born queer individuals in Gujarat have appropriated the Maitri Karar (a traditional, now illegal, contract system in Gujarat between a married man and his unmarried mistress) to create legal protection for their domestic relationships. Amongst the transgender communities, hijras have married their pantis (partners) in traditional ceremonies.
In a continuum with pre-existing queer marriage practices and cultures, 20 petitions have been filed which are collectively being called by some as the ‘Same-sex Marriage’ petitions. Amongst these, the efforts of petitioners Akkai Padmashali and Uma, represented by Senior Advocate Jayna Kothari, broaden the scope of the proposed change in the law to include marriage for all, unrestricted to same-sex couples.
The distinctions here are between that of sex and gender, and between sexual orientation and gender identities. A same-sex marriage provision, by recognising marriages between individuals of the same sex confers the right to marry only to homosexual couples, leaving transgender, intersex and agender people without the same right. As I’m writing this, Adv. Kothari is moving the court to read in to the Special Marriage Act, that: “All references to male or female be read to be referred to as ‘persons’ and all references to husband or wife be referred to as ‘spouses’—to include all persons irrespective of their gender and sexual orientations.”
Mimicking the movement towards a fluid understanding of gender, the role played by the sex of the person in reproduction might no longer be static either. This February, a transman gave birth to a child in Kerala. Two advancements in reproductive technology contest the assumption that only a biological man and a biological woman can produce offspring together: In-vitro Mitochondrial Donation produces children who inherit genetic material from three parents, and the still in development technique of In-vitro Gametogenesis reprograms cells from adults to become stem cells, which are then turned into egg and sperm cells to create embryos. These procedures have the power to radically re-envision human reproduction, precipitating legal reforms along lines similar to that we are discussing.
Away from the gleaming walls of a futuristic fertility clinic, in an affidavit filed before the Constitutional Bench, the Indian government termed same-sex marriage an “urban elitist concept,” urging the SC to abstain from conferring marriage equality. Voices from across the queer spectrum are uniting to demand a legal provision for marriage not for the self-flagellating pleasure of joining a cis-hetero-savarna-patriarchal institution but—to borrow Adv. Guruswamy’s term—for the ‘bouquet of rights’ one can access through marriage: adoption, inheritance, maternity leave, taxes, joint bank accounts, insurance coverage, pensions, provident fund etc. These civil rights create the framework fundamental to living a life of dignity and respect, that which Navtej recognises as an inalienable right of every queer individual. Considering queer marriage, and by extension these rights, as elitist concepts is itself elitism masquerading as class consciousness, denying working class queer individuals their right to full citizenship.
But what about queer couples who do not wish to institutionalise their relationships as marriage? People in polyamorous relationships? These concerns are not within the ambit of the present hearings, yet scope out terrain to be covered in the future.
This begs an even simpler question: why marriage? Why prioritise marriage as the core of the familial unit? Us queers have two familial structures—biological (the one we’re born into) and chosen. The biological family is created by marriage while the chosen one is built on kinship honed over years. People in queer chosen families do not necessarily think of each other as ‘mother,’ ‘daughter,’ ‘son,’ or ‘father,’ forging relationships which reflect the nature of the bond between members instead of mimicking a natal connection. Which frameworks enable members of such a family to avail the civil rights being argued for queer families started by espousal relationships?
Within queer marriages or in other relationship formats, we have to address the issue of intimate partner violence. In December 2002, Chandini, a hijra from Bengaluru, was murdered by her partner. Protesting against the police who refused to accept it as a case of murder, the transgender community led the city’s first public rally for queer rights on 8 December, calling for justice for Chandini and the reading down of Sec 377 IPC. Chandini’s murder changed the queer politics of the city, and warns us about protecting ourselves from abusive loved ones. Albeit articulating our demand to marry, we need to reflect upon systemic safeguards to protect queers from intimate partner violence notwithstanding their marital status.
Earlier today (day 4 of the hearings), Adv. Kothari referred to the Yogyakarta Principles, a document on the application of human rights law in relation to sexual orientation, gender identities and HIV status. The queer movement began in India through HIV/AIDS activism, with the first argument for reading down Sec 377 being made on the grounds that it was hampering AIDS prevention efforts. At a time when HIV seems to have disappeared from public health memory, it is worth remembering that in the 2000s, it was contending with marriage as well. An example of this is, in 2006, the Goa government announced that it intended to amend the Goa Public Health Act to require couples registering for marriage to undergo compulsory HIV tests. While this was a bid towards curbing HIV transmission from infected men to their wives, it would have additionally pathologised queer people living with HIV/AIDS, stigmatising queer relationships and propagating serophobia. Queer individuals have had a complex relationship with the institution of marriage—contextualising it today with previous attempts at restricting queer marriage allows us to remember past discussions that remain relevant yet have been forgotten.
While Adv. Guruswamy was presenting her closing remarks for today, “How far and no further?” asked Justice Hima Kohli. The discussion was about whether it would be sufficient to stop at amending the Special Marriage Act or if further litigation would have to be done in Personal Law to accommodate both secular and religious forms of marriage and the civil rights contained therein.
My Lady, My Lords, my reply is this: we litigate everyday concerning the inheritance, medical insurance, custody rights, alimony, and domestic violence of heterosexual couples. It was in such a case, in August 2022, that a bench of Justices DY Chandrachud and AS Bopanna recognised that familial relationships may take the form of queer relationships. When we go as far as needed for heterosexual couples, why are we defining a point beyond which queer individuals do not deserve litigation?
As someone who initially wondered why we were focussing on queer marriage when we have so many more compelling concerns, watching the hearings has led me to introspect—I personally might never want to marry, but the right to marry is for the many queer communities who are still living life as second-class citizens. It is our right to choose to and be able to marry the person of our choice. A legal right that is being denied to us queer individuals. That is discrimination.
(Views expressed are personal)
(This appeared in the print as 'How Far and No Further')
Siddarth S Ganesh is a programme coordinator at Qamra Archival Project at NLSIU, Bengaluru
