In a nation where reportedly an estimated 90% of marriages are arranged, it wasn’t surprising that the government chose to go against personal choice, love and same-sex love. After all the idea of choice doesn’t fit in to the template, structures and every law and social norm that defines a marriage. The fluidity that comes with choice, love and passion that drives such affection, the honesty that is attached to breaking the norm, are hard for a government (and society) to engage with.

If choice is offered (and therefore equality), it would disrupt the system of arranged marriages cemented over the years, revolving around the rigid classifications of caste, class, colour, economics, regions, religion and even looks – reflected even in urban matrimonial ads. As the government put it last week in response to a batch of petitions in the Delhi High Court, any change in the current laws that govern marriage, would lead to “complete havoc with the delicate balance of personal laws”.

The “delicate”, polite and dignified “personal rights that the petitioners have asked for is merely to include same-sex marriage, indirectly seeking to expand the institution of marriage. In fact, this would strengthen the “much-adored” social construct of marriage. What they seek, in actuality, is the solemnisation of their love into marriage not necessarily because they want the institution desperately, it is the civil rights and privileges attached to the marriage act that they require.

Many hurdles

Imagine for a moment, my dear heterosexual friends, a situation where your spouse is in hospital and you are denied rights over her or him and treated like some stranger just because you aren’t a “blood relative”, not a spouse. Think for once that if your spouse passes away and you are denied the automatic right over inheritance and a Will is challenged, what you would go through? Think of the tediousness involved in setting up a joint bank account where queer couples can’t as they aren’t legally recognised as a couple and are compelled to set up a company through which they run an account. You can’t travel across the globe with your spouse as a spouse. And there are just so many more hurdles that committed same-sex partners go through.

More importantly and very simply the petitioners representing the emotions of many queer people, are not taking away the rights of heterosexuals, they are just saying fundamentally the choice of marriage with the civil rights attached to it, should be theirs too. Think of it honestly, the Constitution is not yours or ours, it is for every citizen of India.

The Centre in its 50-page counter affidavit has said many predictable things but what is most shocking is its comments on homosexuals. It has said that the reading down of Section 377 criminialising gay sex by the Supreme Court “neither intended to, nor did in fact, legitimise the human conduct in question”. The historic verdict of September 6, 2018, the government adds, only decriminalised “a particular human behaviour”.

If same-sex marriage is recognised, it would not merely create “havoc” with “personal laws” but would also lead to “legitimising a particular human conduct”.

Members and supporters of the lesbian, gay, bisexual, transgender community celebrate the Supreme Court decision to strike down a colonial-era ban on gay sex. Photo: Indrani Mukherjee/AFP

While such language reeks of homophobia and disregards the Section 377 order, it also ignores an official statement from the Indian Psychiatric Society of June 2018 that said homosexuality was not an illness – something that I had thought I would never have to quote two years hence. Lawyers following the case believe the “homophobic” reference is a ploy or tactic. By using the language it has, the government aims to build a case that homosexuality is still not okay and cannot be “legitimised” and brought into the larger consciousness of society. Therefore, homosexuality should be limited just to the bedroom and to a sexual act.

The government not only sticks to the normative binaries of female and male and how the various marriage acts pertain to “biological” genders, it has claimed that any decision on this matter should reside with the legislature and not the judiciary. Although this is an old argument put forth by previous governments in the case of Section 377, such a situation would be like seeking heaven in hell, says an activist.

The affidavit goes on to invoke every other marriage act – Parsi to Christian to the Special Marriage Act – spelling out who a bride and bridegroom is. The affidavit also refers to a number of related laws and clauses that protect women in particular in the case of divorce and alimony, domestic violence and so on. Legal experts state that such examples are based on the assumed normative structures of a marriage where a woman is assumed to be the weaker sex and the man, the stronger one.

In short, the Centre wishes to say same-sex couples don’t fit since it is unclear who is weaker and stronger. Of course, they didn’t wish to think of two partners being equal.

Expanding the laws

The counter to this, lawyers say, is to expand the various marriage acts and use words such as “gender and sexual orientation” rather than male and female. By doing that everyone is included and no one is left behind. So all the related laws of marriage such as domestic violence and divorce, would focus on “offence” and “protection”, “crime” and “punishment” and so on.

The government has argued that neither the Section 377 verdict or the Puttuswamy case on privacy, should be treated as conferring “a fundamental right of being recognised in a marriage under Indian personal laws”. In a sense the government suggests that decriminalising homosexuality doesn’t mean homosexuals have fundamental rights and are equal.

The Centre, in its counter affidavit, also wishes to ignore one of many points reportedly made in the Puttuswamy case. For example this widely reported point that says “subjecting LGBT persons to hostile treatment is impermissible because it subjects them to criticism from society, posing grave dangers to the unhindered fulfilment of ones’ sexual orientation.” A simple interpretation suggests that inequality is a form of “hostile treatment” and being disallowed from an “unhindered fulfilment of ones’ sexual orientation” is denial of marriage and civil rights.

Providing safeguards

While the queer community watches this case and its evolution, it is split on whether same-sex marriage is a priority. Anti-discrimination laws and the creation of larger alliances with other minority groups aimed ultimately to have a more equal citizenry, would have been a preferred step forward after the reading down of Section 377, say several activists. It is imperative to provide safeguards for basics such as access to education and healthcare, banning conversion therapy, anti-bullying laws, right to inheritance and safety and non-discrimination at the workplace, amongst others.

Where were we as a community when a young boy in Chennai died of suicide, activists ask. Or when a lesbian was tied to a tree and beaten up in Madhya Pradesh. What about the student at IIT Roorkee who died of suicide too. Does marriage solve these issues that happen day in day out.

Love, activists add, is a privilege for a small percent of the queer world.

Yet, as it were, it is hard to deny that equality is a choice and same-sex marriage is one of them, not a compulsion, claims those who support the current petitions in the Delhi High Court.

Civil rights focus

Earlier in December, speaking at the Rainbow Lit Fest’s Digital & One series, author and MP, Shashi Tharoor said that anti-discrimination was the bedrock for discrimination on any grounds including sexuality. He also saw the relevance of the battle for same-sex marriage, understanding the emotions and needs of queer couples. But if these cases went badly, the focus should shift to civil rights, he believed. The argument should be, “for example, a pair of homosexuals in a stable relationship are unable to have any civil rights when it comes to hospital operations, automatic inheritance rights, choosing a place of burial,” and so on.

Speaking at the same digital series, queer activist, Rituparna Borah who recently got engaged to her partner, Amrita Tripathi, said she wasn’t averse to marriage but felt that there were too many privileges attached to it – the many civil rights that Tharoor referred to. Filmmaker Sridhar Rangayan and his partner of 26 years, Saagar Gupta, had learnt to live without such rights and aren’t in any hurry.

Yet, it should be an option and choice for anyone to pick, argues Nicola Fenton who has been in a relationship with Raga Olga D’Silva for over 13 years. Having lived in New Zealand, India and the United Kingdom, they had never once thought of marriage as such, secure in their love and what they had built over the years. It was only when Fenton fell ill during the lockdown last year that the two realised the advantage heterosexual couples had over them. D’Silva, after all, was not immediately treated as the spouse to Fenton, denying her dignity and equity.

Even as the debate on the relevance of the current petitions continue, the final outcome on what happens lies in the courts and is a hotly followed topic within the queer world. While many are peeved at the government’s response – even supporters of the current regime – there is a great deal of hope in the case given that the Delhi state government has pretty much left everything to the courts to decide and therefore isn’t opposing same-sex marriage. The next date of hearing is April 20 and most likely the petitioners will get a chance to place their arguments and counters to go the affidavit submitted by the government.

Sharif Rangnekar is the Director of the Rainbow Lit Fest and author of Straight to Normal.