While last week marked the second anniversary of the landmark Supreme Court judgment which decriminalised consensual gay sex, queer rights in India still have a long way to go. In a new development, a Public Interest Litigation (PIL) that was filed in the Delhi High Court, seeking recognition of same-sex marriage under the Hindu Marriage Act, 1955, was opposed by the Indian government on September 14.
The petition, filed earlier this week, asserts that the Hindu Marriage Act allows a marriage to take place between “any two Hindus” without discriminating between heterosexual and homosexual marriages. Nowhere is it mentioned that the “two Hindus” getting married must be a Hindu Man and a Hindu Woman, contends the plea. In India, there is no unified marriage law. Instead, every Indian citizen has the right to choose which law will apply to them based on their community or religion. However, same-sex unions are legally not recognised across all communities.
In the hearing on the petition mentioned above, the Solicitor General, on behalf of the State, pushed back stating that Indian culture and law don’t recognise same-sex marriages. As per law, marriage is only between a man and a woman—this petition “did not even deserve the filing of an affidavit”, said the Centre. The bench, however, suggested that such petitions should be looked at with an open mind—the petitioners could try and get their marriage registered first and approach the court then if they were denied.
The PIL is filed on the behalf of Abhijit Iyer Mitra, a commentator on security and foreign policy, intersex activist Gopi Shankar M, founder member of Sakhi Collective journal of contemporary and historical lesbian life in India, Giti Thandani, and transgender rights activist G Oorvasi.
The plea further says that the non-recognition of the rights of same-sex couples, especially when the Supreme Court has recognised their sexuality, violates various provisions of the Indian Constitution. “The Right to Marry is also stated under the Human Rights Charter, within the meaning of the right to start a family,” states the plea. “The Right to Marry is universal and it is available to everyone irrespective of their sexual orientation and gender identity.” Ancient Hindu scriptures have also historically been kinder to same-sex unions.
The movement for the legalisation of same-sex marriage has also been gaining momentum in the country after the decriminalisation of gay sex. This petition is the second this year to seek recognition of same sex marriages—another petition was filed in the Kerala High Court in January. Lawyers Menaka Guruswamy and Arundhati Katju, both of whom were among the counsels fighting against the draconian Section 377 in 2018, also spoke about their 'Marriage Project'—a project that aims to legalise same-sex marriages—earlier this year.
Advocates of the LGBTQ+ community who believe in the legalisation of same-sex marriages do so because decriminalisation has not given them recognition in the society yet. Decriminalisation is not the same as recognition, and thus, even though consenting adults can enter non-heterosexual relationships, these relationships don’t stand at the workplace, in insurance claims, property rights, inheritance, and other such legal matters. Guruswamy had elaborated in the video recorded at Oxford, “We are a country that sanctifies one kind of relationship—marriage—and policing a relationship has been integral to our legal history.” She went on to call India a “marriage country”, for marriage is the only union of two people the society recognises as India is a kin and family-based society. While the law currently doesn’t allow same-sex marriages, couples can opt for a ‘Civil Union’ under the Special Marriages Act 1954. The facilitation of inter-religious marriages does facilitate social change, but it too doesn’t make provisions for people to marry anyone regardless of their gender.
Here, it is also worth noting that same-sex marriage rights are not the same as the right to marry someone regardless of sex and gender. The former functions in a cisgender world and the latter in one which is more inclusive of trans, non-binary, and intersex people. Benefits and recognition of same-sex marriage are likely to be limited to cisgender people only, but trans, non-binary, and intersex people have often been left behind. Furthermore, queer Indians opposing the legalisation of marriage believe that marriage is an inherently casteist institution that is bound to be of caste purity and maintaining monogamy. And this plea in particular only talks about same-sex marriages from a Hindu perspective.
“There is a huge employment crisis,” said trans advocate Swati Bidhan Baruah to Firstpost. “So many people are thrown out of their homes by their parents for coming out as queer, and they need to be provided with shelter. We need to fight for the upliftment of queer people by providing them with opportunities for higher education, and so on. There is no dearth of challenges within the community, and legalising gay marriage is certainly not paramount.”
Moreover, the government has also passed The Transgender Persons (Protection of Rights) Bill that, on the face of it, prohibits discrimination against transgender persons in areas including education, employment, and the ability to rent or buy property. However, it actually violates the right to self determination of gender identity. The Act gives transgender persons a “right to self-perceived identity” — but requires them to register with the government if they want to be officially recognised as "transgender." If a transgender person identifies as a trans man or trans woman and wants to be legally recognised as such, they have to submit proof of gender confirmation surgery to the government.
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