Almost two years have passed since the historic IPC Section 377 Judgement, in which the Supreme Court of India decriminalised homosexuality. The 200+ page judgement not only highlights the grounds of decriminalisation, but also some of the comments made by the opposition. For example, one of the parties opposed to the judgement said, “If Section 377 is declared unconstitutional, then the family system which is the bulwark of social culture will be in shambles, the institution of marriage will be detrimentally affected and rampant homosexual activities for money would tempt and corrupt young Indians into this trade.”
This argument (and other similar others) failed in court. Moreover, these claims are not backed by evidence. On the contrary, with changing times and changing social mores, our ideas of what constitutes a ‘family’ has begun to change. Eventually, the court sided with the petitioners by saying, “A person’s sexual orientation is intrinsic to their being. It is connected with their individuality, and identity. A classification which discriminates between persons based on their innate nature, would be violative of their fundamental rights, and cannot withstand the test of constitutional morality.“
What lessons can we learn from the judgement? And what is the path ahead for LGBTQ+ rights?
These questions (and more) were discussed in the Oxford Union last month when Menaka Guruswamy and Arundhati Katju—the two lawyers who were at the forefront of the Section 377 case—delivered a powerful speech on LGBTQ+ rights in India.
Although the legal proceedings against the sodomy law began almost 15 years before 2016, no LGBTQIA+ people themselves went to court challenging the law. It was only in 2016 that the Supreme Court petition saw LGBTQIA+ people file petitions in their own names, and it was this representation, Guruswamy and Katju argue, that helped change the law.
The Supreme Court of India has, through a long history of jurisprudence, passed judgements aimed at protecting couples and relationships that went against societal norms. From protecting inter-caste couples, to inter-faith and even inter-racial couples, the Constitution has granted people equal protection from violence and concomitantly recognized that, in a multi-cultural, multi-faith and secular nation like ours, Indian minorities deserve these special protections when attacked by orthodox social forces. Thus, it was all but natural to legally challenge the (un)constitutionality of LGBT+ relationships vis-à-vis the sodomy law, and that was exactly what happened in 2016.
The petitioner in the case, Navtej Singh Johar, a dancer who identified as belonging to the LGBTQIA+ community, filed a writ petition in the Supreme Court in 2016 seeking recognition of the right to sexuality, right to sexual autonomy and right to choice of a sexual partner as a right guaranteed by Article 21 of the Indian Constitution. Furthermore, he sought a declaration that Section 377 was unconstitutional. After two years of litigation, on 6 September 2018, the Supreme Court finally ruled in favour of decriminalising homosexuality, thereby liberating millions of queer Indians—most of whom were (and still are) in the closet.
An interesting point that Guruswamy and Katju make is that ‘India is a marriage country’. Indian society, and most societies in the world, typically recognize only one type of relationship: a heterosexual one. And even this form of relationship isn’t without its own history of violence and struggle. On June 12 1964, the U.S Supreme Court in a unanimous decision in Loving v. Virginia, struck down state laws that banned interracial marriage. In India too, inter-caste couples continue to face social stigma even though such relationships are constitutionally legal. Hence, the very act of policing love, seems to have been an integral part of our collective legal history. And it is this policing that Guruswamy and Katju aim to challenge in their next project: The Marriage Project.
The remarkable aspect of the Section 377 judgement was that it placed the LGBTQIA+ community within the ambit of the constitutional compact as sexual minorities wanting the rights and freedoms, which were hitherto denied to them. Justice Indu Malhotra rightly said, “History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries. The members of this community were compelled to live a life full of fear of reprisal and persecution.“
So, what is The Marriage Project? Plain and simple, it is a legal project that aims to legalise same-sex marriage in India. According to Guruswamy and Katju, there is a legal and social aspect to this project.
The legal aspect is that in a country like India, existing marital arrangements centre around a bundle of rights. These rights determine who you can co-sign on a lease, who you can leave your inheritance to, who you can nominate for life insurance, and so on. These civil liberties are extended by the State to blood relations and legally recognised spouses. In India, such rights currently do not extend to same-sex couples, and this is the legal problem.
The social aspect of the marriage project alludes to India being a ‘marriage country’. From their many interactions with young people throughout the length and breadth of the country, Guruswamy and Katju noted that young Indians—gay or straight, Hindu or Muslim, upper caste or lower caste, male or female, all wanted the same thing—a lasting long term relationship recognised by society and by the law. In fact, part of what makes for a wholesome life is not just occupational success, but also personal success. The core part of many people’s happiness comes from having someone in their life whom they can love and whom the law of the land recognises as a valid partner or spouse worthy of recognition. India is, after all, a kin-based society and a family society.
After the Section 377 judgement, Guruswamy and Katju met many parents of homosexual children who spoke about how they embraced their children and their same-sex partners into their families. These parents were grateful for the Supreme Court’s verdict and it seems that the way ahead is to now legally enmesh these relationships within the social fabric of the Indian family. In a country of almost 1.3 billion people (2018), of which the LGBTQIA+ community comprises 7-8% of the population, why should this group of people be denied the same marital rights as others just because they are a demographic minority? In fact, why should they be denied any rights at all?
The Marriage Project, in the world’s largest constitutional democracy, is indeed ambitious, but one worth fighting for. And the best part is that the groundwork has already been started. Soon after the Supreme Court verdict, young people began discussing the issue of same-sex marriage on various online LGBTQIA+ forums. And as someone who is both gay and active on these forums, I can affirm that these conversations have intensified over the years.
Bollywood too has ‘come out of the closet’ by featuring prominent actors as homosexual characters in same-sex romantic relationships. Dutee Chand, an Asian Games silver medalist and India’s first (and only) openly queer athlete recently came out of the closet and revealed that her same-sex partner was her ‘soulmate’. She says that was the Supreme Court verdict that gave her the courage to speak out about her personal life.
Finally, there exists a petition in the Kerala High Court to legalise Sonu and Nikesh Pushkaran’s marriage. Sonu and Nikesh are two young men who secretly exchanged garlands and wedding rings at the Guruvayoor temple in July 2018, a few months before the Supreme Court decision. Nitesh says, “I cannot call Sonu my husband in any document. We cannot open a joint bank account or get medical insurance together. We do not enjoy any of the privileges that heterosexual married couples in this country enjoy.”
Indeed, the journey ahead is long and arduous, but young people in India are ambitious and have their entire lives ahead of them. During the Section 377 hearings, many of the petitioners emphasized how this country, India, was as much theirs as anyone else’s. They wanted the Constitution to reflect their needs and rights in light of the changing times and that is exactly what happened. Will it happen again? Only time will tell.
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