By Dr Swati Jindal Garg
Even as the Supreme Court recently ruled against giving constitutional validity to same-sex marriages, Chief Justice of India (CJI) DY Chandrachud issued a string of directions to “obviate discrimination” towards these couples. This included the creation of Garima Grehs or safe houses in all districts to “provide shelter to members of the queer community who are facing violence or discrimination”.
The CJI also directed the centre, states and Union Territories to ensure that the queer community is not discriminated against because of gender identity or sexual orientation; that there is no discrimination against them while accessing goods and services available to the public; take steps to sensitise the public about queer identity including that it is natural and not a mental disorder and to establish hotline numbers which members of the community can contact when they face harassment and violence in any form.
The Court also directed them to ensure that “treatments” offered by doctors or other persons, which aim to change gender identity or sexual orientation, cease with immediate effect. It added that inter-sex children not be forced to undergo operations with regard only to their sex, especially at an age when they are unable to fully comprehend and give consent to them.
The atrocities committed on the queer community in India can no longer be overlooked, the CJI said. He issued directions to the police to not force queer persons to return to their natal families if they do not wish to do so. And when they file a complaint against the families, the police must verify and ensure that their freedom is not curtailed.
The CJI directed that “before registering an FIR against a queer couple or one of the parties in a queer relationship (where the FIR is sought to be registered in relation to their relationship), the police shall conduct a preliminary investigation… to ensure that the complaint discloses a cognizable offence”. He also rejected the centre’s argument that the case of the petitioners “is… mere urban elitist views for the purpose of social acceptance”. He said that India has a “rich history of the lives of LGBTQ persons… which continue into the present” and that “persons with a gender queer identity who do not fit into the binary of ‘male’ and ‘female’ have long been known by different names including hijras, kothis, aravanis, jogappas, thirunambis, nupimaanbas and nupimaanbis”.
The CJI explained that people may be queer regardless of whether they are from villages, small towns, or semi-urban and urban spaces. Similarly, they may be queer regardless of their caste and economic location. Debunking certain myths, he said: “It is not just the English-speaking man with a white-collar job who lives in a metropolitan city and is otherwise affluent who can lay claim to being queer but also (and equally) the woman who works in a farm in an agricultural community. Persons may or may not identify with the labels ‘queer,’ ‘gay,’ ‘lesbian,’ ‘trans,’ etc. either because they speak languages which are not English or for other reasons, but the fact remains that many Indians are gender queer or enter into relationships with others of the same sex.”
The Special Marriage Act (SPA), 1954, allows people from two different religious backgrounds to come together in the bond of marriage and lays down the procedure for its solemnisation and registration, irrespective of whether both or either are Hindus, Buddhists, Jains or Sikhs.
The ongoing case demanded that SPA be struck down. Turning down this plea, the CJI’s ruling said the Act “was enacted to enable persons of different religions and castes to marry. If the SMA is held void for excluding same-sex couples, it would take India back to the pre-independence era where two persons of different religions and caste were unable to celebrate love in the form of marriage. Such a judicial verdict would not only have the effect of taking the nation back to the era when it was clothed in social inequality and religious intolerance but would also push the courts to choose between eradicating one form of discrimination and prejudice at the cost of permitting another”.
Proponents for same-sex marriage demand equal rights and protection under the law, stating that all individuals, regardless of their sexual orientation, have the right to marry and form a family as it is an integral part of their fundamental right to life. Same-sex couples also demand that they too should have the same legal rights and protections as enjoyed by opposite-sex couples in India.
They have said that non-recognition of same-sex marriage amounts to discrimination that strikes at the root of the dignity of LGBTQIA+ couples. Alleging that a major chunk of their day to day life is affected due to this non-recognition, they said that their families and communities get the short end of the stick. Marriage as an institution, they said, provides social and economic benefits to heterosexual couples and their families. These benefits are not available to same-sex people.
The CJI acknowledged that cohabitation is a fundamental right and it was the government’s obligation to legally recognise the social impact of such relationships. However, he said that there were concerns that allowing same-sex marriage would create legal problems such as issues with inheritance, tax and property rights. There will also be other issues like adoption of children. When queer couples adopt children, it can lead to societal stigma, discrimination and negative impact on the child’s emotional and psychological well-being, especially in Indian society where acceptance of the LGBTQIA+ community is not universal.
The Supreme Court was also of the view that biological gender is not absolute, and that gender is more complex than just one’s genitals. There is no absolute concept of a man or woman. Even though same-sex marriage is legal in as many as 32 countries, and denying this right to individuals in a democratic society goes against global principles, the problems that would result from giving legal status to them in India cannot be ignored.
The most pressing one is the fact that many religious and cultural groups in India believe that marriage should only be between a man and a woman. They argue that changing the traditional definition of marriage would go against the fundamental principles of their beliefs and values. Some people also argue that the primary purpose of marriage is procreation, and that same-sex couples cannot have biological children. Hence, the basic foundation of the institution of marriage is left unfulfilled. Another valid argument is that it would be difficult to change all the laws and regulations to accommodate same-sex marriage.
The only way ahead, it seems, is to create a separate anti-discriminatory law which prohibits discrimination on the basis of sexual orientation and to raise awareness. The primary purpose of these awareness campaigns should be to promote equality and acceptance of all sexual orientations and expand public opinion about the LGBTQIA+ community.
The legal framework of the country can be suitably amended to accommodate the change in society and the way it perceives relationships. Amendments in the Special Marriage Act, 1954, to allow same-sex couples to legally marry and enjoy the same rights and benefits as opposite-sex couples may be brought about. The current vacuum may be filled by the introduction of contract-like agreements so that homosexual people can enjoy similar rights as heterosexuals.
It would also be in the fitness of things to engage in a dialogue with religious leaders and communities to bridge the gap between traditional beliefs and modern attitudes towards same-sex relationships.
The legalisation of same-sex marriage requires a concerted effort from all stakeholders, including the LGBTQIA+ community, the government, civil society and religious leaders. It cannot be done overnight. India is known for its unity in diversity and has been known to be a tolerant country the world over. It is time to also have an inclusive society where everyone has the right to love and marry whomever they choose, regardless of their gender.
—The writer is an Advocate-on-Record practicing in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi