Making the Case for Same-Sex Marriage

Curated by Tiya Singh [ tiya@epw.in ]
19 July 2023

This intervention makes the case for legalising same-sex marriage in the country.

 

The present debate

The debate surrounding same-sex marriage in India continues to evoke diverse opinions and perspectives. Presently, Indian society grapples with reconciling issues of equality, human rights, and traditional values. 

Marriage has been conventionally considered an institution that allows for the union between a biological male and female. In their 2015 EPW article, ‘The Golden Cage:Stability of the Institution of Marriage in India’, K S James and K Srinivasan observe that “the institution of marriage has, over the centuries, been strongly embedded in a context of religion and caste.” However, many have argued against these conditionalities attached to the traditional interpretation of marriage, that only welcomes a heteronormative structure of society. India is not the first country to do so, countries like Canada and United States of America, amongst others, have already legalised same-sex marriage.

As this recent letter discusses,  “In April 2022, Supriya Sule, a member of Parliament from the Nationalist Congress Party, introduced a private member’s bill in the Lok Sabha seeking a debate to amend the Special Marriage (Amendment) Bill, 2022. The bill sought to give equal marriage rights to persons from the LGBTQIA+ community, citing the Justice K S Puttaswamy (Retd) v Union of India judgment.” The purpose of the mentioned bill was to ensure equal access to marriage and related rights for the queer community, which have historically been limited to the heterosexual population due to the influence of a heteronormative legal perspective that has shaped Indian society over the years.

In the article titled ‘Abortion and Gay Marriage: Sexual Modernity and Its Dissonance in Contemporary World’ Sanjam Ahluwalia argues that the  present-day advocacy for gay politics represents a striking departure from the historical narratives surrounding sexual norms in the 19th and early 20th centuries. “In the not so recent past, certain groups and cultures were deemed culturally inferior and as such marked as sexual “others,” for their practices of intimacy and desires that were in contrast to those of dominant homophobic Western sexual codes.” However, today's championing of gay rights challenges these outdated perspectives and seeks to promote inclusivity and acceptance.

Further, the LGBTQIA+ community is engaging with various  institutions to establish an equitable environment for themselves in contrast to prevailing heteronormative standards. The debate on same-sex marriage has recently been taken up by the Supreme Court of India, in continuation to its landmark judgment that did away with Section 377 of the Indian Penal Code, 1860, decriminalising same-sex relationships. As this  EPW Editorial argues that- “According to the union government, granting legal status to same-sex marriages would disrupt the harmony between prevailing personal laws and social customs in India. The Supreme Court has admitted this plea for the recognition of same-sex marriages as a fundamental right for LGBTQ+ citizens.”

In their 2023 article titled ‘Legalising Same-sex Marriages’, Pranjal Khare and Paridihi Sharma respond to the claims of the Union government and elaborate on the limitations of stopping the legalisation of  same-sex marriage on the grounds of social or cultural values; “The denial of legal recognition to same-sex couples violates their fundamental rights under the Constitution, including the right to equality, non-discrimination, and the right to life with dignity.”

Permitting same-sex couples to marry would be a substantial advancement towards dismantling oppressive and discriminatory practices as well as guaranteeing that all people, no matter what their sexual orientation, have the right to pick their partner and enter a legally recognised union.

As Chief Justice of India, D Y Chandrachud has questioned the conventional notions of gender in the recent Supreme Court hearings (livestreamed on Youtube as well the court’s website- “(Legalising same-sex marriage)) requires us to redefine the evolving notion of marriage. Does the existence of two spouses who belong to a binary gender a necessary requirement for marriage?”

Central to this debate is also the concept of the right to intimacy, which highlights the importance of recognizing and protecting the personal relationships that individuals form. Recognising this right to intimacy also involves examining the legal framework surrounding personal relationships and contemplating the broader ramifications  of recognizing the right to intimacy. 

 

Right to intimacy as a core component of autonomy

The right to intimacy plays a central role in the same-sex marriage debate as it highlights the fundamental human need for love, companionship, and emotional connection. The 2019 article ‘How Can Families be Imagined Beyond Kinship and Marriage?’ written by Arijeet Ghosh and Diksha Sanyal helps the reader to re-examine the role of law in regulating close, adult, personal relationships. “If the law recognises the right to intimacy as a core component of autonomy and privacy, then arguably, it should maintain neutrality between various forms of intimate relationships and the diverse domestic, emotional, and economical arrangements that are a part of it.”

The authors explain that in the pursuit of facilitating autonomy in defining "family," the law must simultaneously prioritize the protection of the most vulnerable individuals within these arrangements. This requires striking a balance where legal frameworks provide individuals with the freedom to shape their own notions of family while safeguarding the well-being and rights of those who may be more susceptible to harm or marginalization. By adopting inclusive and comprehensive legal measures, the law can empower individuals to define their families in ways that reflect their diverse experiences and relationships.

Further, they argue; “Non-biological kinship networks or Hijra Gharanas, same-sex couples, those in polyamorous relationships or more fluid friendship networks cannot access a range of civil rights that flow from marriage.” Thus, legal  recognition would also enable same-sex couples access to other rights automatically available to their heterosexual counterparts, such as inheritance, The article also emphasises that it is crucial to prioritise flexibility instead of pursuing a rigid, uniform policy, as this approach holds the potential to validate and recognise families of choice. 

 

Beyond Legalisation of Marriage

Legalising same-sex marriage is but one of the many steps that still need to be taken for achieving equality for the queer community. As this 2022 letter ‘Sexual Minorities and the Everyday Social’ by Ajay R Maherchandan sharply contends- “Acceding them the rights of marriage but not protecting them while they are being harassed, discriminated against, and abused, ostracised and rendered homeless would benefit nobody in the community apart from the upper-caste and upper-class queer citizens.” 

Further, “To create a more just, egalitarian world, it might be productive to continually trouble universals and to take on the task of prudently unpacking local histories. This approach might, hopefully, allow for a greater appreciation of multiple sexual and procreative practices and theorisings—both spatially and temporally.” (Ahluwalia, 2015)  This approach can open doors for fostering a greater understanding and appreciation of human experiences and be a step forward in practising inclusivity.

The legalisation of same-sex marriage could potentially open up avenues for broader discussion for securing the rights for the LGBTQIA+ community, and foster intobuilding a more tolerant and inclusive India. 

 

Curated by Tiya Singh [ tiya@epw.in ]
19 July 2023