On 17th October 2023, the five-judge bench headed by the Chief Justice of India, D.Y. Chandrachud, ruled on not legalizing same-sex marriage and not extending adoption rights to the queer community. As much as this verdict may tug at our hearts, I remain steadfast in my conviction that the prevailing circumstances do not provide the optimal backdrop for our nation to legalize same-sex marriages, considering the social, legal and cultural landscape. To quote Thomas Kuhn, ‘We humans are defining new puzzles without solving the previous ones.‘ Against the backdrop of our contemporary shortcomings in safeguarding the constitutional rights of women and other marginalized groups, coupled with the governance that lacks transparency and accountability, inefficient policies and decision-making expanding trust deficits between citizens and government, the persistence of gender-based violence, gender-stereotyped societal norms and transphobic communities, it is imperative not only to acknowledge the dehumanized perceptions associated with the historical and traditional identity of a trans person but also the absence of guaranteed provision for gender or sex-based education and awareness, likely to create more avenues of discrimination and atrocities.
Above all, the poor state of infrastructure availability to accommodate the vast arena of LGBTQIA+ across all levels, whether putting it on official paper, passing it as a legal framework, normalizing it across social systems and communities diagnosed with taboo and stereotypes, incentivizing it among welfare policies, or standardizing it across existing binary-based platforms.
Divided States of Bharat have patriarchy at the core of the praxis, with few scattered patches of matriarchy and egalitarianism across the region. The classical belt of patriarchy consists of Uttar Pradesh, Punjab, Haryana, Rajasthan, and parts of Bihar, Madhya Pradesh, and Gujarat. However, the region surrounding these states also practices a patriarchal social structure at its best. The states down south, such as Kerala, Tamilnadu, and parts of Karnataka, have societies with more egalitarian socio-cultural norms. On the other hand, societies in the Far East, i.e., the north-Indian states, have social structures with imprints of matriarchy. These imprints are also visible among hilly tribes of Himachal Pradesh, Ladakh and Uttarakhand. However, states like West Bengal, Odisha, Chattisgarh, and Jharkhand are not exclusively known for either, but the male patriarch largely runs the households. Patriarchy, being the major driving force behind the hegemonic distribution of power and its control and exercise, deems the binary division of sexes necessary and the only alternative. Thus, the state and the subjects of the states are united by the sexes and divided by the genders. In other words, with people becoming more vocal and expressive about their sexual orientation, it has threatened the state subjects accustomed to a binary-division-based lifestyle. They do not only perceive these outcomings as a direct threat to their socio-cultural identity but also as a challenge to their status quo, i.e., patriarchal-induced privilege and hegemony.
Moreover, reflecting on why this verdict has more to cheer about rather than perceiving it as a setback is imperative. Considering the past verdicts on the issues of transperson and sexuality, this verdict is more progressive and logically justified than before. For instance, the aforementioned issues and persisting barriers strongly suggest laying down some concrete framework before haphazardly bringing reforms to the existing system. As the existing sexual arena is already crowded, there is a need to create new avenues and spaces considering the needs of an LGBTQIA+ person. Undoubtedly, delaying or holding them back is not the intention but facilitating and accommodating them rather than adjusting. Upon careful examination of the verdicts, the five-judge bench ruled on the issues with a more logical, progressive and visionary approach.
- Logical, as the bench highlighted the limitations of the Supreme Court, deeming the issue of queer marriages as a matter of legislature and not the judiciary, which is quite understandable as Courts cannot make laws but only interpret and uphold their value.
- Progressive, as the bench stressed the need for awareness among people:
- By justifying that Queerness is not an urban, elite concept or bound to any caste or class
- Denying that marriage is a static or rigid institution, which indicates the scope for future amendments.
- Agreeing on the ability to choose a life partner irrespective of sexual orientation or gender is justified based on the Right to Life and Liberty under Article 21.
- Terming circular of the Central Adoption Resources Authority (CARA), which prohibits the LGBTQIA+ community from adopting a child, unconstitutional and discriminatory. It means unmarried and queer couples can jointly adopt a child.
- Visionary, as the bench instructed States:
- To ensure that queer couples must have equal access to basic needs and not be discriminated against based on their sexual orientation or gender.
- Heterosexual and Non-heterosexual persons should be considered two sides of the same coin rather than treated as other-worldly or with the intent of sickness.
- Highlighted the need for the Anti-discrimination Law.
- Stressing the need to sensitize the public about Queer rights.
- Creating safe spaces such as safe houses or Garima Grih for Queer community.
- Ensuring that no person shall be forced to undergo any hormonal operations, especially inter-sex children.
- Facilitation of grievance redressal system such as creating a hotline for the queer community.
In a nutshell, the limitations of the court, i.e., not being able to draft the law, can only be met with the legislature’s help; thus, it provides an opportunity for the elected government, MPs and MLAs to abridge the trust deficit between citizen and government by considering the citizen-centric issues while bringing reforms. On the progressive front, there is a dire need to literate and sensitize the public about queer rights and issues. However, assured queer rights and awareness are deemed to be ineffective as long as these actions are not transformed into real-life avenues and opportunities. For instance, merely constructing a gender-neutral toilet in a public space is more than enough to acknowledge their existence, and it will work as a stimulus for heterosexual people- a subconscious reminder of people beyond the binary. So far, the LGBTQIA+ community remains in putative form to a larger part of society. History is witness. We, as humans, can only delay the inevitable. But cannot prevent it. We have always protested the novelty initially, delayed as much as we could and eventually accepted. Be it women’s rights, tribals’ rights, minority rights, citizens’ rights, or LGBTQIA+ rights.
The verdict is undoubtedly a setback, but it also hints at the prevailing crisis in the contemporary sexual arena, which offers a platform for catalyzing a paradigm shift. In other words, putting up one more fight to strategically advance the cause in the pursuit of legalizing same-sex marriage and extending LGBTQIA+ community rights with effective parliamentary channels.
- Idled States of Bharat: United by Sexes Divided by Genders - November 3, 2023
- Oye Didi! The Tale of Two Young Boys from Punjab - October 27, 2021
- #RhymeAndReason : Queer We - June 18, 2020