It is impossible to sum up the entirety of one’s thoughts and deliberations about the ongoing same-sex/marriage-equality hearings in the Supreme Court. In this article, I will attempt to downplay my emotions, which are being triggered every single day as litigators deliberate on my identity, right to a life of dignity, and ability to decide my own future.
However, right at the onset, I must make it amply clear that not every queer person in India is desperate for conjugal bliss. I, for one, do not believe that the institution of marriage is holding up sturdily in these times. Ishika Tolani, a practising advocate at the Family Court in Mumbai, says in a 2022 Economic Times article that she has seen a 50 per cent rise in the filing of divorce petitions in the last year alone. The primary reasons she cites are incompatibility, lack of shared interest, communication gap, and decreasing tolerance levels.
So what, then, is the brouhaha about gay marriage, you may ask. “Just shut up and do what you want in your bedroom, but don’t make your sexuality the nation’s problem,” reads one of the politer tweets I have received from naysayers of marriage equality. My answer is straightforward and simple—I am not after marriage; I’m after ‘equality’. I want the right to choose or reject matrimony, just like my heterosexual brethren do. It is in having this right that you and I will stand as equals.
More than a ‘minuscule minority’
Not having equality under law renders many a life half-lived and many a dream unfulfilled. A travesty of justice was delivered when, in 2013, the Supreme Court failed to read down Section 377 of the Indian Penal Code; India’s LGBTQIA++ community was called a ‘minuscule minority’. Five years later, while reading down Section 377, a progressive five-judge bench accepted estimates that up to 8 per cent of India’s population – 104 million people – might be LGBT. It is one of the largest such populations in the world. Somehow, the public at large believes that the reading down of Section 377 in 2018 gave queer people all the rights they need.
“Why are you wasting the court’s time,” another faceless Twitter handle asked me. “You won the right to f*ck whoever the hell you want!” is another misconception that I would like to clear up. The reading down of Section 377 merely decriminalised sex between two consenting same-sex partners in India; it gave us no recognition whatsoever. As a voting, tax-paying citizen of this vibrant democracy, I am still denied legal recognition of a long-term union (which goes way, way beyond sex) with my partner.
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Same-sex partners have no security
Marriage means different things to different people. For some, it is a religious ceremony that solemnises a couple before the divine, and for others, it is for the protection of private property through succession and family name. Whether under the Hindu Marriage
Act, Muslim Personal Law, Indian Christian Marriage Act, or the Special Marriage Act (SMA), which isn’t based on religious formality, marriage is understood/seen as an institution that grants a bouquet of legal rights to give a couple financial and societal protection. These include inheritance of wealth and property, tax benefits, insurance cover, adoption/surrogacy rights, custody of children, and in the event of the demise of the spouse, the right to mortal remains of the deceased. Members of the LGBTQIA++ community are not covered under any of these rights, which advocate Menaka Guruswamy, in her passionate submissions, calls “the day-to-day business of life”. The fact that Guruswamy is queer and in a long-term relationship with fellow litigator and advocate Arundhati Katju only adds emotional heft to her submissions.
In 2004, the United Kingdom passed the Civil Partnership Act, under which the relationship between two same-sex people was legally recognised once they registered as each other’s civil partners. This allowed them to enjoy all the benefits of a married couple but did not bear the title of marriage and was not recognised by the Church of England. In 2018, the law was amended to include heterosexual couples who didn’t want marriage under religious ceremony but simply wanted financial and societal security for themselves and their spouse. India’s SMA is quite similar–except it excludes queer individuals.
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The SMA must read to be more inclusive
The litigators simply ask, reading into the Special Marriage Act, that the words ‘husband’ and ‘wife’ be replaced with the gender-neutral words ‘spouse’ (for Lesbian, Gay and Bisexual people) and with ‘persons’ in the case of transgender, non-binary, and gender-nonconforming people. Nothing under the SMA actually needs to change.
Interestingly, when British jurist Henry Sumner Maine first introduced the Special Marriage Act of 1872 in India, permitting dissenters to marry whomever they chose by renouncing their faith, he faced strong opposition from local governments who feared it would encourage marriages based on lust. The irony is that the very same marriage Act, created to cut across divisions, is now being argued against for discriminating among citizens.
The Government of India only recognises marriage between a ‘biological man and woman’ and fervently opposes same-sex marriage. Solicitor General Tushar Mehta, in defining the term LGBTQIA++, seemed to mock the complexity of gender and sexual orientation. He questioned: “Who will be the ‘mother’, ‘father’, ‘husband’ or ‘wife’ in a same-sex marriage? If a spouse died, under Succession Act, who would be called the widow or widower?” He feared there could be problems in citing the parents’ genders in the passports of their children. While these are clearly administrative problems that any new law or amendment would bring about, an unconvinced Justice Ravindra Bhat of the five-judge bench asked: “How many times are we to play follow-up? Where does it stop? Is this our job? Ultimately, that’s the question we come back to.”
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Exiling competent queer people will cost us
Senior advocate Saurabh Kirpal firmly argued that it was the job of the court to interpret the SMA to include LGBTQIA++. He said: “Having found a right, you cannot say that legislative drafts do not allow it. Effectively saying, you have the right to marry, but it is not workable.” Kirpal, who is queer and in a long-term relationship with his partner of the same sex, was one of the leading lawyers in the historic reading down of Section 377. He has, since 2017, been recommended by the Delhi High Court collegium to be elevated as judge, but every single time, the Centre, citing varying reasons, has opposed his elevation. Kirpal also submitted that by not recognising same-sex marriage, the country was pushing competent homosexuals to migrate abroad where they are afforded dignity in equal measure as any other citizen, which would cost our nation economically.
In my 2016 film Aligarh, based on the true life story of Professor Ramchandra Siras, who was harangued by his university for his sexuality, the academic tells journalist Deepu Sebastian that he wants to move to America, where people like him can live with respect. Two days later, he is found dead. They suspect suicide. Having come out as a gay man very early in my career and still being one of the few openly gay film professionals touching upon queer themes in my professional oeuvre, I am very aware of the roadblocks that prevent queer people from living their fullest and most authentic lives. It is exhausting to put up a front in our professional arenas, to fear being found out or blackmailed, forced into lavender marriages, never being able to fully love or be loved back, have no familial, societal, or legal support. How will such individuals ever be able to perform to their fullest potential?
It was only a few days ago when Apple CEO Tim Cook was hosted in the country and ushered around by Cabinet ministers. It becomes important to question why and how Cook’s coming to terms with his own sexuality may have opened up his approach to work, life, and community. Besides Keshav Suri, director of the Lalit Group of Hotels and Radhika Piramal, vice chairperson of the VIP Group – two very brave individuals who came out when it really mattered – I cannot think of any other out and proud queer industrialist in our country. One wonders, though, how many brilliant minds remain closeted and how many have been ‘queer drained’ to foreign nations.
Looking inward, could it be possible that the LGBTQIA++ and its representatives are unable to articulate in the most concise manner what is the need of each section of each community within the spectrum? Is a one-size-fits-all approach truly going to satisfy a thriving community of diverse identities? Could it also be that when conventional marriages today are under scrutiny for the clearly gendered division of spousal roles, equality within such a couple, too, comes to be questioned? While that is a much longer discussion best reserved for another article, what would truly benefit the public is to look at same-sex marriages as not a threat to the long-standing institutions of marriage but as another way of negotiating relationships.
While one can be hopeful for a future of dignity and equality, life as we know it, bonds of care, community, and nurturing continue to tie together the varied members of the LBTQIA++ community, and discourse grows. Houses will be built despite the lack of constitutional foundation, homes will be made despite the law refusing to recognise them, families will be created out of choice, and associations of solidarity will sustain more unified movements till the day justice is served and we truly become an egalitarian society.
Apurva Asrani is a National Award-winning filmmaker, screenwriter, editor and gay rights advocate with a career spanning 28 years in the Bombay film industry. He is best known for his work on films like Satya, Shahid, and Aligarh and the web series Made In Heaven and Criminal Justice: Behind Closed Doors. He tweets @Apurvasrani. Views are personal.
(Edited by Zoya Bhatti)