In Supriyo v Union of India case regarding the plea for marriage equality, the petitioners have argued that Section 4(c) of the Special Marriage Act recognises marriage only between a ‘male’ and a ‘female’, and thus discriminates against same-sex couples by denying them matrimonial benefits including adoption, retirement benefits, surrogacy, etc. The petitioners want Section 4(c) to be declared unconstitutional. A number of other petitions that challenge other personal laws on similar lines have been tagged to the present one. The petitioners in these pleas contend that the denial of same-sex marriage infringes on their rights to dignity, equality, and freedom of expression. They cited the NALSA v. Union of India (2014) and Navtej Singh Johar v. Union of India (2018) cases, which were a judicial recognition of non-binary gender identities and provided them with equal rights.
The central government in its counter affidavit urged the Supreme Court to defer the issue to the legislature while also contending that a legitimate State interest exists in limiting the recognition of marriage to opposite sexes only, that is, between a male and female. They argued that denying same-sex couples the right to marry is not violative of Article 14. They also argued that Navtej upheld the right to privacy of the LGBT community and it did not include the “public right” to marriage. The second counter-affidavit filed by the Centre argues that despite the fact that there are many different castes, sub-castes, and religions in India, only heterosexual couples are permitted to get married under various personal laws and customs. It also asserts that the petitions merely reflect ‘urban elitist’ views.
Feminist perspective
For many people who don’t identify as members of the LGBT community, developing an understanding of the issues faced by people belonging to sexual minorities requires educating oneself about the structures of power and privilege long prevalent in Indian society.
This necessitates an understanding of the notion of gender as a social construct, which requires engagement with feminist scholarship. Contrary to stereotypical perceptions, feminist approaches are not merely about ‘women’ or ‘women’s movements’, but take a much broader perspective on what it means to be a ‘man’ or a ‘woman’.
As feminist scholar Nivedita Menon explains in her book, Seeing Like a Feminist, a feminist point of view urges one “to imagine occupying the marginal, relatively powerless position with reference to every dominant framework that swallows up the space at the centre … that different identities located hierarchically as dominant or subordinate are produced at different times and in different spaces, but also to be aware particularly of the processes of gendering … the ways in which people are produced as ‘proper’ men and women through rules and regulations of different sorts; some of which we internalize, some which have to be violently enforced.”
Thus, from the feminist perspective, the dominant frameworks that order the world in terms of ‘man’ and ‘woman’ are unveiled, which are intertwined with class, caste, race, ethnicity, and religion. The oppressive effects of these distinctively Indian hierarchical systems are compounded depending upon where the individual lies amid overlapping identities. Deviations from what is socially constructed as ‘normal’ draw the ire of both society and the State — the former through ostracisation, exclusion and discrimination, and the latter through lawmaking and policing, with violence being a common factor in both.
We can observe a difference between how the issues in the present case have been framed. The petitioners speak the language of constitutionalism, equality, and the rule of law to justify their position. However, the Centre’s arguments lie around the perceived threat to the traditional institution of marriage, a reliance on vague ideas of ‘sanctity’ and the insistence on the legal construction of a ‘man’ and a ‘woman’. The framing of the issues raised by the petitioners as ‘urban elitist’ views is a gross misrepresentation of the sufferings faced by members of sexual minorities in India who lie at various ends of the socio-political spectrums of class and caste, with oppressed caste queers facing the brunt of structural violence.
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Unpacking the ‘family’
The notion of ‘family’ has been brought up by the Centre as something that would face an existential threat if same-sex marriages were to be legalised. However, this argument does not hold ground if we take a critical look at the concept of family itself. Menon argues that the family is fundamentally based on inequality and on clearly established hierarchies of gender and age, and perpetuates patrilineal forms of property and descent. When we establish that ‘man’ and ‘woman’ are social constructs and that there is no absolute ‘man’ or ‘woman’ (which has also been highlighted by CJI DY Chandrachud), then this begs the question of what constitutes a family in the first place.
A more equitable understanding of what constitutes a family would be cognisant of ideas such as the right to love and build upon them. If we accept ‘love’ to be a fundamental constituent that holds a family together, we would see that the insistence on denying same-sex couples recognition through marriage by invoking ‘family’ is paradoxical: a conception of family that denies others the legal recognition of their families.
Therefore, is it really the idea of a family that is being challenged by same-sex marriages, or the heteropatriarchal status quo? Seen this way, same-sex marriages do not threaten the idea of family but instead turn it into a less hierarchical system, paving the way for societal progress and equality.
The National Commission for Protection of Child Rights (NCPCR) filed an intervention in the present case and stated that allowing same-sex couples to adopt is akin to endangering children. However, there is no proof that children raised by same-sex couples do worse than children raised by heterosexual couples. These claims are broad generalisations (with a touch of homophobia) that do not engage with the complexities of reality in any way.
Furthermore, withholding recognition to same-sex couples only puts the children they are already raising at more risk. The aforementioned broadening of the understanding of family in terms of law needs to be cognizant of ‘found families’ in addition to biological ones. Found families are often the ones in which queer people find themselves, having been rejected by their biological families, and children are often an important part of the same.
Also Read: SC asks Modi govt to consider granting benefits to same-sex couples without recognising marriage
Upliftment of the powerless
This case represents an opportunity for the Supreme Court to build upon the historic judgments of Naz Foundation and Navtej Singh Johar. Constitutional lawyer and scholar Gautam Bhatia writes in his book The Transformative Constitution why the Naz Foundation case was so significant: apart from linking equality and non-discrimination, identifying sites of group exclusion and focusing on disadvantage, disability, and self-realisation (‘dignity’), there was a recognition of the actual experiences of the subjects of a law (‘real and effective equality’) and thereby a deep understanding of structural hierarchies of exclusion in Indian society.
Judicial recognition of same-sex marriage, thus, would be a continuation of that tradition, utilising the transformative potential of the Constitution. A ruling in favour of the petitioners would also lead more people to confront the biases that they hold toward sexual minorities and help society come to terms with its hierarchical and oppressive fault lines.
This would also encourage other marginalised communities to seek judicial recognition and protection. The dominant framework and discourse at play privileges the worldview of the straight, ‘upper’ caste male belonging to the majority community. Thus, to look at the ‘relatively powerless position’ here means to look from the perspectives of queer men, women, and people identifying as non-binary, and those belonging to marginalised communities. It is these people who live in constant fear of being on the receiving end of violence from society and the State. It is their upliftment that the Supreme Court must aim towards.
Kaif Siddiqui is a PhD candidate at NALSAR University of Law, Hyderabad. He tweets @kfs_601. Shifa Qureshi reads law at Aligarh Muslim University. She tweets @TheShifaQureshi. Views are personal.
(Edited by Theres Sudeep)