Parsa Venkateshwar Rao Jr | Legalising gay marriage: Societal shift takes time

The decision of a five-judge bench of the Supreme Court last week that it is not for the court to recognise the marital status of LGBTQ+ people, and that it is for Parliament and the state legislatures to make the necessary amendments to the Special Marriages Act (SMA), can be seen as a judicially informed decision, or as an expression of the apex court’s timidity over extending the right to marriage to the petitioners. But two of the judges, Chief Justice D.Y. Chandrachud and Justice Sanjay Kishan Kaul, had said that marriage should be treated as one of the entitlements conferred by the fundamental rights enshrined in the Constitution. This has been contested by the other three judges -- Justices Ravinder Bhat, Hima Kohli and P.S. Narasimha. This second issue might appear a legal quibble, but it is much more than that. There are enough jurisprudential arguments on both sides. Even as Article 21, which is the right to life, has been extended to mean the right to education and the right to food, Article 19, that deals with an individual’s right to freedom of expression et al, should include the right to choose a marriage partner. But this would require a broader discussion of the issue of rights, and they need to be codified in concrete detail. But all the five judges were unanimous in saying that LGBTQ+ people should be free of discrimination and free of the fear of harassment in leading their sexual lives. The court stuck to the basic principles of liberal democracy of liberty and equality, liberty of choice, and equality before the law.

The deeper undercurrents of this case are more interesting. It is more about changes of societal mores, and the expanding sphere of individual choice. It might even be argued that the legal liabilities against the LGBTQ+ community is a fallout of the Judaeo-Christian-based laws of the British colonial era, and that it was not a barrier in the pre-colonial norms and usages in the country. With the Narendra Modi government set on a decolonising mission, it would be only too ready to do away with the colonial curbs on the same-sex, bisexual and transgender issues.

Interestingly, solicitor-general Tushar Mehta had argued in favour of the conservative view about the traditional notion of marriage based on male and female. It is easy to mock at the prevalent normative view, but it would be necessary to recognise that society at large is conservative and it makes sense to respect the majority even as you press for minority rights. As a matter of fact, the LGBTQ+ petitioners had rightly argued that their demand does not in any way challenge the heterosexual marriage norm. All they want is an extension of the right. Mr Mehta did imply in his arguments that normalising same-sex marriage would weaken the social fabric based on the heterosexual marriage system. It will be naïve to believe that the practices of the majority and the minority do not impact on each other. The majority here is not just the Hindu majority but the majority of all Muslims, Christians and Sikhs, while the LGBTQ+ members come from all communities. The court rightly rejected the argument that the LGBT+ phenomenon is urban and elitist.

The Hindu right-wing outfit, Rashtriya Swayamsevak Sangh (RSS), is likely to be open to the idea of same-sex marriage, while the orthodox Hindus represented by the sectarian religious heads would hold on to the traditional view of marriage. The Bharatiya Janata Party might follow the RSS line of thinking. Most of the Islamic orthodox groups would again favour the heterosexual basis of marriage. The status of LGBTQ+ members in their respective religious communities would create its own complications. And it would lead to the need for breaking barriers of discrimination in the religious sphere as in the civil sphere. The social implications are indeed pervasive.

The situation in Europe and America is different, where the conservative Roman Catholic Church and the Protestant churches are coming round to the view that God would not discriminate against the LGBTQ+ because they are as much pious and devoted as the heterosexual majority could be.

Moreover, the LGBTQ+ community’s bid to seek marital status and the protection of the law is strengthening the institution of marriage even as it appears to be subverting it. It is conforming to convention and custom. It wants the sanctity and legality of marriage for itself. The legal dimension of the institution of marriage includes property rights, separation, divorce and custodial rights of adopted children.

In many ways, the LGBTQ+ community senses the conservatism that is inherent in Indian society, and they are not in a hurry to break the barriers. They are trying to push the legal envelope, as it were, and the court has been moving in the same direction. The government too, that is the political parties in power, have not shut their minds. They know the sensitivity of the issue of transgender people, and they know that there is an electoral dimension to it. The people at large stand for them. It is because of the general acceptance of transgenders in Indian society that the possibility of creating space for the others in the LGB becomes easier. In contrast to Western societies, Indian society is broad-based and quite tolerant in many of the sexual identity issues. There are, of course, the belligerent conformists, but the majority of Indian society is flexible in these matters. Indian society shows greater intolerance in matters of caste and religion. Indians in general are less rigid in their views in the matter of sexual identity. This does not however mean that either the political parties holding the reins of power or the judges in the higher judiciary have an easy time in pushing the case of LGBTQ+ people. They have to go about with caution and care. And this inherent slowness in the process of change over sexual norms is recognised all around.

Last week’s ruling is one of the stages of the process of moving towards the goal of the marriage rights of LGBT+ people. It is rightly seen as frustratingly slow by the members of the LGBTQ+ because in their view the issue is simple and straightforward. But society at large has to make large adjustments in its perceptions and attitudes, and in its acceptance of the social shift.

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