A 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 can not make laws but only interpret and
uphold their value.
Progressive, as the bench stressed the need for awareness among people:
Visionary, as the bench instructed States:
- 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
- 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 reforming bringing reforms. On the progressive front, there is a dire need
to literate and sensitize the public about queer rights and issues.
assured queer rights and awareness are deemed to be ineffective as long as these
actions are not transformed into real-life spaces and avenues. 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
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 finally accepted. Be it women's rights, tribals' rights,
minority rights, citizens' rights, or LGBTQIA+ rights.