This demand aligns with our right to equality, dignity, and intimate expression, which are damaged by denying LGBTQIA people the right to marry who they choose
On September 6, 2018, when the Supreme Court read down Section 377 of the Indian Penal Code and decriminalised the lives of countless lesbian, gay, bisexual, transgender, queer, intersex and asexual (LGBTQIA) people, I was in the courtroom. The apex court’s decision to scrap the repressive law that had been used against my friends and I at every turn imbued me with hope and the aspiration of a better life. It is this desire of dignity that drove me, and 30 other individuals from our community, to stand before the same court five years later, seeking equal recognition of our relationships. This demand for legalising same-sex marriages is not only just but also aligns with our constitutional rights to equality, dignity, and intimate expression, which are damaged by denying LGBTQIA people the right to marry who they choose.
The government may believe that individuals must follow society’s moral values, but we believe moral values should align with the Constitution, not popular biases. (Sushil Kumar/HT PHOTO)
Our ask for a life of dignity stands on the shoulders of three judicial rulings.
In Puttaswamy vs Union of India, the apex court held that the sanctity of marriage, the liberty of procreation, the choice of family life, and the dignity of being are matters that concern every individual — irrespective of social strata or economic well-being. The pursuit of happiness is founded upon autonomy and dignity. Both are essential attributes of privacy that makes no distinction between individuals.
In Navtej Johar v Union of India, the top court said that same-sex relationships could not be discriminated against, and the law must work towards achieving equal protection.
In NALSA v Union of India, the court pointed out that at the time, Indian law only recognised male and female genders assigned at birth, affecting laws related to marriage, adoption, inheritance, succession, taxation, and welfare. The judgment held that this restrictive understanding of a person was violative of Article 14 of the Constitution, which applies to all persons, including hijras or transgender individuals who are entitled to legal protection and the same civil and citizenship rights as any other citizen in areas such as employment, healthcare, and education.
Using these judicial principles, the Constitution became the basis of challenging arbitrary laws that limit marriage as a right restricted to a “biological man” with a “biological woman”.
The Union of India justifies its opposition to marriage equality on the basis that it is the “legislature which reflects the collective wisdom of the nation” which is “based upon cultural ethos, social standards, and such other factors defining acceptable human behaviour, regulates, permits or prohibits human relations.” Such a stand shows no appreciation of the values enshrined in the Constitution.
One must make two points here. First, it is far from obvious that the cultural ethos of India runs contrary to the demands for marriage equality. A magnificent history of same-sex love in India by Ruth Vanita and Saleem Kidwai documents a rich cultural narrative of non-normative relationships that goes back to 1000 BC. Second, even if there was a cultural ethos opposing same-sex marriage, the government should be cognisant that this ignores core constitutional tenets of dignity, equality, and non-discrimination.
The Union of India’s affidavit also seems to misunderstand the contours of the right to privacy as etched by the Navtej Johar judgment. The government appears to think the verdict only holds true in the private domain of the individual and cannot include a public right of recognition. But the 2018 order recognises the right to make decisions about one’s intimate life, including the right to love – of which marriage is only an expression. The argument that same-sex and heterosexual relationships are distinct classes is equally concerning. It implies that there are different classes of personhood, with heterosexual couples entitled to more rights than same-sex and trans couples.
The government may believe that individuals must follow society’s moral values, but we believe moral values should align with the Constitution, not popular biases.
I knew I was a woman when I was six years old. At 16, I left home to escape a torrent of physical and mental abuse. My fellow transgender friends and I often battled brutality by the police and intimidation at the hands of authorities due to their prejudice and regressive laws. But we never stopped fighting for our dignity, our equality. And we won’t, until the rights of LGBTQIA people are affirmed. We have full faith that the court will deliver justice.
Akkai Padmashali is a transgender activist and one of the petitioners before the Supreme Court
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