Moving the Needle on Gay Rights

THE STATE IS THE upholder of social order. Among its many functions, it is expected to oversee, and if necessary, enforce the contract between individuals, society and the state that regulates the ebb and flow of everyday existence. The guide rails that define a citizen’s freedom—and limits—are set by the Constitution in broad conceptual terms as well as in the nitty-gritty of legal provisions. It is therefore hardly a surprise that the state’s actions are often directed at the family unit, the basic building block of society. Governments and legislatures recognise the primary role of the family in ensuring social stability by providing a safe harbour for individuals to grow and flourish within the reassuring clasp of familial ties.

The petitions before the Supreme Court seeking legal recognition for same-sex unions brings to the fore the fundamental question of how a family is to be defined. Can it include same-sex couples with rights and duties akin to a union between a man and woman? And who is to decide whether marriage between a man and woman will remain the bedrock of what constitutes a family? Will it be the legislature or can the courts step in and take on the task of fundamentally reordering the structure of society with concomitant implications for laws dealing with marriage, divorce, adoption, inheritance, and much more?

The role of the higher courts is to subject any law or action of the state or legislature to the test of constitutionality. Over the years, high courts and the Supreme Court have stepped into administrative domains, directing how traffic is to be managed, pollution mitigated, and even monitoring the supply of oxygen during the Covid pandemic. More recently, the Supreme Court imposed on the Centre a new system of selecting election commissioners through a committee that includes the chief justice without convincing evidence that the new procedure will deliver better results. In its past pronouncements, the Supreme Court has noted that judicial review is warranted only when administrative action suffers from illegality or serious impropriety. But the doctrine developed by the courts in this regard is uneven and can suffer from a pick-and-choose approach to judicial intervention or activism.

In the initial stages of the hearing on same-sex relationships, it appeared that the Supreme Court had a course of action in mind. The court’s observation that gender is not linked to genitals seemed more in keeping with trans theories still being debated by gender activists, biologists and psychologists. The Centre’s counsels could barely get a word in. But the argument moved from the contention that same-sex relations are an ‘elitist’ concept to the more arcane considerations of the sweeping changes that will be needed to more than 150 provisions to the Constitution, Indian Penal Code (IPC), Criminal Procedure Code, Civil Procedure Code and more than two dozen other legislations. Significantly legalising same sex-marriages requires changes in personal laws. Just altering the Special Marriage Act will not do.

Confronted with the Herculean task, the Supreme Court saw merit in recognising the subject as one that fell into the domain of the legislature, a concern that has not always held it back. But the recalibration seems to have provided a rare opportunity for a consensus on a contentious subject with the Centre offering, and the court willing to consider, a committee that will look into issues relating to same-sex relations even if this excludes legalising such unions. Congress leader and counsel for the petitioners Abhishek Manu Singhvi indicated that the proposal for a committee headed by the cabinet secretary can be considered. To a lawyer who said most young people in such relations want the option of marrying, the court noted that there was a serious problem with the argument at the constitutional level as the apex court may well be subjected to tomes of data on what other people feel.

There can be little doubt that persons in same-sex relationships suffer from immense social disadvantages and are subject to widespread prejudice and even violence. It is also quite evident that the incidence of same-sex relationships is not an urban or upper-crust matter. Young people from smaller towns and rural backgrounds are even more vulnerable as cities, with their teeming masses, allow greater anonymity as also avenues for association and support from similarly inclined persons. For many younger people—and not all can access such paths—finding opportunities abroad remain a means of escape. All too often, families of gay persons do not accept the sexual orientation of their children. The loneliness and pain of rejection that such individuals experience is hard to chronicle.

The first big step towards gay rights was the Centre’s acquiescence to the Supreme Court decriminalising sex between two consenting individuals of the same gender. This made it easier for the court to scrap the section of the IPC that made such acts an offence. Though not intended to consider marriage, the proposed committee can consider measures that go a long way in setting out rights of same-sex relations, and most importantly, increasing social and legal sanction. Even if recognition of same-sex unions is not on the cards, legal measures to protect and augment the rights of gay persons can be a big step towards recognition of such relationships. The argument that “society is not ready for this” can cut both ways. It can be an excuse for inaction or pave the way for more imaginative, even if incremental, action.

A consensual approach on a subject that is taboo—with a large section of society that holds a conservative view of social relations—might work to move forward on gay rights in a more substantive manner. It needs no reminding that social inhibitions exist in all social and religious segments. If the composition of the proposed committee is truly inclusive and not limited to official representatives, it might be able to grapple with everyday hindrances that hurt a largely invisible section of the population. Issues such as insurance and provident fund nominations, tenant rights, application of laws like those pertaining to domestic violence, and making it unlawful for establishments to discriminate against customers on the basis of sexual orientation, are all relevant points of action. A gentler approach may help convince objectors that young people at queer pride parades are also ‘our children’. At times, a ‘don’t ask, don’t tell’ policy might work well too, particularly in recruitment for law enforcement.

Without a doubt, it needed a judicial prod from the Supreme Court to get the government thinking about gay rights, which would otherwise not be a priority. The silence of political parties on the issue is telling. But there might be some salutary lessons for the court too. Of late, the Supreme Court’s ‘progressivism’ has tended to be overbearing. The blowback on social media the court complained about is as much about the court being prescriptive as it is about subjects under scrutiny. The Constitution envisages a separation of powers that needs to be respected. Apart from the letter of the law, the courts must judiciously balance competing claims in society. In the same-sex case, the Supreme Court observed that it does not go by popular or segmental morality but on what the Constitution says. It would do well not to forget this mantra.

gay marriagegay rightsIndian ConstitutionIndian societySupreme Court of India