Supreme Court same-sex marriage hearing: What are we fighting for?

What are we fighting for?

The Supreme Court of India is currently hearing petitions arguing for and against same-sex marriages. Should homosexual relationships be given the legal recognition that heterosexual couples receive through the institution of marriage?

The central government’s main contention is that such a recognition is not a subject for the court to decide as currently, no Indian law makes provision for such a marriage and the courts can only interpret the existing laws. This matter needs to be addressed by the parliament, which can legislate upon it keeping in mind the social readiness for such a change. 

The petitioners arguing in support of same-sex marriage argue that the Right to Equality is enshrined as Fundamental Right in the Indian constitution and it prevents citizens from all kinds of discrimination. They further argue that the state allowing marriage to heterosexual citizens and denying it to homosexual citizens is a clear case of discrimination. 

This gives the courts the right to step in and uphold their fundamental rights because the Constitution gives the right to courts to uphold fundamental rights, even when there is no specific law covering them. 

While the current debate focuses on who can grant this right, I want to draw attention to what is at stake. 

Arguing against the granting of equal marriage rights to LGBTQIA+, Solicitor General Tushar Mehta raised a question in the court that if such permission was granted, in the case of separation, who would be considered the wife in a same-sex marriage and thus eligible for maintenance? 

This for me is the core of the issue. The law providing maintenance support to the wife was supposed to undo the generations of exploitation and injustice against women as non-earning partners in a relationship. In other words, it was supposed to provide financial equality to both partners in a marital relationship. But, instead, it has strengthened the notion of ‘wife’ or woman as the one who needs to be supported and thus the need to find a ‘wife’ in each relationship. The premise of equality (between two partners) that should have underpinned the maintenance law is missing from the interpretation of the law. 

So will a law allowing same-sex marriage grant equality to LGBTQIA citizens of India? Or will it be a mechanism, just as the current law on maintenance provides much-needed relief to generations of injustice but without necessarily establishing equality? 

True change occurs when a society accepts, understands, and teaches a concept to the next generation.  A good law is an excellent starting point. The right to make your own decisions as an adult is supported by several laws in our country. For example, there are laws against child marriage and gender discrimination and we have the right to vote. But it has taken decades of educating, counselling, motivating, and cajoling for society to allow for these rights to be claimed by an increasing number of Indians. And much still needs to be done before every individual’s life and freedom are valued and all individuals are seen as equal. 

The right for LGBTQIA citizens to marry needs to be seen in the same light, where the bottom line is equality - equality for all individuals irrespective of their gender and sexuality. 

Such equality, along with supportive laws, needs a social movement. A movement that addresses the hesitation, the fears, and the taboos that prevent such equality to be granted. We need to tell our children, our peers, and our seniors that we are not destroying a culture but building a new one where everyone can truly be equal. What mechanism it takes is an argument for the court of law, but for deep-seated change to take place a bigger case needs to be argued in our hearts and minds.