Legalise same-sex marriages. It’s the next logical step

In 2018, the SC decriminalised homosexuality, but the LGBTQ folks continue to find themselves stigmatised, discriminated against, and at the receiving end of hostility

Cancelling a public event — a show by a stand-up comic, an interaction with a Booker Prize-winning author, and so on — because some irate group takes violent exception to the said individual and what they are perceived to stand for, has become standard practice in India.

The latest instance of the cancel culture took place on January 13 when filmmaker Onir, who is gay and a gay rights activist, was informed that his talk on the opening day of the Bhopal Literature Festival would not be held because ‘some groups’ were opposed to him addressing the event. The police said that under the circumstances, they could not ensure the filmmaker’s security.

It was another day in the peculiar hell inhabited by India’s lesbian, gay, bi-sexual, trans, queer (LGBTQ) community. In 2018, the Supreme Court struck down a colonial law and decriminalised homosexuality, bringing huge relief to the community. But though gay sex is now legal, the LGBTQ folks continue to find themselves stigmatised, discriminated against, and, often, as was in the case of Onir, at the receiving end of hostility that threatens to turn violent.

Even if their families accept their sexual orientation, large swathes of society continue to regard them as an aberration at best, and morally repugnant at worst. A gay couple can no longer be harassed by the police, or thrown into prison for same-sex love, but who’s to stop a house owner from refusing to accept them as tenants? Or an employer from sacking an LGBTQ person because of their sexual identity?

Read | Explained: Ahead of SC hearing on same-sex marriages, where India stands

Prejudice cannot be legislated away overnight. But progressive laws do have an incremental effect in making society more enlightened, and humane. This is where the importance of legalising same-sex marriage comes in. It is the next logical step after decriminalising homosexuality, and it will, to a great extent, set right the fact that LGBTQ folks simply do not enjoy the same human rights that are taken for granted by their fellow (heterosexual) citizens.

On January 6, the Supreme Court transferred to itself all the petitions for legalising same-sex marriage that were filed in the various high courts across India. While the government is to give its response on the matter next month, the case is listed for hearing on March 13 by a special bench of the court, comprising Chief Justice of India DY Chandrachud and Justices PS Narasimha and JB Pardiwala.

The government, which is liberal in its invocation of sanskaar and ‘family values’, will doubtless launch a strong pushback against the idea of same-sex marriage, just as it has in the case of the plea for criminalising marital rape. We have got a foretaste of that already. On December 19, BJP MP Sushil Modi declared in Parliament that marriage between same-sex couples was unacceptable and that “two judges cannot decide on such an important social issue”.

The point, however, is that the personal sensibilities of people, and their biases and dogmas cannot override the foundational principle of the Constitution — that all citizens are equal before the law. By that token, surely the institution of marriage cannot be made the exclusive preserve of heterosexual couples and kept out of bounds for LGBTQ people. Marriage is a state that couples in love aspire to, and if the law of the land recognises love between same-sex folks, it cannot withhold from them the right to marry and partake of the institution’s manifold emotional, social, and legal benefits.

To be sure, even in countries where same-sex marriage is legal, many are ferociously opposed to the idea. The US Supreme Court granted it country-wide legalisation only in 2015, the UK in 2014, and though most of western Europe recognises same-sex civil unions, many countries around the world are yet to make it legal. With institutionalised religion and conservative Right-wing groups dead-set against same-sex marriage, legalising it has not been a cakewalk anywhere.As the battle for same-sex marriage gathers momentum in India, the glimmerings of openness are evident in society and popular culture. Sprinter Dutee Chand, who came out as gay in 2019, recently posted a picture on Instagram of herself and her girlfriend at her sister’s wedding. Mainstream films such as Badhai Do (2022) and Chandigarh Kare Aashiqui (2021) have dwelt on the social acceptance of non-binary relationships and sexual fluidity. Change is in the air. Legalising same-sex marriage could be an emphatic move to drive that change, and bring the LGBTQ community out of the liminal space between the legal and the not-so-legal that they inhabit now.

Shuma Raha is a journalist and author.

Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH.