“Structural changes as well as attitudinal changes are essential. Equality is not achieved with the decriminalisation of homosexuality alone but must extend to all spheres of life including the home, the workplace, and public places.”
The speech comes days after another celebrated judgment by the same judge, Justice DY Chandrachud, declaring that "atypical manifestations [such as queer relationships] of the family unit are equally deserving not only of protection under law, but also of the benefits available under social welfare legislation."
The case involved a woman who had married a man with two children from a previous marriage. When she gave birth to her first biological child, her employer refused maternity leave since it can only be claimed for the first two children.
Justice Chandrachud held that the rule must be read broadly to support working women. She should not be deprived of maternity leave simply because her family was ‘atypical’ and included children from an earlier marriage.
This progressive judgment was lauded by the queer community, but we may ask, 'what does this mean?' Legally, not much.
The remark on queer relationships is not the core of the case, which means it doesn’t become a binding rule of law, it was just something that was said ‘by the way’ (obiter). However, even such remarks in an SC judgment carry weight. They send a signal to other courts and to the public about the morality of our Constitution.
As the queer community across the country fights for the very structural changes, Justice Chandrachud said what we need – and this remark helps in our efforts in the courts and beyond.
Let's explore the impact of this signal on some demands by the queer community: For marriage equality, alternative queer families, protecting the right to love, and socio-economic rights.
Marriage Equality & How Centre Sees 'Family'
The demand for legal recognition of marriages irrespective of gender identity and sexual orientation came to the courts shortly after the 2018 judgment.
One of these cases has been in the Delhi High Court for two years, even as queer couples continue to settle for less than their heterosexual counterparts. The Union government has opposed the demand.
Their argument is simple: The Indian family unit has the concept of a husband (biological man), a wife (biological woman), and children born out of the union. The current law is based on this concept and so, the court should not interfere with the sacred institution of marriage.
Justice Chandrachud’s remark, therefore, comes as a direct reply to this fallible myth, allowing us to point out how the SC has denied the very premise of the Union government’s argument.
The argument had always been absurd, as India (under this government) has recognised adoption, ART (Assisted Reproductive Technology), and surrogacy for heterosexual couples; and queer relationships are a historical part of our culture. Now, the apex court provides us with more authority.
But Justice Chandrachud’s remark goes beyond that: It asserts the right to claim social benefits. While we often discuss the importance of marriage as a social commitment, marriage has several practical benefits.
Multiple petitions before the Delhi High Court have referred to it as a ‘bundle of rights.’
Once you are married, the arduous obstacles in the way of adding your spouse as a nominee for your life insurance, bank accounts, mutual funds, etc melt away. Various other benefits such as gratuity payments, compassionate appointments, payment of pensions to the surviving spouse can only come to your partner if you are married.
The difficulties are endless. For example, a couple for 10 years, Kavita Arora and Ankita Khanna, petitioners in the marriage equality case, realised that if anything were to happen to one of them during the pandemic, they would not have the right to take end-of-life decisions for each other.
If the courts were to take Justice Chandrachud’s remark seriously, and they should, marriage equality would grant all of these rights and privileges in one fell swoop.
The judgment asks us to question the meaning of family. While it briefly refers to queer relationships, the lived experiences of queer people tell us a lot more about what these ‘atypical manifestations’ can look like.
When we queer the family, we ask not just for recognition of ‘same-sex’ couples, but the other queer families that we have created: Our chosen families with friends, queer-platonic relationships that cannot be explained as marriage but are equally deep connections, or the traditional gharana family structures transgender people live in across India.
The need to embrace these alternative ‘families’ means allowing the rights discussed above to be transferred more freely, to not assume that only spouses can have the kind of relationship that involves a shared social, financial and moral life.
Significantly, the Transgender Persons (Protection of Rights) Act, 2019 forces transgender persons in vulnerable situations to choose between their birth families or a rehabilitation centre. However, both can be sites of violence, and so transgender people should have the right to choose their own family.
The protection of that choice by the State is essential to avoid making the mistake of queer relationships simply being a mirror of existing heteronormative families. That has never been the social and historical reality for the queer community, and the law should recognise it.
Protecting Queer Relationships
The judgment is the first recognition of the need for protection for queer relationships at the level of the apex court. Various high courts have had to intervene to protect queer couples from threats and harassment by the family, the police, or other members of society.
These obstacles in the way of queer love are not new in India, following the pattern of the obstacles against inter-caste and inter-religious marriages. Today, with the State itself legitimising this regressive idea through anti-conversion bills, queer couples have reason to worry about their freedom to love and live freely.
Justice Chandrachud’s remarks add to the advocacy in favour of laws to protect relationships and prevent such violence.
In the context of social welfare legislation, Justice Chandrachud clarifies the importance of taking an approach in favour of social justice. This comes as transgender people have taken up the important campaign for horizontal, intersectional reservations for transgender people in public employment and education.
Various other schemes for transgender people, such as gender affirmation procedures under Ayushman Bharat and provision of essentials to the most marginalised queer people, continue to be vital for queer liberation. Without their basic needs fulfilled, queer families and friends would be unable to enjoy the love and companionship all of us require.
This vital signal from the SC, coming from a judge who will soon take up the top-most position in our judiciary, presents hope for a shift in the discourse on queer rights with the government and in law.
The time is up for relying on outdated and foreign myths. Instead, it is now time for the queer to permeate every aspect of life and make the world more liveable for all of us, queer or otherwise.
(Mihir Rajamane is a student of law at the University of Oxford with deep interest in public law, gender and sexuality, and education. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)