It is 1862, and the rules are simple – if you love someone of the same gender, you can be sent to prison for the rest of your life. It is 2018. Hundreds of people gather outside India’s apex court. The tension in the air is palpable, like a phantom being begging for justice. Menaka Guruswamy and Arundhati Katju barely breathe inside the Supreme Court. And then – suddenly, news comes. Article 377 has been abolished. Suddenly, it is okay to love someone of the same gender. Suddenly, the LGBTQIA+ Community’s acts born out of love are not illegal. Suddenly, there are fists pumped and flags unfurled – and hundreds of people breathe freer. It is 2023. News reporters race to cover the debates in the Supreme Court. Lawyers mill around mics. India is fighting another battle – this time, to legalise same-sex marriage. The decriminalisation of Article 377 in 2018 legalised homosexuality and gave queer people the courage to be true to themselves. It was a ray of hope for thousands who had been oppressed for generations, and was a huge step towards an inclusive future. However, though things got better, they didn’t become perfectly okay. For the last month, the LGBTQIA+ Community has been under the spotlight yet again. Their rights (or the lack thereof) are being debated left, right, and centre. Definitions of gender, sexuality, and marriage are being redefined as India inches towards what could be a landmark judgement in its history – towards what could be a turing point for the entire Community. Lawyers representing the queer community have brought to the table their heart- wrenching realities. The inability to secure rental accommodation, to nominate a partner for life insurance, medical insurance, or even open a bank account – these are not theoretical problems. As highlighted by top-lawyer Menaka Guruswamy, it is their life. The LGBTQIA+ Community is asking for the basic right to be bound in matrimony. The right which, I believe, is granted to all Indian citizens under Article 21 of the Constitution.
Arguments advanced against same-sex marriage include the inability to procreate. This reinforces the notion that a marriage without progeny is ultimately ‘fruitless’. Procreation should be neither the goal nor the basis for marriage. Moreover, if infertile women, sterile men, and couples who do not wish to have children are allowed to marry, why are homosexual couples denied the same right? The SGI has also mentioned that the Constitution, in every case, provides for marriage between a ‘man’ and a ‘woman’. He has stated a same-sex marriage will be problematic because there will be no clear definition of a husband and wife. However, the CJI himself has questioned if the existence of two spouses who belong to a binary gender is so integral to our legislation. It is thus, perhaps not just a problem of mindset, but of Constitutional terminology. Perhaps it is time our concepts of ‘male’ and ‘female’ are replaced. Perhaps it is time we start understanding gender as a spectrum and a notion, instead of an absolute term. There have also been several arguments for the Parliament to decide the fate of same-sex couples in our country. The representation of the LGBTQIA+ Community is non-existent in the Indian Parliament. This decision is far too crucial to be decided by a body that is not part of the Community whose lives will be affected by this judgement. The LGBTQIA+ Community is a minority – and the rights of the minority cannot be decided by the majority (as mentioned by lawyer Geeta Luthra in the SC) India has been evolving at a rapid pace. We are fighting our ways into every global sphere and etching our names on the world map forever. This time, it shouldn’t be for the wrong reasons. The right to marry will bring with it a host of other rights. If queer people are allowed to marry, they will automatically be party to the thousands of provisions which go hand-in- hand with it – including succession and adoption. Justice Indu Malhotra, in 2018, said that history owes an apology to LGBTQIA+ People and their families. This is how we should apologise – by not failing them.