Though the Supreme Court has refused to legalise same-sex marriage, the Constitution Bench judgment is a formidable step to silence hostile voices who claim that homosexuality and gender queerness are un-Indian.
“It is not queerness which is of foreign origin but the many shades of prejudice in India which are remnants of a colonial past,” Chief Justice of India (CJI) D.Y. Chandrachud observed.
The judgment bells the cat on how atypical gender identity or sexual orientation is still considered alien, urban and elite – a view put forward in court even by the Union government during the arguments of the same-sex marriage case. The Constitution Bench’s comments highlighting societal and even state discrimination on the basis of sexual orientation comes five years after the apex court decriminalised homosexuality.
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Justice Sanjay Kishan Kaul accepted non-heterosexual relationships as part of the “pluralistic social fabric” and an “integral part of Indian culture”.
All the five judges on the Bench agreed that queerness was not a phenomenon limited to the few and English-speaking urban rich. Expressions of queerness are more visible in urban centres as cities afford a degree of anonymity and access to resources, the Chief Justice reasoned. Queerness is not urban or elite. Persons of any geographic location or background may be queer, the court said in one voice.
Chief Justice Chandrachud delved into the notion “homosexuality or gender queerness is not native to India”. He said to deflate this prejudice, one has to define the term ‘Indian’. The Chief Justice did so by recording that “a thing, an occurrence, or a practice is ‘Indian’ when it is present in India, takes place here, or is practised by Indian citizens. Something which is Indian could be present from time immemorial or it could be a recent development… Sexual and gender minorities are as Indian as their fellow citizens who are cisgender and heterosexual”.
The Chief Justice said the nation and its constitutional authorities should not shrug off the rising call for equality from within the LGBTQIA community. Their demand to legalise same-sex marriage should not be dismissed as a copycat idea borrowed from abroad, he noted.
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“The recent visibility of queerness is not an assertion of an entirely novel identity but the reassertion of an age-old one… An environment has been fostered which is conducive to queer persons expressing themselves without the fear of opprobrium,” Chief Justice Chandrachud observed.
He said the British brought not only their laws but also their morality to India. He referred to how transgender persons were referred to as “eunuchs” in the Criminal Tribes Act and included in the category of “habitual offenders”.
The Act heaped “enormous indignity” on trans-persons by permitting the government to medically examine them, penalising them for dressing “like a woman” or playing music or dancing and had even rendered their will invalid.
