Marriage for all, even if for a few

The Special Marriage Act still has fewer takers, but the law should hold out more potential than the current public imagination allows for and must aim to improve the lives of the more marginalised

May 12, 2023 12:08 am | Updated 01:29 pm IST

‘As the reactions to the Court proceedings have shown, Indian polity and society still struggle with the idea of marriage reform and individual choice’

‘As the reactions to the Court proceedings have shown, Indian polity and society still struggle with the idea of marriage reform and individual choice’ | Photo Credit: SUSHIL KUMAR VERMA

In a reality show, “Fabulous Lives of Bollywood Wives”, Sima Taparia of the series, “Indian Matchmaking”, was asked about the possibility of matching for queer couples. Her careful reply was: she is not ‘doing that’ right now because it is not allowed in India and she will not commit to taking on queer clients when it is. Even as season three of her show dropped, the Supreme Court began hearing the case for marriage equality within the ambit of the Special Marriage Act. If the court rules in favour of expanding the definition of marriage beyond that of a union between biological men and women, Ms. Taparia’s response leaves enough room for ambiguity – for legal rights do not automatically translate to social sanction, and this is exactly what the arguments in the courtroom and beyond illustrate.

A Bar Council of India resolution recently quoted a dubious survey on 99% of Indians being against marriage equality while more sober commentators argue that the society is not ready for what the petitioners seek. Should laws be a reflection of societal morality? Or should they push the envelope by making certain unions possible irrespective of social approval? This was one of the questions extensively debated in Parliament as part of the Special Marriage Bill itself.

Common threads

In parliamentary debate minutes, former Member of Parliament, Vijaya Lakshmi Pandit, features as one of the Bill’s proponents. She predicted that the law would not have many immediate takers but that an emancipated next generation would demand the right to choose their partners. She conceived the civil union law as a calculated, rational decision where a freedom wilfully granted is better than a freedom that is ‘taken’ (LS Debates 1954, September 1, 812-816). Like other women representatives, she also believed that the proposed law could improve the lives of women.

Despite some powerful backers, there was a perception among at least sections of the two Houses that allowing citizens to marry anyone of their choice could potentially lead to a collapse of society and civilisation. The Bill’s divorce provisions, in particular, had raised fears of a proliferation of sexual desires; the question of queer unions was also briefly touched upon, with homophobic remarks. The other common thread that often resurfaces even today is that securing more rights and visibility for a plurality of identities and desires is, in some way, imposing the ‘lifestyle’ of a few on to a presumed majority that is not represented in these struggles. Former President, Dr. Rajendra Prasad, had bitterly opposed the Hindu Code Bill in his private correspondence with Jawaharlal Nehru because he believed that the measure was forcing something on a vast majority, because some people — according to him, a small, likely microscopic minority — considered it a right.

Unlike that far-reaching reform Bill, expanding legal rights to the LGBTQI+ community is not directly relevant to those who do not identify as queer and can, in principle, disengage from the debate. And yet, as the reactions to the Court proceedings have shown, Indian polity and society still struggle with the idea of marriage reform and individual choice. Local and national politics have routinely witnessed campaigns against inter-caste and inter-community couples and the need for social sanction often triumphs the rights afforded under the Act through a bureaucracy that has become a reflection of social morality. However, as with the issue of the so-called love jihad campaigns, conversations emerging from the marriage equality case have spread awareness of the law and its unfortunate provisions, including the publication of a notice period that violates citizens’ right to privacy.

Where the bureaucracy fails, vigilante groups have been empowered to prevent unions using extra-judicial methods and queer couples may, unfortunately, also face a similar predicament in future. The potential for an infringement of rights guaranteed by constitutional principles, the letter of the law and court judgments gets to the heart of how Indians define marriage and, perhaps, Ms. Taparia’s show with its inherent casteism and sexism may indeed be representative; marriage is very much a social institution, invested in upholding hierarchies based on gender, caste and community. Apart from violence and intimidation, the control of non-state entities is exercised simply by withholding recognition for heterosexual and queer couples alike and legal sanction, however inadequate, may offer at least some relief.

Such a step will reaffirm rights as a whole

After almost 70 years, the Special Marriage Act still has fewer takers due to political campaigns, bureaucratic overreach and the general misconception that it only caters to inter-religious couples. And a study of this law’s implementation discredits the doomsday predictions of those who continue to oppose marriage reform. Social transformations are not easy and laws, in a vacuum, are unlikely to disrupt the lives of ‘vast majorities’. Some citizens may not be prepared for marriage equality, just as some are not open to inter-caste and inter-community marriages but, as Pandit had argued in 1954, the law should hold out more potential than the public imagination allows for and should be aimed at improving the lives of the more marginalised. Affording rights to a sexual minority — even if it is a minority — reaffirms the rights of the citizenry as a whole.

Rama Srinivasan is an anthropologist and author of Courting Desire: Litigating for Love in North India

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