The case gives the Supreme Court a golden opportunity to extend its protections to the lowest rungs of the society, for whom the protections conferred in Navtej Johar have remained mere abstractions so far.
In coming to its decision of decriminalizing homosexuality in Navtej Johar v. Union of India, the Supreme Court had emphasized on two related values – self-determination and equal citizenship – each of which was held to be constitutive of the idea of individual dignity under the Constitution. As such, Johar essentially created a fertile ground for further enlivening and realizing the rights of marginalized sexual identities.
Seen against this backdrop, it can be easily said that the Supreme Court of India, as it reserves its judgment in the same-sex marriage matter, has essentially been tasked with an expository exercise. In adjudicating the claims laid by the same-sex couples, the Court will have to expound the values of self-determination and equal citizenship and trace their contours to ultimately determine whether the institution of marriage is an essential means to achieve them.
Unsurprisingly enough, the arguments raised by the petitioners before the Court cover these aspects of self-determination, individual autonomy and equal citizenship including equal civil rights. These values are essentially those facets of Articles 14 and 21 which have already been expounded by the Court previously.
At this juncture, two points become instructive for the Court. First, the demand for the legalization of same-sex marriages is not merely grounded in equality, dignity and autonomy. At the heart of this demand for legalization lies the value of individual self-fulfillment, which has been held to be an integral part of freedom of expression under Article 19(1)(a) of the Indian Constitution.
Second, this demand is underpinned by the fact that threats of violence still exist for same-sex couples despite the judgment of the Court in Johar. As such, this demand is essentially an affirmation of the failure of Johar in trickling down to the grassroots and protecting those same-sex couples from heteronormative societal biases who needed it the most.
In the paragraphs that follow, I shall be highlighting why it is the Court’s responsibility to also take cognizance of the aforesaid arguments.
Individual self-fulfilment
The Supreme Court in Union of India v. Naveen Jindal, while deciding whether it was permissible for the respondent to fly the National Flag of India, held that the objective of the freedom of expression guaranteed under the Constitution was to assure individual self-fulfillment. As has also been argued elsewhere the attainment of this self-fulfillment is only possible through a full and untrammeled exercise of individual expression. Thus, as long as the expression of one’s self-determined identity does not assure their individual self-fulfillment, the right to self-determination would remain an empty shell.
This assurance of self-fulfilment cannot be achieved by decriminalising an individual’s sexual identity and recognising their inherent right to express the same by mere companionship, as was done by the Court in Johar. It is more than freedom from criminal liability and the absence of a chilling effect in expressing their identity. Insofar as the queer community is concerned, it is an assurance that, much like heterosexual couples, they too can aspire for a socially recognised, long-term partnership based on marriage.
However, the demand for marriage before the Supreme Court is not only premised upon a single facet of marriage such as partnership, procreation or adoption. Instead, it is premised on the centrality of marriage to the human condition, its essentiality in ensuring emotional companionship and its multiple transcendent purposes that assure individual self-fulfilment.
Johar’s failure to deconstruct heteronormative societal biases
It would be trite to mention here that heteronormative structures created by the legal system and the society threaten and withdraw the assurance of inclusiveness of the queer community. While the recognition and legal sanction to same-sex relationships can extend civil rights to such relationships and thus deconstruct the heteronormative structures and biases created by the legal system, it is believed that such a legal sanction can also lay the ground for the eventual deconstruction of heteronormative biases created by the society as well. This, in turn, can lead to the mitigation of the daily exclusion, marginalisation and discrimination against same-sex couples by members of their own society.
The existing societal biases against live-in and same-sex relationships do not just threaten their civil rights and dignities, but often also jeopardise their physical safety too. The sheer number of petitions that have been filed before High Courts by homosexual couples in live-in relationships seeking police protection amply illustrate this threat. Courts have had to grant police protection to such couples in order to protect them from members of their own families. The need for police protection from members of one’s own family is essentially illustrative of the societal morality which is based on a variety of factors such as kinship, caste, heteronormativity and other rigid lines of social authority. However, a common denominator to all such considerations of societal morality has been the system of family, which has been stated to get damaged even with the slightest derogation from such societal notions.
In a country such as India, group thinking of the society dictates that marriage is the single most important means to protect this system of family. It does so by lending a sense of moral legitimacy to such relationships. As such, the absence of a legal sanction of marriage has an even more deleterious impact on relationships that may not conform to societal notions of heteronormativity or lines of social authority.
Despite the judgments of the Supreme Court in Asha Ranjan and Shakti Vahini which have arguably buried the notions of group thinking, it cannot be denied that this group thinking – which only accords moral legitimacy to relationships having the legal sanction of marriage – continues to shape the social reality of hundreds of non-conforming couples, relationships and individuals even today. Therefore, for such couples, the institution of marriage is the first step towards eliminating societal prejudices against their relationship, legitimizing it in the eyes of the society and combating heteronormativity at the same time.
Conclusion
These petitions present the Supreme Court with a golden opportunity to take its ruling in Johar to its logical conclusion, and extend its protections to the lowest rungs of the society, for whom the protections conferred in Johar have remained mere abstractions so far. While deconstructing a societal structure based on age-old notions of family, kinship and heteronormativity through the institution of marriage may not be an easy task, granting legal sanction to same-sex relationships is certainly the first step towards mitigating the threats to their assurance of inclusiveness brought about due to the existing societal biases and further shaped by the group thinking of society.
