Crucial first step

By agreeing to hear a bunch of petitions seeking solemnisation of same-sex marriage under the Special Marriage Act, (SMA) 1954, the Supreme Court has taken the first step forward towards the long-due modification of social customs surrounding the institution of marriage. What could have been a natural corollary of Navtej Singh Johar judgement — which decriminalised homosexuality in 2018 — continues to face state opposition even today. In today's world, an individual's relationship with society has transformed a great deal more than what it used to be in the past ages. Individualism has gained precedence over social diktats. In such a transformed world, the very notion that one of the most personal individual decisions could threaten the social fabric appears misplaced and alien. Recognition of the right to privacy as a fundamental right in KS Puttaswamy case (2017) was an acknowledgement of this transformation. The Navtej Singh Johar judgement in 2018 was yet another bold move posing confidence in this social transformation. The judgement, written by a five-judge bench of the Supreme Court, was a landmark moment when the nation's topmost judicial institution apologised to the LGBTQIA+ community for the historical injustices they have went through. More importantly, none other than the Chief Justice of India (CJI) pointed out that the scope of Navtej Singh Johar case was beyond the dismantling of Section 377 — in setting a discourse about the rights of LGBTQIA+ community. Could there even be any justification to the argument that the decision to marry a person of choice is not an individual right? Certainly not. The right to choose a life partner should be an uncontested right of any individual. In fact, the State's reluctance is premised on the argument that "the acceptance of the institution of marriage between two individuals of the same gender is neither recognised nor accepted in any uncodified personal laws or any codified statutory laws." This mechanical view of law appears immature. It is as clear as day that with the evolution of social realities, legal frameworks have to be reshaped and modified again and again. Legal aspects of the case need to be viewed in its dynamic nature. The focus of the counsel of petitioners is on amending the Special Marriage Act which provides for civil marriage for couples who cannot marry under their personal laws. Their argument is that the presence of binary terms like husband-wife and bride-bridegroom make marriage a gender-specific affair. Now that the law of the land recognises sexual relations between same-sex couples, denial of marriage choice to them amounts not only to social discrimination but also legal discrimination, under the nose of the State. At the root of this discrimination is the conservative social order. The fact is that queer behaviour has not yet got social acceptance in the country at scale. It is, thus, the responsibility of the State — based on principles of equity and non-discrimination — to drive a positive change in this regard. On the contrary, it appears to either subscribe or submit to the prevalent social opinion of the day. The State is expected to play a more bold and progressive role in redefining the individual's relationship with society. It is heartening to see that queer groups, and even the non-queer groups, are making a bottom-up push to duly legitimise the relationship between same-sex couples. The State should not hold itself back from making top-down endeavours simultaneously. Marriage is one of the most powerful social institutions in India, or for that matter, in any part of the world. Solemnisation of marriage between same-sex individuals could be a great leap forward in providing the long-denied social legitimacy to queer relationships. India takes pride in being one of the most progressive developing countries in the world. At a time when the advanced countries are progressing towards a more gender-equitable world, India cannot afford to lag behind. As many as 32 countries, including the United States, have legalised same-sex marriages. India should follow suit. The legal status to same-sex marriage, however, will only be a small step forward. India is still bound by the chains of conservative social mores. Unshackling these would require strong political will and mass awareness. Both are lacking at present.