'Personal Is Legal': Equality And Rights That Same-Sex Marriage Promises
For senior lawyer and Harvard alumnus Utkarsh Saxena, growing up as a gay man in India wasn’t easy. On May 1, he represents the hopes of many from the queer community in the Supreme Court...
For senior lawyer and Harvard alumnus Utkarsh Saxena, growing up as a gay man in India wasn’t easy. On May 1, he represents the hopes of many from the queer community in the Supreme Court, which has been hearing a clutch of petitions aimed to legalise same-sex unions in India.
Saxena and his partner, Ananya Kotia, filed a petition seeking legalisation in the apex court stating that as citizens of India, the two, who have been in a same-sex relationship since 2008, wished to marry.
The historic hearings have become a flashpoint for several pertinent debates.
Personal laws are not up for discussion right now. It’s important to clarify this because those who are opposing same-sex legalisation at present are basing their narratives on how petitioners are coming after personal laws. That is incorrect.
The ambit of the hearing concerns only the secular laws like the Special Marriage Act, and the Foreign Marriage Act.
There is a dominant argument that non-heteronormative unions are against Indian culture, faith and religion. Personal laws are probably a better repository for those arguments than secular laws.
Despite progress in gender discourse, many conservative sections of society may at this point find any attempt to change the personal laws provocative or an attack on religion. It is therefore the usual practice, even in the experience of other nations that have legalised same-sex unions and other LGBTQIA legislations, to first go through secular institutions, such as a secular marriage or civil union before going into religious spaces.
The whole purpose of secular laws like the Special Marriage Act is to accommodate those persons and marriages that are not accommodated in religion. That’s probably why the court segregated the two issues and wanted to do it in a piecemeal manner.
Without touching personal laws, we wanted to ensure that those who face opposition from families and aren’t coming from supportive environments, don’t face further legal restrictions to access the institution of marriage. That’s why our petition also focuses on the notice and objection regime.
These rules subject couples applying to marry under Special Marriage Act to intense scrutiny. Their photographs are put up on a notice board at a public office and 30 days are given to the public at large to come and object to the marriage. Those who come from non-supportive families will definitely face a hurdle.
In pursuit of true marriage equality, at least our petition contends that first the institution of marriage has to be opened up to all persons. Dismantling the legal architectures that create hurdles in accessing the institution of marriage will be the simultaneous step. As far as those who wish to be married under their faith, that battle is for another day.
Our petition seeks marriage equality for all sections of the LGBTQIA spectrum, including same-sex, transgender and intersex persons. If we are successful, we are hopeful that everybody in the queer community will be accommodated. Marriage equality is a massive step. Whether one wants to exercise their right to marry or not, there are many changes that are going to come if we are successful, that will help the entire community.