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Queering the (Court)Room: SLR Special Series on the Marriage Equality Debate in India

Updated: Aug 12, 2023

Editorial Introduction

First Pride in Bengaluru, 29 June 2008. Citation: Curt Gambetta, Pride 2008, Pride Organising Committee. QAMRA Archival Project, NLSIU.

 

In 2018, the Supreme Court of India decriminalised homosexuality. Five years later, we are at the cusp of possibly recognising marriage equality. The petitions, as well as the subsequent arguments in court, have provoked intense national debate about queer identity, rights and politics. In this special series entitled Queering the (Court)Room, the Socio-Legal Review seeks to capture aspects of this debate through different vantage points that do not necessarily feature in popular discourse.


In particular, we attempt to go beyond the constitutional arguments of dignity, equality, and non-discrimination. We seek to push the envelope of our imagination to think: what does it mean for a debate of this nature taking place in public, through channels such as livestreamed proceedings and national television debates? How does the queer self-fashion itself, both inside and outside the courtroom in negotiating between the struggle for equality in existing structures and questioning the structure itself? What are the implications of this debate on marriage and intimacy? How does marriage equality intersect with anti-conversion laws, the objections regime in the SMA and marital rape? Finally, what long-term impacts can we anticipate as a result of this development, especially in the context of other jurisdictions in South Asia which continue to criminalise homosexuality, even as they are located in diverse settings of kinships and familial structures?


Our attempt is to bring together a variety of perspectives and methodological approaches to this question which has gripped the nation and provide a critical commentary on what it means for law and society going forward. To this end, while the hearings were ongoing, we - the SLR Editorial Board - reached out to academics, activists and practitioners who have engaged with these questions in the past. We are delighted to publish a set of five interviews, each of which bring up unique issues and points of departure in unravelling the current debate, even as they grapple with a common set of questions.


Swethaa S. Ballakrishnen uses a powerful socio-legal praxis to write and teach about law’s connections to actors, institutions, and relationships at the periphery, broadly defined. Their interview uses a deeply personal, yet academically rigorous, vantage point to explore the “utopic possibilities” of queer movements. Their responses highlight the bind with working with legal institutions that are structurally resistant to negotiating queerness and other forms of alterity, while at the same time using the legal right of marriage as means to access other important entitlements of an equal citizenship. Dr. Ballakrishnen also reflects on the connected issue of intergenerational allyship and queering of the legal profession to open up the debate.


Ruth Vanita is an academic and author who has written extensively on issues of gender and sexuality in Indian literary history. Her book Love’s Rite: Same-Sex Marriages in Modern India (Penguin, 2005; 2023) focused on the phenomena of same-sex marriages, signified both by religious and legal processes, and joint suicides of young women in rural India. In her interview, Dr. Vanita highlights a fundamentally relational, rather than identity-based, understanding of same-sex marriage and partnership in India. Her emphasis on the very existence and legitimacy of same-sex relationships stands in contrast to the arguments that were made in the marriage equality hearings that derived their force from the assertion and negation of identity-based terms such as “gay”, “lesbian” or “queer”. In doing so, Dr. Vanita places the current debate in perspective by locating it within the larger, more diverse socio-cultural history of the subcontinent.


Sayan Bhattacharya is involved in the ethnographic and archival exploration of various improvisatory and innovative strategies that Indian trans communities deploy to make life in an environment saturated by violence. In this series, Dr. Sayan’s contribution reflects on the imbrications of the fight for marriage equality with logics of caste hierarchies and racial purity. They discuss their work “The Transgender Nation and its Margins” and unearth the state’s role in normalising everyday acts of marginalisation through its omnipresent institutions which govern ordinary life. Their response provokes us to rethink the role of law in redrawing the role of the social wherein these rights are ensured and where ‘harm’ is reproduced.


Sumit Saurabh Srivastava wrote on the intricacies of the queer movement in India during the fight against Section 377 in his article “Disciplining the ‘Desire’: ‘Straight’ State and LGBT Activism in India” published in 2014. While much has changed since the article was first published, many concerns that he expressed in the essay resonate to this day. In his interview, Dr Srivastava underlines how both state institutions and the queer movement in India have been impacting and transforming each other over the years. He complicates our understanding of “state” while also emphasising the role of non-state institutions and influences such as Hindu faith organisations, social media, and citizen journalists on the marriage equality debate. Uniquely, this interview also reflects on the sometimes fraught relationship between the queer and the feminist movements.


Themal Ellawala writes on gender and sexuality from a Sri Lankan perspective. Their work uses queer theory and postcolonial studies to interrogate how categories of sex, gender, and sexuality are deployed in various ways in Sri Lanka’s colonial and postcolonial history of aspiring towards liberal modernity, imbricated as they are in liberal values and other identity categories such as race, class, caste, and religion. Their contribution discusses their hopes for the queering of marriage as an institution, while simultaneously expressing the vast fluidity of queer relationships outside of the construct of marriage that was traditionally meant for heteronormative relationships. They discuss, in particular, the Sri Lankan Supreme Court’s use of Indian case law to demonstrate judicial support for queer rights, opening up possibilities of cross-contextual conversations on the subject.


Together, these five interviews go beyond the mainstream legal discourse surrounding marriage equality. They provoke us to think of marriage equality as more than just a fight for a certificate - it is also about seeing the self, queer or otherwise, in relation to others and the State. They invite us to think of marriage as an institution but also as an idea that can be morphed. They caution us against seeing legal discourses and institutions as the only or even the most ideal sites of disruptive and utopic possibilities, by nudging us to expand our imaginative horizons and look beyond. But perhaps most importantly, they evoke a sense of pathos and history behind the struggle to inform our visions of the future.

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