Love and Legislation: Rainbows under Dark Overcast

“Accepted societal values. Complete Havoc. Necessarily between opposite sex. Institution of marriage. Sanctity. Sacrament. Sanskar. Holy Union.”

‌The Centre in its 56 paged reply to the petitions seeking recognition of same-sex marriage on March 12th, deemed such wordings appropriate. Of course, it implies the blatant disregard of historical and mythical materials and facts. But it also indicates the self-colonial hangover we as citizens are afflicted with as we enter the 76th year of our independence.

And Indians backing a foreign draconian law in pre-2018, infamously known as S. 377 of Indian Penal Code, to protect a supposedly inherent ‘Bharatiya Sanskriti’ by suppressing their own fellow countrymen, was just one symptom among many, still dormant ones, of the ultra-conservationist pandemic India is suffering from.

‌With no vaccine out yet and further hindrances in production of any such antidote in the form of Centre's recent archaic submissions against recognition of same-sex marriages, the Nation is falling short of remedies yet soaring high in the number of lives affected.

 

Contentions

Law, Politics and Ignorance

‌Moreover, in a move to save its face and ensure its hollow arsenal of outdated contentions, shall they fail, the Centre invoked the argument of institutional competency. Stating that, the Legislature is more capable to formulate laws in the immediate regard, and not judicial adjudication. For a moment, ignoring the numerous post-independence historic instances, where the legislature and executive have failed to assert their unchecked dominance at the cost of citizens' rights, thanks to "judicial adjudication" (though it's also pertinent to mention the high handedness of the judicial wing in recent years as well). And granted, that the legislature is indeed more able, the reasoning is yet again unimpressive, as it simply fails to differentiate between legislative competence and legislative willingness.

‌It's unfortunate that the party in power that displayed a juggernaut-like zeal for crucial and needed matters such as Farm reforms, and Abrogation of Art 370 has failed for almost a decade in its tenure, to deliver any substance other than feel-good comments to a marginalised section of its voters. The Centre basically said "Our Hands are off" when it left the Navtej Johar case's decision of 2018 to "the wisdom of the court". Fair, it didn't react as opposing to it, but equally it didn't appreciate it either.

‌Though, credit where it's due, prime time news was filled with commending spokesperson interviews, however the party didn't issue an official statement in light of the 2018 case, which was also followed by the silence of the Hon'ble PM.

‌A political party refraining to comment can be looked over, but when a Prime Minister of a nation, that styles itself as 'The Mother of Democracy' and fashions itself as a major global power still refuses to even comment, while an extremist organisation like RSS comes out welcoming, that speaks volumes about how willing and goal driven the legislature truly is.

‌Therefore, the Centre's case for capacity doesn't hold water and seems to be one out of a desperate attempt to articulate second-grade responses, considering how even the social ethos is rapidly inclining towards acceptance, instead of one carrying real-life practical legitimacy.

‌And it's not just the Centre that should be at the crosshairs. The other parties don't fare any better either. Regional parties like AAP, Shiv Sena, TMC though approved the Supreme Court's 2018 judgement, all of them are reluctant to advocate for the other important rights of the LGBTQ+ community, unless it’s time for re-election.

The Indian National Congress (INC) even though came out enthusiastically commending the Navtej Johar judgement, mind you, it played devil's advocate in the immediately preceding case of Souresh Kumar Koushal v Naz Foundation (2013), where the Supreme Court upheld S. 377 as constitutionally valid. And even now, spokespersons of the party issue statement which is contravening to the official stance.

‌In words of Christ, "A house divided against itself cannot stand". Witnessing the obliteration of once liberal, diligent and national organisation, to a now by-gone regional dynastic party, the expression stands as a mirror of truth in the face of INC.

‌This political dynamic has turned head over heels the moral principles of the electoral process. A vote isn't just a voice anymore, or a call for change, but an instrument to act licentiously and preserve power.

‌What's the conclusion? A competent legislature is an obsolete organ without a strong legislative willingness. It's tantamount to a government acting amidst a national crisis without any data on how it has affected the nation, which itself carries a poignant baggage that echoes the reality of a couple years back.

‌And to assume that the legislature is even a competent organ, taking note of the now routine kerfuffle by representatives of the people over political issues, that make The Speaker sweat in drips, The sessions obsolete and The Parliament inoperative, would be quite farfetched.

It's rather curious to think how representatives can carry pride in their office and designation after all of this. Instead of roads and buildings, it's the Lok Sabha that should be on the renaming list next as 'Lol' Sabha which in my humble opinion would be much more appropriate.

‌The Centre in its another futile attempt has mentioned different sections of various statutes, including IPC, CRPC (Criminal Procedure Code), CPC (Civil Procedure Code), HMA (Hindu Marriage Act), SMA (Special Marriage Act), etc. to point out the usage of vernacular consisting of terms like 'husband', 'wife', 'man', 'woman' and the like, in order to put forward the point that marriage in eyes of law presumes a union between a biological man and biological woman.

‌However, if Sec.8 of Indian Penal Code allows the authorities and courts to also use the derivate 'He' in case of women offenders with due regard to the circumstantial facts, why can't a same exercise be followed for other denominations of similar nature in respect to individuals committed in a same-sex union under the above-mentioned statutes as well?

‌Another factor that the Centre seems to be completely ignorant of, is the people's mood on same-sex relations. It has been mind-numbingly oblivious of the fact that societal ethos and standards are ever-shifting across time. Today, the set of social beliefs is not the same as those of, say, a couple of decades back.

‌This is evident by the social frowning upon practices of Sati, Child Marriage, Triple Talaq, Child Labour, Caste discrimination, Marital Abuse and propagation of ideas regarding Gender Equality, Social Welfare, Mental Health, Reformative sentences to criminals, among many other matters which aren't mentioned here, and which would take another writing in itself if done, let alone the specific and detailed legislations formulated on the same by this Government and those of the past.

‌At present, the Indian population is one of the youngest in the world. More curious, knowledgeable, capable, rational and accepting than it ever was in the vibrant history of this nation. The opinions of conventional die-hards don't signify the mood of the society at large anymore, and the sooner this realisation rings in the ear, the better. This is not to mean that traditional viewpoints are bereft of value or any significance, but with time, even the most pristine waters can harbour agents of fatal diseases, if stagnant.

 

Conclusion

‌But to strip all the talk of supposed social ethos, legal framework and political scenario out. On a strictly moral perspective, for the people of this community, it's about the basic right to love. To have a family recognised by the state they contribute in, and feel one with.

‌For them marriage isn't an apprehension of legislative consequences bound to cause havoc, it's an expression of commitment, a welcoming of an adventurous responsibility.

Khajuraho Temple

‌A nation that prides itself on the architectural marvel that is Khajuraho. Where the presence of Hijras connotes auspiciousness. Where Ardhanareshwara is held as one of the supreme forms among a humongous pantheon of Gods. Where Vishnu is worshipped as both Mohan and Mohini. A land that has greeted the advent of every culture, thought and creed, that stood tall in face of brutal suppression of its own heritage and even then, championed tolerance & inclusivity, for it to now deny the recognition of the choices its citizens make in their personal lives due to legislative inconvenience or deep-dyed political orientation is a great and incomparable tragedy.

‌In an environment, where people are discriminated against at workplaces, conveniently stigmatised by age-old societal notions, barred from employment opportunities, are raped and abused by the officers they vested their trust in, can't afford the pleasure of having children and a family, and are inclined to end their own lives, just because they make choices differing from the rest, the Centre's response is a matter of immense despondency.

‌The last beacon of hope is The Supreme Court of India, which has listed the matter for April 18 with a 3-judge bench including the CJI.

‌What's does the future have in store? It would be rash to predict. But April 18 and subsequent hearings will certainly set off a domino effect. Whether such an effect is soberly progressive or intransigently regressive remains to be seen.

Authored by:

Bhavesh Arora

24^th Mar 2023