SC's SMA Verdict: Dissent, Desire, and Desperation in India's Queer Community

Supporters and members of the LGBTQI community hold the rainbow flag as they participate in a Queer Azadi March 2020 at Azad Maidan in Mumbai, February 1, 2020.

(Photo: PTI/Mitesh Bhuvad)

As queer persons and allies sat listening/reading to CJI Chandrachud talk eloquently of rights only to declare finally that they are incapable of granting even a single one, and directing the legislature and police to act in queer affirmative ways, Instagram accounts were busy creating rainbow graphics of CJI’s statements.

The Supreme Court has issued directives to a government that is not known for its pro-people legislation. There is no accountability or time constraint and so the government is free to sit on it as long as they like, as they did after Navtej Singh Johar v. Union of India.

This government has also diluted affirmative rights provided to transgender persons in NALSA judgment through its regressive Transgender Persons (Protection of Rights) Act. But we are to expect them to make laws for queer persons regarding whom Solicitor General Tushar Mehta said during the hearings that there is no discrimination and that our very existence is against India’s culture and tradition.

During the hearing and the judgment we also saw the barrage of hatred that came towards us from trolls on the internet, most of which was rooted in transphobia. We also saw how most of the media called it ‘same-sex marriage’ as if our love is only about the sameness of our sexes, and not about our immensity to love beyond the prison of gender.

Understanding Discrimination by the State

Those who study law and jurisprudence are more suitable to comment on the complexity of the judiciary’s unwillingness to grant relief to queer persons in the form of marriage rights, and the legislature’s aversion to it. But as a queer person invested in understanding and working with social structures, there are different questions that I have been seeking answers to.

We understand that in the denial of rights by the judiciary and state, what gets denied is our humanity. When the state and judiciary do not give us rights that are so easily and comfortably available to others that they can discard them at will, it is, in effect, not just violating the social contract the state made with us while granting us citizenship, but also telling us that we are not even worthy of that which others could easily discard.

If we understand this, then we must also understand that in limiting certain rights only in the institution of marriage, the state continues to be discriminatory towards all those it does not allow to marry, or as we see in our case, deems unworthy to marry.

So we must ask ourselves, does it befit us — a community that has felt humiliation, discrimination and violence at every step of our existence, a community where every member grows up utterly lonely and only by luck finds people to love and laugh with, share food and tears with-- to try to enter into the institution of marriage and leave those behind who can’t or won’t?

If the fear is that by demanding bigger things, we expose ourselves to the risk of denial of smaller things, like marriage rights, then the court has shown that though we aimed lower, asked less, and made ourselves smaller, we were still discarded.

What are We Asking?

This is not to say that a declaration of companionship is not important, but rather to ask how the state benefits from limiting and policing our love and companionship. This is to ask why must we centre all our hopes on the institution of marriage. This is to ask if we should fight for a seat at the table which is built on the backs of women and stands on the rotting feet of Brahminism and caste endogamy.

This is to ask, what do we stand to lose by envisioning an open and accessible space, where those with wheelchairs and prosthetics, those who love and those who don’t, those who are with partners (one or many) and those who are with friends, those with broken and lonely hearts could come and join, and celebrate our unique queernesses.

And so now, this is no time to despair but to rather mobilise for all that we want, all that we are capable of imagining. It is time to go back into our communities and facilitate discussion on the widest possible ambits of queer rights.

We must recognise that in calling queer marriage ‘same-sex marriage’, the media actively denied the agency of many trans* and non-binary persons who were at the forefront of not just demanding these and many other rights but also facing direct violence from the police and state, in the parliament and on the streets, and still continue to lead our community with love and power.

It is then a collective queer responsibility to centre transpersons while moving ahead with our demands for queer rights.

Where Do We Go From Here?

It is time to build a collective consensus for horizontal reservations for trans persons, age-appropriate comprehensive sexuality education for all children, legal and infrastructural safeguards against transphobia and homophobia, dignified pensions for the elderly and the disabled, and previously incarcerated transpersons, shelter homes for transpersons and other queer persons- especially teenage and older queer persons, freedom to nominate not just partners but also friends as beneficiaries and/or custodians wherever required.

As the state continues to assault the fundamental rights of queers, Dalits, Muslims, Adivasis, women, disabled persons, migrants, poor, “illegal immigrants” etc., anyone who stands at the intersection of two or more of these identities have their rights assaulted far more aggressively.

Queer persons in prisons and mental asylums and on the streets cannot afford privacy or marriage but must still have dignity and rights. And to ensure that we need to address casteism, islamophobia, ableism, misogyny, carcerality, etc. but more importantly, capitalism. Without working on these issues our demand for rights, whether marriage or more, will not include those who need them most.

We need to move beyond what is considered normal and acceptable. We need to think of our rights as far more expansive than what the state is willing to offer.

By framing queer rights only in the limited space of marriage, which has the possibility to address and grant very limited rights, we risk leaving behind the most marginalised in our communities.

(The author is a queer writer, translator and facilitator from Allahabad, UP with bylines in Business Standard, The Leaflet, Pink Advocate, Sadaneera, Hindwi, Feminism in India, Women's Web, Gaylaxy, Baya, Critique etc. He also runs a pan-India youth fellowship program India Fellow and a local queer support group RAQS in Allahabad. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)