The doctrine of transformative constitutionalism demands that we acknowledge queerness legally, through the law, protect the rights of queer couples, and allow them to flourish.
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A recent judgment of the Supreme Court in Deepika Singh versus Central Administrative Tribunal & Ors. merits attention. A bench of Justices Dr. D.Y. Chandrachud and A.S. Bopanna, while hearing a petition on the challenge to Rule 43(1) of the Central Civil Service (Leave) Rules, 1972 restricting maternity, observed:
“Familial relationships may take the form of domestic, unmarried partnerships or queer relationships. A household may be a single-parent household for any number of reasons, including the death of a spouse, separation, or divorce. Similarly, the guardians and caretakers (who traditionally occupy the roles of the “mother” and the “father”) of children may change with remarriage, adoption, or fostering. These manifestations of love and families may not be typical but they are as real as their traditional counterparts. Such atypical manifestations of the family unit are equally deserving not only of protection under the law but also of the benefits available under social welfare legislation. The black letter of the law must not be relied upon to disadvantage families which are different from traditional ones.”
The current notions of families are rooted in heteronormative, patriarchal structures which have been given the sanction of the law. Being queer, and having a family is sometimes not even an option.
This observation deserves some dissection, considering that there are various formulations of the family seeking legal sanction before the court — with the gay marriage petition pending before the Delhi High Court since 2020, challenges to the provisions of the Assisted Reproductive Technology (Regulation) Act, 2021 and the Surrogacy (Regulation) Act, 2021 which exclude several persons from availing surrogacy and assisted reproduction filed before the same high court earlier this year, and multiple petitions that come up before various high courts seeking protection of unmarried couples (including queer ones). The purpose of this article is to juxtapose this observation in a broader context of queer rights today.
Also read: Same-sex marriage in India: why are Indian courts taking so long?
How the law excludes queer people from familial relationships
To be queer is to defy the norm. Queer families have resisted what is traditional or typical, with hijra gharanas in India a shining example of such atypical relationships. The current notions of families are rooted in heteronormative, patriarchal structures which have been given the sanction of the law. Being queer, and having a family is sometimes not even an option. The Central Adoption Resource Authority (‘CARA’) guideleines of 2017 have no mention of queer couples, transgender persons, or same-sex partners. According to a report by The Print, the CARA helpline said that there is no provision for same-sex couples to adopt.
Similarly, the Artificial Reproductive Technologies (Regulation) Act and the Surrogacy (Regulation) Act exclude queer and unmarried parents. There is no recognition for queer civil partnerships or marriages, and petitions are pending (and being vehemently opposed by the Union Government) before the Delhi high court. What does the protection of the law then mean?
Traditionally, queer persons have used the law both as a sword and as a shield to protect them from homophobia. A 2012 study by researchers Ponni Arasu and Priya Thangarajah notes how courts have been unable to define a queer relationship when they call it atypical when the families use habeas corpus petitions as a way to locate and abduct queer lovers from the homes of those they love, homes which become sites for affirmations and care. These relationships are seldom recognised by law. Here are some of the quotes from their paper:
“close friends for the past two and half years”.
“The petitioner submits that she has been searching for her friend”.
“The Petitioner fears for the safety of the detainee and it is under these extreme circumstances she is approaching this Hon’ble court”.
“…into a depressive state and would threaten to commit suicide if she continued staying there. It was only on the persuasion of the Petitioner that the detainee would avoid taking that extreme step”.
Litigation can be incredibly expensive, and to demand protection of the law by filing writs is a lengthy process. Access to justice is also subject to the identities in which queer people exist, and is a function of their class and caste privilege. So, unless a statute protects queer couples or the courts issue guidelines to the government, such observations do nothing for the queer people on the ground other than pay lip service to queer rights.
(Kerala High Court, N versus State & Ors. (2005))
“S not in confinement divorces M”. (headline in Malayala Manorama, November 23, 2000).
“…earlier she tried to commit suicide. She threatened S’s family saying that she would hang herself in front of their house if they don’t allow S to live with her (Malayalam Manorama, October 11, 2000; ‘M in Legal Battle to Get her Friend Back’).
Queer couples forced to approach high courts for protection
Various high courts have, through writs, also granted police protections to same-sex couples in the last few years. Similar cases have come up before other high courts as well. This leads me to my next question — what does the protection of law mean? Does it mean that the law should protect queer couples from families and their homophobia? The doctrine of transformative constitutionalism demands that we acknowledge queerness legally, through the law, protect the rights of queer couples, and allow them to flourish.
Also read: Transformative Constitutionalism- A post-colonial experiment
Finally, the question is also one of who gets to access justice. Litigation can be incredibly expensive, and to demand protection of the law by filing writs is a lengthy process. Access to justice is also subject to the identities in which queer people exist, and is a function of their class and caste privilege. So, unless a statute protects queer couples or the courts issue guidelines to the government, such observations do nothing for the queer people on the ground other than pay lip service to queer rights.
The Indian Constitution, as a feminist document, places a beholden duty on courts and the government to protect the rights of queer couples. Since the government is failing, it is time that the courts step in.
The observation in Deepika Singh is merely an obiter dictum. The Supreme Court has yet to ensure that it walks the talk when challenges to the Special Marriage Act are dismissed, and the Act is used to harm inter-caste and inter-faith couples.
On September 6, we will be celebrating four years of the Supreme Court’s landmark judgment in Navtej Singh Johar & Ors. versus Union of India (2018), and that will perhaps be a time to look in greater detail into how the rights of queer persons have been protected by the courts. I, for one, am thoroughly disenchanted with the court’s diatribes, which do little to precipitate enforceable rights. As a queer lawyer, I will perhaps have a greater occasion to celebrate when the judiciary walks the talk, and protects queer families by making way for challenges to the Artificial Reproductive Technologies (Regulation) Act and the Surrogacy (Regulation) Act; when it recognises hijra gharanas and alternate structures of care as families; when it makes way for same-sex marriage petitions.
