Objection, Your Honour: An open response to the 21 judges and their statement by a queer person

The marriage equality petitioners are not asking the Supreme Court to create new rights, nor are they asking it to legislate. What is being sought is merely an interpretation of some marriage statutes, and if the court thinks that interpretation is not permissible, then to strike the statutes down.

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"For I know your manifold transgressions and your mighty sins: they afflict the just, they take a bribe, and they turn aside the poor in the gate from their right."

—         Amos 5:12, The Bible

I debated for a long time whether I should write an open response to the recent public statement by 21 former high court judges against same-sex marriage, and whether such a statement even merited a response, given that such a response would only give legitimacy to their bigoted plea. After struggling with this, I have finally decided to pen a response, lest that this statement and its problematic and incorrect claims are taken undisputed.

In fairness of things, I must give a few disclosures: I am a queer, non-binary person, and a lawyer involved with the marriage equality litigation before the Supreme Court. Unlike what the 21 judges would have one think, I and my queerness are not Western imports, but are wholly Indian.

The statement of the judges makes broad unsubstantiated claims. Let me deal with each of these claims one by one.

Also read: Misinformation and bigotry: Exposing the misleading arguments of the 21 retired judges opposing same-sex marriage in India

Western tinted outlook and 'an attack on independent India' 

The statement says, "The people of the nation, hailing from various strata of society across regional and religious lines, are deeply shocked by this Western-tinted outlook that is being superimposed on Bharatiya society and culture to weaken the family system."

No, queerness is not Western. Nor is it Indian. Nor is it European. It has existed for as long as animals have existed. Yes, animals. Not humans. There is conclusive evidence that over 450 species of animals worldwide demonstrate same-sex attraction or bonding. The West does not have a geographical indication over queerness.

What is Western, and perhaps Victorian, is the criminalisation of queerness, which has been struck down by the Supreme Court in Navtej Singh Johar versus Union of India (2018).

They do adopt the rhetoric that seems to be the go-to for anyone who wants to oppose the assertion of fundamental rights in this country these days: by claiming 'an attack on independent India'.

These retired judges, all of whom have been judges of constitutional courts, will have undoubtedly adjudicated writ petitions. Each of such petitions before them in the high court would be an assertion of fundamental rights, much like the petitions demanding marriage equality. One wonders if each of those petitions was treated as an attack on independent India. Was the bogeyman in vogue, Hungarian–American businessman and philanthropist George Soros behind all of them? Let me remind them that Article 32 of the Constitution, through which the petitioners are asserting their rights is, as Dr B.R. Ambedkar called it, the 'heart and soul' of the Constitution.

Also read: Why Same-Sex Marriages Must be Judged at the Constitutional Altar

Moral Panic! At the …

The next claim which these supposed jurists make is that same sex unions have negative consequences on children and families.

However, a study published in peer-reviewed scientific journal BMJ Global Health, which aimed to synthesise the evidence of disparities in families of heterosexual and non-heterosexual persons, analysed multiple research studies over the past decades and concluded that, "Most of the family outcomes are similar between sexual minority and heterosexual families, and sexual minority families have even better outcomes in some domains. Relevant social risk factors of poor family outcomes included stigma and discrimination, poor social support and marital status, etc. The next step is to integrate multiple aspects of support and multilevel interventions to reduce the adverse effects on family outcomes with a long-term goal of influencing policy and law making for better services to individuals, families, communities and schools."

This claim is nothing but a classic moral panic-inducing tactic, akin to what we are seeing in the United States, where drag shows are being legislatively banned under the garb of protecting children. By posing gay marriage as a threat to families and children, this statement is a mala fide attempt to silence queer persons altogether, reduce them to second class citizens, and keep them from urging their fundamental rights in courts as free individuals living in a democratic nation.

Also read: Same-sex marriage in India: why are Indian courts taking so long?

HIV/AIDS and marriage

Another classic trope that the statement proposes is that recognising same-sex marriages will increase the prevalence of HIV/AIDS (human immunodeficiency virus/acquired immunodeficiency syndrome). The judges cited American figures to support their claim. Quite anti-national, in my opinion.

Let us look at Indian figures. As per the National AIDS Control Organisation, the number of People Living with HIV (PLHIV) in India was estimated at 24.01 lakh in 2021. This number has been declining.

Heterosexual intercourse accounted for 83 per cent of HIV transmission in India. This is a fit case to ban heterosexual marriages, if the judges are to be believed.

If the judges were worried about PLHIVs, dare I also suggest that they put out an open statement in favour of litigation before the Supreme Court in which PLHIVs have moved the court due to unavailability of their requisite medication. It might nudge the government to do the right thing.

Entire gamut of personal laws will be compromised, let the legislature decide 

The next argument, based on the doctrine of separation of powers, is made with such vehemence that it could put French judge, intellectual, historian and political philosopher Montesquieu (credited to have been the principal source of the doctrine) to shame. But this is an argument made deliberately to put a stop to the queer movement. Given its affidavit filed before the Supreme Court last month, the government does not seem to want to allow queer persons to marry. So, the argument that the Parliament should be allowed to decide does not hold.

The petitioners before the court are not asking the court to create new rights, though the court has done so in the past, nor are they asking it to legislate. What is being sought is merely an interpretation of the statutes in question, and if the court thinks that interpretation is not permissible, then to strike the statutes down. All of this falls squarely within the scope of judicial function.

In conclusion, the judges' statement reminds me of what British statesman and conservative politician Benjamin Disreali said of his rival, liberal politician and fellow British statesman William Gladstone: "A sophistical rhetorician, inebriated with the exuberance of his own verbosity, and gifted with an egotistical imagination that can at all times command an interminable and inconsistent series of arguments to malign an opponent and to glorify himself." I do not think I would be wrong if I said the same about the retired judges that signed the statement, though I would not.