It’s time we celebrate love as the purest emotion between two individuals. It’s time we celebrate our Constitution for promising equality for all
At its core lies a clash between constitutional guarantees and societal morality (Amal KS/HT PHOTO)
In a week when the Delhi High Court (HC) is hearing a clutch of petitions seeking legal recognition of same-sex marriage, it is telling that Dabur recalled an ad celebrating Karwa Chauth. The ad gave fresh offence to the usual suspects with its new twist to the old festival where instead of a wife fasting for her husband’s long life, two women fast for each other. Madhya Pradesh home minister Narottam Mishra threatened legal action leading to Dabur’s apology for “hurting people’s sentiments”.
The Delhi HC was hearing why same-sex marriage should be recognised. The government, represented by solicitor-general Tushar Mehta, insists that marriage in India is permissible only between a biological man and a biological woman. Appearing for one of the petitioners, advocate Karuna Nundy counters that the “right to marry a person of one’s choice is integral” to the Constitution, as ruled by the Supreme Court (SC) in Shafin Jahan v Asokan KM.
The petitioners want the Special Marriage Act to give the same human, fundamental, and constitutional rights to the LGBTQ (lesbian, gay, bisexual, transpersons, queer) community. After the apex court decriminalised Section 377, the next logical step would be to extend the rights enjoyed by the heterosexual community to all. “The principle of law has been settled. Now we need to apply it to different situations,” said advocate Saurabh Kirpal who is representing a group of professionals, one of whom was compelled to leave India to marry the person he loved.
At its core lies a clash between constitutional guarantees and societal morality. Same-sex marriage is recognised in 30 countries. Within Asia, Taiwan became the first country to enact marriage equality in 2019. A survey in 2020 in Japan found 78.4% of people favoured same-sex marriage. Thailand has approved a bill that recognises same-sex civil partnerships.
Societies and the way people live are not fixed. “Unnatural sex” was once a crime. Now it is not. In a country where 93% of marriages are arranged in line with caste, community and socio-economic endogamy, society must have the flexibility to extend the idea of love between any two individuals even if it goes against the grain of majoritarian custom.
Fortunately, the courts have so far stood for love. In petitions filed by inter-caste and inter-religious couples seeking protection, the SC has consistently sided with individuals, often against their own families that seek to punish errant sons and daughters with ostracisation, and, worse, “honour” killings.
Tradition was the excuse to exclude Hindu daughters from inheritance and subject Muslim wives to the tyranny of triple talaq. It did not stop the courts from pushing for change.
It’s time we celebrate love as the purest emotion between two individuals. It’s time we celebrate our Constitution for promising equality for all. Bound to uphold the Constitution, there is only one way for courts to rule: Equal marriage rights for equal citizens.
Namita Bhandare writes on gender
The views expressed are personal