As someone that identifies as queer-gay and non-binary- I gravitate to the question decidedly, but more so to clarify the impression that my answer might provoke. I don't think same sex marriage in India is our way towards inclusion, factoring in the erasure and oppressive nature of India's public sphere on its gender and sexual minorities. If there were any take-aways from decriminalizing section 377 of our penal code, it is this; that policy changes, however long overdue, do not do away with systemic problems endemic to a given society. In addition to that, if same-sex marriages are to be legalized, we run the risk of pandering to heteronormative 'validation' that is regressive and counterintuitive in its own way. We would fail radical queer discourse that is antagonistically related to the emulation of our prevalent heterosexist-patriarchy. We would thus fail to acknowledge the problems most closely associated with marriage itself. The institution of marriage, historically and even contemporarily, functions inextricably with caste. Endogamy and preservation of 'caste-pride' informs the most common form of marriage in India- arranged marriages. We'd normalize the exclusion of bahujan, dalit and adivasi queer people from spaces by bolstering our faith in our attempted replication of straight-cis marriages. The side-lining of marginalized folk isn't still just common, it’s very much the prevalent norm and this would be a disservice to those same individuals that fought for queer rights for the past decade and more. To establish same sex marriages, it is a prerequisite to normalize queer people occupying space, being entitled to safety and equal treatment and governmental aid to see that to fruition as an extension of our fundamental right to life and dignity. Failing to do the former, would deepen the divide and fracture whatever semblance of LGBTQIA solidarity that exists today. The lines of which are heavily centred in cites and largely by propertied and the privileged middle class. It is critical, therefore, that we ensure rights guaranteed to queer people before altering the constitution to truly be prepared for introducing same sex marriages in India. In the passages to follow I will provide evidence to bolster my aforementioned claims, to elucidate my stance on the matter.
While many people might argue that reading down section 377 was a landmark judgement, and rightfully so, but three years after the judgement, the on-ground reality of queer people in the nation aren’t very different that it was before 2018. Thinking of laws as ends in themselves towards collective good, is limiting as it glosses over several of the hardships that queer people in the country are still met with and should instead be looked at as nothing more than incremental steps towards a larger conversation on equal citizenship. It is imperative to therefore map out the conspicuous barriers, socially and legally, that act as impediments to queer people in the nation. One of them is the paternal nature of the judiciary itself, and its repeated emphasis on the male-female dichotomy in recognising sexual crimes. The courts language in regards to sexual harassment and crimes only consider the violence perpetrated within the binary of male and female, leaving a vast majority of non-binary and transgender people outside of its preview. And even in other instances of laws made by the judiciary, specially keeping in mind transgender peoples, the laws are condescending at best and erasure of autonomy at its worst. The Transgender Persons (Protection of Rights) Bill, passed 2019, have many objectors from the transgender community itself. They take issue with the nomenclature of ‘Transgender’ and the conflation of it with being intersex. The law lacks fundamental comprehension of gender identity and its distinction from biological sex, but it doesn’t stop just there. The law seeks to give trans people the right to “self-determine” their gender, but this appears to many as a misnomer as he final word on a transgender person’s identity lies in the hands of the district magistrate- to whom, for all effective purposes, you have to ‘prove’ your gender identity. I would therefore argue that it is more important for us to understand the vocabulary of the courts and its lexicon of jurisprudence pertaining to queer people instead of demanding same-sex marriages as a remedy to ubiquitous discrimination and ignorance in the country.
In conclusion, I believe it is important to address several of the other problems queer people raise and focus on those becoming laws that affirm gender identity and strive for a more inclusive India. I would be remiss if I suggested that same-sex marriages were entirely off the table forever, my main criticism of it stems from the plethora of other concerns that needs attention, some mentioned here in the write-up, to secure queer people with the same rights as everyone else. There can be laws that circumvent the issues with same-sex marriages in our today’s context and it’s key that we remain mindful of them. Many activists point to the common-law partnership in Canada, to secure marital-status rights that up until this point exclusively serve and encompass non-queer Indians. The proponents of this suggest a reimagining of marriage in India, by proposing the term ‘right to companionship’-which would serve as a more utilitarian to its counterpart, while ensuring gender being inconsequential in the matter. This would also break away from the puritanical obsession of heteronormative idea of marriage as being reserved for men and women alone, while leaving room for the judiciary to revaluate the language it deploys to both understand and legislate on queer people better. It is important to remember that queer people and subsequently, issues raised by them, are not mere emulations of heteronormative society, but unique problems that cannot be understood without critical thought and a willingness to understand. It then becomes a deontological duty of the judiciary to tailor laws that best suit gender and sexual minorities without imposing the heteronormative bias that courts seem to be operating out of currently. Only after achieving these noticeable barriers can we then prime ourselves for equal marriage states for all Indians.