New Delhi: In the wake of the Navtej Johar judgment in 2018, activists and lawyers have been agitating to legalise same-sex marriage. Their arguments (here, here and here) hinge on two matters. First, that marriage is widely recognised in Indian society as the public face of private desire. Second, that marriage is the repository of rights, and therefore, should be made as available to homosexual people as to heterosexual people.
A recent example of this position was compellingly stated in Article 14 by Saurabh Kripal’s piece titled “Why It’s Time to Consider Same-Sex Marriage.”
Let us examine this case. There is no doubt that all citizens of a country should have equal rights. This is not a matter of dispute. What is more contentious, however, is whether marriage might be the best route by which to access those rights.
Attaching certain rights exclusively to the institution of marriage not only ensures large-scale discrimination against those who are not married, but it also lays down the norm for what kind of desire is considered legitimate.
Married And Monogamous
As it currently stands, the rights attendant upon marriage are available only to the category of married monogamous heterosexual couples.
Thus, those people who want to enter into the institution of marriage will have to abide by those same constraints on desire: Homosexual marriage too will need to be premised on love and monogamy. While the 377 judgment does not say so explicitly, the wide use, in the lead-up to the judgment, of the sentimentalized language of “love” to describe homosexual partners makes this all-too evident.
The most powerful depiction of this language was on the cover of India Today in December 2013: a photo of Vikram Seth holding a slate on which is written – “Not a Criminal: To not be able to love the one you love is to have your life wrenched away, said Seth.” The “one” that one “loves” might now be a same-sex one, but it can still only be one and you have to make sure that you love it.
While the configuration of love might have expanded from hetero- to homo-sexual, the conditions of recognition – monogamy and coupledom (in private) – remain firmly in place. Such an expansion of the empire of marriage thus disenfranchises sex workers, threesomes, and all those, including unmarried heterosexual people who, for various reasons, might not want to be in a monogamous relationship. The desire to be granted rights is always fulfilled at someone else’s expense.
Instead of asking the burning question of why any of our rights as citizens should depend on who we have sex with and how often, the rush to join Marriage Inc. seriously jeopardises the argument for sexual and gendered freedom.
Indeed, in 2018 Ratna Kapur warned against sexual minorities relying overly on a rights discourse to gain advantages that have historically been denied them. In 2011 Arvind Narrain and Alok Gupta, cautioned against the blunting of opposition to legal violence if we all clamoured to be admitted to the same oppressive State institutions. And Upendra Baxi in The Future of Human Rights (2006) pointed out that a blanket human rights discourse might constitute “a vast conceptual and criteriological prison house” in which everyone is trapped within their identities as recognised by the law, and no movement is allowed beyond these identities.
The Un-Freedoms Of Marriage
These are precisely the un-freedoms of marriage. From the proscribed degrees of relation in the Hindu Marriage Act (1955) to the invitation to vigilante policing in the Special Marriages Act (1954) to the near-impossibility of getting a divorce, we are being wilfully blind if we repeatedly ignore the fact that marriage has always been used to curb and restrain sexual desire rather than enable it.
Making local changes to this or that marriage law is not going to change the fact that laws allowing marriage are always going to be restrictive rather than expansive. The problem is marriage itself. Swollen with the self-conceit enabled by its sweeping powers, the institution of marriage allows the State to regulate sexual desire and deem what is and is not sexually- and socially-appropriate behaviour.
To think of marriage, then, as a badge of freedom and citizenship is to ignore the violence perpetrated in the name of marriage against all sexual minorities. Since its inception, anyone not conforming to the monogamous and reproductive heterosexual couple has been denuded of rights bestowed by the law.
Even within the unit of such couples, women have continually been disenfranchised as the lesser partner. Is the answer to this disadvantage, then, to seek admission to the institution of marriage, or is it to chart a different course? How can we get our rights and eat them too without attending a wedding feast?
A Way Out
There might be a way. Can we make a case for the law to practice non-discrimination: all citizens are granted the same rights of inheritance, medical visits, property ownership, tax exemptions, immigration, adoption, etc. that are currently premised on the condition of marriage?
These rights would be universal rather than specific. This means that instead of positing a particular category – heterosexuals, homosexuals – as the recipient of rights, the law would grant rights to everyone regardless of their desiring configurations. Like universal suffrage, which confers the right to vote on all people above the age of 18, regardless of whether they’re old or lesbian or transmen, universal rights too would legally unhitch rights from marriage and remove the glitter that currently attaches to heterosexuality.
But even the case for universal rights uncoupled from desire is not foolproof: it suffers from some of the same constraints that attend the idea of gay marriage by being discriminatory in nature. For instance, in keeping with a populist morality, uncoupled rights would probably cover only consensual sexual interactions among people above the age of 18. These “universal rights” would thus continue to discriminate on the basis of age and species.
Granting rights to a defined category of people automatically excludes other categories that will not be given access to those same rights. This is a major problem with any attempt to reform the law because different reforms will be subject to a different set of constraints. Even if we legally uncouple rights from desires, then, we will have universal rights for most, but not all, desiring configurations. Which is to say, these rights will not be universal at all.
If we turn back to a consideration of the marriage proposal, then another danger rears its head. The institution of marriage presumes that desire can be divided into neatly defined categories, all of which will compete with one another to receive Most Favoured Desire status under the law.
But the dirty secret of the law is that it is the one that needs to categorise acts and identities and peoples.
The law needs to distinguish between legality and illegality, especially in a terrain as vast and unpredictable as desire. It would thus be a mistake on our part to presume that these legal categories are synonymous with desire.
Marriage For None
If we follow the lead of the law, then we will be duped into believing that desire exists in categories rather than realising that categories are what the law invents in order to make sense of desire. If we continue to fight for the inclusion of one category or another into the space of marriage, then, we will be speaking the language of the law rather than of desire.
To speak the language of desire would entail not speaking in terms of categorical divisions but to realise that, potentially, all desire will always be suspect in the eyes of legalistic classification. Straddling the realms of religion and commerce and art and society, desire always overflow the confines of legal bounds.
We should insist, therefore, not on “marriage for all,” but rather on “marriage for none.” We should be free to get married, of course, especially if we have a lot of money to spare. But marriage should not confer any special legal status on us. It should not be used as a legal hammer with which to nail the waywardness of desire.
What happens when a same-sex partner dies intestate? How do we manage if a same-sex partner has not designated a partner as her primary care provider before slipping into a coma? What do we do if our child does not have both same-sex partners’ names on its birth certificate? These are the legal issues that we need to work on and iron out.
But even as we do this, we should be clear that we cannot allow the law to mandate our sex lives or the horizon of our desires. We should be able to designate our own heirs, and sign property papers with co-owners of our choice, and assign our own medical care to who we trust, regardless of with whom and how many people we might be having sex. Marriage should not be given the honour of bestowing rights that the mere fact of citizenship should guarantee.
(Madhavi Menon is Professor of English and Director of the Centre for Studies in Gender and Sexuality at Ashoka University. This article is excerpted from her forthcoming book, The Law of Desire.)