Kanav Narayan Sahgal, a development professional and a post-graduate from Azim Premji University, India, comments on the need for constituting gender and sexuality-neutral marriage laws in India that challenge heteronormative and cisnormative assumptions...
While hearing a divorce case for a heterosexual Hindu couple a few days ago, the Delhi High Court opined that the time had come for the Central Government to introduce a Uniform Civil Code (UCC) for all Indians. In an order dated July 7, 2021, the judge presiding over the case, Justice Prathiba M. Singh, exclaimed that the modern Indian society was “gradually becoming homogenous” and that “the youth of India belonging to various communities, tribes, castes or religions who solemnise their marriages ought not to be forced to struggle with issues arising due to conflicts in various personal laws, especially in relation to marriage and divorce”.
This is not the first time the Indian judiciary has exhorted the legislature to operationalise Article 44 of the Indian Constitution, which states that “The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India”. Back in 1985, while hearing the now infamous Shah Bano case (Mohd. Ahmed Khan v. Shah Bano Begum), the Supreme Court lamented “It is a matter of regret that Article 44 has remained a dead letter… Common civil code will help the cause of national integration by removing disparate loyalties to laws, which have conflicting ideologies.” More than three decades have passed since then, yet a UCC for India seemed like a far cry- until now. It should be noted, however, that Article 44 comes under the Directive Principle of State Policy and as per Article 37, these principles are non-justiciable in the court of law yet fundamental in the governance of the country.
Given that all personal laws in India discriminate against women, some might believe that a UCC is a step in the right direction. But it isn’t that simple. The mainstream understanding of marriage in India is still cis-normative and heteronormative. And although most conversations in India around the UCC center around protecting heterosexual women’s rights (such as Shah Bano’s right to seek maintenance or Shayara Bano’s right to challenge triple talaq), these discussions still fail to engage with non-heterosexual women and men’s issues. They also fail to see non-heterosexual Indians as rights-bearing citizens constitutive of the Indian family unit.
Back in March 2020, advocates Menaka Guruswamy and Arundhati Katju, in an address to the Oxford Union, unveiled the “marriage project”- a plan to legally recognize same-sex marriages in India. And as of July 2021, this project has made much headway. There are currently multiple petitions in the Delhi High Court seeking recognition of same-sex marriages under the Hindu Marriage Act, Foreign Marriage Act, Special Marriage Act, and the Citizenship Act. However, in September last year, the right-wing Hindu nationalist Bharatiya Janata Party (BJP) – led Central government slammed these petitions, arguing that legalizing same-sex marriages in India would cause “complete havoc with the delicate balance of personal laws in the country”. The government went on to say that same-sex couples aren’t “comparable with the Indian family unit concept of a husband, a wife and children which necessarily presuppose a biological man as a ‘husband’, a biological woman as a ‘wife’ and the children born out of the union between the two”.
While these arguments may surprise some, they shouldn’t. This government has also in the past abstained from voting in favor of LGBTQIA+ rights at the United Nations Human Rights Council in a 2019 resolution that sought to renew the mandate of an independent expert on Sexual Orientation and Gender Identity (SOGI) rights. And in the same year, the government passed the Surrogacy (Regulation) Bill, 2019 which disqualified live-in and same-sex couples from commissioning surrogates. Given that the task of implementing a UCC for India would also lie in the hands of the BJP, it comes as no surprise that LGTQIA+ Indians are afraid of once again being legislatively excluded from its ambit.
But is this fair? The Supreme Court of India’s landmark judgment in National Legal Services Authority v. Union of India (2014) not only affirmed the legislative validity of those embodying the third gender but also called for their recognition under Article 14 and 21 of the Constitution of India. In 2018, the same apex court decriminalized homosexuality by categorically stating that sexual orientation was both an immutable and an innate feature of one’s identity. The court went on to state that the choice for LGBTQIA+ people to enter into intimate and consensual sexual relationships with people of the same sex was a reasonable expression of their identity and could not be criminalized. Why then, should LGBTQIA+ people be denied the legal right to have these very same relationships codified by law? The biological essentialism employed by the BJP also contravenes a 2019 order passed by the Madurai Bench of the Madras High Court in Arunkumar & Other. v The Inspector General of Registration and Others in which it was decided that a marriage solemnized between a (biological) male and a transwoman, both professing the Hindu religion, would constitute a valid marriage according to Section 5 of the Hindu Marriage Act, 1955. The Court went on to state that in passing this order it was “merely stating the obvious” because to see the obvious, “one needs not only physical vision in the eye but also love in the heart.”. Why then, is this expression of love not constitutionally guaranteed to other members of the LGBTQIA+ community in India?
The adoption of a UCC in India is indeed highly contentious. While there is an imagined promise of equality for heterosexual women under the UCC, one must tread with caution because the Indian Prime Minister’s own hypocrisy on the issue of heterosexual women’s rights (colloquially dubbed as ‘women’s rights’ or ‘gender equality’ by the Indian media) is appalling. Back in 2017, Prime Minister Narendra Modi welcomed the Supreme Court of India’s decision to ban Triple Talaq, yet lambasted the Left Democratic Front (Kerala) government’s decision to implement the same apex Court’s judgment on the Sabarimala case. Although both issues very broadly dealt with women’s rights, the Triple Talaq issue more specifically challenged the traditional status of Muslim women vis-a-vis divorce and maintenance. Hence, it was welcomed under the garb of ‘gender equality’. On the other hand, because the Sabarimala verdict challenged the traditional status of Hindu women vis-à-vis entry inside the Sabarimala Temple, it was unequivocally criticized under the garb of protecting ‘traditions’. This is not the first time that the Hindu nationalist government has engaged in selective politicking of women’s rights. Despite holding a brute majority in the Lok Sabha, the government has maintained an eerie silence on the passage of the Women’s Reservation Bill and in the same breath is vociferously opposed to criminalizing marital rape in India.
Hence, some questions on people’s minds (including mine) are as follows: for a central government whose sole political, social, and cultural identity is predicated on the establishment of an imagined ‘Hindu Rashtra’ (Hindu state), how can one expect secular, liberal, and discrimination-free uniform marriage laws for men, women, and those in between? Moreover, because this government’s own legislative track record on gender justice treats Muslim women’s rights and Hindu women’s rights differently, how can one expect a civil code that is ‘uniform’ for people of different faiths? And if such as civil code is to be ‘uniform’, why should it exclude sexual minorities? Why should marriage be restricted to ‘biological’ males and ‘biological’ women only? The central government’s Islamophobia and queerphobia are evident and need to be called out.
In her book, Seeing like a feminist, eminent scholar Nivedita Menon poignantly points out that queer politics and counter-heteronormative movements complicate taken-for-granted notions of gender and sexuality. These movements challenge the very positionality of those who constitute the subject of feminist politics and introduce new stakeholders into these debates. Thus, gay men now feature in discussions around gender rights, as do lesbian women and transpeople (p.104). Given that all Indians now live in a post-377 and post-NALSA era, it is precisely these kinds of destabilizing conversations that we need to ask whilst debating the pros and cons of the UCC. Otherwise, talking about ‘gender justice’ and ‘women’s empowerment’ would be moot, hollow, superficial, and tacitly incomplete.
Kanav Narayan Sahgal is a development professional and a post-graduate from Azim Premji University in Bengaluru, India. He identifies as queer for personal and political reasons and is interested in researching issues surrounding social exclusion and marginality.
Suggested citation: Kanav Narayan Sahgal, Queering the Discourse Around Uniform Civil Code and Marriage Laws in India, JURIST – Student Commentary, July 21, 2021, https://www.jurist.org/commentary/2021/07/kanav-narayan-queering-discourse-ucc-marriage-laws/.
This article was prepared for publication by Sambhav Sharma, a JURIST Staff Editor. Please direct any questions or comments to him at email@example.com
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