When the makers of the Indian Constitution enshrined fundamental rights, they probably did not feel the need to explicitly spell out the right to companionship and family. These natural rights are so fundamental that the Constitution’s makers did not need to state the obvious. However, I wish they had. It would have saved many queer people from many indignities.
Queer people have existed since the dawn of humanity; indigenous cultures and faiths have accepted them matter-of-factly, like any other gender or orientation. The Kama Sutra, a treatise on the private lives of Pataliputra in the 3rd century BCE, devoted an entire chapter and more to same-sex relations and courtship and passingly mentioned the customary practice of Parigraha, where two people of the same gender cohabited for life.
As there was no codified sanction for marriage in pre-modern India, all systems of marriage, including parigraha, were customary.
When Sarmad Kashani, a 17th-century Sufi mystic, fell in love with Abhay Chand, a Hindu man, Chand’s family eventually relented after some protest, and they lived and travelled in India together for the rest of their lives. Sarmad’s popularity among locals in Delhi irked Emperor Aurangzeb so much that he was eventually executed. Martyred, one of his most famous poems, reverberates to this day: “There is no fault with a maman. The fault lies with you. Love hasn’t maddened you yet.”
As the world became “modern,” an obsession with positivistic classification and gender binaries emerged. Cultures that did not adhere to modern ideals of masculinity and femininity were labelled as savage-like. British imperialists became the prime exporters of the most acute form of homophobia. So vicious was the homophobia in Britain that their government chose to forcefully castrate a war hero, genius, and the father of modern computer science, Alan Turing, for his homosexuality in 1952. Turing committed suicide just before turning 42 in 1954.
The British showed a willingness to reform, and today Britain ensures a life of basic equality and dignity for its queer citizens. Yet, the system of laws and attitudes that the British imprinted on their colonies wreaked havoc on the lives of queer people elsewhere. No community bore a greater brunt than India’s Hijra community, which was labelled as a criminal tribe in India under the Criminal Tribes Act 1871, with the movement and freedoms of the community
as a whole severely curtailed under the law. While such laws have been removed, the stigma that they brought to the community remains.
Nearly one crore young Indians (15 to 30 years old) must be gay, lesbian, or transgender (roughly 3 per cent of the total population aged 15 to 30 or 35 crore), and many more are bisexuals. India’s total queer population is even larger, although most live in the closet discreetly due to pervasive homophobia. They need the support of society and government to lead lives with dignity and as equals so that their talents and skills can contribute to the nation.
The Indian government must think twice before arguing in court that queer people and their dignity and equality would wreak havoc in India. Same-sex marriage is a matter of life and death for crores of Indians affected by the decisions made about their lives, unfortunately without any representation from their community.
Many queer people in India grew up when being gay was a criminal act, facing a world where institutionalised homophobia was normal. While things have improved in the last few years (since Navtej Singh Johar vs. Union of India in 2018), this does not imply that queer people can now live their lives fearlessly. Many challenges still exist, like the structurally imposed isolation.
The government should have consulted India’s queer citizens before making ahistorical, unscientific, and insensitive statements, such as, it does not condone or legitimise the ‘conduct’ of queer people just because such conduct is decriminalised. The government must develop some sensitivity to realise the far-reaching impact of its words on the lives of young queer people, who need hope, not government-sanctioned humiliation.
Even if the government fails to safeguard the interests and dignity of queer people, it should not hamper their right to build a family and find support among each other.
(The writer teaches at IIM-Bangalore.)
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