Mihir Rajamane

Marriage Equality in India: A Reading List

This post is part of a series on legal advocacy involving marriage equality in India. Read other posts in the series. Legal advocacy for recognising marriage equality regardless of sexual orientation or gender identity has picked up pace at the Delhi High Court. Beginning with the first PIL filed in September 2020, and catalysed by…

This post is part of a series on legal advocacy involving marriage equality in India. Read other posts in the series.

Legal advocacy for recognising marriage equality regardless of sexual orientation or gender identity has picked up pace at the Delhi High Court. Beginning with the first PIL filed in September 2020, and catalysed by petitions filed by a team led by Menaka Guruswamy and Arundhati Katju, the Court is now hearing 8 petitions. They were filed by a total of 18 people, including 5 couples who wish to get their marriage legally recognised. Akhilesh Godi has compiled some of these in a great explainer post on his blog.

This is an important moment for the law’s interaction with sexual orientation and gender identity, because it is likely to produce a judgment that will deal closely with the nexus between ‘queerness’ and deeply rooted social-religious institutions. Besides the important potential for more material freedom for queer couples, this means the challenge is one whose arguments and outcomes will have repercussions far beyond marriage. It provides scope for a rich expansion of queer legal theory.

However, a few caveats are necessary. The legal challenge will be long- challenges to section 377 took 30 years to reach a final successful Supreme Court decision. While hopefully we do not have to wait as long, it is certain that it will be at least a few years as any Delhi High Court judgment will be taken up on appeal by the Supreme Court, which might have to set up a Constitution Bench. Legal recognition also should not be read as the exclusive legitimating factor. Further, marriage equality should not be and is not the centre of queer rights discourse in India. Queer rights are deeply connected to material realities of queer people, and conversations about police violence, exploitative professions, discrimination at the workplace, horizontal reservations for transgender persons and even recognition of alternative family structures continue to be among the some of the important issues that legal queer rights in India should address. Notwithstanding, I believe legal marriage equality needs to be given serious attention. The debate around this forms a part of the reading list. Finally, the use of the phrase marriage equality can be challenged, because it might suggest once legal recognition of marriages for queer couples are attained, marriage equality is won. Social, economic and even legal realities will quickly belie that as inter-caste and inter-religious marriages continue to be the subject of State suppression. I have attempted to make it clear that I refer only to marriage equality in this limited context here, and where I do not, it should be understood as a shorthand to refer only to legal recognition of marriages for queer couples.

Coming to the reading list, I have included readings which I am familiar with. I have not read all and of those I have, I do not support all views expressed by the authors. Instead, I have sought to provide reading material that reflects a diversity of opinions and ask that all of them be read critically. They are grouped together loosely into categories based on my understanding of the main substance of the piece. However, the pieces may and are likely to fall into multiple categories. I have also marked a few pieces I feel are especially worth reading with a little star at the start. All the pieces also happen to be in English, because this is the language I do most reading in. To overcome this, and any other omissions, or mistakes I’m happy to receive any feedback about the list by email (rajamane.mihir@gmail.com) or via social media. Without more preface, the list!

Testimony

Many of these include testimony by couples now petitioning the Delhi HC.

History and Ethnography

Gita Thadani is one of the petitioners in the first PIL at the Delhi High Court. Ruth Vanita’s work, along with Saleem Kidwai’s, has been foundational in locating queer love within Indian history and culture.

Judicial Opinions

While there has been no direct consideration by the Indian judiciary of marriage equality for queer couples before, these related cases are likely to be instrumental in arguments on the issue.

Some Foreign Jurisdictions

Legislation

The starred statutes are the ones that are being specifically challenged at the Delhi High Court. Parsi, Sikh, Muslim and Christian personal law has not been specifically challenged, though the petition by Zainab Patel seems to argue for a general recognition across the different legal systems.

Legal Analysis

A matter of controversy in this case that queer rights has not yet faced in the law is that marriage is primarily exercised under religious personal laws, which are separate for each religion, connected to custom and may have higher constitutional protections. Ruth Vanita and Akshat Agarwal particularly engage with this.

How, When and Why Marriage?

This section presents the key stakeholders supporting the petitions (Guruswamy, Katju and Kirpal are also lawyers on the case). The pieces under the testimony category by petitioners is also highly relevant. The petitions have been subject to critique on multiple grounds, including critiques of marriage as a casteist, patriarchal institution, of leadership within the movement and of priorities for the queer community, which these pieces cover.

Do get in touch if you have any issues with paywalls/inaccessibility, to figure out ways to get access.

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Mihir Rajamane

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