Same-Sex Marriage: It’s Not Just About Dignity But Also Rights, Says Guruswamy

Today, on 18 April, the Supreme Court started hearing same-sex marriage petitions. The court is hearing the case after the government opposed legalising same-sex marriage for the second time. In the first half of the hearing, senior Advocate Menaka Guruswamy's arguments reflected that same-sex marriage is not about dignity but the benefits and security marriage provides. She pointed out how society denies rights to the LGBTQIA+ community and marriage can help retain that.

Guruswamy made an argument addressing that marriage is not just about being legally bound but is about the benefits that come along with it. If same-sex marriage is recognised then it will start with the insurance company, banks, hospitals, wills, estate duties, with anything that is a prerequisite to be able to live a life outside a home, including buying that home. She says marriage can provide little security to queer couples, who are vulnerable and be the path to avail the rights which are usually denied.

Further Guruswamy added,

"We say marriage. Because that is the notion that the legal framework which is premised on common law understands and takes within its fold. I am not able to nominate my partner for life insurance. These are not theoretical issues. This is our life. We will keep coming back to court to litigate individual issues of discrimination."

Guruswamy pointed out that In Indian law, most rights flow from this notion of blood relationships, i.e. either being born into a family or being married. That is the problem. This is the reality of how rights are exercised. Rights are exercised when you're able to protect your relationships. One facet of that right is the constitutional value of dignity, equality, and fraternity. The other facet is the day-to-day business of life. Marriage is not only a question of dignity. It is also a bouquet of rights that LGBTQ people are being denied post-Johar. Bank account, life insurance, medical insurance- I cannot buy SCBA medical insurance. Guruswamy mentioned instances where she was denied access to basic rights, by this she tried to imply that marriage is important not just for dignity but enter into the system of rights provided by society.

It is fascinating to see how our society is guided by the institution of marriage. Marriage provides security and a safety net, in which queer community is filtered out. A day before, the Centre made an argument in its appeal that when live-in relationships are legalised, why legalisation of same-sex marriage is needed? Marriage is important as Guruswamy says because amenities are linked with marriage. That is how the system works. Also, if live-in relationships had all the benefits that a marriage share, isn't it would have been easy for even straight people to stay in one instead of marriage?

Senior Advocate AM Singhvi made a very interesting argument that-

"There is LGBTQIA++. This "++" has a whole spectrum of hues and colours. Now if your lordships were to hold same-person marriage, your lordships don't mean to limit to the same sex. So the correct formulation should be 2 consenting adults along the bodily gender & sex spectrum. Further added, There are two crucial words here- marriage and persons. Same-sex is a slight misnomer. The correct word is persons."

The arguments of Singhvi and Guruswamy emphasize that this is not solely about gender or dignity. But is about every person irrespective of sexual orientation, who deserves to exercise all the rights, and the way of getting is marriage, so be it. Instead of segregating marriages on the basis of gender or sexual orientation, can it be subjective, from person to person? If same-sex marriages are recognised will it really harm society? Disturbed the institution of marriage which runs the society, or inclusivity will help the LGBTQIA++ community with better representation in society, and avail the rights which were long denied. Court needs t figure out what is more important to save the so-called honour of marriage institution or provide the community with dignity and security.

Suggested Reading: Who is Hima Kohli? One Of Five SC Judges Hearing Same-Sex Marriage Petition