The Supreme Court’s Marriage Equality Judgment – IV: Between Gendered and Neutral Approaches – Untying the Bench’s Self-Made Knots [Guest Post]

[This is a guest post by Mihir Rajamane and Deeksha Viswanathan.]

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When the Supreme Court denied queer people the right to access the institution of marriage or its benefits in Supriyo v Union of India, it phrased the question as one of gender-neutral interpretation. In paragraphs 101-2 of the majority judgement, Bhat J says, ‘Gender neutral interpretation, much like many seemingly progressive aspirations, may not really be equitable at times and can result in women being exposed to unintended vulnerability’. This framing suggests a ‘conflict’ between a queer demand for gender neutrality and a feminist demand for gender protection. But does this actually reflect what feminists and queer people demand? We argue that it does not, challenging the ‘queer vs. feminist’ frame, and instead centring a ‘queer-feminist’ frame.

The Hearings

For an hour on Day 6 of the Arguments, Solicitor General Tushar Mehta illustrated precisely this ‘conflict’. For example, grounds for divorce are different for men and women, and provisions for domestic violence and sexual violence under the Domestic Violence Act and Indian Penal Code are also gendered. SG Mehta asked, and Bhat J echoes him, if the demand for marriage equality means that ‘man’ and ‘woman’ be replaced with ‘person’, then will these other laws lose their value and become unworkable? 

Pitching this as a conflict, however, is a rhetorical device which is incongruous with what queer people have actually asked of the Court. After hearing the concerns of the bench, counsel for the petitioners – particularly Senior Advocate Abhishek Manu Singhvi – clarified in distinct terms that they do not demand blanket gender-neutral interpretations: a balance can be struck between the need for gender neutrality and gendered laws. Here, we provide the theoretical framework for arriving at that balance, drawing on well-established constitutional concepts. Ultimately, we argue that the ‘conflict’ relied on to deny queer people marriage equality could have easily been resolved.

Equitable Gendered Measures for Gendered Social Realities

At the outset, we should remember that this ‘conflict’ is not new. When the 172^nd Law Commission Report recommended gender neutral sexual violence laws, feminist scholar Flavia Agnes raised an important intervention: there is little sociological concern in India of women perpetrating sexual violence against men. A gender-neutral rape law would risk obscuring the fact that rape is a crime that takes place in the context of a phallocentric, heteronormative and gender-oppressive society. Gender-neutrality could only lead to the State’s increased regulation of sex against the interest of women. Rather, Agnes recommended that the preferable path would be to enact separate sexual violence laws where specific social realities require them.

For example, rape under section 375 of the Indian Penal Code applies to a man who has non-consensual intercourse with a woman. The POCSO Act punishes rape by men and sexual assault by anyone against minor children regardless of gender. Section 377, on the other hand, applies in case of non-consensual intercourse between two men – though the language remains problematic. This allows for specific laws with specific rationale to target specific harms in our sociological ‘reality’ – as Agnes calls it.

This idea of ‘reality’ is an analysis of gendered relations in our society. Our social norms allow for, or even encourage, men to engage in violence against women, restrict women’s financial freedom and social autonomy. This means that when a law is being made, we cannot pretend that men and women are equal. Our Constitution, as interpreted by the courts, explicitly recognises this inequality. Substantive equality under the Constitution requires us to acknowledge existing inequalities and recognise that the law can correct them through positive action. Sometimes termed positive discrimination or affirmative action, this has been held by various constitution benches to be a core facet of the Equality Code as well as one of the Constitution’s basic values. Prominently, Article 15(3) makes it clear that ‘special provisions’ can be made for women: this provision has allowed, for example, the introduction of special welfare schemes for women. Now, the Constitution also provides for reservations for women in the national and state legislatures and local governments. This allows for the gendered lack of representation to be fixed by the law providing gender-specific measures for equality.

This is also supplemented by the development of jurisprudence on indirect discrimination, explicitly upheld in Nitisha v Union of India. There, the army applied the same cut-off for marks for both men and women to decide who would receive permanent commission. However, because women were not allowed to receive permanent commission until 2020, their performance evaluations were not as comprehensive and so they received lower marks. Further, the physical examination was based on average standards set for men. The Court held that the historic and structural discrimination faced by women meant that even though the cut-off was ‘equal’ in theory, it was discriminatory in effect. It is clear, therefore, and we do not dispute, that gendered laws are often necessary to ensure true equality in the context of social ‘reality’ (as Agnes would call it).

The Risk of Gendered Legal Measures Reinforcing Harmful Stereotypes

The above idea of ‘special provisions’, however, can often be invoked to harm the interests of women and gender minorities. Since we live in a deeply gendered society, where gender norms can be an ‘excuse’ to differentiate, the law can often use those same excuses to claim that ‘special’ differentiation is justified. This point was realised by the Court in a well-known series of cases. In Nergesh Meerza, a national airline policy required forced retirement for women cabin crew at age 35, their first pregnancy, or if they married within the first 4 years of obtaining employment. The Supreme Court struck down the pregnancy clause but upheld the other two. They reasoned that there are ‘special’ considerations for women such as the likelihood that they need to raise a family, which justify forced retirement following marriage, or at an earlier age than men.

This judgement came under fierce criticism from feminists, as it drew on the critique of ‘separate spheres’ of domesticity for women and public life for men. These were stereotypes that reinforced the gender hierarchy and were not the ‘natural’ way for us to live. The Court began to adopt this critique through a more critical approach under the ‘anti-stereotyping principle’. In Anuj Garg, the Court held that the prohibition on women working at liquor establishments was based on a stereotype that prevented women from accessing employment.  Similarly, in the Bar Dancers I case, the Court stressed that the distinctions made therein to prohibit bar dancers in non-elite establishments were ‘myths’ that amounted to stereotypes.

This anti-stereotyping principle was then explicitly expressed and expanded by Chandrachud J (as he then was) in Navtej Johar, connecting it to sexual orientation and gender identity. It has since been applied in a range of cases, including the prominent example of allowing women to attain permanent commission in the army and navy in Babita Puniya and Annie Nagaraja. A particularly instructive example is Joseph Shine which criminalised the act of sexual intercourse between a man and a wife of another man. Ostensibly to ‘protect’ women and the institution of marriage, the provision assumed women do not have equal sexual autonomy with men. These cases show us that gendered provisions do not always undo harmful the effect of harmful stereotypes but can, and often do, perpetuate them. Gendered provisions, therefore, need to be critically evaluated for what it is trying to achieve and what its impact will be.

Critical Gender Awareness: A Queer-Feminist Framing

Neither gender neutrality nor gendered provisions provide the solution to gender hierarchies. Instead, we advocate an approach of ‘critical gender awareness’. It requires us to understand what role gender is playing at a social level and in the justification of any law: is it a reason for the law based on stereotype? Is it to correct past injustice? Will it permit for greater autonomy for women? This encompasses an approach that doesn’t privilege either neutrality or ‘protection’, but the actual effect on the freedoms of women and gender minorities.

Let us return to the Marriage Equality verdict. The demand for gender neutrality made by the petitioners, as Singhvi clarified, was not absolute. In fact, part of the reason for focusing only on the Special Marriage Act was so that petitioners would only have to argue gender neutrality on a single issue: for the provisions to access marriage. Chandrachud CJI noted 3 areas in which the State regulates marriage: accessing marriage, the relationship between the married couple and the consequences of a breakdown. Gender, because of the persistent power of the ‘separate spheres’ phenomenon plays an important role within a marital relationship and in cases of breakdown. However, gender plays no part in who should access a marriage. This is with the exception of the different minimum age of consent for marriage, arguably also constitutionally suspect. In fact, gendering access would play into exactly the stereotypes that limit the autonomy of women and gender minorities.

Nonetheless, this leads to the question of how the gender-specific provisions governing marital relationships and cases of breakdown will be implemented. While that raises a separate issue of workability that we do not claim to resolve, the lis was to access marriage. In our opinion, the Court can rule on that without having to resolve the consequential matters immediately. It did so by recognising the ‘institution’ of a ‘third gender’ (though the term is critiqued and contested) in NALSA, and it has frequently found rights in cases like Unnikrishnan which then had to be given substance and implemented by other State organs.

The rhetoric of conflict is especially troubling in the context of the history of the queer movement which has always usually appended itself to feminist, as queer-feminist. Queer liberation as an intellectual and political movement has always gone hand in hand with the radical rethinking of society which feminists undertook. This is not in the least because queer issues are feminist issues, in the sense that the logic of patriarchy is a fundamentally cis-heteronormative one: that is, as mentioned above, in cases like NALSA, Navtej Johar, Annie Nagaraja and even in Chandrachud CJI’s opinion in Supriyo, the Court made this connection when interpreting ‘sex’ to include ‘sexual orientation’ and ‘gender identity’. This is because any discrimination against queer people is discrimination on the basis of their sex: because there are freedom-limiting stereotypes that assume a certain sex assigned at birth maps on to a certain gender identity, gender express or gender orientation. In this sense, ‘queer-feminist’ is a natural phrasing because the analytical framework remains consistent.

‘Critical gender awareness’, with a particular attention to the fluidity and plurality of gender and sexuality, is precisely what the queer demand is. This is best exemplified in India by the demand for reservations for transgender people, which was recognised in NALSA. This is a queer(–feminist) demand, not for gender neutrality, but for a special gendered provision that recognisesthe extant oppression of transgender people and to enact positive laws on the basis of that distinction. This can also be seen in the queer demand for sexual assault against non-binary transgender persons and transgender men to be proportionately punished. Currently, it is only covered by a two-year sentence under the Trans Act. Similarly, there is a queer demand that the new criminal code does not repeal s 377 completely but to replace it with a provision that uses better language to criminalise non-consensual male homosexual assault.

This means that the answer to the consequences of recognising queer marriages is not easy. It cannot be. Queer marriages will, because of the radically different nature of the gendered relationship there, be very different. Thus, the contours of regulation would also require us to adopt a lens of critical gender awareness. However, it is vital that we do not frame that complex conversation as a ‘conflict’ between queer and feminist demands, such a ‘conflict’ undoes not only the advances of the queer-feminist movement, but the jurisprudence of the Court itself.