Saurabh Kirpal is expected to be the first openly gay judge in Delhi’s High Court. In a more perfect world, only his qualifications to be a judge would matter. That he is gay should only be incidental, neither something to celebrate nor to blame him for.
However, it is difficult to deny the suspicion that his appointment, pending since 2017, was a victim of his sexuality. It was postponed every year. The government has denied that the red flags have anything to do with its orientation. His concern is reportedly Kirpal’s Swiss partner, whom the Intelligence Bureau has called a “security risk.”
The irony is rich. The government that is now so concerned about Kirpal’s partner is the same government that otherwise strongly denies same-sex partners. He refuses to accept the idea of same-sex marriage and gives no recognition to same-sex partners. But as far as Kirpal is concerned, in the eyes of this same government, his partner has suddenly become another very important one.
At the end of this month, hearings on same-sex marriages will take place in the Delhi High Court. Some observers say India is lucky to already have a special marriage law that can bypass religion and could be a way to allow same-sex civil marriage. But the government has already made its position clear. He insisted that just because homosexual sex was decriminalized did not mean that homosexuality was legitimized. Thus, recognition of same-sex marriage was not on the table as far as the government was concerned.
But as the case of Kirpal’s partner proves, these lines are trickier to navigate than one might imagine. It was inevitable that the ball would not stop rolling in decriminalization just because the government drew a line in the sand. Homosexuals cannot come out of the shadows while leaving their relationships behind. It could be debated whether marriage should be the top priority of the movement and whether the idea of tying the benefits to marriage is out of date, but it’s only natural that LGBTQ people want the same rights as everyone else. If the right to choose a partner is part of the right to privacy, and if it is not criminal to choose a partner of the same sex, then why would that partner be denied public recognition? As Kirpal writes in the introduction to his anthology Sex and the Supreme Court, “Autonomy involves the right to choose and decide for oneself the course of one’s life. This freedom, however, is meaningless without the ability to act on it. When the United States Supreme Court heard the Defense of Marriage Act (DOMA) in court, Judge Sonia Sotomayor asked the defense attorney, “Outside of the context of marriage, can you think? on another rational basis, why a state uses sexual orientation as a factor in denying benefits to homosexuals? The lawyer admitted, “Your Honor, I cannot. I have nothing to offer you in this regard.
Currently, the marriage debate in India is caught up in symbols and rituals. Will Dabur give Karva Chauth a lesbian touch in an ad for skin whitening products? Can fashion designer Sabyasachi pair a mangalsutra with necklines and suggestive intimacy? Can Tanishq show a Muslim family hosting a traditional Hindu baby shower for their Hindu bahu?
But marriage is not just about bindis, mangalsutras and Karva Chauth. It’s not even about the right to have a big gay marriage (which is happening anyway). This is something much more basic. The pandemic lockdown has pushed this point home. Suddenly, an NRI married to an American same-sex partner realized that her longtime partner could not come to India anymore, no matter how urgent it was. In the eyes of the government, she was only a tourist and the country was closed to tourists. The rules were relaxed for OCIs (Overseas Citizen of India) whose spouses were Indian nationals but same-sex spouses were left out because their marriage was not recognized by the government. A same-sex couple can live together, raise a child together, care for an elderly parent together, but they are still strangers in law. Besides, they can even do Karva Chauth if they want to, but they can’t easily access things that other couples take for granted, like a joint bank account or a family health insurance plan.
Ultimately, progress is about those boring things. The first openly gay Delhi High Court judge is good news. It will be a point of inspiration for many. This is something to be congratulated on, but what LGBTQ Indians ultimately need are those pooled bank accounts, health insurance plans, shared child custody and hospital visitation rights.
Like all other couples.
The opinions expressed above are those of the author.
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