The objections towards the same-sex marriage case currently being heard before the Supreme Court are reminiscent of the traditional conservative arguments that are proffered against any substantive change, usefully categorised under three headings by the famous economist Albert Hirschman in his study “The Rhetoric of Reaction”. These are the Perversity Thesis, the Jeopardy Thesis and the Futility Thesis. The Perversity Thesis argues that any attempt to enact reform will only worsen conditions contrary to what was intended; the Jeopardy Theses argues that the social cost of any such action is too high and will endanger previous precious accomplishments and the Futility thesis argues that any such attempt will simply fail to make a dent in terms of any concrete social transformation.
Two of these theses are useful in examining arguments that are being advanced in opposition to the legalisation of same-sex marriage. The Jeopardy Thesis variant holds that the social costs of such a reform will endanger social stability by undermining the very institution of marriage itself. This will have implications in terms of creating social disturbances and affecting the fabric of social stability, especially seen through the lens of a heteronormative nuclear family, of which marriage is a key pillar. Both marriage and the traditional family in this rhetoric will be negatively affected deeply negatively, if not fatally so, by such a move. The problem embedded in this rhetoric is that it woefully discounts the costs and benefits in an inaccurate myopic manner by exaggerating the former and minimising the latter. As advocates of legalisation have pointed out; such rhetoric has always been deployed in a range of cases regarding social reform from Ram Mohan Roy’s campaign against sati, Vidyasagar’s in favour of widow remarriage in the colonial period to Ambedkar’s attempt to pass the Hindu Code Bill post-independence, enshrining a range of rights for women from divorce to inheritance. In all of these cases, the spectre of the destruction of religion, culture, social stability etc. were raised as objections to the reforms being carried out and in all such cases such fears were not only proven to be unfounded but the considerable social benefits of change are today regarded as significant landmarks in achieving considerable social progress.
A combination of the Perversity and Futility theses is advanced in the second set of objections raised against legalisation. It is said that the demand for legalising same-sex marriage is a demand only of the urban middle classes, that it has no relevance outside this narrow circle, that there is no genuine demand or need for it in society at large beyond this group and that it is a discourse imported from the West and thereby both alien and unwelcome to Indian soil. Disregarding the autarkic, stilted appeal to an imagined indigenist cultural purity; the reductionism implicit in such arguments is clear, making a claim that the working classes, the rural and marginalised sections of society somehow do not have an interest in such a demand and that it is of little concern to them. Not only does this overlook the intersectionality of identity; that queer people are not only found in the urbane drawing rooms of metropolitan India; but are also there in the small towns and villages and come from all sections and classes of society. Sexual identity cannot be reduced to class identity.
It also crucially ignores how such rights are advocated for and their trajectory over time. Very often those pushing for such rights, will come from the relatively secure and privileged classes; as it cannot always be the poor and the marginalised, who often don’t have the same levels of social capital and for whom the dull compulsion of economic relations doesn’t allow the same freedom of manoeuvre. It is from those, who share the same interest, and being in a stronger socio-economic position, who can speak from a vantage point that can make their voices heard, on behalf of their weaker brethren.
Moreover, how these rights expand over time follows a certain flight-path; the French political philosopher Etienne Balibar coined the term “egaliberte”, a somewhat baroque portmanteau of the revolutionary virtues of Equality and Liberty encapsulated in the Declaration of the Rights of Man accompanying the French Revolution. A key part of Balibar’s argument that both Liberty and Equality advance together and that they contain an absolute indeterminacy; which is a discrepancy between the abstract and universal claims made for freedom and equality on the one hand and the specific contextual circumstances that give rise to them on the other. This yields a pervasive subversive element to such demands; so that universal rights with a narrow reference to particular dominant powerful groups, such as propertied white men; proved capable of wide extension to later include through political struggle to more marginalised ones such as: women, workers, colonial subjects, oppressed nationalities, sexual minorities and disabled people, who emerged from such struggles to lay stake to their claim for equality and freedom. The very generality and universality of claims for egaliberte puts it in constant conflict with the specific historical conditions that prevail at the time. Once such a demand has been made, no institution or practice can claim justification by appealing to tradition or divine sanction alone.
Therefore, the demand for legalisation of same-sex marriage must be supported as a question of justice, freedom and equality. Justice because no one group can be deprived of a right simply on the basis of their sexuality alone. Equality, because as marriage is a social institution through which the state as the arbiter of such things organises and structures society as well as defines it and excluding groups based on their sexuality, marks them out as lesser citizens and their relationships as being of lesser worth. Freedom because the role of good laws must be to expand the enjoyment of rights, not restrict them, with the proviso of course that no greater harm is being done.
Lastly, it speaks as a comment to the kind of society we want to be and want to become. One where the rights of the few cannot be suppressed solely for the comfort of the many. The Supreme Court, when decriminalising homosexual sex, eloquently echoed Ambedkar’s wish for a constitutional morality to supersede public morality; as the basic political unit is the citizen, not the village; and the individual as citizen must be freed from the dead hand of tradition to be able to enjoy a fulfilling life on their own terms, in all key respects within a political community that not only allows this but also celebrates it.
Conrad Barwa is a senior research analyst at a private think-tank, and a senior research associate at the Birmingham Business School
