“What was there to say?… Only that once again they broke the Love Laws. That lay down who should be loved. And how. And how much.”

– Arundhati Roy, The God of Small Things

The laws have been rewritten. At least for the queer community. At least in some measure.

In the landmark Supreme Court Judgement [2], Section 377 of the IPC has been read down and consensual sexual acts between adults have been decriminalised. Right to privacy being a Fundamental Right, the Supreme Court has upheld bodily autonomy and sexual orientation as fundamental rights and re-affirmed that societal stereotypes cannot be the basis of suppression of individual liberties and freedoms.

The judgement is said to have unshackled the human instinct to love, yet it is “just a step”. Just a step, for sexual minorities, and for society as a whole. Because change is one thing, its acceptance by society, another.

Personal choice, society and law

Not very long ago, in early 2018, Arundhathi, 25 years of age, a transgender woman assigned male at birth, exercised her personal choice of coming out as a woman. Distraught by Arundhati’s assertion, the mother filed a Habeas Corpus petition in the Kerala High Court. Arundhati had to undergo medical and psychological tests, before the court pronounced her free to make her own choices.

Given this background, the questions that I seek to explore are: Love, sex, sexuality and marriage being matters of personal choice, to what extent do society and law have a stake in imposing restrictions on such choices? And, what can be the possible reasonable grounds for such restrictions? Finally, are we moving in the right direction in this context? This article seeks to ask more questions than answer them.

When Akhila Ashokan, a 24-year-old homeopathy student converted to Islam, renamed herself Hadiya and married Shafin Jahan, her father approached the Kerala High Court with a Habeas Corpus, alleging that his daughter had been a victim of radicalisation, indoctrination and trafficking. The Kerala High Court not only annulled the marriage but directed that Hadiya live under house arrest in her college in the custody of the Dean.

The effective imprisonment lasted 9-10 months for her until the Supreme Court passed a judgement in her case. “Can a court say a marriage is not genuine or whether the relationship is not genuine? Can a court say she [Hadiya] did not marry the right person? She came to us and told us that she married of her own accord,” Justice D.Y. Chandrachud observed. From the beginning, she consistently maintained that she married with her consent and that she wants to live with her husband.

Would things have happened differently, if Hadiya had been a man?

What do the innumerable cases of ‘Honour Crimes’ point to? Crimes against adults marrying not so ‘appropriate’ partners and without the family’s consent. Adults breaking the love laws, and being abducted, beaten up and killed by family members for doing so. More often than not, by the family members of the woman in question.

According to an EPW study, “Although the legal system formally defends the rights of individuals as to who they want to live with or marry, it does pose various impediments in the path of those who choose against the will of their parents or the dictates of society. The abuse of process by parents and even third parties goes unpunished by the legal system, only creating new hurdles in the free exercise of the individual’s rights.”

But are legal systems always designed to defend a consensual relationship between adults?

An ‘internal circular’ from the office of the Inspector General of Registration, Tamil Nadu, dated September 28, 2017, makes it mandatory to produce original documents of parents, dead or alive. In effect, this amounts to introducing parental consent “by stealth”, before registration of Hindu marriages between legally eligible brides and grooms.

How about adultery – a married woman engaging in a sexual relationship outside of her marriage? Under the erstwhile Adultery Law, section 497 of IPC, the husband of the woman in question, could alone bring about charges of adultery, and only against the adulterous man, even though it was a consensual relationship between an adult man and an adult woman. In September 2018, the Supreme Court pronounced section 497 of the Indian Penal Code as unconstitutional, saying that, “while adultery could be a ground for civil issues, including dissolution of marriage, it could not be a criminal offence”. The Central Government had defended section 497 as being important for safeguarding the institution of marriage, hence important for the “Collective Good”, basing its arguments on assumptions of morality, amongst other things.

The binary that matters

The larger question that needs to be answered is not whether it is good or bad sex, moral or immoral sex, natural or unnatural sex, reproductive or non-reproductive sex, romantic or recreational sex, within caste or inter-caste sex; but, whether it is consensual or non-consensual sex. While the former are shaped by cultural and social norms and we may continue to debate what is right from wrong; the latter is crucial for the wellbeing and safety of all concerned.

According to Explanation 2 of Section 375 of the Indian Penal Code:“Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act.Provided that a woman who does not physically resist to [sic] the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.”

In the case of rape of a US scholar Christine Marrewa Karwoski by Mahmood Farooqui, the conviction by the trial court was overturned by the Delhi High Court and the accused was exonerated on the following grounds: “It remains in doubt as to whether such an incident, as has been narrated by the complainant, took place and if at all it had taken place, it was without her will/consent, and if it was without her consent, whether Farooqui could discern/understand the same”. The court also added, “Instances of woman behaviour are not unknown that a feeble ‘no’ may mean a ‘yes’.”

Does a “feeble ‘no’” not stand the test of not being ‘unequivocal voluntary agreement’?

In any intimate relationship involving two partners, what is paramount is the consent of both partners.But when applied to diverse contexts, cultures and times, consent may be a very nuanced concept that needs to be understood and interpreted carefully and cautiously, particularly by the practitioners of law.

Sexual acts between a husband and his wife without her consent does not amount to rape in the eyes of the law, even when accompanied with use of force. This is so, despite the recommendation of the Justice Verma Committee to make marital rape an offence. Is it a legal blindspot or is it important for protecting the institution of marriage and hence the “Collective Good”?

Consent is about power or lack of it. And when deciphering consent, can the law turn a blind eye to the intersectionalities of age, gender, sexuality, caste, class, nationality and so on?

Gender-based violence

Human beings have more similarities than differences based on sex and gender. Yet, sex and gender play a disproportionately significant role in determining one’s choices of clothes, interests, education, profession and practically one’s course of life. And most unfortunately, the benign variations in sex and gender form the basis for gender-based violence, which is prevalent in various forms.

The Criminal Law Amendment Act (CLA) of 2013 gave legal protection to the women of this country from gender-based violence, like acid attacks, voyeurism, disrobing, stalking, rape, gang rape, rape by husband after separation. Many of these forms of gender-based violence were hitherto unrecognised by law.

Unfortunately these legal protections are not available to those from the LGBTQIA community who are not located strictly on the female side of the typical sex or gender binary, though they clearly are victims of gender-based violence in much the same way.

A Karnataka-based study of 2012 found that men who have sex with men and transgender individuals are highly vulnerable to sexual violence and are unable to report the same due to the social stigma attached to men acknowledging being victims of sexual violence.

Protection against non-consensual sexual intimacies is a natural corollary to the freedom of consensual sexual intimacies between adults. The protection of the queer community from gender-based violence may be another legal blind spot.

So, yes, it is “just a step”. If sexual minorities are to exercise bodily autonomy and sexual orientation as fundamental rights, laws need to written, rewritten and read down, even if one step at a time.

And with each step the social structures, families and parents need to become accepting of diversities and foster inclusion. In these times of social churning and transition, the onus is on each one of us to go beyond “just being who we are”, to become who we can be. And to quote Justice D.Y. Chandrachud in the Supreme Court judgement on Section 377 IPC, “We must, as a society, ask searching questions to the forms and symbols of injustice. Unless we do that, we risk becoming the cause and not just the inheritors of an unjust society”.