2. The constitutional case for rethinking family

The Supreme Court’s decision in Navtej Johar now constitutionally guarantees an autonomous zone of privacy for “organisation of intimate relations”Footnote ²⁷ between consenting adults—interference in which has been held to be beyond any legitimate state purpose.Footnote ²⁸ Though the issue before the bench in Navtej was the decriminalization of homosexual conduct, restricting its application to only sexual intimacy would defeat the point of its jurisprudence. In fact, categorizing intimacies into sexual or non-sexual for the purposes of this restricted application would itself require the state to inquire into the sexual relations (or lack thereof) by getting inside what the court has guaranteed as an autonomous zone of intimacy. This very inquiry into the presence of sexual relations is rendered unconstitutionally intrusive even if Navtej is understood narrowly. Thus, unrestrictedly understanding Navtej’s autonomous zone of privacy as encompassing all consensual intimacies between adults, sexual or otherwise, is the only logically consistent way to read the jurisprudence of Navtej. This inference is only strengthened further upon a close reading of the text of Navtej, and its emphasis on “love,” as opposed to only sexual autonomy, being the core of the question at hand.Footnote ²⁹ The “order of nature” that criminalized homosexuality was explicitly recognized as being not simply about sex, but about the limits on love placed by social structures generally.Footnote ³⁰

Minimally, for instance, this autonomous zone of privacy means that the 2019 Trans Act’s compelling of hijra individuals neglected by their natal family to live in state-run rehabilitation centres—thereby barring many of them from their chosen commune families—is now unconstitutional. However, to be meaningful, autonomy must mean something more than mere absence of compulsion.

Consider a case in which the state permits all forms of intimacies but privileges a few specific forms (marriage/biological kinship/adoption) by exclusively providing them with legal benefits, or even just symbolic state recognition. Here, citizens’ intimate choices, even if not compelled by, are still not autonomous of state interference—with the state institutionalizing preference for these privileged forms, like marriage, without really barring other forms, like live-in relationships. This privileging of relationships like marriage or biological kin by the state—considered almost natural and inevitable—is not just an artificial construct, but also runs afoul of the autonomous zone established in Navtej.

This broad understanding of autonomy is not new or radical—it is already present in the way we understand religious autonomy.Footnote ³¹ A state that permits the practice of all religions but endorses or incentivizes one (expressly or otherwise) is typically understood as infringing religious autonomy. In India, this is reflected in the Constituent Assembly Debates around religious freedom (even if not consistently in subsequent practiceFootnote ³²)—Pandit Lakshmi Kant Maitra stated that the state may not “establish, patronize, or endow any particular religion to the exclusion of or in preference to others” (emphasis added).Footnote ³³ This idea of religious autonomy as meaning something beyond mere tolerance of non-majoritarian beliefs has been affirmed by the Supreme Court. In Ziyauddin Bukhari,Footnote ³⁴ the court held that impartiality in extending equal benefits to citizens of all creeds was an essential element of secularism, which prohibits imposition of disabilities on a person on account of their religious belief. In Bommai,Footnote ³⁵ the court stated that constitutional provisions “prevent the State (sic) either identifying itself with or favouring any particular religion or religious sect or denomination …. The State is enjoined to accord equal treatment to all religions and religious sects and denominations.”Footnote ³⁶

In other words, Constitution-makers and interpreters have understood autonomy from state interference to mean something more than mere state tolerance of one’s religious choices—by considering relative equality of recognition and treatment to be an important facet of autonomy.Footnote ³⁷ Now that intimate choices have been recognized within a similar zone of constitutionally protected autonomy, there is no reason why autonomy in intimate pursuits should be construed in a narrower sense than autonomy in religious pursuits. Indeed, the Supreme Court itself has made this comparison in Shafin Jahan,Footnote ³⁸ stating that “[c]hoices of faith and belief as indeed choices in matters of marriage lie within an area where individual autonomy is supreme.”Footnote ³⁹ While the court refers only to autonomy in marriage, as that was the issue before it in Shafin Jahan, the underlying analogy it draws between choices of faith and of intimacies is notable. Thus, in intimacy, as much as in religion, autonomy cannot just mean state tolerance of one’s chosen form of love—it must extend to equal recognition and treatment of all forms of intimacies. In other words, it is not enough to simply allow persons to live in hijra communes instead of in state rehabilitation centres in cases in which the natal families are negligent. Rather, the Constitution would demand that their biological families and chosen families in hijra communes be treated on an equal par—as an integral condition to achieving true autonomy from state interference. This view, that equality of treatment is an integral component of true liberty is further affirmed by the Supreme Court’s decision in Menaka Gandhi. Footnote ⁴⁰ In recognizing the inherent inter-connectedness of Articles 14, 19, and 21,Footnote ⁴¹ it has long since established both negative freedoms as well as a right to be equally treated as crucial constituents of autonomy and liberty.

However, my argument that the intimate autonomy talked of in Navtej must be construed as broadly as religious autonomy is not merely an argument drawing an analogy between two independent constitutional freedoms and their contents. While that is true as argued above, I also take it further. I argue that autonomy in arranging one’s intimate relationships free of state-sanctioned preferences is an important facet of religious autonomy itself.

This is because the normativity of some intimate arrangements is itself produced by specific religious norms defining some family forms as legitimate or moral. In India, the production of this normativity was mediated by Christian-colonial administrative logic. British administrators, in their efforts to understand and administer personal law in the subcontinent, relied on religious scriptures and superimposed them on local customs and non-textual traditions.Footnote ⁴² This process, naturally, legitimized family forms endorsed by specific religious texts—and destroyed other forms. For example, Anglo-Hindu law drew from religious scriptures like Mitakshara that lauded the joint-agnatic family and constructed it as an “ideal” family formFootnote ⁴³ that continues to enjoy a state-sanctioned position of privilege today. One need only to look at the preferential tax treatment offered to this joint-agnatic family form, known today as the Hindu Undivided Family (HUF),Footnote ⁴⁴ to illustrate this privilege. It is easy to assume, given the way “families” are popularly and legally constructed, that this joint-agnatic form was largely unchanging across time/space/subcommunities—with deviations, if any, being few and far between. However, that this seems plausible only speaks to the success of the religious-cultural imposition of family norms—at the cost of a diversity of forms that customarily existed.

One such form prevalent in the Nair community in Kerala was a system of matrilineal family formation called marumakkathayam Footnote ⁴⁵ and the sambandham form of conjugality that accompanied it.Footnote ⁴⁶ Sambandham involved conjugal relations between a man and a woman who continued to live with their respective birth families—with any children often being raised by the mother’s family alone.Footnote ⁴⁷ Variations of this practice allowed women to maintain sambandham with multiple men.Footnote ⁴⁸ Sambandham served to strengthen the matrilineal logic of marumakkathayam, while also decentring the conjugal couple from family formation—in contrast to the central role of the couple in the conventional family. Eventually, however, the colonial administration, influenced by their own Christian-patrilineal worldview and Hindu Brahmanical texts that they assumed to be uniformly prescriptive across subcommunities, chipped away at this system. Sambandham marriages were delegitimized, and so the matrilineal family unit following the marumakkathayam system, called a taravad, was weakened—giving way to patrilineal succession and patrilocal, monogamous family formations with the conjugal couple at the centre.Footnote ⁴⁹

Just like marumakkathayam matriliny among Nairs was attacked as “un-Hindu;” the same practice among Mappila Muslims was attacked as “un-Islamic”—supported by the same colonial emphasis on scriptures over other local religious/cultural customs.Footnote ⁵⁰ A similar fate befell the matrilineal, matrifocal families of devadasis. Footnote ⁵¹ Colonial laws reduced the land grants devadasis received for their temple services to what were called “women’s estates”—a form of limited ownership in which the land reverted to the patron’s, and not the devadasi’s, heirs after her death. This change in property relations fundamentally changed a devadasi household, gradually leading to a move away from its matrifocality and matrilineality. Aimed at breaking the institution of devadasis itself, driven by the fact that devadasi conjugality was seen as morally corrupt, these laws were demanded by a curious combination of nationalist forces, colonial administration, and the Self-Respect Movement (a social movement in Southern India for the empowerment of backward castes, which most devadasis belonged to). The interest of the nationalist and anti-caste forces in bringing down the devadasi institution came from a conflation of “respectable” or “progressive” conjugality with Brahmanical monogamous conjugality. Thus, imposing this latter form on the devadasi women by curtailing their property rights became a route to both caste social mobility as well as crafting a modern national identity.Footnote ⁵²

Thus, it is clear that the “natural” family today is only the result of deep religious/cultural/caste contestations—resulting in a consistent state preference for specific religious (often textual) traditions over others. However, this is only the first site at which religious discourse influences family formation. There is a second, more subtle, site that goes often unnoticed. Examining this site would reveal that the very choice—of textual religious traditions over customary ones—was itself influenced by protestant-theological presuppositions about what really constitutes valid religion.Footnote ⁵³ Thus, the privileging of specific strains of Hindu/Islamic religious practices that formed the ideal Indian family was itself mediated by Western-Christian theology, and its preference for canonical texts—making the construction of this ideal family doubly enmeshed with religion.

A preference for the written word of God, however, was not the only imperial-Christian assumption that spilled over to the Anglo-Hindu legal construction of family. British administrators also imported a specifically Christian understanding of the boundaries between the secular and the sacred—perceiving “families” to belong exclusively to the secular world, and thus assuming ascetic orders to be devoid of familial/sexual attachments and domestic lives. In fact, however, ascetic maths (monasteries) in colonial India had rich family lives, with attachments connecting gurus and chelas in varying forms of biological/adopted kinship, and several women from across religions/castes who served as companions and mentors and as managers of math property and life.Footnote ⁵⁴ For example, colonial records show that an ascetic named Saraswati Gir, upon his death, left a large portion of math property to the companion (not wife) of his guru. Footnote ⁵⁵ Similarly, in another case, a guru declared his companion to be his wife, and her son as his son—she went on to claim succession to math property through bairagi custom, instead of Hindu succession law.Footnote ⁵⁶ However, these familial relationships, existing outside the domain of secular and heteronormative-patrilineal structures, eluded legibility in Anglo-Hindu law. The law drew a clear binary between secular and ascetic succession—understanding the former in family ties and the latter as only spiritual descent from guru to chela. This legal fiction then compelled and allowed a rescripting of the genealogies of maths to reflect an untouched linear guru-chela line of descent—expunged of ascetic sexuality, domestic life, and of the women who were a part of these.Footnote ⁵⁷ The women, already often coming from backgrounds that marginalized them in the secular world, now found themselves legally invisibilized in the sacred one they made their homes in and shaped. Sexuality and family, inextricably linked to the secular realm in the colonial-Christian gaze, made ascetic families illegible to Anglo-Hindu law. This illegibility, as always, transformed to illegitimacy, reflected in the later nationalist push for “purifying” maths of the sexual corruption symbolized by gosain women—eventually completely marginalizing these family forms.Footnote ⁵⁸

This imperialist-theological influence on family formation continues even today. Emerging in the twentieth century, the theo-political pro-family movement in the US has made global inroads in promoting the nuclear family—with the heterosexual, child-bearing couple at the topFootnote ⁵⁹—as “God’s design.”Footnote ⁶⁰ The increasing discursive acceptance by the Indian state of this model, centred on gendered roles and sexuality,Footnote ⁶¹ is illustrated best by the familiar ring of India’s family planning slogan—“hum do, humare do”Footnote ⁶²—intended to mean “two children for two parents.”

It is clear thus that intimate autonomy free of preferences institutionalized or prohibitions imposed by the state is an integral part of religious autonomy. This is because the construction of “family” itself, in colonial and post-colonial India, has been mired in multiple layers of religious influence and contestations. It is, then, only an inevitable conclusion that a secular state may not preferentially incentivize, let alone impose, what are non-secularly derived normative family structures.

The above discussion clearly establishes that the Constitution binds the state to not only permit all consensual intimacies, but also to treat them equally inter se—that is, with relative equality. Now, logically, there are two routes that would seem to equally satisfy this obligation—either the state could grant equal recognition and benefits to all consensual intimacies; or it could simply equally derecognize all intimate arrangements, including the traditionally dominant ones. I will now discuss the implications of the latter route in some detail.

3. The constitutional inadequacy of derecognition

Derecognition effectively advocates for reducing all families to consensually created, privately negotiated arrangements of rights/duties, which the state would only enforce as contracts, and not constitute as status.Footnote ⁶³ This “contractarian view” is undeniably powerful—most importantly because it challenges the assumption that it is the state’s prerogative to name and constitute (and by implication, exclude from) “families.” Its strength also comes from the recognition that legibility in the eyes of the state often comes with a de-radicalizing potential.Footnote ⁶⁴ It is arguable that the entrenched heteronormativity of power structures, and the categorization into neat boxes that legal legibility often demands may domesticate alternative family forms to fit into a ready-made “heteronormative-like” mould, all the while reading out of the law the radical fluidity and choice that presently mark these alternative formsFootnote ⁶⁵ and that empower these forms to really transform the way “family” is done. This fear is, of course, not unfounded. The above discussed transformation of matrilineal and ascetic family forms to fit into the Christo-heteronormative moulds of colonial administrative logicFootnote ⁶⁶ stands as testimony to the violence that legal legibility can wreak on non-conventional practices.

However, while it is crucial to acknowledge this potential for violence when the state gets into the business of “recognizing” families—complete derecognition does not offer a satisfactory solution, for reasons I have outlined in the two parts below.

4. Laying the theoretical groundwork: public ethic of care

While the Supreme Court (SC)’s judgment in Navtej firmly established the right to an autonomous zone of privacy in intimate relations, the theoretical basis for this decision is captured in what have come to be known as the Puttaswamy cases. In Puttaswamy-I,Footnote ⁹³ a nine-judge bench of the Supreme Court conclusively held that the right to life and liberty under Article 21 of the Indian Constitution encapsulates the right to privacy. In Puttaswamy-II,Footnote ⁹⁴ the court had further opportunity to flesh out the contours of this right, while dealing with a constitutionality challenge against India’s biometric ID system. Over the course of these decisions, the court authoritatively laid down the scope of the right to privacy and the conditions that may permit its restriction by expounding the doctrine of proportionality.

Every instance of legal recognition of family inherently requires state entry into and examination of a zone of privacy, and therefore is always a restriction of some measure of privacy. The proportionality test laid down in Puttaswamy-I, as formulated in the opinions of Chandrachud J. and Kaul J., offers a useful framework for understanding the manner in which such restrictions on privacy may be made. Between the two opinions, the following conditions may be culled out for any law limiting the right to privacy to satisfy to be constitutional. First, it must enjoy legislative sanction. Second, it must further a legitimate state interest. Third, it must be proportionate to the purpose of the law.Footnote ⁹⁵ Fourth, the limitation must be necessary for achieving a legitimate aim.Footnote ⁹⁶ Though this was added by Kaul J. in his concurring opinion in Puttaswamy-I, the majority opinion in Puttaswamy-II adopted and further clarified this condition to mean that there must not be any less restrictive but equally effective alternative to achieving the same aim.Footnote ⁹⁷ Finally, fifth, there must be procedural guarantees against abuse of such interference.Footnote ⁹⁸

Of these, the trifecta of legitimate aim, necessity, and proportionality are of greatest relevance to exploring the broad outlines of an equal-recognition framework, and it is these I focus on in this paper. It is to be kept in mind, however, that the other two conditions—sanctioning law and establishing procedures against abuse—are also necessary and must be satisfied by each individual legislation within the framework.

Thus, to comply with the Puttaswamy doctrine, any proposal for equal recognition must first consider two broad questions. The first question is one of justification and requires the identification of a legitimate aim that would justify state entry into the autonomous zone of intimacies. This is what I answer in the remaining parts of this section. The second question is one of form and requires that the contours of equal recognition be suited to the identified legitimate aim, be the least intrusive route to it, and not disproportionately intrude on privacy. I explore these considerations while discussing a regulatory outline for equal recognition in the next section. Ultimately, both the justifications underlying equal recognition and the form it takes must be such that they enable state recognition, while resisting state hegemony over naming and constituting “legitimate” intimacies.

For an aim or justification to be legitimate, as per the Puttaswamy standard, it is obvious that it would at least have to be constitutional. As we have seen before,Footnote ⁹⁹ relative equality of consensual intimacies is an essential element of personal autonomy, and therefore of constitutionality. Therefore, a legitimate justification for recognition must be one that is not only secular, but also equally applicable to all consensual intimacies without classifying them as valid/invalid along arbitrary lines of the form they take, the social acceptance they command, and their conformity to artificial prescriptions of “natural” forms of love. In essence, this legitimate justification, to be constitutional, must be one that is divorced from the religious norms and popular morality that have historically constituted the “legitimacy” of intimacies in the eyes of the state. In Rawls’s formulation, this justification would have to be one that falls within the realm of public reason—devoid of any claims grounded in contestable moral/ethical/religious conceptions of the universal good.Footnote ¹⁰⁰ I propose that the public ethic of care offers such a legitimate aim or justification.Footnote ¹⁰¹

All families, regardless of the form they take, perform social reproduction functions. These may include, though are not restricted to, emotional or attitudinal care practices, tending to the old or ill, reproducing social norms, providing a sense of self-identity, procreation, and child-rearing. The role of the family unit in performing one or more of these functions or other similar functions of care allows the state and society to reproduce themselves, while privatizing the costs of their reproduction onto the private domain of the family.Footnote ¹⁰² Public ethic of care complicates the nature of these functions performed by a family, revealing them as fundamentally public by virtue of their role in social reproduction.Footnote ¹⁰³ The indispensability of these functions to the very sustenance of state and society, thus, provides a legitimate justification for state involvement in the otherwise private zone of families. Since it is these functions that form the crux of the state’s legitimate interest in families, the specific forms that families performing these functions take fades into irrelevance—making marital status or consanguinity meaningless as legal markers for what family constitutes. This shift to public ethic of care, and the consequent shift from form to function, fixes three different problems that plague the current framework.

First is the problem of overinclusiveness and underinclusiveness, which has very directly prevented the current framework from achieving relative equality of intimacies. Going back to the example I began this paper with, we know that the rights to bodily remains of a deceased hijra or compensation for their wrongful death lie with their (often estranged) natal families, not their chosen hijra family. A shift of focus to the functions that a family must perform, as opposed to the form it takes, would clearly reveal the overinclusiveness of this notion of “family” in extending to the natal family, as well as its underinclusiveness in not capturing the hijra family.

Second, the current framework of recognition allows the state the hegemonic power to name, constitute, and exclude families by deciding what families should look like—a power it exercises led by religious-cultural convention. Proponents of derecognition, in opposing equal recognition of queer families, fear that equal recognition would only affirm and expand the state’s prerogative to exercise this hegemony. However, an equal-recognition policy based on the public ethic of care would meet these concerns in two ways. One, a change in focus from form to function renders redundant any hegemonic power of legitimizing/delegitimizing families through arbitrary and artificial norms of how a “conventional” family looks. A system of recognition based on function would, instead, simply look at what families minimally do—making significant inroads into the extent of state discretion and hegemony. Two, public ethic of care dismantles the very notion of state power to regulate intimacies, instead reframing it as a duty incumbent on the state to support them. By revealing that the state fundamentally depends on and benefits from care functions, it establishes the state’s duty to incentivize, support, and compensate all families performing such functions equally. This shift is fundamental. Reconceptualizing state support for families (ranging from tax cuts, housing support, to caregiving leave) as a duty (and corresponding right), instead of as a state-conferred benefit, reveals the hollowness of both derecognition and unequal recognition. Since state recognition is the first step to state support, unequal recognition, absurdly, allows the state to exercise discretion in deciding which care units it wants to perform its duty of support for. Similarly, derecognition demands universal neglect of duty by the state—allowing it to exploit care functions performed by families without due recompense, and perpetuating a neoliberal state that privatizes the costs of its own reproduction.Footnote ¹⁰⁴ Such privatization not only allows the state to derelict its duty, but also is bound to come at the cost of the most vulnerable members of the family (often women acting as unpaid caregivers)—which is a point I turn to now.

Third, the current framework extends recognition not to functions performed by families, but to religious-cultural morality that demands privileging of certain family forms—and demands this regardless (and often because) of the internally exploitative conditions fostered by those forms. A shift to conceptualizing recognition as the state’s duty to support families conducting its own reproduction would inevitably entail a constitutional duty of the state to ensure that its reproduction is not founded on disenfranchisement of, or coerced participation of, vulnerable members. Thus, public ethic of care further qualifies the state’s legitimate justification for regulating intimacies. It is not simply to support all carerelationships, but to do so in ways that do not render vulnerable members susceptible to exploitation and incapable of equality and autonomy within the relationship.Footnote ¹⁰⁵ The legitimate aim then, if I use the phrase formulated by Giddens, is to cultivate “pure relationships”—relationships of care sustained for their own sake, from mutual volition, not out of the demands of tradition or economic/social necessity.Footnote ¹⁰⁶

As I have admitted before, simply expanding the legal category of “family” without overhauling the heteronormative justifications that create a state hegemony over recognition risks becoming a deradicalizing project.Footnote ¹⁰⁷ To that extent, those who fear legal recognition are not remiss. However, as the above discussion highlights, the public ethic-of-care justification does not just make for an expanded view of “family”—it, more importantly, makes for a transformed one. The shift in focus from form to function, from power of recognition to duty to foster pure relationships, marks its potential to transform “families,” what they look like, and how they are done.

The need for this transformation is, in fact, all the more reason for the state to take seriously and draw from non-heteronormative families who, perhaps due to their existence outside oppressive cultural expectations of how families are done,Footnote ¹⁰⁸ best approximate pure relationships. The prevalence of economic independenceFootnote ¹⁰⁹ and non-oppressive hypergamyFootnote ¹¹⁰ in gay couples and non-hierarchical bonding in friendship networksFootnote ¹¹¹ put them in stark contrast with traditional families. Similarly, hijra communes, kothas,Footnote ¹¹² and maths Footnote ¹¹³ stood as refuges for those escaping from heteronormative families—and typically encouraged emancipatory care relationships across faiths/castes/class.Footnote ¹¹⁴ Hijra rituals, even today, for example, reflect an amalgamation of rites from both Hindu and Islamic origins.Footnote ¹¹⁵ In this sense, with the proposed shift in the framework, extending recognition to queer families has the potential to queer the very category of “family,” disturbing the heteronormative order it stands on. After all, as Ambedkar recognized while proposing inter-caste marriage as the route to annihilating caste, subversive forms of love and kinship form powerful alliances against the dominant order.Footnote ¹¹⁶

In the next section, I will propose broad contours of a regulatory framework that remains true to the full transformative potential of the public ethic-of-care framework.

5. Outlining a regulatory model of care

In the last section, I postulated the dual requirements of relative equality and the Puttaswamy test as essential to a formulation of family recognition that remains true to constitutional baselines. The public ethic-of-care justification was then proposed as satisfying the demands of relative equality and the first Puttaswamy prong, namely a legitimate state aim justifying state entry into the privacy of intimacies. My attempt in this section is a modest one. A sweeping range of laws would need overhauling due to this shift—from succession and core family law, to social security frameworks, insider trading regulations,Footnote ¹¹⁷ spousal privilege, and tenancy laws.Footnote ¹¹⁸ Therefore, I do not propose specific amendments. Instead, I propose broad guidelines that should inform any recognition model that seeks to satisfy the other Puttaswamy prongs—necessity and proportionality—while also remaining true to the transformative promise of relative equality and our identified legitimate aim of cultivating pure relationships.

At the outset, I deal with a possible objection—that, regardless of any normative justifications, it is administratively impossible to recognize non-conventional families given the amorphousness of their form and the fluidity of their creation, expansion, and dissolution. This claim ignores that the Indian legal system recognizes marriages conducted through the customary rites and rituals of either of the parties thereto,Footnote ¹¹⁹ without any uniform requirement for civil registration such as is present in jurisdictions like France.Footnote ¹²⁰ Custom’s nature makes it inevitably amorphous across communities and local boundaries—also rendering amorphous the mode of solemnizing marriages. Relatedly, Indian taxation law also readily mires itself in considerable administrative ambiguity in determining whether certain families are HUFs for the purposes of granting them tax benefits as assessable entities.Footnote ¹²¹ These existing sites of legal fluidity and amorphousness reveal this objection as baseless.

Another question remains open before we move on to the core of this section—whether a new framework of recognition is best rooted in statutory or customary law. To some, custom as a source of law represents a more democratic division of law-making power between the state and the community—allowing centrally imposed homogeneity in family recognition to be tempered by diverse and locally derived customs.Footnote ¹²² However, I argue that sole reliance on custom for an equal family-recognition framework has its own pitfalls.

First, custom is all about “long usage,” “continuity,” and “consistency” of practice. Simply put, the “customary” is derived from the “conventional,” thereby naturally marking and casting aside all else to the stigmatic category of “unconventional.” Thus, a custom-based recognition model could create exclusions and hierarchies potentially like those created by the “traditional” family forms recognized today. For example, there is a popular hijra belief that those hijras who leave the customary hijra family (the hijra commune) are “inauthentically” hijra. Footnote ¹²³ This exemplifies the stigmatizing risks of embedding certain families as customary. This stigmatization would, naturally, come with exclusions. A further example would be relatively modern family forms like friendship networks or parenting triads, which would almost certainly be excluded by a customary model of recognition.

Second, as custom evolves through judicial recognition, it is likely to be fragmented in its formation—leaving much to uncertain post facto adjudication for families living on the margins of legality. I will briefly illustrate my point here. Hijra communes are organized in lineages of gurus and chelas (disciples), and a widely acknowledged practice within the hijra commune is the devolution of the chela’s property to the guru upon the former’s death. I will now look at two judicial decisions that deal with the recognition of this practice as custom. In Sweety,Footnote ¹²⁴ the court recognized the guru-chela parampara, or the guru-disciple custom, in hijra communes. However, the factual matrix of this decision is worth noting. The chela’s will and religious affiliation were both unproven before the court. Now, in India, one’s religion typically governs the intestate succession statutes one is governed by. The fact that neither a will nor any religion was proved, thus, rendered indeterminable the applicability of any statutory law, leaving open the possibility of applying secular hijra customs. In fact, the court specifically rejected the application of the Hindu Succession Act 2005 in favour of the guru-chela parampara, due to the lack of proof of the chela’s affiliation to Hinduism.Footnote ¹²⁵ Our second judicial precedent, the decision in Ilyas,Footnote ¹²⁶ which Sweety peculiarly relies on,Footnote ¹²⁷ stood on a wholly different footing. Here, the court was aware of both the deceased guru’s will and religion. Nevertheless, the court held that the guru-chela custom, not testate or intestate succession law, governed the succession of the suit property—explaining further that said custom barred devolution of such property to a non-hijra legatee. However, it is notable that the property in question was obtained by the deceased guru from their guru, down the guru-chela customary line, and was not self-acquired property. While being progressive, neither of the cases recognized the guru-chela custom as establishing a family. Instead, they limited their reach to only establishing an alternative line of succession outside the family. The parallels to colonial-era recognition of guru-chela succession of math property, all the while denying familial status of the math,Footnote ¹²⁸ are all too obvious. Due to this implied characterization of the guru-chela relationship as being outside “family,” it remains unclear whether intestate succession to self-acquired property of a hijra whose religion is known would devolve to the hijra family by guru-chela custom or to the legal family by religious personal law.Footnote ¹²⁹ This remains open to future adjudication—being outside the ambit of the fragmented custom formation that has taken place across two and a half decades in Sweety and Ilyas.

Lastly, judicial evolution of custom, through the inherent nature of judicial processes, will inevitably be case by case (here, family by family). This fact combined with custom’s emphasis on convention and long-standing practice brings customary law very close to a form-based system in practice, with all its problems of over- and underinclusiveness. The decision in Ilyas, again, is a case in point. The court in Ilyas noted the respondent chela’s failure to perform the care functions that underlie the guru-chela custom.Footnote ¹³⁰ However, the court rendered this irrelevant in recognizing as custom only the form, and not the function, of the guru-chela descent—thus allowing the property to devolve to the chela. Granting customary practices legitimacy qua custom tends to favour form over function, making it unsuitable for our proposed framework.

This leaves us with the core purpose of this section—to propose a statutory framework of recognition in line with the transformative principles identified earlier, and their use of function to decide which forms merit recognition. Models of family recognition proposed by some theorists prioritize function over form,Footnote ¹³¹ but leave some aspects unexplored. It is not enough to merely decide which chosen groupings can be “families” generally—after all, it is also relevant to decide what circumstances provide the state the power to make this decision, the degree of personal autonomy that recognition can come with in each instance, and how a function-based recognition framework may account for the purpose of such recognition. Do the same functions matter for a law seeking to provide emotional support (such as bereavement leave), as a law seeking to create financial obligations (maintenance provisions)? Instinctively, as recognized by Minow while proposing a functional version of family recognition,Footnote ¹³² the answer is no.

To address these practical questions that a functional framework necessarily throws up, one needs a super-framework of sorts; this super-framework would need to govern not just the matter of which groupings are “families,” but also the more preliminary matter of when this question falls for the state’s decision at all and the extent of discretion the state may have to decide it. The super-framework that would answer these preliminary and secondary questions would also be required to merge with the Puttaswamy tests of legitimacy, necessity, and proportionality. The most comprehensive framework I came upon that met these needs of actualizing the functional models proposed by many was the four-step framework outlined by the Canadian Law Commission (CLC) for recognizing and regulating intimacies.Footnote ¹³³ Proposed as a set of first principles circumscribing the state’s power to define (and therefore, confine) “families,” the CLC’s framework transcends boundaries to the extent that it serves only as a set of questions for the state to answer in each instance of family-facing law-making. The questions themselves are designed specifically to account for both equality of treatment and an autonomous zone of privacy in constituting intimacies and are therefore informative for addressing Indian constitutional concerns on family recognition.

The first two steps of this framework are intended to identify laws that must completely eliminate any determinations of or reference to familial status. The first step involves a rather preliminary inquiry matching the first prong of the Puttaswamy doctrine—whether the law in question serves a legitimate aim. Naturally, any offending law would be repealed.Footnote ¹³⁴ The second level of inquiry, becoming relevant only if the first level is crossed, asks whether determining familial status is unavoidable to the legislation’s otherwise legitimate aim—and recommends removing reference to such status if it is not.Footnote ¹³⁵ This step maps on neatly to the Puttaswamy requirement for necessity. Since every instance of legal recognition of family inherently requires state regulation of a zone of privacy, such recognition must be necessary for achieving a legitimate aim, and there must be no equally effective route to achieving it that is less restrictive of this zone.Footnote ¹³⁶

6. “Family equality” or “marriage equality”?

On 6 September 2018, the Supreme Court of India read down section 377 of the Indian Penal Code to the extent that it criminalized consensual sexual relations between adults of the same sex.Footnote ¹⁷² This historic verdict, by decisively establishing a zone of privacy around sexual intimacies, opened doors to legal recognition of same-sex marriage. Petitions demanding it have already reached the DelhiFootnote ¹⁷³ and Kerala High Courts.Footnote ¹⁷⁴ As the Indian queer impact-litigation movement sets its eyes on marriage equality as the next milestone, it is imperative to reassess this prioritization, and reorient queer political and legal strategies towards their full constitutional potential. I propose that the focal goal of impact litigation change from marriage equality to the constitutionally sounder and broader vision of family equality. That this is a constitutional requirement and a regulatory possibility has already been argued in Subsections 5.1 to 5.4, speaking to the judicial and legislative processes. In this part, I address a third process that drives constitutional meaning-making—social movements. To the queer movement, I seek to advance the political and strategic case for a direct demand for complete family equality—as against its current focus on marriage equality as an end in itself as well as a means to incremental recognition for other families.

I argue that “family equality” is a project of the radical politics of liberation—demanding legal recognition not in the name of sameness to other family forms, but by queering and transforming “family” itself. In doing this, “family equality” rejects the norm of family as the economic unit and recognizes all queer intimacies as “products of unfettered creativity,”Footnote ¹⁷⁵ with no fixed norms of replication or walled boundaries. It recognizes that “family” can mean different things to different people and in different contexts. In this sense, “family equality” does not demand inclusion into the normative family, but transforms the normative family to include itself as well as its potential for making families egalitarian, diverse, and pure relationships. Thus, difference, not sameness, holds the pride of place in liberation politics.Footnote ¹⁷⁶

The pursuit of accessing heteronormative institutions like marriage, in contrast, often hinges on arguments from formal equality—that is, homosexual relationships are the same as heterosexual relationships but for their gender.Footnote ¹⁷⁷ The petition before the Delhi High Court, in fact, makes a claim along exactly these lines, stating that the “[p]etitioners are like any other couple you might meet, except they are both women.”Footnote ¹⁷⁸ This language of sameness privileges equality over liberationFootnote ¹⁷⁹ and affirmation of the equal legitimacy of one’s family over transformation of the category of family.Footnote ¹⁸⁰ This is because the category of legitimacy, constituted by hetero-norms and left unquestioned by a politics of equality, extends equal recognition only at the cost of assimilation—reproducing the gender roles, the economic dependence, and the desire for monopoly over a family member’s care and love that characterize conventional families generally and marriages specifically.Footnote ¹⁸¹ By extension, the demand for recognition of same-sex marriages also comes with this assimilationist pull. It uses norms of legitimacy to construct the “respectable queer”Footnote ¹⁸² or the “good sexual citizen”Footnote ¹⁸³—the monogamous, typically middle-class, publicly desexed, privately queer person.Footnote ¹⁸⁴ Considering same-sex marriage as the primary political aspiration for the queer movement,Footnote ¹⁸⁵ by giving in to the politics of respectability, gives in to the politics of sexual shame that heretofore condemned some—and allows it to condemn others instead, be it cruising gay men, publicly gender-queer trans-persons, promiscuous or single women, or people practising public sex or polyamory.Footnote ¹⁸⁶ This shifting face of respectability is apparent around the world. In Canada, for example, even as same-sex marriage was legalized, the state continued its clampdowns on gay and lesbian public bathhouses in the same month.Footnote ¹⁸⁷ Studies in the UK show that adoption officers give preference to applications from “good” lesbians—cisgender, apolitical, publicly heterosexualized, and having heterosexual friends.Footnote ¹⁸⁸ In a similar vein, advocates of same-sex marriage, in justifying their demand, often reinforce the stigma around single motherhood by claiming that gay couples would provide better parenting.Footnote ¹⁸⁹

This has the inevitable effect of creating the binaries of ideal minority versus dangerous minority—widening the gap between what has been described as the “queer underclass” and the “queer aristocracy.”Footnote ¹⁹⁰ This fissure in the community manifests variously. In the US, for example, resistance from upper-class queers to gentrification of queer public spaces is waning.Footnote ¹⁹¹ The gentrification drive has also extended to such iconic queer neighbourhoods as the Castro in San FranciscoFootnote ¹⁹²—where the displacement of poor queer tenants is only being accelerated by gay homeowners’ objections to the presence of queer homeless shelters near their houses.Footnote ¹⁹³ A similar trend characterizes Indian queer politics, too. For example, in the discourse around decriminalization of homosexuality, there is a clear undercurrent of class, often stated as a demand for equal rights for “law-abiding” “tax-paying” citizensFootnote ¹⁹⁴—as if queer rights were not for the poor, or the imprisoned. Moreover, the movement in India until now had fought dominantly against section 377 of the Indian Penal Code, 1860 (“IPC”) a rallying point, the choice of which did not go politically uncontested within the community. The choice has been criticized for being driven by the fact that section 377, more than any other queer issue, had a direct impact on the lives of cis gay men who enjoy the greatest capital in the movement.Footnote ¹⁹⁵ This is only confirmed by the queer movement’s relatively lukewarm response to the 2019 Trans Act and numerous other laws, outside section 377, that allow the state to criminalize and inflict violence on transgender bodies.Footnote ¹⁹⁶

Even now that section 377’s excesses are past, these issues remain neglected—with the movement now gearing up for marriage equality instead. Much like the choice of the previous rallying point, this one is also steeped in the power relations within the queer community, because the politics of respectability that informs the demand for marriage is not equally accessible to all. The institutions of respectability and privilege are more accepting of those that are already relatively invested in them—accepting the desexed, homosexual monogamous couple, while rejecting the non-dyadic polyamorous partners, or the parenting triads.Footnote ¹⁹⁷ Respectability, ultimately, begets respectability—and the gap between the respectable and the disrespectable widens as the former are assimilated into the heteronormative mainstream.Footnote ¹⁹⁸

The stand-alone recognition of same-sex marriage, thus, will only amplify the fissures within the community—depoliticizing and fragmenting sections, and making any subsequent collective action for recognizing other forms of intimacies less effective.Footnote ¹⁹⁹ This brings me to the strategic part of my case—why a direct demand for full family equality is a better strategic route than starting off with marriage equality as a piecemeal route to eventual full recognition. While some argue that same-sex marriage will pave the ground for this to happen, past experience should give us pause. A part of the reason, of course, could be that recognizing same-sex marriage is less about accepting sexual liberty/homosexuality and more about accepting its domestication into heteronormativity.Footnote ²⁰⁰ Another part of the reason, however, is that the recognition of same-sex marriage, rooted in the assimilationist logic of sameness and legitimacy, is likely to fragment the queer community, and weaken future action for full family equality.

These fault lines in the social movement tend to only be exacerbated by impact-litigation strategies that incentivize deradicalized arguments to appeal to the status-quo-ist tendency of the law. Examples of this trend also abound.

In the US, same-sex marriage was recognized by the Supreme Court’s five-to-four decision in Obergefell v. Hodges,Footnote ²⁰¹ with then Chief Justice Roberts registering his dissent. One strand of his reasoning was that if the sex of the parties to a marriage is held to be an inessential element of marriage, so could the number of parties in a marriage—and that nothing would then prevent the slide to legalizing polyamorous marriages.Footnote ²⁰² This all-too-common slippery-slope argument against same-sex marriage is consistently met by impact-litigation counsels by distinguishing what they demand from polyamorous relationships—in the process denying polyamory as a sexual orientation, and insisting that marriage is inherently dyadic.Footnote ²⁰³ In fact, the counsels in Obergefell responded to Robert C.J.’s concern about plural marital unions by stating that the state “does not have such an institution”Footnote ²⁰⁴—again, playing into the politics of assimilation and (il)legitimacy that the stand-alone demand for same-sex marriage is inevitably enmeshed in. In another decision of the New Jersey Supreme Court on marriage equality, in response to a similar argument, a judge noted that “[p]laintiffs do not question the binary aspect of marriage; they embrace it.”Footnote ²⁰⁵

A similar impulse reveals itself in Indian impact-litigation discourses. Consider the Delhi High Court’s decision in Naz Foundation Footnote ²⁰⁶—the first time any Indian court had decriminalized homosexual acts. The transcript from 18 September 2008, the first day of arguments, is revelatory. The bench expressed concern that decriminalization might loosen state control on public sex. The counsel for the petitioner had a ready response—that such public acts can be penalized under other laws on public indecency and nuisance.Footnote ²⁰⁷ A similar admission, that public acts are not protected by the constitutional right to privacy, was made by the counsel in the proceedings before the SC in Koushal Footnote ²⁰⁸ wherein the decision in Naz was under challenge.Footnote ²⁰⁹ It is well known that the conventional private space, that is the home, is a notoriously unsafe environment for most gays and lesbians, and that access to a private room is not an easy luxury for lower-class India. Yet, the litigation strategy required the disavowal of the “disrespectable”—of cruising, and of sex in public bathrooms or near railway tracks. And this disavowal by the impact lawyers reflected in the high court’s decision in Naz, the final order of which only decriminalized homosexual conduct between two consenting adults in private. Footnote ²¹⁰ Naz, thus, brought the light of legality to only the upper-class or outed queer who can either pay for private space or have it at home—continuing to relegate the others to the shadows of criminality.

Impact-litigation strategies end up mediating rights through a prism of class, merit, and “good citizenship.” Navtej Johar,Footnote ²¹¹ the landmark SC decision that conclusively decriminalized homosexuality in India, is another case in point. The subtly exclusionary use of these prisms to appeal to an elite judiciary is clear in the following extracts from a press release by Pravitti, an informal lesbian, gay, bisexual, and transgendered (LGBT) group consisting of past and present members of the prestigious Indian Institutes of Technology (IITs), which filed one of the petitions that was finally heard in Navtej:

Similarly, the counsel in Koushal also deployed the power of class identity and the notion of good, productive citizenship, stating:

While the bench in Koushal ultimately rejected the plea for decriminalization, it was accepted in Navtej subject to the same caveat introduced by Naz—that the acts must be done in private.Footnote ²¹⁴ Again, rights were construed to be held only by those who had the social status to either be out or financially capable of accessing private spaces other than home. A careful reading of Navtej reveals the subtext further—the way in which social status and class interwove emotively appealed to the bench and constructed their class-laden notion of rights. This comes out in Chandrachud J.’s opinion:

The history of impact litigation for recognition of same-sex marriage has, thus, come at some very real costs to liberation politics—it has marginalized public sex and therefore the intimacies of lower-class, closeted homosexuals; it has surrendered the cause of polyamory; and it has given in to the idea that rights are for “good citizens.” Law is ultimately steeped in heteronormativity, and so appeals designed for success before legal institutions are likely to employ assimilationist and exclusionary discourses. Herein lies the very real choice facing the queer movement—between exclusionary impact likely to succeed in the short run or a longer-term strategy designed to use litigation and social processes to achieve direct full equality. The trade-off has often been made in favour of the former, hoping that it will pave the path to the latter in time. However, as I argue above, this is not simply a matter of which intimacies receive recognition first.

Rather, assimilationist sections of the movement and the deradicalized discourse of impact litigation unwittingly employ tactics of exclusion to achieve their incremental goals, actively creating what has been called a “new homonormativity”Footnote ²¹⁶—extending legitimacy to certain queer intimacies by further delegitimizing other queer intimacies. Thus, the framework of inclusions and exclusions remains, but merely shifts to a different terrain. This renders suspect the argument that recognition of same-sex marriages will eventually trickle down to more and more kinds of families—making a direct demand for full family equality, which would of course also include marriage equality, the only strategically tenable route to liberation.

A quick overview of legislations across the world that have made tentative moves towards expanding recognition to queer families beyond marriages would only confirm the thesis that marriage needs to be displaced from the centre of conversations about families and their recognition. I consider three such legislations—Adult Interdependent Relationships Act 2002 (“AIRA”) enacted in Alberta, Canada; Relationships Act 2003 (“ARA”) in Tasmania, Australia; and Reciprocal Beneficiaries Act 1997 (“RBA”) in Hawaii, US. All these legislations have extended recognition to non-conventional forms of intimacies that go beyond marriage or marriage-like forms—naming them variously as “adult interdependent relationships,”Footnote ²¹⁷ “personal relationships,”Footnote ²¹⁸ or “reciprocal beneficiaries.”Footnote ²¹⁹ While these forms seem to eschew conjugality or consanguinity as determinative of what families are, ghosts of marriage remain in them.

The relationships recognized are invariably dyadic and required to be exclusive to be valid—a format peculiarly influenced by marriages and that happens to be completely incompatible with most non-conventional relationships like friendship networks, blended families, etc. Sociologically, it is almost insensible to say that one is allowed only one “adult interdependent relationship” and with only one person—and yet that is how the law has created these relationships’ legibility. The influence of convention and marriage on these legislations reaches even further—extending to the legislations themselves continuing to expressly sustain the privileged status of marriages over these relationships. The Tasmanian legislation, for example, provides for automatic revocation of a deed of “personal relationship” upon the marriage of either party.Footnote ²²⁰ The Hawaiian legislation, going a step further, only recognizes those as “reciprocal beneficiaries” who are otherwise prohibited from marrying each otherFootnote ²²¹—basically, homosexual couples or persons within prohibited degrees of relationship. This purportedly progressive recognition of new forms, thus, ultimately only created a second-class alternative to marriage for those barred from it—while also extending marriage as the inevitable norm for everyone else and only regressing the struggle for family equality. This felt need for non-conventional relationships, when legally recognized at all, to be recognized as imperfect substitutes for marriage while also almost shadowing the norms of marriage reflects exactly why family equality can be achieved in any real sense only when it is seen as a precondition to marriage equality, and not as a mere epilogue to it.

To be clear, the argument is not against the recognition of same-sex marriage—it is against the stand-alone push for marriage equality as opposed to the more inclusive goal of family equality that would encompass same-sex marriages and much more. As a stand-alone demand, by privileging marriage and replicating the oppression of the traditional family system, marriage equality would replicate both the relative inequality of and internal inequality within intimacies.Footnote ²²²

Having said this, in proposing that the law recognize all intimacies regardless of and without consideration to the form they take, I recognize that the continued existence of the institution of marriage as a separate form of “family” sits uncomfortably with my proposed framework’s choice of function over form as the only relevant basis for recognition. In that sense, the theoretical arc of my argument favours the variety of positions adopted by various theorists that may broadly be put under the umbrella of abolition of marriage as a legal institution. However, abolition does not, as a matter of logical necessity, flow from my argument; certain forms of family may be recognized as the form they take, as long as the basis for recognition itself is not the form of families.

Having said that, however, the arguments for abolition are compelling. Marriage’s historical pull as a seemingly inevitable and natural form of family and its tendency to dictate the terms of the way other families are recognized risks sustaining a de facto hierarchy, even as we do away with de jure ones.Footnote ²²³ Butler’s warning that “marriage … only becomes an ‘option’ by extending itself as a norm”Footnote ²²⁴ certainly calls for caution in according to marriage any “separate-but-equal” status within intimacies. Indeed, Lewis has considered the abolition of marriage to be essential to the abolition of the “isolated privatisation of human misery,”Footnote ²²⁵ by allowing an exemplar of “the family” (singular) to be replaced by communized care networks or families (plural).Footnote ²²⁶ And while that may indeed be the utopian culmination of transformative changes in family-making proposed by this paper, I do not intend for this paper to stand for either side in the debate on marriage abolition. Even though the arguments for abolition share a normative kinship with my position, I believe that abolition is not a necessary logical companion to my argument. Even so, it may perhaps be a desirable one. However, I stop short of endorsing that opinion in this paper, wishing to explore two considerations further before. First, a framework that recognizes what entities are families based on their function need not and should not be blind to any special needs of regulation arising in specific family forms by virtue of the form itself. It merely requires that their very recognition may not be because of their form. The completely unilateral power dynamic and complex questions of consent that plague a parent-child relationship form has is one such example of family forms requiring special regulatory consideration. Marriage, for these purposes, is another. The fact that it is steeped in and is a product of generations of oppression and inegalitarian practices merits its retention as a separate legal category enabling additional regulation. The practice of dowry, for example, is unique to the marriage form of family-making and its regulation while abolishing the legal category of marriage may throw up particular complications that need further thought.

Second, I fear that the demand for abolition of marriage, as radical and powerful a normative argument as it is, may also be liable to be appropriated by conservative interests. By abolishing marriage legally for everyone and thereby preventing its legal extension to same-sex marriages, it becomes possible to retain marriage as a heterosexual preserve socially. The problem of levelling down I had referred to earlierFootnote ²²⁷ thus applies with equal force here. Heterosexual couples will continue enjoying the cultural institution of marriage, regardless of its recognition by law, while the message sent out would be clear—the legal right to marry will either be a heterosexual right or it will not be.

Nor is it the case that the fear of conservative anti-queer interests appropriating radical queer politics is mere academic paranoia. The Canadian and the Hawaiian legislations that moved towards expanding recognition to non-conventional, chosen families were, politically, led by conservative motivations. The Preamble to the Adult Interdependent Relationships Act 2003, for example, starts with the following acknowledgement:

These legislations were seemingly progressive in recognizing queer families and stressed the irrelevance of conjugality or sexual relations as a marker for “family.” However, this emphasis was not a progressive move towards equality for non-conventional, non-conjugal family forms—but was intended at staving off the demand for marriage equality by giving certain rights to same-sex couples, without having to recognize the sexual element of their intimacies. Effectively, same-sex couples were given rights as no-sex couples.Footnote ²²⁹

My fear is that the abolition of marriage for everyone, though radically different from a civil union-like “separate-but-equal” arrangement, has a real potential to serve the same interests and same ends in the current political scenario. It would allow the institution of marriage to socially survive in the exclusively heterosexual domain—by simply making the law blind to it. It is not the historically recognized forms of marriage that need the legal sanction anyway. It is for the historically invisibilized and criminalized marriages for which having their conjugality recognized by the law becomes an act of coming out and healing. And abolishing marriage as a legal institution just when this recognition is on the horizon, without abolishing it socially, may turn a blind eye to the history of this struggle. This is not to say that the problem of conservative appropriation of radical queer politics of marriage abolition is an intractable one. But it is one that merits broader, more consultative deliberation within the Indian queer movement and with feminist and anti-caste allies. However, whether marriage is recognized as a separate institution or not, there is no singular history, or a singular struggle. To make a stand-alone demand for marriage equality, instead of a larger push for full family equality, is also to turn a blind eye to the histories of struggles of many others. And it is this that I argue against.