Who Decides Who Can Love? The Battle for Affective Sovereignty

New Delhi- As another Pride Month is about to begin, cities across India prepare for colourful marches. These marches are full of joy and courage, but they are also full of memory — of rejection, silence, and struggle. In India, queer love still waits to be recognised, not just in society but in law. Same-sex couples cannot marry. They cannot adopt children together. And without legal status, their love is often treated as invisible.

In April 2023, the Supreme Court of India began hearings on whether same-sex marriage should be recognised. For many, it felt like the next step after Section 377 was read down in 2018. But by the end of the hearings, the state had made its position clear: marriage was not a constitutional right, and queer people could wait. The verdict brought no change in law — only words of sympathy.

This article argues that this refusal is not just legal. It is emotional. It is an act of power — a way for the state to decide whose love matters and whose does not. That power is what I call affective sovereignty — the control over not just laws and bodies, but over emotions, relationships, and recognition.

What Is Affective Sovereignty?

Traditionally, sovereignty means the power of the state to rule — to control territory, law, and order. But in recent years, scholars have shown how states also shape how people feel. This is affective sovereignty — the power to approve some emotions and reject others.

Political theorists like Lauren Berlant and Sara Ahmed have written about this. Berlant talks about how people stay attached to institutions like marriage, even when those institutions limit their freedom. Ahmed shows how emotions like fear, grief, or pride are shaped by politics — they are not just private feelings but public forces.

In India, this is clear in how the state treats families. It supports one kind of family — usually heterosexual, upper-caste, reproductive, and socially respectable. Queer relationships, by contrast, are rarely accepted in law or policy. Even though Section 377 was read down, the idea that only certain forms of love are “natural” still shapes the legal system.

The state may not openly punish queer love anymore, but it still chooses not to see it. That silence is also power.

Marriage as a Tool of Social Control

Marriage in India is not just a personal choice. It is a way the state and society control people’s lives. It helps maintain caste boundaries, religious divisions, gender roles, and the idea of the “normal” family.

Even so-called progressive laws like the Special Marriage Act come with rules that invite surveillance. Couples must give public notice before marrying. Families, neighbours, and local authorities often intervene. This makes it hard for inter-caste, interfaith, and queer couples to access the law safely.

Marriage is also deeply linked to caste endogamy — the rule that people should marry within their caste. Families often use marriage to protect caste honour. Queer marriage disturbs this structure. It does not produce children. It does not obey the rules of patriarchy or reproduction. That is why it is seen as dangerous — not just unfamiliar, but disruptive.

So, the fight for marriage rights is not only about legal benefits. It is also about dignity. About being seen as equal. And that is exactly what the state resists.

Sympathy Is Not Equality

During the 2023 hearings, the state argued that marriage was not a constitutional right and warned that recognising queer marriages would create “legal chaos.” The Supreme Court agreed. It expressed sympathy but offered no rights. It told queer people: we understand you, but we cannot protect your love.

This is a clear example of affective disavowal. The law does not need to attack queer people. It simply ignores them. It places their emotions outside the frame of legitimacy.

Even the Court’s language was careful. It used words like “empathy” and “dignity,” but not “recognition” or “rights.” This creates distance. Sympathy does not bring equality. It offers comfort without justice.

For many queer couples, the verdict meant returning to lives of uncertainty — where even renting a house, visiting a partner in the hospital, or raising a child together becomes a legal and emotional struggle.

Can Legal Recognition Be Enough?

In many parts of the world, queer movements have debated whether marriage equality is the right goal. Scholars like Michael Warner and Dean Spade warn that legal reforms often benefit the most privileged — cisgender, upper-caste, English-speaking people in cities. The rest — especially poor, Dalit, trans, or rural queer people — are often left out.

In India, marriage itself is a site of violence. It has been used to control women, enforce caste, and extract labour. Many feminist scholars have shown how marriage is not always a safe space. So why should queer people have to marry to be recognised as valid?

This does not mean queer couples should not be allowed to marry. They should. But we must ask: is marriage the destination or just one step? True equality must include many ways of living, loving, and building families — not just the ones approved by the state.

Looking Beyond Marriage

India has a long history of non-normative love. In Bhakti and Sufi traditions, same-sex desire appeared in poetry and devotion. Communities like Hijras and kothis built kinship through ritual, care, and chosen families. These forms of love were real — even without law.

It was colonial law, especially Section 377, that tried to erase these forms. It taught people to link love with reproduction, property, and discipline. But queer people have always found ways to live and love beyond these limits.

Even today, many queer groups are doing this work. Collectives like Sappho for Equality, Nazariya, and the Aravani Art Project are building new ways of belonging — through art, archives, mental health care, and solidarity. They are showing us that family can be chosen. That care does not need legal paperwork. That love is real even when the state says it is not.

This Pride, Let’s Ask the Real Question

As we walk in Pride marches this June, let us remember what the struggle is truly about. Not just rainbow flags or celebration. But dignity. Freedom. And the right to love without asking for permission.

The Supreme Court’s refusal to recognise same-sex marriage was not just a missed opportunity. It was a message — that queer people still have to wait, that their emotions still need approval, and that the state still decides which relationships matter.

But queer love has never waited. It has always found a way. It has always resisted erasure.

This Pride, let us not settle for sympathy. Let us demand something deeper — not just rights, but emotional justice. Not just access to marriage, but the power to define love, family, and belonging on our own terms.

To reclaim affective sovereignty is to say: our love matters, whether the law recognises it or not.

- Disha is a Ph.D. Scholar and Senior Research Fellow at Dr. K. R. Narayanan Centre for Dalit and Minorities Studies, Jamia Millia Islamia, New Delhi.