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India SC legalizes gay sex amidst the rise of Hindutva


News Analysis |

The Supreme Court of India has decriminalized the gay sex across the country in a landmark verdict. A five-judge SC Constitution bench led by Chief Justice of India (CJI) Dipak Misra and comprising Justices Rohinton F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra delivered its unanimous verdict in four separate opinions. The top Indian court has ruled that consensual adult gay sex is not a crime saying sexual orientation is natural and people have no control over it.

The Indian SC has defanged the British-era Section 377 of the Indian Penal Code (IPC), which deemed gay sex as a punishable offence. Now, it is no longer an offence under Section 377 to engage in consensual sex in private. According to Indian media, “the judgment heralds a new dawn for personal liberty and is a major victory for the LGBTQ (lesbian, gay, bisexual, transgender) community that has been fighting hard and persistently to legalize gay sex.”

The American Supreme Court established four premises and on the basis of those premises, the Court, as a conclusion, legalized same-sex marriage in all states of the US.

“Consensual sex between adults in a private space, which is not harmful to women or children, cannot be denied as it is a matter of individual choice. Section 377 results in discrimination and violates constitutional principles,” said the Indian SC.

Moreover, the court has also observed that the “section 377 is irrational, arbitrary and incomprehensible as it fetters the right to equality for the LGBT community. LGBT community possesses the same equality as other citizens.” What society thinks, the judges said, has no place when it comes to people’s freedoms. “Social morality cannot violate the rights of even one single individual,” said CJI Misra and Justice Khanwilkar.

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Same-Sex Marriage: A Background and some Constitutional Justifications

There are many countries around the world which have allowed the same-sex marriage. Almost three years ago the United States of America also legalized the same-sex marriage. The American Supreme Court established four premises and on the basis of those premises, the Court, as a conclusion, legalized same-sex marriage in all states of the US. The decision of the court can be summed up as follows:

1, ‘[T]hat the right to personal choice regarding marriage is inherent in the concept of individual autonomy’. 2, ‘[T]he right to marry is fundamental’. 3, ‘A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and edu­cation.’ 4, ‘[T]his Court’s cases and the Nation’s traditions  make clear that marriage is a keystone of our social order.’

In a scenario where religious minorities are not being protected, how can a court assure the application of a law which contradicts the social morality of ‘intolerant Indian society’?

On the basis of these aforementioned premises, the court concluded: ‘The Court, in this decision, holds same-sex cou­ples may exercise the fundamental right to marry in all States. It follows that the Court also must hold—and it now does hold—that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.’

In dissenting notes, the Chief Justice John Roberts and Justice Antonin Scalia established a strong and very interesting counterargument, and they concluded that it was not under the jurisdiction of a committee of 9 unelected judges to determine what was fundamental and what was ought to be.

Gay Sex and the Rise of Hindutva

The same court had already observed that people were being lynched by mobs and nobody was seemed to care. “So many things are coming nowadays on social media. People are getting lynched but no one seems to be bothered,” the court had observed in July this year. Similarly, on July 17, another bench of the Supreme Court headed by Chief Justice Dipak Misra had said that “horrendous acts of mobocracy” could not be allowed to overrun the law of the land and had asked the Parliament to consider enacting a new law to sternly deal with mob lynching and cow vigilantism.

Read more: Thousands of Men to Be Pardoned for Gay Sex, Once a…

There have been many videos on social media where innocent Muslims have been killed for allegedly milking a cow. The BJP is alleged to support an extremist version of Hinduism in order to protect its political motives.

In a scenario where religious minorities are not being protected, how can a court assure the application of a law which contradicts the social morality of ‘intolerant Indian society’? Experts and analysts in Pakistan are keen to see how this decision of the top Indian court gets implemented when the leadership of the BJP is said to be the propagator of conservative morality?

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