Aditi Tandon
New Delhi, October 17
The ruling BJP and its ideological mentor Rashtriya Swayamsevak Sangh on Tuesday hailed the Supreme Court majority view that non-heterosexual couples cannot claim an unqualified right to marry.
The ruling party claimed vindication of its stand articulated in the Centre’s arguments in the affidavit submitted to the SC in the matter.
The affidavit said judicial interference would cause complete havoc with the delicate balance of personal laws in the country and argued that the apex court, even in 2018, while decriminalising homosexuality, did not accept same-sex marriage as part of the fundamental right to life and dignity under Article 21 of the Constitution.
A look at the past decade of debate on gay rights reveals that the BJP has followed the RSS cues on the issue.
In December 2013 when the Supreme Court overturned Delhi High Court’s 2009 landmark order decriminalising homosexuality (Section 377 of the IPC), then BJP chief Rajnath Singh hailed the decision, saying that “homosexuality is an unnatural act and cannot be supported.” In 2016, the RSS in a major shift of stance on gay rights called for decriminalisation of consensual gay sex. Then RSS joint general secretary Dattatreya Hosabale (currently general secretary) said: “Homosexuality is not a crime but a socially immoral act in our society. No need to punish but it must be treated as a psychological matter. Gay marriage is institutionalisation of homosexuality. It should be prohibited. The approach to homosexuality should entail no criminalisation as well as no glorification.”
In September 2018 when a Constitution Bench of the SC restored the Delhi HC judgment decriminalising gay sex, the BJP government did not oppose decriminalisation although it argued that the court cannot go beyond debating criminality and cannot examine civil rights, including the right to marry and adopt.
Since 2018, the RSS and BJP’s position on same sex marriages has remained consistent that marriage in India is a sacrament with statutory recognition of the relationship between a biological man and a biological woman.
As late as January 2023, RSS chief Mohan Bhagwat speaking on the subject stopped short of backing gay marriages. “Such (gay) preferences are biological and people with such proclivities have always existed ...We want them to have their own space and feel part of society.” Accordingly, the BJP-led Centre and pro-RSS organisations opposed petitions seeking legalisation of same-sex marriages before the Supreme Court.
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