Offering a potential safe passage for the decriminalisation of same-sex relationships by the Constitution Bench of the Supreme Court, the Ministry of Home Affairs affidavit has tried to walk a tightrope between changing public opinion and the outlook of the ruling BJP’s core support bastions, including the RSS, on the issue.
The carefully drafted affidavit filed before the Constitution Bench reserved its right to object to anything “other than” Section 377 if it were to be considered during the course of adjudication.
“In the event this Hon’ble Court is pleased to declare Section 377 viz. ‘consensual acts of adults in private,’ to be unconstitutional, no other issue/issues and/or rights are referred for consideration and adjudication and therefore, may not be gone into,” said the government’s affidavit declaring its intent to be heard on “any other right in favour of or in respect of LGBTQ”.
Senior BJP leaders told The Indian Express that this affidavit was crafted keeping in view the sensibilities of party’s core supporters and match the position worked out by the party leadership.
“This careful line has been worked out after deliberations at the top levels of the party leadership. Party president Amit Shah and senior party leader Arun Jaitley, among others, applied their mind in defining the position,” said a senior party functionary.
“It is a recognition of changing mores in the society under the ambit of the Constitutional principles. This is about the evolution of mores,” said another BJP source.
The party source, in this context, emphasised BJP’s apprehensions against the issue spreading beyond the limited rights of consensual same-sex relationships to areas like marriage and adoption rights among others.
“The affidavit has left the limited issue of the consensual relationship between adults for the court to adjudicate on the basis of Constitutional principles. So there could be a case of decriminalisation of private consensual acts between two adults. But we have a firm opinion that any attempt to grant broader rights beyond it will be contested. These will fall foul of our Hindu core ethos,” said the source.
The issue has been a hot potato for the BJP and its larger ideological saffron brethren. The then BJP president Rajnath Singh, in fact, had endorsed the Supreme Court’s rejection of the Delhi High Court’s 2009 verdict that sought to de-criminalise homosexuality.
While the BJP has refrained from spelling out its cohesive position on homosexuality, its ideological fountainhead RSS stepped out in March 2016 favouring decriminalization of homosexuality with a caution that it should not be glorified.
“Homosexuality is not a crime but socially immoral act in our society. No need to punish but to be treated as a psychological case,” RSS joint general secretary Dattatreya Hosabale said on Twitter in March 2016 adding, “approach to homosexuality should be ‘no criminalization, no glorification either’”.
On gay marriage, the RSS leader was clear: “Gay marriage is Institutionalization of homosexuality. It should be prohibited.”