Same-sex marriage: As Centre opposes it, how BJP-Sangh’s stand on homosexuality evolved over the years

After the Supreme Court in 2013 reversed the Delhi High Court’s verdict saying Section 377 of the Indian Penal Code cannot punish sex between two consenting adults, reasoning that Parliament can decriminalise homosexuality but not the court, Rajnath Singh, now the Defence Minister, said in an interview, “We support Section 377 because we believe that homosexuality is an unnatural act and cannot be supported.”

Current Uttar Pradesh Chief Minister Yogi Adityanath, then a Lok Sabha MP, also welcomed the 2013 verdict and said he was opposed to any move to decriminalise homosexuality.

But among the BJP leaders who took a different stance was Piyush Goyal, now a Union minister. In 2013, he spoke in favour of decriminalisation. “There’s nothing ‘unnatural’ in these relationships and I hope the subject is reviewed/law amended at the earliest,” he tweeted during an interaction with some Twitter users.

The late Arun Jaitley said at the Times LitFest in 2015 that the 2013 verdict of the Supreme Court needed reconsideration as it adversely affected millions of people in India.

As proceedings went on in the Supreme Court in 2018 before a five-judge Constitution Bench of the Supreme Court, led by then Chief Justice of India (CJI) Dipak Misra, then Additional Solicitor General (ASG) Tushar Mehta said the Union government would not contest the batch of petitions challenging Section 377 as far as it relates to consensual sex between two adults. “Please do not say anything that may be construed for any object that your lordships did not intend,” Mehta requested the Bench. The BJP-led government said it would leave the decision to “the wisdom of the court” but urged it not to decide on related rights of the LGBTQ community such as marriage.

Last November and December, the Supreme Court, while hearing a plea, asked the Narendra Modi-led government to clarify its stand on the legalisation of same-sex marriage. However, party leaders such as Rajya Sabha MP Sushil Kumar Modi, the former Bihar Deputy CM, have been clear in their position against legalising gay marriage. Modi’s position was something that found an echo in the government’s submission to the Supreme Court.

Speaking in the Rajya Sabha during the Winter Session of Parliament in December, Modi said, “In India, same-sex marriage is neither recognised nor accepted in any uncodified personal law like the Muslim Personal Law or any codified statutory laws. Same-sex marriage will cause complete havoc with a delicate balance of personal laws in the country.”

In an opinion article in The Indian Express in January, Modi wrote, “Through a flurry of judicial pleas, many are seeking to sanctify same-sex marriage under the garb of equality and freedom. This needs to be addressed head-on and urgently, not by the judiciary but by the legislature.”

Making the case for the matter to be left to Parliament, Modi went on to write, “First things first, the state has a legitimate interest in maintaining a societal equilibrium and in ensuring that new practices do not lead to the breakdown of our cultural ethos and societal values. The judiciary, or more precisely two judges, however, learned and respected, cannot usurp this role. Any policy intervention that impacts the direction of our social institutions needs a thorough debate in Parliament and the society at large. Marriages are, after all, the most personal public institution and clearly straddle the divide between the individual and the state.”

The same month, Rashtriya Swayamsevak Sangh (RSS) sarsanghchalak Mohan Bhagwat spelt out his organisation’s position on queer rights saying the RSS wants people from the LGBTQ community to have their own private space and feel that they too are a part of society. This was a shift away from the opposition the RSS had expressed in 2018 after consensual gay sex was decriminalised.

“These people (LGBTQ) also have a right to live. Without much hullabaloo, we have found a way, with a humane approach, to provide them social acceptance, bearing in mind they are also human beings having inalienable right to live. We have a transgender community; we did not see it as a problem. They have a sect and their own deities. Today, they have their own Mahamandaleshwar too. During Kumbh, they are accorded a special place. They are part of our everyday life,” he said in an interview to RSS-affiliated publications Organiser and Panchjanya.

The RSS chief used an example from Mahabharata, narrating the story of demon king Jarasandh’s generals Hans and Dimbhaka. He suggested they were in a homosexual relationship and added that the “problem of LGBTQ” was a similar one. “When Krishna fanned the rumour that Dimbhaka has died, Hans committed suicide. That is how Krishna got rid of those two generals. Come to think of it: what does the story suggest? This is the same thing. The two generals were in that sort of relationship. It’s not that these people have never existed in our country. People with such proclivities have always been there for as long as humans have existed. Since I am a doctor of animals, I know that such traits are found in animals too. This is biological, a mode of life,” he said.

Making a case for sexual minorities co-existing with others, Bhagwat said, “This is such a simple issue. We will have to promote this view because all other ways of resolving it will be futile. Therefore, on such matters, the Sangh relies on the wisdom of our traditions.”