Section 377 verdict: Homosexuality not a crime, but same-sex marriages against nature, says RSS

Though it does not consider homosexuality as a crime, the RSS says same-sex marriages are against nature.

Image Credit: Reuters

NEW DELHI: The Rashtriya Swayam Sewak (RSS) on Thursday said that same-sex marriage and relationship are neither natural nor desirable which is why it does not support such relationships.

BJP's parent organisation said his shortly after a five-judge constitution bench of the Supreme Court unanimously decriminalised part of the 158-year-old colonial law under Section 377 of the Indian Penal Code which criminalises consensual unnatural sex, saying it violated the rights to equality. 

The RSS, however, said that like the top court it also does not consider same sex as a crime.

Reacting to the historic SC verdict on decriminalising gay sex, Arun Kumar, Akhil Bharatiya Prachar Pramukh of  RSS, said, ''Like the Supreme Court we too do not consider this a crime. However, same-sex marriage and relationship are neither natural nor desirable which is why we do not support such relationships.''

Like the Supreme Court we too do not consider this a crime. However, same sex marriage and relationship are neither natural nor desirable which is why we do not support such relationships: Arun Kumar, Akhil Bharatiya Prachar Pramukh, RSS #Section377 pic.twitter.com/N7EDVqtXtj

— ANI (@ANI) September 6, 2018

Arun Kumar stated that things like gay sex or same-sex marriages are still taboo and unacceptable things in the Indian society. 

''Traditionally, the Indian society too does not recognise such relation,'' he said adding, ''a man usually learns by experiences which is why this subject has to be dealt at social and psychological levels.''

The reactions from the right-wing outfit came shortly after the Supreme Court decriminalised homosexuality between consenting adults by declaring Section 377, the penal provision which criminalised gay sex, as "manifestly arbitrary".

In separate but unanimous verdicts, a five-judge Constitution Bench of Chief Justice Dipak Misra, Justice Rohinton Nariman, Justice AM Khanwilkar, Justice DY Chandrachud and Justice Indu Malhotra partially struck down Section 377 of the Indian Penal Code (IPC) as unconstitutional.

The bench said it is no longer an offence for LGBTIQ (lesbian, gay, bisexual, transgender/transsexual, intersex and queer/questioning) community to engage in consensual sex between two adults in private.

Reading out the judgement, Chief Justice Misra said attitudes and mentality have to change to accept others' identity and accept what they are, and not what they should be. 

"It is the constitutional and not social morality which will prevail," said the court. 

The verdict sparked celebrations in the LGBTIQ community across India even as the judgement was being read out. Many of the community members who had assembled outside the apex court jumped in joy and distributed sweets. 

Chief Justice Misra said 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 will not apply to consensual same-sex acts between homosexuals, heterosexuals, lesbians, the court said, clarifying that sexual act without consent and bestiality will continue to be an offence under section 377.

"An individual has full liberty over his or her body and his or her sexual orientation is a matter of one's choice," said the Chief Justice.

"Time to bid adieu to prejudicial perceptions deeply ingrained in social mindset. Time to empower LGBTIQ community against discrimination. They should be allowed to make their choices," he added.

In a concurring judgement, Justice Nariman said homosexuality is "not a mental disorder or disease".

He said the LGBTIQ community has an equal right to live with dignity and are entitled to equal protection of the law. He directed the Centre to give wide publicity to this judgment to remove the stigma attached to homosexuality.

Justice Chandrachud said to deny the LGBTIQ community their right to sexual orientation is a denial of their citizenship and a violation of their privacy.

"They cannot be pushed into obscurity by an oppressive colonial legislation... Sexual minorities in India have lived in fear, hiding as second-class citizens," said Justice Chandrachud, adding "the state has no business to intrude on such matters".

Justice Indu Malhotra said that history owes an apology to the LGBTIQ community for all that they have suffered on account of the ignorance of the majority about homosexuality. 

"LGBTIQ people have a right to live unshackled from the shadow," she said.

The Supreme Court verdict, which overruled its own earlier judgement, assumes significance as in the earlier round of litigation in 2013, the top court had reversed a Delhi High Court ruling decriminalising homosexuality.

The Delhi High Court bench, headed by then Chief Justice AP Shah, had in July 2009 legalised homosexual acts between consenting adults by overturning the 149-year-old law - finding it unconstitutional and a hurdle in the fight against HIV/AIDS. 

In December 2013, a Supreme Court bench comprising Justice GS Singhvi and Justice SJ Mukhopadhaya in the Suresh Kumar Koushal and another vs Naz Foundation and others case had set aside the high court's judgement and said that it was for the legislature to look into desirability of deleting section 377 of IPC. 

The matter was subsequently resurrected in July 2016, when a fresh petition was filed by members of the LGBTIQ community -- dancer N.S. Johar, journalist Sunil Mehra, chef Ritu Dalmia, hotelier Aman Nath and business executive Ayesha Kapur -- which was then marked to the Constitution Bench by a Division Bench.

The reference was made on the basis of submission that it was the first time that individuals directly affected by the provision were approaching the court. 

Among the petitioners are a batch of current and former students of Indian Institutes of Technology. Claiming to represent more than 350 LGBTIQ alumni, students, staff and faculty from the IITs, the petitioners said that the existence of Section 377 had caused them "mental trauma and illnesses, such as clinical depression and anxiety and relegated some of them to second-class citizenship".

Today's verdict was hailed by top political parties, celebrities and even the United Nations, which said that the verdict will help eliminate social stigma.

Congress on Thursday described the Supreme Court's decision to decriminalise homosexuality as "momentous" saying it was an important step towards a liberal and tolerant society.