Patriarchy wins as Hindu, Muslim conservatives hail SC verdict on gay marriage

This inverted form of the rousing slogan penned by Karl Marx and Friedrich Engels in The Communist Manifesto ricocheted through the mind as a reverse-swinging thought on spotting a newspaper headline: “RSS, VHP and Jamiat welcome verdict”.

The news report detailed this unlikely synergy of thought between the three organisations who are often on opposing sides of the fence more often than not – the RSS and VHP on one side and the Jamiat Ulema-e-Hind on the other.

There was more across-the-political-spectrum commonality of purpose on the Supreme Court judgement that rejected the plea to legalise same-sex marriages.

On the one hand, senior BJP leader and former Bihar deputy chief minister who is presently Rajya Sabha member, Sushil Modi, welcomed the Supreme Court judgement, reminding people that it aligned with the party’s viewpoint. He added that the party veered to this opinion because same-sex marriage goes against India’s cultural ethos.

Owaisi’s view

Paradoxically on the other hand, fiery AIMIM leader Asauddin Owaisi echoed Sushil Modi’s sentiment. The nuanced divergence stemmed from his reading that the apex court “upheld the principle of Parliamentary supremacy. It is not up to the courts to decide who gets married under what law”.

More importantly, however, he disagreed with the court’s opinion that “transgender people can marry” under the Special Marriages Act. His point of view – “Islam does not recognise marriage between two biological males or two biological females“ – had strong similarities with views of various affiliates of the Rashtriya Swayamsevak Sangh, who too cited religious tenets for being opposed to the idea of same-sex marriage.

Borrowed from the west

Alok Kumar, international working president of Vishwa Hindu Parishad, used the standard Sangh Parivar tropes labelled on those who moved or backed the plea as “progressive, westward-looking and with little understanding of Indian family and social traditions and structures”.

Unambiguously he asserted that not giving gay couples “the right to adopt a child was a good step”.

Muslim cleric Maulana Sajid Rashidi displayed a similar view. He called for declaring same-sex relationships as a crime because it is not part of the Indian culture and has been borrowed from the west. “All marital practices in the country are rooted in our time honoured values and societal traditions,” he added.

Hindu mythologies

It is a different matter that the often embarrassment-causing RSS Sarsanghchalak with his untimely public comments, Mohan Bhagwat, earlier this year reminded people of gay characters in Hindu mythologies, especially the Mahabharata. He pleaded that there must be place for all as laid out in Hindu traditions.

Quite clearly, the chorus of endorsements for the apex court judgement stems from the fact that it sides with those in favour of status quo. The much-awaited verdict bolsters the right of the few to decide what is ‘correct’ for the majority or more.

Damning same-sex relationships and the plea to legalise it is not just a matter of moralistic posturing. Instead, custodians of institutionalised religion presented it as an irreligious act.

In the melee over the central issue at stake, another matter received lesser attention than it should have taken. This was the claim of the government that the issue of deciding whether same-sex marriages should be legalised or not was the exclusive right of Parliament and the judiciary had no authority to adjudicate or power on the matter.

Significantly, many commended the judgement because it firmly ruled that it was up to Parliament to decide whether or not there was need to grant partners in same-sex unions with the same rights and powers as to those within ‘normal’ marriages.

Battling judiciary

In recent months there has been a clamour from within the current regime to limit the powers of the judiciary to adjudicate on matters related to constitutionality of laws passed by Parliament.

For more than half a century, the Basic Structure Doctrine postulated in the wake of the judgement in the Kesavananda Bharati case in 1973 has acted as a watchdog for the spirit of the Constitution. For close to a year, vice-president Jagdeep Dhankar, in conjunction with the previous law minister Kiren Rijiju, has attacked the idea of Basic Structure, saying that such a concept was non-existent.

He has also forwarded the viewpoint that there is nothing that Parliament does not have the right to amend. The fact that he has not been asked to refrain from raking further controversy on this issue is indicative of support for this viewpoint within the highest levels of government.

Social conservatism has been a primary reason for individuals and groups committed to opposing ideologies to make common cause against the plea for same-sex marriages.

The majority of these people see a ‘problem’ with anyone who wishes, acts or is actually, ‘different’. These custodians of tradition fear their power over the majority would dissipate, if they fail to prevent them from following the path of the few who choose to be social rebels, who do not believe that it is necessary to follow the path that others do.

The traditional patriarchal form of marriage not only see males or husbands as the primary individual in the union, while females or wives are treated as subservient.

Conservatives all

Heterosexuality is the only ‘correct’ form of sexual behavior and anyone who enters into a homosexual relationship and wishes to institutionalise this is seen as social or sexual deviant.

Thankfully, none of the five judges have tried to turn the clock back and called for criminalising homosexual relationships once again.

That small mercy apart, the verdict on the plea to legalise same-sex marriages followed another judgement steeped in conservatism – that on a woman’s plea to allow her to terminate her over 26-weeks pregnancy. Like in the same-sex marriages case, this verdict too was guided by patriarchal beliefs and eventually it was settled against the request of the petitioner.

Peculiarly, this case was decided by an all-male three judge bench after two women judges first permitted the woman to undergo an abortion but a day later, one of the two judges, Justice Hima Kohli, dramatically reversed her judgement.

The issue in this case directly involved the mental health of a woman, yet the matter was adjudicated by men. The judgement hits at the basic right of a woman to decide when, and most importantly, whether or not to give birth to a child.

Women and abortion

Even from the logical standpoint, the petitioner had a strong case. A married woman, she was already a mother of two. It was clearly stated that she would be hard pressed to physically, emotionally and financially take care of a third child. It was made clear that she could not undergo abortion prior to 24 weeks, the limit under MTP Act as amended in 2021. The delay in pleading before the court or not undergoing abortion when legally permissible was due to a medical condition.

Peculiarly, the three judges, and this included Chief Justice DY Chandrachud, chose to persuade the woman to continue the pregnancy. When this did not work, they adjudicated that she must continue with the pregnancy, difficulties notwithstanding.

This entire episode was devoid of logic and against humanism of any sort. The judges overlooked the woman’s fragile state of mind and her physical ailment, besides financial difficulties she would face after childbirth.

The MTP Act does not grant Indian woman reproductive autonomy in any way. Instead of examining this case from a practical standpoint, the judges chose to go merely by the book and the traditional view which does not give the woman the right to her body, especially reproductive rights or choice.

Even now, no Indian woman can walk into a clinic and declare that she wants to undergo an abortion because she has decided to terminate her pregnancy. To make it a legal MTP, the Indian woman has to provide a reason, medical or some other ground like trauma that led to her pregnancy.

Women and traditionalists

Even though it is not extremely difficult for urban women to terminate their pregnancies safely, the majority of women do not have the right to decide on their own because they live within harsh patriarchal orders where men decide whether she should abort or continue the pregnancy.

Instead of making the process of abortion easier for Indian women, the Supreme Court has permitted the patriarchal approach to pregnancy and its termination to prevail and stay in place.

It is no surprise that while the conservatives of all hues have commended one verdict, they felt no necessity to comment on the other because the three justices settled the matter to the satisfaction of traditionalists.

(The writer’s latest book is ‘The Demolition and the Verdict: Ayodhya and the Project to Reconfigure India’. His other books include ‘The RSS: Icons of the Indian Right’ and ‘Narendra Modi: The Man, The Times’. He tweets at NilanjanUdwin)

(The Federal seeks to present views and opinions from all sides of the spectrum. The information, ideas or opinions in the articles are of the author and do not necessarily reflect the views of The Federal)