The historic US Supreme Court verdict legalising same-sex marriages will give a fillip to the gay movement in India, but is unlikely to have any direct bearing on petitions seeking to decriminalise gay sex because the ruling has only persuasive value in the country.
In December 2013, the Indian Supreme Court reversed a Delhi High Court verdict and criminalised consensual homosexual acts. Upholding the constitutional validity of Section 377 of the Indian Penal Code, it put the ball in Parliament’s court, saying it was for the legislature to take a call on the desirability of the controversial provision.
While curative petitions requesting India’s top court to correct its “mistake” remains pending, the US Supreme Court has led the country into an unprecedented era where “same-sex couples, too, may aspire to the transcendent purposes of marriage and seek fulfilment in its highest meaning".
“The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest,” ruled the US Supreme Court with a 5-4 majority.
In India - where the question is decriminalising consensual gay sex in private, leave alone the right to same-sex marriage - the entire debate has centred around societal norms, morality and tradition, instead of constitutional rights.
Many of the petitioners opposing de-criminalisation of gay sex before the Supreme Court of India are religious leaders.
The legal position on homosexuality in India - as it exists after the Supreme Court’s verdict - goes against established constitutional principles of personal liberty, equality before law and non-discrimination on the basis of sex or sexual preferences.
The US verdict sets an example for equal treatment of sexual minority and entitles them to the benefits hitherto extended by the State only to heterosexual couples. It is also a negation of social tradition and morality as a tool to curb freedom and sexual preferences of a section of the society.
“They ask for equal dignity in the eyes of the law. The Constitution grants them that right,” the US Supreme Court declared.
The real question is: Can the state, society or religious leaders regulate the sexual preference and behaviour of consenting adults in private?
Senior advocate Anand Grover, who represented Naz Foundation in the anti-377 case, said “The US Supreme Court has gone to the logical conclusion and recognised same-sex marriage. We are hoping that our courts will act now and decriminalise gay sex.”