No right of way for the majority

No right of way for the majority

Article

1.  Faizan Mustafa, an eminent jurist, writes on how by rejecting homogenization of culture, Supreme Court‘s verdict on Section 377 has upheld the right of religious minorities.

Important Analysis

2. Every major religion has disapproved of homosexuality:

• Judaism and Christianity consider homosexuality a sin and Judeo-Christian morality   had a major impact on the colonial state’s law.
•  Islam too considers homosexuality a sin.
•  Ancient Indian culture and mythology were more liberal but it is considered a taboo in Hindu society too

3. Supreme Court has merely decriminalized homosexuality but it has not altered the civil law on it. So all the civil laws that allow for discrimination of homosexuality still remain intact.

Divorce

•  As per Muslim Marriage Act, 1939 a Muslim wife can still seek divorce from her   husband if he indulges in homosexuality.
•  Under section 13 of Hindu Marriage Act, 1955 sodomy is still a ground for divorce.
• Indian Divorce (Amendment) Act, 2001 makes sodomy as a ground for divorce under Christian law.

Adoption

•  Even now homosexual couples cannot adopt a child.

Marriage

•  Same-sex marriages have not yet been legalized.

Inheritance

• Many parents have disinherited their homosexual children.
• Those children can still not lay claim to their inheritance.

4. Observations of SC Judges on Section 377

•  The law criminalizes behavior that does not conform to the heterosexual expectation of the society.
•  Self determination lies at the core of the concept of identity.
• CJI said that attitude and mentality needs to change and we must respect the individual for “who they are”.
• The judges have unanimously held that freedom of choice cannot be subjected to majoritarian perceptions.
• While striking down Section 377 the court accepted the ‘harm theory’. The court ruled that anything that is ‘neither harmful nor contagious to society’ cannot be criminalized

  5. Probable Impact of these observations

• Ban and sale and consumption of beef:  Beef consumption cannot be prohibited now just on the ground that majority in India revere cow.
• Anti conversion law:  Changing religion in India is a private matter of the individual and the state might not have a say on it.
• Triple Talaq Bill: SC in Shayra Bano (2017) judgment held that Triple Divorce does not ‘dissolve a marriage or causes harm’.
• Since this bill criminalizes the act of instant triple talaq and  prescribes a jail term of 3 years, it might not stand the scrutiny of law as it violates the ‘harm theory’

Conclusion

6. Any court judgment or laws cannot remove social prejudices on their own; however the verdict will certainly help in removing the burden on sexual minorities.

7. It will usher a ‘Choice jurisprudence’ in India and religious minorities are well within their rights to assert their choices.