A judgment that's inexplicable on several counts

A: So R has two mammas, I have one mamma and one papa and some babies have two papas (said my daughter concluding a conversation we were having). It is not difficult to understand.Even my three-year-old gets it. Love, intimacy, relationships and families have no boundaries.They simply are. Whether we love women or men, whether we are women or men or trans people or indeed anyone else, the right to choose whom we love and want to be part of families with (or not) should be ours.

The Supreme Court (SC) judgment in one fell swoop takes away any possibility of such rights and undoes the hope offered by the Delhi High Court judgment in 2009. It seems an inexplicable judgment — there seemed to be every reason for there to be a judgment that supported people’s human rights, ironically coming as it does only one day after World Human Right’s Day. There are several reasons why this judgment makes no sense at all. Firstly, it seems to oppose India’s strategic bid for a place as a serious international power. It would have been in keeping with the image India has been trying to project as a global modern country for the SC judgment to ratify the Delhi HC judgment thus demonstrating our claim to being progressive and ‘civilised’. Even if for instrumental strategic reasons a little pink-washing would not have gone amiss. From a purely rational point of view, this judgment is not just regressive, it is embarrassing. With what face does India plan to further it’s bid for a seat in the Security Council? Brazil and South Africa — two other countries claiming a permanent place both legalised same sex marriage in 2004 and 2006 respectively.

Secondly, this judgment makes a mockery of any idea that consent matters. The right to say “yes”, is an integral component of the right to say “no”. In a context where the country is hotly debating sexual assault and violence against women, this judgment is more than a little out of sync. If we are so incensed about sexual assault, we should be just as angry about the denial of peoples’ right to consent. It is ironic that in India, marital rape is still legal but consensual sex between adults of the same sex is criminalised.

Thirdly, the judgment does not build on judgments of subordinate courts. This judgment ratifies an archaic law that determines we cannot love people of the same sex. This judgment is not about the LGBT community but about everyone. Elsewhere outside Delhi, khap panchayats decide that people cannot love across class or community lines. Khaps dictate that women should not carry mobile phones lest they get out of hand and start controlling their own sexuality.

So also this judgment expresses the anxiety that same sex love might lead to all kinds of havoc in the country.

It is inexplicable because it has been four years since the Delhi HC decision and the institution of marriage is intact, the institution of the family has not crumbled and the sky is still in its place (and if the ozone layer is more depleted, this cannot be blamed on the decriminalisation of sex between consenting adults).

This judgment is bad news for anyone who cares about freedom of expression and civil liberties.

By refusing to uphold the rights of its citizens to sexual intimacy and relationships, the SC judgment is sending the message that our rights are expendable. Marginal people in any way — women, Dalits, tribals, LGBT people, trans people are being served notice (and not for the first time) — our rights do not matter.

The writer is co-author of Why Loiter?Women and Risk on Mumbai Streets