Jury remains out over judgments made by India's top court

Supreme Court judgements spur debate on sexual freedoms and traditional practices
Jury remains out over judgments made by India's top court

Members of Hindu Sena shout slogans as they protest against the Supreme Court decision to allow women of all ages to enter inside the Kerala's Sabarimala temple, in New Delhi on Oct. 4. The temple, which is considered one of the holiest for Hindus, traditionally barred all women of menstruating age, between 10 and 50 from entering its premises. Last week India's top court revoked the ban following a decades-long legal battle and ruled that patriarchy cannot be allowed to trump faith. (Photo by Chandan Khanna/AFP)

Three recent landmark judgments by India's Supreme Court, on traditional practices as well as the rights of sexual minorities, have spurred much soul-searching and debate.

Many conservative religious leaders expressed outright opposition to the court rulings or reservations on aspects of them.

But a substantial proportion of India's population welcomed the removal of prohibitions related to sexual orientation, adultery and menstruation.

"These judgments are a reflection that the country is moving towards betterment and equality," said Raj Kumar, a social activist based in one of the country's commercial hubs, Mumbai.

He added that the Supreme Court had made it clear that unreasonable customs had no place in a progressive society.

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The latest of the three judgments, on Sept. 28, removed a traditional ban on girls and women, aged from ten to 50, from entering the Sabarimala Hindu temple in southern Kerala state.

The restriction was imposed on the ground that females could be menstruating and this was considered to be unclean.

In the second judgement, on Sept. 27, the court said consensual sex between two individuals, even if it was outside marriage, could not be treated as a crime.

The court effectively struck down a law that said a man could be punished for consensual sex with a woman without the knowledge of her husband.

The judgement held that the "archaic" British colonial period law treated women as the property of their husbands and criminalized consensual sex without respecting the right of women to choose sexual partners.

The first of the three court judgments, on Sept. 6, overturned a law criminalizing same-gender sexual acts.

It said consensual sex between two adults could not be held to be a punishable crime 'against the order of nature'.

Arun Agharwal, who blogs on gender bias issues in India, told ucanews.com that the series of judgments constituted a "ray of hope" for marginalized sections of society.

He noted that, despite reforming court judgments, changes in "social thinking" would take time.

Nonetheless, Agharwal welcomed the fact that a precedent had been set in relation to non-acceptance of laws based on inequality.

Agharwal said this would help people accept the need to protect human rights rather than discriminating against individual members of various groups.

"The country can become progressive only when there is no bias towards any section of the society," he said.

And, on this front, the Supreme Court was showing the way, he added. 

Christian leader A.C. Michael described the court's decriminalizing of sexual acts between people of the same gender as progressive.

Michael, however, said he had reservations in relation to the other judgments decriminalizing adultery and allowing women inside the Sabarimala temple.

He said Catholics such as himself found it "morally unacceptable" to allow people to have sex with an already married person.

"It violates the sanctity of marriage," he said.

He equated this to a person who breached an exclusivity agreement with a corporation.

"Same applies to marriage — it is a contract," Michael said.

On the Sabarimala temple judgment, he said this place of worship had a lot of restrictions and traditions and that not all men were allowed to causally visit it.

A man had to first prepare himself for 41 days by fasting, offering prayers and abstaining from sex.

"Disallowing women is part of such customs," Michael said.

"Please understand that the temple is not a tourist place which should be open to all."

Hindu groups were also upset and the temple's administrative board is considering seeking a review of the Supreme Court judgment.

Bishop Theodore Mascarenhas, secretary general of the Catholic Bishops' Conference of India, questioned the court's "interference" in the affairs of a religion as India's secularism allowed for the observance of traditions.

Church officials had earlier said that sex outside marriage continues to be a sin within the Catholic Church, notwithstanding the Supreme Court de-criminalizing adultery.

Muslim groups have also been critical.

Syed Ali Geelani, a Muslim leader, said Muslims view with grave concern the rulings legalizing gay sex and decriminalizing adultery.

He warned that allowing sex outside of marriage would lead to prostitution being more widespread and that "every trace of sanity and humanity" would be lost.

And he added that any future legalizing in India of same-sex marriage would be immoral, unnatural and unethical.

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