On Thursday (April 27), Chief Justice of India (CJI) DY Chandrachud chided Solicitor General Tushar Mehta for arguing that recognition of same-sex marriages could raise a defence for incest in the near future.
“Visualise a situation, when a person is attracted to those persons who are mentioned in prohibited relationships. Incest not uncommon in the world and world over it is prohibited,” Mehta submitted.
“Suppose a person is attracted to his sister, can they say we are consenting adults, we’re entering into activities privately and we claim our right of autonomy, choice,” he added.
SG: please visualise a situation 5 years down the line.. i am attracted to someone in the prohibited relationship… incest is not uncommon across the world and it is prohibited.. someone is attracted to the sister.. and claim autonomy and is doing something in private domain……
— Bar & Bench (@barandbench) April 27, 2023
“Based on that very argument can someone not challenge this definition (of prohibited degrees)? Why this restriction? Who are you to decide with whom?”, the Solicitor General emphasised.
CJI DY Chandrachud was quick to dismiss the possibility and claimed that such an idea is ‘far-fetched.’ Tushar Mehta then pointed out that the argument for the legalisation of same-sex marriage appeared far-fetched at one point.
“…These are all subject to regulation by law. So these are very far-fetched for anybody to even argue before us that orientation is so absolute that I can therefore commit an act of incest. No court will ever countenance this,” he stated.
As expected, the usual suspects pounced on the opportunity to mock and berate Tushar Mehta. Congress loyalist Dr Pooja Tripathi claimed, “Solicitor General just compared incest to homosexuality! The moral and intellectual bankruptcy is for real!”
Solicitor General just compared incest to homosexuality!
— Dr Pooja Tripathi (@Pooja_Tripathii) April 27, 2023
The moral and intellectual bankruptcy is for real! https://t.co/VJyVyTpB2u
“Comparing same-sex relationships to incest is morally wrong and disgusting! This comparison is fueled by the belief that only heterosexual relationships are ‘normal.’ These lawyers are in urgent need for education and sensitivity programs. Their words are unbearable,” posted one user.
Comparing same-sex relationships to incest is morally wrong and disgusting! This comparison is fueled by the belief that only heterosexual relationships are 'normal.' These lawyers are in urgent need for education and sensitivity programs. Their words are unbearable. 🤦 https://t.co/7Kbzw38U82
— Sawang Wangchha (@SawangWangchha) April 27, 2023
‘Journalist’ Rohinin Singh tweeted, “Outrageous to compare homosexuality with incest. The government’s lawyer needs to stop arguing like a parochial RWA uncle.” This is despite the fact that the Solicitor General did not compare homosexuality with incest.
Outrageous to compare homosexuality with incest. The government’s lawyer needs to stop arguing like a parochial RWA uncle. https://t.co/hCI63lcK3d
— Rohini Singh (@rohini_sgh) April 27, 2023
Another ‘journalist’ named Maya Mirchandani said, “For the government’s lawyers to use incest as an argument against legalising same-sex marriage is beyond repugnant. Just truly sickening.”
For the government’s lawyers to use incest as an argument against legalising same sex marriage is beyond repugnant. Just truly sickening. https://t.co/BCymV7iWiE
— Maya Mirchandani 🇮🇳 (@maya206) April 27, 2023
“It is not a legal argument. It is the kind of point that a schoolboy might make up. And it reveals something about his psychological make up that is worrying.
The term is Adelphogamy,” one Twitter user brazened it out.
The Solicitor General cannot have thought through the implications of this bizarre argument. It is not a legal argument. It is the kind of point that a schoolboy might make up. And it reveals something about his psychological make up that is worrying.
— JayEnAar (@GorwayGlobal) April 27, 2023
The term is Adelphogamy. https://t.co/1hCsSvYAJn
“Tushar Mehta you spineless M೦ron LGBTQ+ is different from incest,” wrote another Twitter user (@ChekrishnaCk).
Tushar Mehta you sp!neless M೦ron LGBTQ+ is different from incest. https://t.co/0tiXTOFvaN pic.twitter.com/GTLOvJzWub
— 👑Che_ಕೃಷ್ಣ🇮🇳💛❤️ (@ChekrishnaCk) April 27, 2023
Normalisation of incest is not far-fetched
It must be mentioned that just a decade ago, the Supreme Court of India upheld the criminalisation of homosexuality in 2013. But 5 years later, the same apex court struck down Section 377 of the Indian Penal Code (IPC) and decriminalised same-sex relationships.
Fast forward 5 years, and the Supreme Court is deliberating on giving a legal sanction to same-sex marriages. Given the trajectory of the demands, nothing seems to be unprecedented at this point.
It is thus difficult to rule out demands for the legalisation of incest, a hypothetical scenario proposed by the Solicitor General in the apex court on Thursday (April 27).
Attempts have been made from time and again to legitimise sexual relationships between extremely close relatives and immediate family members, on grounds of autonomy, consent and privacy.
As early as September 2014, the German Ethics Council had justified incestuous relationships.”Criminal law is not the appropriate means to preserve a social taboo,” it had said.
“The fundamental right of adult siblings to sexual self-determination is to be weighed more heavily than the abstract idea of protection of the family,” the Council further added in its statement.
Such a proposal was also floated in the Parliament of Switzerland in 2010. “Incest continues to be a taboo in our society, but it’s not up to criminal law to stop every morally reprehensible aspect of behaviour. Rather, the law should be for punishing behaviour that’s particularly socially damaging,” a Justice Department spokesperson had said then.
In April 2021, advocates of such ‘forbidden relationships’ came out in support of a New York parent who wanted to marry his/her own adult child. There is a global campaign to legitimise incest on the ground that two consenting adults must be allowed to live the way they deem fit.
Given the recent arguments about gender, privacy, and sexual autonomy in the Indian Supreme Court, petitions seeking legal sanction for incest are not ‘far-fetched’ five years down the line.
