The Bar Council of India had passed a resolution asking the Supreme Court to leave the marriage equality issue to Parliament to deal with.
Published Apr 27, 2023 | 11:01 PM ⚊ Updated Apr 27, 2023 | 11:02 PM
The same-sex marriage case is being argued in front of the Supreme Court's five-judge Constitution Bench led by the CJI. (Creative Commons)
Over 600 students from as many as 36 LGBTQIA+ collectives from law schools all over India condemned the Bar Council of India (BCI) statement against the ongoing case of legal validation of same-sex marriages, also known as the marriage equality plea, in the Supreme Court.
The BCI on 23 April, in a controversial move, passed a resolution asking the apex court to stop hearing the case and leave the issue for the legislature to deal with.
A Delhi Bar Associations panel also passed a similar resolution two days later.
“We condemn the BCI’s statement as queerphobic, regressive, and hegemonic, and seek to raise awareness about the importance of recognising and upholding the rights of LGBTQIA+ individuals in India,” the law students’ collectives said.
Earlier, a group of over 400 parents — Sweekar, The Rainbow Parents, a support group of parents of Indian children who identify as members of the LGBTQIA+ community — urged Chief Justice of India (CJI) DY Chandrachud to grant their LGBTQIA+ children the right to “marriage equality”.
The law students’ collective noted that the passing of this resolution was entirely unwarranted and a deplorable attempt by the BCI to illegitimately create influence for itself.
It said, “The BCI must re-familiarise itself with the role envisioned during its establishment, look at the state of the Indian legal profession, and devote its resources to more pressing challenges — rather than needlessly entering constitutional debates.”
It added that the ongoing case concerned the recognition of the fundamental rights (to equality, freedom, and privacy) that queer persons already have under the Constitution.
The statement was issued by Queer Collective and Philosophy Club, National Law University Delhi; Queer Alliance, Savitri Phule Ambedkar Caravan, and Feminist Alliance, National Law School of India University; Queer Collective and Students’ Federation of India, OP Jindal Global University, and others.
“The BCI denies any role of fundamental rights in its resolution, instead characterising marriage equality as a political decision. This shows their heinous indifference towards the reality of queer and trans persons living as second-class citizens in our country,” the students’ collective said.
Calling the BCI resolution “ignorant, harmful, and antithetical” to the Indian Constitution and the spirit of inclusive social life, the collective said that it attempted to tell queer persons that the law and the legal profession had no place for them.
Recalling the apex court’s 2018 landmark judgement decriminalising consensual homosexual intercourse and relationships in the Navtej Singh Johar vs Union of India case, the students’ collective said, “We, the undersigned, are queer and allied student groups across Indian law schools. As future members of the Bar, it has been alienating and hurtful to see our seniors engage in such hateful rhetoric.”
The law students’ collective asked the BCI to respect the letter and spirit of the 1961 Advocates Act, which clearly defines the body’s mandate based on its regulatory function.
“Nothing in the Act, as interpreted by the Supreme Court, empowers the BCI to pass comments on sub-judice matters,” it asserted.
It added that the passing of this resolution was entirely unwarranted and a deplorable attempt by the BCI to create influence for itself illegitimately.
“The BCI must re-familiarise itself with the role envisioned during its establishment, look at the state of the Indian legal profession, and devote its resources to more pressing challenges, rather than needlessly entering constitutional debates,” the law students’ collective said.
The collective said that it was most troubled by the BCI’s stunning disregard for constitutional morality.
“Our Constitution is a counterweight to majoritarianism, religious morality, and unjust public opinion. Constitutional morality dictates that marriage equality must not be made subject to the wishes of a casteist, cis-heteronormative, and patriarchal society,” it said.
It added that the Constitution was there to save people from the worst scourges of public opinion.
“To subject fundamental rights to societal decisions is to betray the vision of morality our Constitution commits us to; it is to betray the Constitution itself,” the law students said.
It also noted that the Supreme Court warned of majoritarian bias and protected fundamental rights against its tyranny in the Justice (retd) KS Puttaswamy case — also known as the Right to Privacy verdict.
Meanwhile, the Supreme Court will resume the hearing in the case on 3 May after summing up the proceedings on 27 April.
