Days after the Bar Council of India (BCI) passed a resolution opposing same-sex marriage, a collective of queer and allied student groups across Indian law schools issued a statement condemning the same, terming it "hurtful" and "hateful."
The letter issued on Thursday, 27 April, read, "The resolution is ignorant, harmful, and antithetical to our Constitution and the spirit of inclusive social life. It attempts to tell queer persons that the law and the legal profession have no place for them."
The Supreme Court Bar Association also issued a statement against the BCI's resolution on Thursday, terming it "highly inappropriate."
Passed on 23 April, the BCI's resolution stated that same-sex marriage is "matter of great anxiety and serious concern for the Bar" and that the issue should be dealt exclusively through the legislative process.
"...the issue at hand is highly-sensitive, commented upon and criticised by various sections of society, including socio-religious groups, for being a social-experiment, engineered by a selected few. This, in addition to it, being socially and morally compunctive."BCI's resolution
Contending that the Bar is the "mouthpiece of the common men," the resolution went on to claim that "more than 99.9% of people of the country are opposed to 'the idea of same sex marriage' in our country."
The statement by the students, however, rejected this claim, saying: "Having cited no real authority, the BCI blatantly concocts statistics of '99.9%' of Indians opposing same-sex marriage, to run the worn-out theory that queer persons constitute a 'miniscule minority'. This has already been rejected by the Supreme Court in Navtej Singh Johar."
Moreover, when The Quint spoke to lawyers across India, they also disagreed with these claims and said that it isn't within the BCI's ambit to comment on such matters.
What the BCI Said
The BCI, headed by Manan Kumar Mishra, passed this resolution after a joint meeting with representatives of all the State Bar Councils.
The statement said that "marriage has been typically accepted and categorised as a union of biological man and woman for the twin purpose of procreation and recreation."
This remark comes on the heels of Chief Justice of India DY Chandrachud making a verbal observation during the hearings that "a biological man and biological woman are not absolute concepts."
"Any decision by the Apex Court in such a sensitive matter may prove very harmful for the future generation of our country," the BCI further said, adding that the "vast majority" believes that it would be "against the culture and socio-religious structure of our country."
Can the Bar Comment on Marriage Equality?
"The BCI's statement has come as a surprise to the law fraternity because ... we have never seen BCI take interest in any matters before," Supreme Court advocate Sonali Shelar tells The Quint.
She adds, "I am also not sure where the number of 99.9% Indians being against same-sex marriages comes from; the statement is shocking."
Section 7 of the Advocates Act, 1961, notes down the functions of the BCI – and it involves ensuring that advocates follow the code of conduct and the standard of legal education imparted by universities recognised by it does not falter.
The BCI can also prescribe what rules and regulations are to be followed for the purposes of education, enrolment, and practice of the law. It conducts disciplinary proceedings if an advocate is said to have flouted the rules.
"However, that's where its functioning ends," Radhika Roy, a lawyer based out of New Delhi, tells The Quint.
"The BCI, as an organisation, is solely instituted for the betterment of the profession and for advocates enrolled across India. It must also be noted that this umbrella of advocates includes people belonging to the LGBTQIA+ community, and the BCI has a duty to ensure that their fundamental rights remain protected," she says.
The BCI must also not have any political or any other ideological leanings, and such statements end up undermining the authority of our courts, she adds.
Advocate Soutik Banerjee concurs: "The BCI is a statutory body, and being a creature of statute, it is bound to act within the confines of the statute. It cannot be used as a forum to share opinions on contentious issues or ongoing litigations in an undemocratic manner."
The lawyers further say that "issuing a statement with regard to a matter that is sub-judice is categorically out of the BCI's ambit."
And as far as the same-sex marriage proceedings are concerned, the BCI's statement does not carry any weight, they add.
Banerjee tells The Quint:
"It's inappropriate for the Bar Council to pass a resolution about an ongoing case before the Supreme Court, with a view to push for a desired outcome. If they felt so strongly about the issue, and their statutory mandate so permitted, they should have intervened in the case before the Supreme Court, which has been pending for more than a year."
The lawyer added that if the Bar wanted to make its opinions heard, "it would have been well within their powers to hold seminars or dialogues on the issue of marriage equality. They could have also organised open meetings inviting advocates to share their views."
"The office bearers of the Council cannot by mere discussion amongst themselves and their state counterparts, portray that their opinion has the mandate of the entire Bar of the country. That is just plain misrepresentation, and does disservice to the lawyer community," Banerjee says.
After the BCI passed the resolution, queer activists and lawyers were quick to call the Bar out for its lack of diversity, despite its claims of being the "mouthpiece of common men."
Editor and screenwriter Apurva wrote on Twitter: "There isn't one woman on the Bar Council of India. Not one Christian, Muslim or anyone non-Hindu. Don't know what their sexual orientation really is, but I suspect none identifies as Gay or bisexual. Today they are opposing #marriageequality, tomorrow they will oppose you. #BCI"
Yes, We Exist, a platform that advocates for queer and trans rights, tweeted that the BCI is an "all boys club."
Human rights lawyer and queer rights activist Rohin Bhatt also took to Twitter to point out that the BCI "has been often exceeding its limits of power and functions prescribed under the Advocates Act of 1961."
"The Bar Council of India has been mum on literally ALL matters of public and national importance. When allegations of impropriety, bench hunting, corruption, etc. were protested by some, the BCI was deliberately quite. Suddenly, they bring out shoddy data to help govt's case," journalist Saurav Das tweeted.