Bar council urges Supreme Court not to hear same-sex marriage case

Bar councils with BCI, the apex lawyers’ body expressed its “great anxiety and serious concern” over the Supreme Court’s ongoing hearing on same-sex marriage.

The Bar Council of India (BCI) on Sunday implored the Supreme Court to desist from ruling upon the same-sex marriage case, contending that any indulgence by the top court will result in “destabilising the social structure of the country” and it would be “catastrophic” to overhaul something as fundamental as the conception of marriage by the court.

The bench is expected to hold the next hearing in the matter on April 25.

In a resolution issued on Sunday evening after a joint meeting of all the state bar councils with BCI, the apex lawyers’ body expressed its “great anxiety and serious concern” over the Supreme Court’s ongoing hearing of a clutch of petitions for legal recognition of the same-sex marriage, adding any change in the legal structure should come only with legislature.

“India is one of the most socio-religiously diverse countries of the world consisting of a mosaic of beliefs. Hence, any matter which is likely to tinker with the fundamental social structure, a matter which has far reaching impact on our socio-cultural and religious beliefs should necessarily come through Legislative process only, the meeting unanimously opined. Any decision by the apex court in such sensitive matter may prove very harmful for the future generation of our country,” maintained the joint resolution.

To be sure, BCI is not a party to the petitions before the Supreme Court.

According to BCI, ever since the inception of human civilization and culture, marriage has been typically accepted and categorized as a union of biological man and woman for the twin purpose of procreation and recreation.

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“In such background, it would be catastrophic to overhaul something as fundamental as the conception of marriage by any law court, howsoever well-intentioned it may be...More than 99.9% of people of the country are opposed to ‘the idea of same sex marriage’ in our country. The vast majority believes that any decision of the apex court in petitioners’ favour on this issue will be treated to be against the culture and socio religious structure of our country,” the resolution said.

It asked the Supreme Court, hearing a batch of 20 petitions for granting legal sanctity to the same sex marriage, to respect the sentiments and mandate of the mass of the country.

“Every responsible and prudent citizen of the country is worried about the future of his/her children after coming to know about the pendency of this matter before the Supreme Court...The Bar is the mouthpiece of the common men and, therefore, this meeting is expressing their anxiety over this highly sensitive issue. The joint meeting is of clear opinion that if the Supreme Court shows any indulgence in this matter, it will result in destabilizing the social structure of our country in coming days,” it added.

The resolution asked the top court to leave the issue for legislative consideration, which after wide-ranging consultative process, may arrive at an appropriate decision as per the societal conscience and mandate of the people of our country.

According to BCI chairman Manan Kumar Mishra, the meeting also unanimously resolved to ask the Union Government to frame effective law for the protection of lives, interests and privilege of the advocates and their families and provide compensation to them in case of any attack.

Around 50 petitioners have approached the top court asking for legalisation of same-sex marriage, arguing that denying them the right to wed was unconstitutional and violative of their fundamental rights. If they succeed, India will become only the third country in Asia to allow same-sex unions, a mere five years after the court decriminalised homosexuality.

A five-judge bench began hearing the case on April 18 after turning down the Union government’s objections against the judicial determination of the issue. While the Centre maintained that it is exclusively for the legislature to grant legal recognition to a social institution and that the court must first seek the views of all states, the court went ahead with the matter saying it will adjudge the issue in a “restricted arena” of granting validation to same-sex marriages by reading down or interpreting relevant provisions of the Special Mariage Act (SMA).

The bench comprises Chief Justice of India Dhananjaya Y Chandrachud and justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and PS Narasimha.

During the proceedings on Wednesday, the constitution bench disapproved of the Centre’s stand that the demand for legal validation of same-sex marriage is an “urban elitist concept”, saying that an innate characteristic of a person cannot be called “elitist”. It added that the government has failed in adducing any data to buttress its statement even as the Centre informed the bench that it had a day ago written to all states, asking them to submit their views on the legalisation of same sex marriages within 10 days.

On Thursday, the constitution bench remarked that by decriminalising homosexuality in 2018, the top court had not only ratified consensual physical intercourse between gay couples but also contemplated that same-sex couples could stay in a stable, “marriage-like” relationship, adding it is now for the apex court to mull over redefining the evolving notion of marriage in the wake of demands for legal recognition of same-sex marriage in India.

The bench is expected to hold the next hearing in the matter on April 25.