Students from 36 law schools condemn BCI's resolution against marriage equality

The statement says that as future members of the Bar, the students said it was “alienating and hurtful” to see their seniors engage in “hateful rhetoric”.

Indian students from 36 law schools have released a statement collectively on "condemnation and solidarity against the Bar Council of India's (BCI) resolution on marriage equality, on which the Supreme Court is currently hearing pleas.

Taking a dig at the BCI, the letter said, it is a regulatory body according to the Advocates Act, 1961. It states, “Nothing in the Act, as interpreted by the Supreme Court, empowers the BCI to pass comments on sub judice matters.” (File)

The statement says that as future members of the Bar, the students said it was “alienating and hurtful” to see their seniors engage in “hateful rhetoric”.

“On 23rd April 2023, the Bar Council of India (‘BCI’) passed a Resolution on the ongoing marriage equality petitions, urging the Supreme Court to abdicate its role and defer the matter to the Parliament instead. 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. 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 letter read.

The students in the letter further write about their feelings when the consensual unions between non-heterosexual couples was decriminalised, they felt, “an intimately unforgettable affirmation of the law’s emancipatory, liberatory, and transformative potential. It is in this spirit that we write this statement of condemnation and solidarity”.

The BCI on Sunday urged the Supreme Court to desist from ruling upon the marriage equality 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.

Taking a dig at the BCI, the letter said, it is a regulatory body according to the Advocates Act, 1961. It states, “Nothing in the Act, as interpreted by the Supreme Court, empowers the BCI to pass comments on sub judice matters.”

Follow Live Updates of the non-heterosexual unions Supreme Court hearing here.

It further adds, “The passing of this Resolution is entirely unwarranted and a deplorable attempt by the BCI to illegitimately create influence for itself. 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 letter says that the ongoing case is about queer people fighting for “recognition of fundamental rights (to equality, freedom, and privacy)” which they have under the Constitution. It further mentions how BCI denies having any role in fundamental rights in its resolution.

“This shows their heinous indifference towards the reality of queer and trans persons living as second-class citizens in our country. Consequently, the BCI completely misses that fundamental rights cannot be made to suffer from the inaction of the legislature,” the letter reads.

The students further mention that they were “most troubled” by BCI's disregard for “constitutional morality”.

It says, “Constitutional morality dictates that marriage equality must not be made subject to the wishes of a casteist, cis-heteronormative, and patriarchal society… 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.”

BCI's resolution had said, "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.”

Speaking on the same, the letter says, that the Bar cited no sources while mentioning the percentage. It said, “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’… The usage of hateful rhetoric is consistent throughout the Resolution; the BCI feels no shame in calling demands for marriage equality ‘morally compunctive’ and ‘a social experiment’.”

BCI had also said, 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.

The letter called this assertion ignorant and unsupported.

It further said, “This is a colonial reading of Indian history, culture, and civilisation – there is diverse evidence of queer love and marriage existing in various forms across Indian cultures since ancient times. The BCI ignores this evidence. Having appointed itself, in another overreach of power, as a ‘mouthpiece of the common men’, the BCI demonstrates how it is in fact a mouthpiece for a very specific class of men who have the privilege to make hegemonic statements on our culture without any form of accountability.”

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