Marriage equality hearing in SC: Law students criticise BCI’s regressive statement

New Delhi [India], April 27 (ANI): Over 30 LGBTQIA+ collectives with 600+ students from law schools all over India have criticised the regressive statement issued by the Bar Council of India (BCI) against the marriage equality hearing in the Supreme Court.

“We condemn the BCI’s statement as queerphobic, regressive, and hegemonic and seek to raise awareness about the importance of recognizing and upholding the rights of LGBTQ+ individuals in India,” the collectives said in a press statement.
On April 23, 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.

https://www.upsc.gov.in/FR-CSM-22-engl-230523.pdf

“The Resolution is ignorant, harmful, and antithetical to our Constitution and the spirit of inclusive social life,” the collective said adding that 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. Many of us remember the feeling that we had when Navtej Singh Johar was decided: 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 statement said.

The statement said that the BCI ought to respect the letter and spirit of the Advocates Act, 1961, 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.

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.

https://www.upsc.gov.in/FR-CSM-22-engl-230523.pdf

“The ongoing case concerns the recognition of fundamental rights (to equality, freedom, and privacy) that queer persons already have under the Constitution. 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. Consequently, the BCI completely misses that fundamental rights cannot be made to suffer from the inaction of the legislature,” the collective said.

“We are 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,” read the statement.

According to the statement, It is to save people from the worst scourges of public opinion that we have a Constitution in the first place. 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.

https://www.upsc.gov.in/FR-CSM-22-engl-230523.pdf

“The Supreme Court has already warned of majoritarian bias and protected fundamental rights against its tyranny in Puttaswamy, holding that the exercise of fundamental rights is insulated from ‘the disdain of majorities, whether legislative or popular,” it read.

The statement has been 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, O. P. Jindal Global University among others.