Arrogating to itself the role of the “mouthpiece of the common man”, the Bar Council of India (BCI) has passed a resolution asking the Supreme Court to leave the issue of same-sex marriage to “legislative consideration”. The BCI said the legislature is “truly reflective of the will of the people”, and claimed that “more than 99.9% of people of the country” oppose same-sex marriage. Any decision of the Supreme Court (SC) in favour of the petitioners in the issue will be “treated to be against the culture and social religious structure of the country”. In doing so, the statutory body has failed its remit as defined by the Advocates Act, 1961. More importantly, it attacked the foundational role the Supreme Court plays in upholding Constitutional principles in their true spirit.
The SC, of course, is not bound to consider the resolution, but its corrosive effects can’t be ignored. As former additional solicitor general Indira Jaising pointed out in an article in The Indian Express, the council’s opposition to the apex court’s power of judicial review in the matter, citing the “the will of the people”, mirrors the Union law minister’s claim that the SC upheld the collegium system that is vital for judicial independence against “the will of the people”. Championing this “will” as the compass for the nation rather than the Constitution and the principles it enshrines paves the path for majoritarian oppression. Also, the Supreme Court is tasked with deciding on disputes brought to it by the citizens. The petitioners in the same-sex marriage matter have raised questions relating to fundamental freedoms that heterosexual citizens enjoy but are denied to them.
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Indeed, the Puttaswamy judgment of the SC makes clear the role of constitutional guarantees as a safeguard against this and the seminality of judicial review in such protection—“The fundamental nature of the Constitution is that of a limiting document, it curtails the powers of majoritarianism from hijacking the State. The power of review is the shield which is placed in the hands of the most judiciaries of constitutional democracies to enable the protection of the supreme document.” The BCI’s regulatory and representative mandate for the legal profession covers, among other areas, laying down standards for professional conduct and etiquette for advocates, safeguarding the rights, privileges, and interests of advocates, and promoting and supporting law reform. However, the fact that queer collectives from 36 Indian law schools have condemned the BCI resolution as “ignorant, harmful and antithetical to our Constitution and the spirit of inclusive social life” speaks volumes about how poorly the BCI has understood its remit.
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The BCI’s advocacy of legislative supremacy in the matter condemns its own LGBTQ members, along with the larger LGBTQ population, to suffer an erosion of rights and liberties because of legislative inaction. To the extent that the BCI’s opposition to same-sex marriage relies on the lack of social-religious sanction and cultural compunctions, the council has failed in carrying out its function of promoting and supporting reform of the law. The Council also abdicated the responsibility vested in it by opposing the judicial review of marriage laws—more particularly, the Special Marriage Act, which was crafted as a means to recognise unions that didn’t conform with what different communities separately held as legitimate. It needs to correct course if it doesn’t want to go down as having supported a move that relegates millions to second-class citizenship.
