Law students of 36 colleges condemn BCI resolution against same-sex marriage

As the Supreme Court (SC) enters its sixth day of hearing a batch of pleas seeking legal validation for same-sex marriages in India on Thursday, a group of over 30 queer collectives and over 600 law school students have put out a statement condemning the Bar Council of India (BCI) resolution against marriage equality.

On April 23, the BCI had expressed its concern on the same-sex marriage hearings in the SC, resolving that it would be "catastrophic" to overhaul something as “fundamental as the concept of marriage” and the matter should be deferred for legislative consideration. 

The BCI resolution was issued after a joint meeting attended by representatives of all state bar councils. "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 [the] legislative process only, the meeting unanimously opined," the resolution asserted.

It added that "any decision by the apex court in such a sensitive matter may prove very harmful for the future generation of our country".

The counter-statement put out today, which includes signatories from 36 law schools, including the National Law University, Delhi, the Faculty of Law, Delhi University, and the Gujarat National Law University, takes a firm stance against the BCI's "unwarranted and... deplorable attempt" to sabotage the conversation, which they claimed went beyond the apex bar body's mandate.

"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 statement claims at the outset.

The statement upholds Navtej Singh Johar & Ors. v. Union of India (2018) repeatedly as the basis of the current Supreme Court hearings. It was a landmark decision that decriminalised all consensual sex among adults, including homosexual sex, delegitimising Section 377 of the Indian Penal Code, which criminalised homosexual acts as an "unnatural offence".

"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," the students wrote.

"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. Further, the law is settled on the protection of non-typical, non-procreative familial unions. By asserting marriage as a vessel for procreation, the BCI fails to realise that the biological faculty of procreation cannot be lorded over citizens as a prerequisite for fundamental rights in a democratic and rules-based society," the statement reads further.

"The BCI's resolution goes beyond the tenets of the Constitution. According to the Constitution, everybody has the right to equality as per Article 14. This equality subsists in a 'normal' couple but not homosexual—there is no valid justification for this resolution," Rishika Nagpal, a Delhi High Court advocate told the National Herald. 

"The resolution at its outset is from an archaic perspective," she added, "which does not consider the fundamental needs of homosexuals. This resolution should not be dubbed as the view of 'Indian lawyers'. I'm vehemently opposed to this resolution."

Aparajita Jha, a Mumbai-based lawyer, said while speaking to the National Herald: "It is disheartening that the profession which is supposed to ensure that every person is guaranteed their fundamental rights is actually passing [a] resolution to deprive them of the same, ironically on the grounds that the country is the most socio-religiously diverse [of the] countries out there. The BCI has no regard for their own mandate."

In their formal representation against the BCI resolution, the students reiterate Chief Justice of India D.Y. Chandrachud’s observation on the first day of hearings, that "there is no absolute concept of a man or a woman" and the matter goes beyond "one's genitals". The statement claims that the BCI fails to understand that the "purpose of marriage is more than procreation".

"It is surreal to see the kind of solidarity across law schools that we've achieved with this statement, says Ayan, a student of the National Law University, Delhi. "The past three days have been a whirlwind of emotion, work, and chaos. Beyond grateful for everybody (600+ law students!) involved with this. The fact that we could pull this off in three days, with maximal [sic] participation, is a testament to our conviction in the Constitution. Many of us received harassment of various kinds for our involvement with the statement. But we carried on. We stand on the shoulders of giants who have shown us the emancipatory power of law. This is also in honour of them."

A five-judge Constitution bench comprising Chief Justice D.Y. Chandrachud and justices S.K. Kaul, S.R. Bhat, Hima Kohli and P.S. Narasimha is hearing the matter on same-sex marriage in the SC, which has so far garnered polarising views from both government bodies and the general public.