Same-sex marriage: 36 queer collectives from law schools flay Bar Council resolution for ‘hateful rhetoric’

The statement signed by the collectives reads, “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”. The statement further says the students who are part of these collectives are “future members of the bar” and have found it “alienating and hurtful to see our seniors engage in such hateful rhetoric”.

The statement says the Advocates Act clearly defines that the BCI’s mandate is based on its regulatory function and that the Act does not empower the body to pass comments on “sub judice matters”.

Calling the resolution a “deplorable attempt” by the body to “illegitimately create influence” for itself, the statements says the body should “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”.

It further states that the collectives are troubled by the BCI’s “stunning disregard for constitutional morality”, which it says 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. 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’. Having cited no real authority, 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 ‘minuscule 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’. We condemn this hateful speech in the strongest possible terms,” the statement reads.

The statement says the Supreme Court proceedings pertain to the recognition of fundamental rights (to equality, freedom, and privacy) that queer people 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 statement reads.

The statement further terms the BCI’s assertion that marriage has always been a union between biological men and women as a “colonial reading of Indian history, culture, and civilisation” as there is evidence of queer love and marriage having existed in Indian cultures since ancient times. It criticises the BCI as the mouthpiece for a “very specific class of men” who have the privilege to make “hegemonic statements on our culture without any form of accountability”.

Some of the collectives that have signed the statement are Queer Alliance, Savitri Phule Ambedkar Caravan, Feminist Alliance from the National Law School of India University, and Queer and Allied Students, National Law University Odisha.