For those unfamiliar with the Latin phrase quo warranto, it translates to “under what authority?” and through this piece, we seek to ask under what authority the Bar Council of India (BCI) issued a press-release of the (so-called) opinion of the entire Bar of lawyers regarding same-sex marriage, which a Constitution Bench of the Supreme Court is considering.
To give some context, the BCI recently issued a press release on April 23, supposedly after a “joint meeting of all the State Bar Councils” wherein one of items on the agenda was “relating to the serious disadvantages of concept of same-sex marriage; and to make aware the Supreme Court with the opinion of the Bar of the country”.
At the outset, the agenda itself betrays the outcome sought to be arrived at.
Regardless, keeping the aspect of the statement being predetermined aside, we ask what purported function the BCI was carrying on while passing such a resolution. At the core of it, the functions of the BCI as a regulatory body for the legal profession are inter-alia, regulating the standards of professional conduct, the etiquette of lawyers and disciplinary proceedings thereunder, regulating the standards of education (holding the All-India Bar Examination/AIBE, which had recently been under scrutiny by the Supreme Court) and to exercise overall supervision over the various State Bar Councils. The BCI has miserably failed in all these aspects, both collectively and individually.
The press release seeks to portray to the general citizenry that the BCI speaks for the entire legal fraternity/Bar, and the Bar (as per the press release of the BCI) is the “mouthpiece of the common man”. The statement misrepresents the BCI’s authority to call upon the Supreme Court not to adjudicate on same-sex marriage — on behalf of the entire legal fraternity/Bar, and by some extension, on behalf of the whole population of the nation. Even though the BCI is meant to uphold the interest and welfare of all lawyers collectively, the press release fails to give an authentic, comprehensive picture and does not truly represent the independent and divergent views of the lawyers.
BCI categorises lawyers as one group supposedly opposed to the idea of adjudication of same-sex marriage by the Supreme Court, even though individual/personal views are different.
Concededly, the press release is issued after a meeting of the various Bar Councils but is silent regarding whether views were called for either from lawyers or any other persons; or even what the source of its bold statistic(s) are. We were not called upon to give our views.
In any case, the BCI should not have made such a statement on behalf of all, calling upon the Supreme Court to not adjudicate upon issues that five Hon’ble Judges of the Supreme Court have applied their minds to and are in the midst of intense hearing, where serious matters of far-reaching consequences are being debated. If BCI had something meaningful to contribute, it is by intervening in the proceedings and making submissions.
In terms of reactions, there have been several responses on social and conventional media to the press release — both supporting and condemning it. While we may have a specific view on the issues currently being considered by the Supreme Court, others might have a different opinion. While we may publish a “view” as our own opinion, it is highly inappropriate for the regulatory body, as representative of the Bar, to represent particular views as that of the group.
We can safely state that the entire legal fraternity was not spoken for by the BCI’s statement in this regard, as the Supreme Court is currently considering several issues about non-recognition of same-sex marriage. These include the denial of marriage, which comprises of a bouquet of rights, to a group of persons on account of non-recognition of same-sex marriage; discrimination by the legislature (either by apathy or by inaction) against two artificially created classes of persons; the fact that several progressive democratic countries are legalising and/or have already legalised same-sex marriage; the flawed binary understanding of gender which requires reconsideration.
However, despite these issues being decided by the most appropriate forum, that is, the Supreme Court, the BCI’s statement has side-stepped those proceedings and has rendered summary verdict through one meeting. Shockingly, while making several bald, blanket statements,the press release proceeds on several (baseless) presumptions: The fundamental societal structure is being altered and marriage is understood to be a union of biological man and woman; that any such action should be by the legislature and not the judiciary; that more than 99.9 per cent of people of the country are opposed to the idea of same-sex marriage. All of these go to show complete ignorance of how the world has, as a whole, developed and progressed.
At first instance, coming to the number put forth by the BCI’s statement – 99.9 per cent. It sounds bizarre, but there must be reliable data to make such a tall claim. After all, it is the apex body representing lawyers; and true lawyers don’t make statements without being backed by facts. Some persons have reportedly even filed applications under the Right to Information Act (RTI) seeking the source of this information from the BCI — now we wait to see if it was merely an assertion or was backed by some survey. However, we can confidently state that no study has been conducted to conclusively arrive at a hard figure of 99.9 per cent without any caveats or further explanatory notes.
Just to put things into context, the government conducts its Census once a decade since it is cumbersome. It’s baffling that the BCI has completed a survey of this scale in such a short duration — they must have a lot of resources (money and personnel) at hand to have so quickly and easily deciphered what 99.9 per cent of the citizenry wants. Perhaps the BCI would be better equipped to conduct the Census of India, and it could become an annual exercise instead of once-in-a-decade.
Coming back to the press release, the resolution/statement further asserts that “… marriage has been typically accepted and categorised as a union of biological man and woman …”, which view is currently being questioned and reconsidered all over the world. Still, the BCI’s statement wants the Supreme Court to persevere with a simplistic understanding of gender and continue to discriminate against a group of persons who do not conform to that binary understanding.
Incredibly, the BCI’s statement says about same-sex marriage: “… the issue … being a social experiment, engineered by a selected few. This, in addition to it, being socially and morally compunctive.”
I find two aspects very problematic — first, same-sex marriage has been termed as “socially and morally compunctive”, which words betray prejudice and ignorance. Second, calling same-sex marriage “a social-experiment, engineered by a select few” without any backing or source is irresponsible, to say the least, and further propagates discrimination against a class/group of persons.
It is lastly important to highlight another fundamental flaw in the statement of the BCI, in as much as it states that “issues pertaining to social and religious connotations should typically be dealt by Courts through doctrine of deference. The Legislature being truly reflective of the will of the people is best suited to deal with such sensitive issues.”
However, this sets us back decades since Courts (all over the world, including in India) have had to step in to fill the lacunae in law whenever the legislature has failed to represent and protect its citizenry. The BCI’s statement appears to want to prevent judicial activism where it is due — when the legislature, out of apathy or inaction, is itself leading to discrimination. The entire press release smacks of prejudice, ignorance and lack of thought; and in closing, I can only ask the BCI again – “quo warranto?”.
The writers are advocates at the Supreme Court of India
