Opinion Indira Jaising writes: Bar Council of India appears to be echoing government’s line on gay marriage

At the time of its adoption, the drafters of our Constitution did not envisage a triumph of majoritarian ideologies over fundamental rights. Rather, B R Ambedkar viewed the Constitution as having adopted the individual as its unit of rights. The SC has a progressive constitutional mandate and the Constitution nowhere requires it to fall in line with Parliament or the political executive. The legitimacy of the Court comes not from towing the government line, but from passing “unpopular” orders that recognise fundamental rights. Clearly, when faced with a counter-majoritarian difficulty, the legitimate role of the SC should be to correct distortions in a majoritarian democracy with the help of constitutional tools.

Importantly, the SC predominantly decides only those disputes that the people of India bring to it. The marriage equality petitions have been filed by Indian citizens who feel that they are being discriminated against on the ground of sexual orientation. What they are seeking from the SC is not something extraordinary, but recognition of basic, fundamental rights such as the right to equality and equal protection of laws, right to freedom of expression, right to decisional autonomy, right to privacy, and above all, the right to live a life with dignity.

One of the recurring arguments against gay marriage, which also features in the BCI’s resolution, is that marriage is a union between opposite-sex couples. There is an inherent logical flaw in this argument: It uses the definition of marriage to defend a constitutional challenge to the definition of marriage. But while hiding under the pretext of definitional hurdles, the BCI actually seems to suggest that courts should turn to culture as the overarching interpretational norm, and not to settled constitutional principles and precedents. There is also a suggestion that the purpose of marriage is procreating. Under Indian law, marriage is not limited to only those couples who can procreate or intend to procreate. Hypothetically, if couples had to undergo fertility tests before marriage, or as a pre-condition to a legally valid marriage, this would directly infringe upon the constitutionally-guaranteed rights to privacy, decisional autonomy and dignity. Not having children is a choice and there is no obligation on married couples to procreate. Besides, constitutional freedoms cannot bend to cater to regressive notions of marriage rooted in religion or culture, more so, in the context of the Special Marriage Act, which is meant to provide for a special (and secular) form of marriage detached from religious cast or cultural ideas, notions, or beliefs.

There is a profound change – reflected in the BCI’s resolution – that the legal profession has undergone in recent years. The polarisation that we see in Indian society as a result of the ruling party’s Hindutva agenda reflects itself in the legal profession. Organisations of lawyers, often supported by and given patronage by the ruling party, push their agenda through an abuse of court systems such as by filing politically-motivated petitions. Often, these petitions serve majoritarian interests that lay emphasis on the powers and functions of Parliament as against the judiciary, but very rarely on the powers and functions of the judiciary as against Parliament.

While ideology has a legitimate role to play in judicial discourse, legal discipline must reflect constitutionalism. Ideology without professionalism degenerates into propaganda. As a sentinel on the qui vive, it is incumbent upon SC to test acts of Parliament on the touchstone of constitutional values, principles, and morals, and not on preconceived notions of “culture,” howsoever understood. Any judicial function short of that would place “cultural nationalism” over and above constitutionalism, as construed in the Kesavananda Bharati judgment. This is of utmost importance today.

Finally, and most importantly, one is left to wonder under what authority of law did the BCI pass a resolution asking, and almost pressurising, the SC to defer to Parliament in the marriage equality matters. The BCI is a statutory body under the Advocates Act responsible to ensure compliance with the discipline of law, and to further quality legal education. One of the BCI’s primary functions is to promote and support law and judicial reform, not impede it. The BCI must be mindful of its true purpose and existence, and the sooner the BCI withdraws its resolution, the better it is for our constitutional democracy. In any event, the BCI is, to put it bluntly, an unwanted guest at the marriage.

The writer is a senior advocate and former Additional Solicitor General of India