Why Indian Law Students Are Joining Together to Oppose Bar Council’s Views on LGBTQ+ Marriage Commentary
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Why Indian Law Students Are Joining Together to Oppose Bar Council’s Views on LGBTQ+ Marriage
Edited by: JURIST Staff
The authors, Indian law students at law schools in Delhi and New Raipur, explore the efforts of their counterparts across India in advocating for equal marriage rights in opposition to a stance taken by the Bar Council of India...

In the past few years, the Indian Judiciary has maintained a steady trend of supporting queer rights in the country. In 2018, the Supreme Court issued a landmark verdict decriminalizing queer sexual relationships in India. Activists, allies, and parts of civil society celebrated the decision as the beginning of a promising era for the LGBTQ+ community in India.  

The demand for marriage equality in India was first raised in Indian courts a year after the 2018 verdict. After initial hearings, the pandemic hit, and hearings were postponed. The pleas seemed to be in limbo. Finally, in 2023, two pleas to recognize non-heterosexual marriages were filed in the Supreme Court. The Supreme Court transferred all existing petitions for marriage equality before various High Courts to itself and began hearings from April 18, 2023. The lead petition filed by Supriyo Chakraborty asserted that the Special Marriage Act violated the Constitution by its exclusion of non-heterosexual relationships. They propose the court read marriage laws in a manner to include queer couples or strike down the provisions barring their marriage as unconstitutional.

Soon after the hearings commenced, the Bar Council of India (BCI) issued a resolution on the ongoing case. The BCI is a statutory body instituted to regulate legal professionals and prescribe standards and etiquette for Indian lawyers. The BCI’s resolution urged the court to leave the matter to elected representatives, saying that 99.9% of Indians opposed the concept of same-sex marriage.

In response, over 600 law students from 36 law school collectives across India released a statement condemning the Bar Council of India’s (BCI) resolution asking the Supreme Court of India to refrain from hearing the LGBTQ+ marriage equality petitions. The statement points out that the BCI cited no real basis for the 99.9% figure, claiming it was to “run the worn-out theory that queer persons constitute a ‘minuscule minority’.” This argument, the statement clarifies, was explicitly rejected by the Supreme Court in Navtej Singh Johar v. Union of India [AIR 2018 SC 4321], where the Supreme Court said that most statistics indicate that LGBTQ+ persons constitute at least 7-8% of the country’s population. The court also mentioned that fundamental rights are guaranteed irrespective of whether a community is a numerical minority.

The student’s statement, released on 27th April, Thursday, condemned the resolution as “queerphobic, regressive, and hegemonic.” They said the resolution attempts to tell queer persons that the law and the legal profession have no place for them. It takes exception to BCI’s language, which calls demands for marriage equality “morally compunctive” and “a social experiment,” adding that as future members of the bar, it was alienating and hurtful to see their seniors engage in such hateful rhetoric. The statement, with over 600 endorsements from 36 law schools across the country, was prepared in merely 3 days.

The statement mentions that the BCI has appointed itself as a “mouthpiece of the common man” in an overreach of its powers. The statement says that instead of being a mouthpiece of the common man, the resolution demonstrates that the BCI is now a mouthpiece for a very specific class of men who have the privilege to make hegemonic statements on the country’s culture without accountability. The resolution was a “deplorable attempt” to “illegitimately create influence for itself.” It asked the BCI to respect the letter and spirit of its enabling statute, the Advocates Act of 1961, and stay within its powers.

The solidarity displayed by students from all over the country gained widespread publicity on national news outlets. Soon after, the Supreme Court Bar Association issued a statement saying that the BCI resolution was inappropriate. The Supreme Court itself would decide the appropriate forum for hearing the matter. However, the SCBA refrained from expressing any opinion on the case. The marriage equality pleas have stirred a civic conversation about forum and method of guaranteeing the rights of a minority beyond the legal technicalities argued by both sides. With the Supreme Court having reserved its verdict on the case, it remains to be seen how the demand for marriage equality will be met in India.

Akshita Rohatgi is a law student attending Guru Gobind Singh Indraprastha University in Delhi, India. Ishwaryah Manikandan studies law at Hidayatullah National Law University in New Raipur, India. 

 

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.
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