Same-Sex Marriage: RTI Filed Following BCI's Resolution, Data Opposing Legal Recognition

An RTI (Right to Information) application has been filed following the Bar Council of India’s (BCI) recent quoted data in a resolution opposing the legalisation of same-sex marriage in India. The Supreme Court of India is currently hearing a clutch of petitions seeking legal recognition of same-sex marriages under the Special Marriage Act. 

The BCI passed the resolution on Sunday after meeting with representatives of all State Bar Councils. 

Through the resolution, the BCI urged the Supreme Court to abdicate its role and defer the matter to the Parliament. The associate quoted that more than “99.9 per cent of people in the country” oppose same-sex marriage. 

"The legislature being truly reflective of the will of the people is best suited to deal with such sensitive issues. Every responsible and prudent citizen of the country is worried about the future of his/her children after coming to know about the pendency of this matter before the Supreme Court. More than 99.9 per cent of people of the country are opposed to the idea of same-sex marriage in our country," BCI said.

"BCI while appreciating the step of the Supreme Court for having started this sensitive conversation, having long-term societal ramifications, resolve to request the Apex Court that the issue at hand be left for the legislative consideration, which after the wide-ranging consultative process, may arrive at an appropriate decision, as per the societal conscience and mandate of the people of our country,” the resolution reads, according to LiveLaw.

Further, the Council stated that marriage has been historically viewed as a union between a “biological man” and a “biological woman” for the twin purpose of procreation and recreation. Hence, it urged the apex court to deal with issues dealing with social and religious connotations through the doctrine of reference. 

"The Bar is the mouthpiece of the common men and, therefore, this meeting is expressing their anxiety over this highly sensitive issue. The Joint Meeting is of the clear opinion that if the Supreme Court shows any indulgence in this matter, it will result in destabilizing the social structure of our country in the coming days. The Apex Court is requested and expected to appreciate and respect the sentiments and mandate of the mass of the country," BCI said in its statement.

An RTI application filed

An RTI application has been filed and shared on social media by a certain Akshay Godi seeking documents to understand how the BCI appeared at the statistics of ‘99.9 per cent’ that it quoted in the resolution. 

The application also seeks to learn whether officers of the BCI have undergone periodic sensitisation and awareness training about the plight of LGBT persons as ordered in the judgment of Navtej Singh Johar v Union of India. 

“Paragraph 9 of the resolution states that more than 99.9 per cent of the people in the country are opposed to the idea of same-sex marriage. The Bar Council is requested to provide all information in relation to any research/or surveys/and or scientific methods of analysis that were relied upon to quote the aforementioned number in the resolution,” reads the first point of the RTI. 

The RTI further seeks details and minutes of the meetings with the BCI officers and the State Bar Councils where ‘deliberations on the matters of marriage equality have taken place’. It also seeks documentation and communication based on which the BCI passed the resolution to the ‘effect where the constitutional rights of LGBT persons should be subservient to the popular morality’. 

The application also asked for dissent notes, if any, during the meetings. 

Students of Indian law schools condemn BCI’s resolution 

Students of 36 reputed Indian law schools including National Law Universities, and Symbiosis Law Schools, have released a statement condemning the resolution passed by the BCI opposing same-sex marriage. 

The consolidated statement stated that the passing of the resolution was completely ‘unwarranted and a deplorable attempt by the BCI to illegitimately create an influence for itself’. 

“The BCI ought to respect the letter and spirit of the Advocates Act, 1961, which clearly defines the b mandate based on its regulatory function. Nothing in the Act, as interpreted by the Supreme empowers the BCI to pass comments on sub judice matters,” the statement reads. 

 

The students believe that the resolution reflects ‘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, it reads.

Delhi bar association passes resolution

A similar resolution was passed by the Delhi Bar Association. 

The coordination committee of all district court bar associations of Delhi said that the issue of same-sex marriage being heard by the Supreme Court should instead be decided the legislature.

In a resolution, the committee said the social ramifications of the ongoing proceedings before the SC are colossal and have the potential for an unintended impact on the social fabric.

“It is important that issues that have the potential to affect society at large are discussed and debated in the Parliament where elected representatives can take into account the views and concerns of their constituents,” the resolution said.

“The regulation and legalization of marriage can only be determined by the legislature through due legislative process, which involves consultation with all relevant stakeholders as the legislative body reflect the collective wisdom and conscience of the nation and take into account cultural values, social standards, and other factors that define acceptable human behaviour when making decisions about regulating, permitting, or prohibiting human relationships,” it added.

The issue cannot be adjudged by means of judicial interpretations because it requires a more extensive consultation process, the resolution added.