Anti-gay marriage protest in USA, Bar Council office
by Upasana Dasgupta 25 April 2023
Bar Council of India passed a resolution on 23 April requesting the Supreme Court of India to leave the same-sex marriage issue, a matter sub-judice, for legislative consideration. The resolution states, inter alia, “[i]ssues 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. 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 Hon’ble Supreme Court. More than 99.9% of the people of the country are opposed to “the idea of same sex marriage” in our country. The vast majority believes that any decision of the Apex Court in petitioners’ favour on this issue will be treated to be against the culture and socio religious structure of our country. 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 Hon’ble Supreme Court shows any indulgence in this matter, it will result in destabilizing the social structure of our country in coming days. The Hon’ble Apex Court is requested and expected to appreciate and respect the sentiments and mandate of the mass of the country.” Before proceeding further, I wish to make it clear that this resolution was passed by the Bar Council of India (BCI), a statutory body established under Advocates Act 1961 that regulates the legal practice and legal education in India and represents the legal fraternity in India. The resolution by BCI raises many questions – as an Indian citizen and as a legal academic.
First, the BCI’s resolution states that “more than 99.9% of the people of the country are opposed to the idea of same sex marriage in our country.” I am wondering how this figure of 99.9% is arrived at because in no way, a survey including every citizen of the country has been carried out recently or at least, none that I am aware of as a citizen of this country. Can we, as lawyers, use numbers and statistics so casually without backed by evidence?
Secondly, I wonder how same-sex marriage will be against the culture and socio religious structure of the country. In fact, in a country like India that celebrates marriage and family, allowing same sex marriage will be upholding the tradition. In a country that celebrates diversity and proudly portrays itself as consisting and accommodating a mosaic of beliefs, I fail to understand why same-sex couples’s views and concerns cannot be accommodated. In any case, if it about preservation of the sanctity of marriage, I wonder whether its sanctity is not challenged every year with the rising domestic violence cases. In 2022 itself, National Commission for Women registered over 6,900 complaints in the protection of women against domestic violence category. These official figures do not account for the multitude of cases where domestic violence remains unregistered. I also wonder today, as we are aware of the LGBTQ community and their sufferings, why protecting the so-called moral fabric of the society is more important than addressing the fundamental rights including the right to live with dignity to the LGBTQ community.
As a legal academic and a woman, I am truly surprised at the lengths that we can go a society to protect the privileges of the privileged and denying rights to the oppressed. This is not just story of India, For example, a particular quote of the Superior Court of Quebec, a province of Canada, hit me so hard that I was compelled to pen this piece. In Langstaff v. Bar of Quebec [1915], 47 R.J.Q. 131 at 139, Superior Court (Mr. Justice Saint-Pierre), barred women from practicing in Quebec and held as follows “I would put within the range of possibilities though by no means a commendable one, the admission of a woman to the profession of solicitor or to that of avoue, but I hold that to admit a woman and more particularly, a married woman as a barrister, that is to say, as a person who pleads cases at the bar before judges or juries in open court and in the presence of the public, would be nothing short of a direct infringement upon public order and a manifest violation of the law of good morals and public decency.” As I read this quote, stated by a judge in another country more than 100 years ago, it frustrates me to think that the state of affairs remains the same.
Further, I fully understand the doctrine of separation of power where the legislature’s job is to legislate and the judiciary’s job is to interpret. It is true that the common notion is that the judiciary should uphold the intention of the legislature, which is also why literal interpretation is given the exalted status it has. It has been justified time and again by jurists and courts alike that law-making should be the work of the legislature which is representative of the people and courts job is simply to interpret the law and not to construct the law. That said, there have been times when ‘judicial activism’ as it is called, becomes necessary, in order to meet justice to the parties. This is especially true when the existing law is either silent or is not in consonance with current societal and scientific developments. After all, law as a social construct does and should change with time and to deny justice to the parties before the court for the silence of the legislator amounts to failure of our judicial system. In any case, as Roscoe Pound stated , when such hard cases come up, the legislature probably did not address the situations because the problem did not occur to them. Judges, thus, should interpret and construct the law by striking a balance between the letter and spirit of law and the present circumstances. The BCI’s resolution that requests the Supreme Court to not decide on the case of Supriyo @ Supriya Chakraborty v. Union of India and relegate the matter to legislature, if followed will be denying justice to the parties and many more. In any case, in India, the Supreme Court has come up with radical judgments despite the silence of the legislature and cases like these have led to improved conditions for many. An example of course is the Vishakha v. State of Rajasthan where the Apex Court provided guidelines for safeguarding people against sexual harassment at workplace in 1997, thus providing relief to numerous employees. Incidentally, the legislature came up with a related legislation much later is 2013 – The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. Thus, thanks to the Vishakha judgment, many employees got justice between 1997 and 2013. Further, today, as we are celebrating 50 years of Kesavananda Bharati v State of Kerala, a landmark judgment of the Supreme Court where it took a bold stance, it seems saddening that the BCI is requesting the Supreme Court to not decide on same-sex marriage.