On April 23, 2023, the Bar Council of India (BCI) passed a resolution opposing the grant of legal recognition to same-sex marriage in the country. BCI Chairman Manan Kumar Mishra said the resolution was passed after the BCI held a meeting with representatives of all State Bar Councils.
BCI said ever since the inception of human civilization and culture, marriage has been typically accepted and categorized as a union of biological man and woman for the twin purpose of procreation and recreation. In such background, it would be catastrophic to overhaul something as fundamental as the conception of marriage by any Court of Law, howsoever well-intentioned it may be. Issues pertaining to social and religious connotations should typically be dealt with by Courts through the doctrine of deference, the Bar Council said.
“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.
The Council said the vast majority believes that any decision of the Supreme Court in the petitioners’ favour on this issue will be treated to be against the culture and socio-religious structure of the 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 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.
The Constitution Bench comprising the Chief Justice, Justice Sanjay Kishan Kaul, Justice Ravindra Bhat, Justice Hima Kohli and Justice PS Narasimha is dealing with a batch of petitions pertaining to ‘marriage equality rights for the LGBTQIA+ community.’
The Constitution Bench started hearing the petitions on April 18. The Supreme Court is dealing with various petitions seeking the legalisation of same-sex marriages. One of the petitions earlier raised the absence of a legal framework which allowed members of the LGBTQIA+ community to marry any person of their choice. However, the Government of India has opposed the petitions.
According to the petition, the couple sought to enforce the fundamental rights of LGBTQIA+ individuals to marry any person of their choice and said that “The exercise of which ought to be insulated from the disdain of legislative and popular majorities.” Furthermore, the petitioners asserted their fundamental right to marry each other and prayed for appropriate directions from this Court allowing and enabling them to do so.
The Government of India opposes the legalisation of same-sex marriages
The Government of India submitted an affidavit opposing the legalisation of same-sex marriages. It stated that marriage is “an exclusively heterogenous institution” and those seeking marriage equality in India merely represent “urban elitist views for the purpose of social acceptance”. The voices are not coming from the common Indians, said the government.
The government as per the affidavit submitted that “The institution of marriage is necessarily a social concept and a sanctity to the said institution is attached under the respective governing laws and customs as it is given sanctity by law on the basis of social acceptance. It is submitted that social acceptance and adherence to societal ethos, common values, and shared beliefs across religions, in case of recognition of the “socio-legal institution of marriage” is not be confused with majoritarianism.”
The government while opposing the demands said that “conventional and universally accepted socio-legal relationships like marriages across all religions, are “deeply rooted in the Indian social context and indeed is considered a sacrament in all branches of Hindu law. Even in Islam, though it is a contract, it is a sacred contract and a valid marriage is only between a biological male and a biological woman”.
“It’s purely a matter of legislative policy under Entry 5 of List III of Schedule VII of the Constitution, which ought to be determined by the appropriate Legislature only,” the Government emphasised.
[with inputs from ANI]