Same-Sex Marriage: 'Give Me Some Logic', 'All Boys Club' — Queer Rights Lawyers, Activists React To BCI Resolution

Queer rights activists and the LGBTQ+ community have opposed the stance of BCI is misleading and factually incorrect.

New Delhi: The Bar Council of India has moved a resolution claiming that "more than 99.9% of people of the country are opposed to 'the idea of same-sex marriage'". Queer rights activists and the LGBTQ+ community have opposed the stance of the statutory body established under the Advocates Act, 1961, and questioned the arguments made by it. 

Anish Gawande, an LGBTQ+ rights activist and founder of Pink List India, an archive of politicians supporting LGBTQIA+ rights, told ABP Live that BCI’s statement is "misleading" and "factually incorrect".

“If the Bar Council of India believes that 99.9 per cent of India does not share the view of petitioners in the case of marriage equality and if the BCI believes that the legislature should decide on the matter and not the judiciary, then the BCI must also answer why more than a dozen MPs cutting across party lines have actually come out publicly in support of marriage equality,” he said.

Anish added: “If we are to assume out of these dozen MPs that each of them represents on average given the size of our country 30 lakh constituents then you got around 36 million people who have spoken through their representatives in Parliament, which is the most authentic voice of the people according to the government, in favour of marriage equality."

Many MPs and politicians from different parts of the country are on record supporting the LGBTQ+ community on different occasions. Congress MP Shashi Tharoor brought a private member bill for the reading down of Section 377 between 2015 and 2016. NCP's Supriya Sule introduced a bill in 2022 to give marital rights to the LGBTQIA+ community. MP Abhishek Manu Sighvi is one of the lawyers for the petitioners seeking legal validity for same-sex marriage. TMC MP Abhishek Banerjee also spoke on marriage equality a few days ago. 

Speaking to ABP Live, producer Neeraj Churi, who has made several films based on queer stories, said: “According to various global studies, the percentage of LGBTQ+ population can vary between 4 per cent and 10 per cent of the larger population. I am sure many in the LGBTQ+ community would prefer the stability provided by marriage equality and prefer for it to be in place. Many of the parents and friends of LGBTQ+ community members are welcoming of the freedom to marry. So the maths of 99.9 doesn’t add up. Let take a sample size of 1000 people and ask them if would be mind if their friends/co-workers/family got the same rights as they enjoy in marriage and let’s see what they have to say about it.”

What Bar Council of India Resolution Says

In its resolution, the Bar Council of India said: "...the Joint meeting is of the unanimous opinion that in view of the sensitivity of the issue of same-sex marriage, having a spectrum of stakeholders from diverse socio-religious backgrounds, it is advisable that this be dealt with after an elaborative consultation process involving different social, religious groups by the competent legislature."

The statement added: "Any decision by the Apex Court in such a sensitive matter may prove very harmful to our country's future generation. There is no gain in stating that the issue at hand is highly sensitive and that it has been commented on and criticised by various sections of society, including socio-religious groups, for being a social experiment engineered by a select few."

It also said: "More than 99.9% of people of the country are opposed to 'the idea of same-sex marriage' in our country. The vast majority believes that any decision by the Apex court in Petionters’ favor on the issue will be treated to be  against the culture and socio-religious structure of our country."

In an interview to ANI, BCI chairman Manan Kumar Mishra said: “Considering the socio-religious structure of the country, we thought it (same-sex marriage) is against our culture. Such decisions would not be taken by courts. Such moves must come from the process of legislation.”

The LGBTQ+ Community Calls BCI An “All Boys Club”

Reacting to the BCI resolution, several activists and lawyers from the queer community took to social media to call out the body for its "lack of diversity", despite its claims of being the "mouthpiece of common men". 

Editor and screenwriter Apurva wrote on Twitter: "There isn't one woman on the Bar Council of India. Not one Christian, Muslim or anyone non-Hindu. Don't know what their sexual orientation really is, but I suspect none identifies as Gay or bisexual. Today they are opposing #marriageequality, tomorrow they will oppose you. #BCI"

Yes, We Exist, a platform that advocates for queer and trans rights, tweeted that the BCI is an "all boys club."

Many other celebrities, human rights lawyers and queer rights activists came out in support of marriage equality. 

Human rights lawyer and queer rights activist Rohin Bhatt also took to Twitter to point out that the BCI "has been often exceeding its limits of power and functions prescribed under the Advocates Act of 1961".

TMC MP Mahua Moitra tweeted: “Bar Council urges SC not to hear same-sex marriage case, says 99% Indians opposed to it! Gentlemen - have you truly lost your minds? You are oath bound to protect constitutional morality, not popular sentiment. Even if 1 person’s freedom is encroached on, SC bound to hear it.”

Senior advocate and author Saurabh Kirpal pointed out: “At the next bar council elections, perhaps queer lawyers and their allies should show how many people disagree with the incumbents. Vote these incumbents out.”

Kirpal is also one of the lawyers appearing in the plea. He is India's first lawyer from the LGBTQ+ community to be recommended for judgeship in the Delhi High Court. Earlier this year, the Supreme Court collegium headed by CJI DY Chandrachud reiterated Kirpal's name as a judge of the Delhi High Court, even after objections raised by the Central government. The SC collegium said the proposal for the appointment of Kirpal as a high court judge has been pending for over five years and needs to be processed expeditiously.

Stance Of Previous Govts On LGBTQ+ Rights   

BCI is not the first institution to oppose the same-sex marriage plea. Previously, various religious bodies moved the SC against the matter. However, the apex court has said it is not going into the personal laws. 

But the Government of India via Solicitor General Tushar Mehta has repeatedly called for dismissal of the plea, saying “any creation of rights, recognition of relationships, and giving legal sanctity to such relationships can be done only by the competent legislature and not by judicial adjudication”.

In its latest submission to Supreme Court, before the hearing began on April 18, the government said, “Petitions seeking legal recognition of same-sex marriage merely reflect urban elitist views and cannot be compared with the appropriate legislature which reflects the views and voices of a far wider spectrum and expands across the country.”

On this, Neeraj Churi says, “Marriage equality is about getting the same legal rights for everyone, irrespective of where you come from be it a big city or village. One cannot say that heterosexual marriages in bigger cities are more important than those living in the villages. There are same-sex couples living together for decades all over India who need the same 50+ legal protections that marriage offers.” 

Churi has produced several films based on queer stories, like Sisak (2017), Sheer Qorma (2021), U for usha (2019), and My Mother's Girlfriend (2021). 

“As we mark lesbian visibility week from April 26-April 30, let us not forget the two women policewomen from the Madhya Pradesh police force who married each other in 1987. Both women simply wanted to be with each other, marriage seemed like the most obvious next step. Their marriage was the first documented same-sex marriage in India. There was nothing urban or elite about them,” Churi added.  

The stance of any government in previous fights for LGBTQ+ rights also has been negative. Anjali Gopalan, noted human rights activist, founder, and executive director of the Naz Foundation Trust, says the previous government took a very anti-stand when they were fighting to decriminalise homosexuality. 

The Naz Foundation, led by Anjali Gopalan, filed one of the first cases against IPC 377 and won in 2009, when Delhi HC decriminalised homosexuality. However, the judgment was later reversed by the Supreme Court in 2013. 

Gopalan told ABP Live: “The previous government took a very anti-stand when we were fighting to decriminalize homosexuality this government is doing the same. They have no right in our bedrooms, this is such a personal thing for all of us, how you marry, what you eat, and what you wear, are things that are people's own choices and decisions. The government has no space in this arena.”

She added: “But if the government is taking the stand it is, that is why I feel the courts have to step up to the plate now. There is no other way out."

'Give Me Some Logic'

The Centre also said that the petitions have “far-reaching implications”.

Before the hearing began, a group of former judges issued a statement urging people pursuing the issue of same-sex marriage in the Supreme Court to refrain from doing so "in the interest of the society".

On this, Gopalan said: "What is their fear around gay marriage that children brought up by the gay couple will not have a good home? Please go to any family court it is full of heterosexual couples fighting with each other and ruining the lives of the children they have produced.”  

Stating that there is no logic in any of the argument government has made, Gopalan said: “Give me some logic, and I will go with it, I am willing to look at your point of view. I know so many gay couples who are bringing up children in the most loving caring way. I don’t know which world the government is living in. If there is logic in the response I can understand. Something so illogical what is the point of even responding to something like that? It's such a waste of time.”

On the issue of Parliament's prerogative, Anish said: “If the government has argued through its ministers and through Scoliter General in court that the legislature is the right forum to discuss marriage equality, then it is surprising that the government has stonewalled any attempt to discuss this issue in parliament.”

He added: “Why doesn't the government allow the MPs to take a stance on the issue, why doesn't the government allow the country to see how many of its elected representatives, and how many of our elected representatives support marriage equality? This is sheer hypocrisy."