REPRESENTATION AGAINST THE BAR COUNCIL OF INDIA’S

RESOLUTION ON MARRIAGE EQUALITY

To the Bar Council of India,

We write this collective statement as queer students, allies, and student groups representing the
interests of queer students and allies across Indian law schools, strongly condemning the Bar
Council of India’s regressive and queerphobic Resolution on marriage equality contained in the
Press Release dated 23 April 2023. Our issues with the same are explored below.

CONTENTS

1. Issuing such statements is beyond the mandate of the Bar Council of India ................... 1

2. Marriage Equality is a matter of Fundamental Rights and Human Dignity – Not a

‘Social Experiment, engineered by a selected few’ .................................................................... 2

3. The Purpose of Marriage is more than Procreation, unlike what the BCI claims .......... 5

4. Constitutional Morality is essentially Counter-Majoritarian – The BCI has a flawed

understanding of the Doctrine of Separation of Powers. .......................................................... 6

5. The Bar Council itself is not a Representative Body .......................................................... 9

6. Conclusion ............................................................................................................................ 10

1. Issuing such statements is beyond the mandate of the Bar Council of India

The Bar Council of India exists as a statutory body to regulate the Indian legal profession; it has
neither mandate nor authority to issue this Press Release. §4 of the Advocates Act, 1961 creates
the Bar Council and restricts its mandate to matters such as laying standards for professional
advocacy, supervising the State Bar Councils, promoting legal education, etc. §7 delineate its
functions and §15 confers this body limited authority for the regulation of its internal functioning,

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management of funds, establishing committees for the furtherance of its functions, etc. Neither
statute nor judicial interpretation gives the Bar Council the authority to opine on constitutional
matters pending before the Supreme Court. By issuing this Resolution, the Bar Council continues
its disturbing pattern of passing resolutions on constitutional issues. 1 These resolutions are clearly
passed by the Bar Council to keep itself relevant and show its political subservience to the Union
Government.2 In so doing, the Bar Council attempts to illegitimately expand its powers far beyond
what is allowed under the law. This cannot be tolerated.

2. Marriage Equality is a matter of Fundamental Rights and Human Dignity – Not

a ‘Social Experiment, engineered by a selected few’

Throughout their Resolution, not once does the Bar Council acknowledge that this case is a matter
of fundamental rights and human dignity. Instead, it maligns the demand for marriage equality as
being ‘morally compunctive’ and ‘a social experiment, engineered by a select few’. 3 We state
categorically that the ongoing case is, at its heart, a case for the enforcement of the constitutional
right to equality, freedom, and privacy. As long as marriage exists as a legal institution with
derivative rights, that institution must be equally inclusive of all citizens. This vision of equality
is inherent to the Constitution and is an essential feature of the idea of Constitutional morality. The
report of the JS Verma Committee,4 quoted by Justice Indu Malhotra in Navtej Singh Johar v.
Union of India,5 put this view succinctly:

“We need to remember that the founding fathers of our Constitution never thought that the
Constitution is ‘mirror of perverse social discrimination’. On the contrary, it promised the

1
See, for example, the Bar Council of India’s resolution on anti-CAA protests, where it called the same ‘common
men’ whom it now claims to represent an ‘illiterate ignorant mass’; ‘‘Illiterate Ignorant Mass’: Bar Council’s Stand
on CAA Sparks Row’ (The Quint, 22 December 2019) <https://www.thequint.com/news/law/bar-council-of-india-on-
citizenship-amendment-act-protests-illegal-ignorant-mass> accessed 26 April 2023.
2
There have been previous instances of this as well; see Shagun Suryam, ‘"India completely safe under PM Modi,
HM Amit Shah:" BCI chairman Manan Kumar Mishra congratulates PM on assembly election results’ (Bar and Bench,
1 March 2022) <https://www.barandbench.com/news/india-completely-safe-under-pm-modi-hm-amit-shah-bci-
chairman-manan-kumar-mishra-congratulates-pm-on-assembly-election-results> accessed 26 April 2023.
3
Bar Council of India, Resolution dated 23.04.2023, [3].
4
Report of the Committee on Amendments to Criminal Law (2013)
<https://adrindia.org/sites/default/files/Justice_Verma_Amendmenttocriminallaw_Jan2013.pdf> accessed 25 April
2025, [77].
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(2018) 10 SCC 1, [643.5].

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 mirror in which equality will be reflected brightly. Thus, all the sexual identities, including
sexual minorities, including transgender communities are entitled to be totally protected.
The Constitution enables change of beliefs, greater understanding and is also an equally
guaranteed instrument to secure the rights of sexually despised minorities.”

Thus, it is deeply troubling to see that the Bar Council refuses to acknowledge that marriage
equality is a fundamental rights matter. Rather, they evoke the image of an anxious majority,
“99.9% of [the] people of this country.”6 On what basis they conjure this data is unclear. But what
is more concerning is that this view harkens back to the ‘miniscule minority’ argument used by
the Supreme Court in 2013 while overturning the decision of the Delhi High Court to strike down
§377 of the IPC.7 This view has now been expressly overruled by the Supreme Court of India 8 and
has rightly been rejected as a spurious understanding of the Constitutional scheme of Fundamental
rights.

The very point of having fundamental rights is to “withdraw certain subjects from the vicissitudes
of political controversy, to place them beyond the reach of majorities and officials and to establish
them as legal principles to be applied by the courts.”9 As stated in Puttaswamy v. Union of India,
“The purpose of elevating certain rights to the stature of guaranteed fundamental rights is to
insulate their exercise from the disdain of majorities, whether legislative or popular.” 10 This is
further elaborated on in Navtej Singh Johar v. Union of India as follows:11

“The very purpose of the fundamental rights chapter in the Constitution of India is to
withdraw the subject of liberty and dignity of the individual and place such subject beyond
the reach of majoritarian governments so that constitutional morality can be applied by this
Court to give effect to the rights, among others, of ‘discreet and insular’ minorities.”

Society, or even the Parliament, cannot legislate fundamental rights in and out of existence – by
their very nature, fundamental rights warrant protection independently of legislative (in)action.

6
Bar Council of India, Resolution dated 23.04.2023, [7].
7
Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1.
8
Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, [645.4].
9
West Virginia Bd of Ed v Barnette [1943] USSC 130, [3].
10
Justice K.S. Puttaswamy (Retd.) & Anr. vs. Union of India & Ors. (2017) 10 SCC 1, [144].
11
Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, [352].

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The Supreme Court cannot take the public opinion of the majority in a case which has direct
implications on the lives and rights of a vulnerable minority, contrary to what the Bar Council
claims. The ground-breaking judgement by the South African Constitutional Court in S v.
Makwanyane is worth quoting:12

“Public opinion may have some relevance to the enquiry, but in itself, it is no substitute for
the duty vested in the Courts to interpret the Constitution and to uphold its provisions
without fear or favour. If public opinion were to be decisive there would be no need for
constitutional adjudication. [...] This Court cannot allow itself to be diverted from its duty
to act as an independent arbiter of the Constitution by making choices on the basis that they
will find favour with the public.”

Under our Constitutional scheme, it is the Court, and not the Parliament, that is vested with the
power to interpret and define the ambit of Fundamental Rights. As stated by Justice Mishra in
Navtej Singh Johar, “The duty of the constitutional courts is to adjudge the validity of law on well-
established principles, namely, legislative competence or violations of fundamental rights or of
any other constitutional provisions.”13 This interpretation is done in accordance with the principles
set out in the Constitution and in tandem with its spirit. Such interpretation is not supposed to
mirror the prejudices of society but to run counter to them.

Justice Michael Kirby of the Apex Court of Australia has immortalised this view in the following
words:14

“In a pluralist society judges are essential equalisers. They serve no majority; not any
minority either. Their duty is to the law and to justice. They do not bend the knee to
governments, to particular religions, to the military, to money, to tabloid media or the
screaming mob. In upholding law and justice, Judges have a vital function in a pluralist
society to make sure that diversity is respected and the rights of all protected.”

12
S v Makwanyane and Another [1995] ZACC 3, [88].
13
Navtej Singh Johar & Ors. v. Union of India [2018] AIR SC 4321
14
Justice Michael Kirby, The Challenges To Justice In A Plural Society (Judicial Conference at Kuala Lumpur,
Malaysia, Commonwealth Lawyers’ Association, 4 April 2002)
<https://www.hcourt.gov.au/assets/publications/speeches/former-justices/kirbyj/kirbyj_plural.htm> accessed on 25
April 2023.

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3. The Purpose of Marriage is more than Procreation, unlike what the BCI claims

The Resolution mischaracterises marriage by making two claims: first, that marriage has been
accepted solely as a union between biological men and biological women ‘ever since the inception
of human civilization and culture’; second, that marriage is based upon procreation. 15 We take up
these arguments separately.

First, the Bar Council by limiting its understanding of marriage to cisgender heterosexual
procreation endorses a colonial reading of history, culture, and civilisation. The exploitative
colonial project required the guise of a ‘civilising’ mission, involving the imposition of Victorian
norms onto the social consciousness of Indian people. Sodomy laws were introduced to reform
indigenous customs which were amenable to ‘perverse’ practices. Western conceptions of moral
and psychological sexuality, perpetuated in order to stigmatise same-sex desire and marriage, merit
critical investigation. Same-sex love and marriage have been present in Indian culture for
centuries, with evidence of its celebration found in literary, folk and performing art traditions
dating back to ancient times. For instance, during the late mediaeval era of Urdu poetry, the term
‘chapti’ was used to refer to both the act of sex between women and the women who engaged in
it. The recognition and acceptance of same-sex relationships in India predate the introduction of
nineteenth-century European psychologists’ terminology used to describe such relationships. None
of this is meant to excessively glorify or whitewash our past civilizations; it is merely to state that
the Bar Council, by implying that same-sex marriage is foreign to Indian culture, misunderstands
and misrepresents our history.

The Madras High Court, in Arunkumar v. Inspector General of Registration,16 held that the Hindu
Marriage Act includes transgender persons by finding that a self-identifying trans woman would
be considered a ‘bride’ under the Act. So even existing Indian law, contrary to what the Bar
Council asserts, recognises marriages between non-cisgender persons.

Second, the Bar Council’s argument that the purpose of marriage is procreation denies the
existence of a variety of familial forms that do not centre on reproduction, including heterosexual
couples who exercise their agency in choosing not to bear children, and elderly individuals who
enter into unions despite lacking the capacity to procreate. Instead, given that law recognises the

15
Bar Council of India, Resolution dated 23.04.2023, [6].
16
Arunkumar v. Inspector General of Registration, 2019 SCC OnLine Mad 8779.

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right to intimacy as a critical component of autonomy and privacy, it is vital that it maintains
neutrality between different forms of intimate relationships, instead of denying same sex couples
their equal rights on the pretexts that they cannot procreate.

In Suchita Srivastava v. Chandigarh Administration, the Supreme Court noted that “There is no
doubt that a woman's right to make reproductive choices is also a dimension of ‘personal liberty’
as understood under Article 21 of the Constitution of India. It is important to recognise that
reproductive choices can be exercised to procreate as well as to abstain from procreating. The
crucial consideration is that a woman's right to privacy, dignity and bodily integrity should be
respected.” Thus, there is no necessary connection between marriage and procreation, and instead,
what is imperative within marriage is the privacy and dignity of both individuals.

Moreover, §57 of the Juvenile Justice Act allows for single people to adopt children, which
demonstrates that there is no unconditional link between the institution of marriage and child-
rearing. The Supreme Court has repeatedly recognized and affirmed the rights of step-parents,
foster parents and adoptive parents. In the case of Deepika Singh v Central Administrative
Tribunal, the Court observed that the guardians and caretakers (who traditionally occupy the roles
of the “mother” and the “father”) of children may change with remarriage, adoption, or fostering.
These manifestations of love and of families may not be typical but they are as real as their
traditional counterparts.

4. Constitutional Morality is essentially Counter-Majoritarian – The BCI has a

flawed understanding of the Doctrine of Separation of Powers.

The Bar Council states that “law is essentially a codified social norm that reflects the collective
conscience of its people”17 thus conflating law with societal morality. Dr BR Ambedkar, whose
philosophy is a constant inspiration for all law students, fought against this exact kind of thinking.
He was clear on the fact that law is a counterweight to majoritarian social morality: “Sin and
immorality cannot become tolerable [by law] because a majority is addicted to them or because

17
Bar Council of India, Resolution dated 23.04.2023, [5].

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the majority chooses to practise them.” 18 Even untouchability was a ‘codified social norm’ – did
that mean that the Constitution shouldn’t have outlawed it?

The Courts have expanded upon this view in a litany of decisions. In Govt (NCT of Delhi) v. Union
of India the Court stated as follows:19

“[A] major feature of constitutional morality is that it provides in a Constitution the basic
rules which prevent institutions from turning tyrannical. It warns against the fallibility of
individuals in a democracy, checks State power and the tyranny of the majority.
Constitutional morality balances popular morality and acts as a threshold against an
upsurge in mob rule.”

In Navtej Singh Johar, the Court reiterated that the Court is to be guided by the conception of
constitutional morality and not by ‘societal morality’.20 It states that constitutional morality always
trumps any imposition of a particular view of social morality by shifting and different majoritarian
regimes.21 This line of thought has been expressed in the following way: 22

“[The] creditable principle of constitutional morality, in a constitutional democracy like

ours where the rule of law prevails, must not be allowed to be trampled by obscure notions
of social morality which have no legal tenability. The concept of constitutional morality
would serve as an aid for the Court to arrive at a just decision which would be in
consonance with the constitutional rights of the citizens, howsoever small that fragment of
the populace may be. The idea of number, in this context, is meaningless; like zero on the
left side of any number.”

Our Constitution ensures that the decision on marriage equality need not – indeed must not – be
left to a casteist, cis-heteronormative, and patriarchal society. It is to save people from the worst
scourges of social ‘morality’ – such as the ‘justice’ meted out by Khap Panchayats to ‘immoral’
couples – that we have a Constitution in the first place. To subject fundamental rights to societal

18
BR Ambedkar, What Congress and Gandhi have done to the Untouchables (CSIPP 2012, Originally published
1945) 106.
19
(2018) 8 SCC 501.
20
Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, [119]
21
Ibid, [352].
22
Ibid, [120]

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decisions is to betray the vision of critical morality our Constitution commits us to; it is to betray
the Constitution itself.

The BCI has also cited the “doctrine of deference” in defence of its statement. This argument is an
extension of the idea that within our constitutional scheme of separation of powers, the Court does
not have the authority to decide the present matter. However, what the BCI fails to understand is
that the present petition is not a plea to legislate but to interpret the rights that the citizens already
have under the Constitution of India. By saying that the issue of marriage equality is something
that can be only brought about by the legislature, the BCI conflates principle and policy. Prior to
the creation of a right, popular forums like legislatures in terms of statutory rights and constituent
assemblies in terms of constitutional rights have the mandate to discuss and debate such issues.
However, once a right is created, the interpretation of the same is the mandate of the Courts of
law.23

This is well explained by Justice DY Chandrachud in his opinion in Mahalaxmi Cotton Ginning
Pressing & Oil Industries v. State of Maharashtra:24

“[T]he doctrine of deference is an emanation of the presumption of constitutionality which

attaches to a law which is enacted by the competent legislature … Judicial review can
extend to striking down legislation which infringes constitutional provisions. But, in
exercising that power, when they are called upon to determine the validity of legislation,
Courts must realise that the constitutional function of enacting legislation is conferred in a
democratic polity on the legislature which consists of elected representatives … The
reviewing power of the Court seeks to preserve the eternal values which form the basis of
the constitutional document. The object of judicial review is not to second guess the
legislature, but to ensure that the legislature has not transgressed constitutional
boundaries.”

23
Ronald Dworkin, Taking Rights Seriously (Harvard University Press 1978) 82-90.
24
2012 SCC OnLine Bom 733, [38].

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We would be remiss not to quote Mr Soli J Sorabjee’s scathing critique of the doctrine of deference
vis-a-vis human rights here:25

“Do Judges recognise the transcendental value of human rights which encompass civil
political rights as well as socio-economic rights? Do they understand that human rights
flow from the common humanity and inherent dignity of every human being and that
human rights are not gifts conferred by the State? Are they aware that the Constitution and
the laws are living organisms whose vitality is dependent upon creative interpretation to
fulfil the felt necessities of the times? Are Judges daring enough to uphold human rights
by adopting innovative and bold initiatives notwithstanding that they may be branded as
‘activist’ Judges? Or are they swayed by the doctrine of deference to the executive and get
mesmerised by shrill, vociferous executive assertions of danger to national security?
Importantly, are Judges more engrossed with property rights and mergers and
amalgamation of companies and enforcement of bank guarantees rather than relief of
human suffering?”

5. The Bar Council itself is not a Representative Body

In the Resolution, the Bar Council has arrogated to itself the authority of being the ‘mouthpiece of
the common men’. Let us leave aside the fact that it is only the common ‘men’ that they feel the
need to represent – a fact truly telling of the BCI as a body, office bearers of which consists of 20
cisgender men with no female representation, let alone a gender minority. The Bar Council of India
is a body founded under §4 of the Advocates Act, 1961. Its functions under §7 are mostly
regulatory, concerning the legal profession and legal education. It scarcely has any mandate to
represent the Bar of the country, as diverse a body as it is, let alone the common ‘men’ of the
country.

What is more surprising is that in doing so, the BCI is claiming to have the authority to do what it
denies the Supreme Court on the grounds of its non-representative nature. If this argument is to be
accepted, the logical corollary is that BCI, being a non-representative body itself, has no ground
to issue statements claiming to represent anyone but themselves.

25
Soli J Sorabjee, ‘Human Rights Jurisprudence of the Supreme Court of India’ (2009) 3 SCC J-26.

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6. Conclusion

In conclusion, we condemn this Resolution for what it clearly is: an attempt to browbeat and
influence the Supreme Court’s decision in this sensitive and important matter. We also pledge our
continuing solidarity with the queer communities whose fights for liberation and emancipation
extend far beyond this current petition. This includes the fight for horizontal reservation for
transgender persons, the implementation of the NALSA judgement, and all other struggles by the
transgender community. We call upon the legal fraternity to disavow all discriminatory, parochial,
and regressive beliefs that hinder the advance of peoples’ movements towards justice. As students
of law, we are proud to situate ourselves in history as a group that stood on the side of justice at
this critical juncture. To quote the ever-inspiring motto immortalised by Dr B.R. Ambedkar:

Educate, Agitate, Organise!

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