Sangeeta Barooah Pisharoty 
New Delhi: On Sunday, April 23, the Bar Council of India (BCI) passed a resolution urging the Supreme Court not to take any decision in the ongoing hearings on marriage equality, and asking it to defer the issue to parliament.
The BCI’s resolution asking the highest seat of the judiciary to leave it to the legislature to take a call on the right to same-sex marriage was reached at a joint meeting with the state bar councils. It was presided over by the BCI chairperson Manan Kumar Mishra.
BCI is a statutory body established under the Advocates Act, 1961. A glance at the functions that Act empowers the BCI to undertake makes it is clear that the body’s purpose is only to work as a regulatory body for the enrolment of lawyers and promote quality legal education, therefore, laying down standards for legal institutions across the country in coordination with its state councils.
Going by that mandate the BCI’s resolution on same-sex marriage is clearly beyond its remit. To justify its stance, the BCI resolution claimed, “The bar is the mouthpiece of the common men and therefore, this meeting is expressing their anxiety over this highly sensitive issue.”
The BCI’s self-appointed role as the moral police of the society clearly goes beyond the license granted to it under the Advocates Act. Therefore, its stance must be examined closely, particularly so when the BCI is in tandem with the Narendra Modi government. The Modi government, through solicitor general Tushar Mehta who is also a member of the BCI, opposed marriage equality, telling the apex court that same-sex marriage is an ‘urban elitist concept’ that is far removed from the social ethos of India.
Now, take a look at the BCI resolution, “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 of the SC in the petitioners’ favour on this issue will be treated to be against the culture and socio-religious structure of our country.” In other words, the BCI is also saying that these rights are an ‘urban elitist concept’.
The Union government and the BCI seem to have forgotten that they are bound to follow constitutional morality and not societal norms. And the constitution promises equality to everyone.
If we are to go by the BCI’s statement, one could also argue that the concept of Sati had social sanction. The case made for widow remarriage by the likes of Raja Ram Mohan Roy in pre-independent India was met with massive opposition from society. And yet, the abolition of sati rightly received legal sanction and put an end to an oppressive practice. This law gave many Hindu widows in the 19th and 20th centuries the ability to lift themselves out of the abyss into which they were thrown by dint of social-religious ethos, many at a very young age.
Another claim by the BCI needs close examination: that the Bar is “the mouthpiece of the common men.” Hinged on this claim, the BCI requested the judiciary to leave the issue for the consideration of the legislature, or parliament. The BCI’s plea was perched on the argument that the country’s highest court must defer to the ‘people’s will’, reflected through elected members of parliament.
Interestingly, Tushar Mehta, while representing the government, also made a similar argument. He pleaded with the SC to seek suggestions on the matter from the state governments for the same reason. The five-judge SC bench led by Chief Justice of India (CJI) D.Y. Chandrachud, however, shot down not only this suggestion but also punctured holes into the ‘urban elitist concept’.
The solicitor general’s submission to the court was but the view of the ruling Bharatiya Janata Party (BJP) and its ideological fount, the Rashtriya Swayamsevak Sangh (RSS). This raises a pertinent question: Is the BCI going beyond its mandate to pass the resolution to act as a pressure group on behalf of the BJP-RSS in a highly sensitive case?
Also Read | Same-Sex Marriages: Govt Animosity Warrants Judicial Intervention To Uphold Constitutional Rights
To understand this better, it is important to highlight one important aspect that several news reports about the April 23 resolution did not bring to the fore. BCI chairperson and advocate Manan Kumar Mishra has, since 2014, not only taken a pro-BJP political position but also formally joined the party in January of that year in the presence of then-party president Rajnath Singh!
While holding the BCI chairman’s position, Mishra has also been issuing statements periodically in support of the Modi government. In 2014, when he openly came out in support of Modi, he did hit the headlines, particularly for stating that he would be “camping in Varanasi for a week” to campaign for Modi. He said that he would also travel across the country (all state bar councils are under him) to canvass for the BJP’s prime ministerial candidate.
Perhaps what stood out was his letter to “beloved Narendra Modiji” in 2016, calling him “My Lord”. The letter was an appeal to the prime minister not to challenge the BCI’s role in regulating the legal profession, and the entry of foreign law firms into the country.
“My Lord! You are our guardian, our guide”, “most efficient and able leader of the world”, he had told Modi in that letter, also adding, “Bar Council of India is your institution”.
This past March, the Modi government allowed foreign firms to enter India as per the demand of the BCI, The decision is controversial, as several legal experts and bodies in India have questioned its shortcomings.
Prior to this, Mishra was in the news after assembly elections were held for a few states in 2022. A press statement issued by the BCI – congratulating Modi and party leader Amit Shah for winning assembly polls in Goa, Uttarakhand and Uttar Pradesh – had explicitly stated that “under the chairman’s leadership, members of the BCI actively participated in election campaigning” in those three states.
“The developments and work done by (BJP) chief ministers Pramod Sawant and Yogi ji (Adityanath) under the patronage of Narendra Modi were discussed in lawyers’ associations; lawyers participated enthusiastically in voting and thus BJP won,” said the statement.
In other words, that BCI statement was not a standard congratulatory message to the prime minister by the head of a statutory body but more of an adulatory note penned by an ardent party worker to his leader.
It is then absolutely necessary to see the BCI’s April 23 statement asking the SC to allow parliament to take the decision on the right to same-sex marriage as a political statement, and not as “the mouthpiece of the common people.” Mishra’s party, after all, has a brute majority in Parliament.