The Bar ‘Councilling’ the Supreme Court?

The Bar Council of India, in a joint-meeting with the State Bar Councils, has passed a patronising resolution insisting that the Supreme Court of India should let the legislature decide the issue of marriage equality. The resolution, which is a classic example of browbeating the court, has been passed while the Constitution Bench is adjudicating whether existing laws which do not permit same-sex marriage are discriminatory. There are two issues that must be discussed – first, whether it is appropriate for a statutory body that is not involved in an ongoing case, to ask Courts to decide that case in a particular manner; and second, the contradictory nature of the resolution which makes claims without any authority. 

On appropriateness 

The Bar Council is a statutory body constituted under the Advocates Act, 1961. The purpose of the body is to regulate the legal practice and its functions are circumscribed by Section 7 of the Act of 1961 – notably, providing its opinion on ongoing cases is not one of them, even though the Council seems to believe that it is “the mouthpiece of the common man” (See Paragraph 7 of the Resolution). This is for good reason. The Bar Council is a regulatory body. Its members are elected from the bar to govern legal practitioners and not because they have any particular expertise on other issues affecting the country. Furthermore, the issue they have commented on do not have any bearing on the interests of the bar. The lis before the court does not even affect legal practice. But to the contrary, the Bar Council claims that the ongoing proceedings “is a matter of great anxiety and serious concern for the bar” – without even attempting to explain how the bar or the Council will be affected by the Supreme Court’s adjudication of the issue (See Paragraph 1 of the Resolution). 

Here, note that Bar Council’s concern is not how the Supreme Court will decide the case, but the mere adjudication of this case. This is demonstrated by the Council’s statement in Paragraph 7 that – “The Joint Meeting is of the clear opinion that if the Hon’ble Supreme Court shows any indulgence in the matter, it will result in destabilizing the social structure of the country in the coming days.”  This is browbeating 101. 

The other concern is that the Attorney General and Solicitor General are both ex-officio members of the Bar Council (Section 4 of Advocates Act, 1961). Both of them are also representing the Union of India in the ongoing proceedings before the Supreme Court. Thus, it should not come as a surprise that both the Union of India and the Bar Council are of the opinion that the Court should not adjudicate the issue of marriage equality and instead, leave it to the wisdom of the Parliament. It should also not come as a surprise that while the Union of India believes that marriage equality is an urban elitist view”, the Bar Council believes that it is a “social experiment, engineered by a selected few” (See Paragraph 3 of the Resolution). Perhaps it would have been better for the two law officers to advise the Bar Council to not comment on the issue, lest the public at large believes that the officers are trying to persuade the Court beyond the courtroom. 

On the content of the resolution 

A perusal of the resolution makes it abundantly clear that the Councils’ stance, much like that of the Union of India, is contradictory. As stated above, the initial paragraphs insist that any matter “which is likely to tinker with the fundamental social structure” should necessarily “come through Legislative process only.” In the same breadth, the Council speculates that “99.9% of people of the country are opposed to the idea of same-sex marriage in our country”. If 99.9% of the population is in fact opposed, what would be achieved by referring the issue to the legislative process? This is exactly why the Petitioners have approached the Supreme Court – a body whose core obligation is to protect the rights of the individual against the tyranny of the majority. The Petitioners, much like the rest of the country, are aware the Parliament will not even discuss the issue of marriage equality. If the issue is left to the “wisdom of the Parliament”, the Petitioners will be continued to be denied the right to marry and the plethora of concomitant civil rights which follow, such as pension, gratuity, adoption etc.. Perhaps that is an outcome the Bar Council would prefer. 

Apart from the blatant contradiction, the resolution consists of several assertions which are not backed by any evidence – a practice that is not even expected of law students, let alone Bar Council. I have already highlighted three of them. 

  1. The Council says the ongoing proceedings are “a matter of great anxiety and serious concern of the bar.” Is it? How have you arrived at this conclusion? 
  2. The Council says “99.9% of people of the country are opposed to the idea of same-sex marriage in our country” – How did you arrive at this number? Even if it is admitted that the majority is opposed to this idea, but 99.9%? 
  3. The Council says “if the Hon’ble Supreme Court shows any indulgence in the matter, it will result in destabilizing the social structure of the country in the coming days–  This is a strong claim. I won’t dwell too much on it as the hearings have been going for more than a week now, and the social structure continues to be stable. 

Parting Words

The Bar Council is an influential body entrusted with functions that are even more influential. When it provides a unilateral opinion on issues such as marriage equality, the public is likely to believe it is presenting the stance of lawyers across the country – even though, for a week, counsel and counsel are laboring before the Supreme Court for marriage equality. Thus, it is important that lawyers generally take on a more proactive role in Bar Council elections, so that it is actually representative (21 men currently is not representative). Not to enable it to provide a ‘right’ opinion on ongoing cases, but so that it does not do so and instead, spends its time trying to ensure that the real interests of lawyers which actually cause anxiety, such as lack of social security for practitioners, are taken up by the government of the day. 

Krishnesh Bapat

I am a lawyer practicing in courts across the NCT of Delhi.

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