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Same sex marriage: Bar Council urges Supreme Court to let Parliament decide on the issue

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Satya Prakash

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Tribune News Service

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New Delhi, April 23

Maintaining that more than 99.9 per cent of people of the country were in opposition of the same sex marriage, the Bar Council of India (BCI) on Sunday urged the Supreme Court to leave the issue to be decided by the Legislature, saying it was likely to tinker with the fundamental social structure.

“India is one of the most diverse socio-religious countries of the world consisting of a mosaic of beliefs. Hence, any matter which is likely to tinker with the fundamental social structure, a matter which has far reaching impact on our socio-cultural and religious beliefs should necessarily come through the Legislative process only,” BCI Chairman Manan Kumar Mishra said after BCI’s joint meeting of all state bar councils.

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“Any decision by the Apex Court in such a sensitive matter may prove very harmful for the future generation of our country,” the BCI said in a resolution unanimously passed in the meeting.

“As per documented history, 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 Law Court, howsoever well-intentioned it may be,” the resolution read.

The bar bodies’ request has come in the midst of a hearing by a five-judge Constitution Bench led by CJI DY Chandrachud on petitions seeking legal recognition for same sex marriage. The hearing scheduled for Monday has been cancelled due to “unavailability” of two of the judges on the Bench.

The request is in sync with the Centre’s contention that the issue squarely fell within the domain of Parliament. Solicitor General Tushar Mehta had raised a preliminary objection to the maintainability of the petitions but the Bench overruled his objection.

Terming it “a matter of great anxiety and serious concern for the Bar,” Mishra said “We have requested the Hon’ble Supreme Court to leave it to Parliament to arrive at an appropriate decision as per the societal conscience and mandate of the people after wide-ranging consultations.”

The BCI 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 Hon’ble Supreme Court.

“More than 99.9 per cent of people are opposed to “the idea of same sex marriage” in our country.  The vast majority believes that any decision of the Apex Court in petitioners’ favour on this issue will be treated to be against the culture and socio religious structure…,” it stated.

Describing the Bar as the “mouthpiece of the common man”, the meeting expressed anxiety over the highly sensitive issue.

“The Joint Meeting is of clear opinion that if the Hon’ble Supreme Court shows any indulgence in this matter, it will result in destabilizing the social structure of our country in the coming days.  The Hon’ble Apex Court is requested and expected to appreciate and respect the sentiments and mandate of the mass of the country,” the resolution stated.

“There is no gainsaying that the issue at hand is highly-sensitive, commented upon and criticized by various sections of society, including socio-religious groups, for being a social-experiment, engineered by a selected few. This, in addition to it, being socially and morally compunctive,” the resolution read.

The resolution, however, appreciated the top court for starting “this sensitive conversation, having long-term societal ramifications.”

It said, “The responsibility of law-making has been entrusted to the Legislature under our Constitution.  Certainly, the Laws made by the legislature are truly democratic as they are made after undergoing thorough consultative processes and reflect the views of all sections of the society.  The legislature is accountable to the public.”

“Law is essentially a codified societal norm that reflects the collective conscience of its people. Moreover, religion being intertwined with culture, greatly influences the codification of law and societal norms in any civilized society,” it said, adding, in view of the sensitivity of the issue, it was advisable that it was dealt with after an elaborative consultation process involving different social, religious groups by the competent legislature.

“Issues pertaining to social and religious connotations should typically be dealt by Courts through doctrine of deference,” the BCI emphasised.

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