The Urban Elite v. Union of India: The Unfulfilled Constitutional Promise of Marriage (In)Equality
By Rohin Bhatt
Penguin, 288 pages, Rs 499

Rohin Bhatt, a queer, non-binary lawyer who practices in the Supreme Court, is known for not just activism inside the courtroom but also outside it, along with writing extensively on issues of queer rights and human rights.

‘The Urban Elite versus Union of India’ is a first-of-its-kind narrative that not only delves into the historic decriminalization of Section 377 of the Indian Penal Code but also offers a deeply personal account of what it means to be a queer lawyer in India. It is a groundbreaking exploration of queer rights in India.

What does it mean to be a queer lawyer? How should social impact and public interest legislation be undertaken? Is the legal profession a safe space for queer lawyers? These are just a few of the pressing questions Rohin Bhatt tackles in this riveting book.

‘The Urban Elite versus Union of India’ is not just a legal history; it is a vivid portrayal of the author’s own journey. Bhatt shares the intense emotions and challenges faced while litigating queer rights, offering readers a unique glimpse into the intersection of personal and professional life in the realm of social justice.

Bhatt, who was studying law at the Gujarat National Law University during the landmark Supreme Court judgment in Navtej Singh Johar & Ors. v. Union of India, provides an insider’s perspective on the fight for LGBTQIA+ rights. The verdict, which decriminalized homosexual acts, was a watershed moment for the community, yet Bhatt reveals that five years later, the ground reality remains largely unchanged.

Here is an excerpt from the concluding chapter of the book:

After the judgment, I remember having multiple breakdowns. It felt like a deep personal failure. To this day, I cannot speak or write about the judgment without my eyes welling up. To say that this has been one of the greatest failures of my life at a professional level would not be wrong. But reviews had to be drafted, and there was little time for wallowing in self-pity. All of us drafted and filed review petitions over the thirty days following the judgment. In essence, the gist of the review was best captured by Udit Sood’s review petition which said, ‘To find that the petitioners are enduring discrimination, but then turn them away with best wishes for the future, conforms neither with this Hon’ble Court’s Constitutional obligation towards queer Indians nor with the separation of powers contemplated in our Constitution.’ This was a divergence from the classic style of drafting legal petitions. While drafting, lawyers are taught to stay away from adjectives, epithets and hyperbole. ‘Keep it short and simple, stupid’ is something which is drilled into us during our legal training. Yet it was clear that it was the deep pain of the petitioners which was coming forth in the draft.

The matters were mentioned before the Chief Justice on 23 November 2023. Chief Justice Chandrachud agreed to consider whether the review petitions should be heard in open court on 28 November. As a matter of course, review petitions are not heard in open court. On 28 November when the cause list came out, the matter was not on board for reasons best known to the Chief Justice who has the power to decide when and who should hear matters. Review petitions are often not taken up for months, if not years. A review petition is heard by the same bench, so we mentioned them with a solemn hope that the review could be heard before Justice Kaul, who had written the most radically liberal opinion of the bench (which still did not give marriage but civil unions and struck down the SMA), and that he would be on the bench for the review. Alas, that was not to be, and Justice Kaul retired before the issue of whether the review petition would be heard in open court was decided. Subsequently, a new bench consisting of Justices Sanjeev Khanna and B.V. Nagarathana in place of Justices Bhat and Kaul who had superannuated was constituted. However, Justice Khanna recused himself from the matter, and we now await the constitution of yet another bench. The matter will be taken up sooner rather than later. We now have the benefit of hindsight to figure out where we went wrong and do better in the future for not just the marriage equality movement, but also the broader movement of queer rights in general.

But merely resting easy with filing reviews for this judgment is not enough. The goal for those of us who are a part of the movement is also to chart a future course and a manifesto. Such a manifesto ought to be drawn by the movement—but what I want to do here is talk about the issues which will undoubtedly come up in the future or are already being fought for inside and outside the courts. These issues are not urban or elite but are the truths of the lives of hundreds of thousands of queer people in the country. The way that queer lives intersect with the heterosexual world, in their social, legal, economic and overall manifestations, is far from perfect.

We must continue fighting for individual rights, in addition to the broader fight for equality. For love is not enough to give us a human existence unless we have rights that are firmly grounded. Consider, for example, the case which came up before the Kerala High Court. It involved claims over the dead body of a gay man who died while living with his partner. He was disowned by his family, and they did not want to claim the body. The partner had no legal rights over his body. In this situation, it is for the state to dispose of the body as it was legally unclaimed. No matter how much the two partners loved each other, there were no precipitative rights. What do we do with a right to relationship that Bhat talks about? It gives us the square root of nothing. The Kerala High Court held that the family who had refused the body earlier and did not pay for the hospital expenditure had a right over the body and chose to hand it to them while the lover had merely been left out in the cold winds of exclusion and homophobia. To be queer in a way that the law does not recognize your relationship, and the courts, while sympathizing with the lack of recognition but providing no redress, will rob queer people of their dignity in life and in death. It will take this case and several gut-wrenching cases like it for us to build up a solid substratum for marriage equality in the future. But one thing is certain, no matter how many judicial platitudes say otherwise, in India, queer people are second-class citizens. Except, unlike in Koushal, this time the judgment employs woke language in denying us our rights.

How, then, does one chart the way forward? How do we ensure that there is a way ahead for the queer movement in the midst of divisions that are rife within the community—some for good reason? The answer to this would be charting a manifesto that deals with not just the times we live in but is more inclusive in its formulation and conceptualization. Of course, as I have said repeatedly in this book, the work of movement-building is on building solidarities, and that must start within the queer movement itself. A manifesto such as this should be based on consultation within the community across the country. There are deep wounds in the community—caste-based discrimination, the growing distance between cis and trans movements, and differences across other intersectionalities such as religion, class, disability and race.

[The excerpt reproduced with the permission of the publishers.]