“A judicial punch in the gut.” That’s how Supreme Court lawyer Rohin Bhatt (they/them) refers to the apex court’s verdict on the marriage equality pleas, delivered on October 17, 2023, in their debut book The Urban Elite v. Union of India.
For anyone seeking a nuanced understanding of the intersection between law, personal identity, and the ongoing struggle for queer rights in India, Rohin’s The Urban Elite v. Union of India is essential reading. The title in itself is a jibe at the Union government, which had characterised the demand for marriage equality among LGBTQIA+ persons as an “urban elitist view” in its affidavit—a claim which was rejected by then Chief Justice of India (CJI) DY Chandrachud.
The author, a lawyer practising under senior advocate Anand Grover, had represented two queer couples in the hearings. In the book, they provide a peep into the courtroom and a thorough account of the proceedings over the 10 days inside it, in addition to delivering a deep dive into the social movement that led to the marriage equality case. They also break down the legalese, presenting the entire case cogently.
As a young queer lawyer at the Supreme Court, Rohin does not shy away from critiquing the judgement, even at the “risk of inviting contempt” in some instances. The judgement is “intellectually dishonest, logically, and legally flawed,” they say in the book, pointing out how it employs “woke language” in denying the rights to the community.
At the start of 2024, the court had clubbed and transferred to itself all petitions pending before different High Courts across the country regarding the issue of granting legal recognition to same-sex marriages. The anticipation was high, and so was hope, since the case was being heard by a bench headed by then CJI Chandrachud, who was known for his liberal stance in previous judgements, including the Sabarimala verdict that allowed women entry into the famed Ayyappa temple in Kerala.
However, the bench—which included Justice Sanjay Kishan Kaul, Justice S Ravindra Bhat, Justice Hima Kohli, and Justice PS Narasimha, in addition to Justice Chandrachud—ruled that there was no fundamental right to marriage, thereby refusing to grant marriage equality to LGBTQIA+ persons. The court also passed the buck to the Parliament to create a law.
Rohin’s book unfolds along three major aspects: an analysis of what went on inside the courtroom during the hearing and the judgement; the key cases in the queer rights movement and how they led to the marriage equality case; and the impact it had on Rohin as a lawyer personally invested in the case.
The book opens with a personal anecdote as the author recalls one of their first romantic dates in 2017, reminding — at least many queer persons — of the first time they experienced a love forbidden by society; the euphoria, as well as the racing anxiety. Throughout the book, we see how Rohin has personally navigated the case, from being inside the courtroom when a section of people reduced queer lives and their lived experiences to a joke, to deciding to make a call for action. It perhaps isn’t entirely possible to separate the personal from the professional, especially when it is linked to the politics of our own lives.
In the marriage equality case, the prayers were multiple, though the primary demand was for equal rights when it came to marriage. The petitions included those that sought recognition of chosen families, marriage equality under all laws, and adoption rights, and the lawyers had put forth multiple ways of interpreting the Special Marriage Act. Rohin observes that this, obviously, confused the judges, instead calling for a more consultative and collaborative approach.
The book is peppered with multiple instances of homophobia and queerphobia inside the courtroom, including during the marriage equality case, when the Solicitor General Tushar Mehta addressed the petitioners as “these people” and when he claimed that there is a gender that changes according to mood swings. Here, Rohin makes an important observation as to how homophobia is disguised in legal language.
“The law, at its core, seeks to regulate and bring order to chaos. So, when the law is faced with something like queerness, which is amorphous, which obfuscates boundaries, the desire of lawyers to ensure conformity feels threatened.”
With the benefit of hindsight, Rohin is also able to trace the critical points during the hearing when we almost realised that this legal battle was not ours to win. Though we did not see it as it unfolded, in retrospection, the bench did drop hints. It’s like the saying goes—we don’t recognise the damage while we’re in the eye of the storm, but once we’ve passed through, the devastation comes into sharp focus.
The biggest challenge, among everything else, for the lawyers representing the petitioners was the “shifting canvas.” Initially, the court said that it would not look into personal laws but only into SMA; then the court said it would not hear the notice regime; then the court queried if the court could just read ‘person’ instead of ‘man and woman’ in SMA and leave everything else.
After all this, the court went on to say that there was discrimination against queer persons but failed to provide a remedy. It is perhaps understandable, when the lawyer-author says that this is “an act of judicial cowardice,” as it is a settled principle of law that when there is discrimination, there must be a remedy.
The chapters are filled with sufficient caveats, reflecting the author’s awareness that a 200-page book cannot encompass the entirety of such a complex history. The book comes from someone deeply familiar with both the history and the politics of the movement, and who understands the limitations of their work. Rather than making sweeping claims, the author acknowledges the intricacies involved, offering a nuanced perspective that respects the depth of the subject.
The book skillfully juxtaposes key historical moments with the marriage equality case, presenting them concisely and with a clear perspective. What makes it particularly compelling is the way these pivotal events are intertwined with personal anecdotes, adding depth and relatability to the legal narrative. This blend of history and lived experience allows the reader to grasp not only the legal battle but also the emotional and personal stakes involved, making the story both informative and deeply human.
Put in their own words, Rohin’s book is “fuelled by the pain of being told I am not equal, that it is for an unbothered Parliament or a disinterested cabinet secretary who is unbothered to decide what basic amenities I am entitled to, while their freedom is flaunted in our faces.”