In July, the Supreme Court began hearing pleas seeking a review of the Court’s verdict refusing to legalise queer marriage. In its ruling in October 2023, the Supreme Court held that there was no fundamental right to marry.
For Supreme Court advocate Rohin Bhatt, whose pronouns are he/they, marriage equality for the queer community remains crucial to the broader social movement for equality as well as the legal battle for greater rights.
“Social movements cannot solely focus on legal routes to achieve equality,” said Bhatt, but in the case of marriage equality in India, this is a diversion, he added. Bhatt said that this is because petitioners in the case had provided the Court with evidence that though the matter came up before Parliament, “the legislature had chosen not to act on it”.
“Given that there is a void, and that the legislature has not acted on it, the Supreme Court was bound, constitutionally and legally, by precedent it has itself laid down, to act on the egregious violation of fundamental rights,” said Bhatt in an interview.
That said, Bhatt pointed out that the queer rights movement in India has some “rethinking and recalibration” to do amid fractures over questions of caste, religion and urban/rural divides. “The time has come to sit together, with people across the spectrum, even those that we vehemently disagree with and chart a course for the movement,” said Bhatt. “We must do this for, if nothing, self-preservation.”
The queer community is not a monolith, Bhatt emphasised. “Like society, we are polarised, divided, and have our own biases,” he said. Building bridges and working towards common goals is important, but we must also draw lines, said Bhatt. “Islamophobia, casteism, classism should have no space in the movement.”
A long-term solution which is radical and shifts perceptions has to be in our collective rethinking of social and political arrangements, he said. “When this happens, legal change will follow.”
Excerpts:
Being a young, out queer lawyer, has your sexuality come in the way of your work? Has the workplace, the courts and related areas been safe enough for you?
I have had the privilege of having Ms Indira Jaising as a boss who has been extremely supportive, not just for my queerness but in everything that I do. She has been a pillar of strength and support.
There are of course, a few random and stray comments that are made by strangers here and there, but I do not think too much of them. One of the things that being bullied as a child does to you, is that it makes you immune to bullies for the rest of your life.
You did take the courage of asking the Chief Justice of India, DY Chandrachud, to incorporate inclusive language in the Courts starting with pronouns. Why did you feel it necessary to make such a request?
Firstly, judgements of the Supreme Court are a matter of public record. They are read and cited for years to come. It is important that queer lawyers are not subjected to dehumanisation for that long. Use of correct pronouns in orders and judgments of the court affirms identities of queer lawyers, and challenges discriminatory attitudes. The use of the wrong pronouns in orders and judgments can disempower, demean, and reinforce exclusion.
Secondly, courtrooms are workplaces for queer lawyers. We have seen some movement in inclusion in corporations, but little has changed elsewhere. It is important for a place like the Court, whose everyday business is to enforce, interpret and lay down constitutional principles like non-discrimination, to be an inclusive workplace. This is perhaps the first of the many changes that need to be advocated for.
How do you view the relevance of the focus on marriage equality as against the question of anti-discrimination? I ask since children run the risk of being born in discriminatory families, going to schools and colleges that are queerphobic and rarely feeling safe in any space. For many then love and marriage is an unreal choice given the poor foundation they have, the fear that comes with it.
There is a brilliant thing that Njeri Gateru, of the National Gay and Lesbian Human Rights Organisation from Kenya, says in her conversation with Mark Gevisser around the decriminalisation movement in Kenya, in the book The Revolution Will Not be Litigated, which is edited by Mark Gevisser and Katie Redford.
She says: “But along the way we nearly fell apart. We tried to be strategic, intentional, about building a strong organization, but the litigation almost tore it down at one point. There was a huge rift in the movement, funders were involved too, over whether it was right to spend this amount of resources on decriminalisation when there were so many other issues. There was a move to get us defunded, and we could have easily gone under. And of course, neither a win nor a loss in court will necessarily keep a movement together. In our movement, we had already had many moments of fracturing. We came to the movement knowing we’re different on so many things. But we came together on this. Even when we were banding together around this thing, we did so knowing there are very many things we disagreed on.”
I think we are at a similar place – there are fractures within the movement, and some groups feel that they have been sidelined for good reason. The time has come to sit together, with people across the spectrum, even those that we vehemently disagree with and chart a course for the movement. We must do this for if nothing, self preservation. We are a “minuscule minority” – and coming together is essential if we want to survive as a movement. That survival must not come at the cost of “others” within the movement, or creating an exclusionary decision making process, but one where each voice is treasured equally and given due respect.
During the hearings on the marriage equality petitions, there were claims made that marriage and related rights were desires of the “urban elite”. The bench, as it were, dismissed this claim. Still, is it not true that most voices heard at a national level are urban and often of the privileged elite?
Yes, I think that is true. The systemic problem of access to lawyers and courts is itself exclusionary. So, often, the cases that get media attention are those that are “urban elite”. However, framing queerness as being urban elite is problematic because it then is a way to disenfranchise queer people.
I think the Chief Justice, in his judgement, talks about the petitioners who had come before the Court. They ranged from someone who was born in Mumbai to Catholic parents to petitioners who grew up in Durgapur, West Bengal and Delhi and states that she came to terms with her sexuality when she was an adult, from Dalit and OBC [Other Backward Class] petitioners to the urban elite.
Yes, maybe the causes that have the urban elite are covered more widely – for example, Grace Banu’s tireless work for horizontal reservations has ensured reservations in Karnataka, West Bengal and other states, but it is hardly ever covered by the mainstream media.
Similarly, few people know about Vyjayanti Vasanta Mogli’s years of activism against Telangana Eunuch’s act which was struck down by the High Court last year. The problem rests with whose voices are heard – and that will involve some level of introspection by those of us (and I count myself amongst them) who are often touted to be the face of the movement and ensuring that we pass the mic to the voices which are often not heard.
Most recently the CJI suggested, as per reports, that Courts can’t have all answers and solutions, society has much to do. For the queer community where most answers and solutions to our rights lie with the Courts, how do you reason with such a statement?
The Chief Justice was aware that the review petitions were pending before him, so in my respectful view, he ought not to have commented on the issue. But having said that, I agree with him on principle, but not in terms of the marriage equality case. Social movements cannot focus solely on legal routes to achieve equality, and there is much merit in that argument. However, when this argument is made in the case of Indian marriage equality, it is a diversion. This is because we had shown evidence to the court, about how the issue had come up before Parliament, using PinkList India’s data, and how the legislature had chosen not to act on it.
Given that there is a void, and that the legislature has not acted on it, the Supreme Court was bound, constitutionally and legally, by precedent it has itself laid down, to act on the egregious violation of fundamental rights.
But coming back to the larger point that the Chief Justice makes, there can be no disagreement. Social movements are never built or nurtured only in courtrooms. They have to be built over decades with social workers, community activists, and others.
The queer community reflects all the faultlines the nation and its people have. Given that a democracy is about debates, discussions, existence and co-existence, do you believe the queer community should invest in dialogues to bridge gaps to build solidarity? Doesn’t a divided movement leave it open to political exploitation?
Queer people are not a monolith, and to assume otherwise would be a mistake. Like society, we are polarised, divided, and have our own biases. Yes, building bridges and gaps is important in terms of ensuring progress for social justice.
For example, the anti-caste movement and the movement for horizontal reservation for transgender persons have the same goals and they must work together. Similarly, the feminist movement and the queer movement itself have common goals insofar as they both seek to defeat cis-hetero-patriarchy. So working together towards common goals is important and building solidarities and synergies is important.
But at the same time, we must draw lines. Islamophobia, casteism, classism should have no space in the movement. While there may be differences on our approaches to equality, and how we seek to go about it, there must be consensus that the dominant ideology of the movement should be inclusion, and constitutional principles on which our legal, social and political configurations as a movement must be built.
But there is faultiness within the movement, where some voices are more equal than others, on account of their class, caste, and English-speaking ability. There also has to be considerable work to be done in building bridges within the movement also, if nothing, in service of our joint transformation and quest for equality.
There is often a debate on whether all solutions to equality and equity lie with the law and judiciary or society and its people. How do you view this debate and the interaction between society and people with law and justice when it comes to the changes the queer community wishes to see for itself?
Of course not. Solutions to equality and equity lie only with the judiciary insofar as interpretation of these values in terms of constitutional principles is concerned. However, behind every case there is decades of social movement labour that is often ignored, tireless work of grassroots activists, community advocates, community based organisations who put a sweltering amount of work in organising, debating, educating. It is because of them that cases are often brought to court, but they are often erased out.
A long-term solution which is radical and shifts perceptions has to be in our collective rethinking of social and political arrangements. When this happens, legal change will follow. However, we have been running in the opposite direction in post-Navtej India, and I think there has to be some rethinking and recalibration that we do for ourselves as a movement.
Sharif Rangnekar is the author of Straight to Normal and Queersapien. He is also the director of the Rainbow Literature Festival.
This article is part of the Queer & Inclusive series.
