We are at a phase in the queer movement where we have seen that it is increasingly becoming lawyer-centric. For the smallest of issues, people seem to rush to the Supreme Court. What this frequently results in is half-baked petitions, and often damage to the movement itself. While in any legal discourse on rights in India, the Constitution is a sine qua non, using it as the only weapon that a movement can wield does not serve the purpose. It must be a major tool in the toolbox but be complemented with other tools such as social realities and historical facts so that the complexities of the lives led by the people of this country are accurately captured in petitions.
We have not done that so far, save for a few instances. I do not blame the clients who often do not know the right course of action. I blame the lawyers who take certain matters to court. They must guide their clients appropriately. But they do not, for the wide reportage of queer issues has turned litigating such issues, often without a basic understanding of the community itself, into a cake that everyone wants a piece of, often with self-serving interests. “I want to do LGBT cases and become famous,” (sic) an unsuspecting lawyer once told me. This of course also results in the movement being co-opted by lawyers, as we have been warned against repeatedly.
We can, however, avoid this. As I was saying, there is now a new age of social movements and social justice litigation which is informed by a State which is increasingly clamping down on civil society in the form of tax raids, choking funding, jailing dissidents under terror laws, criminalising any form of dissent, making free speech nearly impossible. When issues like marriage equality are taken up in the Supreme Court, which affects the rights of the queer community at large, the time has come for a more participative process to evolve in the system.
Unlike other movements, like the feminist movements, where on broad issues there is a seeming consensus, the queer movement lacks one. That is primarily because there are not enough places where conversations can take place, or platforms where the community can discuss issues, irrespective of our disagreements, howsoever vehement they may be. Yet, when PILs are filed in the Supreme Court, they do affect the community at large. As a result, what we have is that many members of the community who may not be in Delhi or urban India are left out of conversations and eventually disenfranchised. This becomes more acute when much of the movement is judicialised. I do not dispute that in cases where the rights of an individual are violated, they should be free to move the court. However, when issues like marriage equality are filed as PILs, it calls for participative litigation that is more inclusive and collaborative.
When I talk about a collaborative litigation strategy, I do not mean merely on which issues to take to court and when, but the broader set of decisions, including negotiating legal strategy, sounding out arguments, etc. If we, as lawyers who represent queer causes and are also queer, think of ourselves as leaders or are projected by the media to be leaders of the movement (and we usually do, because of our own hubris), we must acknowledge that there is a multiplicity of political voices within the community. All of them must be heard, and a litigation strategy must be decided in a consultative process. We cannot create a movement and centre it on a radical critique of existing power hierarchies if they manifest within our movements too. When we have created a movement around litigation – and I admit to my part in it – I also believe that we as lawyers should be held to account by the movement.
There has to be an accountability mechanism, which focuses on centring the movement’s participation in the litigation process. We cannot be hostile to grassroots activists, or to the tireless work of community organisers, but see them as equal participants, where they are not dismissed to make the most perfunctory decisions in legal strategies if they are involved, or worse, as a means to an end by providing lawyers with petitioners.
In litigation-driven movements like the queer rights movement, lawyers have to remember that there are competing interests of the petitioners, often on the same side of the debate. For example, in the marriage equality case, Rituparna Borah’s petition went on a different tangent, seeking recognition of chosen families on account of violence from natal family, and was not per se a petition seeking marriage. The process of drafting and arguing these petitions, therefore, must be democratic, and transcend the bounds of the traditional lawyer-client relationship. In a typical scenario, a client comes to the lawyer with the facts of the case and relies on his expertise as a legal professional to supply the requisite legal advice and guide the client on possible outcomes. However, in public interest cases, the client often arrives with the outcomes that they want to be reached, and the lawyer has to mould the law and the legal arguments to arrive at it and reverse engineer the case. Clients in these cases often know more about the issue than the lawyers themselves (and dare I say, that includes the law), and it is imperative that we tap into their lived experiences and knowledge as important resources.
The second reason I say that this process must be participatory is because litigation has become the last bastion of democracy in India, which is in peril. It is a tool that is used not just for creating policy, where the courts have engaged in a dialogue with the executive to create policy (such as the creation of a Draft National Policy on Supply and Disposal of Sanitary Napkins in Schools which arose out of a PIL). In these cases, a court often nudges the executive to create a policy, though the coercive power of a judicial direction hangs on the executive’s head like the sword of Damocles. In a second scenario, the PIL jurisdiction of the Supreme Court is also used to plug holes in the implementation of an already existing policy, such as the litigation around stubble burning. In both of these cases, the Supreme Court has undoubtedly played the role of the policymaker and the executor of the policy (albeit through coercing the executive to do it), defying the traditional separation of power doctrine. Litigation, in this model, becomes a tool of checks and balances against the excess or inaction of the State.
The third reason why litigation of this nature must be participative is because the interests of the community are at stake, and the community thus becomes an epistemic subject. The creation of new legal paradigms through litigation is arguably the creation of new knowledge building up on two things: The factum of the lived experiences of the PIL petitioners and the evolution and reformation of the existing legal norms. There is thus not just an intellectual dimension to such a litigation strategy which allows us to tap into the community and its lived experiences to further constitutional goals through multidisciplinary legal actions, but also an ethical dimension which seeks to create incremental reform and undo past injustices. If as lawyers we continue to manifest and recreate exclusionary power structures, without focusing on reform, empowerment and restoration, this battle will be lost before it has even begun.
The fourth reason for creating a participative movement is that we need to foster and nurture a culture of intersectionality, where we build solidarities not just with other movements but also within the movement. I say this for two reasons – the first is the normative good that intersectionality provides. But if that does not sit well with people – for some right-wing queer activists have accused others of “shoving intersectionality down [their] throats” or calling it a “malaise” – then I suggest they do it for a selfish reason, that the movements are working towards common goals. To understand this, I go back to the original idea that Kimberlé Crenshaw demonstrated on how the discourse of violence against women left out women of colour.
Similarly, within the broader queer rights movement, and in my conversation with activists across the country and ideologies, there seems to be a point where the cis queer rights movement is divorcing itself from the trans rights movement. There is a distrust for cis groups within trans groups, and rightfully so, that cis activists have demonstrated recalcitrance in their activism at best, and opposed issues surrounding trans rights issues such as challenges to the Transgender Persons (Protection of Rights) Act, 2019, or the movement for horizontal reservations at worst. As Dhiren Borsia writes:
Two days before the Delhi pride, a protest was called at the same place where the pride was supposed to culminate. Only thirty people showed up to this protest, against the 7000 that walked in the pride. Where are our priorities? Where is the queer movement? Is the celebration of this verdict just a celebration of a moment and not a movement? Because for sure it has erased the contributions of trans* people and sex workers and the women’s movement and the anti-caste movement to make this moment even imaginable. When the LGBTQ+ pride can conveniently choose to ignore the T that is a part of its acronym, I dare say, I have very little faith that it would remember the Dalits, Bahujans, Adivasis, and Muslims that make a majority in all of these categories.
My conversations with activists, members from the community, and even lawyers litigating queer issues across the country tell me that this distrust has only grown after the marriage equality litigation and the case jumping the docket while petitions challenging the Transgender Persons (Protection of Rights) Act filed years ago have not yet been taken up. The law in this way has become a site for marginalization itself. Creating a participative litigation movement will go a long way in addressing this distrust. The second proposal, as I said, is building inter-movement solidarity. Take for example the movement for horizontal reservations for transgender persons. The queer community must build bonds with the anti-caste movement which advocates for reservations within it.
Excerpted with permission from The Urban Elite v. Union of India: The Unfulfilled Constitutional Promise of Marriage (In)Equality, Rohin Bhatt, Penguin India.
