There is no other way of surviving other than hoping: Rohin Bhatt

The non-binary lawyer chronicles the fight for queer marriage rights in India.

Rohin Bhatt merges their roles as a queer lawyer and activist to document India’s pivotal marriage equality case, where the Supreme Court denied same-sex couples the right to marry. | Photo Credit: By Special Arrangement

On October 17, 2023, the Supreme Court delivered its verdict in Supriyo v. Union of India. The Bench unanimously held that people of the LGBTQIA+ community had no fundamental right to marry and that the Court could not recognise their right to marry under the Special Marriage Act. LGBTQ+ advocates and those who support their cause were shattered, having hoped the Court would build upon previous rulings that decriminalised homosexuality to now recognise same-sex marriage.

Among those present in the courtroom was 25-year-old lawyer Rohin Bhatt, whose personal and professional lives were converging in a tumult. Bhatt (he/they) is a non-binary queer rights activist, lawyer, and bioethicist. Bhatt works with senior advocates Indira Jaising and Anand Grover at Lawyers Collective, having graduated from Gujarat National Law University and Harvard Law School.

In October, Bhatt released The Urban Elite versus Union of India, “a first-of-its-kind book” on queer rights. The book presents the legal history of Supriyo v. Union of India alongside the long fight to decriminalise homosexuality under Section 377, weaving together courtroom observations and personal reflections. In an interview with Frontline, Bhatt discusses the verdict and the lawyer-activist’s experience of fighting the case. Bhatt also explores what it means to document this journey for a diverse readership of lawyers and non-lawyers, queer people and “allies” alike. Excerpts:

Your book draws from diverse sources—journal entries, court transcripts, and academic references. How did this writing process differ from your legal writing?

Well, traditional legal writing is supposed to be devoid of emotion and one is expected to stick to the law and legal arguments. However, while writing a book one has greater leeway with the style, and the material that one relies on, and can often do things that are not permissible in a traditional legal setting, such as appeal to emotion. But I think often that relying on a variety of sources to build one’s argument is not only an effective way of strengthening it but also distinguishing oneself from others in the arguments that one may not necessarily agree with. However, when writing a book such as this, it is important that one points out the contemporary debates of other scholars working on similar lines, activists, and indeed sources there are not usually sighted such as one’s own personal entries.

The case brought up the notion that “queerness is an urban phenomenon”, with senior advocate Mukul Rohatgi arguing against labelling queer people as “the urban elite”. What inspired you to incorporate this into your book’s title?

In the affidavit filed by the Union of India, it called the demand for marriage equality an “urban elitist demand which was made only for the sake of social recognition”. This was essentially name calling like bullies which was done by the state. When the state acts as a bully one has to take the power away from the bully. As someone who has been bullied, I have realised that the best way to do so is through humour. So the title, in a way, is a snarky reference to the affidavit of the Union of India.

Throughout Supriyo, you describe feeling a “personal failure” as the case blurred professional and personal boundaries. How did you manage the tensions between your roles as a lawyer, queer person, and activist?

Conventional legal wisdom dictates that one must maintain an arm’s length distance from the cases in which one appears. However, like all other conventional wisdom in the field of law, it was created by white men who often had no stakes in the cases that they would argue. However, today when one argues cases of human rights and especially queer rights, where in addition to being a lawyer one is forced to see oneself as a petitioner (sometimes unwillingly, like this case) for the reason that the outcome of the case will undoubtedly affect my own life. So, I was deeply involved with the case on a personal level as well.

Often, when a legal concession would be made in court, the lawyer in me would know that it was made as a sound illegal strategy, such as leaving the religious law out of the purview of the case, within this batch of Petitions. However, the queer person in me and the activist in me would often be conflicted, because such a concession would of course come at the cost of several other demands which have been made by the people of the community, including the right to marry a person of one’s choosing in accordance with their faith.

Was writing this book primarily a form of catharsis, or did you intend it to help the public better understand the case and its implications?

Well, I think the book is both of these things, in part. It was a cathartic experience writing this because I had to process the various emotions that went through my mind during the case. The flood of emotions was taking a toll on me, my life, and my mental health post the case. So, writing this book was in a way, a therapeutic exercise. Secondly, the words that are used in ordinary legal parlance between judges and lawyers would often not be comprehensible to a person who is not acquainted with the law. So, one would often get questions surrounding the day’s proceedings, every day after the court rose. Thus, I felt that it was essential that the complex court speak was broken down for an ordinary reader whether it be a queer person or an ally, who might have a personal stake in the battle but not the necessary qualifications to understand the complexity of the proceedings and the procedure of the court.

The book presents the legal history of Supriyo v. Union of India alongside the long fight to decriminalise homosexuality under Section 377, weaving together courtroom observations and personal reflections. | Photo Credit: By Special Arrangement

Throughout the book, you stress the need for dialogue and consensus within the queer community before approaching the Supreme Court again. How did the absence of this consensus affect Supriyo, and what conversations do you believe need to happen now?

I think the lack of consensus did affect the judgment. In court, we often found ourselves unable to answer a question from the judges that came up repeatedly: how do you propose to speak for the whole community, when there is a divergence of views? However, it is important that consensus is built within the community before taking such matters to court so that people in the community, have a sense of ownership of the cases in court as also the broader cause itself. In addition to that, even after Supriyo, the community could not and has not been able to rally together and call out what was undoubtedly one of the darkest judgments in the modern Supreme Court era post-2014, on account of there being a difference in how or when the case should be taken to Court.

In so far as the conversations that need to be had within the community, they have to happen at multiple levels and on multiple issues. The community is grappling with caste, class, religion, gender, and disability-based discrimination within itself and is also deeply affected by certain voices being given more prominence than others. There are also other conversations to be had such as which issues to be prioritised, how to allocate resources towards litigation as well as community building and organising. These are very difficult conversations to have with no right answers in sight. But unless we have them and democratise and decentralise the movement away from courts, away from the English-speaking crowd, the lawyers, and other voices that have had a disproportionate say in how the movement runs, there is going to be little chance of moving the needle on queer rights in India.

You end the book on a hopeful note, suggesting that like ADM Jabalpur, the Supriyo verdict will one day be overturned. Do you see specific steps toward this future, or is it more about gradual progress over time?

Baldwin famously said, “I can’t be a pessimist because I am alive. To be a pessimist means that you have agreed that human life is an academic matter. So, I am forced to be an optimist. I am forced to believe that we can survive, whatever we must survive.” In a way, there is no other way of surviving other than hoping. There have been times when there have been discordant notes and when the Supreme Court has faltered on an issue of fundamental rights. But, there is light at the end of the tunnel. For every case that has gone wrong, it has been overturned, and the historic injustice has been undone sooner rather than later and I have no doubt in my mind that this will be too.

What is next for you as a writer? We hear you are working on a second book—can you give us a preview?

Well, it might be slightly premature to talk about the next book. But I can give you a teaser and tell you that the book examines the complex relationship between love and law. After all, good things come to those who wait.