Rohin Bhatt – “Emotions play a big role in how cases are decided”

What made you write a book that blends your experiences as a queer, non-binary person with Supreme Court proceedings in the marriage equality case (also known as Supriyo Chakraborty v Union of India), for which you were part of the legal team?

The underlying presumption is that the law operates in a neutral fashion, as lofty ideals or formulaic principles that have to be applied to a given set of facts. But much of the law is hardly that. Equity, emotions and psyche often play a big role in how cases are decided by judges, because they are human at the end of the day. This case was a classic example of a case which was not a dispute of not following the law but where one and one’s community were unwillingly the subject of the law. I had been writing down what went on in my mind throughout the hearings, not just legally but emotionally. The hearings were emotionally charged, and they started taking a toll on my health. Journalling about what went on in the Supreme Court helped me deal with some of the emotions. A few weeks after the case was over, my publisher Chirag Thakkar told me that he wanted me to do a book on it, and I jumped at the opportunity since few books of this kind have been written before.

You have a wicked sense of humour. You write, “Usually, one does not write such a book until one is either bald or wrinkled, or dying.”

Well, I am not sure my friends would agree with you about my sense of humour. But notwithstanding that kind comment, this book was not just an intellectual project but a deeply personal one. The sentence that you are quoting was a tongue in cheek remark because, one day, a friend said to me that I was too young (Bhatt is 26) to be writing my memoirs.

The book opens with your description of a date with a doctor who kissed you in a car at a traffic signal. Soon after, you found yourself being blackmailed by a cop. How did you find the courage to write about this incident after the pain it must have caused?

It was something about which I had written about for the first time in 2023 in a piece for The Leaflet (a digital platform focusing on legal and public policy issues) and seemed like an ideal place to start to position myself as a lawyer, but also as someone who has been affected by the law. One of the things that was often said about Section 377 of the Indian Penal Code was that it was not used any longer. But that is not the point. It was used to threaten, to abuse, to blackmail, and to coerce queer people. I, and the person I kissed, belonged to a class of people that could afford to bribe the police and get away. However, when people could not, they were abused verbally, physically, and sexually. This abuse was multiplied across gender, class, caste and profession. So, it was important to talk about it.

A lawyer in the Supreme Court stated that “non-binary” is a theoretical category. Please describe what identifying as “non-binary” means to you so that people who are unaware have a chance to learn.

I do not see myself as fitting into the categories of “male” and “female”. I do not want to be pigeonholed. That’s why I choose to identify as “non-binary”. I am not a theoretical category. I am a real person. And there are many other non-binary persons who are members of the bar. We don’t want our identities to be wiped out. We exist in flesh and blood.

Tell us about your work as a lawyer with Anand Grover and Indira Jaising.

While I was at Harvard (pursuing a Master’s degree in Bioethics) and planning to come back to India to start practising law, I called up Senior Advocate Sanjoy Ghosh and he told me I should work for Ms Jaising. He kindly offered to put in a word with her, and I wrote to her. Within a few weeks, I had secured a job with her. I consider myself truly blessed to be able to work with both Ms Jaising and Mr Grover. While working with them, I have had a wide diversity of work, across almost every single branch of the law. But I am blessed not just because of the intellectual rigour that they demand of their juniors but also because they have given me a safe space to be myself and bring my whole self to work. I have gone to the office with my nails painted bright red and there have been no eyebrows raised. I have also got an opportunity to work on a variety of issues spanning civil, criminal, intellectual and even environmental law. But amidst all of it, there has always been a central lesson — do not compromise on your principles, and have the courage of your convictions.

In the book, you remark that the Supreme Court “has, since 2014, forgotten that it is supposed to serve as a counter-majoritarian force against excesses”. What gave you the confidence that the apex court would give a verdict in favour of marriage equality?

Lawyers are always told to read the law later, and read the judge first. Going into the case, and the composition of the bench, all of us were cautiously optimistic for we had judges who were broadly considered to be liberal judges. Two of the five judges, who were the senior most — Chief Justice DY Chandrachud and Justice SK Kaul — had written extensively on queer rights in their previous judgements such as Navtej Singh Johar & Ors v Union of India (the verdict that led to the reading down of Section 377) and Justice KS Puttaswamy (Retd) and Anr v Union of India & Ors (known as the Right to Privacy verdict). Justice SR Bhat and Justice Hima Kohli were also seen by the bar as fairly progressive judges who had authored powerful judgments on social and economic rights. With this track record, it seemed fair for lawyers to hazard a guess that the verdict would be in our favour. We thought we knew our judges. What led to the outcome is best known to them.

You admit in the book that it was unwise for people to rush to the court with petitions asking for marriage equality before having community consultations on the matter. How can consultations contribute to the strategy behind and outcome of a case?

Sometimes, lawyers think that they know everything about the community they are representing but that is not true. Holding community consultations is a demonstration of intellectual humility. It is an admission of the fact that we do not know enough, and we need to learn. Without this approach, one ends up with half-baked cases that do more harm to the cause. Even people from within the community do not know everything because it is a vast and diverse community. The demands of people in Kashmir will be very different from the demands of people in Karnataka. The demands in Mumbai will be very different from the demands in Manipur. It is difficult for one person to know all of it. Without the lived experience required to argue a case, isn’t it better to listen to others and learn from them? This helps lawyers represent the interests of their clients in a more effective manner.

In Love’s Rite: Same Sex Marriage in India and the West (2005), Ruth Vanita documents a number of same-sex couples who have devised their own ceremonies to commit to each other and live together as spouses even in the absence of legal recognition for these marriages. Why do queer persons seek validation from the state?

State recognition is important because it is the state that has to enforce rights. Let’s talk about Manu and Jebin, a couple from Kerala. They had a commitment ceremony, and they were living together. When Manu died, his partner Jebin wanted to claim the body as Manu’s family had disowned Manu. Jebin had to approach the court to receive his partner’s body. In the absence of marriage equality, the right to receive a deceased partner’s body is not recognized by law for queer couples who live together and are committed to each other. This example shows us why state recognition is a necessary evil that we must deal with.

Beyond marriage equality, what does “queer liberation” mean to you? This term is used repeatedly in your book. How do you define and envision it?

For me, queer liberation is the freedom for every person to live out their true selves without any interference from the state or non-state actors. That freedom involves who you want to fornicate with, how you want to dress up and express yourself, how you want to lead your life, how many lovers you want to have. I don’t think that it is for the state or for society to tell people how to conduct themselves in these matters. I think that true queer liberation would only be achieved when all of these things can be done without fear of violence.

Several queer lives have been lost to suicide as a result of bullying that happens both online and in person. You mention two young people — Arvey and Pranshu — that the community lost recently in your book. What can the law do to prevent further suicides?

The law can only do so much. It steps in once a crime has occurred. It can punish but it cannot prevent discrimination or bullying. That has to happen through a change in societal attitudes, through sex education in schools, and through sensitization about consent.

Chintan Girish Modi is a freelance writer, journalist and book reviewer.