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Journalism of Courage
For many, the opportunity to watch courtroom proceedings as part of the marriage equality case was a unique and potentially empowering one. Judicial transparency is a critical need, but several legal actors ended up focusing on how they are perceived, that is the optics, and this took vital attention away from a crucial struggle where the personal is political – and where the political has rarely felt more personal.
To have an eyewitness account of all that transpired inside the courtroom by someone who is both a lawyer-on-file (a professional deploying their trade) and an activist (whose personal life is up for public scrutiny) is a rare and generous gift. The book reverberates with its author’s rage and sorrow even as they showcase the depth of their knowledge—in the foreword, senior advocate Anand Grover notes that Bhatt is all of twenty-six. Since the book is all about identity and intersectionality, the observation on age is surprisingly relevant and not patronising as one might initially think.
This blow-by-blow account of how the case unfolded is also an opportunity to occupy the courtroom space corporeally. Bhatt allows us to perceive the arguments through their well-trained lens, but also makes it possible for us to feel every beat, every insult, every disappointment, and every stolen piece of validation. When they write about the solicitor-general taunting the community by claiming that there is no stigma attached to queer lives, we groan with them.
Bhatt takes care to prepare the reader for this emotional rollercoaster. That the separation of law and emotions has never held true is something that has guided social science and humanities writing on law for some time, but lawyers still seem to find this demarcation useful. This book, however, recognises that a conversation on who you are, whom you love, and with whom you want to establish one of the most important relationships of your life should not shy away from emotions.
The lawyer-author, intriguingly, remains ambivalent about what the marriage in marriage equality actually denotes. For them, It is not a civil union that the Special Marriage Act was an approximation for—nor is it a customary or social relationship. In their account, this landmark case is all about the equality in marriage equality. The ‘right to marry’ is about equal status and the denial of the same is a failure to prevent discrimination as was promised by the Navtej Johar v Union of India judgement that had decriminalised homosexuality.
The book is, in many ways, guided by this overarching message of equal status even as Bhatt dissects the statements of both the lawyers who represented the petitioners and the states/communities as well as of the judges. Making legal provisions for non-heterosexual marriages would require rethinking several clauses in marriage and personal laws—for which the petitioners presented ‘workability models’ —but the book highlights how the courtroom proceedings routinely lost sight of the bigger picture. Since the writer is not deeply concerned with what marriage is or is not, the writing seems impatient and wary in these parts.
Similarly, the terms in which sexuality is discussed becomes a source of disquiet. While it may be strategically useful to argue that sexuality is an “innate choice,” Bhatt resists such a description. According to them, presenting homosexuality as innate and, consequently, respectable, is an appeal for tolerance and mercy. This argument of innateness does not seek acceptance and presents “choice as elitist,” an allegation Bhatt takes to heart.
The dismissive charge that the petitioners represent a miniscule section of the urban elite, which also made it to the book’s title, seems to have left a long shadow. While acknowledging their own privilege and discussing the submissions of petitioners from the trans community who are anything but elite, the author also dwells on the dishonest and dangerous approach at play here. The judiciary is not a site that reflects majoritarian beliefs, but one that exists to uphold constitutional morality. In inaccurately portraying the petitioners as an elite that is not entitled to the same rights as the rest, the lawyers representing the state opt for populist political posturing – the video-streams become a burden in this context – over established legal frameworks. The reader can glean from the chapters that the petitioners were up against the wits of the judges more often than those of the lawyers on the opposing side for whom the case appears to have required no greater effort than an appeal to what they assume was the popular sentiment. It is no wonder then that the book oscillates between sharp legal observation and abject despair.
On one occasion, Bhatt fears that their emotions might derail the entire case, but it is their rage and sorrow that anchors the book itself even when the reader loses themselves in courtroom polemics. The pains the writer takes to bring out all the nuances of their complex and deep philosophical engagements with individual lines of argument makes the book cumbersome in parts. It may be difficult to carry the burden of one’s knowledge when so much of the self is implicated in one case. It is here that I revisited Grover’s initial observation on age. This book represents a continuous struggle to reconcile its writer’s intellectual and emotional lives – an effort that many give up on as the years go by.
Rama Srinivasan is an anthropologist and author of Courting Desire: Litigating for Love in North India
