New Delhi: The Supreme Court’s ruling on same-sex marriage last year was one of the most-watched live-streamed judgments in India. From the litigants’ perspective, much went wrong, including internal disagreements. A year later, activist and lawyer Rohin Bhatt published a behind-the-scenes account, weaving personal stories with the legal proceedings to offer a unique and intimate perspective on the fight for equality. His book, The Urban Elite v. Union of India: The Unfulfilled Constitutional Promise of Marriage (In)equality, provides a firsthand account as a queer individual, taking readers beyond the courtroom.
Last week, a discussion on the book brought together the queer and legal communities at the India International Centre to reflect on the same-sex marriage judgment delivered on 17 October 2023. At that time, the litigants were left grappling with what went wrong. Now, they return with hope—and the question of what comes next.
Chirag Thakkar, associate publisher at Bloomsbury and moderator of the book discussion, noted that they had hoped for a “celebratory oral history” but were left with the sinking feeling of “what still needs to be achieved.” “That’s when we realised this would be yet another wound to heal in what will one day become our shared queer histories and futures,” Thakkar said at the event, attended by an “optimistic” panel comprising senior Delhi High Court lawyer and “accidental” LGBTQIA+ rights activist Saurabh Kirpal, former Supreme Court judge Justice Madan B Lokur, professor Aqsa Sheikh, and the author Bhatt.
Also read: Marriage as institution precedes state — SC’s majority view on same-sex marriage
‘Internal disagreements’
During the discussion, Kirpal revealed the internal challenges that the litigants faced in reaching a consensus during the same-sex marriage hearings.
“We had a lengthy Zoom discussion with all the counsel, trying to find common ground on what to present to the judges. There was some gaslighting from the judges, suggesting we were divided, so we preemptively tried to unite on what we wanted to ask for. It was a three-and-a-half-hour meeting, reflecting the diversity of opinions within the queer community,” Kirpal shared.
Despite their efforts, he noted, “Getting everyone to agree wasn’t easy. Some resisted the idea of marriage recognition altogether. Even if we had presented a unified wish list, I think the outcome would’ve been the same.”
Bhatt added that they weren’t entirely surprised by the judgment. “By the afternoon of the fourth day of arguments, we realised we weren’t getting everything we were asking for,” Bhatt recalled.
Complex negotiations began, with different counsels proposing alternatives: “If not this, give us that.” Some requested civil unions, while others sought at least the ability to register documents. “By the time we approached the judgment, we thought we might not get everything, but at least a recognition of the fundamental right to marry,” Bhatt explained.
Also read: 53% Indians in favour of legalising same-sex marriage, shows Pew survey
‘Bouquet of rights’
On 17 October 2023, the Supreme Court rejected the plea for queer persons’ right to marry in India, with the five-judge bench unanimously agreeing that there is no fundamental right to marry and that marriages between queer individuals cannot be recognised under the Special Marriage Act, 1954. In his book, The Urban Elite v. Union of India, Bhatt raises critical questions about how to protect these rights, noting that the petitioners were told that “marriage is a social institution, and it should be society and the legislature that take a call about who can marry whom and how.”
Aqsa Sheikh, professor and transgender rights activist, emphasised the complexities of marriage rights within the queer community. She articulated why many view marriage as a “necessary evil” despite their hesitations: “I think all queer people will agree that marriage is something we would rather opt out of. But there’s no other legal framework that offers the bouquet of rights associated with marriage—whether it’s abortion, surrogacy, inheritance, or the right to make decisions for your partner when they can’t. In India, personal and secular laws only provide these protections through marriage, which is why most of the queer community is pushing for marriage equality.”
Also read: What next for LGBTQ community? Read fine print in SC order—civil union, adoption, Bon Jovi
‘Minuscule minority to urban elite’
The conversation wasn’t just about reflecting on the past; it carried a sense of hope for the future. “Heavens wouldn’t have fallen if they had allowed it,” Justice Lokur remarked, while Kirpal noted that the high courts may offer a more reliable path forward.
Speaking to The Print, Bhatt explained the choice of the book’s title, The Urban Elite v. Union of India, which is a ‘reclamation’ of the names the community has been called. The title borrows from the government’s affidavit opposing marriage equality, which dismissed the demand as “mere urban elitist views for the purpose of social acceptance.”
“In the Supreme Court, we’ve gone from being a ‘minuscule minority’ to the ‘urban elite.’ These are the pejoratives used over the years against us. It was time someone satirised that, reclaiming the names we’ve been called throughout our lives,” Bhatt said, turning these once marginalising terms into a bold statement of resilience. They added that even if one assumes that queerness is urban and elite, that did not mean that the Constitution does not work for them.
Bhatt also pointed out that the path forward requires more groundwork—not just within the queer movement, where significant fault lines exist, but also by building solidarities with other social justice movements. It’s essential that this becomes a broader civil society effort, where lawyers don’t dominate but rather support a collective push for change
(Edited by Prashant)
The issue is that India does not have a common civil code. So this is not about one law being changed, it is one per religion, plus special marriage act. And if it is religion based what is the authority of the Supreme Court of any country to decide what is allowed for a religion. Hence the dilemma. In order to do this, there should be a uniform civil code that gives the courts the authority to decide on this or issues like this in a denomination non specific manner
The fact that there are no comments here shows that this isn’t a subject too many people care deeply about, as opposed to the west, where it has been co-opted by one side of their cuture wars. I think the most sensible thing would be to have a civil union kind of thing which disregards sex and orientation. But can the court mandate that it exist to safeguard queer rights under India’s constitution? Governments may just ignore the court, as they have before. The time for this idea has just not come yet in India.