It’s been an endless wait for Supreme Court advocate Saurabh Kirpal, who could have become India’s first openly gay judge in 2017. But his activism and books stop him from dwelling on delays
For Saurabh Kirpal, the virtues of patience have never been so confounding. The Supreme Court advocate would have become India’s first openly gay High Court judge; the promotion that’s eluded him since 2017. The recommendation had first come from the collegium of the SC, but the decision was deferred three times, with sources claiming that the government had marked Kirpal’s partner, a Swiss foreign national, as a “security risk”. Kirpal, who is the son of former Chief Justice of India Bhupinder Nath Kirpal, feels otherwise—it’s his sexual orientation. “When I accepted the offer to being elevated, I knew this would not be an easy task. This was five years ago, before the judgment in the Section 377 case [decrimimalising same sex among consenting adults]. The fact that there would be pulls and pressures was something I was ready for. I didn’t go into this blind... I have seen how politics works. I know how the courts, the collegium system and the government operate. What I wasn’t ready for, was the sheer extent of time it has taken,” he tells mid-day in this telephonic interview.
Last year, Kirpal’s name was recommended by the collegium again, but nothing has moved since. “In all of this, I have tried to keep a sane and cool head. If you dwell on what you perceive to be a delay, you would be bogged down, and unable to bring in other changes that you wish to. This is one aspect of what my life is. And I don’t let it rule every other part of me. I am compartmentalising to some extent. There’s no point worrying about it too much,” he shares.
Queer members and supporters celebrate the decriminalisation of gay sex between consenting adults, at the Humsafar Trust office in Santa Cruz, in 2018. Kirpal represented Navtej Johar, Ritu Dalmia and others in the case. Pic/Getty Images
Kirpal’s new book, which launches tomorrow, doesn’t hark back to this depressive wait. Fifteen Judgments: Cases That Shaped India’s Financial Landscape (Penguin Random House), looks back at some of the landmark judgments to highlight the long-term impact on the country’s economy. Among the cases discussed are The Case for Bank Nationalisation (Rustom Cavasjee Cooper v. Union of India, 1970); Women in the Workplace (Vishaka v. State of Rajasthan, 1997), and the more recent, Aadhaar Case (KS Puttaswamy v. Union of India, 2019). “Apart from the dramatic impact they had on India’s economic development, what’s more important and interesting is the inter-play between the judiciary and the executive. So, while the court takes a certain view, how does the government react to it... if the government of the day doesn’t like the view of the court, the law is amended, and often through a sledge hammer approach,” he says, citing the example of the first amendment to the Constitution in 1950, when the Bihar High Court, struck down laws that had sought to abolish zamindari in India.
The reaction to this judgment was swift and decisive. “The Indian Constitution was amended barely a year after it had been promulgated... In light of judgments on various fundamental rights, the amendments were deemed so urgent and necessary, that the [Constituent] Assembly did not even wait for the first elections to Parliament to happen before the amendments were passed,” he writes in the book, “...and the precious rights of the citizenry were abridged.”
This is Kirpal’s second book. In 2020, the senior advocate edited Sex and the Supreme Court, which threw light on significant judgments on sex, sexuality and gender. Kirpal, who was counsel for Navtej Johar, Ritu Dalmia and others in the case, which led to the striking down of Section 377 of the Indian Penal Code in September 2018, says there has been “steady progression in the judiciary” when dealing with such cases. “In each of the three [gender, sexuality and sex], the courts have reacted differently and at different points of time. In matters of gender and sexuality, while we are seeing change, this change is very difficult to determine. Till about 2009, there were no judgments on issues of sexuality... it was a taboo subject and the courts didn’t deal with it. But in the last five years, especially post the judgments on decriminalisation of Section 377, and transgender rights, there has been a dramatic shift in the courts... There is a certain sexual freedom that the courts now actively encourage, which is a good sign,” he feels.
The “notoriously slow pace at which courts move in India, where they take their own time in decision making” means change won’t happen overnight. “But, I can’t blame the courts completely. The judiciary also makes decisions only in matters that are brought to them.” He believes that LGBTQIA+ activism would need to be galvanised for this. It’s what drew Kirpal into the system in the first place.
“I come from a legal family, and saw law all around me, but I read physics at university [St Stephen’s College in Delhi], and sciences were my first love. So, I was a bit torn between doing law or becoming a theoretical physicist,” he recalls. “But, given the fact that I always wanted to live in India... this was my country after all, I didn’t think there was much scope for doing cutting-edge research here. That left law as the default option.” Kirpal went on to read law at the University of Oxford and acquired a masters degree in law at the University of Cambridge. A brief stint with the United Nations in Geneva followed, before he returned to Delhi. “I realised what all law could accomplish and the tool it could be to bring about change, especially to bring about change in the discourse around sexuality.”
For every liberal view in court today, he says, there’s also an illiberal view, “which stems partly from ignorance”. Certainly, in the smaller towns of India, where the degree of queer rights as we know it barely exist. “Therefore, it’s not surprising that when judges [in the lower courts] deal with an issue that is unfamiliar to them, they have slight inertia in their approach... there is resistance. A lot of sensitisation is needed there. Having said that, and because I love to contradict myself, a large number of people in the lower judiciary are younger judges. They show greater acceptance in matters of sexuality and gender, and those are the people who man the lower judiciary, and will increasingly come to do so. So, there is hope.”
The recent appointment of Dr Justice Dhananjaya Yashwant Chandrachud as Chief Justice of India, too, he believes, holds great promise. “I do believe that every CJI is capable of bringing about real and meaningful change... Hope is eternal. You cannot carry on activism if you do not believe in the capacity to bring about change. But in the case of Justice Chandrachud, yes, he is more vocal on matters of gender and sexuality, and seems to have displayed a great degree of empathy.”