Courts are not places for revolutions, yet revolutions happen every day in courts: Senior Advocate Saurabh Kirpal [Part II]

In the first part of this interview, Senior Advocate Saurabh Kirpal answered questions on his experiences as an openly gay lawyer, trolling on social media and whether there was a need to focus on awareness before seeking marriage equality..In the second segment of the interview with Bar and Bench's Aamir Khan, he speaks on plans to set up a queer bar association, how the fight for marriage equality was different from the battle to decriminalize homosexuality, inclusivity in the judiciary and more..Edited excerpts follow..Aamir Khan (AK): How wary are people of coming out in the legal circle in India?.Saurabh Kirpal (SK): Tremendously. There is not just the legal circle. It is unfortunately still the norm that people who are queer fear coming out because of the worry of social opprobrium. They worry about how their families will react and that is why we need things like marriage equality, to allow people to have a belief that accepting yourself is not an act of bravery or courage. It should not be. It should be an act of normal growth and normal acceptance. I should not have to fight to tell the world who I am. That's an unacceptable burden on a queer person, but the fact is that it exists.It’s not easy for queer people to come out in law or indeed in other areas. And yet, when you go on pride marches today in India, as opposed to when I did 10, 15, 20 years ago, I see greater and greater numbers of younger people. .Obviously they are getting the courage somehow, because society is evolving. While it's tough, I think a larger number of people are doing it. Maybe they're just braver than we were or maybe the situation has changed. I remember when I was coming out as a queer lawyer, there were a handful of people. You could count them on your fingertips.That's no longer true when we argued the marriage equality petition in the Supreme Court. The courtroom was full of queer lawyers, and that was a wonderful thing, really. As opposed to the arguments in Koushal’s case, when Justice GS Singhvi asked the Additional Solicitor General, “Do you know any queer person? We don't know anyone.” No one said anything. And it was as though we were talking of abstract entities as opposed to the real lawyers who appear before judges every day. Things are changing..AK: Any advice for younger lawyers and law students in universities who face discrimination as members of the (LGBTQIA+) community or from colleagues at the bar?.SK: That’s a tough one. It's easy for me to give gyaan, but I know how difficult it can be for people who are from the queer community. All I would say is try to ensure that you have some amount of economic security. That you try to keep your families with you. It is partly because of the economic security and emotional security that comes to you. We are trying, and we can talk about this in the future. A few of us are setting up a queer bar association so that we can support each other..There's a crying need for that because nothing helps another person more than the knowledge that there are other people like you out there and there is support for you out there. It's happening. It'll take its own time, but it's something I'm very hopeful of. In the meanwhile, in whatever form you can, try to invest in your mental health. It is very important and something which is much misunderstood and under-appreciated. Try to do your best without putting pressure on yourself. Society is putting enough pressure on queer people. Don't feel obligated to start fighting unless you are ready for it.But once you are ready for it, then start fighting for it. There are all kinds of people in the queer community at different stages of acceptance by their families, by themselves, or other people. But those of us who have the privilege must have an obligation also to speak for those of us who do not have that privilege. .AK: And those who face verbal or sexual abuse? What can they do? .SK: I think it's imperative for there to be queer collectives in every law school and that is a call that I make to all the deans and the faculty of law schools that start queer collectives. It (verbal abuse) is a form of bullying. We don't put up with bullying generally, then why should we put up with bullying because it is on the basis of your queerness? We should not put up with caste-based bullying, yet we do as a society. We have seen that, and that is unacceptable..So we must all get together and make that change happen. It's all very good to say that change doesn't happen soon. But my God, we are in 2023. When will that change happen? How long will people wait? Those of us who are older, we've gone through it and I think every day that any queer lawyer faces abuse is one day too long..And this is what I say to people who say that marriage equality has been prioritised, and that it is being heard so fast. It's because you, the people who are commenting about this, are typical people who are completely privileged; who have not faced abuse of any sort.So those who face abuse should not have to face it for a second. Why should they? Are they not citizens of this country? Do they not have fundamental rights? Do the courts not exist for them? Of course they do. .AK: There have been a slew of progressive judgments by the Supreme Court on sexuality, dignity and self-identification in recent years. Even High Courts have risen to the occasion by granting protection to LGBTQIA+ couples on the run. Is this a great leap from the past?.SK: I’m not a believer in great leaps. I have seen courts being progressive in an incremental fashion for some time. We have seen ADM Jabalpur and the public interest litigation that happened thereafter. Courts are not places for revolutions, yet revolutions happen every day in courts..The two-finger test verdict and Navtej Johar itself, even though it was dramatically opposite to Koushal, was also part of a continuum that had given us NALSA. So there is a steady progression of acceptance of what fundamental rights mean under the Constitution. It is just one step on the way. I don't think there's been a radical expansion of rights. It is but a necessary corollary of the march of what the Constitution means for its citizens.The point is that our Constitution being a liberal document, there is a march forward which is difficult to stop because society is also simultaneously changing and moving forward in a progressive, liberal way and the two are in lockstep.As much as people would like to say that the courts are behaving in a manner which is contrary to what society believes, I think they don't understand how society is going and who are they to speak of it?.I think society is moving forward towards greater acceptance and rejection of outmoded forms of oppression. Society has become better. I'm an optimist, but more than an optimist, I'm a pragmatist and realist. I also sense and smell what is happening around me, and I see society is going forward in a progressive manner. The Constitution is already a progressive document and the courts are enabling that sometimes and reflecting that at certain times. It's a symbiotic relationship that happens between society and the courts, each propelling each other towards the constitutional ideal. The ideal in the Preamble is to have justice, equality and ultimately, fraternity, so that we have greater unity and integrity. .AK: What about tier-two, tier-three cities? What about the societies there? .SK: I think you're mistaken by thinking that that impact has not happened there. There's a tremendous impact that has already happened in tier-two cities. A lot of people I speak to are queer people from the non-metros. So for us to think that somehow we are privileged shows arrogance on the part of those from the metros..I've seen some of the greatest fighters for the queer causes, especially in the trans community, coming from smaller towns and villages in India. It's simply not true empirically or anecdotally that the change is happening only in the big cities. .Yes, big cities are more liberal places simply because you have a variety of people. If you have a city of 20 million people, you will find liberal people. You will also find very conservative people in that city.It's wrong to say that a smaller city or a town or a taluka or a village is not changing. It is changing. Maybe not at the same speed as the change you see in a city. But change is happening everywhere. We could expedite it, but that is a universal phenomenon. It is not true just of India. This is true of places across the world, and that's the way it is. .AK: At the launch of your book Fifteen Judgments, you said, and I quote, “You currently have upper class, heterosexual men on the bench. All of whom have a certain kind of bias.” You then rephrased the word bias and called it “alternative life experiences”. How far are we from having a more inclusive judiciary in terms of different castes or gender identities or sexuality or faith?.Kirpal: I would simply point to a question that was once asked to the “notorious RBG” Ruth Bader Ginsburg, Justice of the Supreme Court of the United States, on how many women should be in the Supreme Court. And she famously said nine. I think caste, class and religious barriers actually have no place in a matter where the Supreme Court is concerned, because it should be a place of your merit. I think we would also be blind to the fact that merit means nothing when you ignore the absence of privilege. In a utopian society, none of this matters. But we don't have the privilege of living in a utopian society..So there are two ways to go about it. One is empowerment. To ensure that those who are most marginalised find it possible to come into the...mainstream is a bad word, I suppose. But second, to come in and occupy the positions of power that are currently restricted to those who are not marginalised.I'm a votary of reservations. I believe in the idea of reservation, though there is less place for it in constitutional positions, I think..But there is - and I think the Court has recently recognised in its last Collegium decision that it has come out with - a place for the courts to ensure that there is greater representation of minorities, and indeed the majority, namely women.Over 50 per cent of the country today is women. So I think there is time that we fight for all kinds of rights. But the immediate thought that there aren't enough women in the Supreme Court is, I think, a cause of concern..AK: Which was the more challenging case to argue - Navtej Johar or marriage equality? .SK: Undoubtedly, marriage equality. Partly because I was younger when I did Navtej Johar. And I was more unaware of the resistance that one felt. As you grow older, you become more cynical I suppose. I think it's me who has changed more than society..But also, marriage equality is the second step and that's the battle for any fight against discrimination. The initial steps are easy because it is easy to appeal to because it's so egregious, the form of discrimination is so egregious that you can point it out and not worry about it. That’s what Navtej Johar was. I don't think many people wanted to send queer people to jail for life or for ten years because of who they loved.That was just a form of spectacular discrimination, so that was easier to fight against, because our cause was so just that even the government of the day felt compelled not to resist it..Marriage equality has become more important to me because it's the next step and I have grown older and I'm running out of time and patience. I'm not getting any younger and I don't have the luxury of waiting for another 20, 30, 40 years to see equality. I want to see it now. I want to see it for myself. I'm fighting for others’ rights, yes. But at some level, I'm also fighting for my own..AK: What are you reading these days? Any favourites? .SK: I have many books and my favourite book changes depending on which year of the week we are in or what I've recently read.Non-fiction is something very silly I remember reading Cosmos as a child. It instilled in me a love of physics, and astrophysics, which ultimately instilled in me further a love of logical, analytical reasoning—something that has helped me in law. I love reading science in terms of non-fiction, so it's some of Siddharth Mukherjee’s books. The Gene, The Emperor of All Maladies.I've read all his books. To me The Emperor of All Maladies was also beautiful because it was a book on science, but it's also beautifully emotive as well. So that's in terms of non-fiction..In terms of fiction, my all time favourite is Salman Rushdhie’s Midnight's Children. It spoke to me in a way that not many other books have. Maybe, I'm of a certain generation so therefore it's important and I like that genre of magical realism.I love Gabrielle Garcia Marquez. It's just, maybe it's to do with the fact that I love science and science fiction. And it's almost that, but it just speaks to the human spirit—the idea of, and the innocence of our republic when it came and what it has become, and what it shall be..AK: How hopeful are you about the future? .SK: I am an optimist by nature. I have seen how loving and accepting young people are, and even the most conservative ones who say that marriage equality should not happen because it is the domain of Parliament are not necessarily opposed to the concept of marriage equality, at least not openly.It is an idea whose time had come sometime ago. The future will be better than the past as the future has often been for discriminated minorities..Online trolling I face nothing compared to what judges of our country face: Senior Advocate Saurabh Kirpal [Part I]