Saurabh Kirpal is on track to becoming India’s first openly gay judge. Last week, the country’s Supreme Court recommended the nomination of Kirpal, a senior advocate and self-described “accidental LGBTQ activist,” to serve as a judge in the Delhi High Court, in what is considered by many to be a significant equal rights milestone—the latest in an already storied career. In 2018, Kirpal was part of the litigation team in a landmark case that led to the decriminalization of sex between consenting adults of the same gender in India. Previously, gay sex had been criminalized under a provision of the Indian Penal Code (Section 377), which held that “intercourse against the order of nature” could be punishable with lifetime imprisonment. Though the law itself dated back to 1860—i.e., the era of British colonial rule—as recently as 2013, the Supreme Court had upheld its constitutionality. Kirpal is also the editor of the book Sex and the Supreme Court: How the Law is Upholding the Dignity of the Indian Citizen, which takes an expansive view of the apex court’s interventions in the field of gender and sexuality in India.
In the weeks leading up to Kirpal’s nomination to the High Court, JURIST Co-Multimedia Director Vishwajeet Deshmukh and India Staff Correspondent Sambhav Sharma spoke with Mr. Kirpal about his storied career, his “accidental” activism, and his plans for the future. This interview was part of the series JURIST x Humsafar Trust “LGBTQ+ Rights in India,” presented through the Likho Citizen Journalist Fellowship, an initiative by the Humsafar Trust, which aims to inspire a new generation of citizen community journalists to write on issues related to gender and sexual orientation.
The full video of the interview is available below, followed by a transcript, edited for conciseness and clarity.
JURIST: As one of the few openly gay practicing advocates in India, you have been very vocal about your sexual orientation and have dedicated your life to queer rights in the country. To begin with, please take us through your journey of becoming, as you describe yourself in your Twitter bio, an “accidental activist.”
Saurabh Kirpal: When you say that I have devoted my life to queer rights, I think that is probably an overly expensive way of putting it. And that, I think, is a neat segue into why I call myself an “accidental activist.” In fact, I’ve dedicated my life to the cause of law. … I’m a litigator, so I go to court and argue matters rather than doing transactional work; and the initial years of my practice, pretty much dealt entirely with commercial and corporate law. That was my area of interest. And that’s what I did. That’s what I was good at. And there was not a trace of activism in my DNA or in my blood at that point of time. The activism came to me more than I went to activism. And hence, I call myself the “accidental activist.” What do I mean by that? Really, I think there was a surrounding series of circumstances that propelled me into taking up causes close to the queer community, more than any actual conscious decision on my part that I would henceforth do this. I think the process of activism generally is an incremental one.
There are some people I suppose for whom it is obvious in school or college, that that is what they wish to do. And that’s the career trajectory they take on. But for a large number of other people such as myself, it is really a case of taking on one issue, one cause that leads you on to another one, because that opens your eyes to what the problem is, to what needs to be done. So I think more or less, that is what happened to me. And it all began with the case of Navtej Singh Johar (v. Union of India; ed: This is the 2018 court mentioned above on the constitutionality of Section 377), which is a case which led to the decriminalization of homosexuality in India in the Supreme Court. But there had been a long battle leading up to that case, [and my involvement increased over time].
I suppose I’m an “accidental activist” because of the fact that I just felt compelled by each intervention I did to do a greater intervention. And before I knew it, rather than just being something I did on the side, it became an important mainstay of my work; probably not economically even now, obviously, because there is no money in activism. But I use my commercial practice to fund my own activism, I suppose.
JURIST: As you mentioned, you were part of the litigation team, which argued against the constitutionality of section 377. That journey was the product of a long journey, one that continues to this day. What challenges did you face in terms of strategizing for the case?
Kirpal: Any matter of constitutional adjudication is nevertheless, for the judges; [for them, each case is] just another case. So we lawyers have to deal with this case as we would deal with any other matter. And in every case, a legal strategy is very important, especially in a country like India, given the form (and) the functioning of our courts.
For comparison, in the US Supreme Court, you have nine judges who sit en banc, every case is heard by the same nine judges, and you are very clear about their political philosophies. And while you cannot completely predict the outcome of a judgement, you can make a fairly good or a reasonable estimate as to which way they will tend to lean, at the very least.
In India, the situation is completely different. We have 34 judges, and they don’t sit all together; they sit on benches of two, three, or five. And therefore, it’s quite possible that even if you have an overwhelmingly liberal court, there will always be two individuals who may not share the political ideology of that court at that point of time. And they (the judges) could be very, very conservative, and your case could end up being heard by a conservative bench, you know, in a liberal court. So it’s important to understand how to steer your case if it gets heard by a bench that is not sympathetic, if not outright hostile.
Now, that of course, is a power vested in the Chief Justice of India. The Chief Justice of the Supreme Court is also the Chief Justice of India. And he decides which judges will hear which cases. But you can make it easier or tougher for the Chief Justice, depending on the kind of questions you raise in your petition, and the breadth of your arguments. Because if you ask for broader relief, if you ask for more expansive rights, that will inevitably imply that you need to interpret a provision of the Constitution. And the law in India or the Constitution says that if there is an interpretation of the Constitution, it needs to go to a bench of at least five judges. You can’t hear a matter of constitutional importance, if there is a bench of two or three judges, which is typical for the Supreme Court. And another thing we noticed as a matter of strategy was that, while it is easy for a smaller bench, to dismiss the rights of minorities, when a larger bench of the Court sits, I think there is a sense of history amongst the judges themselves; they become a bit more aware that what they are laying down will have an impact in the future. … There are not very many benches of five judges. So whenever they write a judgement for five judges, they know they are not speaking only to that particular case; they are speaking to history. They are speaking to the future. They are speaking, as I said, to their own legacy.
Supreme Court of India, Building and premises, New Delhi © WikiMedia ( Pinakpani)
And in [cases such as that one], I suppose judges tend to become more liberal, or at least that’s been our understanding of how the Court works in India. It may or may not be true generically everywhere in the world. But in India, specifically in our context, we find that larger benches tend to lean towards the protection of the fundamental rights of individuals. So we had this in our mind when we drafted the petition.
JURIST: We would be grateful if you would guide us through the background of the case.
Kirpal: Section 377 was a Victorian era law passed in 1860, which criminalized “carnal intercourse against the order of nature.” Those are the specific words used in the section, and not just something I picked up from a thesaurus.
But effectively that has always been understood and interpreted as criminalizing sodomy or indeed any same sex acts, or indeed, even opposite-sex sexual interactions, because technically that was also covered. But in practice, this was a law used only against homosexuals.
And this was one of the arguments we raised, that while there is facial equality in the statute, its effect is always to criminalize homosexuals, because while a straight sex couple may find certain sexual acts proscribed, they always have an option, of course, to have sex in some other way, and within the intimacy of their home, and not be branded “criminals” for simply having sex. That option was not open for the gay community, because any sexual act of theirs was deemed to be a crime within Section 377. … We wanted the court to say that its interpretation is such that it would not include the same-sex sexual acts of consenting adults. So the Delhi High Court, in its 2009 judgment (Naz Foundation v. NCT of Delhi and others), held in our favor and ruled that section 377 would not cover same sex relationships.
[The case was then appealed, not by the government, but by third parties to the case]. The appeal was entertained by the Supreme Court of India, and four years later, in 2013 … the judgment of the Delhi High Court was reversed in Suresh Kumar Koushal v. Naz Foundation. The court held [at that point that decriminalization] was a matter that concerned … only a minuscule minority, and the appropriate fora were the legislature and the courts.
Now, this was when I got involved in this case, because this was a judgment rendered by the Supreme Court of India, a court where I used to practice all the time and I felt personally offended when this happened. So I and a group of other lawyers who were regular practitioners got together and used what is the original jurisdiction of the Supreme Court of India, unlike many other constitutions, and I do not know what our founding fathers were thinking when they did this. But thank God they did! They inserted an article [Article 32] in our Constitution, which allowed any citizen or indeed any person to approach the Supreme Court directly, in case there was an infringement of their fundamental rights, [akin to the] Bill of Rights for the American audience. [In short, we were able to move directly before the Supreme Court—a remarkable thing in a country with a population of upwards of one billion people.]
We used this provision and we got a group of very courageous individuals to file a petition directly in the Supreme Court, saying that while the earlier litigation was binding only between the parties to that petition, i.e. the government of India, and certain petitioners, we citizens have not been heard [by virtue of] that case, and we raised several matters of constitutional importance, which had not been raised in the earlier matter. And that’s what I mean when I talk about expanding the scope of the litigation, so as to propel the Constitutional bench, which is a bench of five judges or more, to hear the matter. So that’s how we framed our petition and more directly, we were hoping that the court would bite.
Our filing was not any guarantee that we [would receive a bench of] five judges; it could have been taken up by anybody. And indeed, in the initial years it was. So the matter originally came up before a bench of two judges, who then just put the matter in cold storage. And it was only in about January of 2018 that the Chief Justice, who [at that point] probably wanted to speak to his own legacy, plucked out this case and put it before the bench of five judges, rather as we had hoped.
There were other movements as well at the same point in time. [A curative petition—i.e. a petition that allows the Supreme Court to review an earlier judgment—had been submitted.] Those proceedings were happening and a lot of amazing activists had gotten together and were pushing for that as well. But for whatever reason, the Chief Justice decided to take up this case and hear the matter in September 2018. … Finally, section 377 was read down, and homosexuality was decriminalized.
But I think what’s important is … not merely a case of the decriminalization of section 377; it was the legal reasoning employed, the constitutional reasoning employed in the judgment, which really read as a Charter of Rights for the queer community, the expansive interpretation given to the fundamental rights and inclusion of any person, any queer person as being entitled to the same rights as any other citizen in India, and a formal expression of that. You would think it’s understood, and it’s obvious, but it was necessary for the court to say that, and, and we can maybe discuss what exactly they said, but that was a very great day for the queer community in India.
JURIST: Do you think in this case that sensationalism may have overpowered the demand for rights to some extent?
Kirpal: I suppose [sensationalism] lies in the minds of the reader or the questioner; a demand for rights will be sensational if you are the kind of person who does not wish to give those rights. … To the queer community, those rights were not sensational, but very basic and fundamental. The right to have a same-sex relationship with a partner of your choice, and the inclusion of your rights as constitutionally guaranteed, on the ground of [sexual orientation], as well as sex is something that is fundamental and basic to the queer community. But yes, it could turn out to be sensational for a person who has a different worldview, and who thinks that the queer community is not deserving of what they feel to be special rights.
Now, to them, I would say two things: first, that equal rights are not special rights. What’s special is the fact that the community did not have them earlier. And that is, I suppose, for them a sensational claim. But more importantly, I’d say this was a case of the court doing what it was tasked to do, which is to interpret the Constitution, which is a liberal and progressive document. It is enthused and imbued with the doctrines of fairness and equality, and what is called now in our jurisprudence, constitutional morality as opposed to social morality. This was something that was laid in the first judgment of the Delhi High Court in 2009, saying that while the morality of society will be relevant for electoral purposes or certain other purposes, when the court indulges in its education, it is not concerned with societal morality, but is only concerned with the values that the Constitution holds. And those values that the Constitution holds are what are euphemistically called “constitutional morality.”
So I’d say, yes, to that extent, it was a novel claim. And to the extent that any novel claim is a sensational claim, it was a sensational claim. But I would say that it is nothing other than what the jurisprudence of the court had been building up from 1950 to 2018 in any case.
JURIST: Having understood in detail the history of how section 377 came to be decriminalized in India, we would like to switch directions. In 2017, you were recommended as a judge to the Delhi High Court. Unfortunately, since then, the process has been hindered by several deferrals. Justice Madan Lokur, a former Indian Supreme Court judge, has shared his view that when he was a part of the Collegium, the reason for the deferral of consideration of your appointment was your sexual orientation. You’ve repeatedly said in the past that had you been straight, you would not have faced so many hindrances and you would have been able to marry your partner, which is something that is still in question today. Could you shed some light on the issue for us and the difference drawn by the government between a foreign spouse and a foreign partner?
Kirpal: I’ve spoken a fair bit about this. And I will, if you do not mind, choose to remain within the confines of that what I have already publicly said. … [India has a distinctive appointment process for its judges. The process requires two collegia. First, my appointment was considered by the High Court of Delhi, and I was recommended by the judges there.] It then goes to the senior three judges of the Supreme Court. They’re supposed to give their stamp of approval or reject indeed if they feel the [nomination] is not correct.
[The Supreme Court Collegium’s consideration phase is] a very opaque process, so no one really knows what the considerations are. But through the interviews, as I said, of Justice Lokur, one can understand that one of the reasons probably was [sexual orientation], and of course … you want to hide the homophobia in the cover of something else.
Ostensibly in my case [they focused on the] fact that my partner was a foreign [ed: Swiss] national. … The government or the court felt that that was a problem because they could not, I suppose, on some level scrutinize him or see whether he was a potential threat … in the country. What I don’t understand is that as a [spouse or partner], what is the greatest security threat that could possibly happen? As a judge, it’s not as though I would be dealing with national secrets … at the level of the executive. What a judge does is adjudication, and everything is open in court. The very fact that arguments happen in open court and the judgment is delivered [in an] open court with reasoning, which is again, open, there is not really any question of a security threat.
But I presume that the government did have some intention or worry about the fact of the citizenship of my partner, which is why they flagged it. And it’s okay for the government to flag it. But it is the court, ultimately, which has to take a call on it. And by deferring it, I [wondered] why the court [thought] the citizenship of a spouse [was] relevant.
And that brings me to the second part of the question as to whether there’s a distinction between a spouse and a partner: Well, obviously, there is [a difference, both] practically, as well as in terms of this case by precedent. Practically, [opposite-sex married couples have greater rights than their same-sex counterparts].
But as precedent … there have been many instances in the past, of judges having foreign spouses, and typically in India, we’ve had men who become judges, because we have gross under-representation of women. So the men who have manned the office of Judge have had on many occasions, [wives who are or were foreign citizens], and that has never been a problem. … So by itself, the foreign citizenship of your wife is not a problem. However, the foreign citizenship of your same-sex partner is a problem. So that shows the discrimination straight away, right. Even if you are trying to cloak homophobia, behind some other device, I don’t think it takes much to deconstruct that and call it for what it really is. … And of course, there is the fact that there [was a] report to the government … that has never been communicated to me directly, but it has made its way into the media, and has been extensively reported.
JURIST: Understanding a little deeper about the rights accrued to the queer community, vis-à-vis marriage in India; in the latest proceedings before the Delhi High Court in Abhijeet Iyer-Mitra (v. Union of India) the Central Government on 25 October, 2021 said that they recognize marriages only between biological males and females. And while representing one of the petitioners [in the same matter] you submitted in court that the natural consequence of or the constitutional interpretation that should be given to the Navtej Singh Johar Judgment [which decriminalized homosexuality in 2018] should be that the judgment also provides for same-sex marriages. Now understanding this directly from you, what is your view on the conflict that the government has? And how would you say that [the right of] same-sex marriages also then flowed from the Navtej Singh Johar judgment?
Kirpal: Well, the government clearly has a problem with recognizing same sex marriage or marriage equality, as I like to call it. Because they have a certain worldview about what it means to be married. And I think that we must distinguish between the various petitions that have been filed in the Delhi High Court. Again, for an audience that may be international, I would just like to remind you that in India, a marriage is not a secular event. It is a religious event. In as much as different communities have different personal laws. So Hindus will get married under the Hindu Marriage Act, the Muslims under their Act, and the Christians under their Act. But there is an overarching Act, which allows people of different religions to get married, which is the Special Marriage Act, so that can happen.
Abhijit Iyer Mitra’s petition was a case where he wanted the recognition of marriage equality or same-sex marriage, within the Hindu Marriage Act. And I think to that the government has a visceral reaction, saying that for the courts to recognize same-sex marriage within the Hindu Marriage Act, amounts to interfering with personal laws. And I may or may not agree with it, but that is their view.
But I think what the government is missing is that the bulk of the petition and the arguments are not within the confines of the Hindu Marriage Act, but are under the Special Marriage Act. And there we say that since two people of different communities are getting married, and it’s being recognized, with same-sex marriage, there is no question of any personal law involved at that point of time, because we don’t have the same personal law, right? When a Hindu marries a Muslim, there is no conflict, really, because there is no personal law to be applied. And then all that matters are the constitutional values as to [whether] the Constitution recognizes or requires recognition of same-sex marriage.
So the government’s opposition, I think, comes somewhat from their understanding of what the case is about. But I think it also reflects the world view of the current government. And this is nothing unusual. To be honest, many governments across the world have taken a very conservative view of same-sex marriage. And I think India is no different.
But coming to the second point, as to why I believe the Navtej Singh Johar, which is the decriminalization judgment, mandates or requires recognition of same-sex marriage is very simple. In a common-law country such as ours, with our traditions and our jurisprudence, based on a set of precedent, especially in how constitutional adjudication works. It is an incremental process that develops through the interpretation of a constitutional right to novel facts, situations. So the Navtej Singh Johar judgment gave its interpretation of what Article 14 (Right to Equality) required, which is equality before the law.
And then after, the judgment said that people of the same sex are entitled to the same rights as every other citizen of India. They also recognize the core of privacy, and recognize that there is a right to privacy, and the right to privacy included the right to choose your partner, and live with the partner of your own choice.
Now, if you use these principles of recognition of the fact that queer community has the same rights as the opposite-sex or heterosexual community, and once you also recognize the fact that the partnership of same-sex couples is as valuable, or as entitled as … heterosexual couples, then it follows inevitably that if you don’t give us the same rights of marriage, you’re effectively discriminating. And since discrimination is prohibited, you have no option but to give and recognize marriage rights. So the process of analogical reasoning of the principles laid down and determined by the Navtej Singh Johar judgment, the inevitable consequences (are that) the Constitution requires recognition of same-sex marriage.
Now, while that was not technically the issue in that matter, in Navtej Singh Johar, which is only about a case of decriminalization, they did not so rule. But I will give you an example of Laurence v. Texas, which was the 2003 case of the decriminalization in the US of sodomy laws, which ultimately form the basis for the Obergefell judgment (Obergefell v. Hodges), which recognized same-sex marriage. So I would say, this is a precedent, which is binding on the court, has tremendous value, and its implication inevitably would be requiring the recognition of same-sex marriage. To me, it’s easy as ABC, but some people are bad learners, I suppose.
JURIST: In light of the relevant judicial record, are the necessary steps being taken by the community in general—not just the activists—to ensure progress toward the whole array of equal rights for India’s LGBTQ+ community? I would include marriage rights, adoption rights, employment rights and all other relevant rights in this scenario. If not, what is required to change the situation?
Kirpal: You’re right; you know, marriage equality petitions draw a lot of media attention, and they have their own importance in their own place. But the community is discriminated [against] at so many levels, as you rightly pointed out, in matters of adoption, where the government is now seeking to build legislation, which will effectively prohibit same sex couples from adopting. And there’s a host of other rights, which we do not have, [whether] you’re part of a couple, or even as an individual. There is no comprehensive anti-discrimination law, for instance, on the grounds of sexuality, or indeed, sex. So these are all problems. And you’re right, one has to face and challenge these individual discriminations by taking up several causes. So it’s not sufficient for us to say, we’ve now filed a petition in the High Court about marriage equality, and then it ends, we need to confront a lot of these problems.
Now, there are two ways to confront these problems. One is the judicial process. And the second, I think, is through the process of activism. And I think in India, we really lack the latter: activism. There are some amazing people who are doing such good work on activism. But I think they are underfunded; they don’t have resources. There is, I think, a fracturing of the activist community. So in a country as vast as India, with the intersectionalities, and divisions along the lines of caste, religion, sex, often what divides us is so much more than that which unites us ,even in a cause as important to the queer community as our own rights. [This, I think, has hindered] the development of a social movement, which recognizes and pushes for the rights of the queer community. And we really need to focus on that absolutely urgently, because, you know, while change will happen through the court, that takes its own time, on track, unpredictability and vagaries. And that can happen simultaneously.
A parade in Kolkata celebrating the Section 377 judgment in Sep. 2018 © WikiMedia ( Arpan.basuchowdhury)
But I think change will be more deep rooted and lasting if it is backed by activism, because what activism will do is not only change the mindset of the judges, who will then write their judgments, but it will change the mindset of the populace and the people at large. And that will be like an insurance policy to make sure that the rights that are given once are not taken away.
See once the population at large believes that queer rights are human rights, and that we’re entitled to the same rights as everybody else, and that we are not getting any special rights, I think even the political parties will back off a bit. The marginal extreme communities or certain people who derive their sustenance by making rabid statements will be somewhat I hope, chastised, because you can’t go that much against public opinion. Right? So the aim has to also be a shift of the public opinion. And that can only happen through a process of activism.
But of course, in a country like India, another way of shifting public opinion, is through the judicial process. Because, while we may say whatever we do about our courts, there is a sense that the courts do the right thing eventually, and they have a certain moral legitimacy. So we need to move courts on individual disputes.
And it’s happening. For instance, in one of the high courts, the Madurai Bench of the Madras High Court, has recognized a marriage between a transgender person and a straight person. … Then we see a lot of same sex couples petitioning the court for protection against violence by family members, and the courts and various petitions have been ordering protection to be granted to same sex couples. So there is some kind of a sensitization which is happening there.
But other matters, for instance, as you said, of adoption, insurance, etc., those are not matters that have yet come to court. And I believe it will take time. See, the judgment, decriminalizing homosexuality is only three years [old], and we are not a fast paced country. And any judicial process is lumbering and going to take its own time. I have hope, we will move there, I wish we’d move faster. But I’ll take the speed we have.
What is changing very fast, though is, as I said, public opinion. And by public opinion, I don’t mean the opinions of the elderly. In India, I think the youth of this country is far more tolerant than I dare hope for. And I think change is happening there. We are a young country; the median age of our country is about 21. So I have hope and faith.
JURIST: It’s interesting that you mentioned the role of the judiciary, because for my final question, I would like to take your association with the judiciary and the stance of the judiciary itself together to understand the government’s ambiguity about the reasons for your disqualification as a judge, or for not considering it. The Intelligence Bureau has cited national security concerns. The Supreme Court held on October 27th (in Manohar Lal Sharma v. Union of India and Others; the ‘Pegasus order’) with respect to judicial review that a vague invocation of national security is not sufficient. In light of all this, do you believe that the government has a duty to provide express reasons for your disqualification, and has it provided any so far?
Kirpal: Well, the government gave its report on the national security concerns it had way back in 2017. The Collegium can keep on writing ad nauseum to the government asking for reasons, which the government will never supply because they may not exist. … Surely if there is a national security concern, it should be evident and obvious; you should not need to dig for it. It either exists or it doesn’t exist. … I think the ball is now firmly in the court of the court, so to say, and it’s for them to take a call one way or the other.
I repeat, I’m not backing off. … And I think it’s now incumbent on the court to take a decision one way or the other. I have faith in the system. I put my name in, and I gave my consent when they asked me four years ago. I see no reason to withdraw that; I see no reason to change. And of course national security is not some kind of a magic wand that you can wave and then out comes a Harry-Potter-like cloak of invisibility behind which everything is hidden. And the court has to examine as they do in every other matter whether the reasoning given by the government is sufficient, and then take a call one way or the other. I’m not saying [the courts should] do it this way or that way; I don’t have that authority.
I can only say I’m not going to withdraw; the responsibilities are that of the judges. Now let’s see what they do.