NEW DELHI In March, all 31 judges of the Delhi High Court voted for Saurabh Kirpal, an openly gay lawyer practising in the national capital, to be designated as a senior advocate. While this was an immensely satisfying moment, Kirpal says he owes it to Indias LGBTQ community to keep an eye on the horizon for the judgeship that a Delhi High Court collegium recommended him for, three year ago in 2017. If appointed, Kirpal will be Indias first openly gay judge in India. The 48-year-old graduate of St. Stephen’s College and the University of Oxford has already made history as the first openly gay lawyer to be recommended for a judgeship in the country.
The matter had been stuck since Indias central intelligence agency, which reports to the Bharatiya Janata Party (BJP)-led government of Prime Minister Narendra Modi, raised a red flag about Kirpal’s foreign life partner. Last month, India Ahead News reported that the outgoing Chief Justice of India S.A. Bobde had asked the Modi government to clarify whether its objection was because of Kirpals sexual orientation.
Kirpal, the son of B.N. Kirpal, a former Chief Justice of India, was one of the lawyers who argued the case that led to the reading down of Section 377 of the Indian Penal Code, a colonial-era law that outlawed gay sex, by the Supreme Court in 2018, and is now arguing a petition before the Delhi High Court for same sex marriages to be legalised.
In this conversation, Kirpal explains what his elevation to a judgeship would mean for him and the LGBTQ community, what it was like growing up gay in the eighties and nineties in India, and why Indian courts are at the heart of driving change in the country.
It is very important for young gay men and lesbian women, trans children, to see that they can reach the highest offices of this country, and the promises given in our Constitution are not just on paper, but they work in practice.
Given that three years have passed, and I dont mean to be a wet blanket, but do you feel that this is not going to happen.
I dont know whether it will happen or not. I reconciled myself to things pretty much within the first year. If it doesnt happen, its fine. Personally for me, life would be much better as a lawyer than as a judge. Im earning well. I have freedom to meet who I want, live the life I want. All of which will come to a very abrupt end when you become a judge. The salary of a judge is minimal. You are restricted in who you can meet. You cant go to parties and socialise the way you do. Ive seen that at close quarters. My father was a judge. I know how tough it is to be a judge.
I was always doing this for a cause. This is something other than me, its bigger than me, and yes I get a sense that it may happen or it may not happen, but there are ups and downs, there are times when you think it is more likely and times when you feel that it is less likely, but what I do know is that all of this is completely out of my control. It went out of my control, the moment I gave my consent to become a judge way back in September of 2017. And thereafter, I have no option but to have faith in the system, which I do. Im fairly stoic about it. There is no other way to survive three and a half years without being stoic about it.
I was always doing this for a cause. This is something bigger than me…
You have suggested to the media that this (the stalled elevation) is because you are gay.
I have two reasons to say that. I cannot necessarily share the information that Im privy to, but in the public domain, at least one of the judges in the very first collegium, which deferred my recommendation based on the intelligence input, Justice Madan Lokur, has come out and said that the deferment is on the grounds of my sexuality. I wrote a book, Sex in the Supreme Court: How the Law is the Dignity of the Indian Citizen and there was a panel discussion on it at the Jaipur Literature Festival. And there someone asked me a question, saying that you’ve made an allegation that your deferment is based on your sexuality, what evidence do you have for it? And before I could answer, Justice Lokur, who was on the panel, jumped in and said that since he was a member of the collegium, it was his belief that that was the reason. So, really we have it from the horses mouth.
The second reason I say what I say is, going by the media reports, the fact that my partner is a foreign national and that is a security risk and that is a potential problem, has obviously everything to do with my sexuality. Discrimination can be overt and direct as well as indirect. We live in a country where same sex marriages are not allowed. I live with a partner who Ive lived with in this house for the past 20 years that weve been together. It is not some kind of fly by night relationship that I have. We live at home with my parents. It is like a joint Hindu family. Unfortunately, I cant get married to him because we dont have same sex marriages. Now, because of that, he is a security risk. Had I been a straight person and had a foreign partner, who I would then have married, presumably a foreign spouse would not have been a security risk because we have had judges with foreign spouses. Thats not a problem. The current Foreign Minister of this country has a Japanese wife but that is not a security risk. The only security risk is when you have an unmarried partner which is all that a gay person in India can have. There is obviously a discrimination.
The only security risk is when you have an unmarried partner which is all that a gay person in India can have.
Is there some kind of (time) bar to these things? Could you end up waiting for ten years.
Theoretically, yes. It could be until Im 62, the retirement age. A part of the problem in the system is that there are no timelines. The delays that happen in court, the massive backlog that you have, in the higher judiciary partly has to do with the fact that there arent enough judges. One of the reasons in the higher judiciary is because there are delays in appointment of judges. There are delays in appointment of judges because there are no timelines. What happened to me at a much larger scale, happens every day on a smaller scale to all the judges of the higher judiciary. That is why we have vacancies. There are problems in the system. The system needs to improve.
Do you feel that if there was a different political party in power, the wait may not have been quite so long.
I cant quite answer that question for the simple reason that Im not going to blame this political party alone. When it comes to questions of discrimination against the queer community, I dont think any political party has really covered themselves in glory. Even when the matter of Naz Foundation was being argued in the (Delhi) High Court in 2009, the Government of India, at that point the UPA (Congress Party-led United Progressive Alliance), did not come out and say lets strike down Section 377. There was vehement opposition to it. I would certainly say that when it comes to the cause of the queer community, its not that the Congress Party can say they have done a great job either. The point is today, India has changed. People have changed and the youth has changed. What people felt and the reasons that political parties had earlier, I dont know if they will still have those compulsions or not. But that is in the realm of speculation and I cant quite say.
Im wondering if you stick by the comment that India has changed, the youth has changed, because some may argue that we are at a very regressive point in our country right now.
Well, I dont remember seeing very many gay judges prior to 2014 either. I dont want to make a comment on politics at this stage.
The very fact that you were recommended (by the Delhi High Court collegium), that has got to make you happy.
Those are very deeply satisfying recognitions that I was even considered for elevation. Its not every lawyer who gets asked. It was also important for the queer community that an openly queer lawyer was asked. And frankly, Rome was not built in a day, and neither was discrimination removed in a day. It is a long battle and it will take its own time. Maybe my nomination was the first step, maybe it wont come through, but I hope Ive made the path slightly easier for the person who will come after me. I have no doubt that at some point or the other in the future, sooner rather than later, I hope, we will have a member of the queer community sitting not only in the High Court, but hopefully one day occupying the post of Chief Justice of India because to discriminate on the ground of sexuality is unconstitutional and surely our judiciary and government is not going to let something unconstitutional to be permanent. I have faith but I hope it will become easier. For me, it was a great privilege and honour.
I have no doubt that at some point or the other in the future, sooner rather than later, I hope, we will have a member of the queer community, sitting not only in the High Court, but hopefully one day occupying the post of Chief Justice of India…
How can you reconcile this difference?
These are systems. If I believe in the system, and I have faith in the system, then I know delays happen. If Ive accepted, and given my consent to be considered for elevation, I recognise that there will be delays. I also recognise that mine is not an easy case. I will be the first openly queer judge and to that extent it will take its own time and there will be hiccups. I dont necessarily see any inconsistency with it. It would have been brilliant if it could have happened straight away, but the fact is that my nomination is unusual, so if it takes time, so be it. There is no disappointment for me. I expected that it wouldnt be an easy path. At least, they didnt reject me outright. In my batch, nine names had gone out and some names were rejected outright by the Supreme Court collegium. For me, they didnt reject my name outright. The fact that it has been deferred rather than rejected, at least so far, we dont know what the future holds, that is a cause for some joy. Maybe Im looking at silver linings but that is how one has to make change. To constantly focus on the negative, youll not end up making change in this country or the world because every attempt to break down discrimination is a slow and arduous process and as someone said the price of liberty is eternal vigilance.
…to break down discrimination is a slow and arduous process and as someone said the price of liberty is eternal vigilance.
Do you feel the weight of history on your shoulders?
I dont feel the weight of history on my shoulders. Once youre a judge, you have to leave your sex, sexuality, identity, behind. The weight of office on my shoulders, yes. That is the weight on my shoulders. Would it make a difference to the lives of the queer community. Yes. That too is the case, but that is not a weight on my shoulders. That gives me great joy. That actually lifts the weight off my shoulders. It is important for the queer community to have a role model. It is very important for young gay men and lesbian women, trans children, to see that they can reach the highest offices of this country, and the promises given in our Constitution are not just on paper, but they work in practice. And that happens when you see a person occupying that position. So yes, there is tremendous hope I have for the queer community. It is not a weight on my shoulder at all. Quite to the contrary, it gives me wings.
There is tremendous hope I have for the queer community. It is not a weight on my shoulder at all. Quite to the contrary, it gives me wings.
Why do you want to be a judge?
The fact that I want to be a role model for the queer community. I think the two can coexist. If I were to be a judge, I would be a judge for all Indians, regardless of sexuality, can very happily coexist with the fact that Im also an openly gay man. Every decision that I take, will not be coloured by that fact. But for a gay child in school, it matters that a person with the same identity as their own occupies that position. Till I become a judge, I want to do this for the queer community. Once I become a judge, then I want to do it for India. But till then, I want to do it for the queer community.
But for a gay child in school, it matters that a person with the same identity as their own occupies that position. That is why I want to be a judge.
(Listen to the first part of our interview with Senior Advocate Saurabh Kirpal. We ask him whether he still believes a judgeship is in the offing.)
Can you tell us about when you discovered your sexuality and how it was growing up in India.
I discovered my sexuality at a very early age. Of course, I was growing up in India where the idea of sex, let alone sexuality was a taboo subject. These were the early eighties and this was really not spoken of. It took me sometime to come to terms with my own sexuality. Once I did, I did not come out to my parents until I was in my mid to late twenties. This was in the mid nineties. It was unusual for a gay person to come out to their parents at that point of time. But coming out to my parents was one of the happiest moments of my life. It was a joyful glorious experience. I had come out to members of my family. My sister, my friends, knew, but I dont think you are out until you are out to your parents, at least in an Indian context where parents play such an outsize role in our lives. I had already met my partner by then. I sat them down and I told them, and they were just so lovely about it. I dont think everyone has a great coming out story. I had one of the perfect ones. My father was at the time a judge of the Supreme Court. He said he was surprised to hear it, but he was happy for me and would support me no matter what. My mother said she sort of suspected it but wasnt really sure. She too would support whatever decisions that I would take. Never for a moment did they make me feel any less of a human being, any less of a son.
Never for a moment did they make me feel any less of a human being, any less of a son.
What was growing up in the eighties like?
The eighties were particularly difficult for the gay community because there was just no visibility. And you grew up wondering am I the only person like this. There was just no way to find out about anyone else. There was no knowledge, no internet, no books. There was nothing available. It was a lonely experience. When you are grappling with issues, it does help to have a community. Even if you are not part of it, if you know of it, if I knew there was a vibrant LGBT community elsewhere in the world, that may still have given me some kind of support or solace. But I didnt know of it. Who knew of the Stonewall riots, who knew what was happening in the West. India was very closed at that point of time. There was only Doordarshan that would show four hours of television in the evening and I remember actually waiting for hamare kisan bhaiyon ko Ram Ram. I used to watch Krishi Darshan because there was nothing else to watch. So I grew up in that India. It was tough. I cant sugarcoat it. It was difficult on the issue of my sexuality. But consequently, I just completely suppressed it. I didnt deal with it because I didn’t know how to deal with it.
I did my first degree in physics at St Stephens, and after that I went to Oxford to do my BA in law. That was a more liberal open environment but even the UK when I went in 1992 wasnt exactly the most welcoming of people of alternative sexuality. Today, we say how liberal they are. They werent liberal in the nineties. There was that famous Section 28, an Act that Margaret Thatcher had passed in the late 80s, which prohibited local authorities from promoting homosexual lifestyle as an acceptable lifestyle. It was not a very welcoming place even then. So I didnt come out to my friends and family even when I was a student in that country with access to a more liberal environment.
It was a lonely experience.
It is only when I came back to India, I then decided that I could not live with myself. I could not foresee a whole life of misery. I could not foresee that I could ever live happily with a woman, having a fake marriage, bringing great unhappiness to her, and at least as much unhappiness to myself. It was one of the toughest things for me to come out. Any LGBT person will tell that you coming out is one of the most personal, most wrecking of decisions. And it often happens when you really cant stand it anymore. And I think that is what has to change. It shouldnt be that you come out only when you cant stand it anymore. That will drive people to such depths of despair. I was despairing.
I see a lot of young people today, who are now increasingly coming out, at a younger and younger age, not because of despair but because they think they can do it. Having said that, it is still probably within the privileged circles the upper middle and middle classes where this phenomenon happens of people coming out because they feel empowered to do so. The vast majority of the LGBTQ community in India is still in the closet and they dont have the courage to come out because they dont know how, they dont know what will happen to them, they swallow that despair, they get married. All that I had the freedom not to do, they dont have that freedom.
The vast majority of the LGBTQ community in India is still in the closet.
What about friends?
I did not tell them growing up at all. It was only when I was confident in myself, and I had to first accept myself before I told anyone else, because that was a journey as well. Accepting the fact that I was gay and this was not a passing phase. And accepting the fact that I could not live like this. Once I had battled those inner demons that is when I decided to tell some of my closest friends. I had a list in my head. I would tell A B C D first. I did that. And each time I told someone, I was more and more pleasantly surprised and gathered more and more courage. It became easier. I think to articulate the words I am gay for the first time was so difficult. Now it just slips off my tongue, but it is very difficult for a young person to say those words, because they have meaning, they have a consequence. It defines you. To articulate those words initially was one of toughest things I had done but it became easier through practice. Like most things.
To articulate the words I am gay for the first time was so difficult. Now it just slips off my tongue…
When mainstream cinema starts dealing with it, a gay person is immediately caricatured, not to be hated, but someone to be made fun of.
I didnt care. At least, we were being talked about. There is a luxury to say that we are being caricatured and once you reach a certain level of awareness in society, you make a very valid point that you can look at something and say that this a caricature. But when you are growing up in the eighties, when the mention of the word gay is taboo and there is no one else like you out there, even to be caricatured is a step forward. Art and cinema has its own arc.
The problem with caricatures is the generalisation. That every gay person is that. Well at least society knew that there were gay people. The problem was the conspiracy of silence. That was the worst part of it. The loneliness of it. I didnt mind the caricatures. When I saw Dostana (2008), if the film was to be made in 2021, it would be horrific. When it was made, it was the first film that at least discussed the issue of sexuality. It didnt engage very well with it, but at least it sought to engage. I think to judge too quickly is to be unfair. You have to be kinder to the times. Personally, as a gay person coming out, those caricatures were very valuable.
Personally, as a gay person coming out, those caricatures were very valuable.
When do things begin to change?
Undoubtedly after the 2009 judgment of the Delhi High Court (reading down Section 377 of the IPC, five years before it was reinstated by the Supreme Court in 2013, and then read down five years later in 2018). Thats when I started feeling the country was changing.
I think in a country like ours, primarily change will happen through the agency of the court because Parliament is not likely to act. When you have a very conservative society, to expect that society will lift itself up from the bootstraps is not possible. Its so conservative that to make a small change is so difficult. It takes so much effort that you almost give up. You need the agency of the law to change society. And once it happens, some kind of virtuous circle kicks off. The moment law helps change society, society will then reflect itself back in the attitudes of the judges, lawyers, lawmakers, parliamentarians, decision makers, opinion makers. Society will feed back into the loop of the law. And that is the virtuous circle that will take us up. I see the progress of this virtuous circle has begun already.
I think in a country like ours, primarily change will happen through the agency of the court because Parliament is not likely to act.
After the 2018 judgment, discussion of sexuality and queerness and homosexuality has entered the mainstream media with a bang and generally with a very positive view at least in the English language electronic media. There is a very positive spin on issues of sexuality. And that has fed into the general perception of the public, opinion makers, powers that be including the top lawyers and judges of the country and that is how their opinions have changed. And hopefully, that will be reflected in progressive judgments as we increasingly see now in court.
I cant say much about the same-sex petition because that is coming up on the 20th (April) and Im a counsel in the case. But the point is that there is change in the attitude of the judges and I think that will inevitably reflect back into the community. See, for instance, the affidavit that has been filed by the government in the same sex marriage case. The government has said that it is not part of Hinduism etcetera, but there isnt a visceral fear and hatred that society will end as we know it. Its obviously not an affidavit that I would like to have but it is not an affidavit of hate. It comes from a place where society has changed. So the powers that be who were drafting are tempered in their language and thinking by the fact that 2018 judgment has come and public opinion has changed. I think change will happen primarily through the aegis of the court but at some point, it is going to take off, and it will be society that will drive the change. Thats been the experience Ive seen of countries across the world.
Weve heard Section 377 pinned on Christian morality and the British, and how ancient India was a far more liberal place.
Section 377 was undoubtedly imposed upon us. But that is not to say that we were a very loving welcoming society for the queer community in ancient India. We probably did not have as much hatred towards gay people in ancient Indian society as there was in Catholicism or People of the Book because there is a direct injunction against it. But it wasnt a lovely place to be either. Also, the statute came in 1860, we got our freedom in 1947. What were we doing for the next 70 years. We can blame the British till 1950. After that, we only have ourselves to blame. What someone did, what the Hindu past was, is a pointless discussion. Im no historian. Im no great religious expert. I am, however, living in a country governed by the Constitution of India, not by any holy book or historical text. If I have to look forward, the only morality that Im concerned with is that of the Constitution and Constitutional morality. I dont want my tomorrow to be tied to my past. I want my tomorrow to be tied to this glorious text, the Constitution of India, the most liberal document. That is what I put my faith in.
The only morality that Im concerned with is that of the Constitution and Constitutional morality
What about the change that makes people okay with their neighbours son being gay, but not their own.
I can understand that. Im obviously a lot more forgiving or my time has taught me that. If you are already okay with the fact that your neighbour’s son is gay, and you are not okay with your own son being gay, I can understand that because it affects you personally. But the fact that you are okay with your neighbours son being gay makes me believe that it is a matter of time before you come to terms with the fact that your own son is gay and you will accept it. Its a path for everybody. I dont think we with our privilege, education and liberalism, can expect everybody to be like that. And to demand liberalism of everybody without making any effort to change hearts and minds, and to condemn people who are not as liberal as you is grossly unfair on them, and is grossly self indulgent. Its a process and it is a process that is going to take its own time. But to think that we can afford to look down on people whose hearts we are seeking to change, whose minds we are seeking to alter, if we dont engage with them and understand where they are coming from, change will never happen.
To demand liberalism of everybody without making any effort to change hearts and minds is grossly self indulgent.
(Listen to the second part of our interview with Senior Advocate Saurabh Kirpal. He tell us his story, what it was like growing up in the eighties in India, and what has driven change for the LGBTQ community.)