Online trolling I face nothing compared to what judges of our country face: Senior Advocate Saurabh Kirpal [Part I]

Saurabh Kirpal was recommended for elevation as a Delhi High Court judge by the Supreme Court Collegium not once, but twice. If his recommendation goes through, he could very well etch his name in the history books as India's first openly gay judge..The Senior Advocate has been at the forefront of legal battles for the rights of the LGBTQIA+ community. He had appeared for petitioners in the historic Navtej Johar case, in which the Supreme Court decriminalised homosexuality.Most recently, he argued in the marriage equality case, where petitioners have sought legal sanction for unions in the LGBTQIA+ community. .However, Kirpal's involvement in these cases is precisely why the Central government has objected to his elevation. In a letter to the Collegium in April 2021, the former Law Minister said that his “ardent involvement and passionate attachment to the cause of gay-rights" would not rule out the possibility of bias and prejudice.The Collegium, however, disagreed with this reasoning, saying that it would be manifestly contrary to the constitutional principles laid down by the Supreme Court to reject his candidature on that ground..While we wait to see whether the Centre will process his appointment pursuant to the Collegium's reiteration, Kirpal shared his thoughts with Bar & Bench’s Aamir Khan on what it is like to be an openly gay lawyer in India; societal changes post Navtej Johar; how he handles online trolling and critics on social media, and more..Edited excerpts follow..Aamir Khan (AK): What is it like to be an openly gay lawyer in India? .Saurabh Kirpal (SK): What it means to be a gay lawyer in 2023 is very different from what it meant to be a gay lawyer in 1995, when I first started. Times have changed, but speaking today, it is a time of hope, and it is also a time of resistance and reaction. It’s a time of hope because I think we are in a situation where judges and the rest of the bar are more welcoming to queer lawyers than they have been at any point in the past. This is the best time to be a gay lawyer, but that's because the country is changing. The world is changing in the way it is. It's still not a perfect time to be a gay lawyer, the way it’s not the perfect time to be a woman lawyer or a lawyer from any other non-mainstream, non-privileged background. So all those restrictions that hold you back apply to queer lawyers as well.Those are struggles that will be fought for some time. But things are getting better and it is incumbent on those of us who have the wherewithal and the capacity to resist and make change and to improve things, to do that. .AK: Growing up, did you face any resistance at home when it came to embracing your sexuality? .SK: The only resistance I really faced was with myself, and I think that's the battle most queer people feel. The biggest impediment for them to accept is first themselves. It doesn't mean that there aren't bigger impediments in terms of family, which there are. Some part of the resistance to your acceptance of your own sexuality is what you perceive, or worry that your family or your friends will react, but nevertheless, it is about yourself.So yes, I had a lot of those worries, which is why I came out much later in life. I was at a point when I was more secure financially, emotionally, et cetera. I came out in my late twenties, which is something peculiar to the young queer lawyers of today, who come out when they're much younger. But in my time in the 90s, it was not so. .I had a very fortunate coming out because my parents accepted me from the moment I told them. There was actually a formal moment when I came out to them. It wasn't them guessing or whatever else. It wasn't one of those unsaid things that they figured out. It was very much an interaction that I had with them when I told them that I was gay and they said, no matter what, we love you.And in that, I recognise, I'm fortunate. I recognise that not everyone has that happy circumstance of coming out..In the Indian context, where family is all-important, I think coming out to your parents or people akin to your parents is probably the moment I would say what coming out really means. We can come out to our friends, to our extended family. All of that is also important. And it's a process. But the true moment is when you come out to those people you're most reluctant to come out to.I was lucky. But I tell young people today that this country has changed and you have to take that chance, because you owe it to yourself. Living in the closet is crushing your soul.It requires an act of courage, and I'm no one to say really give up everything else and be courageous. It's not easy. Be sure that you can take care of yourself if things go south. But if you can then do that, do it, because it is not only important for your relationship with your parents, it's also important for your own self-esteem and your own understanding of yourself..AK: What was the reaction in legal circles when you came out? .SK: While I sat down with my parents and told them I'm gay, this is not something that I did with the legal profession per se. I didn't stand up and shout from the rooftops, because there's no occasion to do that. The way straight people don't go out and declare they're straightness, a queer lawyer doesn't go out and they declare they are queer. So it was very much an unsaid thing, but it was also very much a thing that I'd never hid, partly because I realised that if I hid it, then people would gossip behind my back and talk about it, and then I would deny it and then it would be a subject of discussion. .Very few people asked me, surprisingly, because people don't like to confront anyone else in our profession, or generally in India.But they could ask other people who I had known. And I'd always tell everyone that I'm not afraid of it, so please be open. It stopped being a matter of discussion. You can laugh once behind people's back and say, 'ha ha ha, he's gay or queer', but the second time, it's not funny and it stops being an object by which you can be judged in a negative way.I think the way the profession took me was more slowly. I repeat I come from a very privileged background, so I had a certain automatic protection. I cannot be oblivious of that fact and I think I would be doing damage to those who do not have the same privilege as me.But that was also the 90s, so the privilege I had then is overcome with a change that has now happened in India with a greater acceptance that has happened. The people who accepted me, accepted me because my parents accepted me. I think that was very important that it was conveyed to the world at large that we were a happy, normal family and there was really, frankly, not much for people to speak about once that was out. .A lot of people probably did not know I was queer, as I said, because I did not talk about it.And it took them time to find out. It was a process for others to determine, not for me. I was true to myself, and I never did this for anyone other than myself. Right at the beginning when I came out, it was very personal, very me, me, me, me.But as time grew on, and I interacted with more closet queer lawyers who didn't have the same privileges I did, or the facilities that I did, I realised that I was doing a lot of what I was doing on behalf of other people. So that was a decision, or a consciousness that came to me with time..AK: Have you noticed any change in societal outlooks post Navtej Johar? .SK: When revolutions happen, they happen quickly. That's the nature of a revolution. And I think there has been a revolution after Navtej. The seeds were sown in Naz in 2009 but I think the world has changed very quickly after 2018 for two reasons. First is because the world around us has changed. There is an increasing acceptance of queer rights across the world, and the acceptance of those is being beamed into our homes by satellite television, social media, the internet. The world is a much smaller place today..Secondly, once the Supreme Court gave its judgment, especially in the legal fraternity, there was a clear acceptance of alternative sexualities and the rights of sexual minorities. And the Court with this model authority has given its imprimatur to the rights of all people, regardless of sexual orientation and gender identity. There is also that strength that comes from knowing that you're not alone in this fight, that the Supreme Court of this country, which pretty much everybody morally holds to be the ultimate arbiter of morality or constitutional morality, has come to our aid..I have now been speaking to young people across the country for the last five years or even more. Particularly after an age, the confidence that people - young children in school, young men and women, and the third gender people or non-binary people in university have shown - is very heartening and it is symptomatic of the change that is happening across the world. So it’s changed very quickly, but very dramatically. There is self-confidence; there is a rejection of oppressive status quo. It allies with the rejection of patriarchy, because ultimately I think these are composite concepts.A homophobic person is also a sexist person and because there is an active movement now and an active realisation that you can no longer openly be a person who opposes equal rights for women, I think that also filters down to sexual identity, because the idea is that you are no longer the karta-dharta, the mainstream..AK: Do you think the benefits of such judgments in the interest of the LGBTQIA+ community reach those without caste or financial privileges or those who live in remote areas?.SK: In terms of intersectionality, those who are oppressed in terms of caste, birth and all absence of privileges, the fact that you're from a sexual minority is an added negative. So a judgment which removes that yoke is one straw off the camel's back.It makes your life that much easier to live. It's not easy to be a Dalit lesbian from a rural area. But if the court says that it's okay to be a lesbian, it makes your life that much better. It's not going to remove every aspect of oppression, and oppression can't be wished away or removed, unfortunately, as much as I would want otherwise.But it cannot be done away with with a judgment or the signing of a judgment. It requires hard work, and that will happen in an incremental fashion. Addressing oppression is a task that will require constant effort and constant endeavours and one of those steps is accepting the fact that you are an equal citizen..So when Navtej Johar or a marriage equality case comes, it'll wipe away some of those problems. The underlying problems will still remain, but I do not understand why it is expected that the fight for intersectionality or the fight against caste and other forms of oppression, is only placed upon the queer community. We didn't create this problem. This problem exists in society, and society has to deal with them separately as well as alongside. The issues of sexual discrimination on the ground of sexual orientation and gender identity is not the fight of queer people alone. It is also a larger fight.Why is it that when we talk about just queerness, that's when this discussion starts? We can address the issue of queerness also keeping in mind that there are other causes of oppression. But that doesn't mean that just because there are other causes of oppression, we don't address the cause of queerness..You address each issue while keeping in mind that you cannot have true freedom without all forms of oppression being undone.To put that focus and onus only on your queer way of being or your queer activism and say that you alone are the responsibility of ensuring that religious or caste identities are removed in the queer community, is just unfair.It is also detrimental to change, because if you have in the larger sphere of things, not been able to undo the injustice that you face, to expect that to happen only through the queer circle is a bit unfair. So you make the change wherever you can; you fight against inequality wherever you can and be aware and that's what intersectionality really means at the end of the day. While fighting the battle against discrimination against queer people, you do not lose sight of the fact that there are multiple other axes by which someone is discriminated against. And you accept that just because you are making someone's life better by removing discrimination on the ground of queerness, you will not make a complete change in their lives..Having said that, the realisation must also come with a simultaneous recognition that you alone can't do everything. Therefore, you do what you can and try to improve people's lives by resisting or fighting or doing whatever change you want to think about..AK: Some social media posts and news articles were critical of the marriage equality case, especially how swiftly it came up for hearing. How do you respond?.SK: Asking for marriage equality was hardly swift. We got a Constitution in 1950 and we are arguing this case in 2023. It's been 73 years too late. Is 73 years not enough to wait for a call for equality? What's so swift about it? Whenever someone is discriminated against, for whatever form of discrimination, it's never too late. Every form of discrimination is an anathema to the Constitution as and when enacted.Second, are we really saying that every matter that is argued before the Supreme Court is of such great importance that marriage equality is somehow unimportant? And finally, the very fact that so many people are incensed that marriage equality has been, so to speak, fast-tracked, shows how important they think marriage equality is. The fact that they're engaging with the idea of why this case is being heard, shows that they think it's important. They're talking about this case as opposed to a hundred other cases in the Supreme Court that are pending. The world is watching the YouTube screening of this matter every day. I think you undermine your own case by saying that marriage equality is not important, because you're simultaneously talking about marriage equality at that point in time..AK: How do you respond to the argument that the marriage equality case was heard at the cost of the Supreme Court not hearing other matters?.SK: The fact that other cases not being heard is a criticism that the Supreme Court was being accused of I think unfairly. Even prior to the marriage equality case, it's not as though marriage equality has stopped other matters from being heard.So those matters can be heard. But to say that marriage equality is somehow unimportant is being, frankly, almost homophobic, because it is very important to those who are from the queer community. Who are you to say that it's not important? It's very important to us. It may not be important to you, but what are the other very important cases that people are talking about?.AK: How do you handle the trolling you face on social media?.SK: The trolling I face is probably nothing compared to what the poor judges of our country face. It’s become fashionable really to blame the judges for everything and comment about them, and they are unable to respond.At least I can respond by way of a tweet when I'm trolled. The fact is, I wake up in the morning with the most delightful descriptions of who I am, what I represent, in very colourful language. I think you can imagine the rest. It’s not always complimentary. In fact, it's very derogatory.Having grown up as queer and being abused all my life, this is something that I take in my stride. It really doesn't bother me. I am 50 years old today. I've had 50 years of experience dealing with this. My life has prepared me for trolling like any queer person who faced bullying in school, which we all have..This is something we can face. I'm also lucky because I think I have a robust sense of self which comes from a loving family, and maybe my own mental health, which is good. So I take trolling in the spirit in which one should take trolling, which is best ignored.Once in a while, I call it out, not for myself, but to point out to those who claim that there is no homophobia, and that's an increasing discourse I see. To point it out, well, that's not correct. There is still a stigma that exists in our society, but ultimately I feel most sorry for these judges who must face far greater pressure than I do because I will do this one case and move on with my life. And I have my free life, I have my own time, and I have my own way of responding.These judges who are commented on in the most hateful manner have no recourse. They can say nothing because the position that they are in, they're not allowed to. So, my trolling is nothing compared to the institutionalised form of trolling that happens with those who are simply doing the constitutional duty..AK: Do you feel there is a need to take a step back in the context of marriage equality hearing in the Supreme Court when a large population in India lacks awareness on gender identities, or even basic knowledge about the community? .SK: I think we've come to a place in the queer movement where we can do multiple things. Those of us who are fighting for marriage equality in the courts are not necessarily the same activists who are seeking recognition of gender diversity, gender identity and recognition of the rights of sexual minorities in the field. Both can coexist. There are multiple forms of changing society, law is one of them, social activism is another. I don't think it is a kind of a zero-sum game. You can simultaneously do both things. It's not as if resources are being diverted from one to the other..All of us have argued for free in these matters from the top counsel down. Interestingly, the petitioners’ side was all free. The respondent's side probably got paid because they were for the State. It was unusual, because normally in a private litigation it is the State which doesn't pay, and the private litigants who pay, but this is reversed.That's happening at one level in the rarefied arguments that happen in the Supreme Court that does not stop the activists from also doing what they think fit on the ground. So there is no conflict really. It's not one or the other. You can do both. Simple as that. .In the second part of the interview, Kirpal talks about wariness among members of legal circle in coming out; advice to younger LGBTQIA+ lawyers and students who face homophobia and more. .Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.