'If Govt Can Discriminate Against Saurabh Kirpal, What Of Other Queer Indians?'

6 years since India decriminalised homosexuality, Saurabh Kirpal is still subbed of judgeship. Has anything changed?

(Photo: The Quint)

Camera: Athar Rather, Shiv Kumar Maurya

Video Editor: Kriti Saxena

'I am who I am, take me as I am', was what Justice Dipak Misra said six years ago on 6 September, 2018, while reading the historic judgment that struck down the pre-Independence laws under Section 377 that criminalised homosexuality.

Saurabh Kirpal, who is being snubbed of judgeship of Delhi HC by the government of India for being gay, despite the collegium's recommendations, remembers the day and everything he felt as he listened to the verdict in the front row of the courtroom.

"It was as though they were speaking to us and you could feel the burden being lifted. The oppressive nature of its very existence, the fact that the court that we called our own had in 2013 in the Kaushal case thought it okay to call us a minuscule minority, that feeling that you are considered second class citizens, that kind of dissipated at that point of time," Kirpal said as he spoke to The Quint on this new episode of 'Badi Badi Baatein'.

The burden of 'criminality' was lifted, but is queer India really unburdened of the lingering stigma, discrimination, and tokenism?

In 2017, Kirpal was recommended to be elevated as a judge in the Delhi High Court, but the Ministry of Law & Justice has not processed his appointment since.

Several inexplicable reasons have been cited, including his partner for two decades being a Swiss national, and the possibility of him being 'biased' while deciding upon cases related to the queer community.

What are the burdens that are yet to be lifted? If somebody as iconic as Kirpal can be discriminated against, what happens to others from the queer community who are not so privileged?

Read the full interview:

6 September, 2018: It's been six years now since, Section 377 was struck down. And, we have again seen a very long battle for same sex marriage. But we'll come to that a little later. Do you remember how your day was? 

Yes, actually! The evening before we found out that the judgment was coming. We all went and stood in front row when the judgment was being pronounced. You know, when you sit in the front and you make eye contact with the judges... I know it's kind of a rarified thing for everybody else, but when you were in that courtroom and you see that the judge and the judge sees you, it feels very personal and it often is. Because when they are writing their judgments, of course, one is writing, I suppose, from a constitutional point of view, rights-based point of view. But there is also a human element, because here with these queer lawyers — Meneka, Arundhati, me, and a few others — these judges looking at us, they know us, we appear before them in court. We meet them outside court as well. And so, there was kind of an emotional connect. I think that happened when the judgments were being pronounced.

And with each passing judgment, the lyricism of the judgments was so interesting. It was almost a poetry in each of them. So, "I am who I am, take me as I am," is what Justice Dipak Misra said. CJI Chandrachud had an invocation of Leonard Cohen and, Bob Dylan.

And, you know, I repeat, it was as though they were speaking to us and you could feel the burden being lifted.

The oppressive nature of its very existence, the fact that the court that we called our own had in 2013 in the Kaushal case thought it okay to call us a minuscule minority, that feeling that you are considered second class citizens, that kind of dissipated at that point of time. And I think that last judgment was, that of Justice Indu Malhotra. And she started by those famous line that 'history owes an apology to the members of the queer community', it was just really the icing on the cake. It was also a win as a lawyer. It was a personal win, it was legal win, it was just such a happy day.

Do you particularly remember any bizarre comment that came from the opposers that you find funny?

Oh my God! It was a long time ago and there were so many. The government, to its credit, didn't say very much. They filed an affidavit saying that we have nothing to say, which is problematic in itself.

Yeah, it's like the entire community is invisible to the government. 

You do what you want to, but the court sitting there will do what they want to do, they don't need your permission. They were all opposition by religious groups. The one thing that unites all religions in India is hatred towards the queer community. High Court, I can point out, there was the then ASG what argued who ad argued about how Section 377 was completely unnatural because of how the male body did not produce enough lubrication. so, obviously, Section 377 had to be a crime. So, these are the kind of arguments that were actually being canvased in court. And the idea of 377 just being a sexual act, these were the arguments that were made, ignoring the impact it had on the community.

Have you noticed any social change around you because of the verdict?

The social change is there for all to see. The only people who haven't seen the social change are people like yourselves and younger who probably did not know what India was in 2000 or 2010 when I was growing up. I became an adult in 1990. I was 18 myself. There was no question of people coming out about their sexuality, let alone having a march. There were a few brave souls in Calcutta who did a march, a few other people here and there. In the last six years, queerness has moved from the fringes and being hidden to be almost mainstream. I see larger number of students coming out, even if not to their parents, because that is still a conservative society which India is, that may take longer time, but at least to their other friends, to their colleagues, etc. So, there's a sense of openness.

I think the reason that we've come this far and what role this judgment has had to play, particularly, is because there's a sense in the community and I suppose the citizenry at large, that the moral authority of the Supreme Court has been put behind the queer community, and the court has said that it is an obligation of the state to protect it. It's not merely a case of don't ask, don't tell, but a positive affirmation on the state that you have to allow this. You have to allow conditions to exist which allow a life to flourish.

But then what many wonder is exactly about five years later, the court said, hey, you can't marry, you don't have the right to marry, you don't necessarily have the fundamental right to marry. Why didn't these arguments play up then?

They sort of did. But I think they were covered in the shroud of legalese and reverse justifications. If you ask me personally, of course, I believe the Constitution ought to recognise the fundamental right to marry for the queer community. But the court went so far as to say that there is no fundamental right to marry, even for any two straight citizens, straight people, let alone queer community. There is no right to marry under our Constitution. But in doing so, they ignored the practical reality is that various religions do permit marriage, various statutes do permit marriage.

And I think there was almost, with the greatest respect, a duplicity in the judgment of the court. So, when you read each of the judgments, there are pages upon pages upon lamentations about how the queer community is treated so badly and how there is a right to a relationship that exists in our Constitution, two people can be allowed to live together, and they must have the right to have a relationship.

But it fell short, in directing the government to do something about it. Now, to me, that was a sense of judicial reticence, but some more unkind than me would call it cowardice.

In so many other matters, these arguments of institutional competence have been put to the wayside and the courts have readily intervened from declaring the right to a healthy environment, to saying that you have a right to sleep, you know, an 'undisturbed' sleep.

I mean, if our Constitution can have in its Article 21, a right to an undisturbed sleep, then surely, surely you cannot say that there is no right to marry. But that's what they said, and I hope it would change at some point.

Do you watch movies?

Rarely! I watch more YouTube clips and lectures on science, I am boring that way. But I watch a bit of Netflix.

Do you think there is a change in the kind of representation that the community gets in movies now? Because from the times of 'My Brother Nikhil' or even a 'Dostana' which was touted to be India's 'Brokeback Mountain' but was far from it... Do you see a better representation? 

Without doubt. I think, mocking the queer community has become passé and unacceptable. A lot of it is led by economics, right? Earlier mocking, that 'effeminate gay man' would get you the money, get you the laughs. I remember growing up feeling more ashamed of myself when I saw the representation of these queer characters that were anything but positive. So, that's changed because of the money. So, I think even with filmmakers, a lot of whose assistants or who themselves may be queer people — we can't talk about 'Dostana'...! I suppose that sensitivity doesn't always come by your own sexuality. But people are also mature. You know, we have to forgive people. I think sometimes we are too quick to judge people. So, people have matured. People have changed in the last six years after the judgment.

But the person in rural India or a person in small town India will not see Netflix or other OTTs, but they will see some movies. The reach of Bollywood and fiction in that sensse is so much greater. And the transformative potential of telling stories is so great. You can't bring about social revolutions by merely marching on to the street. It is all about telling stories, engaging in the empathy of people, appealing to their better self. And I think that's what the responsibility of Bollywood now is.

Tokenism doesn't get you anywhere. 

Tokenism doesn't get you anywhere. But you know what? I don't, shy away from tokenism either. Tokenism is better than complete exclusion.

Because this argument comes every June when everybody is going rainbow, all the big firms are rainbow, you will see your cab apps, your cab is rainbow, you suddenly have a lot of queer nights in places which usually do not have queer nights. So, there is a lot of debate around whether this tokenism serves any purpose or whether these places, these big firms, these organisations, they actually propagate any kind of equality.

You know, I, in fact, felt strongly about the fact that they don't do enough beyond Pride Month. When the marriage equality hearings were happening, none of the larger corporates, the multinationals who may support complete equality in their own countries, came out with any kind of a statement because it was perceived that it would be an unpopular move either socially or for the government. So yes, there's a lot to be said for corporates not standing up for queer rights. But that doesn't mean that I throw the baby out with the bathwater. While demanding more, I can't say don't do less. For a large number of queer people, it is a process of affirmation. They look forward to that month of June, when their stories will be highlighted. As long as it doesn't stop at that.

It's been reported at length about what you went through with the government. It's been years of waiting since you've been snubbed of your judgeship. Some very vague reasons, which are already known in the public domain about your partner being not being an Indian national, about your sexuality maybe coming in the way of you deciding on those matters. But I have a very specific question when it comes to what has happened with you. Certain amount of fear that arises is that if somebody as big an icon as Mr. Kirpal who is well-educated, etc can be discriminated against by the government, what does happen to other people who are not as privileged? So, there begins the trust deficit with the government among the community. How do you look at it?

Well, it is undoubtedly a fact that I come from privilege, a fact that I have spoken of often in the past, a fact that cannot be denied. And I see a point that if someone with all the privilege couldn't smash that glass ceiling, then who else can? To which I will simply answer that this is not the first time this is happening. In terms of historically disadvantaged communities, there will always be people who will come first, who will try to make a change, and won't manage. And just because the barrier does not break down for the most privileged doesn't mean it will never break down. The drift of history is inevitable. This will go, maybe because of me. I'm trying to crack the glass ceiling and I only managed to bust my head. But, in the process of doing so, maybe I've left some cracks in that ceiling. And so the next person who tries to do it will get through.

Do you feel wronged with what has happened with you? Or have you gotten immune to it or have you gotten used to being asked about it?

Well, I think one thing you must remember is as lawyers, we have fairly thick skin. Second, growing up gay in India is not easy for anybody. So, anyone who's come out, you learn to get a pretty thick skin. Words matter. they always do. But you start dealing with it in a different way. Once you get that concept in a place... I am not going to talk about inner peace that's too Deepak Chopra... But you realise who you are, no one else's arguments are going to mean what I think of myself. It's sad for the community as a whole or for the country as a whole that, maybe not me, 'a' queer person could not be a judge. Or that we still don't have a queer judge in the high judiciary. I think it's sad because we ought to have a representative in the judiciary. My name is out there. It's not for me to say what will happen. What will happen, we shall see. I'm standing firm.