Kirpal speaks on being an openly gay lawyer, how the Supreme Court’s Navtej Johar judgment changed things for the queer community, how he handles trolling and more.
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.