Interview: Saurabh Kirpal, senior advocate and author
On his new book, speaking truth to power, and why marriage equality still hasn’t been achieved in India
Your first book Sex and the Supreme Court was a collection of essays with contributions from many people. You wrote the introduction and two essays, apart from editing the volume. With your second book Fifteen Judgements: Cases that Shaped India’s Financial Landscape, you are the only author. How different were these experiences?
In retrospect, I think it was substantially easier to write Fifteen Judgements because there was only one ego and one person to be dealt with as opposed to the 10 other people I had to deal with for Sex and the Supreme Court. All of them are brilliant and committed writers and friends, and they were kind enough to write for me. But trying to extract a chapter from a person who is not writing their own book is a bit like trying to pull your nails out.
When you work with busy people, things can become rather challenging at times with the editorial process. The time lag between making edits to their chapters, waiting for their comments, looking at revised versions… the whole thing got so tedious for me! But it was also fun in its own way because all the contributors came with their own domain expertise.
I learnt a lot while working on Sex and the Supreme Court. It is not possible to be an effective editor if one does not read and gather relevant domain knowledge. One of the essays – Understanding Muslim Law in the Modern Context – is by Justice BD Ahmed. My knowledge of that subject is peripheral, so I had to immerse myself and understand how Sharia works. Writing Fifteen Judgements was easier but also lonelier than the first book.
The world of law often seems incomprehensible to non-specialists because of legalese. While working on Fifteen Judgements, how did you make the language reader-friendly?
My aim was to write a book that would be accessible to the lay reader because a lot of judgements are written in a language that most lawyers – let alone lay persons – cannot understand. They are lengthy, and full of contradictions. This is unhelpful for citizens who want to make sense of the law and keep track of legal developments. While working on Fifteen Judgements, I relied on the tools that I employ in my work as a lawyer when I have to write a brief. It is best to use short sentences and simple language. When you have clarity on an issue, you can get to the heart of the matter quickly. I think the strategy of obfuscation is often employed by people who have not thought something through. I like to reflect well before I put something down on the page so that it is clear to me and equally to my readers.
There are 15 chapters in this book, covering cases related to subjects ranging from privacy to government tenders, sexual harassment to insolvency and bankruptcy. Which chapters were the most fun to write, and which ones gave you sleepless nights?
I’d say the first chapter, The Purloined Constitution, which is about the right to property, and the second chapter Garibi Hatao: The Case for Bank Nationalization, were the most fun to write. As a lawyer, it was exciting for me to read up and go back in time to what was happening in India in the 1950s and 1970s and to review the entire jurisprudence. To me, these cases are not only about politics; they are about the history of our country.
The chapter that gave me sleepless nights is the last one in the book – Bit by Bitcoin. Bitcoin was a completely novel topic not only for me but also for the authors of the Bitcoin judgement that came out in 2020 and for the Indian government. Frankly, reading the Bitcoin judgement was an exercise in mental calisthenics for me. Which way the judgement is headed or what it is trying to imply is not clear or obvious. In my opinion, it is trying to deal with so many issues at one time that it is a bit difficult to understand what people are trying to get at.
Perhaps even the authors of the judgement were not entirely sure about what they were commenting on. Bitcoin is a new development, so the law is finding it difficult to keep up. Law is slow to change, and often reactionary in nature; society moves at a much faster pace.
This book has a disclaimer stating that your objective is “not to hurt any sentiments or be biased in favour of or any particular person, region, caste, society, gender, creed, nation or religion.” What makes you say all this? Are you afraid of misinterpretation?
The disclaimer has been put at my publisher’s behest because they are worried about legal liability for themselves. They must have been asked by their legal team to do this. I rarely speak with disclaimers because I speak truth to power. I may be right or may be wrong but I speak with the intention to put forward my thoughts in an honest, unapologetic manner.
Are these books, or parts of these books, being taught in law schools?
I am not sure but I hope they get used because both books have things that law students would find useful. Even if professors do not pick them up, I hope that students do. This can happen easily if libraries keep copies of the books. I don’t expect students to buy. If there are libraries that cannot afford them, they can write to me and I will make sure that they have copies. I did not write these books to make money but to put my perspective out there, to get readers to think about how laws can be used for social change in the long run.
Do you plan to write a memoir about being a lawyer and being a gay man in India?
By the time I convince myself to write a memoir, I might have grown so old that dementia would have set in. Honestly, writing about myself does not interest me much.
But it might interest young queer lawyers. Don’t you think so?
Yes, I know. That’s a good argument but I feel the need to act rather than preach. Instead of waiting for 20 or 30 years to look back at my life and write about it in a self-congratulatory and egoistic way, I think young queer lawyers need me to be there now. I am accessible and available on social media, not to post photographs of myself eating nice food but to interact with a lot of individual lawyers who reach out for help and advice. Sometimes, it becomes difficult to respond to every single query or request but I really try to do my best.
What do you read for pleasure?
I like non-fiction; within that, history and astrophysics are my favourite subjects.
Are there no gay romance novels on your bookshelf?
(laughs) My life is a gay romance novel, pages of which are splashed in newspapers.
Your private life – your relationship with your Swiss partner – has been getting a lot of attention. Your appointment as a judge of the Delhi High Court has been long pending despite the Supreme Court collegium backing it. How do you deal with this wait?
I have been asked not to speak much about this issue. Let’s wait and watch.
What are your thoughts on the marriage equality petitions that have been filed after Section 377 of the Indian Penal Code was read down? One thought that legal recognition for “same-sex marriage” would follow soon after decriminalization of “carnal intercourse against the order of nature”. Why is this taking so long to happen?
As a lawyer, I can tell you that five years is an evolutionary jiffy. Our systems are such that cases are not dealt with very quickly. Section 377 was read down in 2018, and within two years marriage equality petitions started getting filed. It hasn’t been that long. In the United States, the journey from decriminalization to marriage equality took 13-14 years. I cannot predict the future but I am confident that things will get better as we move forward.
Chintan Girish Modi is a freelance writer, journalist and book reviewer.