Saurabh Kirpal on the Constitutional Case for Marriage Equality in India

In this episode, Shruti speaks with Saurabh Kirpal about the constitutional roots of marriage equality, fundamental rights, the role of the state, problems and challenges of the Indian courts and much more. Kirpal is a senior advocate at the Delhi High Court, the author of “Fifteen Judgments: Cases That Shaped India’s Financial Landscape” and the editor of the anthology “Sex and the Supreme Court: How the Law Is Upholding the Dignity of the Indian Citizen.”

SHRUTI RAJAGOPALAN: Welcome to Ideas of India, where we examine academic ideas that can propel India forward. My name is Shruti Rajagopalan, and I am a senior research fellow at the Mercatus Center at George Mason University.

Today my guest is Saurabh Kirpal. He is a senior advocate at the Delhi High Court and the author of “Fifteen Judgments: Cases that Shaped India’s Financial Landscape” and the editor of the anthology titled “Sex and the Supreme Court.”

We discuss the constitutionality of marriage equality that is currently under consideration at the Supreme Court of India, the evolution of jurisprudence governing heterosexual marriage in India, whether the recognition of nonheterosexual marriage requires a Uniform Civil Code, India’s Fabian mindset in both personal and economic law, the role of the state and much more.

For a full transcript of this conversation, including helpful links of all the references mentioned, click the link in the show notes or visit mercatus.org/podcasts.

Hi, Saurabh. Welcome to the show. It’s a pleasure to have you here. I’m very, very excited to pick your brain on a whole host of topics.

SAURABH KIRPAL: Thanks for having me, Shruti. I’m quite looking forward to (a) answering your questions and (b) not making too much of a fool of myself after that.

RAJAGOPALAN: [laughs] I think you’re fishing for compliments right at the head of the conversation, Saurabh. You can rest assured all those compliments are already conveyed.

Constitutional Roots of Marriage Equality

RAJAGOPALAN: I want to start at where one can find the root of the constitutional violation in the marriage equality case, because I think it really matters for what kinds of remedies follow from that. If I look at Johar, NALSA and Puttaswamy, it’s very well established that the right to freedom of expression under 19(1)(a) and the right to dignity and privacy under 21—those two protections are extremely well established.

My question is more about Article 14 and/or 15. In Navtej Johar, Justice Malhotra, while discussing the violations in 14, 15, 19 and 21, she specifically said about Section 377 with respect to Article 14 (now I quote), it “creates an artificial dichotomy. The natural or innate sexual orientation of a person cannot be a ground for discrimination. Where a legislation discriminates on a basis of an intrinsic and core trait of an individual, it cannot form a reasonable classification based on an intelligible differentia.”

This was a little bit different from how the now chief justice, Justice Chandrachud, thought about the problem. Again, I quote: He said, “Equating the content of equality with the reasonableness of a classification on which a law is based advances the cause of legal formalism.” What he did was, he read in 14 with 15 to provide a more substantive protection against discrimination.

The thing I really want to pick your brain on is the question of reasonable classification versus the protection under discrimination. Because if we go by Justice Indu Malhotra’s reasoning and root it in 14—and there is, according to her, no reasonable basis for the classification between heterosexual and nonheterosexual couples—a 14 violation is so fundamental that it will now invalidate (or at least open up to questioning) all of the 160 laws that Solicitor General Tushar Mehta argued would be impacted by the process of bringing in marriage equality. Then it’s not just a question of remedy under Special Marriage Act or Foreign Marriage Act, which is one kind of remedy.

But if we go with the discrimination aspect, then the understanding is there is a basis for reasonable classification, but if it is discriminatory, then you need to provide protections and read in or read up Special Marriage Act and Foreign Marriage Act.

Sorry for the very big lead-up—I wanted to pick your brain on where you are on this fundamental question, and then we can work out the remedies that follow.

KIRPAL: I think this goes to the heart of our jurisprudence and the heart of how you read the interaction between Article 14 and 15. What is the current understanding of those articles? In that, I must say I am more in tune with the views of Justice Chandrachud. There is no other way of reading, I think, Article 15 and 14 harmoniously other than recognizing and taking some part of what Justice Malhotra said, which is those characteristics which are innate to a human being. They imbue Article 15 with a sense of who that article is targeted and directed at.

The words “caste,” “race,” etc. in Article 15 all refer to innate characteristics. Of course, it also refers to religion, which is not innate, but nevertheless it is so fundamental to the choice or the life of a person that it is almost innate. That’s point one. Second, it is innate in a sense that very few people go about choosing their religions. If you are born the child of a Hindu, you are going to stay a Hindu. If you are born the child of a Muslim, you will stay a Muslim. While technically it is not innate, it is in practice virtually innate.

There is a set of human facets which are covered by the special provision of Article 15. I think it’s probably better for us to focus on Article 15 for the purpose of the marriage equality case. I suppose the very term “marriage equality” hides in itself what is it that we are arguing: the idea that we seek parity, and parity implies nondiscrimination. And nondiscrimination stems really from Article 15.

Because my worry is that a classical test of Article 14, so oft repeated, of “reasonable classification, intelligible differentia,” can prove itself to be so formalistic that it can be very easily, of course, complied with.

If you go the other extreme and hold that the classification is itself not reasonable and rational, I think it runs a coach and horse through our constitutional jurisprudence. Often, of course, judges don’t seem to mind that. Often judges don’t even seem to be aware that they’re doing that. That is some of the problem that one has with reading some of these judgments. The niche distinction between Article 14 and 15, the awareness as to the applicable test that you are making in the two sections, of course, two provisions to articles, is different. It’s not seen.

I would be a person who leans really in the form towards Article 15. A nonformalistic reading of Article 15 is possible without touching the rigors of or having to comply with Article 14. Of course, there is law which also suggests that 15 is a species of Article 14. We can discuss that at some point. If that be the case, then you start to wonder, really, why have 15 if 14 is a parent, and the genus and the species argument.

Really, there is something unique about Article 15, which also even Justice Indu Malhotra’s judgment in Navtej Johar does touch upon when it says that sexuality is included as sex for the purposes of discrimination under Article 15. Now, if 14 is a broad article under which something is to be tested, then there is really no reason to conflate sexuality into sex. That only happens when you are independently applying an Article 15 test. That’s when it becomes necessary.

I think an Article 15 test is a good test to apply, and there we can break ourselves free from this formalistic two-pronged traditional Tendolkar test of Article 14. Those rather easily fulfill two criteria we don’t need to worry about.

Article 15 and Nondiscrimination

KIRPAL: We therefore then go into the larger domain of a nondiscrimination aspect of Article 15, which is of course the impact, which is something that Article 14 need not examine. Article 15 will go into that. Now, the idea to test nondiscrimination is, how does failure to recognize marriage between a nonheterosexual couple impact their life? Now, that is something that may not traditionally fall within the domain of Article 14, not without doing some violence to former jurisprudence.

Now, of course, I also have a problem with the former jurisprudence, because I think when Article 14 tests were adopted, they were adopted without much thought about the full implications by a court which was relatively (at that point of time) formalistic. The test of Article 14 was given by a court which decided Gopalan. The idea that all these fundamental rights are in silos—the conception of our fundamental rights and part 3 of the Constitution was quite different.

So really, we are taking a test that was formulated at a time when rights were viewed very differently, and we’re still running with it. Now, either we can just dump that test—but that I think it’s going to be very difficult for people to do, so wedded as they are to this idea, which is taught to people in classrooms from age 18 onwards. Maybe it’s an easier way to take the Article 15 route out and apply that to the marriage equality case and say, “See the impact on the lives of—us, really.”

Then, of course, in that comes the proportionality arguments and all the whole other set of arguments that can possibly come in by virtue of an Article 15 analysis, unbound as it is with the traditional Article 14 analysis.

All these tests can be then seen—similar to the Anuj Garg, the first great expansionist idea of what nonformal equality and Article 15 means. And so many scholars have talked about the liberating influence of Anuj Garg. How those two judges, frankly, I’m not even sure were fully aware of what they have been said to have done in that judgment, as has been ascribed to that judgment. That’s part of our retrofitting of our academic argument to legal reasoning.

Just the way a judge often retrofits their legal reasoning in past precedent, I sometimes think academic writing in India will take a judgment and feed [chuckles] those judgments into a concept that they already have, whether or not it fits in. Partly because of the sheer number of judgments that are delivered. That’s, of course, something we can discuss.

For every proposition, you can find a whole rainbow—and that’s rather appropriate. We recorded this in June, in Pride Month, and talking of rainbows, there’s a rainbow of opinion. Now, that’s great for an academic or great for a lawyer to prove their point. It’s not so good for certainty of the law.

RAJAGOPALAN: Adding to that is also, the opinions that individual judges are writing have become (1) extremely lengthy and sometimes incomprehensible. But the other thing is, the reason I think academics interpret and retrofit is, also it’s no longer clear what is obiter in a judgment and in whose opinion. I think this conflation is on purpose being done by various judges across all benches because they want the convenience of being able to pull something out of a past judgment and use it in a later court. For very many reasons, it’s a little bit of a mess.

If we take the case of marriage as it currently is in the case of heterosexual couples: Now, when we think about the age of marriage, 18 for women versus 21 for men, the argument is it passes the 14 test because there’s a reasonable basis to classify men and women separately when it comes to age of marriage. This is partly based on custom, it is based on reproductive age, but also some of the specific goals which can be intelligently ascribed—the development goals of the state: what’s the age of marriage and the age of the first child and so on. But it will not fail the 15 test because it is not discriminatory.

Whereas in the case of nonheterosexual couples—for instance, if we say that 14 is not the right test—if you say that there is a basis for reasonable classification and now you come to 15—but Special Marriage Act, Foreign Marriage Act are all discriminatory, and therefore you need to read them up, as the case may be. That’s how I interpret what logically follows from what you’re saying. That this is going to be a much more specific remedy that is both being sought by the petitioners—maybe not all petitioners, but most petitioners—and what you think is the reasonable expectation from the court.

KIRPAL: Of course, when you argue a matter in court, as we did this marriage equality matter—yes, the fulcrum may be Article 15 because it’s very difficult to argue about a set of legal relationships in a vacuum. We can’t invoke Article 21 like a mantra and say, “Please create for us something which otherwise has unspecific and unspecified contours, i.e., marriage.” Therefore, practically, also it makes sense as a lawyer to argue with the fact that here is one legally recognized institution; please view the Article 15 and say there is access to a set of people who are arbitrarily excluded from that particular class. Hence there is discrimination on the ground of sex.

Therefore, I think it makes sense really to make an Article 15 argument because then you can sought to be included. Now, of course, we would not want to limit ourselves to an Article 15 argument just for the same reason, as I said. There may be instances where there’s violation under the common law or in custom, etc., where there is no law in force, and therefore we may have to rely on Article 21 to then say that, “Please create something.”

For instance, a spousal visa regime, etc. Now, we don’t know whether—there is actually no law, really, of course—a law which says you can get a visa, not get a visa. Who knows what the regulations are. They’re often put in the drawer of a person, and there’s so much arbitrariness in all of this. I would say that’s almost a regime without any regulations. For that, we may need to rely on Article 21 to give substantive purpose to the right of equality, so that the idea of marriage becomes—it’s almost an enabling provision rather than a provision that first gives the impetus to it.

I think we’ve become so used to think of Article 21 as a Kamadhenu, as the cow that gives everything: the celestial cow that gives rise to all rights. There is a certain amount of intellectual laziness, also, that comes with that. When all else fails, mention Article 21.

I think the two-step process I would envisage in future litigation concerning marriage equality and, of course, beyond, towards rights of queer couples, would be the idea of the recognition of the institution of marriage between a nonheterosexual couple on a nondiscriminatory manner vis-a-vis a heterosexual couple under the Special Marriage Act. Then, using that concept, that broader framework, on a case-by-case basis—and I’m a great votary of case-by-case basis expansion of the law—and on other areas, and certain other rights will shown differently. Then let’s deal with that as and when that arrives.

The marriage equality case, I think, largely is about equality, and that’s how I think the debate ought to have been framed. It largely was, but of course in the flurry of arguments, people are entitled to put all their points of view. Let’s see what the judgment comes—what it says.

Nonheterosexual Marriage as Exogamy?

RAJAGOPALAN: One implication of this is we are going to end up in a case-by-case situation. And there’s nothing wrong with that conceptually, which is once there is marriage equality, there are going to be all sorts of questions that pop up about succession, about status in a Hindu undivided family, about adoption. All of those things are governed under personal law. Now what takes precedence? Is it the individual’s personal faith? What about exogamous marriages? I understand that it’s going to open a huge—I think there’s going to be a deluge before the court, and they’ll have to navigate that, as any court must.

I think, though, the crux of it, as I see it, is that there are two ways to think about the LGBTQ community. One is, if you think about it, in the Special Marriage Act sense, we say, “You know what, this is one other kind of exogamous marriage.” Because the Special Marriage Act was really one about exogamy. All endogamous marriages, we just revert to the default is personal law.

Now, the problem with saying that LGBTQ unions are going to be exogamous in nature is that they are also people who simultaneously live in society, who also have freedom of religion, who are part of certain faiths, who are part of certain castes and custom. How does one think about that? Because the Special Marriage Act for exogamous marriages for heterosexual couples was actually quite straightforward. I know there were kinks in the system, but it was straightforward in the sense that the personal customary law does not make room for this union. It would be discriminatory to not allow that union, so that’s what we do.

Then they exited that system. What is the way to think about this? Is the LGBTQ community a fifth community, with its own custom, that won’t evolve through social pressures but through judicial evolution? That’s another group? Like, we have Hindus, we have Muslims, now we have LGBTQ. Is that the way to think about it? This particular community is going to be rooted in individual rights, consent, choice; whereas the other communities, which are endogamous, are going to be rooted in a more faith-based approach.

I know this is an unfair question, but to me conceptually that’s the crux of it—and you also allude to this in the book.

KIRPAL: See, one part, of course—Special Marriage Act did also concern itself, at least to some extent, with endogamous marriage, which is the sagotra marriages. It’s not entirely correct to say it’s only exogamous marriages that it’s concerned itself with.

But I would ask myself the question as to where the division or distinction in Article 15 lies for the queer community. To see a distinction on the basis of sex is different from seeing a distinction on the basis of religion. And this is something that my thoughts have developed, maybe during the hearing itself, etc.

There are multiple axes on which Article 15 violations can take place. I would simply say the easier task is not to see the LGBT community or the queer community as a separate group outside the issue of personal law. There is no reason why the personal law of the same two queer people cannot carry on applying the way it does in a heterosexual union. If two men get married who are both Hindus, technically, the law can still apply in that particular manner. That might just be an easier way to go about things rather than upsetting too many apple carts in one go.

This is just, of course, a legal but also a strategic move, and also one that doesn’t do too much violence to the language of the act. The people who are, during the hearing, keen on just saying you can interpret this particular provision when it applies to heterosexual people in one particular manner—while I may want that, because the idea of consent and individuality, etc., may appeal to me as a moral precept, given the fact that I am a votary also of some semblance of having the language of the statute complied with or followed, I think we can’t have such a situation without doing tremendous violence to the language of the statute.

An easier way to reconcile, of course, all of this, is to see queer community as another two set of people, individuals, who are now asking for equality on the basis of sexuality or gender and the ability to get marriage—and the realm of personal law is something distinct from that. If any reform is called for in that, that will apply across the board. I really believe that’s how I would see that the queer community is different but the same, or as we say in colloquial Hindi, “same, same, but different.”

Pros and Cons of an Article 14 Test

RAJAGOPALAN: [chuckles] No, but this brings me back to the Indu Malhotra question because, to me, I understand that that really flips the cart. The simplest way for me to think about it is that you say that there is no basis for reasonable classification, which means in all personal law and Special Marriage Act and Foreign Marriage Act, you are going to basically read in “husband” or “wife” as “spouse.” Instead of “man” and “woman,” you’re going to read in “persons,” and then that solves the problem.

You revert to personal law when you revert to personal law, and there’s of course a Special Marriage Act where you register cases, which you rightly pointed out is true in some cases of endogenous marriages also.

To me, that seems like the most sensible, clean way. Of course, it creates a lot of confusion across 160 statutes because human beings have to interpret it. There are registrars all over the country that have to interpret it. Isn’t that then the cleanest way out, which also puts a stop to all the other crazy—like constantly going back to court and so on?

KIRPAL: Look, when you say an Article 14 test in the classic sense, there will be certain provisions of certain different acts where that classification would be reasonable and hence would not violate Article 14. And there would be provisions where that classification is bad. It’s not as though when you apply the Article 15 test, you’ve shown Article 14 the door. The point is that it still does exist.

For instance, in the Special Marriage Act, you may not need to apply Article 14 to allow a recognition of marriage equality, but there may be certain other provisions where Article 14 will apply.

There may also be provisions where you want special protection for women as a class, and you do not want that protection to extend to men. Now, if you do away with a classification or permit—and say this classification of “queer”—now you’d have to ask yourself, “How does the person identify themselves?” All other kinds of things. The moment you do away with the classification, then those gender-specific laws are also potentially under challenge. That may not always be a good thing. For instance, in Domestic Violence Act, you may then render those provisions which are beneficial to solely women on the gendered basis as slightly vulnerable to challenge under Article 14.

I just advise caution on that, and that’s why I’m saying see it on a case-by-case basis—what is the purpose of that particular act—and then adopt the challenge. Because I don’t believe that classification on the basis of gender or sex can never be adopted; it can be. The moment you rely on Article 14 and you start with the precept that you can never use this classification, then a lot of the special protections of women is something I worry about how it will then be.

RAJAGOPALAN: And increasingly transgender also. Women and transgender since NALSA and the new statute.

Judicial Evolution of Marriage Equality

RAJAGOPALAN: I’ll tell you what my worry is if we go on a case-by-case basis. Again, this is something you’ve alluded to in the book. My worry is that with the courts, simply because of the way our courts function—they take on a lot of cases; a lot of them are two- or three-judge benches. A five-judge bench is not typical, and constitution benches larger than five are increasingly rare. I keep worrying about things like Koushal, where you take one step forward and you take three steps back.

Koushal, if you think about it, was just—at least the way I think about it—was just a natural consequence of diluting standing. If you say anyone can approach the court, then anyone will approach the court, and then you’re going to have a slight problem with how this is navigated.

My worry with doing this on a case-by-case basis is twofold. One, the gains that are made on a case-by-case basis can also be lost on a case-by-case basis. That’s part one of the problem.

Second is what you’ve talked about a fair bit in your other book, the book on financial judgments, which is just causing—there’s no certainty in the law. These are matters of everyday life. These are very important questions. Many have important financial implications in terms of property and succession. There is a question of children who are either born outside the union and adopted or born within the union. These things are going to start getting quite complicated, and these are the areas where we really don’t want uncertainty to creep in, in the business of everyday life.

That’s my concern with the case-by-case basis. Do you worry about this at all?

KIRPAL: It’s not my job as a lawyer to worry, but as a citizen, as a queer person, of course I worry about it. I can’t sometimes sleep at night. Certainly, during when the matter was being argued, I spent the longest two or three weeks of my nights spent sleeplessly.

Coming back to your point about case-by-case basis, you worry of an idea like a Koushal. A Koushal can come and give a judgment. Now, the point is that if you have a single judgment—but what is the reverse of that? Rather than having a case-by-case, incremental growth of the law, you can have everything given by one judgment of five judges, which will then be upset by one judgment of seven judges. I worry about that as well.

On the other hand, if you have several judgments of five judges, two judges, three judges, it becomes judicial orthodoxy after a point as well. It gets set in the judicial mindset as to how to examine a particular issue.

We were talking about Article 14 earlier. That mantra of “reasonable classification and intelligible differentia” has been repeated so often, including by two-judge benches, that it has now become part of the orthodoxy even if that is not the actual test that is being applied. The judge will say “that’s what I’m applying” and go ahead and apply something quite different. That is what I value in a case-by-case basis: where a body of jurisprudence is developed which is then difficult for one judgment to come and overrule 10 earlier judgments of the Supreme Court.

Yes, it’s technically possible for a five-judge bench in the future to overrule 20 two- or three-judge benches, but that’s not how courts typically work. The collegiality of the court is such that they tend not to upset a very vast body of past precedent. I think there is value in that.

The second you said is, of course, uncertainty about a multiplicity of judgments that could come by a bench of smaller judges. Now, given how our courts function, I can assure you that even with larger benches of the Supreme Court, the same uncertainty can well persist, inasmuch as I give you the example of the jurisprudence around affirmative action in India. Who knows what the law really is—

RAJAGOPALAN: I don’t.

KIRPAL: —on various aspects. You talk about the issue of basic structure of the Constitution: almost inevitably heard by a bench of five judges. Yet if you try to elicit from the idea of what the basic structure is, there is no clarity. There is no certainty. Just because there are larger benches and fewer judgments doesn’t mean that you are going to have any greater certainty in the law.

I had thought that after Indira Gandhi and the Minerva, as explained by Coelho, that the golden triangle of rights 14, 19, 21 are—you can’t even touch them. Yet we have judgment on the Right to Education Act where Article 14 is affected, but they say it’s not substantially affected. Now, what does “substantially affected” mean? You can chip away at Article 14 on certain sides, but you can’t really go to the core of it.

Now we have the “basic structure” of the Constitution and “basic structure” of Article 14 as well. In another case, you will not hold that. Then you have the economic EWS judgment [the Janhit Abhyan judgment]. That interprets “basic structure” in a completely different way as how Article 14—

RAJAGOPALAN: Yes, they just say “basic structure.” I don’t think it’s an interpretation of the doctrine with any predictive value in that case.

KIRPAL: That goes to my point, which is that you think that somehow getting one large judgment has greater predictive value. I think that’s a misplaced hope, and there are other solutions.

From Societal to Individual Choice

RAJAGOPALAN: What you’re saying is so much more damning about the judiciary in its entirety—I understand what you mean by “it doesn’t have implications for this case alone.”

Now, if I take this line of thought and I think about, “OK, now how has the court been deciding these questions?” I think there I’m a lot more optimistic. If we look at, for instance, Shakti Vahini, which is a question of marrying across caste. If we look at Shafin Jahan, which is of course the right to choose one’s own religion and marry across religion; or Hadiya, which is a high-court question; or NALSA, which was on transgender rights—all of them, in all the three cases, the question is rooted in individual choice over family or kin or community. Even on the question of faith, it is the individual choice when it comes to faith over the community faith.

This is—once again, I think if I take these three cases together, specifically Shakti Vahini, Shafin Jahan and NALSA, the three of them together are quite a departure from how we think about personal law in India. I know they weren’t relitigating all personal law, but they were relitigating, I think, one aspect from which all personal law follows.

If this is the direction in which the court has been going for, say, the last 10 years (because NALSA was 2014), then I think that for the LGBTQ community, what we are really going towards is: For nonheterosexual couples, the rules are going to be rooted in individual choice, consent and contract. For heterosexual couples, there’s a slightly different default.

Now, this may not necessarily be a bad thing, but how do you think about both this evolution and then what this means, where we place the LGBTQ community in a slightly different category?

KIRPAL: I think, while dealing with issues of the LGBT community, maybe we can shed light on a path forward for the heterosexual community as well. In terms of the personal laws, I’m not a believer of the correctness of the Narasu judgment. To give immunity to a whole swathe of laws on a really outdated principle of what it means to be law within the meaning of Article 13 of the Constitution, it’s just not correct. That’s not something the court has consistently done, also, when you strike down one provision under the Indian Divorce Act.

The idea of marriage has changed also from Narasu till now, what it means—from the idea of a sanctified contract which is inviolable to the idea of, again, personal choice. When we talk of irretrievable breakdown of marriage, we are moving away from the idea of society to the individual making the choice, right? It’s really one part that the society is taking. Simultaneously the law, both legislatively and judicially, are following that idea.

Of course, the judiciary gave these three examples of how the question of consent and individual decision is central to the idea of marriage, and therefore it should also be therefore central to the other incidents of marriage—therefore not be governed by the personal law. That’s a logical relationship that you are making, and that I think is absolutely correct.

The moment we concede that the idea of marriage is based not solely on a religious construct but is based on the idea of consent of two individuals to come together, and it is then shorn of the religious aspect of it. Then it follows that all the other things also should, even for heterosexual couples, follow equally that it should not any longer be governed by their personal laws alone. I do believe that retaining personal laws is not a good idea in the long run.

Now, of course, the problem is how to go about it. That’s belling the cat. What time? Who does it? Which manner? All of those are contentious political questions, as far as the law is concerned and the philosophy of the law and the jurisprudence of it is concerned. For a moment, assume I live in a utopian world where these political questions don’t arise. Then there is really no reason today, given how marriage is viewed in society, as opposed to 1950, when marriage was viewed in a particular way in society.

Narasu’s facts are also very interesting. That was a way to protect certain provisions which were beneficial. That’s why the court said, “No, no, no, we can’t have a look at the personal law.” That was—I suppose reverse engineering started with Justice Chagla in Narasu, not just something that happens even now—Justice Gajendragadkar, of course, was also a very conservative judge in Narasu.

Do We Need a Uniform Civil Code?

RAJAGOPALAN: What are we going to do with this? One way I’m thinking about what you’re saying is, OK, if we are worried too much about how this is going to upset everything, because personal law—and when it comes to marriage, it literally affects every single person living in the country, unlike a lot of other questions, when it comes to property or taxation and so on.

Now, one possibility is that there is a kind of individual—consent, contract, choice—based approach for both nonheterosexual couples—as you said, you will bring heterosexual couples out of the closet—for both categories, there can be one kind of law. I think the Special Marriage Act was going in that direction but didn’t go all the way. There’s a personal law which is completely divorced (forgive the pun) from any kind of religious custom. That exists simultaneously with all your personal laws.

The alternative is what has been talked about many times, a kind of Uniform Civil Code. These, to me, seem to be the two options on the table. I understand what you mean by short run versus long run, and you know how this is done and which parliament does it.

Are you at all worried that, when we are advocating for individual choice and moving towards a very systematic, clean personal law that is divorced from faith and custom, the agenda of the LGBTQ community is going to be captured in some way to pass a Uniform Civil Code and affect other parts of plurality in our system and so on?

KIRPAL: I’d welcome the mainstream to capture the “LGBTQ agenda.” (a) There is no real agenda. (b) The mainstream is running away as far as they possibly can. By “the mainstream,” I mean the government. Not the person on the street, for whom a lot of these academic questions may not come to their mind. If the LGBT point of view is used to bring reform in the law for heterosexuals, I wouldn’t call it capturing the agenda. I would say it’s taking a good idea and running with it. That’s absolutely OK for me.

There are many other battles that the LGBTQ community has to fight, and if something that is useful for them is taken over and someone else fights that battle for them—say a feminist coalition, for instance, fights for certain rights—so be it. I would see it as allyship rather than any hijacking.

Of course, my worry in a Uniform Civil Code is that you would have some kind of a DOMA argument: a specific exclusion of nonheterosexual couples from the idea of marriage, an explicit prohibition.

That really doesn’t worry me too much because that’s exactly what the law today is, as per the argument of the union, so we are already excluded. Then, once it specifically forms part of a provision, supposing it does come, then it is very easy to challenge a section which is explicit and says two nonheterosexual people cannot get married. There the Article 15 violation is writ large on the statute book, so striking it down is easy. I think sometimes covert discrimination also is useful, but I’m not worried about the agenda at all being hijacked.

I really believe a time has come where marriage has evolved from purely a religious concept. And of course it will never cease to be: Some element of it is religious, and it will never stop. That will never stop. We must distinguish the idea of marriage from all its other incidents as well, including divorce, maintenance, alimony. Those are not necessarily typically clear in religion.

There you can make a Uniform Civil Code without doing structural damage to the idea of marriage as somewhat a religious concept as well. Because really, I don’t think we can completely do away with the idea of religion in marriage. I think the better way to do is you choose a ceremony, but the other incidents will then follow the Uniform Civil Code, and that would be very useful.

RAJAGOPALAN: No, I agree. My personal belief is either government should not involve itself in personal law at all, and we leave it entirely to custom and contract, or—if it is involved—then all people must be treated equally. Since we are very far from the realm of the government must not involve itself, so if I were to take the current existing structure in India, then I’m obviously leaning towards the latter, which is a Uniform Civil Code not just across all faiths, but also for heterosexual and nonheterosexual couples. That’s where I’m headed. I understand—but none of this is clean.

Religious Wedding Ceremonies

RAJAGOPALAN: Now, I had a question about the ceremony part of it. Because I thought that’s one of the first things that’s going to get challenged, and this is going to be a very 1950s temple-entry ban kind of situation. Let’s say that the Special Marriage Act and the Foreign Marriage Act are actually read up. We already know that a lot of nonheterosexual couples do have ceremonies where their family members attend and so on. The way India has navigated is, given that it doesn’t have legal validity at the moment, you just find a priest who is progressive or a family member who’s progressive who can conduct the ceremony.

Now, let’s say you get the Special Marriage Act sanction, and it comes under 15. Fifteen is not just equal protection, it is also nondiscrimination. Now, if this couple—like, most heterosexual couples in India who do get married under Special Marriage Act, or get it registered, also have some kind of—if not purely religious, some traditional ceremony which is faith-based. That is going to be explicitly unavailable to LGBTQ couples.

Do you see that as the next frontier? That you’re going to have LGBTQ couples now say, “Hey, we have to be allowed entry in temples, and we have to be allowed entry in mosques. A priest can’t discriminate, because Special Marriage Act allows us to do this”? That starts conflicting with 25 and freedom of religion.

Because I see these are the problems in our future. If we go in the progressive direction without an overall solution, this is the next step, right?

KIRPAL: This next step is happening all across the world. I think the clash between a right against discrimination and the right to have freedom of religion is inevitable. In the Indian context, I think it’ll be slightly less so because (a) for the substantial majority of the country, which are Hindus, there is no centralized church. You will always be able to find some priest or other who would be willing to perform the marriage. I think that is a problem that is maybe more for the Muslim community or for the Christian community, whether you have access to church or not. Then of course that is, again, a battle that will be decided on a case-to-case basis when the dispute arises.

It cannot be done in a one-off, quasi-legislative manner to decide all these issues. But yes, there will be a clash, I can quite see, between religion and personal laws on the one side and an individual’s choice on the other. We’ve seen those clashes even today in the “love jihad” matters. When a Hindu woman gets married to a Muslim man, there are conflagrations. Society deals with it. Then you have, of course, Shafin Jahan; you have the judgment of the courts step in. Even when the courts do step in, it’s not as if the problem goes away. There is a problem of, still, outside influences, social influences trying to stop these marriages in a nonlegal manner.

Even though the law can be sorted out, the problems will persist, as they do today between heterosexual couples. That’s a larger cultural, societal debate that we really need to have. I don’t think that’s a problem that the queer community alone is going to face.

Secondly, the queer community—it’s not as though millions and millions of people are today dying to get married in any case. This is not something that’s—it’s far less widespread. I would love for the whole country to be queer. The fact of the matter is it’s 5, 10%—initially, I think, as so many people are in the closet as well. It’s not as though there will be floodgates of queer marriages. It’s going to be relatively an unusual phenomenon, which will then increase as time goes and society accepts.

As society accepts, there will be changes in both how people react to the idea of queer marriages—maybe at that point of time, society will be more progressive and therefore start accepting these marriages, and a clash really between religion and individual choice may not happen. On the other hand, I don’t know how it develops. Maybe there will be a backlash. Then, as marriages become more common, then there will be more of a clash.

In my perception and understanding of how I view India, is that I think the former. That I think there will be greater acceptance of it. We are not innately and inherently a nation that likes to stop other people from living their lives, by and large. There will be vigilantes and activists on the fringes who will act up, but that’s not the mainstream view. If two queer Hindus are getting married, I don’t think, at least, that the larger Hindu community is going to be terribly upset about it. I really don’t think that’s the case.

RAJAGOPALAN: It’s typically a family barrier. If a family is accepting, then immediately all the other benefits—they’ll find a priest, and they’ll find the community to attend a traditional ceremony. All those things follow. If the family is not accepting, then even for heterosexual couples, it’s really, really hard. That’s, I think, usually where it comes to bear. But that’s a question of fact, much less law.

Personal Impact of Marriage Inequality

RAJAGOPALAN: If you permit me to ask you how some of this has impacted you personally, in two aspects. When I was talking about how marriage is really important for the everyday business of life: In your case, there are two questions when it comes to discrimination. Your name is currently under consideration for elevation to the Delhi High Court. I believe it has been so for many years now. You would be the first openly gay member of the bench if you were appointed.

Of course, the collegium is a complete black box, so none of us are privy to the minutes and what has been discussed. But from what I’ve read and understand, the major question for the government is that they’re actually not able to completely wrap their head around your peculiar situation of having a long-term partner who is a foreign national. This problem gets solved if you were in fact married, because we’ve had people in very high office, including the current cabinet minister for external affairs [S. Jaishankar] is married to someone who was foreign-born. That has not caused a security concern or interest of the sovereignty of India and so on.

In your case, because it’s not marriage and it can’t be marriage because that’s not permitted, you are either in a situation where you have to break the law and go abroad and do certain things and try to sneak this into some kind of marriage umbrella, or you are excluded because the government says that they can’t vet your “family.”

If you are comfortable, walk us through how this case resolves that question. I know it can’t resolve homophobia, but how this resolves the logistics of everyday life, which are actually very discriminatory for everything, including an elevation to the bench.

KIRPAL: Just talking of my elevation, for instance, I think this case will resolve something and nothing simultaneously. Something inasmuch as well, yes, once I get married, then there is really no reason to discriminate between a heterosexual and nonheterosexual person when the person assumes constitutional office.

You mentioned the current cabinet minister, but I’ll only remind you that we’ve had one prime minister [Rajiv Gandhi] who had a foreign spouse. We’ve had a president [K.R. Narayan] who had a foreign spouse as well. It shows you that the problem then is not the idea of a foreign spouse. It is the idea of a nonheterosexual person.

I think a lot of the terminology that has been used is really trying to get at that. That’s why this case will solve everything and yet solve nothing. Technically, yes, one will be married, and therefore one can make the argument that there is no difference now between me and someone else. Again, I’m just talking purely technically from a legal perspective, not my own.

But it’ll solve nothing as well, because as long as the government believes that having some foreigner is peculiarly disabling for a judge, then that problem remains. Then that has nothing to do with marriage.

For instance, I give you an example: Supposing if one were to be single, one gets appointed or elevated to the bench and then finds a foreign partner. Would then that person be automatically impeached or disqualified? How would this work?

I think some of these points have been dealt with by the collegium resolution saying that, given the fact that a judge is not privy to confidential information because the whole business of judging happens in an open public platform, and now that we see—

RAJAGOPALAN: Sealed envelopes notwithstanding, but yes.

KIRPAL: We’re moving away from that sealed-envelope jurisprudence as well, thankfully. Thankfully, because you’re expecting one side to play with their hands tied behind their back. So obviously that’s going.

If that be the case, then the technical objection of failure to get married would disappear with this case, but that’s not the real objection. The real objection is nonheterosexual foreign spouse. Then that objection will remain regardless of the marital status of the individual concerned.

Now, the day-to-day business of living—now, of course, that for us will become considerably easier. My partner is not an international; then we’ll be able to stay in India, get OCI card, hopefully then get Indian citizenship at some point. We don’t have any Swiss nationals who will wish to become Indian citizens, but he’s one.

Joint bank account. But technically any two people can open a bank account together. I can open with someone unconcerned. I can, including with my partner, open a bank account. But supposing I put money in that bank account and he spends it for our day-to-day expenses. Then it’s income in his hand, and he will have to pay tax on the money that we have in the joint bank account. That is another problem.

I can’t get insurance for him, etc. These are multiple daily problems of those 160 laws. Now, that’s something that comes back to what the solicitor argued in court and said that marriage is an extremely valuable social institution. That 160 laws will have to be amended, and how fundamental it is to the life of an individual that 160 laws relate and concern themselves with that aspect of a person’s being.

If some institution is so important that you need 160 laws, no less, to deal with that particular aspect of an individual, then to exclude the nonheterosexual community from it—thereby disabling them from privileges and powers that come with those 160 laws—is in itself obvious as to how the life will improve for the LGBT couple. Then you will have access to those 160 laws. That’s precisely what the argument is. I think it’s a circular argument on the part of the government, and a self-defeating one.

RAJAGOPALAN: Yes, I was actually smiling when I heard that. Now we have the video transcription of what happens in court. I was smiling and I was thinking, “Does Tushar Mehta realize that he’s just strengthened the case under 15(1) for what is going on, and how this is truly discriminatory in every aspect of life, by invoking the operationality of the 160 laws?”

But you’re absolutely right: India is a marriage society. Everything stems from marriage, all privileges. Even something as simple as the ability to hold someone’s hand in public and everything else that follows—India is just truly a very marriage-based, marriage-driven society in terms of public acceptance. Right from the cops stopping you to getting insurance to getting pension. If you die intestate. What happens to children? Are you included in the Hindu undivided family business or not? Every single thing starts flowing out of this. It becomes quite—it’s extraordinary how discriminatory it is as it stands.

KIRPAL: Absolutely. Adoption is something that we can speak of. Surrogacy. Because you see now what is happening is that a concept of exclusion of nonheterosexual regime is happening. Nonheterosexual couples are being ousted from access to all kinds of other institutions. Adoption, surrogacy, IVF-assisted reproduction. Now, on all these matters a heterosexual married couple is being elevated to some special status, with the consequence that everyone else who needs this more than a regular heterosexual married couple is being ousted from this.

It’s typically a nonheterosexual couple that will require adoption, and yet you’re ousting the group that most needs it. There are multiple problems, and it’s getting worse in terms of the legal regime. Maybe once the judgment comes it will have an impact on not just personal laws and marriage, but on the creeping form of discrimination that is entering into the personal choices of people in areas other than just marriage.

A single person: Why can’t a single person get a surrogate child? But the law clearly says you can’t. That’s nothing to do with marriage, nothing to do with sexuality, but it is everything to do with personal choice.

There is a kind of an attack on personal choice through the elevation of this heteronormative, almost patriarchal idea of what—because heteronormativity in India is patriarchy. We can’t separate the two, really. Technically one can, but in practice it is that. We are elevating our patriarchy to the status of law and dogma. That is why I think this judgment—I hope it will be timely to stop that happening.

India’s Fabian Mindset

RAJAGOPALAN: When I was reading your book—this is “Sex and the Supreme Court”—it’s a wonderful collection of essays that you’ve edited, and you’ve written one yourself. The glaring theme that emerges from the anthology is that we are very Fabian in our approach to personal law, not just economic laws. What I mean by Fabian is, we are both gradualist and paternalistic. These are the two characteristics of Fabianism.

We want things to happen through a somewhat legal, formalistic or democratic process. It shouldn’t just happen willy-nilly. But, at the same time, it will be done in small, marginal steps, and it will be done not keeping individual choice in mind, but a certain kind of paternalism.

The problem with that is the paternalism keeps getting outdated. We find ourselves in situations where women who are in heterosexual couples and upper-caste and privileged are actually less vulnerable than men who are from marginalized communities or men who are nonheterosexual. We are now entering these questions. Now we don’t know who we are supposed to be paternalistic towards!

Do we need some kind of radical solution to how we just think about laws? This old Fabian way of doing things just has to change. It is the queer community and the transgender community that’s going to get us there, because they are the only ones who can show us the mirror and see how glaringly paternalistic and bad this has been so far?

At least that’s what I get out the book, whether it’s #MeToo, whether it is Johar—everything.

KIRPAL: No, that’s—to some extent there’s a kernel of truth. Now, I just break it down in my own head, is to say that there is a problem, which is that the law is not changing fast enough to keep pace with the problems, not only of today but potentially tomorrow.

There is a certain incrementalism which is inherent in the process of judicial lawmaking. You don’t want a judge to just suddenly discover a new article in the Constitution and say, “Wait, hey, no one had seen this before, but I found it,” and then give a series of judgments which are completely divorced from the text to the Constitution. Because that kind of judicial indiscipline lends itself to a judicial dictatorship which—there’s no room for that in our democracy. Also, as I said, a backlash and inevitable overruling.

The judicial process is by definition and by design an incrementalist one. So that’ll happen. What, however, the queer community can do (and the trans community in particular) is that, I think, given the level of deprivation, is that the resistance that they offer should change a mindset in society, that then hopefully will get reflected in the lawmaking and the legislature. Because truly revolutionary change can happen only by a legislative process.

One big judicial break I want to see, and that will be consistent with the Constitution, is the overruling of Narasu. The infiltration of the fundamental rights chapter into the personal laws of communities is something that’s imperative. That is one big thing that needs to happen. But even when it does happen, I think, given how conservative the courts are and how the decision-making process is, that would still be a step-by-step matter.

It’s only when someone brings a list to court is that court going to decide. That is not, however, the domain of Parliament or indeed the state legislature, because, after all, personal laws are matters in the Concurrent List. Even states can change it. Most have not chosen to do so, save for Goa, the state where I’m currently sitting in and enjoying the lovely monsoon.

RAJAGOPALAN: Oh, how lovely.

KIRPAL: Yes. Coming back to that, I think that the queer community and the trans community can make the problem so obvious of what the problem with personal law is. For instance, the discussions that were happening in the marriage equality case is, when you tried to put a square peg in a round hole, it just wasn’t working. It showed that it’s not the problem with the peg, it’s the problem with the hole also.

That’s when you start questioning that laws need to change, and maybe the LGBTQ agenda will be hijacked—hopefully—and used for bringing reform, through the medium of legislation, into effect. That is what I’m hoping for.

That paternalism that happens—that is a paternalism that’s inherent in all aspects of decision-making, both legislative and judicial. For that, you need to fight patriarchy in some other ways: through education, not necessarily through the medium of the very thing that is paternalistic, i.e., law. I think that’s going to be a failed effort—to try to use law to bring about change there. It’s not going to work. I think the problem is far too deep-rooted and cultural to be changed through the medium of the law. That’s not the correct social tool.

Social Acceptance

RAJAGOPALAN: I have a lot more faith in the LGBTQ community achieving this, because in one sense, yes, it upsets the way we think about custom and faith—and more so for some faiths relative to others—but in most cases, they are not subtracting from anyone else’s rights while demanding their own. I think that is a very important social acceptance tool. I think that’s the reason 377 also found so much social acceptance and celebration, which is, this is not in any way affecting heterosexual couples.

Nonheterosexual couples’ behavior does not change anything for us. Bare minimum in a civilized society is that they shouldn’t be punished for it. Though we are a very conservative society, it didn’t seem to matter in that instance. I’m hoping it’s the same for marriage. It doesn’t prevent, really, heterosexual couples from doing whatever they want: marry or choose not to marry. This doesn’t subtract from them in any particular way.

KIRPAL: That’s true. But if that were the only thing, that it is not going to affect heterosexual couples, then how will change come about in heterosexual society? To say that a nonheterosexual marriage will be completely independent is not going to make any difference then.

It will, however, I think, make a difference because—once you have to create a new architecture to deal with a wholly new problem. We’ve not had to have legislation in the past to deal with the idea of the queer community. Then a wholesale relook at the idea and the concept of marriage for a particular group—i.e., the nonheterosexual group—offers an opportunity for Parliament to step in and apply its mind and use that opportunity and occasion to reimagine what a heterosexual relationship can also look like.

RAJAGOPALAN: No, I completely agree with you. I was talking more in terms of social acceptance. I don’t see big protests and huge backlash.

Of course, there are small interest groups who are always going to make some noise. Broadly, the people of India I don’t think are going to try and fight and deny other people very essential rights and access to very essential services. That doesn’t seem to be what the question is right now. I know there will be religious boards, and there will be a class of clergy across all religions who suddenly come out of the weeds to discuss this, but you’re absolutely right. I think the reimagination is the big question.

KIRPAL: I think I share your hope and optimism that that will happen, because I just remember 2018 and Navtej Johar. And you have a very literate audience, but for a vast majority of the people on the street who I’ve spoken to, they seem to believe that after Navtej, you had the right to get married. The people are often surprised when you talk about—that we are fighting marriage equality case, because they think that right already exists, and they are OK with that right!

The only people who have objection with the idea of marriage equality are the urban elites.

RAJAGOPALAN: And the government bureaucrats who have to give you the stamped paper.

KIRPAL: The point is that the urban elite argument that is employed against marriage equality is something I turn around and say that the only people who have objection to marriage equality are a certain class of urban elites. Vast swathes of India is absolutely OK with it. They think we have it already.

For any Indian parent, more than anything else, their desire is their child should get married—mere bachche ki shaadi ho jaye. That is the be-all and end-all, along with getting a government job, maybe, or getting a good job somewhere.

RAJAGOPALAN: And children.

KIRPAL: And children, correct.

Now, if adoption is permitted, marriage equality is permitted, it will just revolutionize how people see queer people and how families see, because there will then be an opportunity for a belief that the child will have a full life. One part of a parent telling the child to get a job and get married is because, “Who will have children for me and who will take care of me in my old age and take care of ancestors? How will you get purified?” Another thing is worry for the child. I think I also see that. Parents are worried: “What will happen to my kid if they don’t get married, don’t have a family?”

If they can see that no, there is a possibility of that, I think families will be more accepting. The moment a family accepts a child of their own, society follows. I found that personally in my case, and I’ve seen that in many other cases: The moment your immediate family and even your extended family accepts you and calls you their own, there is really no room for anyone else, and people don’t generally comment on it. I think that’s how Indian society works.

RAJAGOPALAN: The one very interesting thing you pointed out right now is, in India, most marriages are not registered, right? We don’t have that requirement. It’s presumed to be a valid marriage. That’s the presumption, unlike many other countries. In India, I feel there’s also this conflation of the law, that if it’s not explicitly outlawed . . .

It’s not like we went to an office and got our marriage registered. We just got married, with the acceptance of the family. Presumably that’s true for nonheterosexual couples also. I kind of understand. I don’t think they’re being simplistic. I totally understand where that is coming from. It’s because that has been the reality of their life.

It’s only the urban elite who have very high level of legibility when it comes to the state and passports and OCI cards and a fair amount of wealth, which then needs to be resolved in a particular way. That’s simply not true for most people in India, both from a property point of view and from a registration-of-marriage point of view. It’s quite interesting that that’s where this is coming from, for me. Even that is a very interesting divide and makes me quite optimistic for the prospects of the queer community.

KIRPAL: That’s absolutely right. I mentioned this earlier example about the Tamil Nadu Amendment, and it’s common across India for couples to just go and not even perform the legally recognized Saptapadi. Under the Hindu Marriage Act, you have to go to the sacred fire, make those seven steps in the presence of the sacred fire. People may not have done that, so that, technically, they may not even be married under the Hindu Marriage Act. But if society accepts you as married, then that’s that.

RAJAGOPALAN: Good enough.

KIRPAL: What else is marriage, if not primarily a social/religious institution? If it’s accepted by society and it is capable of functioning beyond religion in a secular space, then this marriage already exists.

There are so many examples of people in the last 50, 100 years who go to temples—same-sex couples—and get married. It’s very common. It’s accepted. They’re not lynched. It’s more likely to get lynched if you have opposite religions.

RAJAGOPALAN: Different caste. Yes.

KIRPAL: The endogamous, the within-gotra or if you are of a different religion—you are more likely to be beaten up then, as a heterosexual couple.

Equality and Economic Cases

RAJAGOPALAN: I want to now switch gears to your other book. This is “Fifteen Judgments,” which had this big impact on the Indian economy. First of all, I was thrilled to read it as an economist. I’m a little exhausted by the same old, same old—one more paper and book on Kesavananda [Bharati] or something like that. There’s a whole new jurisprudence that we need to look at, especially in post-liberalization India.

I’ll start with the first case that you have in the book, which is Kameshwar Singh and the question of property. The way Kameshwar Singh was set up, oddly enough, it wasn’t a property challenge as much as it was an Article 14 challenge. So I feel like we are back to the same theme as your other book and marriage equality: Different classes of landlords and zamindars cannot be treated differently.

You’ve talked about the consequence of that, both in terms of creation of the ninth schedule and in terms of all the 13, 14 different amendments to Article 31 to 31(a), (b), (c), that bouquet put together. You’ve talked about what we get is more and more state infringement into everything.

Now it’s not about land reform anymore. Now this is about how much foreign exchange you can have in your pocket and whether you can be thrown into jail for it. At one point in the ninth schedule, all the Emergency laws were included. They were, of course, removed. There were only three laws which were ever removed from that provision: These were the censorship laws, the representation of people, Election Act—all the things Indira Gandhi tossed in.

You work that out quite clearly. But to me, in that case and the many other cases that you discuss in that book, it seems like the courts don’t have a very clear understanding of what is the role of the state in an economy. That’s part one. Following from that is, they don’t have a good understanding of what is the role of the state in a transition economy.

What is happening in India is literally on a case-by-case basis. Depending on the judge, depending on the lawyer, depending on how privileged the petitioners or the respondents are, you’re getting a particular kind of jurisprudence. In standard property rights and expropriation cases, what we ask is—is there a public interest or public use case, which completely relies on our understanding of what is the role of the state? If the role of the state is night watchman and it’s only to provide roads and things like that, then Kameshwar Singh is out. If the role of the state is to bring about more egalitarian society and do social reform, then Kameshwar Singh could potentially be in, notwithstanding the Article 14 problem. A lot of the other property cases would not be in if it’s just about social reform.

We have expropriation cases in India where the question is, OK, now we’ve expropriated for the housing society of HMT [Hindustan Machine Tools Ltd.]. Now HMT is a government-owned company. Where is the line drawn for? What is the role of the state in a socialist economy, and then a transition economy and a post-liberalization economy?

To me, that seems to be what comes out of the 15 judgments. Is that the way you think about this question, that we just simply have no clue what we want to do with the state?

Property Rights

KIRPAL: The provision of the Constitution which dealt with property rights had provided an anchor, I think, to a potentially nonsocialist economic ideology. It could have done that, and that’s why they had been inserted.

The moment that anchor was removed by the First Amendment, there was this ideological drift, because there’s really nothing in the Constitution at that point of time to explain as to what is it that the constitutional philosophy qua property is. Every time you have a recognition of the right to property, an amendment happens, and that particular aspect of the right to property is removed.

It seems that the Constitution becomes less one that values property and elevates the role of the state increasingly. That happens through a process of constitutional amendments, and that filters down to the judges’ understanding of how the Constitution is, because simultaneously—I can’t say that the judges are absolutely deciding whatever they want to decide and yet say that they should not be bound to the Constitution. Of course they should be.

It’s inevitable that when you remove the property articles and you amend the right to business 19(1)(g) and take away and permit government monopolies, which also happened by the amendments to the Constitution, you are giving a certain of kind of a statement as to the kind of economy you envisage, which is one that does not value private property. The moment you send that message out—and then you have directive principles in your Constitution, Article 39, which says that the property must be used for the common good—it then lends itself to the enhancement of the role of the state in a paternalistic sense, as we were talking about earlier, of course, in a different context.

The court sees itself as a participant in the promise of that constitutional vision of egalitarianism and equality: as an enabler, somehow, because now the constitutional view of the courts has shifted from it being something that protects private property to the removal of inequality. From the sense of protection of the individual and fundamental rights inhere in an individual—that, somehow, in the fundamental rights chapter qua property is completely gone. And rather than the individual being at the center of the constitutional values and part 3, it’s now suddenly the state which trumps it.

That filters in judicial thinking, including even now. You talked of the right to property and acquisition, HMT. Even after the enactment of the—2014, the . . .

RAJAGOPALAN: LARR—Land Acquisition . . . something, something.

KIRPAL: That long act that you will no doubt put in the link to. There was a judgment of Pune Municipal Corporation which interpreted the act in a particular manner, saying that mere deposit of money in the account would not be enough. Second, you had that “or” being read as “and.” Then you get a constitution bench judgment that overrules the Pune Municipal judgment. That judgment also has a certain socialistic mindset, and not quite socialistic, because really I think it is more a case of valuing the state over the individual, because land is often acquired not for the state—

RAJAGOPALAN: For private companies, actually.

KIRPAL: Yes, it’s taken for private companies, and that’s done to the agency of the state. It is believed that the state is a Big Brother, and you have your private property only at the discretion of the state. And that has a certain view on the transactional nature between a citizen and the state.

That’s another problem I have felt with the First Amendment and the series of amendments thereafter, is our disdain for the idea of private rights. And not just property rights, but even free speech. We are not a society today that values our fundamental rights. Every time you mention fundamental rights, someone will stand up and say “fundamental duties, directive principles,” not realizing that’s not the Constitution.

RAJAGOPALAN: They’re not the same thing. They’re actually in conflict.

KIRPAL: They’re not the same thing. When you read the preamble, the idea is that you will have the unity and integrity of the country through the development of the fraternal society by protection of justice, liberty and freedom of the individual. (I’m just saying the preamble in the reverse.)

That’s how it is: the idea that the individual rights will ensure that the state is secure. But this has been placed on its head in the popular imagination, in the legal imagination and increasingly in the judicial imagination as well. That fundamental rights are almost—

RAJAGOPALAN: They’re endowed by the state; they’re not inherent in the individual. That’s basically it.

KIRPAL: Even though the law is to the contrary: The judgments say that that is not the position of fundamental rights and that they are inherent in people and it’s not that the state has granted them. But when it comes to actual decision-making , that’s how it is viewed: “Here, take something,” or “No, you will not get something.”

Role of the State

RAJAGOPALAN: Here I want to push back. Actually, it’s not really a pushback but maybe an addition.

I completely agree with you that the imagination has been one where the rights of the individual have not gotten the sanctity that the original Constitution had imagined. This is most clear in property and all other economic laws, including freedom of trade and profession and how we’ve outlawed certain professions and allowed monopolies and so on and so forth. That’s one part of it.

To go back to the judges, I feel like the other jurisprudence that developed in India is one of legislative deference and executive deference. If you look at all the property, especially the constitution bench cases, it comes down to oftentimes amending the Constitution.

When it comes to “Was the state allowed to take property in this instance?” and the question of “Was is it right to do so, and did it satisfy public purpose or public interest?” the judges have always read that since 1950 as, “Public purpose and public interest is whatever the legislature says it is.” What we get is statement of objects and reasons which will explicitly say, “This is the public purpose.” Then the judges will say, “OK, that’s fair. That’s public purpose.” Now we are going to get into the nitty-gritty, which is why our jurisprudence developed around equal protection—or the lack thereof—or around compensation or the lack thereof.

The courts have never really examined what is the role of the state, and therefore what is the limit beyond which the state cannot exceed. This obviously has implications both for economic and personal law. It permeates everything. I would just add that to what you said, because that’s where I think it has come to bear when it comes very specifically to the question of property.

KIRPAL: I think that’s correct. That relates back to what I said: that there is no ideological or constitutional mooring for this right.

When you say public purpose, obviously public purpose is what—who is the best judge of the public purpose? The legislature or the executive. It’s not going to be the court. And public purpose can be trumped by a fundamental right always. If that fundamental right ceases to exist, then obviously public purpose will take over.

So it’s not surprising that this has happened. Public purpose is an exception to the Article 19 rights in 19(2) to 19(6). First you have a justification or a violation of a right. Then you can rely on public interest. Not public purpose, but public interest.

RAJAGOPALAN: Public interest, yes.

KIRPAL: In the case of property rights, there is no such equivalent. So there public interest mutates into a public purpose thing. You’re right to say “public purpose.” Public interest becomes public purpose, and public purpose is then just a completely unruly horse, and the government can fit anything on it.

There is no real way for the court, jurisprudentially or constitutionally, to say that “Well, this is not a valid public purpose.” The doctrine of eminent domain that evolved in the U.S. has not really quite been applied in India either. And that, as I said, is because of the First Amendment and our mindset and our current state of the Constitution. We need the right to property.

RAJAGOPALAN: Is it also because our courts, just the way they’ve evolved (especially post-Emergency), have been largely about expanding the basket of positive rights and entitlements, and they haven’t been so vigilant about guarding negative rights?

That’s another trend I see. It bothers me a lot, but it’s part of getting along and chugging along in this crazy pluralistic society, right? It’s a messy one. You don’t want to touch it; you don’t want to take away positive rights and entitlements because that’s the only way to read the Constitution. But, on the other hand, that’s the bias that I inherently see in the courts. Negative rights are almost—oh, they don’t really matter because we’re not really about taming the state or being an anti-majoritarian court. That’s simply not us culturally.

KIRPAL: I think the idea is of the benevolent elder. We grew up in Indian families where the senior person is always right. We always listen to what they say, and they can do no wrong. That is something that has entered probably the judicial mindset as well: the idea of the benevolent state, and rather than the state being the aggressor, it is always the protector.

Now, if the state is a protector, then you don’t need a negative right because they’re not unlikely to do something. It goes back to, you said post-Emergency, but see the judgment of the Emergency in ADM Jabalpur when the judge says, “I have a diamond-sharp hope that rights will never be violated”—an idea at a time when fundamental rights themselves are suspended. The judges still find it within their heart to say, or are able to say, that they don’t think that ever the state will take a decision which is contrary to fundamental rights, when there is evidence upon evidence that habeas corpus cases are coming to the court.

They look away from that because the idea is of the benevolent state, and the idea of the Constitution also delineating powers and responsibilities between different organs of the state, including also not just between the organs of the state but between the individual and the citizen. What is the role of the courts in deciding a dispute between the individual and the citizen?

A constitution doesn’t simply decide checks and balances of powers between the three organs of the state. It also reimagines what it means to be an individual in that state. A very delicate balance was given in our Constitution, in part 3, when fundamental rights are seen as the most important things anywhere in the Constitution. Laws can be struck down if they violate fundamental rights. One person’s right is enough to strike a whole law down enacted by a unanimous parliament. That was the original conception.

But, with the passage of time and the amendments to the Constitution, this system has been reimagined. That is why positive rights have come into play, because the state is now enabling—and not just the state. Unfortunately, increasingly the court sees itself as in loco parentis and says that we can now step in, and now we will protect your fundamental rights in a positive way that the legislature doesn’t.

Who do you go to when the court oversteps the boundary? When the legislature oversteps the boundaries, you can go to court and say, “Well, they’ve overstepped their boundaries.” What do you do when the court does that? There is absolutely no recourse.

There is a big problem in imagining all rights as positivistic—or positive. (Not positivistic: positivistic they are.) But positive, in a positive sense. Who is the arbiter about what is the extent of that positive right is a big problem, and increasingly one that the courts are wading into without considering the consequences of what they’re doing.

Court as Populist Institution

RAJAGOPALAN: Anuj Bhuwania has written about how, post-Emergency, the court basically refashioned itself as a populist institution as opposed to a counter-majoritarian institution. Some of it has to do with how they suffered during the Emergency, and they didn’t have the public support and they had to refashion. Part of being populist is you need to hand out welfare entitlements, and you need to expand positive rights. That’s just part of the populist manual. The consequence of that is, then you can’t in good conscience and with good consistency also be a check upon majoritarian forces and the legislature and the executive.

To me, that’s another trend. This, to me, comes to bear not just when it comes to demonetization or Aadhaar or any of the latest cases that—also all the cases which are in the book—but also when it comes to marriage equality and Johar and Koushal. When I was watching the video transcription of what happened in court, it was so clear that the questions that the judges were asking all of you was about, how do we make this operational? How do we balance the interest of this community? How do we balance the interest of that community?

If you’re a populist court, that’s your concern. But if you’re an anti-majoritarian court, your concern is, is this 14? Is this 15? Is this 19? Is this 21? This is what I see happening, and it’s somehow permeated all financial law but also all personal law. Am I being too uncharitable [laughs], or is this really how the court functions?

KIRPAL: No, I think you’re not being uncharitable. That is the reality of adjudication.

Maybe I don’t blame the judges because they have to carry other burdens that you may not be aware of in the court. But the fact of the matter is, if you go strictly by what the law and the Constitution demands of them, these questions are irrelevant. And they’ll pay lip service to that idea as well: “We are not concerned about what it is; we are just, however, asking.” But you don’t ask a question just in the air. Presumably it’s weighing on you somewhere.

You will find judgments, even when they come, that ultimately this is all about fundamental rights. And I have no doubt that, when it comes to the marriage equality judgment, you’ll see the same thing. They’ll not talk about what the majority thinks, but if it’s playing on their mind, it is playing on their mind. Sometimes they make it explicit in the judgment. More often than not, they do not. They do often make it explicit in arguments in court, but not always. It is in their mind, of course.

It is a function of them being not only populist but also seeing their role, as I said: the benefactors. It is no longer just a system of checks and balances where the court decides disputes between different organs of the state and between the individual and the state, but also sees itself as a participant in the entire decision-making logistical solutions of social problems.

The moment you become a participant in that, then obviously concerns will inevitably—like a spider’s web (the Fuller article). They will then come in, and then they have to be dealt with. The moment you see marriage equality as an Article 21 as opposed to an Article 15/14 problem, then maybe some of those concerns are valid of the court. But if it is framed (the debate) in a negative sense, as you said, in terms of 14 and 15, then these questions are not really relevant.

We now have what is called an integrated proportionality test in some judgments, that when there’s a violation of 14, 19, 21, they’re all put in a blender, and out comes a—

RAJAGOPALAN: Then we wave our hands a little bit, and then something comes out. [laughs]

KIRPAL: Maybe that’s at least judges being honest that that is what they’re doing. Maybe that’s OK. I may not love that as a strict student of constitutional law, but at least that has a merit of honesty. Rather than applying the traditional Article 14 test and coming out with something completely different, and you doing what you want to, you are at least bringing to the forefront what you are really thinking.

That may not be a bad thing. But of course I don’t think that’s the role of the court. I think the court has overstepped its boundaries and therefore has not been true to the needs of the people and the needs and demands of the Constitution in terms of its role and also has rendered itself vulnerable to attack both by the public at large and government.

Now, if you’re going to take decisions which are beyond your area of expertise and jurisdiction, then obviously you’re going to face scrutiny by a jealous legislature saying that “this is ours.” It’s not envy; it’s actually jealousy.

Problems with the Supreme Court of India

RAJAGOPALAN: I think that’s fair, but I think it’s gone beyond just taking over the domain of the legislature and oftentimes the executive—or actually the executive almost on a daily basis; the legislature in cases like Vishaka and other more explicit instances.

I think—how much of the problem do you think comes from the fact that (1) it has become a self-appointing institution and (2) in more recent cases, the rules of transparency are for other institutions and not for itself? Whether it is the black box of collegium or whether it is sealed envelopes and things like that. Vishaka applies to the entire country, but the only institution Vishaka does not apply to is the Supreme Court of India and the chief justice of India.

How much of this loss of legitimacy is entering the domain of other branches of government versus actually being quite inconsistent and very, very self-serving as a group? That’s what’s made it even more vulnerable. To me, the latter seems to be more heavy because the former’s been going on for a long time.

KIRPAL: I think the legitimacy that the court enjoys is a moral legitimacy that comes from doing the right things, the correct things. The court has sometimes been remiss in that. For instance, the case of Vishaka not applying to the Supreme Court is just, to me, frankly inexplicable. It is just absolutely inexplicable.

There is a woman who is complaining of sexual harassment: good, bad, indifferent, that needs to be investigated thoroughly in a manner which is impartial, unbiased and in the same way as it is by any other institution. The focus is not who has committed the wrong; it is a question of who the wrong has been committed against.

RAJAGOPALAN: Yes, and the rules that they themselves wrote.

KIRPAL: Absolutely: that they themselves wrote.

Also, this reminds me of Justice Singhvi’s judgment on the red lights in the car. He said that you cannot use red lights on cars if you’re VIPs, but for official purposes you are allowed to use those red lights, and judges need them for official purposes. I never quite understood why the judge needs the red light any more, any less than another important functionary of the state—but that is often the judicial thinking.

On the collegium, of course, I have a different view. I don’t think it’s any more a black box than whatever else it replaced. The problem of the collegium is not a lack of transparency. The system before the collegium was even less transparent than this.

A lot of the judgments which are populist, as you mentioned, were given by judges who were appointed in the pre-collegium system. Justice Krishna Iyer, Justice Bhagwati: These are judges who have been appointed in the earlier system and have been responsible for giving us the jurisprudence we have today. ADM Jabalpur judges were not collegium appointees. So I don’t think the problem, then, is a collegium.

I think the court needs to understand that their legitimacy comes from popular acceptance. Popular acceptance is not the same as acceptance by the state. The state and its people are two different creatures. That is something—again, as I said, we need a reimagination of the interlinkages and the relationship between the individual and the state and the role of the court in protecting the individual.

I think if the court was to come down and protect the smallest person against government and was to strike down government action more often, it would gain more legitimacy in the eyes of the people and not less.

The Dual System

RAJAGOPALAN: I agree with that.

The other theme that I see coming out of the financial judgments book—and this is, again, in a post-socialism setting. A lot of the cases, other than Kameshwar Singh, R.C. Cooper and so on, many of the cases that you discussed are post-1991. You talk about the importance of rule of law and certainty and how the court needs to provide that. That is an essential aspect of conducting business. If I were to take an even more first-principles approach, then the most important institutions supporting the market are ones that support exchange and therefore contract and adjudication of contract.

How much of the problems are coming from the court’s jurisprudence in a failure to understand this, versus how much of it is just they’re not doing their job? We are extremely understaffed. We have massive judicial pendency. The rich people go immediately into arbitration, and the poor people wait endlessly or have contracts under the shadow of the law. We’ve created the dual system. The formal arbitration system—or bypassing through tribunal straight to the Supreme Court or high court—for the privileged, and everyone else is in the informal sector, which is, of course, in the shadow of the law.

This is the dual system we’ve created, and that is the largest macroeconomic consequence of what we’re talking about. To me, that’s the other thing that comes out of everything that you’re saying post-liberalization. Pre-liberalization, the state is overwhelming. The cases are really about the state. Now we’re in a completely different realm.

To me that seems to be the problem. How do you view this? I’m not asking a question about individual judgments, but there’s a question more about the institution and how we think about the role of the institution.

KIRPAL: I think the problem, of course, is less about the actual final decisions that are taken. Of course, there is problematic instances of those as well, and I’ve discussed some of that in the book. But the bigger problem on a day-to-day basis—and there’s research done that the GDP of this country has contracted because of delays in judicial decisions. There is virtually no sanctity of contract, because if someone breaches a contract, there’s precious little you can do about it.

You can’t go back to court and say, “Look, so-and-so breached the contract,” and get compensation. You need to get that interim order that you can get of some kind of a stay and an injunction. But if you go about asking for damages, sorry, bad luck, because that decision will come 20, 30 years. That puts a premium on breaking a contract and then negotiating.

To stop that happening, the rich and privileged will go to arbitration, and the rest of the country will go into some shadow mechanism. Even arbitrations are not exactly solving everything, because once you get an arbitral award, again, the matter will go first in Section 34, then in the appeal, then the Supreme Court, challenged at various levels. At some level or the other, the award is set aside. Some of those awards need to be set aside.

I think the deference that we give to arbitral awards in India should not be just automatic. Across the world, arbitration awards have a certain sanctity because you have a certain quality of arbitrators. That is not always the case in India. You don’t always have the highest quality of judges making a decision on arbitrations. You often have technical personnel, or you have very questionable people who make those decisions.

This immunity from arbitral awards is difficult, and that’s why courts often don’t give them that immunity and then interfere. Of course, while the contract—you get some kind of a decree, ultimately it’s challenged all the way up. Again, that’s bogged down in the judicial system.

The delay in the delivery justice system, I think, is one of the biggest problems for our economy, and it skews how businesses function. You try to be risk averse and you introduce all kinds of clauses in a contract, each of which has a transaction cost. It is not a purely commercial transaction anymore, with costs and benefits flowing for business purposes, but there are legal externalities and legal costs, etc., that then come and distort the market. Which in any case, of course, is distorted—and we have a very poor regulatory regime. That is a different topic altogether. But theoretically the courts could step in and do some part of that regulation, but that’s also completely nonexistent.

I don’t blame the judges for this. I do, however, blame virtually everybody in it. Judges must constantly highlight this fact. I believe they do. For that, they need to have chief justices’ conferences more regularly where they should bring this up. They don’t have that often enough.

The executive needs to step in and sanction more money. Parliament needs to simplify the Code of Civil Procedure. It’s a 1976 code, amended in 2003. India of 2023 does not need a law 50 years old, a procedural code 50 years old—

RAJAGOPALAN: Our Evidence Act, which is a mess for many of the things we’re talking about.

KIRPAL: Absolutely. Instead, what they’re doing is amending the Criminal Procedure Code, which worries me, because Criminal Procedure Code still embodies some of the rights for an accused. That’s not immediately the concern. I think that’s not the only concern.

You need to expedite matters. You need to appoint judges and need to simplify procedures, and neither of those two things are happening.

RAJAGOPALAN: Is that not happening because we’re in this kind of institutional stalemate, or is it just not in the interest of judges to do all this everyday, boring, mundane work?

We want exciting cases. All the judges I see, they want to do the things that actually don’t really belong in there. We want to talk about the environment. We want to talk about clearing beggars off of Tilak Marg. These are the things which are before the court twice a week. We have days dedicated to this kind of legislating and governing from the bench.

Which of the two is it, really? Because I think a lot of things could be done were they not busy doing all other useless things.

KIRPAL: I think that it’s not that. If they felt they had the power to appoint more judges, they would have gone ahead and done that. But it’s constitutional doctrine that, at least in the higher judiciary, you can’t issue a mandamus to increase judge strength or indeed appoint certain people other than the collegiate system. That power does not belong to the judges.

Equally, of course, they could direct more appointment of judges in the trial courts, but if you do appoint judges in the trial courts, where will they sit? You can have 1,000 district court judges who will be appointed, but if you have that one building with five rooms, you’re not going to have tents outside the building.

You cannot have a solution to this problem by the judges alone. This needs to be a coordinated effort between all three: the Parliament, as I said, for the procedure. The executive—

RAJAGOPALAN: Then the budget.

KIRPAL: And the budget! The budget for it. The money has to come from there, because while personnel is the—kind of a back-end operation that the courts can do in terms of creation of the judicial infrastructure, in terms of the physical infrastructure, that has to come from the executive and the legislature.

I think in this, all parties are failing the Indian public, really. And that’s something that needs to change.

Consent, Contract and Choice

RAJAGOPALAN: It’s a lack of state capacity-building, and it’s not on anyone’s interest or radar to build state capacity.

The final arc that I see—and please tell me if I’m reading too much in trying to pull the two books together. I feel like the overarching theme in both is that India is now at a point, either because of the queer community’s rights to be rooted in the individual or in a post-liberalization society, that we need to move to a system of individual rights, property, consent, contract and choice. That, to me, is the overarching theme that’s coming from both books, if there’s a normative case to be made.

Am I just, once again, reading too much of what I believe into all the cases that you’ve pulled together, or is this where you are headed?

KIRPAL: Absolutely. I want to put the state into the closet. We’ve all been there long enough.

I think it’s time that they know their boundaries and the courts enforce those boundaries. In constitutionalism, there is a belief that a constitution is not just about boundaries. It’s about creating those institutions as well. That’s true, but it’s also about those boundaries. I think the state has just been making creeping acquisitions, to use some terminology of the securities world.

The courts have been willing participants in that (a) by failing to tell them when they are wrongfully creeping into the domain of individual rights, but also being themselves agents enabling that by their judgments and putting those extra regulations—for instance, the environment matters that come. It’s important that, in the single-window clearance regime idea that we have, we also have courts as a single-window regime, which only decide whether someone is right or wrong, exceeds or does not exceed.

For that, I think that needs to happen and the state needs to go back to its original position and do what the Constitution intended it to do: govern, but be limited by the fundamental rights. You can have the vision of the directive principles of state policy—those are good ideals—but you cannot sacrifice the individual at the altar of the greater public good. That is not allowed by a Kantian ideology, and that is not allowed by our constitutional philosophy either. Because you can’t start sacrificing people and then hope to have a happy society for the minorities or a progressive economic institution as well.

I think the links that you are drawing are obviously links that I personally believe in. Ultimately, I’m the one who’s the sutradhar [facilitator] of the two books. That is my judicial philosophy, and my political philosophy is the limited role of the state.

I think both the state being only a negative or the court being only a negative institution, I think that’s difficult to bring back. They will obviously do. But still, I think there is scope for restraining the overreach of the government, and the courts have to be a lot more willing to step in and stop excess. That will only happen when they stop seeing themselves as participants in this greater cause of nation-building. That’s not the job of the courts.

RAJAGOPALAN: I think you’ve put it wonderfully.

Thank you so much for doing this. This was such a pleasure, and I’m looking forward to your next book. I have all my fingers and toes crossed for what is the outcome of the marriage equality case. Thank you.

KIRPAL: No, thank you for having me, Shruti.

Really, ultimately, a lot of these conversations, it’s not as though I just give gyaan and leave. I go back and reflect on what I have said, what you have asked me. It’s not as though one’s thoughts are ever completely ossified. I know my views have changed on a lot of things, maybe because they were not fully baked by the time I spouted them. I don’t think so—but people change, ideas change, and information inputs like this also help me in recalibrating, if not revising, my position.

RAJAGOPALAN: No, I’m happy to hear that, and I’m happy to be part of this journey and have you back every time you work on a new book.

KIRPAL: Thanks, Shruti.