Senior advocate Saurabh Kirpal, a member of the LGBTQ+ community who argued petitions seeking legal sanction for same-sex marriage (marriage equality), told Moneycontrol that he had never imagined he would argue such a case when he started his law career.
"I had never thought that I would ever come to a stage where I would one day argue a case on marriage equality and five judges of the Supreme Court would patiently hear my arguments," he said.
In April 2023, a five-judge bench of the Supreme Court reserved a bunch of petitions seeking marriage equality or recognition of same-sex marriage for judgment after hearing close to 40 lawyers for over 10 days. The court is expected to deliver judgment in the case by October 20, as Justice SR Bhatt, one of the judges who heard the case, is set to retire by then.
Kirpal remarked that the very fact that the country has reached a stage where he could argue such a case and get an audience shows how much India has changed. He said, "It has changed partly because of the Navtej Johar judgment (which decriminalised homosexuality); it has changed because of the work of the activists who have been working tirelessly for 20 years."
The senior advocate noted that his experience arguing the case was very emotional since he felt strongly about the cause. Kirpal said, "Because of how I felt about the case, I chose not to be the main lead counsel, but I was glad to be a part of the matter. I had sleepless nights for about three weeks when the matter was being argued."
Kirpal noted that the pressure of arguing this case took a personal toll on him because the case was being dealt with at a very intellectual level at the Supreme Court. Kirpal and other queer lawyers arguing the case, such as Menaka Guruswamy and Arundhati Katju, chose to be present in court when the government was arguing, as a result of which they attended the entire hearing. He said, "We have years of judicial training, which does enable us to distance ourselves from the cause and the case. But it was more difficult than any other case I have handled so far."
At the SC, lawyers arguing for legal recognition of same-sex marriage urged the court to reinterpret the provision of the Special Marriage Act 1954 to mean marriage between 'persons' as opposed to marriage between a man and a woman. The government contended that legalising same-sex marriages is not in the court’s domain and that it is for parliament to legislate on it after consulting with the states.
Also read: Makes sense to carry on with judgeship offer as long as inequalities exist, says Saurabh Kirpal
‘Don’t mind being called an activist lawyer’
Kirpal noted that he does not mind being stereotyped as an activist lawyer, as it allows people to know that there is an openly gay lawyer working. He said, "My main job is that of a commercial lawyer. My activism is a very small percentage of what I do, yet it gets a disproportionate amount of attention, partly because there is so little activism happening."
According to Kirpal, he has been labelled an activist lawyer because he is present wherever LGBTQ+ activism takes place. He said, "People automatically assume that this is what I do. I don’t mind the stereotyping or labelling; I welcome it. It allows people to know that there is an openly gay lawyer working."
Kirpal noted that the commercial cases that he argues regularly in the courts are of little consideration to law students and people at large. He said, "They just see a senior counsel who is passionate about this cause and is well regarded. It gives support, courage, and hope to the next generation of lawyers."
The senior counsel remarked that the law firms and the lawyers who brief him on commercial cases are aware of what the truth is, and hence he does not have a problem being labelled an activist lawyer.
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