Sex and the Supreme Court, edited by Saurabh Kirpal is an anthology of essays by legal luminaries that sheds light upon the ways the Supreme Court of India has been upholding the dignity of the Indian Citizen. The underpinning of the book is the decriminalization of Section 377, and it explores various judgments and movements which has championed the rights of the individual. Here’s an exclusive interview with Saurabh Kirpal about the making of the book and the next steps for the Indian judiciary to pave way for the LGBTQ community.
What was the driving factor to edit and contribute an essay in the book?
A healthy democracy needs above all an informed citizenry. In the Indian context, given the
enormous clout enjoyed by the Supreme Court, it is important to have an understating of the
judgments that shape our daily lives. I felt, however, that there was a lacuna in this regard.
There are not many books that are available in the market which explain the decisions of the Court in a simple and accessible manner. Even fewer books have been written by legal experts explaining these
concepts. I suppose we lawyers know how to complicate rather than simplify! So, it was really with
the intention of getting together a book, accessible to the general public, written by the top legal
experts in the Country that I started editing the anthology.
There was another motivation behind the book. The theme of the book has been reflected in its title
‘how the law is upholding the dignity of the Indian Citizen.’ I felt it would be necessary to examine the impact the judgments have actually had on the lives of people. Essays by legal experts would not fully explain the impact of the cases – personal narratives and stories would make it easier for the
reader to empathize with and understand the true significance of these judgments. That’s why I
asked non-lawyers to give their personal narratives.
“The attempt was to bring to the fore the practical effect these decisions of the Supreme Court had on the lives of people.”
Which is your favourite pick from the anthology?
This is a bit like asking a parent to choose his favourite child! A task made doubly difficult by the fact
that I have written three chapters in the book. Keeping my own chapters out of the fray, I would
have to say that I particularly liked Namita Bhandre’s chapter chronicling the rise (and failures) of
India’s MeToo movement. This was one instance where the intervention of the Supreme Court in the
vishakha judgment, resulting in the enactment of the Sexual Harassment of Women at the
Workplace Act, 2013, was not a complete success.
While there are robust laws in place seeking to prevent sexual harassment, their implementation has been tardy at best. This chapter shows that social changes are not accomplished by laws alone, but require a change in the mindset of the people enforcing those laws. There is a need to radically overhaul the legal system to give speedy redressal to women who suffer sexual harassment.
What are your views on the next step of legalising gay marriages, rights to adoption, and accepting them as partners in all practical ways?
I fully believe in the right of Queer people to get married and adopt children. The right to marry is a
corollary of accepting homosexual partners. There is no point in saying that one can choose to have
a same-sex partner, but one cannot marry that person – that is an incomplete freedom. If straight
people can have the protection of the law, there is no reason why the same right cannot be
extended to the queer community as well.
Marriage, especially in the Indian context, is an extremely important social institution that lends
Stability for a couple as well as offers security to the partners within the marriage. This is especially
imperative for LGBTQ couples as their union is seen as somehow less legitimate. Failure to recognize
same-sex marriage makes the union even more illegitimate.
There is also the practical impact that refusal to permit marriage has – insurance, health, and
inheritance benefits and a whole gamut of rights available to straight sex couples are denied to
LGBTQ couples. This is completely discriminatory and unacceptable.
What was your reaction to the book being longlisted for Bangalore Literature Festival?
I suppose it was a mixture of surprise followed by gratitude. When I set out to edit the book, my
only intention was to demystify the legal process. I did not expect critical acclaim. So I was genuinely
surprised when the book was longlisted, particularly because it was in the company of some other
amazing books that have been included in the longlist. For the same reason, I was grateful to have
being nominated as well.
More than anything else, I hope this will make more people reach out and try to make themselves acquainted with legal writing. If I manage to sell more copies of the book, that would be a happy by-product of my desire to have a more informed citizenry.
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Your 3 favourite reads in the LGBTQ literature?
The first book that I ever read with an LGBT theme was ‘Maurice’ by EM Forster. As a young teen
coming to grips with his sexuality, I felt that the book spoke to me and made me feel less lonely.
Another book I would recommend to everyone is ‘same-sex love in India’ edited by Ruth Vanita and
Saleem Kidwai. It is a valuable resource that traces the history of same-sex love across two millennia
of Indian writing and clearly establishes that homosexuality was not some degenerate colonial
import, but was part of the Indian ethos. In fact, its criminalization was a despicable colonial
import.
Finally, a beautifully written book is ‘A line of beauty’ by Allan Hollinghurst which won the Booker
prize in 2004. Set in 1980s Britain, it deals with the potential hedonism of gay life, with the looming
shadow of AIDS in the background. Even though the book was quite long, I was unable to put it
down and remember reading it in a few days (no doubt at the expense of some work).
Sex and The Supreme Court by Saurabh Kirpal deals with the concept of sex as a manifestation of different forms – sexuality, gender, and of course sex. Kirpal has attempted to portray a unity of these concepts with a view to drawing the readers’ thoughts to the problems facing various disenfranchised groups. The general theme of the book pits the idea of individual autonomy against various competing demands, including the community and religious beliefs.
There is a need to transcend individual differences and for all oppressed and marginalized groups to
group together to change the system so that serves all the people of the country. In doing so, we
need allies, not enemies; compassion, and not revulsion. The promise of equality, liberty, and
fraternity held out by the Constitution will only be achieved when we can convince the majority that
helping the disadvantaged will make India a better place for everyone.
