Growing up in a family of lawyers in Delhi, it wasn’t surprising that Saurabh Kirpal would choose a career in law. But it was only when he started living as an openly gay man with his partner in India that he experienced—what he describes in a video interview with Lounge—as “an eye-opening moment”.
Suddenly the full brunt of inequality—the humiliating reality of living in one’s own country as a lesser citizen, in a perpetual state of discrimination—dawned on him. It is this bitter truth that led Kirpal to become one of the key advocates for marriage equality and argue for its legal sanctions before the Supreme Court last year. Although the apex court ruled against the petitions, leaving it up to the lawmakers to reform the status quo, the fight for marriage equality remains alive.
In his new book Who is Equal? The Equality Code of the Constitution, Kirpal takes a hard look at the concept of equality as enshrined in the Constitution, and especially the often conflicting ways in which it has been interpreted by courts in India. Such confusions owe their origins to the Constitution itself, either to its linguistic ambiguity or to the inescapably elitist mindset of its creators. The chief architect of the document, B.R. Ambedkar, had anticipated such scenarios when he pre-emptively warned: “On 26 January 1950, we are going to enter into a life of contradictions.”
Taking us back to the first principles that went into crafting independent India’s founding charter, Kirpal’s book is written with rigour, clarity, and no legalese. Targeted at ordinary citizens, it functions as a glossary to the all-important Articles 12-35 of the Constitution, which define the fundamental rights accorded to all citizens of India. Students, scholars and practitioners of law will also benefit from Kirpal’s luminous, humane and persuasive arguments.
Having introduced the formal (the text of the law), substantive (the impact of the law) and procedural (the law in practice) approaches to equality, Kirpal moves into the thorny terrain of the rule of law. Concepts like generality of law and intelligible differentia (the justification for treating certain groups of people or situations differently), among others, come alive in examples drawn from a rich repository of judgments.
Kirpal mentions a case in 1949, cited by Constitution scholar Rohit De, in which an irate Parsi journalist challenged the Bombay Prohibition Act, 1949 as it criminalised Indians for drinking alcohol without a permit, which, ironically, was only issued to foreign nationals and military personnel visiting Bombay. While the Bombay high court accepted it as an act of discrimination, the Supreme Court took a different view. The doctrine of equality, the court ruled, didn’t mean “that a legislature could not create different classes of people—in this case military personnel and civilians.”
While such a verdict will now be dismissed as outside of the scope of intelligible differentia, Kirpal shows that different spheres of civilian life—be it education, employment, business, democracy or marriage—continue to be affected by whimsical judgements.
The Letter of the Law
If the Indian Constitution was a document ahead of its time, it also came with its share of glitches, Kirpal reminds us. The egregious under-representation of women in the original Constituent Assembly (15 women against 374 men), along with the dominance of upper-caste elites in the overall representation of the members, meant that the future of India was mostly decided by a privileged handful.
Given the intellectual calibre in the room, it is likely that members of the Constituent Assembly were aware of their relative privilege, Kirpal says, though they were also products of their time. “Fabian Socialism was a major influence on the making of the Constitution, but in the end, Ambedkar’s vision prevailed,” he adds. “His desire to change people’s lives for the better was the driving force behind the document.” As a result, the focus on substantive equality (a rights-based approach that focused on equality, equal opportunity and fair outcomes) led to forward-thinking provisions like quotas, long before the Mandal Commission gave affirmative action a boost in the 1980s.
However, the Constitution perpetuated certain draconian colonial rights, too, like that of preventive detention (Article 22) by the State. It was cautious in dealing with personal laws, leaving little room for active reform. And so, while property laws may have seen positive developments over the ages, the reality of marital rape, for instance, is still not accepted by the judiciary in the 21st century.
Such anomalies come through in Kirpal’s examination of landmark verdicts, informed by the subjective views of the judges who delivered them. “Judges author judgments shaped as they are by their own political philosophies and fashioned by the dominant thinking of the times,” he writes. Seemingly progressive rulings can, therefore, smack of internalised biases.
In 2017, when a bench of the Supreme Court ruled that verbal divorce (triple talaq) as sanctioned by Islamic law was unconstitutional, the judgement was lauded by many for protecting the rights of women, but equally criticised by a section of feminists. As Kirpal shows, the ruling was based on several key assumptions by the bench (the sanctity of marriage and a moral objection to the ease of divorce, among others) rather than an application of the general classification test—the fact that wives didn’t enjoy the same privilege of divorcing their husbands by triple talaq.
“Gender inequality was writ large in the provision,” Kirpal concludes, “yet the text of the judgment is seemingly unaware of the discrimination innate in the provision.”
The Face of the Law
This ability to help the reader confront the challenges raised by a “polyvocal court which creates uncertainty in the law” and acts “less as a symphony and more as a cacophony” makes Who is Equal? an urgently relevant read for these times. Judicial subjectivities, mired in patriarchal attitudes, have resulted in a lingering toxicity in the system. A case in point is inter-caste marriage and its relationship with existing reservation laws.
As Kirpal writes in the chapter on employment, “If an upper caste woman marries a scheduled caste man, she is not entitled to any reservations that her husband may be entitled to.” If you think this is a rare exception in a heavily patriarchal system where a woman, for once, is not forced to take the caste of her husband on marriage, you’ll be sorely mistaken.
While the woman is exempted from taking her husband’s caste, Kirpal adds, “the children born out of such a marriage would likely be eligible for reservations as they are presumed to have the caste of their father”. And yet, when it comes to a lower-caste man marrying an upper-caste woman, the man “does not lose the benefits of his caste upon marriage”. This sleight-of-hand clause in the law was invoked after the death of Rohith Vemula by suicide to determine his caste status.
While a sound legal education may act as a deterrent to subjective biases, the judiciary remains overburdened with too many matters, with a lot riding on the judges, as Kirpal says. It doesn’t help that India doesn’t have a codified anti-discrimination law, which is really a reflection of the apathy of our lawmakers towards the citizenry. “The poor don’t really capture the attention of Parliament, which, in turn, palms off the responsibility of ensuring equality on to the courts,” he adds.
The political reluctance to grant more rights to religious minorities, which, in turn will likely upset the majority community, may be a reason behind the lack of an anti-discrimination law, but the blame cannot be put on the current dispensation alone. “Why did it not come into effect in the 1950s, or when other regimes were in power?” Kirpal asks. “The truth is, as a society we are far from rights conscious, and still led by upper-caste elitist interests.”
Somak Ghoshal is a writer based in Delhi.
Also read: Franz Kafka and the truth we are afraid of