New Delhi: The biggest debates of our times revolve around two questions — is there space for both conservatives and liberals in a democracy? And who truly has the power to change society — the courts, the Parliament, or the people themselves?
On Sunday, these debates went beyond the courtroom and social media. This time the conversation happened in the court of public opinion.
Lawyers J Sai Deepak and Saurabh Kirpal, opposing counsels on the petition for marriage equality at the Supreme Court of India, squared off at Ignition — a live conversation series organised by the Shiv Nadar Foundation, on a rainy evening in Gurugram. The conversation was moderated by journalist Shoma Chaudhury and was so engaging that she couldn’t help joining the conversation herself to debate the role of the judiciary in a democracy.
The debate unpacked several nuanced issues, but the central question was whether the Supreme Court had the right to adjudicate on marriage equality.
“What do you use the forum of the court for,” asked Deepak. “To ventilate a point of view. Sometimes, you may not have a case in law, but you use that particular forum to stir the conscience of the legislature and the rest of society, in the hope that the point that you’re making through the court gets wider traction so that people wake up.”
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Do the courts have the right?
What made the conversation more intense was the star power onstage. Deepak and Kirpal are two of India’s top lawyers and haven’t shied away from their respective spotlights.
Both represent opposing worldviews when it comes to marriage equality: Deepak has previously said that the petitioners “have a cause, but not a case,” while the matter is more personal for Kirpal, who is openly gay.
The courts have every right to take up a cause if fundamental rights are at stake, according to Kirpal. But if every disgruntled litigant could move the court on matters close to their heart and choose to relegate the legislature, asked Deepak, would India truly be a democracy?
The hour-long debate circled around the dangers of judicial activism, and whether the Parliament can be trusted to safeguard the rights of the LGBTQ+ community.
Carefully veering away from matters sub judice, Deepak and Kirpal offered a glimpse into what their courtroom must look like. Jabs and crosses were made at both the UPA and NDA governments (as well as at those hailed as members of the ‘liberal’ establishment, like journalist Barkha Dutt) while Chaudhury darted in and out of the debate. By the end of it, however, the conversation tipped towards that familiar binary of “Left vs. Right”, and the prevailing sociopolitics of Hindu majoritarianism.
“The fact is, a voice such as mine, representing the world-view that I do, wouldn’t have found a space on any platform prior to 2014,” said Deepak, as the conversation was wrapping up.
“It’s correct that a conservative voice wouldn’t have found a place prior to 2014, a fact that is unfortunate and deeply troubling,” responded Kirpal. “But that does not mean that having got that voice, every other voice is pushed off the table.”
The audience, made up of around 200 people, was hanging on to every word. Deepak is a cult favourite, and his well-wishers made no secret of their admiration, clapping whenever he argued logical flaws.
But there were many who agreed with Kirpal’s views. A group of three sari-clad women got up and exited the event towards the end, grumbling loudly about Deepak’s position.
Put simply, Deepak’s position is wary of judicial activism. Clarifying the impression on social media that he’s homophobic, Deepak said that he’s actually questioning the extent of institutional boundaries — that is, whether the courts have the necessary expertise to pass judgement on the issue.
He doesn’t subscribe to the “cynical” view that the legislature should be looked down upon and that the judiciary is the ultimate arbiter. Instead, he believes that subject-matter experts should be stakeholders in the conversation, especially when it comes to religious and cultural issues or institutions such as marriage — and that by creating further rights, the judiciary could set a dangerous precedent. Furthermore, it would be undemocratic to trust just the courts — instead, there should be more faith placed in society’s democratic ability to discern.
Kirpal, on the other hand, believes that citizens go to court when Parliament isn’t doing their job — people have no option but to go to court when their rights are being denied. “In matters that are fundamental and personal, the courts don’t merely have the right to step in. They have the obligation to step in,” he said.
He did concede that there is some merit in asking courts to step away from issues in the political thicket, and not to jump into every issue. But the question of where to draw the line is subjective. Pointing out situations where the courts have had to step into constitutional issues, Kirpal stressed that the judiciary has the responsibility to play an active role in helping the country advance.
“We hope this country will endure for the next 100, 500, 1,000 years,” said Kirpal. “The Constitution is what we have. Its words are written in stone. But if we tie ourselves down to that stone, we’ll sink with it.”
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An evening against binaries
The no-holds-barred debate between Deepak and Kirpal wrapped up an engaging evening at Ignition.
The audience looked past the rain and chose to forego watching the Wimbledon finals to attend the event. The evening’s first speaker and performer was Sumana Chandrashekar, one of ten women worldwide who play the Ghatam — a humble clay pot first referenced by Valmiki in the Ramayana. The second conversation was with film director Anand Gandhi and producer Zain Memon and their new company Department of Lore, which is creating a new simulated fantasy universe unique to the Indian subcontinent.
And after a quick cocktail break, the audience re-gathered to listen to the legal showdown.
Both lawyers have skin in the game. Senior lawyer Kirpal is an LGBTQ+ rights advocate who was also involved in the landmark striking down of Section 377. More controversially, he was denied a judgeship on account of being openly gay.
Meanwhile, Deepak is an engineer-turned-lawyer and bestselling author of India that is Bharat: Coloniality, Civilisation, Constitution and India, Bharat, and Pakistan: The Constitutional Journey of Sandwiched Civilisation. He has argued complex cases like the Sabarimala matter.
Deepak, who refers to himself as “Indic” and not “Right-wing,” often finds himself in hot water online, and has become a favourite bugbear for the liberal establishment.
At one point, the conversation seemed to teeter dangerously on the point of no return — except it wasn’t Kirpal arguing with Deepak, it was the moderator.
Chaudhury asked Deepak how one can rely on society to play a role on issues like marriage equality when such a debate is impossible in most public forums. She referenced a recent interview in which Deepak gave reasons for why he thinks Irfan Habib, Romila Thapar, and Barkha Dutt have caused damage to India and pointed to the general suppression of dissent in India.
“I have to step back a little bit now,” laughed Chaudhury, readjusting herself on stage, leaning back from Deepak, and apologising to Kirpal.
“It’s rather like watching the volley we’re missing in Wimbledon,” quipped Kirpal dryly in response.
(Edited by Theres Sudeep)