In Conversation with Saurabh Kirpal, Advocate, Supreme Court of India

Mr Kirpal graduated in law from the University of Oxford and did his Masters in Law from the University of Cambridge. He worked briefly with the United Nations before returning to Delhi where he has been practising at the Supreme Court for well over two decades. He has appeared in a range of matters covering a diverse range of subjects from commercial to constitutional law. This is reflected in the variety of clients he has appeared for—from Anil Ambani in his legal battle with his brother to being the counsel for Navtej Johar, Ritu Dalmia and others in the case that led to the reading down of Section 377 of the Indian Penal Code. He calls himself an ‘accidental activist’ and is a trustee of the Naz Foundation Trust, the NGO that first fought for the decriminalization of homosexuality in India.  Mr Kirpal, would you please tell us where did this illustrious journey begin and at what age did you decide to study law. Please walk us through your early years of education and the decision of becoming a lawyer.  

Like any self-respecting child, I wanted to be an astronaut growing up! Flippancy aside, I did love science and astronomy, so I decided to do my BSc (Hons) in Physics from St. Stephen’s college in Delhi. Had there been a realistic proposition in getting a position in the world of science without having to move outside India, I might well have stayed on that course. But I was quite sure that I did not want to settle outside India, so I had to come up with a plan B. Coming from a family of lawyers, with the law being omnipresent in my surroundings, I decided to read law. I had planned to read law at Delhi University, but my I felt that I needed to expand my horizons and experience life outside India, even if I was never going to permanently settle there. I applied to Oxford to read law and while I obtained admission there, I was not very sure whether I cold go. My father was a judge and could not afford education abroad (this was in the early 1990s, much before the fruits of economic liberalization had begun to be realised). I was dependent on being able to secure a scholarship, which I was fortunate enough to get. That’s how I managed to read law at a university that imbibed a love of the academic side of the law in me, a love that I carry to this day.  

What to your mind has helped you get to where you are and what advice would you have for others who want to set off in a similar direction? 

I believe in litigation, the most important virtues are patience, hard work and integrity. It sounds trite to say this, but it is easy to forget these principles. When young lawyers, who are often underpaid and overworked, sees successful lawyers around them, they are tempted to take short cuts to make it big. In doing so they may compromise in their integrity and hence their reputation. The single biggest asset in the profession is your reputation as an honest and competent lawyer and if you lose that, it is difficult to regain it.  

There is no alternative to success other than hard work. When I started to practice, I used to pick up old SCR’s and read them cover to cover. While I might not remember every judgment I read, I believe that gave me a grounding in law that stands me to good stead today as well.  

I realise when I say this, I ignore the fact that a very important contributing factor in my case was my privilege. Not everyone comes from a family of lawyers and might find getting does to open difficult. To those lawyers I say, have faith and have patience. I have seen many first-generation lawyers succeed and many lawyers with impeccable familial connections fail. Family connections do help but are neither necessary nor sufficient.  

Who have been your guiding North Stars and the biggest inspiration in this journey? 

My two mentors have been my father, Justice BN Kirpal who was the Chief Justice of India and Mukul Rohatgi, who was my senior.  

From my father, I learnt that more than loving law, one had to learn to love justice. From Mr Rohatgi, I learnt that ego has no place in a Courtroom and that explaining complicated concepts simply is an art. People often say that the arguments are simplistic without realising the skill that goes into making something sound simple when it actually isn’t.  

Would you please tell us more about your recently released book ‘Sex and the Supreme Court,’ an anthology about issues relating to law, gender, and sexuality? 

The book concerns various decisions of the Supreme Court on matters relating to sex (including sexual workplace harassment, adultery), sexuality (the 377 judgment and the transgender judgment) as well as areas where the concerns of religion cross paths with those of the individual in the most intimate matters concerning them (the triple talaq judgment, the right of women to enter Sabarimala). All these cases relate to an innate tension between the concerns of the individual and her constitutionally guaranteed rights on the one hand and the demands of society and the community on the other. The book seeks to show how the Supreme Court has always come down on the side of the rights of the individual, which is not surprising given the fact that the constitutionally protected rights are largely individual rights.  

The book has been edited by me and contains chapters by the top legal luminaries of India including Justice Madan B Loku, Justice AK Sikri, Justice BD Ahmed, Mukul Rohatgi, Madhavi Divan, Menaka Guruswamy and Arundhati Katju. It also has telling personal accounts by Ritu Dalmia, Keshav Suri and Zainab Patel who were the petitioners in the cases which were decided by the Court. Finally, the chapter by Namita Bhandare is a must-read for anyone interested in me too movement and the problem of sexual harassment at the workplace 

 At the ‘BW Dialogues with Young Legal Leaders and Influencers’ event you spoke about Diversity in the Legal Profession or in other words, the lack of it. Diversity and inclusivity certainly pave the way for a thriving atmosphere. Why is this fact lost on so many learned people and lawmakers? 

Society is the product of the people who live in it. Unfortunately, given India’s colonial past and the strong tradition of caste and patriarchy, most of the influential decision-makers are almost inevitably upper-caste men. They have a limited experience of the society we live in, coddled as they are by their own privilege. Try as they might be empathetic (and to their credit a fair number do make an attempt), they cannot fully understand the disparity between their own lives and the lived experiences of those who come from the oppressed or underprivileged backgrounds. What is needed is greater diversity and representation at the uppermost echelons of power so as to be able to construct a more just society.  

This is particularly important in the judiciary since the judges are unelected and hence have no obvious claim to democratic legitimacy. Their strength comes from the moral force of the Constitution which they are sworn to uphold as well as the reasoning and results of their decisions. It is imperative to have diversity at that level so that the decisions are not made by men sitting in ivory towers, immune from the struggles of the society they live in.  

Most accomplished lawyers say money is the biggest deterrent to success. They strongly believe interns and young lawyers should be willing to work for the barter of the wealth of knowledge. Why are fair & just salaries a utopian concept in India?  

This is a matter of privilege once again. Most lawyers hiring interns believe that they are doing a favour to the interns or young lawyers they hire. Most of them came from moneyed backgrounds and do not understand the struggles a young student or a lawyer has to go through today, especially given how expensive it has become to live on your own in a city. Many young people come from smaller towns or villages to the cities and have limited parental support and hence need just recompense to survive.  

I think it is important on the part of the Bar Council to step in and make payments to interns mandatory and also to regulate the working conditions as well as minimum salaries. It is also important to have sensitisation modules for employers.  

Sir, you’ve said, “Merit has to be judged on the yardstick of opportunity.” While fair opportunities were already few and far between for non-ivy league graduates, Covid-19 has thrown another wrench in the works. What would be your advice to the new crop of lawyers on building a practice. 

Covid 19 is a black swan event – its effects are serious but will pass with time. Unfortunately, a lot of young lawyers do not have the luxury of simply waiting it out. Part of the problem in litigation is that the work of a lawyer often comes with visibility in Court – when a client sees a lawyer arguing, he may be impressed with her arguments and engage her in a matter. This of course cannot happen in a pandemic. In these circumstances, it is important to develop and sustain support networks between young lawyers (and any established lawyers who are willing to join). Work can be sent to someone who is in desperate need of it. We all must be willing to share work and send it to people who are competent but are not able to find work. It is also important for bar associations to draw up a list of lawyers and their core areas of expertise to enable work to be sent to them.  

One piece of advice that would give young lawyers is that they use this time to read and increase their knowledge of the law.  

What in your opinion has been the biggest change or challenge looming over the legal landscape of India amid COVID-19?  

The technological and digital divide is all set to get worse. Well established lawyers who have access to high-speed internet will now have yet another advantage over lawyers who come from smaller towns or younger lawyers who do not have the resources to have access to high-quality internet.  

According to a global data report: Progress towards greater gender equality has been hesitant and halting over the past five years and the Covid-19 pandemic now risks sending it into reverse. Do you agree? 

 As I said above, the pandemic is exacerbating existing inequalities by depriving opportunities. In the same manner women lawyers, who already had to struggle to obtain scarce resources available within a family, will find it even harder to access them. If the family has only one computer, it is more likely to be shared with the son than the daughter. This will impact both the educational as well as the professional eco-system.  

The further problem is that a woman is seen as a primary caregiver in a household. Children, who would otherwise have gone to school are now at home even during school hours. So once the husband has to work from home, it is likely that the woman would not be able to concentrate even a bit on her work as she would have to take care of the children. This would definitely have a deleterious impact on gender equality.

Other than work, what else keeps you busy? Would you please share your other interests and hobbies with our readers. 

My twin passions are reading and music. Though I have an eclectic taste in music, particularly love to listen to Indian classical music. I love to read non-fiction, in particular books on the social sciences and philosophy.  

Is there anything else you’d like to share with our lawyers of the future, any golden piece of advice from the treasure trove of your experiences in the industry? 

In litigation, while your competence and luck play a part, an oft-forgotten virtue is resilience. To any young lawyer I say, hang in there and wait. Your turn will come too – just carry on working with that belief. So not ever compare yourself to your peers as that would make you either envious in case others are doing better or vain in case they are not. Neither envy nor vanity are good qualities.  

As a final note, would you please recommend to our readers your favourite book or movie/series that left a lasting impression on you. 

In a final doff of my hat to my original love, astronomy, my favourite book is Cosmos by Carl Sagan. That book unleashed an inquisitive streak in me and pushed me on to a quest for knowledge. While that may have been in the field of sciences originally, I believe that a lawyer has also to constantly endeavour for greater knowledge if she has to reach the top of her field.  

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