Saurabh Kirpal: ‘The biggest challenge for our court is religious minorities… The problem is here and now… it’s getting worse’

Saurabh Kirpal majored in physics from St Stephen’s but shifted track and read law at Oxford and then got a Masters from Cambridge. Since1990s, he has practised in the Supreme Court, arguing several important cases including on constitutional, commercial, civil and criminal law. Supreme Court lawyer Saurabh Kirpal on why he would accept judgeship, on India not being a rights-based society, and the institutional vulnerabilities of the judiciary. The session was moderated by Apurva Vishwanath, National Legal Editor, The Indian Express Apurva Vishwanath: Your latest book Who is Equal? records this shift in our courts from what we call a formal reading of the law to what we understand is substantive equality? A Dalit judge, BR Gavai, who is next in line to be the Chief Justice, spoke about the creamy layer in Schedule Caste (SC) and Schedule Tribe (ST) quota and there is another judge who agrees with him. So, how does the Supreme Court frame this question? The question is about the fundamental way adjudication happens in court. Are judges able to extricate themselves from their own ideologies? The short answer is no. While legal training allows judges to be neutral in their thinking and focus on the law and the Constitution, there is a fair degree of leeway of interpretation. In the process, the personal lived experiences of all judges become absolutely relevant… In the last five to 10 years, it has reflected, say, in the political ideology of Justice Krishna Iyer in the ’70s or Justice K Subba Rao and his right-wing ideology. This belief in what the Constitution should be ends up being somehow reversed engineered into what the Constitution is… There’s a big brouhaha about this creamy layer. But this concept had been accepted for the SCs by the Supreme Court 20 years ago in Jarnail Singh’s case… The judges have maybe reiterated it and seem to push for it almost as if it is a good thing. That, I suppose, is new… I have a problem with the idea of a creamy layer for SCs. It has no place in our constitutional jurisprudence because it fundamentally undermines the idea of what historical discrimination is. Apurva Vishwanath: In the last few years, there’s been a greater emphasis on the other facets of equality — on gender, sexual minorities and disability rights. Apart from caste, how has the court fared on these things? There have been some ups and some downs, some highs in the lows… On women, it has steadily improved over the years… In terms of caste, there is a continuous flip-flop because it’s contentious… But, I think the biggest challenge for our court today is religious minorities… The problem is here and now and it’s just getting worse. Here again, the court has probably lessened its protection in the last 75 years… It’s not as if they don’t intervene when it’s required. The delay in their intervention in matters often allows the problem to go unchecked and therefore the religious minorities don’t get the protection that they need now.

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