Published by Penguin Random House
Length : 304 Pages
MRP : ₹699.00
Blurbs from great lawyers talk about the educational value of Saurabh Kirpal’s new book, Who is Equal?. But the manuscript is a mind map of a person figuring out his place in a world where, for all his privileges, he has had to stare into the face of discrimination daily.
Any lawyer worth his salt has a great love for the rule of law and a slight disdain for the courts of law. With this book, Kirpal shows himself as a great lawyer with a healthy scepticism for what he aptly calls India’s “polyvocal” courts. Steeped in reverence for the judicial contract (fairness above all), Who is Equal? is a book about what has become of our Constitutional promises since Independence.
Kirpal starts with a note: “Before we decide who is equal, we must ask ourselves ‘what is equal’?”
The first chapter takes us to the beginning. It traces the original intent behind drafting the Indian Constitution and the conflicting gamut of rights and privileges at play as India headed towards its tryst with destiny.
Moving from Rawls to the Commonwealth of India Act 1925 to the Poona Pact to our very first Constituent Assembly, Kirpal traces “the whole history of India’s anti-colonial struggle” through the lens of our Constitution. The 389 Assembly members comprised 82 per cent of Indian National Congress party members, with a few minority members voted in “at the largesse” of the Congress party and only 15 women, aka our “founding mothers”. Kirpal notes that the Assembly that stewarded our republic was not “entirely democratic or representative.”
Kirpal quotes from Raj Sekar Basu to show how Fabian Socialism swayed the first Constituent Assembly; they were mostly privileged men of a certain caste and economic class, and socialism was in fashion at that time. However, he reminds us of Dr B R Ambedkar’s fiery speech before the CA in 1948.
Ambedkar had warned: “If we continue to deny it (the contradiction between our daily lives and philosophies) for long, we will do so only by putting our political democracy in peril. We must remove these contradictions as soon as possible, or else those who suffer from inequality will blow up the structure of political democracy which the Assembly has so laboriously built up.” It is hard to read these lines and not think of the many unrests across India and worldwide. Ambedkar prevailed in the end, ensuring that the Indian Constitution was a forward-thinking document written in the spirit of affirmative action.
Capricious Court Orders and Citizens’ Lives
With six more chapters ranging from Rule of Law to Marriage, the book detangles the Indian concept of equality like a ball of yarn that a litter of kittens played with. The author unwinds each thread chapter by chapter to show how equality of opportunity and equality of outcomes is a composite whole under ideal conditions.
In the next chapter, while discussing the Rule of Law, Kirpal introduces the concept of intelligible differentia— the idea that it is logical to classify people with different experiences and socio-economic levels into groups for legislative purposes. Intelligible differentia is the basis on which the Indian Constitution allows reservations within the equality framework before the law.
From the infamous Charanjit Lal Chowdhury case (where SC maintained the military’s exception to the Prohibition Act) to Menaka Gandhi’s case, where courts discovered “activist magnitude,” to the recent SC judgment on Triple Talaq, the chapter weaves in historical perspective to explain what may seem like inconsistency in court judgments. Kirpal is kinder to the SC than many might be and points out that the procedural rule of law is “a romantic belief” left to us by the British.
Internalised Bias and the Supreme Court
Using judgments, Kirpal shows how even the most progressive orders can be “shaped” by individual “political philosophies and fashioned by the dominant thinking of the times." In other words, even progressive judgments can reek of internal bias.
The 2017 triple talaq judgment is one such demonstration. Often lauded as a judgment that protects women’s rights, Shayara Bano v. Union of India is also a ruling dominated by assumptions on the sanctity of marriage and the moral objections to verbal divorce. Kirpal could have gone further here: pointing out that the SC has been far more progressive in limiting Muslim personal laws than it has been in intervening in cases such as criminalising marital rape and the exceptions to child marriage under The Prohibition of Child Marriage Act, 2006.
Kirpal points out that the SC could have simply applied the general classification test since the right to verbal divorce was not reciprocal. “Gender inequality was writ large in the provision, yet the text of the judgment is seemingly unaware of the discrimination innate in the provision,” he writes.
In the chapter titled Education, while discussing the reservation test, he points out: “If the exclusion of a member of the scheduled caste on a test of economic well-being is permitted, it follows that even caste is merely a test of membership of a backward group, rather than being an independent ground for discrimination. If reservations are to be limited to poor members of a lower caste, is the basis of reservation poverty or caste? If wealth is sufficient to evict a beneficiary from a reserved class, caste also?”
In a tongue-in-cheek reference to the recent SC judgment on Dalit reservations, he says, “It seems that reservations are more easily justified when reference is had to group inequality, the causes for which may be historical or systemic.”
Intersectionality of Rights
While discussing who benefits from employment reservation, Kirpal mentions the law’s unequal ways to women of any caste.
“If an upper caste woman marries a scheduled caste man, she is not entitled to any reservations that her husband may be entitled to,” he writes while pointing out that “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". He then brings out the legal fallacy that a lower-caste man “does not lose the benefits of his caste upon marriage" with an upper-caste woman. If this sounds familiar, it is because Kirpal is referencing the suicide of student Rohith Vemula, who was harassed due to his caste status.
Marriage Equality
Starting the chapter with images of the candlelit vigils which proceeded the 2012 Delhi gangrape case, Kirpal deftly points out that “at the same time as the protests were happening, almost certainly some woman somewhere in India was being raped by her husband without the slightest public anger.”
With this simple observation, Kirpal exposes the intersectional nature of equality and sympathy. People support movements in which they have a stake and fight for justice for victims with whom they can relate. For example, the victim in the December 2012 case was initially “perceived to have middle-class origins.” It’s worth noting that on the same day, a report of a rape of a six-month-old girlchild from the slums got no space in any national daily.
In a way, he exposes some of this intersectional sympathy in the chapter on marriage. Most of the book is a polite, if pointed, critique of the courts. But, in this case, Kirpal holds back no punches.
In a previous chapter on democracy, Kirpal had conceded that the courts cannot be the sole agents of societal change. However, the SC, which denied petitions to criminalise marital rape and decided against LGBT+ marriages, failed “to perform their roles as agents of change” in this field, he says.
He is speaking not only as a gay man but also as one of the champions of marriage equality for the LGBT+ community in the 2023 case before the Supreme Court of India.
All in all, researched with rigour but written without legalese, Who is Equal? is an unpretentious book anyone can read and understand, from a judge to a law student to a citizen who wants clarity on their rights and our laws. But I hope it’s read by judges. Because, in the gentlest ways, the book holds up the SC’s history and judgments as its mirror. Kirpal shows us how even one capricious court order can affect every sphere of a citizen’s life— employment, education, marriage, or business.
