Can’t Ignore That India Has No Openly Gay Judge: Saurabh Kirpal

Senior Editor: Shelly Walia
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In October 2017, the Delhi High Court had unanimously recommended Saurabh Kirpal, a seasoned lawyer, for the appointment as the permanent judge of the Delhi High Court. With this, Kirpal became the first openly gay judge in India to be recommended for the position.

However, almost four years later, he still awaits the final decision on this recommendation. The delay, he feels, has something to do with his sexual orientation.

In an interview with The Quint, Kirpal said that one cannot ignore the fact that there is no openly queer judge on the Bench in India.

“I was fairly certain when my name was considered for elevation and was recommended, that it may not be the easiest path. I was going to be a person of alternative sexuality whose name was going to be considered and I knew that it could take its own time. So, there was delay and you expected that there would be some hurdles potentially along the way.”

He added that multiple media reports and retired judges like Justice Madan Lokur have openly cited that the deferment is on account of his sexuality.

Is Having A Foreign Partner A ‘Grave Security Risk?’: Kirpal

In March 2021, the then Chief Justice of India SA Bobde wrote a letter to Union Law Minister Ravi Shankar Prasad asking him to clear the stance of the central government on Kirpal’s elevation as a permanent judge of the Delhi High Court. The letter asks the government to provide reasons for delaying the decision.

While the Union law minister is yet to reply to the CJI’s letter, the Centre had in the past opposed Kirpal’s elevation as a judge on extremely ambiguous grounds.

The Intelligence Bureau (IB), which was tasked with a background check on Kirpal, while not expressing direct objection to Kirpal’s elevation, had informed the central government in 2019 that Kirpal’s partner, who’s a foreign national, might pose a security risk. In April 2019, it was this very IB report that was relied upon by the Supreme Court’s collegium comprising the then CJIs Ranjan Gogoi, SA Bobde, and Justice NV Ramana, in keeping the decision on Kirpal’s elevation in further abeyance.

“As I said, there is Justice Vivian Bose, who is one of India’s greatest judges in the Supreme Court, who had an American wife. You have Chief Justice Ravi Dhawan, Chief Justice Patnaik worked for a few years with an American wife. So, a foreign partner, surely, can be no grave security risk, to the post of a high court judge. So I really wonder...”

Saurabh Kirpal to The Quint

Why Consent to Becoming a Judge?

Kirpal’s illustrious career and his contribution to the civil rights jurisprudence of the country as an erudite lawyer is enough to warrant an elevation as a high court judge. It is this very background, the one which reflects his legal acumen, which led to the Delhi High Court unanimously recommending his name for the position of a permanent judge in the first place.

On 19 March 2021, Kirpal was elevated as a Senior Advocate by the Delhi High Court. He was the court’s unanimous choice, with all the 31 judges voting in his favour.

Probably, one of the finest contributions of Kirpal would be the Navtej Johar case, which led to the decriminalisation of homosexuality in India by reading down Section 377 of the Indian Penal Code. With a flourishing practice, why did he consent to become a judge?

“If we are not willing to reform system, then we have ourselves to blame, right? We have received so much from the judicial fraternity. I think we really owe it to the system. But that is a general part of why I consented to be a judge. Another deep reason for it was the fact of my sexuality, right? I would have been India’s first openly gay judge and even if someone else had come, it wouldn’t matter. I would have potentially been a role model for the queer community. For young lawyers, young students, to look up and say, ‘If this person can make it, maybe, so can I.’”

Saurabh Kirpal to The Quint

“Because, often as I have said, justice, you know, is not completely impartial. You require a representation and a faith in this system that the people who are deciding are reflective of the society that currently exists in India. So, to have all male, upper caste, higher judiciary, is not reflective of what the makeup of India is,” the senior advocate added.

Will An Openly Queer Judge Mean More Empathy?

The answer is both yes and no, Kirpal said, adding that there is no black and white answer to this.

“To some extent, yes, I think it will improve things. It should be difficult for people to be openly hostile. Because when there is a queer judge on the Bench, you can’t really start making the same kind of comments, that you could make. It is difficult. So yes, I think that will help. But I give the example of the discrimination that women face in our profession. There are women on the Bench. There are several women on the Bench. Can we say that has been sufficient to remove discrimination against women in our Bar and in our society and in legal sphere? No. Because that also takes hard work. I don’t think we must forget this. That it is a constant battle.”

Saurabh Kirpal to TheQuint

So, how long is the senior advocate willing to wait till he hears from the government?

“So, I am in it. I am not going to withdraw as I have said. If it takes time, it takes time. And so no, I am not alienated. I am very hopeful that change will happen. Even if it doesn’t happen for me. Even if I don’t smash that ceiling, I hope I put enough dents in it, so that the next person who comes after me, has an easier task ahead of me,” he said.

(This story was first published on 5 June 2021. It has been republished from The Quint’s archives to mark Pride Month.)