How Homophobia Precludes Saurabh Kirpal From Becoming a Judge

The Supreme Court has deferred its decision on elevating Saurabh Kirpal as a judge over four times since 2017.

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.

However, till date, Kirpal has received no decision on the said recommendation of appointing him as a high court judge. Why? He feels that it might have something to do with his sexual orientation. Kirpal openly identifies as a gay man – and lives with his partner in New Delhi.

Red-Tapism of Supreme Court Collegium

After the Delhi High Court’s recommendation in October 2017, Kirpal’s nomination was forwarded to the Supreme Court’s collegium. The said collegium, which currently comprises Chief Justice of India SA Bobde, Justice NV Ramana, and Justice Rohinton Nariman, has deferred the decision on Kirpal’s elevation four times since receiving the recommendation in 2017.

The latest deferral on Kirpal’s elevation came in a meeting held on 2 March, where the collegium decided to further defer the said decision pending a clear response from the central government.

In March 2021, CJI 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. 

The Supreme Court collegium’s own practice doesn’t support such prolonged deferrals on recommendations of judicial appointments. Unlike in other cases, where the recommendations are usually approved and passed over to the Law Ministry in a routine manner, Kirpal’s recommendation has been delayed without providing cogent reasons.

Centre's Stance And the Homophobic Hangover

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 to do a background check on Kirpal, while not expressing direct objection to Kirpal’s elevation, had informed the central government 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 CJI Ranjan Gogoi, Justice SA Bobde, and Justice NV Ramana, in keeping the decision on Kirpal’s elevation in further abeyance.

As per the sources, the said IB report never explained how having a foreign national as a partner poses a security threat. Moreover, as per reports, most of the content of the IB report was based on Facebook posts and photos from Kirpal’s profile.

Flagging Kirpal’s foreign partner as a security risk doesn’t sit well with the fact that there have been heterosexual judges in the past also having foreign nationals as partners.

Kirpal feels that the continuous deferrals on his appointment as a permanent judge of the Delhi High Court might have something to do with him being gay. He said that he consented to becoming a judge, despite his flourishing practice, as he believed it was important for the judiciary to have diversity.

Erudite, Illustrious Career, But Discriminated Against for Being Gay

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.

After studying physics at St Stephen’s College in Delhi, Kirpal read law at the University of Oxford and did his master’s in law at the University of Cambridge. He worked briefly with the United Nations in Geneva before returning to Delhi. He has been practising law at the Supreme Court for well over two decades and has appeared in a range of matters involving fundamental rights.

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.

Continuing on his quest to seek equal rights for the LGBTQIA+ community, Kirpal is currently involved in litigation pending before the Delhi High Court seeking marriage equality for homosexual couples.