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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.
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.
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.
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?
“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.
The answer is both yes and no, Kirpal said, adding that there is no black and white answer to this.
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.)
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Published: 05 Jun 2021,10:14 AM IST