Waiting for a Bench: The agony of Saurabh Kirpal

The senior advocate is openly gay, which, some argue, has come in the way of his elevation as a judge to the Delhi High Court

In 2017, when the Delhi High Court Collegium unanimously recommended senior advocate Saurabh Kirpal’s name for appointment in the high court, it was a huge moment for the 50-year-old.

Kirpal has an impressive resume: a graduate from St Stephen’s College, New Delhi, an undergraduate degree in law from Oxford University, and a master’s from Cambridge University.

He worked in the UN for a while in Geneva and honed his skills with a long stint in the SC.

It seemed like he had all the qualities to sit on the Bench.

But Kirpal is also openly gay. And in “old-fashioned” India, this is a problem as “people are not comfortable.” Kirpal would have become the first person from the LGBTQ+ community to join the Bench.

Read | Will India offer a rainbow of hope for the LGBTQ+?

But five years after the Delhi Collegium recommendation, the Union government is yet to put its stamp of approval on his name. A reiteration in November 2021 by the Collegium headed by then Chief Justice of India hasn’t helped.

It seems the milestone has to wait.

In father’s footsteps

When Kirpal was six, his father Justice Bhupinder Nath Kirpal became a judge of a high court.

He went on to work in many HCs, including Gujarat. Subsequently, the senior Kirpal became the Chief Justice of India in 2002 — the highest judicial office.

This might make it seem that the young Kirpal loved law from the beginning. But that is not true. Junior Kirpal’s first love was astrophysics.

A senior advocate, who does not wish to be named, said very few people knew that Saurabh hardly attended lectures at Oxford University.

But that doesn’t seem to have had any impact on Kirpal, who has distinguished himself among his peers.

Lawyers, who watched junior Kripal from close quarters, say he is a competent lawyer, and the recommendation to make him a judge of the Delhi High Court is a very good step for the judiciary.

Kirpal received his training under the guidance of former Attorney General and senior Supreme Court advocate Mukul Rohatgi, working mostly in constitutional, commercial, civil and criminal law.

Kirpal credits Rohatgi along with his ex-CJI father for forcing him to excel at law.

He was also one of the arguing counsel before the Constitution Bench, which decriminalised Section 377 of the Indian Penal Code in its historic judgement in the Navtej Singh Johor case.

Kirpal is a trustee of the Naz Foundation Trust, the NGO that first fought for the decriminalisation of homosexuality in India, and the editor and author of the book ‘Sex and the Supreme Court: How the Law is Upholding the Dignity of the Indian Citizen’.

The roadblock

It has been more than one year since the SC Collegium proposed his name after extensive consideration of all materials, but the Union government so far has been reluctant to ratify it.

The government’s dithering in approving Kirpal’s name is attributed to his sexual orientation and his foreign partner.

In an interview, Kripal had said, “The fact that my partner of 20 years is a person of foreign origin and a security risk is such a specious reason that it leaves one to believe that it is not the whole truth. That is the reason I believe my sexuality is the reason why my candidature has not been considered for elevation as a judge.”

If the claim is true, it raises an important question: should sexual orientation or a personal choice of a partner have any role to play in the selection of judges or merit should be given precedence?

Former Supreme Court judge Justice Deepak Gupta said nobody doubts Kripal’s competence and integrity.

“But we are very old-fashioned. People are not easy and comfortable with his sexual orientation, even the Collegium took a very long time, almost a few years, to reiterate his name. Now after reiteration, the government has sent it back,” said Justice Gupta.

“The government says SC Collegium is opaque, as far as the public is concerned, even the government’s views in this case are opaque.”

Justice Gupta said he can only guess about the two issues that are creating problems.

“One is his sexual orientation. Once the law has been laid down in the Navtej Singh Johar case, there is no way sexual orientation could be taken into consideration, if he is competent and qualified and capable of being a High Court judge. Two, I have heard that his partner is a foreigner. Suppose, a heterosexual lawyer has a foreigner partner or wife, would the government react in the same way? I don’t think so,” he said.

Justice Gupta said he “could have understood if his partner is Pakistani or Chinese national, but Switzerland and India have no problem whatsoever. I have heard his partner is just a visa officer.”

The problem, Justice Gupta said, arises out of our “reluctance, old-fashioned-ness.”

“We will not accept a person with a different sexual orientation,” he added.