Delhi HC likely to get first openly gay judge

Updated on Nov 16, 2021 05:21 AM IST

The Supreme Court collegium has recommended the elevation of senior advocate Saurabh Kirpal, an openly gay person, as a judge in the Delhi high court, rejecting the Union government’s preliminary objections against his proposed elevation.

In October 2017, the Delhi high court unanimously recommended Kirpal for appointment as a judge of the Delhi HC.(Twitter)
In October 2017, the Delhi high court unanimously recommended Kirpal for appointment as a judge of the Delhi HC.(Twitter)
By, Hindustan Times, New Delhi

India may finally get its first openly gay person as a judge of a constitutional court.

The Supreme Court collegium has recommended the elevation of senior advocate Saurabh Kirpal as a judge in the Delhi high court, rejecting the Union government’s preliminary objections against his proposed elevation.

“The Supreme Court Collegium, in its meeting held on 11th November, 2021, has approved the proposal for elevation of Shri Saurabh Kirpal, advocate, as judge in the Delhi High Court,” read the collegium’s resolution uploaded on the top court’s website on Monday evening. The collegium, headed by Chief Justice of India (CJI) NV Ramana, picked Kirpal, 49, who was one of the leading lawyers in the landmark Navtej Singh Johar case that led to the Supreme Court decriminalising homosexuality in 2018.

The collegium also includes justices Uday U Lalit, AM Khanwilkar, DY Chandrachud and L Nageswara Rao.

Former attorney general and veteran lawyer Mukul Rohatgi said Kirpal’s elevation was long overdue, and that Monday was the day of real recognition of the Supreme Court’s judgment reading down Section 377 of the Indian Penal Code that criminalised homosexuality.

“Kirpal is one of the brightest lawyers and I have had personal experience of his intellect and hard work. In Hindi, I will say ‘der aaye durust aaye’ (better late than never),” added Rohatgi.

Kirpal was unavailable for comment.

In October 2017, the Delhi high court unanimously recommended Kirpal for appointment as a judge of the Delhi HC. However, the Intelligence Bureau (IB), which was tasked with a background check on Kirpal, came out with an adverse report in 2018 and 2019, suggesting Kirpal’s partner, who is a foreign national, might pose a security risk.

In view of the IB reports, the collegium kept deferring Kirpal’s elevation. The SC collegium deferred its decision on Kirpal’s recommendation on three occasions — in January 2019, April 2019 and in August last year.

In March 2021, the then CJI SA Bobde wrote to the Union government, seeking additional information and more clarity on its reservations over Kirpal’s name. The government responded in April, reiterating its apprehensions against his partner. This time, the government pointed out that Kirpal’s partner was employed with the Swiss embassy and that he was working with a Switzerland-based non-profit organisation prior to this job.

In March 2021, Kirpal was designated as a senior advocate by the Delhi high court after all 31 judges of the high court unanimously endorsed his designation.

While the collegium, led by then CJI Bobde, could not take a final call on Kirpal’s elevation, justice Ramana and the four other most senior judges, after consulting the other judges in the top court, decided to send Kirpal’s name for appointment as a judge in the Delhi high court.

Under the Memorandum of Procedure (MoP), if the collegium recommends a name for appointment as a judge, the Centre can return that name for a review. However, once the collegium reiterates that name, the government has no choice but to notify the name. At best, the government can delay his appointment but not turn it down.

Kirpal studied law at Oxford University and Cambridge University, and has practised for over two decades. His father BN Kirpal was the Chief Justice of India for six months in 2002.

In an interview to HT in September 2020, Kirpal acknowledged that his sexuality could be the reason behind the apex court collegium deferring a decision on appointing him as a judge and the government raising objections.

“My professional competence was known to the high court and the Supreme Court collegium and my case for elevation was presumably not deferred for that reason. Media reports seemed to indicate the issue might have been the nationality of my partner who is Swiss. Had I been a straight man with a foreign spouse, this would not have been an issue; former Supreme Court judges have had foreign spouses. But it became an issue only because I am not,” Kirpal had told HT.

Kirpal had said that his sexuality was the only stumbling block. “The aim was to have diversity on the bench. I really believe it could change the lives of so many LGBT [lesbian, gay, bisexual, transgender] people in India.’’ Apart from Kirpal, the collegium also reiterated its proposals to appoint four lawyers -- Tara Vitasta Ganju, Anish Dayal, Amit Sharma and Mini Pushkarna -- as judges of the Delhi high court.

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