I Don't Think The Government Wants To Appoint A Gay Person To The Bench: Advocate Saurabh Kirpal On Why He's Not HC Judge Yet

The comment came after the government’s renewed focus on judges' appointments, which earned the disapproval of the Supreme Court last week, as well as a debate over the way judges are picked by the collegium, a group of senior judges.

Senior Advocate Saurabh Kirpal

A senior advocate Saurabh Kirpal on Thursday said he believes that his sexual orientation is the reason why his appointment as a high court judge has been in limbo since 2017.

The comment came after the government’s renewed focus on judges' appointments, which earned the disapproval of the Supreme Court last week, as well as a debate over the way judges are picked by the collegium, a group of senior judges.

"I don't think the government necessarily wants to appoint an openly gay person to the bench," Kirpal, 50, said in an interview. "And that's, of course, not the stated reason. And that is part of the problem with the collegium system. They don't give reasons as to why they take their decision. But that's also then the problem with the government not following the law as is," said the advocate who was at the forefront of the fight to decriminalise homosexuality in India.

About Kirpal

Son of former chief justice of India Bhupinder Nath Kirpal, Kirpal read law at the University of Oxford and did his Master of Law at the University of Cambridge and returned to India following a brief stint at the United Nations in Geneva.

Kirpal, who has been practising at the apex court for over two decades, was also the counsel for Navtej Johar, Ritu Dalmia and others in the celebrated case that led to the reading down of Section 377 of the Indian Penal Code in 2018 and decriminalizing gay sex.

A five-year wait riddled with delays

The union government has been sitting on recommendations for Kirpal's appointment for five years, extending the wait for the first openly gay person to become a judge of an Indian court. His name was first proposed by the Delhi High Court, but, according to reports, the Intelligence Bureau (IB), tasked with carrying out background checks, said his partner, who is a European national, might pose a security risk.

Based on the IB’s reports, the SC collegium delayed its final decision on Kirpal's recommendation thrice between 2019-20.

Finally in November 2021, the SC collegium, headed by then Chief Justice of India NV Ramana, cleared Kirpal's elevation as a judge in the Delhi High Court, overruling the central government's preliminary objections. Despite this, the government has not announced his appointment, a delay that, among others, prompted the Supreme Court last Friday to express its displeasure.

The court said that holding up the names, including those reiterated by the top court's collegium, was "not acceptable".

Concerns about the collegium system 

Kirpal feels the collegium system has led to a public debate between the government and the judiciary. "I am not one of those people who think that the collegium system is a good system. There are many flaws with it. Maybe the government needs to have some formal role in appointment. Till that is done, the way every citizen of the country obeys the law, it and the government is also bound by the same judgment and Collegium system," he added.

Government’s view on homosexuality

Asked to elaborate on his view that it was his sexual orientation that had held up his elevation, Kripal said, "No one from the government, or the no one the collegium has ever reached out to me for my inputs. Very often, I've heard that the reason given is my partner is a human rights activist, but he's not. He's working as a visa officer in the embassy has nothing to do with human rights. But obviously, no one has ever contacted me, so I can't give any kind of clarification."

"I think the government is still against a certain view or has a certain view on [Section] 377 (which criminalised homosexuality) and homosexuality. They never opposed the decriminalisation of 377 [but] they never filed an affidavit saying that it should be decriminalised," he said. Kripal also said that the views of the government on LGBTQ issues were "outdated".

"We have seen the view of the government in the marriage equality petitions that are pending before the Delhi High Court, where they have very candidly and openly said that marriage can only be between a biological man and a biological woman. That is a very outdated view of what it means to be a queer person and what it means to have a certain position on issues of sexuality. So of course, there is a view within the government which is probably more conservative than is the case elsewhere," he said.