Has lawyer Saurabh Kirpal not been named HC judge because he is openly gay?

India decriminalised homosexuality on 6 September 2018. But more than four years on, does the country’s LGBTQ+ community enjoy equal rights? No, if you ask, senior advocate Saurabh Kirpal, an openly gay person, whose appointment as judge of the Delhi high court continues to be delayed. He alleges that his sexual orientation is the reason he has been facing rejection from the government.

Who is Saurabh Kirpal?

Kirpal is an openly gay senior advocate who has been practising for more than two decades. He was designated senior advocate by 31 judges of the Delhi High Court in March 2021.

He was part of a team of lawyers that represented Sunil Mehra and Navtej Singh Johar, the now well-known petitioners in the historic case in which the Supreme Court (SC) struck down the colonial-era Sec 377, which criminalised homosexuality.

The advocate has penned the book Sex and the Supreme Court: How the Law is Upholding the Dignity of the Indian Citizen, which carries writings by former Attorney General of India Mukul Rohatgi, Menaka Guruswamy and Arundhati Katju, the lawyers who were at the forefront of the legal fight against Sec 377, among others. He is a board member of the Naz Foundation Trust, a Delhi-based NGO that played a key role in the battle.

A physics major from Delhi’s St Stephen’s College, he earned a law degree from the University of Oxford and then went on to pursue a master’s in law from the University of Cambridge.

The 50-year-old advocate is the son of Bhupinder Nath Kirpal, who served as the 31st Chief Justice of India from May to November 2002.

What is the controversy surrounding the advocate?

It was in 2017 that Kirpal was first recommended for elevation by the Delhi High Court collegium, then led by acting Chief Justice Gita Mittal. It was okayed by the apex court, which later decided to defer the decision thrice – in January 2019, April 2019 and in August last year.

In November 2021, in a first, the SC Collegium recommended that Kirpal be considered for appointment as a Delhi HC judge. The government has also repeatedly objected to his elevation.

Also read: From Saurabh Kirpal’s likely elevation to Delhi HC judge to Beth Robinson in the US, world’s judiciary is finally coming out of the closet

Why has Kirpal’s appointment as judge been stalled?

There has been increased speculation that the delay has been because of the advocate’s sexual orientation. However, the government has said that the objection is because of a conflict of interest since Kirpal’s partner is European and works with the Swiss Embassy.

What is the Supreme Court saying now?

The SC has doubled down on the elevation, uploading letters to the Centre on its website. On Wednesday, it reiterated its November recommendation.

A three-member Collegium headed by Chief Justice of India DY Chandrachud, Justices SK Kaul and KM Joseph, said the appointment was pending for five years and had to be processed “expeditiously”.

“In this backdrop, the Collegium resolves to reiterate its recommendation dated 11 November, 2021 for appointment of Shri Saurabh Kirpal as a Judge of the Delhi High Court which needs to be processed expeditiously,” the statement said.

“The recommendation unanimously made by the Collegium of the Delhi High Court on October 13, 2017 and approved by the Supreme Court Collegium on November 11, 2021 has been referred back to us on November 25, 2022 for reconsideration in light of the observations made in the file,” it added.

It also praised Kirpal for being open about his sexual orientation and said that it “goes to his credit” that he has not been surreptitious about it.

What has been revealed about the government’s objection?

The SC has also made public the government’s objection which mentions Kirpal’s sexual orientation and his partner who is a “foreign national”.

The Collegium referred to communication from the Research & Analysis Wing and former Union Law Minister Ravi Shankar Prasad. “It appears that there are two objections to the recommendation which was made by the Collegium of this Court on 11 November 2021 approving the name of Shri Saurabh Kirpal namely: (i) the partner of Shri Saurabh Kirpal is a Swiss National, and (ii) he is in an intimate relationship and is open about his sexual orientation,” it said, according to a report by The Indian Express.

In a letter dated 1 April 2021, the law minister stated that though homosexuality stands de-criminalised in India, nonetheless same-sex marriage remains bereft of recognition either in codified statutory law or uncodified personal law in India.

The Centre also apprehended that given Kirpal’s “attachment” to the cause of gay rights, the possibility of Kirpal’s bias and prejudice cannot be ruled out, Live Law reports.

The SC Collegium has, however, turned down the objections and said that Kirpal’s partner being a foreign national cannot be a ground for rejection. “There is no reason to pre-suppose that the partner of the candidate, who is a Swiss National, would be inimically disposed to our country, since the country of his origin is a friendly nation. Many persons in high positions including present and past holders of Constitutional offices have and have had spouses who are foreign nationals,” it said, according to The Indian Express.

On Kirpal’s sexual orientation, the Collegium said this is “manifestly contrary to the constitutional principles laid down by the Supreme Court to reject his candidature on that ground”.

Also read: Homosexuality vs same-sex marriages: India’s one step forward, two steps backwards

What has Kirpal said?

In an interview with NDTV in November, Kirpal said that he believed his elevation was viewed with disfavour because of his sexual orientation. “I don’t think the government necessarily wants to appoint an openly gay person to the bench,” he told the news channel.

With inputs from agencies

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