SC Collegium Recommends Elevation of First Openly Gay Judge to Delhi HC

The Supreme Court Collegium, a body that recommends elevation and transfer to judges to higher and the apex court, has recommended that Saurabh Kirpal be appointed as a judge at the Delhi High Court, making him the first openly gay candidate to be considered for such a position.

However, The Telegraph reports that his candidature has been deferred four times so far. The first time his name was recommended was in 2017 by the Delhi High Court Collegium then headed by Justice Gita Mittal. But the government reportedly shot down the proposal citing intelligence reports of Kirpal’s partner being a Swiss national. Kirpal’s partner Nicholas Bachmann is a human rights activist.

Kirpal’s name was recommended again, and the recommendation was deferred in September 2018, January 2019, and April 2019. This time, none other than Chief Justice NV Ramana, after consultation with two other senior members of the judiciary, Justices UU Lalit and AM Khanwilkar, paved the path for recommending Kirpal’s elevation. However, even now, this is still a recommendation that is yet to be accepted by the government.

Foreign partner flimsy excuse for denying judgeship

Kirpal himself had claimed in an interview to The Quint, in June this year, that a foreign partner couldn’t have been the only reason for rejection of his candidature. “Justice Vivian Bose, one of India’s greatest judges, in the Supreme Court who had an American wife,” he said, also giving examples of former Chief Justices Ravi Dhawan and Patnaik who also had foreign nationals as wives. “So having a foreign partner surely can be no grave security risk to the post of a High Court judge,” he concluded.

Who is Saurabh Kirpal?

Saurabh Kirpal is a lawyer who has vociferously advocated for the rights of the LGBTQIA community. He was a part of the team of lawyers, including Arundhati Katju and Menaka Guruswamy, that was at the forefront of the litigation that led to the historic reading down of Section 377 on September 6, 2018. Kirpal was counsel for Navtej Johar and Ritu Dalmia, two of the main petitioners in the case. The court had on that day decriminalised consensual sex between two adults of the same sex.

He is the son of former Supreme Court Chief Justice BN Kirpal. He has a B.Sc (Hons) from Delhi’s prestigious St. Stephen’s College, following which he read law at Oxford University. He holds a Masters in Law from the University of Cambridge. He has previously worked with the United Nations in Geneva. He has also served as a junior to Mukul Rohatgi. Kirpal has practiced law for over two decades. In March this year, Kirpal was designated as a senior advocate at the Delhi High Court.

Reactions to recommendation of elevation

Understandable, this is being seen as a huge shot in the arm for LGBTQIA rights in the country. Advocate Menaka Guruswamy hailed it tweeting, “Ceilings are meant to be broken. Delhi HC likely to get first openly gay judge.”

Human rights defender and advocate Indira Jaising too welcomed the move saying, “Finally we are set to be an inclusive judiciary ending discrimination based on sexual orientation.”

Filmmaker Apurva Asrani tweeted, “Saurabh Kirpal identifies as gay & is vocal about LGBTQ rights. The collegium deferred a call on his elevation 4 times, despite the HC's recommendation. Today he is set to become a judge in the Delhi High Court. In the words of Bob Dylan, 'The Times They Are A- Changin'.”

Fellow filmmaker Onir also hailed the move tweeting, “What a beautiful empowering news to be greeted with this morning. Centuries of prosecution and now to have the first openly Gay Judge at Delhi HC. Respect and Gratitude to all those LGBTQIA activists who have struggled OPENLY to make this possible.”

Equal Rights activist Harish Iyer told SabrangIndia, “If the recommendation is accepted, and Saurabh Kirpal is indeed appointed judge, it would help India move forward after a history of omission, ridicule and invisibilisation of the LGBTQIA+ community. But let us not forget, queer people have served, are serving, and will serve the nation. This move will open the closet doors and let the world know about our life, contribution and existence beyond a cause.”

Iyer’s words draw attention to the fact that Kirpal is not set to be the “first gay judge” as many headlines are screaming today. Many other members of the community may have served in different rungs of the judiciary, while still in the closet.