Considered to be the biggest milestone for LGBTQ+ rights in India, the Supreme Court collegium has recommended the name of senior advocate Saurabh Kirpal after deferring a decision on his candidature at least four times since 2017. He had played a key role in the decriminalization of Section 377 in India.
The appointment has been a little controversial as his recommendation was deferred four times despite his expertise and experience in the field. During an interview in April 2021, Saurabh Kirpal had opined that his sexuality is the reason behind the delay in his appointment.
“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,” said the SC Collegium resolution.
The recommendation was given by the five-judge Supreme Collegium led by CJI NV Ramana which also includes Justice Uday U Lalit, Justice AM Khanwilkar, Justice DY Chandrachud, and Justice L Nageswara Rao.
“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),” said former Attorney General and acclaimed lawyer Mukul Rohtagi.
Saurabh Kirpal’s Recommendation Deferred Four Times Since 2017
His name was first unanimously recommended by Delhi High Court in October 2017. But collegium had not given a nod to his name citing the Centre’s objections and Intelligence Bureau background check reports.
Intelligence Bureau submitted that Kirpal’s Swiss partner, Nicolas Germain Buchmann who is a human rights activist, is a threat to national security.
Saurabh’s name was recommended on four previous occasions including September 4, 2018; January 16, 2019; April 1, 2019; and March 2, 2021. But every time the decision was deferred citing the IB background check and threat to national security.
Finally, the CJI NV Ramana-led bench has approved the Delhi High Court proposal about Saurabh’s name.
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.
Is This Delay In Saurabh Kirpal’s Appointment A Sign Of Homophobia?
Speculations among the legal circles are high that homophobia is coming in the way of Saurabh Kirpal’s appointment. Even Saurabh had guessed his sexual orientation as the reason behind this delay. His appointment was red-flagged by the Centre claiming conflict of interest as his partner is European and works with the Swiss Embassy.
But, as per the reports, there are and were heterosexual judges who had foreign national partners. Many questioned why only Saurabh’s partner is a security threat.
“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,” Saurabh had said during an interview.
He had added, “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.”
He is a counsel for standup comedian Munawar Farooqui too who was booked for hurting Hindu religious sentiments.
Who is Saurabh Kirpal?
- A seasoned Supreme Court lawyer who has been practicing law for over two decades.
- Son of Justice BN Kirpal, who was the 31st Chief Justice of India in 2002
- Completed B.Sc (Hons) in Physics from St Stephens, Delhi University\
- Went to study law at the University of Oxford
- Completed Masters in Law from the University of Cambridge
- Worked with the United States in Geneva
- Areas Of expertise include civil, commercial and constitutional law
An Accidental Activist
- Saurabh Kirpal calls himself an accidental activist who wants to increase the diversity in the judiciary. He has been an outspoken advocate for LGBTQ rights in India.
- He is the first openly gay lawyer in India and will become the first openly gay judge if recommendation approved.
- He is the trustee of the NAZ Foundation which is one of the first NGOs that works against the criminalization of homosexuality.
- He is the author of the book “Sex and The Supreme Court” which talks about issues relating to law, gender, and sexuality.
- He was the counsel for Navtej Johar and Ritu Dalmia in connection to the Navtej Singh Johar vs Union of India which led to the landmark SC judgment decriminalizing homosexuality under Section 377 of the Indian Penal Code.
