Three years after India’s highest court decriminalised homosexuality, the country may get its first out gay judge – Saurabh Kirpal.

Kirpal, who studied law at Oxford and Cambridge Universities and worked for the United Nations before returning to India, has been an advocate for over two decades. He lives with his partner in Delhi. 

Kirpal was part of the legal team that had successfully argued before the Supreme Court in 2018 against the Indian law that criminalised homosexuality.

Indian Government Flags ‘Security Risk’

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The Supreme Court of India collegium – a panel of the senior most judges of India’s highest court – recommended Kirpal’s name as a judge of the Delhi High court. The collegium headed by Chief Justice of India N V Ramana took the decision in a meeting on November 11, 2021. If appointed, Kirpal will be the first out gay judge in India. 

Kirpal’s name had first been recommended as a judge way back in 2017, but had been repeatedly knocked back following objections by the Indian government. The Indian Express reported that in legal circles one of the reasons for the delay in finalising Kirpal’s name as a judge was thought to be because of his sexual orientation.

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As recently as in February 2021, the government had opposed Kirpal’s elevation as a judge citing a report by its intelligence bureau that there was a “conflict of interest” as his partner was not an Indian national and worked with the Swiss Embassy. 

In an interview in April, Kirpal said he believed his sexual orientation was the reason that he was not being considered for elevation as a judge. “The fact that my partner of 20 years is a person of foreign origin is a security risk is such a specious reason that it leaves one to believe that it is not the whole truth. That is why I believe my sexuality is the reason why my candidature has not been considered for elevation as a judge,” Kirpal had said.

In another interview, Kirpal pointed out that having a foreign national as a partner was in itself not a security risk, and an Indian federal minister had a foreign spouse. However, India does not permit same sex marriages, and Kirpal cannot marry his partner who lives with him in a joint family with his parents in Delhi. 

‘If I Had Been Married To My Partner…’

“If I had been married to my partner, there would have been no allegation of what appears to be a security risk,” Kirpal had said in the interview. “It is only because I happen to be a gay person, who cannot by virtue of the law being what it is, get married to the person of my choice, that that person suddenly becomes a security risk.”

In September 2018, the Supreme Court of India had struck down the law that criminalised same-sex relationships between consenting adults. India still does not allow gay marriages. Currently there are a number of petitions filed before high courts in the country for legalising gay marriages. 

The Indian government has opposed the petitions. Last month, the government’s lawyer had told the Delhi high court that marriage was only between a biological male and a biological female. Interestingly, Kirpal who was representing one of the petitioners in the marriage equality petitions before the Delhi high court, will soon become a judge in the same court. 

 

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