Indian Government Rejects Appointment Of Out Gay Judge

The Indian government has rejected calls for the appointment of an out gay lawyer to the post of a High Court Judge, citing his sexual orientation. 

Last week, the Supreme Court of India Collegium – a panel of senior judges – reiterated their recommendation to appoint  Saurabh Kirpal as a judge of the Delhi High Court. The top court affirmed his qualities of “competence, integrity and intellect” for the position. The collegium previously recommended the appointment of advocate Kirpal in November 2021. 

The collegium made a public statement, defending their decision, calling Kirpal’s potential appointment as one that would “add value to the bench of the Delhi High Court and provide inclusion and diversity”. 

Judge Is Openly Gay, Says Indian Government

However, a statement released on Wednesday detailed the government’s opposition to Kirpal’s appointment, explaining that there were concerns with the openness of his sexual orientation and that his “ardent involvement and passionate attachment to the cause of gay rights” would not rule out the possibility of bias and prejudice.

The government referenced the letter of the Law Minister from April 2021 which states that despite homosexuality’s decriminalisation status in India, same-sex marriage still “remains bereft of recognition either in codified statutory law or uncodified personal law in India”. The government also objected to the fact that Kirpal’s partner was a Swiss national.

In India, the process for appointing Judges of the Supreme Court occurs following consultation with fellow judges. Five senior judges, including the chief justice of the Supreme Court, are in charge of the selection process and refer them to the Justice Ministry. 

The Collegium defended Kirpal as a prospective candidate for the judgeship, stating that “in view of the constitutionally recognised rights which the candidate espouses, it would be manifestly contrary to the constitutional principles laid down by the Supreme Court to reject his candidature on that ground.”

Saurabh Kirpal Speaks Out

Senior advocate Kirpal spoke at a Kolkata Literary event recently and criticised the government’s decision to reject his appointment and emphasised the importance for a judiciary to hold different interests and life experiences as it represented diversity. 

As reported by India Today, Kirpal condemned the idea of assuming a judge could be “completely divorced from their upbringing, the social milieu, their perceptions and ideas” as it would shape “who they are and when they interpret any ambiguous word in the Constitution”.

Kirpal added that decisions like these came at a disservice to judges in the legal system because “while there is ambiguity, it’s not like the judges are completely unconstrained by what the law says..they are bound by the law.”

“It is in these margins of ambiguity where their life experiences frame what they say, not as an act of overt intention, but as a matter of subliminal upbringing, I suppose. 

That is not a question of bias. Bias is when you go out with a predetermined mindset– that I will always rule in favour of a particular something. That is not typically how a judge should think in our system,” he added.