Article 377 was just the tip of the iceberg
Overview
Saurabh Kirpal, a well reputed lawyer, an out gay man, and India’s self-proclaimed ‘Accidental Activist’ for the LGBTQ+ community, was on his path to judgeship when ‘a “series of less than pleasant events” occurred, stalling the development for over 4 years now. The government showed apprehensions for his promotion, but the opacity of the collegium system leaves many questions. Is the decision to stall the lawyer’s advancement a result of thousands of years of internalized homophobia? Do India’s highest authorities still battle with workplace prejudice?
Who is Saurabh Kirpal?
Saurabh Kirpal is an esteemed lawyer for the Indian judicial system practicing at the Supreme Court for well over two decades. He has appeared in a range of matters covering a diverse range of subjects from commercial to constitutional law. This is reflected in the variety of clients he has appeared for, from Anil Ambani in his legal battle with his brother to being the counsel for Navtej Johar, Ritu Dalmia and others the flagship case that led to the decriminalisation of Article 377 in the Indian Penal Code. He also is a trustee of the Naz Foundation Trust, the NGO that first fought for decriminalization of homosexuality in India.
What went down?
In 2017 Kirpal was unanimously suggested for elevation to the position of a judge by the Delhi HC collegium. On 22 April 2017, four days after he turned 45- the minimum age for an HC judge- Kirpal gave his consent for judgeship, a difficult choice not devoid of risks.
“Work was going very well, and still is. It was difficult to give all of that up, to give up my freedom, to give up the money, it was all a tough call for me,”
The need to diversify the bench and have a stand-up role model for the community was what eventually persuaded him to answer in affirmative.
Thereafter, a concrete decision regarding the promotion was deferred thrice, despite finding no inadequacies. While his file remains under process, the collegium approved the names of five others that figured in the same list as his. The collegium resolution of 17 August 2020, related to Delhi High Court appointments, made no reference to Kirpal’s recommendation.
Kirpal’s name was discussed during the 2 March meeting between CJI Bobde and the two other collegium members — Justices N.V. Ramana and R.F. Nariman — but the collegium deferred its decision until it received inputs from the government.
Chief Justice of India (CJI) S.A. Bobde subsequently wrote a letter to the central government, giving it four weeks to provide additional information on advocate Saurabh Kirpal. Through his letter he asked Law Minister Ravi Shankar Prasad to give more clarity on the government’s objection to Kirpal’s name.
The Centre in its response has reiterated its apprehensions regarding the appointment, stating that Kirpal’s partner, who is a foreign national, may pose a security threat.
The uncertainty regarding Kirpal’s spouse was first brought to light on 1 April 2019 by the collegium which had then deferred its decision, preferring to seek additional information from the government in the wake of Intelligence Bureau inputs on Kirpal. It is now up to the Collegium to decide whether or not Saurabh Kirpal’s name will be recommended as a Delhi HC judge that it will send to the Centre for HC judicial appointments.
Grounds for non-elevation
What exactly constituted the IB reports? Although the government has officially not spoken against Kirpal’s sexual orientation, it had expressed reservation over his partner being a foreigner. This was highlighted in the Intelligence Bureau (IB) report, which the government had forwarded to the SC collegium after it received the recommendation on Kirpal from the Delhi High Court in October 2017.
The IB had trawled through Kirpal’s Facebook account and attached his picture with his “foreign” partner, a swiss activist who had formerly worked with the Red Cross as well. None of the pictures were offensive or objectionable, though, and there was no direct objection to his elevation. However, the IB report had said that the lawyer’s foreign partner could pose a security risk, causing possible conflict of interest.
The loopholes highlighted
The non-elevation of Saurabh Kirpal to the position of judge raises numerous concerns, notably:
Discrimination: The government shows clear apprehension of Kirpal’s partner, on the grounds of him being a foreign national. This demand is highly disconcerting in a country where many previous supreme court judges have had foreign spouses. Moreover, a fair share of our countries top government officials have international partners. The sudden security concerns raises questions towards the presence of an unstated underlying issue with Kirpal’s partner.
“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”
Procedural inconsistencies: According to the memorandum of procedure (MoP) for appointing high court judges, the proposal for appointment of a judge is initiated by the chief justice of the high court, after consulting two of his senior colleagues. The high court chief justice is then expected to submit copies of his proposal to the CJI, the Union law minister, the state chief minister and the governor to avoid delay. The Union law minister assimilates reports about the candidate which are then forwarded to the CJI for his advice. The CJI then calls a meeting of the three-member collegium of the Supreme Court to form his opinion about the choice. Given this clear procedure, a letter by the CJI asking the government to restates its issues is redundant. The decision still lies completely in the hands of the collegium.
Opacity in the system: Despite the Right to Information laws in India the selection procedure is heavily veiled and the people and the candidate himself left highly unaware.
“This is all mired in a cloud of innuendo. The problem is that the collegium system is opaque and because it is opaque, I cannot say what is the reason and what is there in the mind of judges”
Conclusion
If appointed, Kirpal would be India’s first openly gay judge, opening the doors for increased inclusivity. The move would be a small but much needed step towards reversing the effects of thousands of years of oppression faced by the LGBTQIA+ community. However, if the speed bumps are anything to go by, the process will not be without its challenges and resistance.
“Contrary to a lot of pessimists, I have great hope from the Supreme Court. A long battle has to be fought for the LGBTQ community. We now have sufficient bandwidth on the legal front. The arc of history is long and it always bends towards justice. And that is my belief,”
Sources: The Print, HT, India Today
~ Devangi Sharma
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