No other possible reason but my sexuality: Advocate Saurabh Kirpal on delay in promotion

Senior Advocate Saurabh Kirpal on Saturday said that the real reason why the Centre has not acted on the recommendation for his elevation as a judge is his sexuality. If appointed, Kirpal would become India’s first openly gay judge.

Addressing the Sahitya Aajtak 2022 event in Delhi, advocate Kirpal said, “I don’t think there is another way of saying it. There were 12 recommendations, 11 were appointed and I am not. What’s the reason? The alleged reasons are so specious, that you think the real reason is my sexuality. There’s no other possible reason.”

Advocate Kirpal spoke of the delay in getting promotion as a judge during the launch of his book ‘Fifteen Judgements: Cases that have Shaped the Financial Landscape of India’ at Sahitya AajTak 2022 on November 19.

Kirpal was responding to a question put to him by India Today’s Consulting Editor Rajdeep Sardesai, who asked if the government has held up his judgeship as he has openly declared his sexuality and the government cannot accept a gay judge.

‘REAL REASON: MY SEXUALITY’

Kirpal said if one scratches the surface to examine the reasons for delay in promotion as a judge, it’s clear that the real reason is his sexuality. He said he learned from some informed sources from the Collegium that this is in fact the reason. 

Responding to another question as to whether he made an effort to find out from the government as to why his appointment is being held up, Kirpal said that he believes a candidate for judge should have no interaction with the executive and hence he hasn’t made any such effort.

Kirpal said that being a judge is not something he is dying to do for personal ambition and being a judge requires independence from its very inception. He noted that if he starts interacting with the executive to find out why they’re not making him a judge, he would be starting his judicial career on a very weak footing.

Calling both the Collegium system and the government ‘opaque’, he said the government hasn’t approached him either on the issue.

‘I FEEL LESS THAN EQUAL’

When asked if, as an individual, he feels less than equal today as the institution that he has been a part of and the government seems to almost reject him for simply being honest and candid about his sexuality, advocate Kirpal answered in the affirmative.

“Of course, I feel less than equal. It’s quite evidently the case that it’s less than equal,” he said.

With regard to his non-appointment as a judge, Kirpal said that he would not be given a free pass by the Collegium either. According to him, the Collegium isn’t exactly doing anything about it and too is sitting on the file.

“It takes two to tango. It’s very easy to blame the government. But it is not that Collegium has covered itself with glory either,” he said.

ON SECTION 377

In another important statement, Kirpal referred to the Supreme Court’s landmark verdict on Section 377 decriminalising homosexuality. Noting that the judgment doesn’t mean ‘all is well’, Kirpal said that all the judgment did was to ensure that the person who has consensual private sex doesn’t go to jail. The prejudices still exist and haven’t disappeared, he added.

“Every young person who thinks that the Section 377 judgment was about equality, freedom and liberating everyone, that’s simply not true,” advocate Kirpal said.

According to Kirpal, the vast majority carry on thinking like they did earlier, including the government, which wasn’t rejoicing and embracing reading down of Section 377.

He added that the bureaucrats, politicians etc all of them have a certain mindset, a worldview that lags 20 years behind the rest of the world, and certainly 20 years behind youth of this country.

Kirpal also said that the Supreme Court isn’t in the habit of giving advice, and its judgments are meant to be followed. He said that individual citizens are expected to follow the law of the land, to obey judgments of court, and in a court, an individual is the same as a government. Therefore, it can’t be that individuals are forced to follow a law, but the government gets a free pass.

‘JUDGESHIP A CALLING’

When asked if he had thoughts of withdrawing his consent for judgeship, Kirpal said that he would not withdraw his consent. He said that his reason for accepting judgeship was always about personal service and ‘a calling’ and not personal ambition.

He also had an added reason that he was from a community [queer community] not represented on the bench.

“Whether I become a high court chief justice or not, or go to the Supreme Court or not, that is not relevant. I don’t really mind if, in five years or whenever, if ever this happens, I would lose out on my seniority. So that’s why I will not withdraw my consent,” advocate Kirpal said.