Saurabh Kirpal: Every judge will have a viewpoint… That’s not bias

Speaking at an event at the Kolkata Literary Meet, when asked about the government’s concern that he may “lack objectivity” given his “passionate” involvement in causes such as “gay rights”, Kirpal said, “It is a fallacy to assume that a judge can be completely divorced from their upbringing, from the social milieu, from their conceptions, ideas etc. It shapes who they are. And when they interpret any ambiguous word in the Constitution, then… that word means differently to a person from a rich, upper-caste family as opposed to a Dalit… to a woman… Of course, your ideologies will shape what you interpret. But to say that because you have a particular ideology therefore you are biased is a reason to stop appointing judges altogether because every judge will have some kind of viewpoint from where they come.”

Talking of the need for more diversity on the bench, he said, “…currently we have uppercaste, hetrosexuals, men on the bench, all of whom have a certain kind of bias. That’s not the audience I see in front of me, that’s not the country I live in, so must not the bench reflect a part of what society itself is? I would rephrase what you call ‘bias’ as alternative life experiences.”

Kirpal underlined his position later, in an exclusive interview with The Indian Express, when he said that despite their so-called “biases”, “it is not as though judges are… completely unconstrained by what the law says… They are bound by the law. It is in the 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. That is not a question of bias…”

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Saying judges handle a wide variety of cases, Kirpal said “even if a judge is biased about one thing… allegedly”, that judge is “very rarely likely to deal with a case which has a bias and if it does happen, there is a well-established concept of recusal… If you find you are unable to hear a case because of bias, don’t hear that case”.

On collegium system, he said while “it’s not a perfect system”, but given political, legal conventions that caused the judgment to be delivered in 1993 [Second Judges case that led to creation of collegium system]… maybe they persist even today and that’s why you have to tinker with things.”