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SC collegium’s endorsement of Saurabh Kirpal as Delhi HC judge is very welcome. Govt must not stand in the way

Government has no business in objecting to Kirpal’s choice of partner, entirely a personal matter. It must respect the collegium’s decision — and not stand in the way of what will be a milestone in Indian queer rights history.

By: Editorial |
Updated: November 17, 2021 10:14:34 am
If the government does not demur, the decision will clear the path for the appointment of India’s first openly gay judge.

After a long delay of four years, the Supreme Court collegium, headed by Chief Justice N V Ramana, has finally recommended advocate Saurabh Kirpal’s elevation as Delhi High Court judge. If the government does not demur, the decision will clear the path for the appointment of India’s first openly gay judge. In the four years that the collegium took to arrive at a decision on his candidature, the judiciary took long strides in expanding the constitutional promise of equality. In 2018, a landmark decision by the Supreme Court decriminalised consensual same-sex relationships between adults, setting free India’s sexual minorities from the discriminatory taint of a colonial-era law. And yet, the reluctance in endorsing Kirpal, and the murmurs over his personal life, appeared to belong to an earlier, regressive era of suspicion of queer life. The Supreme Court collegium deferred a decision on Kirpal not once, but four times. Perhaps, it was influenced in some measure by the government repeatedly objecting to Kirpal’s name on the grounds that his partner being a foreign national led to a “conflict of interest” and a “security risk”. The former CJI, S A Bobde, had even written to the Union law minister, asking for clarification on the intelligence inputs on Kirpal. The opaqueness of the collegium’s decision-making process makes it hard to be certain, but it was not an argument that convinced Kirpal, who has gone on record to say that he was being passed over because the highest echelons of the judiciary and executive were uncomfortable with the idea of a homosexual judge.

That the Supreme Court collegium has now shed its apparent reluctance, and recommended Kirpal is heartening. It is also a recognition that the queer rights movement that culminated in the Navtej Johar and others vs Union of India judgment, with the Supreme Court’s ringing endorsement that “the choice of LGBT persons to enter into intimate sexual relations with persons of the same sex is an exercise of their personal choice, and an expression of their autonomy and self-determination”, has rippled out beyond the idea of decriminalisation. It will do more, it will demand greater equality of opportunity and non-discrimination from the state. Indeed, institutions across the board are faced with the challenge of greater inclusiveness —whether in terms of gender or caste or sexual orientation — as societies shed their prejudice and bias. The judiciary, on many occasions the champion and catalyst of such progressiveness, is itself not an exception to this change.

The ball is now in the government’s court. It has no business in objecting to Kirpal’s choice of partner, entirely a personal matter. It must respect the collegium’s decision — and not stand in the way of what will be a milestone in Indian queer rights history.

This editorial first appeared in the print edition on November 17, 2021 under the title ‘‘Justice’ Kirpal’.

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First published on: 17-11-2021 at 03:28:15 am
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