Journalism of Courage
While reiterating its recommendation for appointment of senior advocate Saurabh Kirpal as judge of the Delhi High Court, the Supreme Court Collegium Thursday made public both its reasons for reiteration and the government’s objections – Kirpal’s openness about his sexual orientation and his “foreign-national” partner.
The son of Bhupinder Nath Kirpal, who served as the 31st Chief Justice of India in 2002, and Aruna Kirpal, Saurabh Kirpal would be the country’s first openly gay judge if appointed.
The 50-year-old senior advocate, who has been practising for over two decades, studied physics at Delhi University’s St Stephens College before going on to secure an undergraduate degree in law from Oxford University. He earned his master’s degree in law from Cambridge University, and worked at the United Nations, Geneva.
He is on the board of the Naz Foundation, a Delhi based-NGO that works on HIV/AIDS and sexual health. It was on the NGO’s plea that, in 2009, the Delhi High Court declared that Section 377 of the IPC, in so far as it criminalised “consensual sexual acts of adults in private”, was unconstitutional.
In 2013, the Supreme Court overturned the High Court’s decision, holding it “constitutionally unsustainable as only Parliament can change a law, not courts”.
In 2018, Kirpal was part of the team of lawyers that represented Sunil Mehra and Navtej Singh Johar among various petitioners before a five-judge Constitutional Bench of the Supreme Court which went on to give its landmark verdict decriminalising homosexuality.
In other notable cases he has argued, in July last year, Kirpal appeared for digital news platform Newslaundry in the case filed against it by TV Today Network for allegedly tarnishing its reputation through programmes. Kirpal argued that the online portal was raising the “defence of truth”, and fair criticism, even in harsh words, would not amount to defamatory statements. Satire was the flavour of the portal’s programmes, he had said.
In its July 29, 2022, decision, a single-judge Bench of the High Court rejected TV Today’s plea for interim relief, observing that it will “be in the interest of the public that every broadcaster has the right of fair comment on current events and of criticism and review, including of the programmes created by others”.
Currently, Kirpal is representing some of the petitioners in a batch of pleas seeking legal sanctity to same sex marriage, wherein the apex court on January 6 transferred to itself all cases pending before various High Courts. In a similar matter before the Delhi High Court, Kirpal represented a group of petitioners who sought legal sanctity for same-sex marriage under the Special Marriage Act, and a declaration that gender- or sexuality-based restrictions in the Act be read to allow any two persons to marry irrespective of their gender.
In 2020, Kirpal authored and edited the book ‘Sex and the Supreme Court: How the Law is Upholding the Dignity of the Indian Citizen’, which also contains a collection of writings by legal luminaries like Justice M B Lokur, Justice B D Ahmed and Justice A K Sikri, along with advocates like Mukul Rohatgi, Madhavi Divan, Menaka Guruswamy and Arundhati Katju. The book explores the impact of the law on various aspects of sex, sexuality and gender.
Another book authored by him titled ‘Fifteen Judgments: Cases that Shaped India’s Financial Landscape’, published late last year, gives an insight into 15 landmark cases which had an effect on the financial and economic position of the country.
Kirpal’s name as judge for the Delhi High Court was first recommended unanimously on October 13, 2017. The Supreme Court then deferred its decision on recommending his name thrice — in January 2019, April 2019 and August 2020.
In February 2021, then CJI S A Bobde wrote to then Union Law Minister Ravi Shankar Prasad seeking a clarification on the intelligence inputs on Kirpal submitted to the Collegium by the government.
The Indian Express had reported at the time that the government had reiterated its objections on the nationality of Kirpal’s partner.
The following month, in March 2021, the decision on Kirpal still pending, he was designated as a senior advocate unanimously by all 31 judges of the Delhi High Court.
His name was again approved and recommended by the Collegium to the government on November 11, 2021.
On November 25, 2022, the government sought reconsideration of five names, including Kirpal.
The Supreme Court has now revealed communication from the Research & Analysis Wing and former minister Prasad on Kirpal, stating that “it appears that there are two objections to the recommendation which was made by the Collegium of this Court on 11 November 2021 approving the name of Shri Saurabh Kirpal namely: (i) the partner of Shri Saurabh Kirpal is a Swiss National, and (ii) he is in an intimate relationship and is open about his sexual orientation.”
The Collegium’s statement referred to Prasad’s letter which said that although homosexuality had been decriminalised, same sex marriage did not have legal recognition “either in codified statutory law or uncodified personal law in India”. The letter further said that Kirpal’s “ardent involvement and passionate attachment to the cause of gay-rights” would not rule out the possibility of bias and prejudice.
Countering the government’s objections, the Collegium said that there was “no reason to presuppose that his (Kirpal’s) partner would be inimically disposed to our country, since the country of his origin is a friendly nation”.
On the Centre’s concerns about Kirpal’s sexual orientation, the Collegium said that “it would be manifestly contrary to the constitutional principles laid down by the Supreme Court to reject his candidature on that ground”. The Collegium credited Kirpal for his openness about his orientation. “As a prospective candidate for judgeship, he has not been surreptitious about his orientation,” the statement said.
