The curious case of Saurabh Kirpal

Senior lawyer Saurabh Kirpal’s name was recommended by the collegium for elevation as judge of the Delhi High Court, but the Union government has reportedly sent it right back. Kirpal himself confided to the media that his elevation has been delayed “at least since 2017” due to his homosexual orientation.

A year after his name was reiterated by the collegium headed by the then Chief Justice N.V. Ramana, Kirpal’s name was sent back by the Centre to the Supreme Court collegium for “reconsideration”.

A story that brings to mind the proverbial ugly duckling. Just as Hans Christian Andersen’s fairytale made room for an all-too-realistic reading of bullying and discrimination on the grounds of perceived difference, so too in Kirpal’s case.

The foreign nationality of Saurabh Kirpal’s life partner is cited as a security risk vis-a-vis his elevation to the high court. That this should unnerve the Union government in this day and age is odd enough. Even more curious are the objections made by a government in which several ministers happen to have spouses of foreign nationality.

The Union government also conveniently forgets instances from the history of Independent India. Justice Mohammad Hidayatullah rose to be the Chief Justice of India despite his brother Mohammad Ikramullah having served as Pakistan’s first foreign secretary. It did not pose any security risk then.

Justice D.Y. Chandrachud, then a puisne judge and now the Chief Justice of India, observed while decriminalising homosexuality in India in Navtej Singh Johar & Ors. vs. Union of India in 2018 that ‘Our Constitution is, above all, an essay in the acceptance of diversity. It is founded on the vision of an inclusive society which accommodates plural ways of life.

'The impact of Section 377 has travelled far beyond criminalising certain acts. The presence of the provision on the statute book has reinforced stereotypes about sexual orientation. It has lent the authority of the state to the suppression of identities […] in recognising the rights of LGBTQ community, the Constitution asserts itself as a text for governance which promotes true equality.’

The lofty promise of an inclusive society that accommodates plural ways of life and true constitutional equality, however, remains as a dead letter till now, even though Article 16 of the Constitution of India stipulates that no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect for any employment or office under the State.

It is ironical that Kirpal, a senior lawyer and constitutional expert himself, is being denied equality of opportunity in a matter of public employment promised under Article 16, purely on the ground of his sexual orientation. Then the promises given by the Constitution and the Supreme Court look like nothing but the apples of Sodom.

In Sex and the Supreme Court: How the Law Is Upholding the Dignity of the Indian Citizen, Saurabh Kirpal (who also edited the book) has an essay, ‘Pride versus Prejudice’, in which he writes, ‘In a way, Section 377 was not only about a sexual act. It was so much more. By prohibiting homosexual acts, the very identity and sense of self-worth of an individual was stripped and negated […]

'Criminalisation was a signal by the state that a homosexual was not an equal citizen of the country, but was the child of a lesser god—a deviant. In reading down Section 377, the Supreme Court has sought to restore the dignity of the individual and also hold that the State has no business interfering with the most intimate aspects of a person’s behaviour and way of life. The judgment is thus not just a charter of freedoms for the LGBTQ community but also a beacon of hope for every person who has borne the brunt of oppression.’

But even four years after the Navtej Singh Johar judgment, Section 377 lingers in the Indian legal ecosystem. The ebullient hope expressed by Kirpal is shattered in his own judicial career! Is the State signalling that not merely Kirpal, but the LGBTQ+ community in India as a whole, is also the child of a lesser god?

Kirpal is a potential Thurgood Marshall of India’s LGBTQ+ community. Thurgood Marshall was an American civil rights lawyer and jurist who served as an associate judge of the Supreme Court of the United States from 1967 to 1991.

Marshall was the Supreme Court’s first American Black judge. Prior to his elevation to the bench, he was an attorney who successfully fought for civil right litigations for the African American community. Remarkable among them is Brown vs Board of Education (1954) which rejected the separate but equal doctrine, and held segregation in public education to be unconstitutional.

Kirpal likewise was the counsel for Navtej Johar, Ritu Dalmia and others in the historic Navtej Singh Johar case that led to the reading down of Section 377 of the Indian Penal Code in 2018.

Justice Chandrachud—who had expressed the hope that in recognising the rights of the LGBTQ+ community, the Constitution had asserted itself as a text for governance which promotes true equality— presently heads the Supreme Court collegium. Under the provisions of the Memorandum of Procedure for the appointment of the judges, if a name is sent back to the Union government by the collegium, the government will have to clear it.

This provision leaves a ray of hope, not only for Saurabh Kirpal but for all those who thirst for equality and justice.