I was not made Judge of High Court due to my Sexual orientation, reveals Lawyer

Delhi-based lawyer Saurabh Kirpal, who was one of the lawyers who successfully challenged Section 377 of the Indian Penal Code in the Apex Court in 2018, has claimed that he was blocked from becoming a Judge of the High Court of Delhi because he is gay.

Kirpal, 48, said he was first asked if he was open to becoming a HC Judge in April 2017 & filled a form as part of his formal consent.

The proposal was cleared by the HC Collegium which comprised Justice Geeta Mittal, Justice Sanjeev Khanna & Justice Ravindra Bhatt, but got stuck when it was sent to the Intelligence Bureau & Top Court for further clearances.

Between Sept 2018 & April 2019, Kirpal’s elevation came up thrice in the SC’s Collegiums, according to Him, but the decision was deferred each time.

Kirpal told the news agency that “My professional competence was known to the high court & the Supreme Court collegium & my case for elevation was presumably not deferred for that reason. Media reports seemed to indicate the issue might have been the nationality of my partner who is Swiss. Had I been a straight man with a foreign spouse, this would not have been an issue; former Supreme Court judges have had foreign spouses. But it became an issue only because I am not".

The SC’s website that lists the names of candidates considered by the SC collegium continues to cite Kirpal’s case, indicating it was considered. The last time the SC Collegium met was on Aug 20 under CJI SA Bobde.

The news agency spoke to a Judicial Officer who was aware of the case & confirmed that the Intelligence Bureau asked for more time to “look into the allegation’’ of his relationship. The Supreme Court Collegium, he said, could have ignored IB’s report but they decided to wait for their clearance.

When contacted, an Intelligence Bureau official said, “ The SC has decriminalised section 377, so why should it be a factor?’’

But Kirpal said he believed his sexuality was the only stumbling block. “The aim was to have diversity on the bench. I really believe it could change the lives of so many LGBT [lesbian, gay, bisexual, transgender] people in India.’’

In 2018, Kirpal was part of the legal team that argued against section 377, which criminalized intercourse “against the order of nature”. On Sept 6, 2018 the Supreme Court read down the colonial law & decriminalised homosexuality. 

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