Delhi-based lawyer Saurabh Kirpal, who was one of the lawyers who successfully challenged Section 377 of the Indian Penal Code in the Supreme Court in 2018, has alleged that he was blocked from becoming a judge of the Delhi high court because he is gay.
Kirpal, 48, said he was first asked if he was open to become a HC judge in April 2017 and filled a form as part of his formal consent.
The proposal was cleared by the high court collegium which comprised justices Geeta Mittal, Sanjeev Khanna and Ravindra Bhatt, but got stuck when it was sent to the Intelligence Bureau and Supreme Court for further clearances.
Between September 2018 and April 2019, Kirpal’s elevation came up thrice in the top court’s collegiums, according to Him, but the decision was deferred each time.
“My professional competence was known to the high court and the Supreme Court collegium and 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,” Kirpal told HT.
The top court’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 August 20 under Chief Justice of India SA Bobde.
HT spoke to a judicial officer who was aware of the case and confirmed that the Intelligence Bureau asked for more time to “look into the allegation’’ of his relationship. The SC collegium, he said, could have ignored IB’s report but they decided to wait for their clearance.
When contacted, an IB 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 September 6, 2018 the top court read down the colonial law and decriminalised homosexuality.