Retired Supreme Court Justice Sanjay Kishan Kaul says India’s central government told the court’s collegium the country wasn’t ready for an openly gay judge while it sat on Senior Advocate Saurabh Kirpal‘s appointment to the Delhi High Court.
Kaul, who retired in December 2023, has been giving interviews ahead of his memoir, “Without Fear or Favour.” It launches Nov. 25, ThePrint reported Oct. 29.
He told ThePrint’s Bhadra Sinha that he and then-Chief Justice D.Y. Chandrachud pressed the government on Kirpal’s file. The answer came back in Hindi: “desh abhi tayyar nahin hai.” The country isn’t ready yet.
“I would say, if he would not have been gay I believe he would have been appointed,” Kaul said. Sexuality only came up, he said, because Kirpal “did not have any other negatives.”
Kaul also told ThePrint about India’s 2023 same-sex marriage case, where he and Chandrachud were in the minority. He said he was surprised Justices Ravindra Bhat and Hima Kohli didn’t side with them. “Ultimately, we were not giving it a status of marriage, but a status of a union,” he said.
Kaul Tells ANI and The Wire That Kirpal’s Name Is Still in Limbo
Kaul made the same case to ANI on Oct. 28. The objection “was their perception that the country is not ready to have a gay judge,” he said. “I think it was a loss not to have had him.”
“He never withdrew his consent to become a judge,” Kaul said. “The government never cleared it and the Collegium never dropped it.”
He said he told Kirpal more than once to keep the vacancy alive until he turns 62, the retirement age for high court judges.
Kaul was blunter with The Wire’s Karan Thapar in an interview published Oct. 27. “It is clearly a factor that he is openly gay,” he said.
The 2023 Collegium Resolution on Kirpal’s Swiss Partner
The Delhi High Court collegium unanimously recommended Kirpal on Oct. 13, 2017. The Supreme Court collegium approved him on Nov. 11, 2021. On Nov. 25, 2022, the government sent the file back.
In January 2023, a collegium of Chandrachud, Kaul and Justice K.M. Joseph published the government’s objections along with its own answer. The resolution noted that Kirpal’s partner is a Swiss national. It also cited an April 1, 2021, letter from the law minister about Kirpal’s “ardent involvement and passionate attachment to the cause of gay-rights.”
The collegium said reports from R&AW, India’s foreign intelligence agency, raised no worry about the partner’s “individual conduct or behaviour.” Then it took on sexuality head-on. “The fact that Mr. Saurabh Kirpal has been open about his orientation is a matter which goes to his credit,” the resolution said.
Then-Law Minister Kiren Rijiju called the release of intelligence material “a matter of grave concern,” PTI reported on Jan. 24, 2023.
What Saurabh Kirpal Has Said About Being Passed Over
Kirpal is the son of former Chief Justice B.N. Kirpal and was counsel for key petitioners in the 2018 case that ended Section 377’s ban on gay sex, Deccan Herald reported in 2021.
He’s said what Kaul is saying now for years. “The reason is my sexuality, I don’t think the government necessarily wants to appoint an openly gay person to the bench,” he told NDTV in November 2022, as quoted by Deccan Herald. He also pushed back on reports calling his partner a human rights activist. “He’s working as a visa officer in the embassy and has nothing to do with human rights.”
In 2020, when his file had been deferred again and again, he told The Week that “there is no other explanation for me than that this is because of my alternative sexuality.”
A December 2022 interview with The Quint, quoted by Verdictum, brought up India’s first tribal president. “Maybe it’s okay to be a Tribal Women President but to be a Gay Judge is a step too far,” Kirpal said.
No public response from the Law Ministry or from Kirpal to Kaul’s account had been reported as of Oct. 29.
