The Intelligence Bureau’s advice to the central government to stall lawyer Saurabh Kirpal’s elevation as judge to the Delhi High Court is nothing but a homophobic alibi.

Kirpal is a respected Delhi High Court lawyer with a slew of successful cases to his credit. He was unanimously recommended for elevation by a Delhi High Court collegium as early as October 2017. However, the Delhi High Court collegium’s recommendations were referred to a Supreme Court collegium, comprising Chief Justice of India SA Bobde, Justice NV Ramana and Justice RF Nariman. The Supreme Court collegium did not routinely approve of Kirpal’s elevation, as it does in most other cases. Instead, it deferred the matter for the fourth time and wrote to Law Minister Ravi Shankar Prasad to seek his opinion.

Kirpal, a gay man, believes that the three-member Supreme Court collegium did not take a decision on his elevation, but referred the matter to the central government, on account of his sexual orientation. The central government’s unwillingness to elevate Kirpal is based on an Intelligence Bureau report. In April 2019, former CJI Ranjan Gogoi, Justice Bobde and Justice Ramana discussed the IB report and kept Kirpal’s judgeship in abeyance.

Ostensibly, the Intelligence Bureau’s advice to the central government not to elevate Kirpal was not on account of his sexual orientation, but because his partner was a foreign national. This, they argued, was a security risk. However, it wasn’t made clear how a judge’s partner who is a private individual, foreign or otherwise, can be a security risk to the nation. One wonders if the same argument would be put forth by the IB if a heterosexual male judge had, say, a British or American wife or partner.

Contradictory stand

The truth is that heterosexuality is seen as decent while homosexuals are stereotypically regarded as debauched and promiscuous. Ironically, one of the judges who discussed the IB report was Justice Ranjan Gogoi who in September 2018 headed the five-judge constitutional bench that read down Section 377 of the Indian Penal Code, which criminalised what it called “unnatural sex”.

The bench was hearing a curative petition filed by a host of activists challenging the Supreme Court’s own December 2013 judgement reinstating Section 377, after the Delhi High Court had read it down in July 2009. In effect, the Supreme Court in September 2018 was upholding the landmark Delhi High Court judgement of Justice AP Shah that privileged constitutional morality over public morality.

That being the case, it seems like a contradiction for the top judges – former CJI Ranjan Gogoi and present CJI SA Bobde, as well Justice NV Ramana, slated to be the next CJI after Justice Bobde’s retirement on 23 April this year – to abide by the IB report, rather than challenge it.

A question of privacy

Probing into a judge’s – or anyone’s – private life amounts to unwarranted surveillance. It is this that led the Allahabad High Court to adjudicate in favour of an Aligarh Muslim University professor in 2010, when the university, by virtue of a dubious sting operation, caught him having sex with another man in his bedroom. The university was categorically told by the court that it had no right to install spy cameras and break into the professor’s flat, even if it believed, as the prosecution argued, that homosexuality was a social evil.

The AMU case happened in 2010 when the Supreme Court had not yet overturned the Delhi High Court ruling of July 2009.

Likewise, refusal to elevate Saurabh Kirpal comes at a time when the Supreme Court has itself decreed that consensual sex between adult homosexuals is not an offence. It is the timeline that is of essence here. The Intelligence Bureau’s position in 2019 is very similar to that of AMU in 2010.

Representation and justice

If women judges can swing a verdict in favour of women, and therefore need to be adequately represented in the judiciary, the LGBTQIA community – those who identify as lesbian, gay, bisexual, transgender, queer, intersex and asexual – too needs to have its own members as judges, as long as they possess the requisite qualifications, so that justice isn’t denied to us.

We saw recently how the central government refused to give its sanction to gay marriage, viewing the institution of marriage in a characteristically heteronormative and hetero-patriarchal manner. The presence of a judge like Saurabh Kirpal on the bench can make all the difference, for a gay judge would be in a position to bring the required sensitivity and learning to cases concerning the LGBTQIA community, as well as other marginalised groups.

On the other hand, refusing to elevate a candidate as judge merely on his account of his sexual orientation will drive other eligible candidates who may be gay back into the closet. At a time when our courts face a huge shortage of judges, this is clearly undesirable.

Missing sensitivity

In recent times, there have been several instances of insensitive and misogynistic behaviour on the part of judges. A 22-year-old rape victim has complained to CJI Bobde against sessions judge Sanjay Khanagwal, who, according to her, laughed at lewd remarks made by defence lawyer Vijay Aggarwal while hearing her case. CJI Bobde himself has been in the dock for allegedly asking a rapist whether he was willing to marry the minor girl he had repeatedly raped. Bobde, of course, has denied the charge, saying that his statements were misconstrued.

Similarly, when the Section 377 case was being heard in the Supreme Court in 2013, and a reference was made to noted writer Vikram Seth, the two-judge bench, comprising Justice GS Singhvi and Justice SJ Mukopadhaya, allegedly sniggered at the fact that they did not know Seth was “that way inclined” although they enjoyed reading his books.

The government of India would do well to ask itself whether the examples cited above, which, needless to say, are only the tip of the iceberg, are less of a social evil, than a homosexual judge of good moral character being made a member of the esteemed judiciary. Or, to the government’s way of thinking, is being gay synonymous with being immoral?