A question of preference: Meet Saurabh Kirpal, senior advocate, SC

“In 2018, India’s Supreme Court said being a homosexual is not just about the sexual act you perform in the privacy of your bedroom. It is more than that. It is about the right to equality, the right to dignity that the Constitution guarantees to every citizen of our country. And the fact that I have the freedom to choose my own partner in life, not just for sex but for my partner in life…any attempt to discriminate on the basis of whom I have chosen as my partner is a violation of the judgment in spirit, but almost certainly also in letter!” said senior Supreme Court advocate Saurabh Kirpal, 49, in an interview to journalist Faye D’Souza.

The time to test the proposition has arrived. The Supreme Court collegium, headed by Chief Justice N V Ramana, has recommended Kirpal’s elevation as Delhi High Court judge. If the government accepts the recommendation, India will get its first openly gay judge.

His story, the frustration and prejudice that has dogged his professional and, by extension, personal life, begins in 2017, when Kirpal, who has a lucrative practice, was approached by Justice Gita Mittal to become a Delhi high court judge. He agreed. But the matter did not progress beyond that.

Exactly why, nobody knows. It could be, Kirpal says, because his partner of 20 years is a Swiss national. But the wife of Vivian Bose, a Supreme Court justice in the fifties, was American. The current minister of external affairs has a Japanese wife. So could it be that it was not the nationality of his partner but his sexual orientation that was coming in the way?

The Supreme Court collegium has forwarded his name four times. Former Chief Justice of India S A Bobde even wrote to then Union Law Minister Ravi Shankar Prasad, asking for clarification on the intelligence inputs on Kirpal. It is not known whether he received a reply. Sources said it was the law ministry that had been sitting on the file. But even that is not clear.

Kirpal has had a brilliant professional career. He has worked on several important cases, including the landmark petition that led to the decriminalisation of Section 377, which deemed consensual same-sex relations a crime. He represented petitioners Navtej Johar and Ritu Dalmia in the Supreme Court. His friends say he has the capacity to immediately get to the nub of the matter on a range of legal issues — from the citizenship law to the complexities of corporate and business law. “And he can talk about law while cooking up a great curry,” one of his friends says.

Kirpal read physics at St Stephen’s College in Delhi and went up to Oxford. He also has a master’s degree from Cambridge University. He worked briefly with the United Nations in Geneva before returning to India in the 1990s. His father, B N Kirpal, was Chief Justice of India. Kirpal has worked with former Attorney General and well-known lawyer Mukul Rohatgi. He has also edited a book, Sex and the Supreme Court.

Senior Supreme Court advocate Sanjay Hegde strongly rejects the suggestion that diversity tokenism is responsible for Kirpal’s elevation. “He is a very good lawyer and he has been recommended (for judgeship) based on undoubted competence, to which his background and lineage must be added. If he’d been straight, he would have become a judge a long time ago. No one would have been able to stop him” Hegde told Business Standard.

Now, many senior members of the bar are waiting to see what Chief Justice Ramana will do on the matter — acquiesce before the government or take the judiciary on a new trajectory of independence and assertion.

No one in the government is saying much. But the Rashtriya Swayamsevak Sangh (RSS) has a confusing stand on the matter. In a book titled The RSS: Roadmaps for the 21st Century, senior RSS leader Sunil Ambekar quotes its general secretary Dattatreya Hosabale as saying: “I don’t think homosexuality should be considered a criminal offence as long as it doesn’t affect the lives of others in society. Sexual preferences are private and personal.” But he adds that Hosabale has clarified that “gay marriages should not be institutionalised for it will institutionalise homosexuality. So it should be prohibited”.

In the coming months, a landmark case will play out in the courts. On November 30, the Delhi High Court will hold final hearings on the legalisation of gay marriage. Solicitor general Tushar Mehta, appearing for the central government, has submitted to the court that marriage in India is permissible only between a biological man and a biological woman. Kirpal’s elevation and the high court order will indicate in which direction India is going.