Senior advocate Saurabh Kirpal, son of the 31st Chief Justice of India, Bhupendra Nath Kirpal, may soon be sworn in as a judge of the Delhi High Court because the Supreme Court collegium, led by the present CJI DY Chandrachud and comprising Justices SK Kaul and KM Joseph, has reiterated his name for the judgeship.
India will join the ranks of advanced countries like the USA where the sexual orientation of an incumbent judge does not mar the prospects of being elevated. There have been judges like Michael Walter Fitzgerald who was a district judge and the first openly LGBT person to be appointed to the federal bench in California. It becomes apparent that sexuality and morality, like the concept of justice, are creations of the human mind, and do not prevent a judge who is openly gay from ensuring that the common man gets justice.
It was the former Acting Chief Justice of the Delhi High Court, Gita Mittal who had recommended Saurabh Kirpal's name to the Supreme Court collegium five years ago, but the governemt blocked his recomendation along with advocates Somasekhar Sundaresan of the Bombay High Court and John Sathyan of the Madras High Court. Despite iteration of these three names, the government has not yet issued the warrants of appointment for them.
All 31 judges of the Delhi High Court were unanimous in conferring the designation of senior advocate on Kirpal, who studied law at the University of Oxford followed by the University of Cambridge. He did a brief stint at the United Nations in Geneva before returning to India to set up practice. Born on April 18, 1972, Kirpal has written a book titled Sex and Supreme Court: How the Law is Upholding the Dignity of the Indian Citizen. The book is much sought after by lawyers and laypersons alike.
Saurabh Kirpal is a person of prodigious intellect and one of the most sought after advocates in Delhi. He has a roaring practice, although the Intelligence Bureau has raised concerns about the possible leakage of state secrets to a foreign country, as Kirpal has an intimate relationship with Swiss national Nicolas Germain Bachmann, who works for the Swiss Federal Department of Foreign Affairs in New Delhi.
The Supreme Court collegium led by CJI Chandrachud had demolished this argument by pointing out that Switzerland is not a hostile country and it is in the wildest realms of imagination that a putative high court judge like Saurabh Kirpal would divulge state secrets to his Swiss partner. There is no doubt that Kirpal, like Somasekhar Sundaresan and John Sathyan who were cleared to be sworn in as judges of the Bombay High Court and Madras High Court, respectively, were also lawyers of integrity and intelligence.
Kirpal has stated the obvious — that every judgment is a personal opinion of a judge or judges, which changes based upon the law and facts presented before them. Judgments are moulded by a judge's religious belief, his world view, his subjective experiences as a lawyer and whether he is pro- or anti-government. One cannot disagree with these dictums propounded by Kirpal, who has said that the same facts presented before two different benches of the Supreme Court will culminate in two different judgments.
These views are accepted by senior advocates who have been practicing in the Supreme Court for decades. There is something known as “bench-hunting” which means that when certain judges are known to have pronounced views on certain aspects of the law, the lawyers delay filing their petitions until the inconvenient judge has either retired, if he is due for retirement, or the assignments of the judges have changed.
The aphorism that “what is justice for one is injustice for another” is borne out by the fact that there are judges who are tilted towards the government and have even declared in public their open admiration for Prime Minister Narendra Modi. There is nothing wrong in this, except for the fact that the government is the biggest litigant in the Supreme Court and also the 25 high courts. The government may be interested in just one out of 200 petitions such as the sensitive Rafale fighter jet deal which was challenged in the Supreme Court. The verdict went in favour of the government, because law is malleable and can be moulded either for or against the government, depending upon the views of the majority judges on the Bench.
Justice KM Joseph who reiterated the name of Saurabh Kirpal for elevation to the Delhi High Court, knows very well what it is to be victimised by the government. This is because the government blocked his elevation to the Supreme Court on some specious ground. Kirpal is facing the same situation as Justice KM Joseph. Intellectual calibre overrides archaic views of the government on sexuality and morality. There is no doubt that advocates Saurabh Kirpal, Somasekhar Sundaresan and John Sathyan will be assets to the judiciary and should be elevated as early as possible.
Olav Albuquerque holds a PhD in law and is a senior journalist and advocate at the Bombay High Court
