Diversified Judicial Bench

By – Sarika Agarwal, SY BA LLB (Hons.)

The Supreme Court collegium has finally approved the proposal of elevating Adv. Saurabh Kirpal to the Delhi High Court. This news has been making headlines because of the sexual orientation of Saurabh Kirpal. He is the first-ever gay advocate to be appointed as a Judge in any high court of India.

Kirpal was a junior lawyer working under Advocate Mukul Rohatgi’s chamber before becoming a senior advocate. He has received his education from St Stephens College, Delhi, Oxford, and Cambridge University. His father, Justice B.N. Kirpal served as the 31st Chief Justice of India. Since the very beginning, Advocate Kripal has taken active participation against the injustice experienced by the LGTBQ+ communities and was also the counsel to Navtej Singh Johar, Ritu Dalmia, and others in the landmark case of Navtej Singh Johar v Union of India, bringing down Section 377 of the Indian Penal Code, which criminalized all sexual acts believed to be “against the order of the nature.”

Saurabh Kirpal got his approval after fighting a remarkable and long-drawn legal battle over the period of four years. He has also written a book titled “Sex and the Supreme Court.” According to the reports, his name was given for the elevation in 2017 by the acting Chief Justice Geeta Mittal but did not get a clean chit until November 2021. The government has never actively spoken about deferment of Kirpal’s application but had expressed concerns over his partner being a foreign citizen. According to the report submitted by the Intelligence Bureau, the Advocate’s foreign partner could pose a security threat to the nation. This report was then forwarded to the Supreme Court Collegium after it received the recommendation on Kirpal.

On 1st April 2019, the application was again taken into consideration by a collegium led by then CJI Rajan Gogoi with two other members. Kirpal was among the 18 other proposals that were pending before the collegium for a long time. While the other names were cleared, Kirpal’s name was held back. The collegium cancelled the appointment asking the government to carry out a deeper investigation with the Investigation Bureau’s report on the advocate. In response to CJI Bobde’s letter dated 2nd March, the government again raised objections to the advocate’s foreign partner. It was recorded that he was working at the Swiss embassy and also with a Switzerland-based non-profit organization before this job.

However, in an interview given by Advocate Kirpal last September, he told the press that he believes the delay in his appointment is merely due to his open acceptance of his sexual orientation. Apart from this recent incident, India also witnessed its first-ever transgender Judge in 2017. Eight years after Joyita Mondal came out as transgender, she was appointed to the Lok Adalat and placed in the category of “learned judges” by the sub-divisional legal services committee of Islampur in West Bengal. In several interviews, she has recalled the experiences of discrimination and ignorance she had to face throughout her childhood.

Mondal was biologically born a boy but soon developed a liking for playing with dolls and dressing up as a girl. However, since doing such acts were frowned upon in her family, Mondal used to dress up as a girl when she went outside and changed before returning. She was a victim of constant verbal bullying in her school, but she could never speak about it to her family. Mondal decided to drop out of school in 2009 and told her family that she had got a job in a neighbouring district and would return if things didn’t work out. Her family agreed to it. However, Mondal never came back.

In the district, she roamed on the streets while freely dressing like a woman. She was working for the welfare of the transgender community. She realized that to raise awareness outside her community, she had to know more about government schemes. Therefore, she decided to resume her studies. Modal completed her education through distance correspondence education and secured a law degree. She also became the first transgender woman in Dinajpur to get a voter id card under the then newly added category of “others.”

She also established her organization, namely Dinajpur Notun Alo Society, a society to help other marginalized communities such as sex workers, victims of child trafficking, and beggars. Mondal was once forced to spend her night at a bus stand as she was denied entry into hotels due to her gender identity. This incident made her realize that a lot of work is still needed to be done to bring the transgender community at par with others. Therefore, she started by conducting awareness sessions for family members of transgender people to make them understand their position. She showed them films that highlighted the discrimination faced by transgender communities. Further, Mondal’s team also started sensitization camps for teachers and students of private and government institutions as well as street plays at various grounds. To date, Joyita Mondal is working towards the upliftment of the transgender community and is making every possible effort to get them recognized as equals.

We can see that people like Saurabh Kirpal and Joyita Mondal are just two tiny dots on a large blank sheet when it comes to judicial participation. The census of 2011 was the first census to have a mapping for the transgender community also. While the government viewed it as a step towards recognizing the third gender, many people from the LGBTQ+ community feared that by doing such acts, the government was opening them to being targets of constant and continuous harassment, stigma, and bullying. This fear of being outcasted by society has prevented many members of the LGBTQ+ community from speaking up in the open about their affiliations.

Another incident that occurred at the Madras High Court showed the world how we could change it by putting in an effort. While hearing the plea of two queer women to seek protection against police harassment and forced conversion therapy; Justice Anand Venkatesh delivered a landmark judgement by not only laying guidelines for protecting people from the farce of conversion therapy and other such acts but by also going the extra mile by trying to understand more about same-sex marriage and other related topics before delivering the judgement as to understand the plight of the people belonging to the LGBTQIA+ community.

These judgements, appointments, and elevations are always a welcome sign that portray that the country is moving in the right direction towards including and treating every person as an equal. Although this betterment is happening at a slow pace, it is still a very welcome sight. Nevertheless, we need to continue working towards quicker and easier resolving of the issues faced by the community. Due to a lack of awareness and education on this topic, people all over the country are stigmatizing people from the LGBTQIA+ community for opening up and speaking out. It is high time that we, the people, stop looking at each other through the lenses of caste, religion, creed, sex, or any other manner in which discrimination could happen. Real growth and development of a nation will occur only when we uplift ourselves from such petty things and work together for the betterment of society as one and whole.

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Kirit P. Mehta School of Law Publications