If you have clicked on this article to know whether Senior Advocate, Saurabh Kirpal, can be a rainbow crusader against the injustices being institutionalised in the modus operandi of the Indian Judiciary, then this article might disappoint you.
But if you want to know what does the government’s attitude towards an openly gay advocate reflect about your membership of this democratic country then hold onto this 3 min read.
Saurabh Kirpal is a Senior Advocate of the Delhi High Court. He was recommended to be elevated as a judge by the Delhi High Court collegium headed by J. Gita Mittal in 2017. Since then, Kirpal’s name has been deferred four times citing various reasons.
Recently, the Indian government responded to the Chief Justice of India’s letter seeking reasons for non-clearance of the Supreme Court Collegium’s recommendation of Senior Advocate Kirpal with some concrete answers. The Government of India conveyed its apprehension over the foreign nationality of Kirpal’s partner that might be a conflict of interest for an independent Indian judiciary.
This political episode resonates with how we need to reform our vision of the state’s role and influence over our lives. The idea that the state always operated beyond our home’s door, what we understand as the ‘public’ , is now reduced to a phantom concept that liberal theories on state and statehood dwell upon. The realisation that something is private and some human experiences are beyond the purview of the State is an illusion and is a product of our collective ignorance.
When the public position and career of an individual get evaluated based on the personal choices that are intricately woven into their self-identity, it is then that we realise that the Indian state is not a neutral entity but a political one, that has a specific nationality, gender, sexual orientation, language, caste encoded in its imagination.
It makes one think about the very concept of citizenship. How one can not viably retrieve the meaning of citizenship plainly from the Citizenship Act, 1955 or its essence from the Constitution of India? I intend to argue how our status as a member of a nation or a political community is shaped through our everyday interaction and our exercise to qualify as citizens through our docile subservience creates fertile grounds for the ouster of ‘others’, who do not fit into the Ideal “Indian citizen” box.
It is important to note how an accomplished Senior Advocate, a citizen par excellence remains a valuable asset to the state till his role in society is not altered. The proposed elevation puts Kirpal a step closer to the social apex of our political community – an elite circle of judges.
The thought of having a homosexual man with a foreign partner join the oversight institution of the government sends tremors to the dominant heteronormative order of our State because of numerous reasons.
First, the idea of an international partner invariably implies how Kirpal can not exhibit a form of nationalism that the hegemonic state desires. The state’s legal rationality  provides ample justifications bordering upon how an international intimate relationship can fester to be a compromise on the independent judicial mind of a judge. To presume in the first place that judges operate in a bias-free social void, where they successfully undo their value sets learnt through their life experiences, is basic tomfoolery.
This legal fetish of constructing the infallibility of the Indian Judiciary on the image of an “impartial and objective” judge is a common error often ignored in discussions pertaining to the limits of jurisprudence. Prominent legal theorist, Rosemary Hunter, in her book, ‘A feminist account of Jurisprudence”, argues how any project of legal introspection needs to acknowledge how objectivity drawn from abstract could plague its capacity to provide justice to subjective human experience and how there exists a profound need to demystify the figure of the ‘disinterested, disengaged and distant judge’.
Therefore, the state’s response of considering a judge to be a site of compromise because of the identity of his ‘intimate other’ reduces Kirpal’s lived experience of citizenship as compromised or imperfect, interactionally.
Secondly, the legal episode also makes it clear how the concept of the private becomes a free manoeuvring grey space for the state and not the private individual. This demarcation that we understand as the public and the private is not for the convenience of the citizen to exercise their right to privacy over few aspects of their life. But it is these categories that the law utilises to rescue itself from a visible presence in one’s intimate space.
Kirpal’s predicament shows us how the ‘intimate’ itself is created as a political space, where your private acts and choices can any day be brought into the public as a social exposure or scandal to reduce your normative-ness as a citizen.
Thirdly, it is important to ask the subaltern question – why do tints of homosexuality and different nationality become national security concerns? The nation-state operates with a masculine orientation when it comes to the issue of ‘sovereignty and ‘defence’.
The charge of fulfilling duties pertaining to the sustenance of the state order, that is the trifecta of the Legislature-Bureaucracy-Judiciary, is encoded in the language of rationality and objectivity that socially marginalised groups are not considered worthy of. Saurabh Kirpal can hardly be imagined as a “subaltern” because of the material privilege and cultural capital he embodies. However, it becomes imperative for us to understand how his differential treatment becomes symptomatic of the intricate modalities through which the state can erase your intersectional privilege by stigmatising the particular aspects of your complex identity.
For instance, the Memorandum of Procedure outlines how the Supreme Court Collegium holds the power for appointing High Court judges. But the process of running recommendations back and forth the Law Ministry and the subsequent delays on confirmations citing lack of relevant information and vetting formalities provides the State a procedural space to inflict discrimination and injustice in name of due diligence.
This space is masked with a language of national security concern which, in a larger public consciousness, seems like a sensible and rational choice because of our collective subservience to the ‘absoluteness’ of Law and its established legal norms.
Therefore, I have not even gone forward to discuss the case as a possible violation of Article 15(1) of the Constitution of India that proffers how people should not be discriminated “on grounds of religion, race, caste, sex, place of birth or any of them” because there seems to be nothing fundamental about constitutional rights anymore in a democratic society marred by the excesses of an autocratic government.
To conclude, I believe this why any historically marginalised group member, who does not enamour the heterosexual, upper-caste bourgeois conception of nation and nationalism becomes a subject of state suspicion and therefore, experiences state-sponsored ostracism that diminishes his lived experience of equal citizenship.
. The Public – In western political theory, the life of citizens in a political community is categorically divided into two spheres – the public and the private. “The public realm, in liberal theorisation, becomes the most fundamental of all political concepts because it is only the shared relationship it constitutes between rulers and ruled that makes government more than mere domination.”
[2}. The concept of legal rationality can be derived from Max Weber, a prominent sociologist, articulation of authority. “Under the doctrine of rational-legal authority, authority is derived from rational societal constructs, legal legitimacy, compliance with established legal norms and the bureaucratic system. Citizens and subjects in rational-legal systems accept authority because it is congruent with historical and established legal doctrines.”