This post has been self-published on Youth Ki Awaaz by Vaivab. Just like them, anyone can publish on Youth Ki Awaaz.

Why Does A Gay Judge Scare The Indian Government?

More from Vaivab

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.

Photo: The Week


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.

What Does It Tell Us About The Indian State?

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’ [1], 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.

The Identity Of His ‘Intimate Other’

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 [2] 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. 

Representational image.

Private Is Public For The State?

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. 

Homosexuality And ‘National’ Identity

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. 


[1]. 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.”


  1.  Hunter, R. (2010). An Account of Feminist Judging. In R. Hunter, C. McGlynn & E. Rackley (Eds.). Feminist
    Judgments: From Theory to Practice (pp. 30–43). London: Hart Publishing.
Featured image source: The Week and PTI
You must be to comment.

More from Vaivab

Similar Posts

By IMPRI Impact and Policy Research Institute

By Shashk Tiwari

By IMPRI Impact and Policy Research Institute

Wondering what to write about?

Here are some topics to get you started

Share your details to download the report.

We promise not to spam or send irrelevant information.

Share your details to download the report.

We promise not to spam or send irrelevant information.

An ambassador and trained facilitator under Eco Femme (a social enterprise working towards menstrual health in south India), Sanjina is also an active member of the MHM Collective- India and Menstrual Health Alliance- India. She has conducted Menstrual Health sessions in multiple government schools adopted by Rotary District 3240 as part of their WinS project in rural Bengal. She has also delivered training of trainers on SRHR, gender, sexuality and Menstruation for Tomorrow’s Foundation, Vikramshila Education Resource Society, Nirdhan trust and Micro Finance, Tollygunj Women In Need, Paint It Red in Kolkata.

Now as an MH Fellow with YKA, she’s expanding her impressive scope of work further by launching a campaign to facilitate the process of ensuring better menstrual health and SRH services for women residing in correctional homes in West Bengal. The campaign will entail an independent study to take stalk of the present conditions of MHM in correctional homes across the state and use its findings to build public support and political will to take the necessary action.

Saurabh has been associated with YKA as a user and has consistently been writing on the issue MHM and its intersectionality with other issues in the society. Now as an MHM Fellow with YKA, he’s launched the Right to Period campaign, which aims to ensure proper execution of MHM guidelines in Delhi’s schools.

The long-term aim of the campaign is to develop an open culture where menstruation is not treated as a taboo. The campaign also seeks to hold the schools accountable for their responsibilities as an important component in the implementation of MHM policies by making adequate sanitation infrastructure and knowledge of MHM available in school premises.

Read more about his campaign.

Harshita is a psychologist and works to support people with mental health issues, particularly adolescents who are survivors of violence. Associated with the Azadi Foundation in UP, Harshita became an MHM Fellow with YKA, with the aim of promoting better menstrual health.

Her campaign #MeriMarzi aims to promote menstrual health and wellness, hygiene and facilities for female sex workers in UP. She says, “Knowledge about natural body processes is a very basic human right. And for individuals whose occupation is providing sexual services, it becomes even more important.”

Meri Marzi aims to ensure sensitised, non-discriminatory health workers for the needs of female sex workers in the Suraksha Clinics under the UPSACS (Uttar Pradesh State AIDS Control Society) program by creating more dialogues and garnering public support for the cause of sex workers’ menstrual rights. The campaign will also ensure interventions with sex workers to clear misconceptions around overall hygiene management to ensure that results flow both ways.

Read more about her campaign.

MH Fellow Sabna comes with significant experience working with a range of development issues. A co-founder of Project Sakhi Saheli, which aims to combat period poverty and break menstrual taboos, Sabna has, in the past, worked on the issue of menstruation in urban slums of Delhi with women and adolescent girls. She and her team also released MenstraBook, with menstrastories and organised Menstra Tlk in the Delhi School of Social Work to create more conversations on menstruation.

With YKA MHM Fellow Vineet, Sabna launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society. As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

Read more about her campaign. 

A student from Delhi School of Social work, Vineet is a part of Project Sakhi Saheli, an initiative by the students of Delhi school of Social Work to create awareness on Menstrual Health and combat Period Poverty. Along with MHM Action Fellow Sabna, Vineet launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society.

As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

Find out more about the campaign here.

A native of Bhagalpur district – Bihar, Shalini Jha believes in equal rights for all genders and wants to work for a gender-equal and just society. In the past she’s had a year-long association as a community leader with Haiyya: Organise for Action’s Health Over Stigma campaign. She’s pursuing a Master’s in Literature with Ambedkar University, Delhi and as an MHM Fellow with YKA, recently launched ‘Project अल्हड़ (Alharh)’.

She says, “Bihar is ranked the lowest in India’s SDG Index 2019 for India. Hygienic and comfortable menstruation is a basic human right and sustainable development cannot be ensured if menstruators are deprived of their basic rights.” Project अल्हड़ (Alharh) aims to create a robust sensitised community in Bhagalpur to collectively spread awareness, break the taboo, debunk myths and initiate fearless conversations around menstruation. The campaign aims to reach at least 6000 adolescent girls from government and private schools in Baghalpur district in 2020.

Read more about the campaign here.

A psychologist and co-founder of a mental health NGO called Customize Cognition, Ritika forayed into the space of menstrual health and hygiene, sexual and reproductive healthcare and rights and gender equality as an MHM Fellow with YKA. She says, “The experience of working on MHM/SRHR and gender equality has been an enriching and eye-opening experience. I have learned what’s beneath the surface of the issue, be it awareness, lack of resources or disregard for trans men, who also menstruate.”

The Transmen-ses campaign aims to tackle the issue of silence and disregard for trans men’s menstruation needs, by mobilising gender sensitive health professionals and gender neutral restrooms in Lucknow.

Read more about the campaign here.

A Computer Science engineer by education, Nitisha started her career in the corporate sector, before realising she wanted to work in the development and social justice space. Since then, she has worked with Teach For India and Care India and is from the founding batch of Indian School of Development Management (ISDM), a one of its kind organisation creating leaders for the development sector through its experiential learning post graduate program.

As a Youth Ki Awaaz Menstrual Health Fellow, Nitisha has started Let’s Talk Period, a campaign to mobilise young people to switch to sustainable period products. She says, “80 lakh women in Delhi use non-biodegradable sanitary products, generate 3000 tonnes of menstrual waste, that takes 500-800 years to decompose; which in turn contributes to the health issues of all menstruators, increased burden of waste management on the city and harmful living environment for all citizens.

Let’s Talk Period aims to change this by

Find out more about her campaign here.

Share your details to download the report.

We promise not to spam or send irrelevant information.

A former Assistant Secretary with the Ministry of Women and Child Development in West Bengal for three months, Lakshmi Bhavya has been championing the cause of menstrual hygiene in her district. By associating herself with the Lalana Campaign, a holistic menstrual hygiene awareness campaign which is conducted by the Anahat NGO, Lakshmi has been slowly breaking taboos when it comes to periods and menstrual hygiene.

A Gender Rights Activist working with the tribal and marginalized communities in india, Srilekha is a PhD scholar working on understanding body and sexuality among tribal girls, to fill the gaps in research around indigenous women and their stories. Srilekha has worked extensively at the grassroots level with community based organisations, through several advocacy initiatives around Gender, Mental Health, Menstrual Hygiene and Sexual and Reproductive Health Rights (SRHR) for the indigenous in Jharkhand, over the last 6 years.

Srilekha has also contributed to sustainable livelihood projects and legal aid programs for survivors of sex trafficking. She has been conducting research based programs on maternal health, mental health, gender based violence, sex and sexuality. Her interest lies in conducting workshops for young people on life skills, feminism, gender and sexuality, trauma, resilience and interpersonal relationships.

A Guwahati-based college student pursuing her Masters in Tata Institute of Social Sciences, Bidisha started the #BleedwithDignity campaign on the technology platform, demanding that the Government of Assam install
biodegradable sanitary pad vending machines in all government schools across the state. Her petition on has already gathered support from over 90000 people and continues to grow.

Bidisha was selected in’s flagship program ‘She Creates Change’ having run successful online advocacy
campaigns, which were widely recognised. Through the #BleedwithDignity campaign; she organised and celebrated World Menstrual Hygiene Day, 2019 in Guwahati, Assam by hosting a wall mural by collaborating with local organisations. The initiative was widely covered by national and local media, and the mural was later inaugurated by the event’s chief guest Commissioner of Guwahati Municipal Corporation (GMC) Debeswar Malakar, IAS.

Sign up for the Youth Ki Awaaz Prime Ministerial Brief below