New Delhi: Advocate Saurabh Kirpal, whose appointment as a judge the government has objected to because of his sexual orientation, said that the judiciary today is composed largely of upper caste, heterosexual men who also have certain biases.
Speaking at the Kolkata Literary Meet, Kirpal said that the bench should reflect society and the practice of recusal allows judges to remove themselves from hearing cases where they are “emotively attached” and feel they cannot do justice.
The lawyer’s comments come after the Supreme Court collegium on January 18 revealed that one of the objections the government had to his appointment as a judge of the Delhi high court was that his “passionate attachment to the cause of gay-rights” would not rule out the possibility of bias and prejudice. The collegium rejected the objections raised by the government and reiterated his name.
Speaking in Kolkata on January 24, Kirpal said, “It is a fallacy to assume that a judge can be completely divorced from their upbringing, the social milieu, their perceptions and ideas etc.” These experiences shape the judge and when interpreting any “ambiguous word in the constitution”, that word could mean different things to a “person who comes from a rich upper caste family as opposed to a Dalit, as opposed to a woman”.
“When we say that the constitution promises life and liberty, what does life mean will change depending on what your own life situation has been. So for some, it will be only the rigid or the bare minimum – life means the ability to live and breathe. For some others… life means so much more than that. It means a life full of dignity. [A] life where you have not enough to eat, where you have to struggle for existence on a daily basis – cannot be the word ‘life’ which is used in our constitution,” Kirpal said.
He said that a person’s ideology will shape his interpretation, but “to say that because you have a particular ideology” and are therefore biased is “a reason to stop appointing judges altogether”, Kirpal said. Every judge will have a viewpoint shaped by their social realities, he said.
“It is also a disservice to judges because while there is ambiguity, it’s not like the judges are completely unconstrained by what the law says and just deciding willy-nilly whatever they feel like deciding. They are bound by the law. It is in these margins of ambiguity where their life experiences frame what they say, not as an act of overt intention, but as a matter of subliminal upbringing, I suppose almost. That is not a question of bias, I would say. Bias is when you go out with a predetermined mindset that I will always, no matter what, rule in favour of this particular something. That is not typically how a judge should think, and in our system.”
Kirpal said that judges hear a variety of cases before them each day and very rarely do they deal with cases where they may be “biased”. And if the judge feels that they may be biased, there is the “well-established mechanism of recusal”, he said. “If you find that you are so emotively attached to a particular case that you cannot do justice to it, the answer is don’t hear that case. Stop hearing it, and that is judicial training.”
He concluded by saying that the bench needs judges with biases.
“You need judges with biases. Why? You currently have upper caste, heterosexual men on the bench – all of them who have a certain kind of bias. Now that is not the audience I am seeing in front of me, that’s not the country I live in! So must not the bench reflect a part of what society itself is? What you call biases, I would rephrase as alternative life experiences.”
At the literary festival, Kirpal was participating in a discussion on his book Fifteen Judgements: Cases that Shaped India’s Financial Landscape.
While reiterating the recommendation to appoint Kirpal as a Delhi high court judge, the Supreme Court had however disapproved of his comments to the media, where he commented about the reasons the Union government was objecting to his appointment. However, the collegium added, “This aspect should not be considered as a negative feature, particularly since the name has remained pending for over five years.”
Kirpal’s recommendation was made unanimously by the Delhi high court collegium on October 13, 2017 and approved by the SC collegium on November 11, 2021. The recommendation was sent back to the collegium on November 25, 2022 by the government and the collegium reiterated it on January 18. As per the rules, a reiteration by the collegium mandates the government to appoint a person as a judge. There have been many instances, however, when the government has not followed this rule over the past few years.