Currently we have upper-caste, heterosexual men in judiciary; they also have biases: Senior Advocate Saurabh Kirpal

Indian judiciary at present is largely comprised of upper-caste, heterosexual judges and they don't necessarily reflect our diverse society, Senior Advocate Saurabh Kirpal recently said..Kirpal was responding to a question put to him at the Kolkata Literary Meet earlier this week about the recent controversy surrounding his elevation as a judge of the Delhi High Court.Kirpal's elevation has been opposed by the Central government on the ground that he is openly gay and also passionate about the cause of gay rights and this could lead to bias and prejudice when discharging his duties as a judge."As far as you are concerned, one of the reasons the government cited while sending your name back was that you are so passionately involved in certain causes, be it gay rights or whatever that may be, you may lack objectivity as a judge and you may be prejudiced. How do you respond," Kirpal was asked.Kirpal said that it is a fallacy to assume that a judge can be completely divorced from their upbringing, social milieu, conceptions, and ideas as it shape who they are."I’m going to stick with this, you need judges with biases! Why? You currently have upper-caste, heterosexual men on the bench.. all of whom have a certain kind of bias. Now, that is not an audience that I am seeing in front of me. That is not the country that I live in. So, must not the bench reflect a part of society itself is? That, what we call biases, I would rephrase as alternative life experiences," Kirpal responded."When they interpret any ambiguous word in the Constitution then inevitably, what that particular word means different to a person who comes from a rich upper caste family, as opposed to a Dalit, as opposed to a woman," he added.The question was put to him during the discussion of his book, Fifteen Judgements: Cases that Shaped India’s Financial Landscape..Kirpal opined that assuming that an ideology in itself would result in bias, is a disservice to judges."I think it is also a disservice to judges because while there is ambiguity, its not as if judges are on a roll, completely unconstrained by what the law says and just deciding willy-nilly whatever they feel like deciding – they are bound by the law," he explained. .If you find that you are so emotively attached to a particular case that you cannot do justice to it, the answer is to stop hearing that case, Kirpal further opined. .To question about the efficacy of the collegium system, the Senior Counsel conceded that it may not be the best system we have while reasoning that it requires greater transparency and wider consultation. However, he hastened to add that the judges must always have primacy in the appointment of judges. "Whatever new system you may devise, it is necessary that judges retain a majority say in the appointment of judges. The collegium system is not perfect. But given the political, legal conventions that called the judgment to be delivered in 1993 – maybe they persist even today," he said..In response to an audience question about the ways to encourage queer representation in the legal system, Kirpal advised heterosexual and cis-gendered students to be allies. "You have to create a supportive environment, please be an ally. Every time you hear a homophobic comment, swat it down, talk about it, walk in Pride Marches with your friends", he said. .In terms of how lawyers can help, he placed responsibility on the highest echelons of lawyers such as senior counsel or others who are entrenched in the system."We must send out a message as a bar, as a whole – that we are welcoming to the queer community. For that purpose, we should all set aside some funds and set up a queer bar association. I know in Delhi, we are talking about it with the three other rich queer lawyers that I know of," he shared. .Last week, the Supreme Court Collegium reiterated its November 2021 recommendation to appoint Kirpal as a judge of the Delhi High Court, while stating that his being open about his sexual orientation was a matter that goes to his credit..The reiteration created a furore for its detailed responses to the Central government's objections with regard to his sexual orientation.