NEW DELHI: Senior advocate Saurabh Kirpal, whose name was recommended for elevation as Delhi HC judge but it has met with objections from the Centre due to his sexual preference, has opined that judiciary is composed largely of “upper caste, heterosexual men who also have certain biases”.
“To say that because you have a particular ideology, you are therefore biased is a reason to stop appointing judges altogether. Because every judge would have some kind of viewpoint owing to where they came from,” he said.
Speaking at the Kolkata Literature Festival on the topic ‘Fifteen judgements: Cases that shaped India’s financial landscape’, earlier in the week Kirpal said: “But you need judges with biases. You currently have upper-caste, heterosexual men on the bench, all of them have a certain kind of bias. Now, that is not the audience I am seeing in front of me, that is not the country I live in! So must not the bench reflect a part of what society itself is? That what you call biases, I would rephrase as alternative life experiences.”
Referring to the two aspects in the decision-making of a judge he said: “There are two aspects to a judge’s decision making. One is the fact that it is a fallacy to assume that a judge can be completely divorced from their upbringing, the social milieu, their perceptions and ideas, etc.
It shapes who they are and when they interpret any ambiguous word in the Constitution, then inevitably, what that particular word means, means differently 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 and liberty mean? They change depending upon how your own life situation has been. So for some, it may be the rigid bare minimum life or the ability to breathe and live. But for some other person, life means so much more than that. It means a life full of dignity.”
On January 18, the Supreme Court collegiums, headed by Chief Justice of India DY Chandrachud, decided to take a historic step by making public by way of collegium resolutions not only the objections that have been raised by the Centre for elevation of three advocates Saurabh Kirpal, Somasekhar Sundareshan and R John Sathyan as high court judges but also the excerpts of letters of Research & Analysis Wing, law ministry, and Intelligence Bureau reports. In the case of Kirpal’s elevation, the objections were his sexual orientation and his “foreign national partner”.