a retired supreme court judge says india blocked a gay lawyer from the bench because "the country is not ready." the country, as usual, was not asked.

Saurabh Kirpal at the 2025 Jaipur Literature Festival. Photo: Sriya Sarkar, CC BY 4.0, via Wikimedia Commons

via ANI, as published by Asianet Newsable and The News Mill, with background from Bar & Bench and NorthEast Now

Saurabh Kirpal has been about to become a judge for nine years. The Delhi High Court's collegium recommended him in October 2017. India's Supreme Court collegium approved him in November 2021. The government sent the file back in November 2022, and the collegium sent it right back in January 2023, per ANI. He is still not a judge.

Now a man who was in the room has said why. In an interview ANI published on Wednesday, former Supreme Court judge Sanjay Kishan Kaul said that the "real reason," which he said "was informally told to me," was "their perception that the country is not ready to have a gay judge."

what the government said out loud

The on-paper objections were different. In an April 2021 communication, the Law Ministry told the collegium Kirpal was "openly gay and also passionate about the cause of gay rights," Bar & Bench reported in 2023. The other objection was that his partner is a Swiss national, which the collegium answered by saying there was no apprehension about the partner's conduct "having a bearing on national security," per NorthEast Now.

The collegium's January 2023 resolution, which Kaul sat on, took what ANI called the rare step of publishing the government's objections and rejecting them. "The fact that Mr. Saurabh Kirpal has been open about his orientation is a matter which goes to his credit," it said, per Bar & Bench.

why kirpal never became a judge

Because nobody blinked. "The government never cleared it, and the Collegium never dropped it," Kaul said, because "it would have been very embarrassing for the Collegium to drop it." Under established norms, ANI noted, the government was bound to accept a reiterated recommendation. Instead the file has sat in what The News Mill called "institutional limbo," neither approved nor rejected.

Kaul does not think the country needed protecting. "The country would have accepted (a gay judge) because he is a good lawyer," he said, adding: "I think it was a loss not to have had him." He also said he told Kirpal, many times, "you will keep this vacancy alive till you are 62," because Kirpal was willing to take the job at whatever age it was offered, as support to his community.

A whole country, and the government decided on its behalf that they could not handle one gay man in a robe. Kirpal kept his consent on file. The country never got asked.