Judiciary Should Have Judges With Alternative Life Experiences; Now Most Judges Are Upper-caste Heterosexual Men : Saurabh Kirpal

Senior Advocate Saurabh Kirpal, whose appointment as a judge was objected to by the Central Government on the ground of his sexual orientation, opined that it is important to have judges with different life experiences in the bench, so that the judiciary represents the social diversity.

Kirpal pointed out that the judiciary is mostly composed of upper caste, heterosexual men, who would be having a certain kind of bias.  

At a panel discussion in the Kolkata Literary Event on Tuesday (January 24), Kirpal's response was sought by host Arunabha Deb about the Central Government objecting to his elevation on the ground that he was passionately involved in certain causes, such as gay rights, and thus he may lack objectivity as a judge and may be prejudiced in his decisions.

Kirpal replied :

"It is a fallacy to assume that a judge could 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. 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."

He added that this was a question of interpretation which of course would be shaped by one's ideologies. As per Kirpal, "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 view point owing to where they came from".

In continuation, 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. That is not a question of bias. Bias is when you go out with a predetermined mindset– that I will always rule in favour of a particular something. That is not typically how a judge should think in our system."

Kirpal elaborated on how judges got a variety of cases before them and each of these cases were completely different.

"If a judge is biased about one thing allegedly, what about the one million other cases the judge would be dealing with".

He added that there was a well-established mechanism of "recusal", whereby a judge can recuse from hearing a case in which she has particular interest.

"If you find that you are so emotively attached to a particular case that you cannot do justice to it, the answer is – do not hear that case, stop hearing that case. And that is judicial training. You can recuse yourself."

Here, he gave an example of a US Supreme Court judge who was hearing a free speech case on whether buses could play music in interstate travel. In the said case, one of the judges said that when he a student and he used to travel in these buses he would hate the music so much that he knew that when he takes the decision, there was no way he would be able to decide the matter on free speech alone. Due to his hatred of having to hear that music in those buses, he said he would pre-judge every thing, and thus recused himself.

While concluding his statement, Kirpal said that–

"But you need judges with biases. 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 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."

At the literary event, Kirpal was discussing his book 'Fifteen Judgements: Cases that Shaped India’s Financial Landscape'.

On collegium's proposal for elevation of Saurabh Kirpal as a Delhi High Court Judge, the centre had objected stating that since Kirpal was gay, he could be biased due to his open support for gay rights. The centre had also objected on the ground that Kirpal's partner was a Swiss national. The Collegium had responded to this stating that it was unconstitutional to reject candidature on the ground of sexual orientation and that there was no reason to pre-suppose that the partner of the candidate, who was a Swiss National, would be inimically disposed to our country, since the country of his origin was a friendly nation.