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Disagreeing with the Centre’s position, the Supreme Court Collegium Wednesday reiterated its November 11, 2021 recommendation to appoint senior advocate Saurabh Kirpal, an openly gay person, as a judge of the Delhi High Court.
A three-member Collegium headed by Chief Justice of India DY Chandrachud, and also comprising Justices S K Kaul and K M Joseph, said Kirpal’s appointment as a judge was pending for five years and had to be processed “expeditiously”.
A statement uploaded on the Supreme Court’s website read, “In this backdrop, the Collegium resolves to reiterate its recommendation dated 11 November, 2021 for appointment of Shri Saurabh Kirpal as a Judge of the Delhi High Court which needs to be processed expeditiously”.
“The recommendation unanimously made by the Collegium of the Delhi High Court on October 13, 2017 and approved by the Supreme Court Collegium on November 11, 2021 has been referred back to us on November 25, 2022 for reconsideration in light of the observations made in the file,” the statement noted.
In a letter dated April 1, 2021, the Union Law Minister had stated that though homosexuality stands de-criminalised in India, nonetheless same-sex marriage still remains bereft of recognition either in codified statutory law or uncodified personal law in India. The Centre also apprehended that given Kirpal’s “attachment” to the cause of gay-rights, the possibility of Kirpal’s bias and prejudice cannot be ruled out, Live Law reported.
In its statement, the Collegium also lauded Kirpal, son of former Chief Justice of India B N Kirpal, for being open about his sexual orientation, and said that it “goes to his credit” that he has not been surreptitious about it.
During the hearing, the Collegium noted that there were two objections raised to the court’s recommendation. One, the statement said, was that the partner of Saurabh Kirpal was Swiss national, and two, he was in an “intimate relationship and is open about his sexual orientation”. To this, the Collegium said that the objections did not reflect any “apprehension in regard to the individual conduct or behaviour of the partner of Kirpal having a bearing on national security”.
The Collegium said there is no reason to “pre-suppose” that the partner of the candidate, who is a Swiss national, would be inimically disposed to India, since the country of his origin is a friendly nation.
With respect to the second objection, the Collegium said, “it needs to be noted that the decisions of the Constitution bench of the apex court have established the constitutional position that every individual is entitled to maintain their own dignity and individuality, based on sexual orientation”.
The Collegium added that Kirpal possessed “competence, integrity and intellect” and that his appointment would add value to the bench of the Delhi High Court and provide inclusion and diversity.
The delay in Kirpal’s recommendation has, over the years, garnered criticism in legal circles, with many speculating that it was due to his sexual orientation. The government also repeatedly objected his elevation claiming conflict of interest as his partner is European and works with the Swiss Embassy.
The Supreme Court Collegium’s recommendation in 2021 came nearly three years after it first considered Kirpal’s candidature in 2018, after the Delhi High Court collegium headed by Justice Gita Mittal had recommended Kirpal to be appointed as a judge in October 2017. Kirpal was counsel for two petitioners in the landmark case in which the apex court decriminalised homosexuality.
With PTI inputs
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