SC Collegium reiterates senior advocate Saurabh Kirpal's name for judgeship in Delhi High Court

Tribune News Service

Satya Prakash

New Delhi, January 19

Maintaining that his appointment will “add value to the Bench” and “provide inclusion and diversity,” the Supreme Court Collegium has reiterated its November 11, 2021, recommendation for appointment of senior advocate Saurabh Kirpal, an openly gay person, as a judge of the Delhi High Court.

“The fact that Mr. Saurabh Kirpal has been open about his orientation is a matter which goes to his credit. As a prospective candidate for judgeship, he has not been surreptitious about his orientation. In view of the constitutionally recognized rights which the candidate espouses, it would be manifestly contrary to the constitutional principles laid down by the Supreme Court to reject his candidature on that ground,” a three-judge Supreme Court Collegium led by Chief Justice of India DY Chandrachud said.

The Delhi High Court Collegium had on October 13, 2017, unanimously recommended Kirpal—son of former CJI BN Kirpal—for elevation to the Bench and it was approved by the Supreme Court Collegium on November 11, 2021. However, the Law Ministry sent back the recommendation to the Collegium on November 25, 2022, for reconsideration, raising objections about his partner being a Swiss national and his sexual orientation.

Noting that Kirpal possesses “competence, integrity and intellect”, the Collegium said, “His appointment will add value to the Bench of the Delhi High Court and provide inclusion and diversity. His conduct and behaviour have been above board.”

The Collegium said, “…it needs to be noted that the decisions of the Constitution Bench of this Court have established the constitutional position that every individual is entitled to maintain their own dignity and individuality, based on sexual orientation.”

The decision taken by the Collegium – which also includes Justice Sanjay Kishan kaul and Justice KM Joseph – in a meeting on Wednesday was made public on the top court’s website on Thursday.

The Collegium, however, said, “It may have been advisable for the candidate (Kirpal) not to speak to the Press in regard to the reasons which may have weighed in the recommendations of the Collegium being sent back for reconsideration.

“However, this aspect should not be considered as a negative feature, particularly since the name has remained pending for over five years. The overwhelmingly positive aspects of the candidature of Shri Saurabh Kirpal must, therefore, weigh in the balance,” it added.

“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 Collegium said, highlighting the fact that the proposal to appoint him a judge has been pending for over five years.

In a letter dated April 1, 2021, the Law Minister had said “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”. Moreover, it has been stated that the candidate’s “ardent involvement and passionate attachment to the cause of gay-rights” would not rule out the possibility of bias and prejudice.”

The Collegium rejected both the objections of the Centre. Regarding his partner being a foreign national, it said the two communications of R&AW did not reflect any apprehension in regard to the individual conduct or behaviour of Kirpal’s partner having a bearing on national security.

“There is no reason to pre-suppose that the partner of the candidate, who is a Swiss National, would be inimically disposed to our country, since the country of his origin is a friendly nation. Many persons in high positions including present and past holders of constitutional offices have and have had spouses who are foreign Nationals. Hence, as a matter of principle, there can be no objection to the candidature of Shri Saurabh Kirpal on the ground that his partner is a foreign National,” the Collegium resolution read.

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