The Supreme Court Collegium on Wednesday reiterated its November 2021 recommendation to appoint Senior Advocate Saurabh Kirpal as a judge of the Delhi High Court, while stating that his being open about his sexual orientation was a matter that goes to his credit.
A detailed reiteration by the Collegium headed by Chief Justice of India (CJI) DY Chandrachud highlighted the decision of a Constitution Bench of the Supreme Court which held that every individual is entitled to maintain their own dignity and individuality based on sexual orientation.
"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," the statement reads.
It was further emphasised that Kirpal's appointment will add value to the bench of the Delhi High Court and provide inclusion and diversity.
"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. Shri Saurabh Kirpal possesses competence, integrity and intellect," the judicial appointments body said.
This explanation was provided in response to the Central government's rejection of the proposal to elevate Kirpal based on two objections, one of them being Kirpal's openness about his sexual orientation.
According to the resolution, a letter from the Law Minister 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”.
Additionally, Kirpal's “ardent involvement and passionate attachment to the cause of gay-rights” would not rule out the possibility of bias and prejudice, the government had opined.
The other objection raised in letters sent by the Research & Analysis Wing (R&AW) was that Kirpal's partner is a Swiss National.
In response to this, the Collegium's resolution noted that two communications of R&AW did not reflect any apprehension in regard to the individual conduct or behaviour of Kirpal's partner as regards 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."
It also underscored that many persons in high positions, including present and past holders of constitutional offices, had spouses who are foreign nationals.
The resolution also takes into account that Kirpal speaking to the press regarding the recommendations being sent back for reconsideration may not have been advisable.
Nonetheless, it was opined that this ought not to be considered a negative feature, since his 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. 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 resolution thus stated.
Kirpal was unanimously recommended by the Delhi High Court Collegium on October 13, 2017 and the same was approved by the Supreme Court Collegium on November 11, 2021.
The recommendation was referred back to the Supreme Court Collegium on November 25, 2022 for reconsideration.