Law Ministry says Saurabh Kirpal openly gay, could be biased if made judge; Collegium objects, says Kirpal competent, will add diversity

The Union Law Minister told the Supreme Court Collegium in April 2021 that the government is opposed to elevation of Senior Advocate Saurabh Kirpal as a judge of the Delhi High Court since Kirpal is openly gay and also passionate about the cause of gay rights..This could perhaps be the first time that the government's reasons for not elevating Kirpal is coming out in the public officially more than five years after his name was first recommended.It has always been speculated that Kirpal's sexual orientation is the reason why the Centre has blocked his elevation and Kirpal himself has publicly stated that same was the reason for blocking his file.This was confirmed by the Collegium on Wednesday through its statement reiterating its proposal to elevate Kirpal..As per the Collegium statement, the Law Minister by a letter dated April 1 2021 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 letter also 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 letter by the Law Minister also objected to the fact that Kirpal's partner is a Swiss national. .The Collegium chose to respond to both the contentions of the Law Minister.As regards the objection about the nationality of Kirpals' partner, the Collegium said that two communications of Research & Analysis Wing did not reflect any apprehension with regard to the individual conduct or behaviour of the partner of Saurabh Kirpal 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," the Collegium said.Hence, as a matter of principle, there can be no objection to the candidature of Saurabh Kirpal on the ground that his partner is a foreign national, the Collegium underscored..As regards the objection about Kirpal's sexuality and his involvement in gay rights, the Collegium said that the decisions of the Constitution Bench of the Supreme Court have established the constitutional position 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. 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," the Collegium said.Importantly, the Collegium underlined that Kirpal possesses competence, integrity and intellect and his appointment will add value to the bench of the Delhi High Court and provide inclusion and diversity."It may have been advisable for the candidate 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 Collegium opined..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..[Read Collegium Statement]