The Supreme Court collegium has expressed its disagreement with the Centre for returning the proposal to appoint advocate Saurabh Kripal, who is openly gay, as a Delhi High Court judge, saying “every individual is entitled to maintain their own dignity and individuality, based on sexual orientation”.
Saurabh Kirpal is son of former Chief Justice of India B.N. Kirpal.
The collegium, which is headed by Chief Justice D.Y. Chandrachud and comprises Justices Sanjay Kishan Kaul and K.M. Joseph, in a statement, 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 fact that Mr. Saurabh Kirpal has been open about his orientation is a matter which goes to his credit.”
Reiterating Kirpal’s name, it said: “The Collegium resolves to reiterate its recommendation dated 11 November, 2021 for appointment of Saurabh Kirpal as a Judge of the Delhi High Court which needs to be processed expeditiously.”
It further added that the letter of the Law Minister dated April 1, 2021 states 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,” said the statement.
The statement, dated January 18, which was uploaded on apex court website on Thursday, added: “As a prospective candidate for judgeship, he has not been surreptitious about his orientation. In view of the constitutionally recognised 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 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 further said that his conduct and behaviour have been above board and 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 overwhelmingly positive aspects of the candidature of Saurabh Kirpal must, therefore, weigh in the balance,” added the statement.
The recommendation for Kirpal’s appointment as judge was 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, and it was referred back to apex court on November 25, 2022 for reconsideration in light of the observations made in the file.
The proposal has been pending for over five years. “From the letters of the Research & Analysis Wing (R&AW) dated April 11, 2019 and March 18, 2021, it appears that there are two objections to the recommendation which was made by the collegium of this court on November 11, 2021 approving the name of Saurabh Kirpal namely: (i) the partner of Saurabh Kirpal is a Swiss national, and (ii) he is in an intimate relationship and is open about his sexual orientation,” noted the collegium.
In connection with the two communications of R&AW, the collegium said they do not reflect any apprehension in regard to the individual conduct or behaviour of the partner of 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. 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,” said the collegium.