Supreme Court Collegium has reiterated the name of Senior Advocate Saurabh Kirpal as a Delhi High Court judge while rejecting the objections raised by the law ministry because of his sexual orientation.
It is the first time that the government’s reason for not elevating Kirpal has come out publicly after over five years since his name was recommended. Kirpal himself has stated the same that his elevation is blocked due to his sexual orientation.
Supreme Court collegium confirmed the same through its statement on Wednesday where it reiterated its proposal to elevate Saurabh Kirpal.
As per the SC collegium, Law Minister by a letter dated April 1, 2021, stated, “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 stated the candidate’s ardent involvement and passionate attachment to the cause of gay rights” would not rule out the possibility of bias and prejudice. Another reason cited is the nationality of Saurabh’s partner who is a Swiss national.
The Collegium stated that two communications of the 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 bench said.
While commenting on the objection about sexuality, the bench 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.
SC Collegium stated, “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 underscored 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 top court opined.
Kirpal’s name was recommended unanimously by the Delhi High Court on October 13, 2017, and was approved by Supreme Court Collegium on November 11, 2021. The recommendation was referred back to SC collegium on November 25, 2022, for reconsideration.
