SC Collegium reiterates recommendation of openly gay lawyer as HC judge

SC Collegium on Thursday reiterated the recommendation for the appointment of senior advocate Saurabh Kirpal -- who is openly gay and married to a Swiss national -- as judge of the Delhi High Court.

New Delhi: The Supreme Court Collegium on Thursday reiterated its last year's recommendation for appointing an openly gay lawyer as the judge of Delhi High Cout. The high court had on November 11, 2022, elevated senior advocate Saurabh Kirpal -- who is married to a Swiss national -- to a judge's post but the decision was stalled because of the Centre's contention that though homosexuality stands decriminalised in India, same-sex marriage is still bereft of recognition.

The three-member Collegium headed by Chief Justice of India DY Chandrachud and comprising Justices S K Kaul and K M Joseph, trashed the centre's contention and stated that the proposal for appointment of Kirpal as a judge of the high court has been pending for over five years and needs to be processed expeditiously.

"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," said a statement uploaded on the apex court website. Kirpal is the son of former Chief Justice of India B N Kirpal.

The collegium also noted that the recommendation 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 has been referred back to the court on November 25, 2022 for reconsideration in light of the observations made in the file. The Collegium's statement further lauded Kirpal for being open about his sexual orientation, saying it "goes to his credit" that he has not been surreptitious about it.

"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 Shri Saurabh Kirpal namely: (i) the partner of Shri Saurabh Kirpal is a Swiss national, and (ii) he is in an intimate relationship and is open about his sexual orientation," the apex court statement said.

The statement quoted the letter of the Union Law Minister dated April 1, 2021 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 statement said.

The Collegium, which dealt with both the objections, said the two communications of R&AW do not reflect any apprehension in regard to the individual conduct or behaviour of the partner of Kirpal having a bearing on national security. It said there is no reason to "pre-suppose" that the partner of the candidate, who is a Swiss national, would be inimically disposed to India, 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 statement said.

Regarding the second objection, the Collegium has said it needs to be noted that the decisions of the Constitution bench of the apex 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 Saurabh Kirpal has been open about his orientation is a matter which goes to his credit. As a prospective candidate for a judgeship, he has not been surreptitious about his orientation," it said. "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 statement said.

It 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. The Collegium said Kirpal's conduct and behaviour have been above board.

"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," it said, adding the overwhelmingly positive aspects of his candidature must weigh in the balance.