For the first time, the Supreme Court collegium has officially recommended an avowed gay candidate for elevation as a high court or apex court judge, despite the Centre having objected to him four times before during initial enquiries.
Saurabh Kirpal, recommended for appointment as Delhi High Court judge, had seen his candidature deferred four times since 2018 during the tenures of then Chief Justices of India Ranjan Gogoi and S.A. Bobde, sources said.
The sources said the Centre’s objection was that his having a foreign partner — a Swiss human rights activist —constituted a potential conflict of interest and threat to national security.
The apex court had on September 6, 2018, decriminalised homosexual acts conducted in private between consenting adults. Kirpal is an active member of the Naz Foundation, which successfully fought a decade-long battle in Delhi High Court and the Supreme Court, which culminated in the September 2018 verdict.
The Delhi High Court collegium, headed by then acting Chief Justice Gita Mittal, had in 2017 first recommended Kirpal to the apex court collegium, the sources said.
When the apex court collegium sought inputs on his antecedents from the Centre, the government communicated the objections of the Intelligence Bureau, which annexed some of Kirpal’s Facebook posts with his foreign partner, the sources added.
Three more times did the collegium consult the government on Kirpal — after reiterations by the high court or consultations between the two collegiums — and each time the government cited IB reports to advise against his candidature.
Sources said Chief Justice N.V. Ramana eventually decided to recommend Kirpal in consultation with the two other senior-most judges, Justices U.U. Lalit and A.M. Khanwilkar.
“The Supreme Court collegium in its meeting held on 11th November, 2021, has approved the proposal for elevation of Shri Saurabh Kirpal, advocate, as judge in the Delhi High Court,” a resolution uploaded on the official apex court website said.
Kirpal is the son of former Chief Justice of India B.N. Kirpal and had been a junior to former attorney-general Mukul Rohatgi. He has vast expertise and knowledge of commercial law.
In April this year, then CJI Bobde is understood to have written to then Union law minister Ravi Shankar Prasad seeking clarifications on the IB’s reservations on Kirpal.
Justice Bobde then retired on April 23, leaving the task to his successor, Justice Ramana.
