The Supreme Court Collegium has reiterated its November 11, 2021 recommendation for appointing senior advocate Saurabh Kirpal, an openly gay person, as a judge of the Delhi High Court, rejecting 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 D Y Chandrachud and also comprising Justices S K Kaul and K M Joseph, said 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.
50-year-old Kirpal, son of former Chief Justice of India B N Kirpal, may become the first openly gay judge of a constitutional court in India if the Centre accepts the Collegium's recommendation to elevate him.
Saurabh Kirpal was part of the legal team which had represented some of the petitioners in the landmark case in which the apex court decriminalised consensual sexual act between two adults of the same sex.
The reiteration has come at a time when the Collegium system has become a major flashpoint between the Supreme Court and the central government, with the mechanism of judges appointing judges drawing criticism from different quarters.
In the statement reiterating its recommendation for appointment of Kirpal as a judge of the high court, the Collegium has said, "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 us on November 25, 2022 for reconsideration in light of the observations made in the file." The Collegium's statement 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 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.
The top court has often voiced displeasure over the alleged delay by the Centre in clearing the names recommended by the Collegium for appointment as judges to the Supreme Court and high courts.
At a hearing on January 6, the apex court had said it is a "matter of concern" that the government is sending back the names reiterated by the Collegium for judgeship in constitutional courts despite there being nothing in the present scenario to prevent the appointment post reiteration.
It had observed that the government may have its own views when a recommendation is made but it can't be kept on hold without sending back the comments on it.
"What is to be done is that comments can be sent to us. We will look into the comments, see whether we want to reiterate it or drop the name. If we reiterate the name, then there is, as per the present scenario, nothing which can prevent the appointment," the top court bench had observed on January 6.
Kirpal was recommended for elevation in 2017 by the Delhi High Court collegium, then led by acting chief justice Gita Mittal.
He was conferred the designation of senior advocate in March 2021 after reportedly getting the votes of all the 31 judges of the Delhi High Court at that time.
He studied law at Oxford and Cambridge Universities and has been practising for over two decades.