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Supreme Court lesson for government on gay nominee

If Saurabh Kirpal’s candidature is approved, he will be the first gay activist to be appointed a high court judge in the country

R. Balaji New Delhi Published 20.01.23, 03:43 AM
Supreme Court of India.

Supreme Court of India. File Photo

The Supreme Court collegium has reiterated its recommendation to elevate an openly gay senior advocate, Saurabh Kirpal, as a Delhi High Court judge saying “his orientation is a matter which goes to his credit… he has not been surreptitious about his orientation”.

The collegium rejected the Centre’s argument that Kirpal’s partner’s being a foreign national disqualified him.


“There is no reason to presuppose 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,” the collegium said in a resolution dated January 18 but formally released here on Thursday.

“Many persons in high positions including present and past holders of constitutional offices have and have had spouses who are foreign nationals,” the collegium, which included Chief Justice D.Y. Chandrachud and Justices Sanjay Kishan Kaul and K.M. Joseph, added.

If Kirpal’s candidature is approved, he will be the first gay activist to be appointed a high court judge in the country.

The eight-paragraph, 600- word resolution is significantly longer than the two or three paragraphs such resolutions usually feature, and emphasises that “every individual is entitled to maintain their own dignity and individuality, based on sexual orientation”. It also stresses the values of “inclusion and diversity”.

The original recommendation came from the Delhi High Court collegium five years ago, but it was approved formally only on November 11, 2021, by the apex court collegium, headed by then Chief Justice N.V. Ramana. The Centre sent it back last November for reconsideration — a request now rejected by the current collegium.

The memorandum of procedure that governs the appointments and transfers of judges says that if the collegium reiterates a recommendation, the government has to clear it. But the past few years have been marked by constant friction between the NDA government and the collegium, with the Centre stalling recommendations even after multiple reiterations.

Excerpts from the resolution: “The letter of the law minister dated 01 April 2021 states that though ‘homosexuality stands de-criminalised in India, nonetheless samesex 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.

“...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. 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. Shri Saurabh Kirpal possesses competence, integrity and intellect. His appointment will add value to the bench of Delhi High Court and provide inclusion and diversity. His conduct and behaviour have been above board.”

The Supreme Court collegium had earlier deferred Kirpal’s candidature three times — once during the tenure of then CJI Ranjan Gogoi and twice under CJI S.A. Bobde — owing to the Centre’s reservations about his sexual orientation and Swiss partner.

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 knowledge of commercial law and is an active member of the NAZ Foundation, which successfully fought a decade-long legal battle for LGBT rights, culminating in the apex court de-criminalising gay sex between consenting adults in September 2018.

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