By Ritika Jain
Supreme Court collegium stood its ground and unanimously backed its decision to recommend senior advocate Saurabh Kirpal as a judge to the Delhi High Court. The collegium said Kirpal was competent, would add value and the recommendation—which is in limbo since the past five years—must not be rejected simply because he is gay.
The Delhi High Court collegium in 2017 unanimously recommended Kirpal. Supreme Court collegium approved this recommendation in November 2021. Collegium’s move recommending Kirpal could be considered contentious because he is openly gay and in a committed relationship with a foreign national.
Earlier today, the collegium released detailed reasons addressing the Centre’s twin concerns rejecting Kirpal. While the Research and Analysis Wing (RAW) objected to Kirpal's elevation because his partner is Swiss, the Law Ministry felt he would be biased and prejudiced toward LGBTQIA+ matters.
The three-member collegium however reminded the Centre of the Supreme Court ruling which said every individual has a right “to maintain their own dignity and individuality, based on sexual orientation”.
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No reason to reject him because he is gay: SC Collegium
The Supreme Court collegium said there was no reason to reject Kirpal only because he is open about his sexual orientation and that his partner is a foreign national. The Collegium said Kirpal possessed “competence, integrity and intellect”. His appointment as a judge would add value to the Delhi High Court while providing inclusion and diversity. Kirpal’s conduct and behaviour have been above board, though it would be advisable that he refrained from speaking to the media, the collegium added.
“The fact that Mr. Saurabh Kirpal has been open about his orientation is a matter which goes to his credit,” Chief Justice of India (CJI) DY Chandrachud, along with Justices Sanjay Kishan Kaul and KM Joseph said in the resolution. “As a prospective candidate for judgeship, he has not been surreptitious about his orientation,” they added.
“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 said addressing the Centre’s concern on Kirpal’s sexual orientation.
The collegium further pointed out that “the two communications of R&AW do not reflect any apprehension in regard to the individual conduct or behaviour” with regard to Kirpal’s partner who is a Swiss national. There is no reason to pre-suppose that Kirpal’s partner “would be inimically disposed to our country”, since Switzerland—his country of origin—is a friendly nation.
The collegium further said the government’s apprehensions on this point hold no water since many persons in high positions including present and past holders of constitutional offices have and have had spouses who are foreign Nationals.
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Homosexuality decriminalized, but same-sex marriage bereft of recognition: Centre
The Law Minister in a letter dated April 1, 2021 sent back Kirpal’s recognition stating 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”.
“From the letters of the Research & Analysis Wing (R&AW) dated 11 April 2019 and 18 March 2021, it appears that there are two objections to the recommendation which was made by the Collegium of this Court on 11 November 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 collegium’s resolution revealed.
The collegium revealed the government’s apprehension regarding Kirpal’s appointment as a high court judge where it said that his “ardent involvement and passionate attachment to the cause of gay-rights” would not rule out the possibility of bias and prejudice.
Kirpal is not only vocal about LGBTQIA+ rights, but he and his partner are one of the couples who have filed pleas seeking recognition of same-sex marriage before the Supreme Court and the Delhi High Court.
