The Supreme Court Collegium headed by Chief Justice of India DY Chandrachud has reiterated its November 11, 2021 recommendation for the appointment of senior advocate Saurabh Kirpal as a judge of the Delhi High Court. The Collegium, which also comprised Justices SK Kaul and KM Joseph, said the proposal for Saurabh's appointment as a judge of the high court is pending for over five years and it needs to be processed expeditiously. Saurabh, who is openly gay, had also been recommended for elevation in 2017 by the Delhi High Court collegium, but the Union government had raised objections against his recommendation citing his sexual orientation.
The SC Collegium has now said in a statement uploaded on the apex court website that the fact that Saurabh Kirpal has been open about his sexual orientation ‘is a matter which goes to his credit’. The statement said, “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 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 Law Minister had objected to the elevation in April 2021 and stated through a letter that “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”. The Law Ministry claimed that Kirpal’s “ardent involvement and passionate attachment to the cause of gay-rights” would not rule out the possibility of bias and prejudice.
The Collegium’s statement also said that Saurabh 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. Saurabh Kirpal is the son of BN Kirpal, a former Chief Justice of India.
"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 the statement. "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," it noted.
The Collegium also mentioned that based on letters of the Research & Analysis Wing, apart from Saurabh being open about his sexual orientation, another objection was also raised on his partner being a Swiss national. Refuting this argument, the Collegium said, “There is no reason to pre-suppose 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 CJI’s stance comes at a time when the country is witnessing a standoff over the collegium system through which judges are appointed. Recently, Union Law Minister Kiren Rijiju wrote to the CJI saying that the Union government’s representative should be a member of the SEC (search-cum-evaluation committee) for appointment of judges in the apex court and Chief Justices of high courts, and that the SECs for appointment of judges in the high court should also have a nominee of the state government. He also pointed out that the finalisation of the Memorandum of Procedure (MoP) regarding appointment of judges is still pending, and suggested inclusion of a government representative in the SEC, which would provide inputs on suitable candidates to the appointment panel or the collegium.
The Union government has said that it is an important stakeholder in the process of appointment of judges in the Supreme Court and high courts, therefore, the government's views should also find a place in the preparation of the panel of names.