The Supreme Court collegium has reiterated its 11 November, 2021 recommendation for the appointment of advocate Saurabh Kirpal as a Judge of the Delhi High Court, stressing that it needs to be processed expeditiously.
The collegium brushed aside the government’s objection to his being a gay and in an intimate relationship with a Swiss national. It said Saurabha Kirpal possesses “competence, integrity and intellect” and has been “open” about his orientation and never been surreptitious about it.
Stating that the “overwhelmingly positive aspects of the candidature of Shri Saurabh Kirpal must, therefore, weigh in the balance”, the collegium unanimously resolved 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”.
The statement adopted by the collegium – comprising Chief Justice D Y Chandrachud, Justice Sanjay Kishan Kaul and Justice K M Joseph – on January 18 said that Saurabh Kirpal “possesses competence, integrity and intellect” and his appointment will “add value” and provide “inclusion and diversity” to the high court.
Reiterating the recommendation for the appointment of Saurabh Kirpal as Delhi High Court judge, the collegium found nothing new in the Research and Analysis Wing’s two communications about Saurabh Kirpal’s intimate relationship with a Swiss national of same sex.
Referring to communications from R&AW, the collegium said that it does not reflect any apprehension in regard to the individual conduct or behaviour of the Swiss partner of Saurabha Kirpal having a bearing on national security.
“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,” says the statement by the collegium posted on the top court’s website.
“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”, underlines the collegium statement.
The collegium referred to the Union Law Minister’s April 1, 2021 letter which said 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” and the recommended candidate’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 referring to the top court’s constitution bench judgment says “every individual is entitled to maintain their own dignity and individuality, based on sexual orientation.”
It further says that the fact that Saurabh Kirpal has been “open about his orientation is a matter which goes to his credit and as prospective candidate for judgeship, he has not been surreptitious about his orientation”.
In view of the constitutionally recognised rights which the candidate espouses, the collegium said it would be “manifestly contrary to the constitutional principles laid down by the Supreme Court to reject his candidature on that ground.”