The Supreme Court Collegium confirmed on Wednesday that senior lawyer Saurabh Kirpal, who is openly gay, will become a judge of the Delhi High Court on November 11, 2021.
A three-member Collegium led by the Chief Justice of India, DY Chandrachud, and consisting of Justices S K Kaul and K M Joseph stated that Kirpal’s appointment as a judge has been pending for five years and must be expedited.
“In light of the above, the Collegium reaffirms its 11 November 2021 recommendation for the appointment of Shri Saurabh Kirpal as a judge of the Delhi High Court, which must be done quickly,” said a statement on the website of the Supreme Court.
“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 for reconsideration on November 25, 2022 in light of the observations made in the file,” the statement noted.
In a letter dated 1 April 2021, the Union Law Minister declared that although the decriminalization of homosexuality in India, same-sex marriage is not recognised under either codified statute law or uncodified personal law. According to Live Law, the Centre believed that Kirpal’s bias and prejudice could not be ruled out given his “commitment” to the cause of LGBT rights.
In their statement, the Collegium praised Kirpal, the son of former Chief Justice of India B N Kirpal, for being open about his sexual orientation, saying that it “goes to his credit” that he hasn’t tried to hide it.
During the hearing, two people spoke out against the court’s recommendation, which was noted by the Collegium. According to the statement, Saurabh Kirpal’s partner is a Swiss national, and he is in an “intimate relationship and is open about his sexual orientation.” The Collegium said that the objections did not represent any “concern regarding the particular conduct or behavior of Kirpal’s partner affecting national security.”
The Collegium said that there is no reason to “assume” that the candidate’s partner, who is from Switzerland, is against India since Switzerland is a friendly country.
Regarding the second objection, the Collegium stated, “It must be recalled that the rulings of the Constitution bench of the Supreme Court have established the constitutional stance that every person has the right to keep their own dignity and individuality based on their sexual orientation.”
The Collegium said that Kirpal was “competent, honest, and smart,” and that his nomination would make the Delhi High Court bench better and more interesting.
Over the years, legal circles have criticised the delay in Kirpal’s recommendation, with many thinking that it was due to his sexual orientation. Additionally, the government constantly objected to his promotion, citing a potential conflict of interest because his partner is European and works for the Swiss Embassy.
Nearly three years had passed since the Supreme Court Collegium first reviewed Kirpal’s candidature in 2018, after the Delhi High Court collegium led by Justice Gita Mittal had recommended Kirpal’s appointment as a judge in October 2017. Kirpal represented two petitioners in the precedent-setting case in which the Supreme Court decriminalised homosexuality.
With PTI inputs
