Honesty about sexual orientation a plus, says SC Collegium, reiterating Saurabh Kirpal’s elevation to the Delhi High Court bench

In October, 2017, the Delhi High Court Collegium had recommended Kirpal’s name for appointment as a judge to the high court. In November 2021, the Supreme Court Collegium had approved the high court collegium’s recommendation. However, later that month, the Union Government sent back his name to the Collegium with certain objections.

THE Supreme Court Collegium on Wednesday put its foot down and reiterated the name of openly gay advocate Saurabh Kirpal for elevation to the Delhi High Court bench. The Collegium, which comprises Chief Justice of India Dr. D.Y. Chandrachud and Justices Sanjay Kishan Kaul and K.M. Joseph, brushed aside the Union Government’s objection over Kirpal’s elevation on the ground of his sexual orientation and the fact that his partner is a Swiss national.

Rejecting the objections, the Collegium noted that, “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. 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.”

Regarding the objection over Kirpal’s sexual orientation, the Collegium added that decisions of Constitution Benches of the Supreme Court have established the constitutional position that every individual is entitled to maintain their own dignity and individuality irrespective of their 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,” the Collegium resolution read.

It further read that Kirpal’s appointment would add value to the bench of the Delhi High Court, and provide inclusion and diversity.

“His conduct and behaviour have been above board. It may have been advisable for the candidate not to speak to the press in regard to the reasons which may have weighed in the recommendations of the Collegium being sent back for reconsideration. However, this aspect should not be considered as a negative feature, particularly since the name has remained pending for over five years. The overwhelmingly positive aspects of the candidature of Shri Saurabh Kirpal must, therefore, weigh in the balance.” the Collegium said.

Reacting to the Collegium’s decision, senior advocate Indira Jaising took to Twitter, posting, “The Queer community has a right to be considered for being a judge , (sic) having a partner who is not a citizen of India is no disqualification for being a judge, the collegium walked the talk”.

Speaking to The Leaflet, Rohin Bhatt, a queer lawyer and bioethicist who practices at the Supreme Court, said, “When Justice Chandrachud took office, I was sceptical. But he has proven me wrong with this reiteration, with reasons for objections of the government as well as the Collegium’s rebuttal to them made public. This heralds a new era for Constitutional Courts in the country, where queer lawyers like myself will get to see someone like them on the bench.

“This also heralds in an era of transparency, with the minutes of the Collegium made public,” Bhat added.

On October 13, 2017, the Delhi High Court Collegium had recommended Kirpal’s name for appointment as a judge to the Delhi High Court. On November 11, 2021, the Supreme Court Collegium approved the high court collegium’s recommendation. However, on November 25, 2022, the government sent back his name to the Collegium with certain objections that have been brought to light in yesterday’s resolution of the collegium.

The Leaflet