New-Delhi: The Supreme Court Collegium reiterated its November 11, 2021 recommendation to appoint senior advocate Saurabh Kirpal, an openly gay person, as a judge of the Delhi High Court.
The three-member Collegium, headed by Chief Justice of India D Y Chandrachud and also comprising Justices S K Kaul and K M Joseph, said the proposal for appointment of Kirpal as a judge of the high court has been pending for over five years and needs to be processed expeditiously.
“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 a statement uploaded on the apex court website.
“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,” the statement noted.
The judges also noted that the law minister, in a letter on April 2021, had 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”. The candidate’s “ardent involvement and passionate attachment to the cause of gay-rights” would not rule out the possibility of bias and prejudice.”
However, the collegium rejected both these objections. “As regards the first objection, the two communications of R&AW do not reflect any apprehension in regard to the individual conduct or behaviour of the partner of Shri Saurabh Kirpal having a bearing on national security,” the collegium said. There is no reason to pre-suppose that the partner of the candidate would be “inimically disposed to our country, since the country of his origin is a friendly nation”. It added that many persons in high positions including present and past holders of constitutional offices – have spouses who are foreign nationals.
The collegium said that Supreme Court decisions “have established the constitutional position that 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 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. His appointment will add value to the Bench of the Delhi High Court and provide inclusion and diversity. His conduct and behaviour have been above board,” the collegium said.
Ms Kalinga