The Supreme Court Collegium has resolved to reiterate its recommendation for the appointment of Senior Advocate Saurabh Kirpal as a Judge of the Delhi High Court, stressing that it needs to be processed expeditiously and said that Kirpal as a prospective candidate for judgeship, has not been surreptitious about his orientation.

Reiterating its recommendation dated November 11, 2021, for the appointment of Saurabh Kirpal as a Judge of the Delhi High Court, the Collegium said that the overwhelmingly positive aspects of the candidature of Saurabh Kirpal must, therefore, weigh in the balance.

In a Collegium meeting held between Chief Justice of India Dhananjaya Y Chandrachud, justices Sanjay Kishan Kaul and KM Joseph, the decision to reiterate the recommendation for the appointment of Saurabh Kirpal as a Judge of the Delhi High Court was taken.

The SC Collegium said Saurabh Kirpal possesses the competence, integrity and intellect and his appointment will add value to the Bench of the Delhi High Court and provide inclusion and diversity.

The Collegium appreciated the conduct and behaviour of Kirpal and said, “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.

“In this backdrop, the Collegium resolves to reiterate its recommendation dated November 11, 2021, for the appointment of Saurabh Kirpal as a Judge of the Delhi High Court which needs to be processed expeditiously,” the collegium said.

The Collegium mentioned the letter of the Law Minister dated April 1 2021 which states 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 candidate’s “ardent involvement and passionate attachment to the cause of gay-rights” would not rule out the possibility of bias and prejudice.

“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. 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,” SC Collegium clarified.

“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 SSaurabh Kirpal on the ground that his partner is a Foreign National,” SC collegium pointed.

“As regards the second objection, it needs to be noted that the decisions of the Constitution Bench of this Court have established the constitutional position that every individual is entitled to maintain their own dignity and individuality, based on sexual orientation,” SC Collegium said.

“The fact that Saurabh Kirpal has been open about his orientation is a matter which goes to his credit. As a prospective candidate for the judgeship, he has not been surreptitious about his orientation,” SC Collegium said.
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 Collegium said.

The recommendation unanimously made by the Collegium of the Delhi High Court on 13 October 2017 and approved by the Supreme Court Collegium on 11 November 2021 has been referred back to us on 25 November 2022 for reconsideration. The proposal has been pending for over five years.

The SC Collegium took note of the letters of the Research & Analysis Wing (R&AW) dated 11 April 2019 and 18 March 2021, and said that it appears that there are two objections to the recommendation which was made by the Collegium of this Court on 11 November 2021 approving the name of Saurabh Kirpal namely, the partner of Saurabh Kirpal is a Swiss National, and he is in an intimate relationship and is open about his sexual orientation.