Cannot deny judgeship due to sexual orientation: Supreme Court collegium

It would be “manifestly contrary to the constitutional principles” to block the appointment of senior advocate Saurabh Kirpal as a judge in the Delhi high court because of his homosexuality, the Supreme Court collegium told the Centre in its resolution.

It would be “manifestly contrary to the constitutional principles” to block the appointment of senior advocate Saurabh Kirpal as a judge in the Delhi high court because of his homosexuality, the Supreme Court collegium said to the Union government in its resolution, reiterating Kirpal’s name for the appointment.

Supreme Court collegium again backs Saurabh Kirpal for Delhi high court judge, rejects Centre’s objections

As reported first by HT on Thursday, the collegium strongly backed Kirpal’s candidature, brushing aside the objections raised by the government, which on November 25 sent back the lawyer’s name for a reconsideration. The collegium comprises Chief Justice of India (CJI) Dhananjaya Y Chandrachud, and justices Sanjay Kishan Kaul and KM Joseph.

The resolution, made public by the collegium on Thursday evening, took head on the concerns expressed by the government regarding Kirpal’s sexuality, asserting that his openness about his orientation is a matter which goes to his credit.

“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... 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,” stated the resolution.

Dismissing the government’s views that Kirpal’s “ardent involvement and passionate attachment to the cause of gay rights” would not rule out the possibility of bias and prejudice, the collegium maintained that the lawyer 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,” it said.

Kirpal was one of the leading lawyers in the landmark Navtej Singh Johar case that led to the Supreme Court decriminalising homosexuality in 2018.

The collegium further rejected the government’s apprehensions that since Kirpal’s partner is a Swiss national, it may pose a security threat. “There is no reason to presuppose 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,” said the resolution.

It added: “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.”

Under the memorandum of procedure (MoP) that guides judicial appointments, the government can only object once if it does not agree with the collegium’s recommendations, but is bound by the decision after the names are reiterated.

After a long wait, the collegium had in November 2021 picked Kirpal. The Delhi high court first recommended Kirpal for appointment as a judge in 2017, but the Intelligence Bureau (IB), which was tasked with a background check, came out with adverse reports in 2018 and 2019, suggesting that Kirpal’s partner might pose a security risk.

IB’s objections prompted the Supreme Court collegium to defer its final decision on Kirpal’s recommendation on three different occasions — in January 2019, April 2019, and August 2020.

In March 2021, the then CJI SA Bobde wrote to the Union law ministry demanding more clarity on the government’s reservations against Kirpal’s elevation. The government responded the following month, reiterating its apprehensions against his partner.

Meanwhile, in March 2021, Kirpal was designated as a senior advocate by the Delhi high court after all its 31 judges unanimously endorsed his designation.

Finally, in November 2021, the Supreme Court collegium issued a resolution for Kirpal’s elevation as a judge in the Delhi high court, overruling the central government’s preliminary objections against his candidature. However, on November 25, the government sent back Kirpal’s name yet again, raising the similar objections it had flagged earlier.