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Stalemate continues on Saurabh Kirpal’s elevation to HC
Of the 14 lawyers recommended by the Delhi high court collegium for judgeship after 2017, when Saurabh Kirpal’s name was proposed, 13 have been appointed as judges in the high court
The Union government has sat on a recommendation for the elevation as judge of senior advocate Saurabh Kirpal while clearing the appointments of more than a dozen other lawyers whose names were recommended by the Delhi high court collegium much later -- a delay that has extended the wait for an openly gay person to become a judge of an Indian constitutional court.
Of the 14 lawyers recommended by the Delhi high court collegium for judgeship after 2017, when Kirpal’s name was proposed, 13 have been appointed as judges in the high court. Kirpal was also one of the leading lawyers in the landmark Navtej Singh Johar case that led to the Supreme Court decriminalising homosexuality in 2018.
It was in October 2017 that the Delhi high court unanimously recommended Kirpal for appointment as a judge but the Intelligence Bureau (IB), which was tasked with a background check on Kirpal, came out with adverse reports in 2018 and 2019, suggesting Kirpal’s partner, who is a European national, 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 chief justice of India (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. It maintained that Kirpal’s partner was employed with the Swiss embassy, and that he was working with a Switzerland-based non-profit organisation prior to this job.
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, headed by present CJI NV Ramana, 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. The collegium, which also included justices Uday U Lalit, AM Khanwilkar, Dhanajaya Y Chandrachud and L Nageswara Rao, forwarded Kirpal’s name for judgeship.
Since Kirpal’s recommendation by the top court in November 2021, the government the cleared appointments of 11 other lawyers as judges in the Delhi high court -- Tara V Ganju, Mini Pushkarna, Vikas Mahajan, Tushar Rao Gedela, Manmeet Pritam Singh Arora, Sachin Datta, Amit Mahajan, Gaurang Kanth, Saurabh Banerjee, Amit Sharma, and Anish Dayal. Two other lawyers, Jasmeet Singh and Amit Bansal, were also appointed as judges in the Delhi high court in February 2021.
Some of the names cited above were recommended by the Delhi high court in 2018, and the government cleared them over time even as Kirpal’s recommendation hangs fire. According to people aware of the matter, the government has not responded to the Supreme Court collegium’s recommendation regarding Kirpal.
When contacted, Kirpal said that he would not withdraw his consent for judgeship. “Becoming a high court judge is a matter of public service. It is never about personal ambitions. So long as the causes that I believe in subsist, there is no question of withdrawing my consent,” Kirpal told HT.
Kirpal was 45 when his name was recommended by the Supreme Court for elevation. A timely elevation would have brought Kirpal in the zone of a potential chief justice of a high court by virtue of seniority, besides opening doors for his elevation to the Supreme Court.
The Delhi high court, which has a sanctioned strength of 60 judges, is currently functioning with 47 judges.
In February this year, senior advocate Aditya Sondhi withdrew his consent for elevation as a judge of the Karnataka high court. Speaking to media organisations, Sondhi cited delay in clearing his appointment as the chief cause behind his decision.
Sondhi was among three lawyers whose names were approved by the Karnataka high court collegium in February 2020, followed by the Supreme Court’s approval in February 2021. While the other two candidates were appointed as judges, the Union government sent back Sondhi’s file to the Supreme Court collegium, which reiterated its proposal in September 2021. But the appointment never came through.
The memorandum of procedure (MoP), which guides the appointment of judges in the higher judiciary, lays down that the government is bound by the decision of the collegium after the names are reiterated. MoP, however, does not prescribe a deadline for the government to notify appointments.
By a judgment in April 2021, the Supreme Court tried to streamline the process of judicial appointments as it set down 18 weeks as an outer time limit within which the Centre is expected to process the names for appointment of high court judges, besides notifying appointments once the names are reiterated by its collegium.
Former Supreme Court judge Deepak Gupta emphasised that Kirpal’s name is not being accepted by the government only because of his sexual orientation.
“It (sexual orientation) is a very personal choice. He is a competent lawyer and will be an asset as a judge anywhere in the world. It is ridiculous the way government sits on recommendations and the Supreme Court keeps silent,” said justice Gupta.
The retired top court judge stressed that if the collegium puts its foot down, no government can withstand the pressure. “After all, they are not putting their foot down for someone who is incompetent but one who is efficient, only that he has a particular sexual orientation,” he said.
