The Supreme Court Collegium on Thursday stood firm by its resolve to have the government appoint openly gay lawyer Saurabh Kirpal as Delhi High Court judge, saying every individual is “entitled to maintain their own dignity and individuality based on sexual orientation”.
The three-member Collegium of Chief Justice D.Y. Chandrachud, Sanjay Kishan Kaul and K.M. Joseph took the rare decision to publish the full extent of the government’s objections to Mr. Kirpal, based on his sexuality and his “passionate” advocacy for LGBTQ+ rights.
The Collegium referred to letters from the Research and Analysis Wing (R&AW), forwarded by the government, frowning upon Mr. Kirpal’s partner being a Swiss national, that they have an “intimate relationship” and the lawyer is “open about his sexual orientation”.
The government, the Collegium said, was also worried that same-sex marriage was not recognised in India though “homosexuality stands decriminalised”.
“Moreover,” the Collegium quoted the Law Minister’s missive of April 2021 stating that Mr. Kirpal’s “ardent involvement and passionate attachment to gay rights” did not rule out the “possibility of bias and prejudice”.
Replying to the government, the Collegium said the R&AW did not consider the individual conduct of either Mr. Kirpal or his partner as having “any bearing on national security”.
Besides, many constitutional authorities in India have or had foreign spouses. “Many persons in high positions, including present and past holders of constitutional offices have had spouses who are foreign nationals. There can be no objection to the candidature of Shri Saurabh Kirpal on the ground that his partner is a foreign national,” the Collegium said.
Moreover, in this case, Switzerland was a friendly nation, the Collegium pointed out to the Centre.
The Collegium said the fact that Mr. Kirpal is open about his sexual orientation goes to his credit. The lawyer’s sexual orientation is his constitutionally recognised right. He has never been “surreptitious” about it. Mr. Kirpal, the Collegium said, possessed “competence, integrity and intellect” and he would be an asset to the Delhi High Court as a judge.
“His appointment will add value to the Bench of the Delhi High Court and provide inclusion and diversity,” the Collegium underscored.
If appointed, Mr. Kirpal would be India’s first openly gay judge in a High Court. The Collegium however added a line that it “may have been advisable for the candidate [Mr. Kirpal] not to speak to the Press” about his prolonged appointment process.
Mr. Kirpal’s name was recommended five years ago by the Delhi High Court Collegium, in October 2017. The Supreme Court Collegium had approved his name in November 2021. The government had returned his file to the Collegium for reconsideration on November 25 last year.
