Saurabh Kirpal's Openness About Sexual Orientation Doesn't Make Him Unsuitable For Judgeship: Supreme Court Collegium Reiterates Proposal

The Supreme Court Collegium has expressed its disagreement with the Centre which returned the proposal to appoint gay Advocate Saurabh Kirpal as a Judge of the Delhi High Court, based on his openness about his sexual orientation.

The Centre apprehends that given his "attachment" to the cause of gay-rights, it cannot rule out the possibility of Kirpal's bias and prejudice. It had therefore referred the proposal back for reconsideration.

However, in a resolution dated January 18 reiterating Kirpal's name, the Collegium comprising CJI DY Chandrachud, Justices SK Kaul and KM Joseph said,

"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 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 proposal to appoint Kirpal has been pending for over five years. The recommendation was 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.

The SC Collegium agreed that it was advisable for Kirpal to not 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, it added that 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."

Another reason cited by the Centre to return the proposal is that Kirpal's partner is a Swiss National.

SC Collegium however noted that there is no apprehension that behaviour of Kirpal's partner has any 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. 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."

Reiterating the proposal, the Collegium stated :

"The overwhelmingly positive aspects of the candidature of Shri Saurabh Kirpal must, therefore, weigh in the balance.

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"

Click here to read/download the resolution