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Supreme Court Collegium reiterates recommendation for appointment of Senior Advocate Saurabh Kirpal as judge of Delhi High Court

The Supreme Court Collegium, while observing that Senior Advocate Saurabh Kirpal’s openness about his sexual orientation went to his credit, reiterated its November 2021 recommendation to appoint him as judge of the Delhi High Court.

A statement issued by the Collegium on Wednesday said that every individual was entitled to maintain his own dignity and individuality based on sexual orientation.
It further said that as a prospective candidate for judgeship, the Senior Advocate had not been surreptitious about his orientation.

Kirpal’s appointment would add value and provide inclusion and diversity to the Bench of the Delhi High Court, added the statement.

Headed by Chief Justice of India (CJI) D.Y. Chandrachud, the Collegium noted that rejecting the candidature of Kirpal on such ground would be manifestly contrary to the constitutional principles laid down by the Supreme Court.

Stating that the Senior Advocate possessed competence, integrity and intellect, the Collegium noted that the positive aspects of Kirpal’s candidature weighed heavily in his favour.

The statement was issued in response to the Central government’s rejection of the proposal to elevate Kirpal based on two objections – the first one being his openness about his sexual orientation and second, his partner was a Swiss national.

The Collegium noted in the statement that a letter from Law Minister Kiren Rijiju had stated that though homosexuality had been de-criminalised in the country, but same-sex marriages were still not recognised, either in codified statutory law or uncodified personal law in India.

Two communications were sent to the Apex Court by the Research & Analysis Wing (R&AW), which said 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 further noted that these by R&AW did not reflect any apprehension in regard to the conduct or behaviour of Kirpal’s partner as regards national security.

It observed that there was no reason to pre-suppose that the partner of the candidate, who was a Swiss National, would be ‘inimically disposed’ to India, since the country of his origin (Switzerland) was a friendly nation.

As per the Collegium, many persons in high positions, including present and past holders of constitutional offices, had foreign nationals as spouses.

Though the Collegium expressed its unhappiness over Kirpal discussing the reconsideration of recommendations with the media, it observed that this ought not be considered a negative feature, since his recommendation had remained pending for over the past five years. 

The Collegium reiterated the recommendation, stating that the process should be taken up expeditiously by the Union government. 

The Delhi High Court Collegium had recommended the appointment of Kirpal, who is the son of 31st Chief Justice of India, Bhupinder Nath Kirpal, as judge of the High Court on October 13, 2017. The proposal received the nod of the Supreme Court Collegium on November 11, 2021.

The Central government referred back the recommendation to the Supreme Court Collegium on November 25, 2022 for reconsideration.

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