SC Collegium reiterates recommendation to appoint gay advocate Saurabh Kirpal as HC judge

Supreme Court Collegium headed by Chief Justice of India D Y Chandrachud on Thursday reiterated its November 11, 2021 recommendation on openly gay senior advocate Saurabh Kirpal as Delhi High Court judge while rejecting the union government's objections about his sexual orientation and Swiss partner.

The Collegium comprising Justices Sanjay Kishan Kaul and K M Joseph said, "The fact that 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."

A statement by the Collegium pointed out 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.

"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 has been above board," it added.

In a three-page statement, the Collegium also said there is no reason to pre-suppose that the partner of the candidate, who is a Swiss National, would be inimically disposed to India, 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 Kirpal on the ground that his partner is a foreign National," it said.

Observing that every individual is entitled to maintain their own dignity and individuality based on sexual orientation, the Collegium also said it may have been advisable for the candidate not to 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, this aspect should not be considered as a negative feature, particularly since the name has remained pending for over five years.

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

50-year-old Kirpal was first recommended by the Delhi HC Collegium for appointment as judge on October 13, 2017.

Son of former Chief Justice of India, Kirpal is a graduate from St Stephens College, New Delhi.

He pursued his undergraduate degree in law from the Oxford University and obtained master's degree from Cambridge University.

Kirpal, who worked with the United Nations for a brief period in Geneva, returned to India in the 1990s and practiced law extensively in the Supreme Court for more than two decades.

He worked as an associate of senior advocate Mukul Rohatgi. He was part of the arguing counsel before the Constitution bench, which decriminalised of Section 377 of the Indian Penal Code in its historic judgement in the case of Navtej Singh Johor.