Modi govt still against gay lawyer Kirpal’s elevation as HC judge, tells CJI as much

In response to CJI Bobde's letter, Centre is said to have conveyed apprehensions over Saurabh Kripal’s appointment as judge on the ground that his male partner is a foreign national.

Saurabh Kirpal | Photo via Twitter

New Delhi: The NDA government has once again objected to the recommendation made by the Supreme Court collegium to elevate senior advocate Saurabh Kirpal as a judge of the Delhi High Court, ThePrint has learnt.

In response to a letter by Chief Justice of India S.A. Bobde, the Centre is said to have conveyed its apprehensions over Kripal’s appointment on the ground that his male partner is a foreign national.

Through his letter, the CJI had sought additional information on Kirpal, following a collegium meeting on 2 March that deliberated on the senior advocate’s name.

Kirpal, who has come out as a gay person, was recommended for elevation in 2017 by the Delhi HC collegium then led by acting chief justice Gita Mittal. The proposal was endorsed by the top court’s collegium too but it was deferred, in an unprecedented move, after the Centre raised objections regarding his partner.

CJI Bobde had in his letter, as reported earlier by ThePrint, sought additional information from the Centre to give more clarity on its reservations over Kirpal’s name. On this, the government has pointed out that Kirpal’s partner, a European, is employed with the Swiss embassy and that he was working with a Switzerland-based non-profit organisation prior to this job.

In its earlier communication, the government had attached photographs of him and his foreign partners, after trawling through his Facebook account. It said the partner could pose a security risk.

The government this time also chose to maintain silence on Kirpal’s sexual orientation.

Now, it is upto the top court collegium to take a final decision on the senior advocate’s recommendation.

Under the Memorandum of Procedure (MoP), if the collegium does not accept the government’s stand and reiterates its decision to appoint Kirpal as a judge, the Centre will have no choice but to notify his name. At best, the government can delay his appointment but not turn it down.

However, it is to be seen whether the present collegium led by CJI Bobde will convene a meeting to discuss Kirpal’s name. There is no written rule that bars an outgoing CJI from holding the collegium meeting, but according to the convention, once the President signs the warrants of appointment for the new CJI, the incumbent chooses not to call one.

Collegium has deferred decision on Kirpal 4 times 

Kirpal’s name was discussed during the 2 March meeting between CJI Bobde and the two other collegium members, Justices N.V. Ramana and R.F. Nariman, but the collegium deferred its decision until it received inputs from the government.

This was the fourth time Kirpal’s name was deferred, ever since he was unanimously recommended by the Delhi HC.

His name was among 18 of the 23 proposals, pending with the collegium for long, which were taken up on 2 March. These included some names that were sent back by the Centre for reconsideration and those deferred by the collegium earlier for want of more information.

The SC has been unable to take a concrete decision on Kirpal’s appointment, even though it had in September 2018 read down Section 377, which criminalised consensual sex between homosexual adults.

In an interview to ThePrint last September, Kirpal had said he believes that his sexual orientation is probably the reason why the three-member Supreme Court collegium has not taken a decision on his elevation. It was the first time the advocate had spoken out on the issue.

(Edited by Sanghamitra Mazumdar)