New Delhi: The Supreme Court collegium led by Chief Justice of India D.Y. Chandrachud reiterated the top judicial appointment body’s earlier recommendation to elevate senior advocate Saurabh Kirpal as a judge of the Delhi High Court, praising him for his 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,” said the SC collegium.
An openly gay advocate, Saurabh Kirpal, son of former Chief Justice of India B.N. Kirpal, was 45 when his name was proposed in 2017 by the then Delhi High Court collegium. However, the top court collegium took four years to clear his name and forward it to the Union government. It was done in November 2021 by the collegium then led by Chief Justice N.V. Ramana.
The Union government returned the files in November 2022, objecting to Kirpal’s candidature. According to the collegium resolution uploaded on the SC website Thursday, the government’s objection came on two grounds — one that his partner is a Swiss national and second “his intimate relationship” and openness about “his sexual orientation”.
However, the SC collegium, also comprising Justices Sanjay Kishan Kaul and K.M. Joseph, discarded the objection Wednesday and opined that Kirpal is eligible to become a high court judge in all aspects.
The resolution uploaded on the SC website also referred to a letter by Union Law Minister Kiren Rijiju, stating that though “homosexuality stands decriminalised in India, nonetheless same-sex marriage still remains bereft of recognition either in codified statutory law or uncodified personal law in India”. The resolution further quoted the minister’s letter as mentioned that the candidate’s “ardent involvement and passionate attachment to the cause of gay-rights” would not rule out the possibility of bias and prejudice.
The collegium dealt with both the objections and discarded them. “As regards the first objection, the two communications of R&AW do not reflect any apprehension in regard to the individual conduct or behaviour of the partner of Shri Saurabh Kirpal having a 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,” the resolution noted.
It added that 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 Saurabh Kirpal on the ground that his partner is a foreign National,” the resolution said.
As regards the second objection, the collegium mentioned the SC Constitution Bench’s 2018 decision that decriminalised homosexuality in India. The judgment, the collegium added, has established the constitutional position that every individual is entitled to maintain their own dignity and individuality, based on sexual orientation.
The collegium praised Kirpal for being open about his orientation for which, it said, he must be given credit. As a prospective candidate for judgeship, he has not been surreptitious about his orientation, it said.
“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 resolution mentioned.
On his interviews with the media on his candidature, the collegium 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.”
But it did not want this aspect to be considered as a negative feature in his case, particularly since his name is pending for over five years.
“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,” the collegium said.
The SC’s decision to remain firm on Kirpal’s name comes at a time when the Narendra Modi-led central government and the top court are once again at loggerheads over the judicial appointment system.
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Tussle over appointments
Kirpal’s name was part of 20 files sent to the SC collegium by the central government for reconsideration. While 11 were fresh cases — meaning those that were sent by the collegium for the first time, including that of Kirpal — nine were names that had previously been reiterated by the top court collegium.
Apart from Kirpal’s name, the collegium Wednesday also discussed proposals for fresh appointments to several other high courts that are likely to be forwarded to the government for notification.
The apex court and the Narendra Modi-led central government have been at odds over judicial appointments.
The confrontation intensified recently when Union law minister Kiren Rijiju shot off a letter to Justice Chandrachud, demanding that a search-cum-evaluation committee be set up in all high courts as well as the SC, to collate information and data on the proposed candidates, for the perusal of the collegium in the respective jurisdictions.
The minister also asked for government representation in such committees. At the state level, Rijiju proposed inclusion of a state government as well as central government nominee, while in the search-cum-evaluation committee in the SC, he suggested membership of a central government nominee.
The minister backed his letter by referring to the 2015 SC judgment on the National Judicial Appointments Commission (NJAC) Act that had struck down the new law, holding it as “unconstitutional”.
The Act that gave the executive a say in judicial appointments to high courts and the SC was seen as a threat to the independence of the judiciary, which is part of the basic structure, an unalterable facet, of the Constitution.
The SC judgment, the minister asserted, called for finetuning of the Memorandum of Procedure (MoP) to bring transparency in the appointment system, described as opaque by critics. The MoP outlines the appointment process of judges to the high courts and SC.
However, the MoP issue remains unresolved, with the Modi government claiming that the SC collegium is yet to revert on its suggestions to improve the procedure to infuse transparency. The top court, on the other hand, has made it clear that the current MoP is the law of the land.
According to the MoP, names reiterated by the collegium have to be notified by the Centre. However, recent events show that the government is unwilling to prescribe to this norm and has returned files that were reiterated by the SC collegium during its earlier rounds of deliberations.
(Edited by Nida Fatima Siddiqui)
Also read: Not being named judge could have something to do with my sexuality — lawyer Saurabh Kirpal