SC collegium stands by its recommendation to appoint Saurabh Kirpal as India's first gay HC judge

Saurabh Kripal is a member of the LGBTQ community.

The Supreme Court collegium headed by Chief Justice of India (CJI) DY Chandrachud reiterated on January 18 its 2021 recommendation for the appointment of senior advocate Saurabh Kirpal as a judge in the Delhi High Court. Saurabh Kirpal is a member of the LGBTQ community.

The recommendation to appoint Kirpal as a Delhi High Court judge was made unanimously by the HC in October 2017; it was subsequently approved by the Supreme Court collegium in November 2021. However, in November 2022, it was referred back to the SC collegium for reconsideration over two objections two Kirpal’s appointment:

1)  His partner is a Swiss national;

2)  He is in an intimate relationship and is open about his sexual orientation

According to the collegium’s resolution reiterating Kirpal’s recommendation, a letter from the Law Minister stated 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”. It also stated that  Kirpal’s “ardent involvement and passionate attachment to the cause of gay rights” would not rule out the possibility of bias and prejudice.

On his sexual orientation, the collegium has cited the Supreme Court’s judgment upholding every individual's right to maintain their own dignity and individuality based on their sexual orientation. It states: “The fact that Mr Saurabh Kirpal has been open about his orientation is a matter which goes to his credit.”

The collegium has also said that his appointment will only add value to the Bench of the Delhi High Court and make room for inclusion and diversity.

The SC collegium also took cognizance of Kirpal telling the press that the recommendation being sent back for reconsideration may not have been advisable. The collegium opined that this should not be considered negative, as his name had been pending for over five years.

With regard to Kirpal’s partner being a Swiss national, the collegium noted that the country of his origin is a friendly nation. Moreover, several 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 foreigner.

"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 the appointment of Shri Saurabh Kirpal as a Judge of the Delhi High Court which needs to be processed expeditiously," the SC collegium's resolution reads.