'Sexual orientation doesn't make him unsuitable': SC backs Saurabh Kirpal to be HC judge

In a big development, the Supreme Court Collegium on Wednesday stood firm on its decision to appoint senior advocate Saurabh Kirpal, an openly gay person, as a judge of a constitutional court in India. According to the official statement released by the top court, the collegium resolved to reiterate Kirpal’s name to the Union Government for his appointment as a judge in the Delhi High Court. 

It is important to note that the elevation of senior advocate Saurabh Kirpal, said to be one of the most brilliant, erudite lawyers in the country, was pending for five years now and needed to be processed expeditiously. “The recommendation unanimously made by the Collegium of the Delhi High Court on 13 October 2017 and approved by the Supreme Court Collegium on 11 November 2021 has been referred back to us on 25 November 2022 for reconsideration,” the top court’s document read. 

“Saurabh Kirpal possesses competence, integrity and intellect. His appointment will add value to the Bench of the Delhi High Court and provide inclusion and diversity,” the document added. 

“His legal prowess is well known and he brings context to the most complex arguments,” Republic’s Executive Editor - Law & Governance, Rhythm Anand Bhardwaj, said about Kirpal.

Notably, the apex court's decision to make the appointment matter of Kirpal public came at a time when the judiciary and the central government are engaged in a tussle over the appointment of the judges. However, under the Memorandum of Procedure (MoP) that guides the judicial appointments, the Centre can only object the Collegium’s recommendations once, but will have to accept the decision after the names are reiterated.

SC responds to Centre’s concerns

In the statement released, the Supreme Court stated that from the letters of the Research & Analysis Wing (R&AW) dated April 11, 2019 and March 18, 2021, it appeared that the Swiss nationality and the sexual orientation of Kirpal are the major objections of the Centre to the recommendation which was made by the Collegium on November 11, 2021. 

“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 apex court’s statement read.

Why was Kirpal’s elevation pending?

Nearly five years ago in 2017, the Delhi High Court's Collegium suggested the elevation of senior advocate Saurabh Kirpal as a Delhi High Court judge. However, after the Supreme Court gave its approval to the recommendation, the Centre urged the apex court Collegium to reconsider its recommendation to elevate an openly-gay lawyer Saurabh Kirpal. 

However, after Kirpal alleged that his elevation had been delayed due to his sexual orientation, it was revealed that the Centre’s rejection of his elevation came following the Research and Analysis Wing report that suggested that Saurabh Kirpal is a Swiss national.

Who is Saurabh Kirpal?

Born in 1972, Saurabh Kirpal is the son of former Chief Justice of India BN Kirpal. After studying law at Oxford and Cambridge, Kirpal returned to India and has been practicing law at the Supreme Court for over two decades now.

Notably, Kirpal was one of the leading lawyers in the landmark Navtej Singh Johar case that led to decriminalising homosexuality in India in 2018.