Supreme Court Collegium junks Centre's objections to senior advocate Saurabh Kirpal's appointment

Satya Prakash

New Delhi, January 19

In a fresh round of confrontation with the Centre, the Supreme Court Collegium has rejected the Centre’s objections to the proposed elevation of senior advocate Saurabh Kirpal, an openly gay person, as a judge of the Delhi High Court and reiterated its recommendations for four other appointments.

Second reiteration for two candidates in Calcutta HC

Maintaining that Kirpal’s appointment would “add value to the Bench and provide inclusion and diversity,” the Collegium has reiterated its November 11, 2021, recommendation for his appointment.

“The fact that Mr Saurabh 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. 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,” a three-judge Collegium led by Chief Justice of India DY Chandrachud said.

Brushing aside the IB reports, the Collegium reiterated its recommendations for appointment of advocate R John Sathyam as a judge of the Madras High Court and advocate Somasekhar Sundaresan as a judge of the Bombay High Court.

Sathyan had posted certain material on social media, including one critical of the PM, while Sundaresan was “selectively critical” on social media on important policies, initiatives and directions of the government. “Expression of views by a candidate does not disentitle him to hold a constitutional office so long as the person proposed for judgeship is a person of competence, merit and integrity,” said the three-member Collegium – which also includes Justice SK Kaul and Justice KM Joseph.

It made a second reiteration of its recommendation to elevate advocates Amitesh Banerjee and Sakya Sen as judges of the Calcutta High Court.

“…after the Supreme Court Collegium reiterated the proposal on 01 September 2021, it was not open to the Department (of Justice) to repeatedly send back the same proposal which has been reiterated by the Supreme Court Collegium after duly considering the objections of the government,” it said regarding the recommendations for two appointments to the Calcutta High Court.

The Delhi High Court Collegium had on October 13, 2017, unanimously recommended Kirpal — son of former CJI BN Kirpal — for elevation to the Bench and it was approved by the Supreme Court Collegium on November 11, 2021. However, the Law Ministry sent back the recommendation to the Collegium on November 25, 2022, for reconsideration, raising objections about his partner being a Swiss national and his sexual orientation.

Noting that Kirpal possessed “competence, integrity and intellect”, the Collegium said his “conduct and behaviour have been above board. The Collegium said, “…it needs to be noted that the decisions of the Constitution Bench of this court have established the constitutional position that every individual is entitled to maintain their own dignity and individuality, based on sexual orientation.”

The Collegium, however, said it may have been advisable for the candidate (Kirpal) not to speak to the press regarding the reasons which may have weighed in the recommendations of the Collegium being sent back for reconsideration

In a letter dated April 1, 2021, the Law Minister had said: “Though homosexuality stands de-criminalised in India, nonetheless same-sex marriage still remains bereft of recognition either in codified statutory law or uncodified personal law in India”. Moreover, it had been stated 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.”