New Delhi: The Supreme Court collegium on Thursday, January 18, reiterated the proposal to appoint advocate Saurabh Kirpal as a judge of the Delhi high court, rejecting the objections raised by the law ministry because of his sexual orientation.
The collegium said that the fact that Kirpial “has been open about his orientation is a matter which goes to his credit”.
While there has long been speculation that the government’s objection was due to the advocate’s homosexuality, the collegium has confirmed it for the first time. It is also unusual for the collegium to reveal the objections raised by the government and comes amid friction between the executive and judiciary over the process to appoint judges.
Kirpal’s recommendation was made unanimously by the Delhi high court collegium on October 13, 2017 and was approved by the Supreme Court collegium on November 11, 2021. The recommendation was referred back to the collegium on November 25 2022 for reconsideration by the law ministry.
The collegium – comprising Chief Justice of India (CJI) D.Y. Chandrachud and Justices S.K. Kaul and K.M. Joseph – reiterated the proposal, revealing that the objections against Kirpal were that his partner is a Swiss National and that Kirpal “is in an intimate relationship and is open about his sexual orientation”.
The judges also noted that the law minister, in a letter on April 2021, had said that 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”. 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 minister had also said.
However, the collegium rejected both these objections. “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,” the collegium said. There is no reason to pre-suppose that the partner of the candidate would be “inimically disposed to our country, since the country of his origin is a friendly nation”. It added that many persons in high positions – including present and past holders of constitutional offices – have spouses who are foreign nationals.
“Hence, as a matter of principle, there can be no objection to the candidature of Shri Saurabh Kirpal on the ground that his partner is a foreign national,” the collegium said.
Regarding Kirpal’s “openness” about his sexual orientation, the collegium said that Supreme Court decisions “have established the constitutional position that every individual is entitled to maintain their own dignity and individuality, based on sexual orientation”.
“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. Shri 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. His conduct and behaviour have been above board,” the collegium said.
The judges disapproved of Kirpal’s interviews with the media in which he had said that the Union government was objecting to his appointment as a judge solely because of his sexual orientation. However, they added, “This aspect should not be considered as a negative feature, particularly since the name has remained pending for over five years. The overwhelmingly positive aspects of the candidature of Shri Saurabh Kirpal must, therefore, weigh in the balance.”
Over the past few months, the government has put pressure on the collegium system to appoint judges – saying that it is opaque and inefficient. Recently, law minister Kiren Rijiju has lobbied for a government representative to be present in collegiums.
Collegium reiterates other proposals
The collegium on Thursday also reiterated the decision to appoint Somasekhar Sundaresan as a judge of the Bombay high court. The government had objected to his appointment because “he has aired his views in the social media on several matters which are the subject matter of consideration before the courts”.
The collegium said that “views on social media attributed to the candidate, do not furnish any foundation to infer that he is biased”. The issues on which opinions have been attributed to the candidate are in the public domain and have been extensively deliberated upon in the print and electronic media, the collegium said.
The manner in which the candidate has expressed his views does not justify the inference that he is a “highly biased opinionated person” or that he has been “selectively critical on the social media on the important policies, initiatives and directions of the Government”, the judges noted. There is also no material to indicate that the expressions used by Sundaresan are “suggestive of his links with any political party with strong ideological leanings”.
“All citizens have the right to free speech and expression under Article 19(1)(a) of the Constitution. 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,” the collegium noted.
Sundaresan has specialised in commercial law and his presence as a judge “would be an asset to the Bombay high court, which has a large volume of cases of commercial and securities laws, among other branches”, the collegium said.
A third proposal reiterated by the collegium on Thursday related to the appointment of R. John Sathyan as a judge of the Madras high court. According to the collegium, the government had objected to his appointment on the basis of two social media posts. In the first, he share an article published in The Quint which was critical of Prime Minister Narendra Modi. In the second post, Sathyan commented on the death by suicide of a medical aspirant because she was unable to clear NEET by saying it was ‘political betrayal’ and added the tag ‘shame of you India’.
The collegium said that these posts do not “impinge on the suitability, character or integrity” of Sathyan and reiterated his appointment.
Two Calcutta HC recommendations reiterated for second time
While reiterating the recommendation to appoint Amitesh Banerjee and Sakya Sen as judges of the Calcutta high court, the collegium on Thursday slammed the government for “repeatedly” sending back the same proposal which has been reiterated by it after due consideration the objections.
Banerjee and Sen were recommended to be appointed as judges in July 2019. In 2021, the government had returned the files, but the collegium reiterated its recommendations September 2021 (for Banerjee) and October 2021 (for Sen). The collegium returned these files on November 25, 2022.
Reiterating the decision for a second time, the collegium said on Thursday:
“The inputs which have been furnished by the Department of Justice in the file on 25 November 2022 do not contain any fresh material or ground. Moreover, after the Supreme Court Collegium reiterated the proposal on 01 September 2021, it was not open to the Department to repeatedly send back the same proposal which has been reiterated by the Supreme Court Collegium after duly considering the objections of the Government.”