India’s Supreme Court Collegium Wednesday reconsidered the proposal to appoint openly gay lawyer Saurabh Kirpal as a Delhi High Court judge, and observed that every individual is “entitled to maintain their own dignity and individuality based on sexual orientation.” Kirpal’s appointment has been pending for the last five years.
Saurabh Kirpal is an Indian lawyer, author and LGBTQ+ Activist. He was one of the lawyers in the constitutional challenge of Section 377 of the Penal Code i.e, the case of the decriminalisation of homosexuality in India. In October 2017, the Delhi High Court Collegium recommended Kirpal for appointment as a judge. In November 2021, the Supreme Court Collegium approved the recommendations. However, in November 2022, the Law minister sent back the recommendation to the Supreme Court’s Collegium for reconsideration.
The Research & Analysis Wing (R&AW) in their letters raised two objections against the recommendation of appointing Kirpal as a judge. First, Kirpal’s partner is a Swiss National. Second, that he is “in an intimate relationship and is open about his sexual orientation.” The Union Law Minister also questioned the possibility of biases and prejudice considering Kirpal’s “ardent involvement and passionate attachment to the cause of gay rights”.
Concerning the first objection, the Supreme Court’s Collegium noted that there isn’t any apprehension with regard to the conduct of Kirpal’s partner risking national security. Since Kirpal’s partner nation is a friendly nation, there is no reason to assume that his partner would be “inimically disposed to our country.” The Court further noted that many holders of constitutional offices have and had spouses who are foreign Nationals. Thus, the objection that Kirpal’s partner is a Swiss national is not reasonable.
On the second objection, the Supreme Court stated that the Indian constitutional structure confers every individual the right to maintain their own dignity and individuality, based on sexual orientation. The Collegium noted that as a ‘prospective candidate for a judgeship, Kirpal has not been surreptitious about his orientation’, thus, his open sexual orientation is credible. The Supreme Court noted that it would be ” manifestly contrary to the constitutional principles laid down by the Court to reject Kirpal’s candidature on that ground.”
In an Interview on Judges, Courts, and Sexuality with JURIST, Saurabh Kirpal commented;
One can understand that one of the reasons probably was sexuality and of course you want to hide homophobia in the cover of something else what was ostensibly said in my case was the fact that my partner was a foreign national. The government felt that that was a problem because they could not in some level scrutinize him or see whether he was a potential threat or not in the country. What I don’t understand is that as a spouse what is the great security threat that can possibly happen for a judge because it’s not as though I’m dealing with national secrets or indeed any judge deals with national secrets that happens at the level of the executive.
The Supreme Court’s Collegium also advised Kirpal to not to speak to the media concerning the reasons mentioned in the recommendations of the Collegium being sent back for reconsideration.