The Supreme Court Collegium headed by Chief Justice of India D Y Chandrachud on Thursday reiterated its decision to elevate five advocates as High Court judges, including Saurabh Kirpal as judge in the Delhi High Court, reported The Indian Express.
The five candidates are Kirpal; advocate Somasekhar Sundaresan as judge of the Bombay High Court; advocate R John Sathyan for the Madras High Court; advocates Sakya Sen and Amitesh Banerjee as judges of the Calcutta High Court.
Among the candidates, the most detailed Collegium statement is for Kirpal, who, if appointed, could be India’s first openly gay judge.
On November 25, 2022, the Centre had sought reconsideration of the names recommended by the SC Collegium.
Reiterating its decision, the three-member Collegium, consisting of the CJI and Justices Sanjay Kishan Kaul and KM Joseph, said that Kirpal’s appointment as a judge has been pending since 2017, adding that it “needs to be processed expeditiously”. The proposal was deferred on thee occasions since 2017 – in December 2018, January 2019 and April 2019.
The Collegium, referring to communication from the Research & Analysis Wing and former Union Law Minister Ravi Shankar Prasad, said that there were two main objections to Kirpal’s elevation, which were – his partner is a Swiss national, and he is open about his sexual orientation.
The Collegium statement read, “The letter of the Law Minister dated 01 April 2021 states 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.’ Moreover, it has 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.”
Rejecting the Centre’s objections, the Collegium said, “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.”
“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. Many persons in high positions including present and past holders of Constitutional offices have and have had spouses who are foreign Nationals,” the Collegium said.
It also said, “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.”
“His appointment will add value to the Bench of the Delhi High Court and provide inclusion and diversity,” it added.
On advocate Somasekhar Sundaresan, the Collegium, which recommended its name on February 16, 2022, said that Centre had asked to reconsider his name on grounds that he had aired his views on social media which were “subject matter of consideration before the courts.”
The Collegium held that all citizens have the right to free speech and expression, and said that “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.”
It also said that Sundaresan specialises in commercial law which will be an asset to the Bombay High Court.
On Sathyan, who was recommended in February last year, the Collegium statement quoted from a report by the Intelligence Bureau: “As per open sources, two posts made by him, i.e. sharing of an article published in ‘The Quint’, which was critical of the Prime Minister, Narendra Modi; and another post regarding committing of suicide by medical aspirant Anitha, who ended her life in 2017 since she was unable to clear NEET, portraying it as a killing by ‘political betrayal’ and a tag stating ‘shame of you India’ came to notice.”