Explained: Why Government Is Opposing A Gay Advocate To Become A High Court Judge

Saurabh Kirpal, a senior attorney who is openly a gay, is still waiting to be appointed judge of the Delhi high court. The Delhi High Court collegium, then led by acting Chief Justice Gita Mittal, first recommended Kirpal for elevation in 2017. The supreme court approved it, but it later decided to postpone the decision three times.

The SC Collegium made a first-of-its-kind recommendation in November 2021 that Kirpal is considered for a position as a Delhi HC judge. The government has repeatedly opposed his elevation.

Who is Saurabh Kirpal?

Saurabh Kirpal has been practising for over two decades. In March 2021, 31 judges of the Delhi High Court appointed him senior advocate.

Further, he serves on the board of the Naz Foundation Trust, a non-profit organization based in Delhi that was instrumental in the conflict.

PTI

Sunil Mehra and Navtej Singh Johar, now well-known petitioners in the historic case in which the Supreme Court (SC) struck down Sec 377, which criminalized homosexuality, were represented by him and a team of lawyers.

50 years old Kirpal is the son of Bhupinder Nath Kirpal, who was India's 31st Chief Justice from May to November 2002.

He graduated from Delhi's St. Stephen's College with a physics major, then earned a law degree from Oxford and a master's in law from Cambridge.

What does the government say?

It is speculated that the advocate's sexual orientation was the reason for the delay. However, given that Kirpal's partner is European and works for the Swiss Embassy, the government claims that there is a conflict of interest in the objection.

The government's objection, which makes mention of Kirpal's sexual orientation and his partner's status as a "foreign national," has also been made public by the SC.

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The communication between the Research & Analysis Wing and former Union Law Minister Ravi Shankar Prasad was mentioned by the Collegium. The recommendation that the Collegium of this Court approves the name of Saurabh Kirpal on November 11, 2021, appears to have two objections: Kirpal's partner is a Swiss and he is in an intimate relationship and open about his sexual orientation.

The law minister stated in a letter dated April 1, 2021, that even though homosexuality has been made illegal in India, same-sex marriage is still not recognizsd by either codified statutory law or uncodified personal law. The Center also concluded that the possibility of Kirpal's bias and prejudice cannot be ruled out because of his "attachment" to the gay rights movement, according to the Live Law reports.

Supreme court on the matter

BCCL

Supreme court reiterated its recommendation from November by uploading letters to the Centre on its website. The appointment had been pending for five years and needed to be processed "expeditiously," according to a three-member Collegium that was led by Chief Justice of India DY Chandrachud and Justices SK Kaul and KM Joseph.

According to the statement, ¡°In this backdrop, the Collegium resolves to reiterate its recommendation dated 11 November 2021 for appointment of Shri Saurabh Kirpal as a Judge of the Delhi High Court which needs to be processed expeditiously.¡±

On November 25, 2022, the recommendation that was unanimously made by the Collegium of the Delhi High Court on October 13, 2017, and approved by the Collegium of the Supreme Court on November 11, 2021, was referred back to us for reconsideration in light of the observations that were made in the file.

It also praised Kirpal for being open about his sexual orientation and said that it is "to his credit" that he has not been surreptitious about it.