The Supreme Court Collegium on Thursday reiterated its decision to promote gay Advocate Saurabh Kirpal as a Judge of the Delhi High Court. The court dismissed objections from the centre against Kirpal, calling them baseless. The centre had objected to Saurabh Kirpal’s elevation as a judge because he has a gay partner who is a Swiss national.
With this, Saurabh Kirpal is set to become the first gay judge of a High Court in India, if the central govt finally accepts the collegium decision.
In a first, the Collegium also revealed the objections of the centre to several names, including Kirpal, suggested by the Collegium for appointment as judges, and added the Collegium response to the objections.
The centre had objected to the name of Kirpal saying that as he is gay, he could be biased due to his open support for gay rights. Moreover, it was also pointed out that his same-sex partner Nicolas Germain Bachmann is a Swiss national.
The Collegium stated that sexual orientation can’t be the ground for rejecting anyone for a position. Responding to the concern of the centre that Kirpal’s gay partner is a Swiss national, the Collegium said that Switzerland is a friendly nation and therefore it does not have any bearing on national security. The Collegium also noted that already several persons in high positions have had foreign nationals as spouses.
The collegium’s response to the objection was, “Unconstitutional to reject candidature on ground of sexual orientation. 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. 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 also added that “inclusion of Kirpal in the judiciary will add diversity to the bench. He possesses competence, integrity and intellect.”
In a resolution reiterating Kirpal’s name, the Supreme Court Collegium expressed its disagreement with the Centre for returning the proposal to appoint him as a judge, and said that the fact that 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 recognized 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,” the collegium comprising CJI DY Chandrachud, Justices SK Kaul and KM Joseph said.
The proposal to appoint Kirpal as a Delhi High Court has been pending for over five years. The recommendation was unanimously made by the Collegium of the Delhi High Court on 13 October 2017, and it was approved by the Supreme Court Collegium on 11 November 2021.
However, the SC collegium agreed that it would be advisable for Saurabh Kirpal to not speak to the press on the reasons for which the centre sent back the recommendation.
It is notable that one aspect that was not mentioned by the Collegium was that apart from being a foreign national, Saurabh Kirpal’s gay partner Nicolas Germain Bachmann is also an official of the Swiss Federal Government. He is an employee of the Swiss Federal Department of Foreign Affairs and is posted at the Swiss Embassy in New Delhi. Bachmann is also a human rights activist. Nicolas Germain Bachmann was born in Italy, but later he took Swiss citizenship.
Therefore, while it is true that several high-profile persons, including a former prime minister, have had spouses of foreign origin, the fact that Kirpal’s partner works in the Swiss embassy in India adds another dimension to the matter.
Advocate Saurabh Kirpal is the son of former Chief Justice of India B N Kirpal, and has been practising law for over two decades. If appointed as HC judge, this will be another appointment of kins of former judges as judges in Indian courts.
