The Supreme Court collegium has expressed its disagreement with the Union government for returning the proposal to appoint advocate Saurabh Kripal, who is openly gay, as a judge of Delhi High Court (HC), saying "every individual is entitled to maintain their own dignity and individuality, based on sexual orientation". Mr Kirpal is the son of the former chief justice of India, BN Kirpal.
The collegium, which is headed by chief justice DY Chandrachud and comprises justice Sanjay Kishan Kaul and justice KM Joseph, in a statement, says, "It needs to be noted that the decisions of the constitution bench of this court 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 Kirpal has been open about his orientation is a matter which goes to his credit."
Reiterating Mr Kirpal's name, it says, "The collegium resolves to reiterate its recommendation dated 11 November 2021 for appointment of Saurabh Kirpal as a judge of the Delhi HC, which needs to be processed expeditiously."
"Mr Kirpal posseses competence, integrity and intellect. His appointment will add value to the bench of the Delhi HC and provide inclusion and diversity," the collegium says.
The research and analysis wing (R&AW) sent two letters raising two objections to the recommendation made by the collegium approving the name of Mr Kirpal. In the letters, R&AW objected that the partner of Mr Kirpal is a Swiss national, and he is in an intimate relationship and is open about his sexual orientation.
In a letter on 1 April 2021, the Union minister of law stated 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".
More than five years ago, on 13 October 2017, the collegium of the Delhi high court unanimously recommended Mr Kirpal as a judge to the same HC. On 11 November 2017, the SC collegium approved the recommendation. However, on 25 November 2022, it was referred back to the SC collegium for reconsideration of the observations in the file.
The SC collegium says, "...the two communications of R&AW do not reflect any apprehension in regard to the individual conduct or behaviour of the partner of Mr Kirpal having a bearing on national security. 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 had spouses who are foreign nationals. Hence as a matter of principle, there can be no objection to the candidature of Mr Kirpal on the ground that his partner is a foreign national," it added.
R&AW is patently wrong to disqualify the judge because of his sexual orientation.
This agency vets people in sensitive areas to make sure that their background does not make them susceptible to blackmail and commit actions detrimental to the GoI as a result of this blackmail.
All countries have similar vetting agencies.
However, R&AW is wrong in this case as Justice Kirpal's sexual orientation is in the public domain so he cannot be a security risk. Even if he has a partner who he co-habits with, that too is in the public domain, so he cannot be a security risk.
Looks like R&AW lives in ancient times and has not kept up with the laws of the land and current acceptance of homosexuality as normal in most countries, including India.