The foreign intelligence agency of India, Research and Analysis Wing (R&AW) raised “objections” against for a second time the name of gay senior attorney Saurabh Kirpal for appointment as a judge of the Delhi high court, but the Supreme Court collegium led by CJI D Y Chandrachud rejected them and reiterated his nomination.
The law ministry objected to Kirpal’s “ardent involvement and passionate attachment to the cause of gay rights” and stated that since “same-sex” marriage is not legal in India, such characteristics of his could involve potential bias and prejudice.
The R&AW had expressed concerns regarding Kirpal’s same-sex relationship with Swiss national Nicolas Germain Bachmann.
The two communications from RAW (April 11, 2019 and March 18, 2021) do not reflect Kirpal’s conduct having even the slightest bearing on national security, according to the reiterated recommendation, which was also signed by Justices S K Kaul and K M Joseph, and it was unfair to assume that his partner would be hostile to India.
The Justice Chandrachud-led collegium identified former president K. R. Narayanan and current foreign minister S. Jaishankar, both of whom hold constitutional positions, as having spouses who are foreign nationals. The court remarked, “as a matter of principle, there can be no objection to Kirpal’s candidature just because his partner is a foreign national.”
Regarding Kirpal’s open homosexual orientation, the collegium cited the Navtej Johar constitution bench decision, which held that every person has the right to keep his or her own dignity and uniqueness regardless of sexual orientation.
It stated that disqualifying him from consideration for a judgeship based on his sexual orientation would be “clearly against the constitutional standards established by the SC.”
On October 13, 2017, the Delhi High Court Collegium forwarded Kirpal’s name to the SC for consideration as a judge. Four times, on September 4, 2018, January 16, 2019, April 1, 2019, and March 2, 2021, the SC collegium debated his name.
Given the strong opposition the Center had noted based on intelligence assessments that mostly focused on Kirpal’s foreign partner, it had postponed making a judgement each time.
On November 11, 2021, Kirpal’s name was recommended to the government by the collegium made up of Justices U U Lalit, A M Khanwilkar, and then-CJI N V Ramana. On November 25, 2022, the government gave it back. His name was repeated by the SC on January 18, 2023.
