Even as it remains helpless in stopping the Centre from sitting on files of names recommended for appointments to the benches of various high courts and even transfers of high court judges, the Supreme Court now needs to ask the Narendra Modi government why is it refusing to process the file for appointment of senior advocate Saurabh Kirpal, an openly gay person, to the Delhi High Court. it is high time the Supreme Court asserted itself and either force the government’s hand or, if it fails, accept defeat and withdraw its recommendation.
Too much time has elapsed since the Delhi High Court collegium first recommended Kirpal’s name and the Supreme Court cleared it.
Despite being reiterated again, the name is still pending with the government, which is showing no sign of being in the mood to clear it. Letters have been written to the government, members of the collegium have expressed concern over the stalling tactics of the government, former judges and jurists have raised the issue innumerable times. But nothing has happened.
The purported reason behind the government’s reluctance to stop Kirpal’s elevation of is his alleged sexual orientation.
Considered a very good lawyer, Kirpal was designated senior advocate by the Full Court of the Delhi High Court some years ago. According to reports ( https://www.barandbench.com/news/litigation/saurabh-kirpal-gets-unanimous-votes-delhi-high-court-senior-designation-six-women-in-list ), he was the lone candidate to receive the votes of all judges of the Delhi High Court who participated in the designation process.
His name was recommended for elevation by the Delhi High Court collegium unanimously in October 2017.
However, the Supreme Court collegium decided to defer its decision about his name following reports of the Intelligence Bureau and RAW.
However, during discussions, it was felt that the reports were misleading and also had nothing to back the RAW contention that elevating Kirpal could lead to conflict of interests.
Some senior judges consulted by earlier CJI Ranjan Gogoi on the issue had also pointed to the fact that the candidate has to be judged on his merit as a lawyer and his knowledge of law and not his perceived sexual preference.
Moreover, it was pointed out, that the Supreme Court had itself decriminalised Section 377 in so far it dealt with consensual sex between homosexual adults. Kirpal, incidentally, was one of the lawyers who successfully challenged the vires of some parts of Section 377.
Last year, media reports had quoted him as saying that he believed his sexual orientation was “only stumbling block that prevented him from being made Delhi High Court judge”.
