Indian law students are reporting for JURIST on law-related developments in and affecting India. This dispatch is from Samar Veer, a third year law student at National Law University, Delhi.

As previously reported on JURIST, the Indian Supreme Court’s Collegium Friday reiterated its decision to elevate openly gay Senior Advocate Mr. Saurabh Kirpal as a Judge of the Delhi High Court, in the face of a string of uncharacteristic objections from the Central Government regarding judicial appointments.

The Central Government had earlier expressed reservations regarding Mr. Kirpal’s appointment due to his openness about his sexual orientation and due to the status of his partner as a Swiss national. The reasoning given by the Centre for the former was that despite the decriminalization of homosexuality in India a few years ago, Kirpal’s ardent support and “attachment to the cause of gay-rights” was likely to give rise to “bias and prejudice”. As for the latter, there could be “security concerns” due to his same-sex partner being a foreign national.

The process to appoint Kirpal first began in 2017, upon the recommendation of his name from the Delhi High Court Collegium and its subsequent approval by the Supreme Court Collegium in November 2021. The Centre’s objections were tendered in November 2022 and the Collegium was asked to reconsider its decision in light of the aforesaid reasons.

For the first time in history, the Supreme Court Collegium went on the record explaining its reasons for rejecting the Central government’s objections to the appointment of a judge. In a written resolution, the Chief Justice of India Justice D.Y. Chandrachud, Justice Sanjay Kishan Kaul and Justice K.M. Joseph, 3 out of the current 6 members of the Supreme Court Collegium, stated  Kirpal’s openness about his sexuality is not to his disadvantage, and mentioned that – “As a prospective candidate for judgeship, he has not been surreptitious about his orientation”. The Collegium added that such openness about his sexual orientation was hence “to his credit”. Further praising his competence, integrity and intellect, the Collegium reiterated that it would be “manifestly contrary to the constitutional principles” to reject his candidature based on his sexuality alone.

The Collegium also dismissed the opposition to the non-Indian status of his partner, with the view that there is no reason to believe that Mr. Kirpal’s partner “would be inimically disposed to our country, since the country of his origin is a friendly nation”. It also pointed out the fact that many individuals in high positions are in a similar situation, and that “present and past holders of constitutional offices have and have had spouses who are foreign Nationals.”

With these views, the Supreme Court again asked that Mr. Kirpal’s appointment as a Judge, which as per the aforementioned resolution has been pending for over five years, be processed expeditiously by the Centre.

This tussle comes amidst an increasingly heated public confrontation between the judiciary and the executive regarding the latter’s recent push for greater ‘transparency’ in judicial appointments.  The Union Minister of Law and Justice Mr. Kiren Rijiju recently went on a tirade of the Collegium system, calling it “alien” to the Constitution. He has stated that the system was created in 1991 and all judicial appointments were done by the Government prior to that. He has further criticized the “lack of accountability” in the Collegium and said that “people are raising voices” against the system. However, the most notable development was a letter from the Minister to Chief Justice D.Y. Chandrachud, where the Minister expressed his desire to include government functionaries in the judicial appointments process at the state and central levels. The judiciary has refused to budge on the issue, much like in the past, where it had struck down earlier executive efforts to create a “National Judicial Appointments Commission” (NJAC) to revamp the system of appointments.

As previously covered by JURIST, there have been questions regarding incessant delays in appointment of judges due to the Collegium system’s opacity and indecisiveness. The appointments in this particular case and a few other recent ones, however, have created even greater delays than usual due to disagreements between India’s judicial and executive organs. The signs at present seem to point towards an impending showdown between the two in the coming months.

The factors that make this particular confrontation stand out pertain to two different overarching issues, both of which seem completely unrelated. The first is, quite obviously, executive intervention in the appointments to Indian courts. Although the push for greater openness in judicial appointments via the NJAC would have been a welcome mechanism to enforce greater oversight, it is hard to see too many merits in the proposed system. The NJAC diversifies the constitution of the panel that decides assigning of judgeships and makes it a more participatory process, but that seems to be the end of its praises. The whole system of appointments would continue to be shrouded in secrecy among the panel members themselves despite the reforms. Further, appointments would only be made upon the consent of four out of five members on the panel, which could possibly aggravate and at the least, fail to improve the aforementioned indecisiveness of the Collegium system. Lastly, even if the problem of opaqueness and unaccountability is solved by this prospective reform, there is nothing to ensure that such in-depth participation by the other organs of the state would not dilute the judiciary’s independence and further empower the executive to appoint judges based on criteria that only it deems fit for its own ends, rather than the logical requirements of competence, skill and track record being assessed holistically.

The second issue in this appointment however, is much clearer and alarming. This issue is about the man himself: Senior Advocate Mr. Saurabh Kirpal. Of all the things a man of law could possibly be critiqued for, it is beyond disheartening to see the draconian stance the government has taken on his appointment, which seems to be heavily anchored on publicly questioning an integral part of Kirpal’s identity with little regard for his constitutional rights. To know that his long history of pro-LGBTQ activism is being held against him as if it were some irredeemable sin is, to me alone, of the utmost disappointment. Further, it is difficult to see a rational nexus between the issue of “national security” and the non-Indian status of Mr. Kirpal’s partner and as the judiciary itself notes, many in high positions have earlier had family coming from beyond India’s borders. Mr. Saurabh Kirpal has also personally gone on the record with JURIST to express his disappointment with this sluggish state of affairs.

Despite the decriminalization of homosexuality in a long-overdue judgment, campaigning for greater rights for a community is seen as evidence of “bias and prejudice”. It indeed seems true that a shift in policy and law seldom mirrors a shift in mindsets. The latter is far more resistant to adapting and evolving.

As a final addition, I find it interesting to note that the objections of the Centre regarding other recent appointments seem to be based on factors which are arbitrary and unsound, such as “social media posts (of the candidate) being critical of the government.”. It is clear that such criticism is a part of any healthy democracy which values free speech and the opposition of the Centre to it seems broadly reflective of its apprehension of criticism. Is being scathing and assertive in its criticism of executive transgressions not the duty of the judiciary after all?