The decision to appoint senior advocate Saurabh Kirpal as the judge of the Delhi High Court has been pending since 2017. The government’s objections regarding his partner have led to his name being deferred four times.
Most recently, the Chief Justice of India, S. A. Bobde wrote to the Modi government asking for a reply within four weeks regarding “their stance on Kirpal’s nomination so the SC collegium can go ahead with a final decision.”
According to The Print, the Centre has said that the Intelligence Bureau (IB) has red-flagged Kirpal as a security threat as his partner, a European, “is employed with the Swiss embassy and that he was working with a Switzerland-based non-profit organization prior to this job.”
Kirpal, an out gay man, who played an instrumental role in getting Section 377 scrapped, if appointed, would become “India’s first openly gay judge,” the Indian Express reports. But he laments whether “this (non-elevation) has probably got to do with my sexuality.” It could, however, also have something to do with the case that Kirpal is currently representing Munawar Faruqui in. Faruqui is a comic facing allegations of hurting Hindu religious sentiments. So, Kirpal is not only an external security threat but an internal one, too, for the Modi government’s agenda of building a Hindu Rashtra.
It’s interesting, however, to note that per the Memorandum of Procedure of appointing judges, the final authority lies in the hands of the collegium. To begin with, the apex court collegium recommends names that it deems suitable to the government. Then the government can either appoint or request the collegium to reconsider their recommendation. Post that, the collegium can either withdraw — like SC did in Kirpal’s case in 2017 — or reiterate its recommendation. This reiteration is binding on the government, which, at worst, can only delay the appointment of the judge.