Senior counsel Saurabh Kirpal has been recommended for promotion as a judge of the Delhi High Court by the Supreme Court collegium led by Chief Justice of India N V Ramana. The decision was made at a meeting on November 11th, according to a statement from the collegium. Justices UU Lalit and AM Khanwilkar make up the three-member collegium that makes recommendations for high court judges, in addition to CJI Ramana. Kirpal’s candidacy was initially evaluated by the collegium in 2018, and it received its recommendation nearly three years later. It had determined at the time to take up the topic for further consideration “after some time.”
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In legal circles, there has been speculation that the delay in suggesting Kirpal’s name was related to his sexual orientation; if appointed, Kirpal would be India’s first openly homosexual judge. “The fact that my twenty-year spouse is a person of foreign origin poses a security concern is such a flimsy explanation that one suspects it isn’t the full truth.”
That is why, in an interview in April, Kirpal stated, “I feel my sexuality is the reason why my nomination for elevation as a judge has not been considered.” In February, then-CJI SA Bobde wrote to then-Union Law Minister Ravi Shankar Prasad, requesting clarity on intelligence inputs received by the collegium amid rumours that Kirpal’s appointment had been blocked because of his sexual orientation.
Kirpal’s nomination was proposed by the then-Delhi High Court collegium, which included Chief Justice Gita Mittal, judges Sanjeev Khanna and Ravindra Bhat. Justices Khanna and Bhat are now Supreme Court judges, while Justice Mittal retired in December 2020. A five-judge constitution bench read down IPC Section 377, which criminalised homosexuality, on September 6, 2018, barely two days after the SC collegium initially postponed its judgement on Kirpal. Kirpal represented Navtej Johar and Ritu Dalmia, two of the case’s primary petitioners.
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The SC collegium had already postponed its judgement on Kirpal’s suggestion three times, in January 2019, April 2019, and August of last year. Kirpal was unanimously appointed as a senior counsel by all 31 judges of the Delhi High Court on March 19, in what was considered as a vote of confidence in him. Kirpal studied law at Oxford and Cambridge universities and has been practising for more than two decades. In 2002, his father, B N Kirpal, was India’s Chief Justice.
