New Delhi: Former Supreme Court judge Justice Sanjay Kishan Kaul addressed the prolonged impasse surrounding the judicial elevation of Senior Advocate Saurabh Kirpal as a judge of the Delhi High Court.
While speaking to ANI, Justice Kaul revealed that despite public reasons citing security concerns over Kirpal's foreign partner, the underlying objection stemmed from the government's reluctance to appoint India's first openly gay judge, lifting the veil on the informal discussions and institutional deadlocks within the Supreme Court Collegium.
Speaking on the real factor behind the years-long delay, Justice Sanjay Kishan Kaul said, "The real reason, I think—and which was informally told to me—was their perception that the country is not ready to have a gay judge. It took some time for the Collegium to clear it earlier, but when I was in the Collegium, we had no difficulty in reiterating or doing so...My own thinking is different, which is reflected in my recent pronouncement...The country would have accepted (a gay judge) because he is a good lawyer. He's an academically oriented lawyer as well...I think it was a loss not to have had him. He never withdrew his consent to become a judge. The government never cleared it, and the Collegium never dropped it because it would have been very embarrassing for the Collegium to drop it..."
On January 19, 2023, the Supreme Court Collegium (which included then CJI DY Chandrachud and Justice Sanjay Kishan Kaul) took the rare step of publicly making its resolution and the government’s objections open to the public domain.
The Collegium rejected both grounds, explicitly stating that Kirpal being openly gay is a matter of credit and does not disqualify him from holding a high constitutional office.
Because the Collegium formally reiterated the recommendation, under established norms, the executive was legally bound to accept it. However, by neither approving the file nor rejecting it after reiteration, the appointment remained in institutional limbo.
Recommended by the Delhi HC Collegium in October 2017, approved by the SC Collegium in November 2021, returned by the Centre in November 2022, and reiterated by the SC Collegium on January 19, 2023.
The Law Ministry's April 2021 letter explicitly highlighted Kirpal's partner being a Swiss national and his involvement in LGBTQ+ rights advocacy.
Kirpal maintained his consent throughout the multi-year stalemate, expressing willingness to accept the appointment regardless of how much time remained in his judicial tenure.
Justice Kaul further said Kirpal never withdrew his consent to become a judge, while the government never cleared his appointment and the Collegium never dropped the recommendation.
“He never withdrew his consent to become a judge. The government never cleared it and the Collegium never dropped it because it would have been very embarrassing for the Collegium to drop,” he said.
Recalling his conversations with Kirpal, Justice Kaul said he had repeatedly told him that the vacancy would remain open until he turned 62, as Kirpal was willing to accept whatever age was offered in support of his community.
“So I told him, I repeated many times, that look, you will keep this vacancy alive till you are 62 because he felt that whatever age is offered as a support to his community, he would be willing to accept it,” Justice Kaul said.
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