It is not open to the government to repeatedly send back the same proposal, the Supreme Court collegium said on Thursday, even as it resolved to reiterate its recommendation of November 11, 2021, for the appointment of senior advocate Saurabh Kirpal as a judge of the Delhi High Court, stressing that it needs to be processed expeditiously.
Kirpal as a prospective candidate for judgeship has not been surreptitious about his orientation, it said. Kirpal possesses the competence, integrity and intellect and his appointment will add value to the bench of the Delhi High Court and provide inclusion and diversity, it said.
The top court pointed out that it would be "manifestly contrary to constitutional principles" laid down by the SC to reject his candidature because he is gay.
If confirmed, he will be the country's first openly gay judge on a judicial court.
"The fact that Mr. Saurabh Kirpal has been open about his orientation is a matter which goes to his credit. As a prospective candidate for judgeship, he has not been surreptitious about his orientation.
"In view of the constitutionally recognized rights which the candidate espouses, it would be manifestly contrary to the constitutional principles laid down by the Supreme Court to reject his candidature on that ground," the Collegium comprising CJI DY Chandrachud, Justices SK Kaul and KM Joseph said.
Proposal pending for 5 years
Kirpal stated on November 17 that his elevation had been delayed "at least since 2017" due to his sexual orientation. Kirpal's name was put forward as a Delhi High Court judge by the Collegium five years ago. Acting Chief Justice Gita Mittal then presided over the HC Collegium.
The collegium appreciated the conduct and behaviour of Kirpal and said, "It may have been advisable for the candidate not to speak to the press with regard to the reasons that may have weighed in the recommendations of the collegium being sent back for reconsideration. However, this aspect should not be considered as a negative feature, particularly as the name has remained pending for over five years. The overwhelmingly positive aspects of the candidature of Mr Kirpal must, therefore, weigh in the balance."
The Swiss national partner is the reason
One of the main reasons for the Centre's denial of his elevation "It appears to be the Swiss national partner of the 50-year-old lawyer." According to some reports, a report by the Intelligence Bureau claimed that his European partner could become a security threat.
Collegium also reiterated the names of two advocates - Amitesh Banerjee and Sakya Sen
The collegium has also reiterated the names of two advocates, Amitesh Banerjee and Sakya Sen, for appointment as judges of the Calcutta High Court "expeditiously".
Advocate Banerjee is the son of Justice UC Banerjee, a former apex court judge who headed a commission that in 2006 ruled out a conspiracy angle in the 2002 Sabaramati Express fire tragedy at Godhra that killed 58 'kar sevaks'.
Advocate Sen is the son of Justice Shyamal Sen, who was elevated as a permanent judge of the Calcutta High Court in February 1986 and later became the chief justice of Allahabad High Court. Justice Sen also served as the Governor of West Bengal from May 1999 to December 1999. Justice Sen had also headed an inquiry commission which probed the multi-crore Saradha Group ponzi scam.
The names of advocates Banerjee and Sen were initially recommended by the collegium of the Calcutta High Court on December 17, 2018, and the Supreme Court collegium had approved the proposal on July 24, 2019.
"In view of the above, the collegium resolves to return the file for processing the recommendations for appointment of Amitesh Banerjee and Sakya Sen as judges of the Calcutta High Court expeditiously," said the three-member collegium of Chief Justice DY Chandrachud and Justices Sanjay Kishan Kaul and KM Joseph
