New Delhi: Exasperated with the Narendra Modi government for the delay in elevating Delhi High Court lawyer Saurabh Kirpal to a Delhi High Court judge, Chief Justice of India SA Bobde has written to Union Law Minister Ravi Shankar, giving him four weeks to clear the air about whether the matter is pending because Kirpal is a gay man.
Kirpal’s name was recommended for elevation to a Delhi High Court judge by the Delhi High Court collegium in October 2017, but the Supreme Court has thrice deferred its deliberations on his becoming a judge.
The letter from the CJI to the law minister was sent two weeks prior to the publication of this report on March 30, sources familiar with its contents tell India Ahead News, and points out that the Supreme Court has not been able to take any decision with regard to the recommendation of the Delhi High Court collegium to elevate senior advocate Saurabh Kirpal as a judge despite the passage of more than three years.
Sources in the Supreme Court of India say that in his letter to the law minister, CJI Bobde has also pointed out that Prasad is yet to respond to a previous letter in the same matter written by him in January 2020.
In his first letter to the law minister, sources said, Bobde asked Prasad to convey the BJP government’s view on the issue of elevation of Kirpal to judgeship in light of a communication sent by the Research and Analysis Wing (RAW), red-flagging his candidature.
In its communication to the central government in 2019, sources said, the RAW had talked of the possibility of there being a “strong scope” for conflict of interests in the future due to Kirpal’s perceived sexual orientation and his close association with a foreign national, who is a human rights activist.
However, the RAW communication, based mainly on material culled from the Facebook page of some individuals, including Kirpal himself, is understood to be devoid of any solid proof to buttress the agency’s contention.
Some senior judges consulted by previous CJI Ranjan Gogoi on the issue had also pointed to the fact that the candidate has to be judged on his merit as a lawyer and his knowledge of law and not his sexual preference.
Moreover, it was pointed out, that the Supreme Court had itself decriminalised Section 377 in so far as it dealt with consensual sex between homosexual adults.
Now, the CJI has told the Law Minister that since a decision about Kirpal’s elevation to a Delhi High Court judge has been pending for over three years, the Supreme Court collegium has resolved to take a decision if the government doesn’t convey its stand within four weeks.
When asked if CJI Bobde, who is scheduled to relinquish charge next month on April 23, would call a meeting of the Supreme Court collegium once the four-week period ends to decide whether or not to recommend Kirpal’s name for judgeship, the source did not give a definitive answer.
“Normally, the outgoing CJI works full-time till the last hours of his tenure and this includes the authority to recommend names (for elevation),” this source said. “But it is difficult to see how CJI Bobde will do that since some groundwork has to be done after the period of four weeks ends. A lot will also depend on what the Central government’s stand on the issue is.”
Earlier in March, Saurabh Kirpal was designated a senior advocate by all 31 judges of the Delhi High Court.
“This is all mired in a cloud of innuendo. The problem is that the collegium system is opaque and because it is opaque, I cannot say what is the reason and what is there in the mind of judges,” Kirpal told The Print in 2020. “There was some kind of an Intelligence Bureau report, which I don’t have access to but only read about in the media, that there was some problem with my partner. So, this (non-elevation) has probably got to do with my sexuality.”