CJI Chandrachud on advocate Saurabh Kirpal: ‘Sexual orientation has nothing to…’

Amid the tussle between the judiciary and the government over the appointment of judges, Chief Justice of India (CJI) Justice DY Chandrachud said “sexual orientation has nothing to do with the ability of a judge”. Justice Chandrachud’s remark comes amid a row over the elevation of gay advocate Saurabh Kirpal.

In January, the Supreme Court collegium had stood firm on its decision to appoint Kirpal, an openly gay person, as a judge of a constitutional court in India. According to people aware of the matter, the collegium resolved to reiterate Kirpal’s name to the Union government for his appointment in the Delhi high court as a judge after rejecting the Centre’s objections against his elevation.

Speaking at India Today Conclave 2023, Justice Chandrachud said, “The reason we had put on the website (the objection) is in pursuance of the desire of the present Collegium to meet the criticism that we lack transparency and in genuine belief that opening up our processes will foster greater confidence in the citizens,” the CJI said.

“The candidate (Kirpal) that you are referring to, every aspect that was mentioned in the report of the Intelligence Bureau was in the public domain. The candidate in question is open about his sexual orientation. The IB report dwelt on the sexual orientation of an openly gay candidate for a prospective judgeship… All that we said while putting it out in the public domain is that the sexual orientation of a candidate has nothing to do with the ability or the constitutional entitlement of that candidate to assume a high Constitutional office,” Justice Chandrachud added.

The CJI put up a stout defence of the Collegium system of judges appointing judges to higher courts just hours after Union law minister Kiren Rijiju at the same forum again criticised the selection process, asserting that as per Constitution the appointment of judges is the duty of the government. Rijiju also said the appointment of judges was not a judicial work but “purely administrative in nature”.

Justice Chandrachud’s predecessor Justice UU Lalit also supported the Collegium process, saying it was the “ideal system” while another former CJI SA Bobde favoured primacy of judiciary but was of the view that the government’s opinion was vital. The two former CJIs were also speaking at the same event.

“As the Chief Justice, I have to take the system as it is given to us… I am not saying every system is perfect but this is the best system we have developed. The object of this system was to maintain independence which is a cardinal value.We have to insulate the judiciary from outside influences if the judiciary has to be independent. That is the underlying feature of Collegium,” Justice Chandrachud said.

Raising questions on the Collegium system, Rijiju said it is a result of the “misadventure” of the Congress party.