"Many persons in high positions including present and past holders of constitutional offices have and have had spouses who are foreign Nationals", the Supreme Court Collegium said in its statement issued on Wednesday and published today, overruling the objection of India's foreign intelligence agency against the recommendation to appoint Senior Advocate Saurabh Kirpal as a Judge of the Delhi High Court.

The Collegium comprising Chief Justice DY Chandrachud, Justice Sanjay Kishan Kaul and Justice K.M. Joseph brushed aside the objections of the Research and Analysis Wing (RAW), expressed in its letter dated 11 April 2019 and 18 March 2021.

As per the statement issued by Collegium, the agency objected to the recommendation to appoint Saurabh Kirpal as a Judge since his gay partner is a Swiss National.

The statement says that the communications of RAW do not reflect any apprehension regarding the individual conduct or behaviour of the partner of Saurabh Kirpal having a bearing on national security.

As per media reports, the foreign partner of Saurabh Kirpal is Swiss national Nicolas Germain Bachmann, who works in the Swiss Embassy and is also a Human Rights Activist.

The Collegium has said in the statement that RAW is presupposing that Nicolas Bachmann would be inimically disposed to our country as the country of his origin, Switzerland is a friendly nation.

"There is no reason to pre-suppose that the partner of the candidate, who is a Swiss National, would be inimically disposed to our country, since the country of his origin is a friendly nation", the statement says.

The Collegium added that many persons in high positions including present and past holders of constitutional offices have and have had spouses who are foreign Nationals and hence, "as a matter of principle, there can be no objection to the candidature of Shri Saurabh Kirpal on the ground that his partner is a foreign National".

The Collegium also overruled the objection of the Law Ministry that “homosexuality stands de-criminalised in India, nonetheless same-sex marriage still remains bereft of recognition either in codified statutory law or uncodified personal law in India” and that Saurabh's “ardent involvement and passionate attachment to the cause of gay-rights” would not rule out the possibility of bias and prejudice.

"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 said.

The statement, though says that it may have been advisable for Kirpal not to speak to the Press in regard to the reasons which may have weighed in the recommendations of the Collegium being sent back for reconsideration, "this aspect should not be considered as a negative feature, particularly since the name has remained pending for over five years".

Accordingly, the Collegium resolved to reiterate its recommendation for appointment of Saurabh Kirpal as a Judge of the Delhi High Court, to be "processed expeditiously".

Click here to read/download Statement