The Supreme Court, in a first, made public the reasons for the government's objections to the elevation of a senior advocate and its own response to the matter. The elevation of Saurabh Kirpal has been pending for five years and this is the third time the top court made the recommendation. The court's move to make public what customarily remains a confidential document, comes amid the tussle with the government over judges' appointment.
The top court, in its response, has rejected both reasons cited by the government -- that the candidate is openly gay and his partner is a Swiss national.
The communications from the intelligence department Research and Analysis Wing "do not reflect any apprehension in regard to the individual conduct or behaviour of the partner of Shri Saurabh Kirpal having a bearing on national security," the court said.
"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," read the letter, signed by Chief Justice DY Chandrachud and Justices SK Kaul and KM Joseph.
The judges pointed out that many holders of constitutional offices had spouses who are foreign nationals and so Mr Kirpal's candidature cannot be rejected on that ground.
"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," read the letter from the court.
"Shri Saurabh Kirpal possesses competence, integrity and intellect. His appointment will add value to the Bench of the Delhi High Court and provide inclusion and diversity," the judges added.
