Pride and Prejudice: The homophobia depriving India of its first gay judge

Over three years after the Delhi High Court Collegium recommended the elevation of Senior Advocate Saurabh Kirpal, little progress has been made by the central government in approving the proposal. Behind the smokescreen of national security concerns, lays bare the State's thinly veiled homophobia, writes SUKRUT KHANDEKAR.

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PRIDE month in India was kickstarted by a landmark judgment of the Madras High Court, wherein Justice Anand Venkatesh issued a slew of guidelines banning attempts to medically cure individuals' of their sexual orientation. He also suggested a series of measures that ought to be adopted so as to ensure the integration of the LGBTQIA+ community into mainstream society.

In a first, before delivering the judgment, Justice Venkatesh recognised that he may have certain preconceived notions about the community and decided to visit a psychologist to help him better understand and address his own biases.

Similarly, he also met and sought insights from individuals belonging to  the LGBTQIA+ community in order to better empathise with their woes. While it is imperative for members of the judiciary to undergo sensitisation sessions to understand the experiences of the LGBTQIA+ community, the systemic prejudice against the community can only be cured by ensuring its greater representation on judicial benches.

The Delhi High Court collegium's recommendation

In the year 2017, the Delhi High Court's Collegium recommended the elevation of Senior Advocate Saurabh Kirpal to the position of a judge at the High Court. Despite an endorsement of the proposal by the Supreme Court, more than three years later, the central government continues to shuffle its feet on the matter,, in essence, denying India its first openly gay judge.

Article 15(1) of the Indian Constitution states that "The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them." The centre seems to have relied on the use of the word 'only' as a carte blanche for its blatantly discriminative (in)action. While the literal interpretation of the text of the Constitution may seem to present an exhaustive list of grounds under which discrimination is prohibited, the Courts have time and again opined against such restrictive interpretations.

Also read: Policy reforms to make the LGBTQ+ community prouder by Pride Month next year

Shift in the jurisprudence around Article 15

There has been a major shift in the jurisprudence surrounding this matter, right from the 1951 case of Sri Mahadeb Jiew vs. Dr. B.B. Sen, to the Supreme Court's recent judgment in the matter of Navtej Singh Johar vs. Union of India in the year 2018. In Sri Mahadeb Jiew, the Delhi High Court had held that if a law appears to be discriminative against individuals on a ground other than those present in the exhaustive list provided in Article 15(1), then such discrimination would fail to fall within the ambit of the Article. This narrow interpretation of the Constitution was upheld by the Supreme Court in the 1981 case of Air India vs. Nargesh Meerza. In this judgment, the Court held that Articles 15 and 16 of the Constitution prohibit discrimination 'only and only' on the basis of one's sex, and not factors related to it.

In stark contrast to the position held by Indian Courts in the past, the Delhi High Court, in the Naz Foundation case, posited that one's sexual orientation is an analogous ground under Article 15(1) of the Constitution, thus rejecting the 'exhaustive' nature of the grounds listed under the Article.

Moreover, in the NALSA judgement of 2014, the Supreme Court observed that the Constituent Assembly emphasized on the right against discrimination on the grounds of sex 'in order to prohibit the direct or indirect attitude that the State may display in treating people differently for failing to conform to society's stereotype of a gender-binary.' Thus, the Court held that Article 15 of the Constitution was broad enough to include 'gender identity' and 'sexual orientation' within its purview.

This reasoning was reiterated by Justice D.Y. Chandrachud while delivering the landmark Navtej Singh Johar judgment, wherein he held that the formalistic interpretation followed by the courts in the past would render the constitutional protection against discrimination futile. Here too, the Supreme Court relied on the legislative intent of the Constituent Assembly in allowing a more holistic interpretation of the grounds mentioned under Article 15(1) of the Constitution, rather than restricting itself to the excessively narrow interpretation relied on by the courts in the past.

Also read: What do Queer People Need from the Law?

Red herring – foreign national partner

While the Centre has attempted to justify its constant deferral of the proposal by relying on the fact that Senior Advocate Kirpal's partner is a Swiss national, this should be seen as nothing but a red herring to divert the attention of citizens from what is really on display, the State's clear prejudice against the LGBTQIA+ community.

The inconsistency in the State's position is further highlighted by the fact that former Chief Justice of the Patna High Court, Justice Ravi S. Dhawan, was married to an American citizen.

 It is becoming more and more evident that the real reason behind the State's failure to approve the proposal for Senior Advocate Kirpal's elevation is his sexual orientation. This is not only violative of Article 15(1) of the Constitution but is also in clear contravention of the Yogyakarta Principles. Principle 12(b) postulates that the State shall:

Eliminate any discrimination on the basis of sexual orientation or gender identity to ensure equal employment and advancement opportunities in all areas of public service, including all levels of government service and employment in public functions.

In the NALSA judgment, the Supreme Court held that these 2007 guidelines must be recognised and followed by the State. Therefore, in the absence of any other factors that prevent his elevation, the Centre has an obligation to keep Senior Advocate Kirpal's sexuality from coming in the way of approving the Collegium's recommendation.

Also read: Why Same-Sex Marriages Must be Judged at the Constitutional Altar

With landmark judgments like NALSA, Navtej Singh Johar and several others, the Supreme Court of India has made remarkable strides in recognising and protecting the fundamental rights of the members of the LGBTQIA+ community.

However, what is the need of the hour is greater representation of this historically marginalised community in the judiciary. Once the State has provided its inputs and forwarded all documentation and reports available to it, under the Memorandum of Procedure, the Collegium is free to form its own opinion and recommend Mr. Kirpal's appointment, leaving the Centre with little choice in the matter.

That this has been delayed for as long as it has implies reservations on the part of not only the Indian Government, but also the Collegium. It is imperative now that prejudices in administrative decision-making be set aside in consonance with emerging jurisprudence, and the path be cleared for India to welcome its first gay judge.

(Sukrut Khandekar is a student at the National Academy of Legal Studies and Research (NALSAR), Hyderabad. The views expressed are personal.)