Pride and Prejudice: Homophobia deprives India of its first gay judge


More than three years after the Delhi High Court Collegium recommended the elevation of senior lawyer Saurabh Kirpal, little progress has been made by the central government in approving the proposal. Behind the smokescreen of national security concerns lies the thinly veiled homophobia of the state, writes SUKRUT KHANDEKAR.


PSTROLL month in India was started by a historical judgment of the Madras High Court, where Judge Anand Venkatesh issued a series of guidelines prohibiting attempts to medically cure individuals of their sexual orientation. He also suggested a series of measures that should be adopted to ensure the integration of the LGBTQIA + community into mainstream society.

As a first step, before rendering the judgment, Judge Venkatesh recognized that he might have certain preconceived ideas about the community and decided to consult a psychologist to help him better understand and combat his own prejudices.

Likewise, he also met and researched information from people belonging to the LGBTQIA + community in order to better understand their plight. While it is imperative for members of the judiciary to attend outreach sessions to understand the experiences of the LGBTQIA + community, the systemic bias against the community can only be cured by ensuring its greater representation in the courts.

The recommendation of the College of the High Court of Delhi

In 2017, the High Court College of Delhi recommended the elevation of senior lawyer Saurabh Kirpal as judge of the High Court. Despite the Supreme Court’s approval of the proposal, more than three years later, the central government continues to drag its feet on the issue, essentially denying India its first openly gay judge.

Article 15 (1) of the Indian Constitution states that “The state should not discriminate against any citizen solely on the basis of religion, race, caste, sex, place of birth or any of them.. The center appears to have relied on the use of the word ‘only’ as carte blanche for its clearly discriminatory (in) action. While the literal interpretation of the text of the Constitution may appear to present an exhaustive list of grounds under of which discrimination is prohibited, the courts have repeatedly ruled against such restrictive interpretations.

Also Read: Political Reforms To Make LGBTQ + Community Prouder By Pride Month Next Year

Change in case law around article 15

There has been a major change in the case law surrounding this issue, since the 1951 case. Sri Mahadeb Jiew vs. Dr BB Sen, to the recent Supreme Court ruling on Navtej Singh Johar v Indian Union in 2018. In Sri Mahadeb Jiew, the Delhi High Court ruled that if a law appears to discriminate against individuals for a reason other than those present in the exhaustive list provided for in Article 15 (1), then such discrimination would fail to fall within the scope of the article. This narrow interpretation of the Constitution was confirmed by the Supreme Court in the 1981 case. Air India vs. Nargesh Meerza. In this judgment, the Court held that Articles 15 and 16 of the Constitution prohibit discrimination “solely and solely” on the basis of sex, and not on factors connected with it.

Unlike the position occupied by Indian courts in the past, the Delhi High Court, in the case of the Naz Foundation, argued that sexual orientation is an analogous ground under article 15, paragraph 1, of the Constitution, thus rejecting the “exhaustive” nature of the grounds listed in that article.

In addition, in the NALSA judgement of 2014, the Supreme Court observed that the Constituent Assembly emphasized the right against discrimination on the basis of sex “in order to prohibit the direct or indirect attitude that the state may display in treating people differently. so as not to conform to the stereotype of a gender-binary society. ‘ Thus, the Court considered that article 15 of the Constitution was sufficiently broad to include “gender identity” and “sexual orientation” within its jurisdiction.

This reasoning was reiterated by Judge DY Chandrachud while delivering the benchmark Navtej Singh Johar judgement, in which he held that the formalistic interpretation followed by courts in the past would render constitutional protection against discrimination futile. Here too, the Supreme Court relied on the legislative intention of the Constituent Assembly by allowing a more comprehensive interpretation of the grounds mentioned in Article 15, paragraph 1, of the Constitution, rather than limiting itself to the excessively narrow interpretation relied on by courts in the past.

Read also: What do queer people need from the law?

Red herring – foreign national partner

While the Center has attempted to justify its constant postponement of the proposal by citing the fact that lead lawyer Kirpal’s partner is a Swiss national, this should only be seen as a red herring to distract citizens from what is really being displayed, the state’s clear prejudice against the LGBTQIA + community.

The inconsistency in the state’s position is further underscored by the fact that the former Chief Justice of the Patna High Court, Judge Ravi S. Dhawan, was married to a US citizen.

It is becoming increasingly clear that the real reason for the state’s failure to approve Senior Lawyer Kirpal’s elevation proposal is his sexual orientation. This is not only contrary to article 15, paragraph 1, of the Constitution, but also clearly contrary to the Yogyakarta Principles. Principle 12 (b) postulates that the state must:

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

In the NALSA ruling, the Supreme Court ruled that these 2007 guidelines should be recognized and followed by the state. Therefore, in the absence of any other factor preventing its elevation, the Center has an obligation to prevent Senior Counsel Kirpal’s sexuality from standing in the way of the College’s recommendation being approved.

Read also: Why same-sex marriages must be judged at the constitutional altar

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

What is needed at the moment, however, is greater representation of this historically marginalized community in the justice system. Once the State has provided its inputs and transmitted all documentation and reports at its disposal, under the procedural protocol, the College is free to form its own opinion and recommend the appointment of Mr. Kirpal, leaving little choice at the Center in this area.

That this was delayed for as long as it did involves reservations on the part of not only the Indian government, but the Collegium as well. It is imperative now that prejudices in administrative decision-making are set aside in line with emerging case law, and the way is 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 opinions expressed are personal.)


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