(Source: Twitter)
When the Supreme Court decriminalized Section 377 in India which was celebrated with much gusto and pride; the Hon'ble Supreme Court stated how history owes an apology to the queer community. Yet, the present is still a space that purely reeks of blatant queerphobia. The systematic oppression against members of the community can only be cured by ensuring greater representation of queer legal practitioners on judicial benches and for the judiciary and the state to approach the queer community with the lens of intersectionality and empathy.
The Supreme Court made a record this week by recommending sixty-eight names to the Union Government for the vacant High Court Judge positions but the Court did not recommend the name of Advocate Saurabh Kirpal, a senior advocate and a gay man, whose recommendation was previously rejected by the Modi-led government.
Mr Saurabh Kirpal is an openly gay lawyer whose name was recommended as a judge for the Delhi High Court in 2017 by the Delhi High Court collegium. At the time; the Modi Government had objected Mr Kirpal’s appointment citing “security” and “conflict of interest” concerns since his partner is a Swiss national; however, there have been many other judges in the past who’ve been married to foreign citizens with former Chief Justice of the Patna High Court, Justice Ravi S. Dhawan who was married to an American citizen and yet appointed as chief justice. This exhibits the state’s inconsistency and sheer homophobia under the ambit and blanket of a farce and distorted sense of protecting national security and sovereignty permeated with discrimination against the queer community. In March 2021, the (then) Chief Justice of India wrote to the Modi Government asking it to clarify within four weeks if Mr Kirpal’s name is being objected to on account of his sexual orientation. The Union Government has not reverted back on the same till now.
The sensitization of judges, lawyers and other law and justice functionaries, as suggested by the recent Madras High Court judgment, is another step toward making the profession more inclusive and corresponds to how the legal institution needs to open up to different identities and create a non-discriminatory and non-judgmental space for everyone. The judicial culture yet deters queer lawyers and legal practitioners from achieving positions of authority and decision making.
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.” It is distinctly evident that the state has exercised absolute prerogative in using the word, “only” to justify its prejudiced action and passivity to protect the queer community. The literal analysis of the text present in the Constitution may seem to present an exhaustive list of grounds under which discrimination is prohibited but the Courts have time and again opined against such restrictive inferences.
The Delhi High Court, in the Naz Foundation case, stated 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 judgment of 2014, the Supreme Court observed that the Constituent Assembly emphasized 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. Thence, in the absence of any other factors that prevent his elevation, the Union Government has an obligation to keep Senior Advocate Kirpal’s sexuality from coming in the way of approving the collegium’s recommendation.
Last week, a Supreme Court collegium, one of the members of which is Justice A.M Khanwilkar who was among one of the judges in the 377 case as well, sent a list of sixty-eight people to the government for the position of the High Court’s Judges. The collegium had a chance to re-recommend Mr Kirpal’s name as it has been over four years now ever since the centre has blatantly rejected it whilst giving zero accurate justifications. While many are cheering the record number of recommendations that the apex court has made, it is imperative to consider who has been left out yet again.
Indian judiciary’s lack of representation is increasingly proving to be a massive hurdle for queer inclusion. The legal profession continues to be unrepresentative of not just the queer community but certain other marginalized sections of women, Dalits and Adivasis. The question of queer representation is not isolated as many queer people belong to other communities, such as Scheduled Castes and Tribe.
Akin to the society that it operates in, the legal fraternity and institution are following a dominant upper caste cis-heteronormative binary culture. Representation can lead to a shift in perspective and how issues are addressed. India needs more queer participation in law, especially as advocates, as they understand the language and complexity of issues faced by the community. The previous judgments in favour of the queer community stand as a testament to and need for the judiciary to adapt, and move away from the traditional understanding of cisgender-heterosexual socio-legal phenomena, and create a more inclusive environment.
The ardent need of queering the judiciary in order to elevate the growth of inclusivity and acceptance in Indian Courts is too absolute and indispensable.
The article is written by Ms Akshiti Chauhan (2nd Year) of the Army Institute of Law.