7 min readJan 25, 2023 04:42 PM IST
First published on: Jan 20, 2023 at 07:18 PM IST
The independence of the judiciary is not the private right of judges; it is the right of citizens. Ultimately, judicial legitimacy rests on public confidence in the courts. Judicial primacy in the appointment of judges is seen as a crucial mechanism to achieve judicial independence. Judges must be independent of the executive and senior judges, and in their ideology. Today, 132 countries have decriminalised homosexuality but only 32 have legalised same-sex marriages. But can judges be independent of majoritarian sexuality as well? Does a person’s sexual orientation make him ineligible for the appointment as a judge of a constitutional court? Can the government and judiciary differ on moral questions? Is the government the best judge of people’s opinions and preferences?
The reiteration of a five-year-old recommendation of the Delhi High Court collegium (October 13, 2017) about the elevation of Saurabh Kirpal, which was approved by the Supreme Court on November 11, 2021, raises several of these questions. The recommendation was referred back by the government on November 25, 2022. The SC Collegium reconsidered the matter and in a two-and-half-page long reiteration rejected the government’s objections about Kirpal’s sexual orientation.
The R&AW had expressed concerns about Kirpal’s partner being a Swiss national and that he is “in an intimate relationship” and is open about his sexual orientation in 2019 and 2021. In April 2021, the Union law minister wrote to the Collegium that though “homosexuality stands decriminalised in India, nonetheless same-sex marriage remains bereft of recognition either in codified statutory law or uncodified personal law in India”. It is not clear whether Kirpal had a same-sex marriage — live-in relationships are, after all, legal. The other concern the minister expressed was about Kirpal’s impartiality in view of his “ardent involvement and passionate attachment to the cause of gay rights” and therefore, the government is unable to rule out bias and prejudice. Are we to assume heterosexual judges cannot be biased and prejudiced?
In response, the Collegium said the Swiss partner is no threat to national security since even R&AW has not explicitly raised the issue of national security. The Collegium said Switzerland is a friendly country and even in past, there were several holders of constitutional offices who had a foreign national as a spouse. As for sexual orientation, it pointed to its judgment in Navtej Singh Johar (2018) that held every individual is entitled to maintain their own dignity and individuality, based on sexual orientation. The Collegium said Kirpal possesses “competence, integrity and intellect” and his appointment would provide “inclusion and diversity” and “his conduct and behaviour has been above board”. Rarely has there been such a strong recommendation for any candidate.
Did the apex court have any option but to abide by its own judgment, wherein it had partially struck down Section 377 of the IPC? The Court had said English law’s conception of anal and oral intercourse was firmly rooted in Judeo-Christian morality. In fact, ancient India did not look down upon such sexual choices; RSS chief Mohan Bhagwat recently spoke in favour of the rights of the LGBTQ community.
In his judgment, then CJI Dipak Misra had said an individual in the exercise of his choice may feel that he/she should be left alone but no one should impose solitude on him/her. Misra said attitudes and mentality have to change to accept the distinct identity of individuals and respect them for “who they are” rather than compelling them to become “who they are not”. Misra also talked of “constitutional morality” and said it is not confined to the provisions and literal text that a constitution contains – rather, it embraces within itself virtues of a wide magnitude such as that of ushering in a pluralistic and inclusive society. The Court said freedom of choice cannot be scuttled on the mercurial stance of majoritarian perception as the Constitution is not supposed to protect just the majority.
Justice Chandrachud too raised a few pertinent questions. What is “natural” and what is “unnatural”? Who decides the categorisation into these two ostensibly distinct and water-tight compartments? Should the state be drawing the boundaries between permissible and impermissible intimacies between consenting adults? The Court expanded the prohibited grounds of discrimination under Article 15 to include “sexual orientation”. The court had held different sexual orientations as absolutely natural. Justice Indu Malhotra went to the extent of seeking an apology for the non-recognition of the rights of sexual minorities.
The Court thus had laid down the law that no one is to be punished for consensual homosexuality. The Modi government seems to have no problem with the mere decriminalisation but does not want to go beyond that. But it seems to have reservations about such people holding constitutional positions. The fact is that most democratic governments, elected on popular majorities, rightly claim to reflect the majoritarian morality.
There is another angle to this controversy. The Collegium has not spoken on this subject in the last two years but for a few strong oral observations on the delay in clearing the recommendations of the Collegium. In the last few weeks, the Union law minister and Vice-President of India had been questioning the collegium system. It seems, in response, the Collegium has deliberately picked up an issue on which the liberal and libertarian sections of the society would stand by it. Of course, it has also reiterated a few other names. Many critics of the collegium system may support the SC Collegium on this issue. But the government can go to the masses and claim it is committed to majoritarian morality but the Collegium is encouraging western and alien values and if the government is not allowed a say in the choice of judges, it could lead to the moral degradation of the whole society. In its response to the Navtej Singh Johar judgment, the RSS rejected same-sex marriages as against Indian traditions and cultures. Muslim and Christian clergy are on the same page with the RSS on this issue.
The writer is a constitutional law expert. Views are personal
The reiteration of a five-year-old recommendation of the Delhi High Court collegium about the elevation of Saurabh Kirpal, which was approved by the Supreme Court in November, 2021, raises several questions, writes Faizan Mustafa. (Twitter/@CasaAsia) 
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