Editor’s Note: In this post, Priyamvadha Shivaji, writes about the Supreme Court’s reluctance in diversifying its composition and how the delay in the appointment of a queer lawyer to the bench affects the Court’s legitimacy regarding claims of upholding representative values and accepting diversity.

In its historic verdict in Navtej Singh Johar v. Union of India & Ors., the Supreme Court unanimously read down the scope of Section 377 of the Indian Penal Code (IPC) 1860, holding that the criminalization of sexual identities and sexual orientations under this section would be unconstitutional. Rohinton Nariman, J. took this opportunity to call upon the Union of India to:

“… take all measures to ensure that this judgment is given wide publicity…to reduce and finally eliminate the stigma associated with such persons.”

It appears that the court itself, however, has excluded its hallowed halls from this desire to ensure greater diversity across public institutions. On October 13, 2017, the Delhi High Court collegium had unanimously recommended the elevation of a “well-known” gay lawyer to the bench; however, nearly ten months later, the Supreme Court collegium is yet to confirm the appointment. The SC collegium has deferred its decision thrice and has sought additional information from the government although such information is, as a matter of practice, not binding on the collegium’s final decision.

It must be admitted that one would be hard-pressed to immediately conclude that the SC collegium’s hesitation is a result of deep-rooted homophobia on the part of its members. However, this saga raises an interesting question: where are our gay judges, and why have they not been given greater institutional backing?

In this article, I briefly examine why a diverse bench is crucial to the court’s pursuit of transformative justice and highlight additional means through which a defect in institutional diversity has sought to be redressed. I conclude by turning to the case of the gay judge whose appointment to the bench currently hangs in the balance and theorize that the factual discrepancies and uncertainties in this situation are symptomatic of a wider concern that the court must force itself to confront.

Queering the Bench

Legal realism draws our attention to the fact that “justice”, that elusive end-goal of the legal process, is not as blind to questions of identity (and power) as we might hope for. Critical studies have shown that the presence of a “differing” ideology or viewpoint, which is often inextricably linked to one’s identity and socialization, has a drastic impact on the outcome of cases that speak directly to and challenge the traditional hierarchies of power.

It is surprising to note that nations progressively grow more diverse as the courts grow narrower; the appalling lack of diversity on the bench in India, particularly with respect to gender-based representation, has resulted in miscarriages of justice which not only fail to perform a transformative role in society but have ensured that a fair distribution of rights and resources remains elusive. Presence, therefore, matters a great deal in the legal process.

Institutionalising Queer Presence

While we have acknowledged that our judges may at times step up for LGBTQ rights, we have not made a deeper inquiry into the rights of queer judges themselves. This glaring absence is perhaps partly explained by the socio-political context which continues to persist in India and creates a legal and social atmosphere that continues to stifle freedom of sexual expression even in a post-Navtej Johar world. Judges or not, persons who identify themselves as being of alternate sexual orientations are unfortunately forced to be reluctant in enhancing their public visibility; and being on the bench involves a high degree of public scrutiny. Nonetheless, if the very institution that is meant to safeguard our freedoms does not itself lead the way in the realization of these freedoms, that institution is then found lacking.

Judicial appointments in India are left to the discretion of the collegium. Although a Memorandum of Procedure (MoP) was proposed in 2015, no such document exists to date. As a result, uncertainties over questions of the time taken for confirmation, and reasons for rejection (if any), continue to persist. This allows the collegium system to get away with arbitrary deferrals of decisions in matters that it deems too delicate for full transparency, and with relying on “evidence” (flimsy as it often is) from sources which allegedly prove the existence of “serious objections” (usually undefined) to candidature. Such a loophole allows for discriminatory exclusion from institutional presence, as famously happened when former Supreme Court Justice Markandey Katju refused to endorse the appointment of a credible lawyer citing the uncomfortable nature of his unconventional live-in relationship with a woman, claiming that it would not be acceptable “for a High Court or Supreme Court judge”.

The Case of Lawyer Q

Recent reports have noted that the appointment of a “well-known” lawyer, whose elevation to the Bench had been recommended by the Delhi High Court collegium more than eleven months ago, had been postponed at least thrice by the Supreme Court collegium on the grounds of an alleged “national security risk” posed by Lawyer Q’s long-term male live-in partner.

The security risk was highlighted by a report prepared by the Intelligence Bureau upon the request of the SC collegium; however, the report itself had downplayed the possible risk and praised Lawyer Q’s “impeccable” credentials. Such an instance is, as former SC Judge and collegium member Madan B. Lokur pointed out,

“an opportunity … to take a progressive decision in favour of a meritorious and worthy candidate without being influenced by extraneous considerations.”

Nonetheless, the collegium has yet to make any statement justifying its decision (or, more accurately, the lack thereof).

Conclusion

The judiciary, clearly, has a long way to go in applying the lessons it has preached elsewhere to itself. We are far from a “queer bench”, the logical extension of a diverse court that is truly conscious of the need to institutionalize queer presence within public institutions; in such a scenario, every small expression of bravery in self-identification, be it by lawyers or judges or other participants in the legal process, ought to be heavily encouraged. It is hoped that the SC collegium will ensure the absence of further delay in confirming the appointment of Lawyer Q to the Delhi High Court Bench, and will look to itself in the future to stand as an example of pride in diversity.

Priyamvadha Shivaji is a Year V student at NALSAR University of Law.