Pride Not Prejudice – LGBTQ+ Representation In The Judiciary

Before a contrast is drawn between the representation of LGBTQ+ members in the U.S. judiciary compared to the Indian judicial system, we must acknowledge that the Indian workplace has not been the ideal set up for the queer community to blossom to their fullest extent. A raised eyebrow, uncomfortable silence, and stares exchanged across the room have often demoralized them. Micro-revolutions have taken place in some institutions. However, a large-scale movement is required to create safe and inclusive spaces for the LGBTQ+ community. Institutions as a whole need to adopt measures to transform homophobia and bigotry into acceptance.

When a pillar of democracy, in this case – the judiciary, pledges to make inclusivity the norm, the impact is visible on other limbs of society. The judiciary being the embodiment of equality must be on the forefront to bring members of the queer community within its structure. Diversity enriches a judicial system. It strengthens public confidence in the Courts, since the populace sees decision-makers as a reflection of the society to which it belongs. When members of the LGBTQ+ community are welcomed on the Bench, they bring varying perspectives, social experiences and intellectual capabilities which may otherwise remain untapped merely due to homophobia. If certain persons are not appointed as judges merely on the basis of their sexual orientation, other members of the legal fraternity, including judges, should dissuade such discrimination, and not be mute spectators. Kate Gilmore, the Deputy High Commissioner for Human Rights of the United Nations, while advocating equal rights for the LGBTQ+ community said, "You don't have to like me to respect my rights. I don't have to agree with you to uphold your rights. You don't have to be like me, for me to protect your rights." Homophobia of a handful of persons in powerful positions should not deprive an entire nation of brilliant and jurisprudentially sound judges.

In this background of lack of diversity in the Indian judicial system, adoption of affirmative action intertwined with the merit principle is essential. The view that "affirmative action" is incompatible with appointment on the basis of merit is erroneous. Over the years, the queer community has undoubtedly been deprived of equal opportunity in many spheres. Even though the judgment decriminalizing consensual sex between adults of the same sex, and granting an equal status to them was passed in 2018, India is still in the nascent stages of making its public offices a level-playing field, open to members of the LGBTQ+ community. In order to translate judicial decisions into ground reality, it is imperative to make special efforts to seek out and identify meritorious members of the community, and appoint them as judges.

Sociologist Dipankar Gupta in his book "Mistaken Modernity : India between two worlds" explains how it may appear that India has adopted "modernity", but the idea of "modernity" is limited to usage of gadgets and technology, and excludes individual freedom and human dignity. The Madras High Court recently passed a judgment which was a step towards adopting "modernity" inasmuch as it pertains to the rights and protection of the LGBTQ+ community. The judgment indicates how Justice Anand Venkatesh overcame his personal prejudices, and took upon himself the responsibility to deliver justice in all its forms and spirit. He considered it a duty to educate himself, lest his ignorance interferes with guiding the LGBTQ+ community towards social justice. 

The appointment of judges from the queer community will set an example for other institutions. LGBTQ+ inclusion is beneficial for more reasons than one : firstly, being a no-brainer – it is in furtherance of human rights, as Hillary Clinton famously said "Gay rights are human rights and human rights are gay rights"; secondly, it attracts talent and skill beyond limitations of sexual orientation, thirdly, an inclusive work environment helps retain talent, fourthly, it sends a signal to the world about the progressive stand adopted, and lastly, it moulds new perspectives, and re-imagines existing ones.

In 2017, India witnessed a shift in the needle of acceptance when Joyita Mondal, the first transgender Judge, was appointed to the Lok Adalat in Uttar Dinajpur district in West Bengal. Such representation also saw the light of the day in 2018 in Maharashtra, where Vidya Kamble, and in Assam, where Swati Bidhan Baruah, members of the transgender community were appointed as Judges in the District Lok Adalats in Nagpur and Guwahati, respectively. While this may be the first step to dip our feet in the ocean of diversity, we have miles to go before we perceive judicial appointees not as queer first, but as meritorious professionals.

In October 2017, the Delhi High Court unanimously recommended the elevation of Saurabh Kirpal, an openly gay and erudite senior advocate, as a Judge of the High Court. Till date, however, the Central Government has not taken a decision on his elevation. In the ordinary course, once a recommendation is made by the Court, the Government approves it in a routine manner. The Government expressed its apprehensions for Kirpal's appointment on the ground that his partner is a foreign national, which may pose a security threat. This justification may however not stand the test of reason, since there have been instances in the past of judges whose partners were foreign nationals being appointed to the Bench. [For instance, Justice Vivian Bose at the Supreme Court of India, and Justice Ravi Dhawan as the Chief Justice of the Patna High Court]. The question which lingers on is how long before we, as a society, can look beyond sexual orientation, and create an inclusive community. There can be no denying that when it is time for India to appoint its first openly queer judge, we may repent that we did not bestow this privilege upon us earlier, and deprived ourselves of celebrating all the colours of the rainbow.

Views are Personal

Author is an Advocate practicing in the Supreme Court of India