Is India’s Supreme Court Reluctant to Appoint a Gay Judge?

The Supreme Court of India (SC) is being reported to have delayed the judgeship of a gay lawyer to the Delhi High Court. According to The Economic Times (ET), the SC collegium (a panel that appoints judges to the nation's constitutional courts) has been acting with extreme caution despite the fact that the “well-known” lawyer was unanimously approved and recommended by the Delhi High Court collegium on October 13, 2017. Over the last 10 months, the SC has postponed its decision on the proposed appointment thrice.

The SC collegium is reported to have first considered this case on September 4, 2018, right before the ruling of Section 377 of Indian Penal Code, which decriminalised gay sex. Since then, it has been taken up on January 16 and April 1. Reports also say that the SC collegium has not cited any reasons for the deferral.

The ET investigation has also found that an Intelligence Bureau (IB) report was prepared after the Delhi High Court’s proposal was sent to the government. This report flagged the fact that the advocate’s live-in partner of several years is a foreign national, and could be a “security risk”. However, it’s not been determined that the IB report—which, as per process, was sent to the SC collegium—is the reason behind the delays.

The IB report, however, is also said to list down the advocate’s impeccable professional credentials and vouches for his integrity. “It is getting increasingly difficult for the collegium to justify the delay and thereby holding back the recommendation. An opportunity has been presented to the collegium to take a progressive decision in favour of a meritorious and worthy candidate without being influenced by extraneous considerations,” Justice Madan Lokur, a former SC judge who was a member of its collegium until his retirement last year, told ET.

Yet another source said that the SC collegium should “assess the individual’s professional competence and integrity and not focus on his sexual orientation and relation with a foreign national.”

This development is seen as crucial to the Indian justice system, since just last week, the lawyers, Menaka Guruswamy and Arundhati Katju, who fought for the petition that led to decriminalisation of Section 377, have come out as a couple. Here’s hoping that the institution that preserves the sanctity of the rights of the country’s citizens, upholds those of its own too.

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