Appointments/Elections

India Ponders Openly Gay Judge

By Ajmer Singh, ET Bureau

July 24, 2018 (The Economic Times, New Delhi) — The Supreme Court may have decriminalized homosexuality, but its collegium is being extremely cautious in appointing a judge, who is gay, to the Delhi High Court.

ET has learned that the SC collegium, which has deferred its decision on the proposed judgeship of this well-known lawyer thrice in the past 10 months, has asked the government for additional information. The lawyer’s elevation as judge was unanimously approved and recommended by the Delhi High Court collegium on October 13, 2017.

The lawyer has been living with his partner, a foreign national, for several years.

This fact, sources told ET, finds mention in the Intelligence Bureau report prepared after the government received the HC’s proposal. The IB report, as per process, was sent to the SC collegium .

The IB report, it’s learned, flagged the fact that the advocate’s partner is a foreign national and could, as per the report, pose a ‘security risk’. These views — on the alleged security risk — are, however, not binding on the collegium.

Importantly, the report also described the lawyer’s professional credentials as impeccable, and said his integrity was beyond doubt, as per legal sources privy to its content.

Justice Madan Lokur, ex-SC Judge, who was member of SC collegium until his retirement December last year told ET: “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 favor of a meritorious and worthy candidate without being influenced by extraneous considerations.”

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, a senior judge told ET. He requested anonymity.

The Economic Times sent a detailed questionnaire to the office of CJI, requesting his response, but no reply was received.

The SC collegium first considered this particular case on September 4, 2018, around the time of its historic ruling on Section 377. It was then taken up on January 16 and April 1. On the last occasion, the SC collegium comprising Justices Ranjan Gogoi, SA Bobde and NV Ramana, without citing any reason, deferred the proposal.

The collegium has sought additional information in the past couple of months on the security threat mentioned in the IB report. The government, for its part, believes that the IB report is comprehensive enough. Sources privy to the government’s thinking said it may not have any additional information on the lawyer’s relationship or the security threats allegedly arising from the nationality of his partner.

In the past, former SC judge Justice Vivian Bose was married to a foreign national. Also, there have been judges in Australia and South Africa who are known to be gay, according to the legal sources cited. In September 2018, a Constitution Bench of the SC led by then Chief Justice Dipak Misra had decriminalised homosexuality. Prior to the judgement, gay sex was a criminal offence under Section 377 of the IPC.

The SC collegium should take a call on this proposal since deferment is not going to change the circumstances surrounding this individual, according to a legal luminary who is privy to the IB report.