The recent development in the selection of High Court judges in India has created a significant buzz in the global LGBTQ community. The Supreme Court Collegium of India has recommended the appointment of senior advocate Saurabh Kirpal, an openly gay man, to serve as a High Court judge. If confirmed, this would make him the first openly gay judge in India.
Who is Saurabh Kirpal?
Saurabh Kirpal, a notable attorney with extensive experience in legal practice, could soon become India’s first openly gay judge. He was initially deferred four times by the Supreme Court Collegium, causing widespread conjecture within legal circles that the delay was tied to his open sexual orientation. However, each time his appointment was deferred, conflict of interest was cited as the reason.
LGBTQ Rights and Kirpal’s Potential Appointment
Kirpal’s potential appointment comes at a time when LGBTQ rights in India are gradually gaining recognition. This could mark a milestone in the rights and acceptance of lesbian, gay, bisexual, transgender and queer or questioning individuals in India. Just recently, the European Union declared itself as an “LGBTIQ Freedom Zone”, further highlighting the growing acceptance of homosexuality globally.
Appointment Procedure for a High Court Judge in India
According to the Indian Constitution’s Article 217, a High Court Judge should be appointed by the President in consultation with the Chief Justice of India (CJI), the Governor of the State, the Chief Justice of the High Court and other judges of the Supreme Court. Adopting the Collegium system introduced in the Second Judges Case of 1993, the term “consultation” effectively refers to “concurrence”. The collective institutional opinion formed by the CJI and the two senior-most judges of the Supreme Court is considered in the appointment process.
The Role of Intelligence Bureau (IB) in Judge Appointments
The Intelligence Bureau (IB), a highly-regarded intelligence agency controlled by the Ministry of Home Affairs, carries out thorough background checks on individuals recommended for elevation to a High Court or Supreme Court judge. The IB possesses the right to question the Collegium’s choices and ask for explanations, but if the Collegium reiterates the same names, the government is obliged to appoint those individuals as per Constitutional Bench judgements.
Status of LGBTQ Rights in India
Over the years, the Supreme Court has made several landmark rulings that positively impact the LGBTQ community in India. In National Legal Services Authority Vs. Union of India (2014), transgenders were recognised as a third gender. Further, in Navtej Singh Johar vs Union Of India (2018), homosexuality was decriminalised, removing certain parts of Section 377 of the Indian Penal Code (IPC).
Challenges Faced by LGBTQ Community
Despite progress in legal recognition, the LGBTQ community in India still faces significant challenges. These include family disruptions due to misunderstandings and lack of communication, inequality and discrimination at workplaces, inadequate access to health services, and societal isolation leading to harmful coping mechanisms such as substance abuse.
Solutions for Better LGBTQ Integration
To address these issues, there is an urgent need for anti-discrimination laws that protect the rights of individuals irrespective of their gender identity or sexual orientation. Government bodies, particularly those related to Health, and Law and Order, must be trained effectively to ensure public services are accessible to everyone without any prejudice or harassment based on sexual orientation.
