Collegium vs Centre: On elevation of a gay judge, constitutional morality vs majoritarian morality

Why in News?

• Disagreeing with the Centre's decision to reject the proposal to appoint senior advocate Saurabh Kirpal, an openly gay person, as a judge of the Delhi HC, the SC Collegium recently reiterated publicly its support for his appointment in 2021.
• The three-member Collegium headed by CJI, said that Kirpal's (would be the India's first openly gay judge if appointed) appointment as a judge was pending for five years and had to be processed "expeditiously".
• The article raises concerns related to government’s apprehensions that assume heterosexual judges can be biased and Collegium's impatient public disclosure related to Kirpal’s appointment.

 

Events Preceding Kirpal’s Appointment as HC Judge

• The SC Collegium’s recommendation in 2021 came nearly three years after it first considered Kirpal’s candidature in 2018.
• This came after the Delhi HC Collegium headed by Justice Gita Mittal had unanimously recommended Kirpal to be appointed as a judge in 2017.
• Kirpal's appointment has been delayed for several years, prompting speculation in legal circles that it was due to his sexual orientation.
• In 2021, the government raised concerns related to the intelligence inputs and its objections on the nationality of Kirpal’s partner.
• While the decision on Kirpal was still pending, he was designated as a senior advocate unanimously by all 31 judges of the Delhi HC.

 

What are the reasons for delay in Kirpal’s appointment?

• The government has objected to Kirpal’s elevation as HC judge claiming conflict of interest.
• The SC has now revealed communication from the Research & Analysis Wing, stating that there are two objections to the Collegium recommendation suggesting Kirpal’s name as follows:
  • His partner is a Swiss National, and works with the Swiss Embassy.
  • He is in an intimate relationship and is open about his sexual orientation.

 

Image Caption: SC views on Kirpal’s Appointment

 

Governments’ Arguments Resisting Kirpal’s Appointment

• Although homosexuality had been decriminalized, same sex marriage did not have legal recognition “either in codified statutory law or uncodified personal law in India”.
• The Centre also apprehended that Kirpal’s “ardent involvement and passionate attachment to the cause of gay-rights” would not rule out the possibility of bias and prejudice.

 

Collegium’s Counter to Government’s Objections

• The Collegium stated that there is no reason to "presume" that the candidate's Swiss national partner would be hostile to India, since the country of his origin is a friendly nation.
  • Furthermore, the Centre's objections did not reflect any concern about the individual conduct or behaviour of Kirpal's partner having an impact on national security.
• On the Centre’s concerns about Kirpal’s sexual orientation, the Collegium said that it would be manifestly contrary to the constitutional principles laid down by the SC to reject his candidature on that ground.
  • SC pointed to its judgment in Navtej Singh Johar (2018) that held every individual is entitled to maintain their own dignity and individuality, based on sexual orientation.
• The Collegium added that Kirpal possess “competence, integrity and intellect” and that his appointment would add value to the bench of the Delhi HC and provides inclusion and diversity.
  • Kirpal was counsel for two petitioners in the landmark Naz Foundation case in which the Delhi HC decriminalized homosexuality in 2009.

 

Unsettled Arguments Related to Homosexuality in Varied Domains

• Today, 132 countries have decriminalized homosexuality but only 32 have legalized same-sex marriages.
• The Indian government though consented with SC on the issue of decriminalizing homosexuality, it does not want to go beyond that to legalize same sex marriages.
  • It has reservations about homosexuals holding constitutional positions, as do most democratic governments, which are elected on popular majorities and rightly claim to reflect majoritarian morality.
• The Indian government objections related to Shri Saurabh Kirpal’s appointment raises several questions unanswered as follows:
  • Does a person’s sexual orientation make him ineligible for the appointment as a judge of a constitutional court?
  • Can the government and judiciary differ on moral questions?
  • Is the government the best judge of people’s opinions and preferences?
  • Should the state be drawing the boundaries between permissible and impermissible intimacies between consenting adults?

 

Constitutional Morality Validating Homosexuality

• CJI Dipak Misra in Navtej Singh Johar (2018) judgment talked of “constitutional morality” that refers to adherence to the core principles of constitutional democracy.
• He affirmed that it is not confined to the provisions and literal text that a constitution contains. Rather, it embraces within itself virtues of a wide magnitude such as that of ushering in a pluralistic and inclusive society.
• As a result, the Court concluded that freedom of choice cannot be based on the contradictory stance of majoritarian perception because the Constitution is not intended to protect only the majority, implying that no one should be punished for consensual homosexuality.
• The SC hence expanded the prohibited grounds of discrimination under Article 15 to include “sexual orientation” and held different sexual orientations as absolutely natural.
  • Article 15 forbids discrimination on grounds only of religion, race, caste, sex, or place of birth.

 

Conclusion

• Judicial primacy in the appointment of judges is seen as a crucial mechanism to achieve judicial independence. However, if the government is not allowed a say in the choice of judges, it may lead to the moral degradation of the whole society.
• Thus, the court’s move towards greater openness should not be merely an opportune counterstrike but must become a part of its institutional process.
• For it to be so, the SC must make public its recommendations and its “reasoned response” to government objections on all names, not a few out of many.
• The independence of the judiciary is not a private right of judges, but rather a right of citizens, and judicial legitimacy ultimately rests on public trust in the courts, which they should always strive to maintain.

 

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Q1) What was Navtej Singh Johar case?

The Supreme Court of India in Navtej Singh Johar case unanimously held that Section 377 of the Indian Penal Code, 1860, which criminalized ‘carnal intercourse against the order of nature’, was unconstitutional in so far as it criminalized consensual sexual conduct between adults of the same sex.

 

Q2) What is constitutional morality?

Constitutional Morality means adherence to or being faithful to bottom line principles of constitutional values. It includes commitment to inclusive and democratic political process in which both individual and collective interests are satisfied.

 

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Source: Collegium vs Centre: On elevation of a gay judge, constitutional morality vs majoritarian morality