After the Supreme Court Collegium revealed the Indian Government’s arguments against the recommendation of the Supreme Court Collegium regarding the appointment of an advocate, Saurabh Kirpal, because he is homosexual and purportedly a security threat, a discussion in India over the nomination of a man who would be the country’s first openly gay judge broke into rarely seen public exposure.

From the year 2014 when transgenders were officially given voting rights as the ‘third gender’ to the year 2019 when they were given equal recognition and status in the country, the journey for the LGBTQ community has been a bit turbulent. However, they still face prejudice and marginalization in India, despite these advancements. Transgender people, in particular, struggle to find educational, and employment prospects. According to National Human Rights Commission (NHRC) study in 2018, 96% of the LGBTQIA+ community is denied employment in every sphere of work. For the handful of them who gets work, they are either employed in low-paying jobs or undignified work like sex work and begging. Hence, while the parliament of India has proclaimed big promises for the employment of youth in the country, little heed has been paid to the struggles of the transgender community in the sphere of equal job opportunities.

While homosexuality is no longer a crime in India, whether discrimination against transgender people has ended is a question that needs to be addressed by the executive and the judiciary in this country. On paper, it could be argued that the  Transgender Person (Protection of Rights) Act 2019 gave transgender people equal rights in the country, but much work needs to be done before these rights can be effectively enforced and respected by all. The Centre’s objections to Advocate Saurabh Kripal’s appointment as a judge demonstrate that the main issue is not a lack of legislation but rather the acceptance of the transgender community by those in positions of authority. The Collegium recommended Kirpal’s name four times earlier, but the Centre had always been against the appointment. The Centre, in defense, argues two points; that Kirpal’s sexual orientation as gay would lead to bias in decision-making; his unequivocal acceptance of an intimate relationship with a Swiss national might result in biases that would jeopardize the security of the nation.

Moreover, Kirpal was a part of the legal team which represented LGBTQIA+ petitioners in the historic case named Navtej Singh Johar case[1], wherein the apex court decriminalized consensual sexual intercourse between adults of the same sex giving homosexuals the much-awaited right in the country, in turn, has contributed to the notion that the Centre holds against Kirpal about him being a bias against the transgender community. To negate the same, the authors would like to refer to the landmark Sabarimala Temple case[2] decision, where the main issue was whether women should be allowed to enter the Sabarimala temple to worship the deity. By the 4:1 vote, the Apex Court granted women the right to enter the temple over the prevailing religious customs and traditions. The point that should be focused on is that the dissenting opinion above came from none other than a woman judge itself named Hon’ble Justice Indu Malhotra, who recognized the tradition of the temple over that of women’s rights. If being a woman judge on a constitutional issue of women’s fundamental rights does not result in bias but rather in inclusivity and different perspectives, how can it be argued that being a gay judge will result in a bias towards the transgender community? On this, the Supreme Court Collegium correctly rejected the Centre’s objection, stating that Saurabh Kripal’s appointment as a High Court Judge will bring inclusivity and diversity to the bench.

Additionally, it should be noted that Switzerland is a friendly nation, and the relationship would not have affected the nation’s security at any cost. Many persons holding high positions in public offices have foreign partners, but that has never questioned their credibility or jeopardized the interest of a nation. Such grounds for rejections are frivolous and a clear blow to the constitutional values of a country that recognizes the equality of every individual to choose his/her sexual orientation. Moreover, it is mentioned under Article 15(1) of the Constitution of India that the state shall not discriminate against any citizen based on sex. Under the Naz Foundation case[3], sexual orientation as an analogous ground was also introduced under Article 15(1), and the Centre’s act violates the very essence of this provision.

The Centre’s statement comes at a time when countries worldwide recognize and elevate transgender people’s rights not only in the executive and administrative domains but also in the judicial domain. The appointment of Justice Edwin Cameron, the South African Constitutional Court, who came out as gay and has since served the nation admirably, is a fitting illustration of how India’s rich constitutional jurisprudence should be acknowledged. Moreover, in Bostock vs Clayton County, the US Supreme Court reiterated that it is impossible to treat discrimination based on sexual orientation or transgender status differently from that of sex and thereby deny legal protection against discrimination based on sex due to the words “sex,” “sexual orientation,” and “transgender status” being inextricably linked.

While India’s stance to decriminalize same-sex relationships is commendable, the country still lacks the awareness and recognition to be able to execute the transgender act to the full extent. By reminding the Government of the proper legal position on the status of repeated recommendations, that is, that they are binding on the Government, the Collegium has taken a step ahead of acceptance and inclusivity of this community. Moreover, by enlisting the reiteration of recommendations and the centre response in the public domain, the Supreme Court has showcased that transparency in the legislative and judicial intersection is crucial for India to function democratically. The appointment of Advocate Saurabh Kripal as a High Court judge will open the doors of equal representation of the LGBTQ community.

[1] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1

[2] Indian Young Lawyers Assn. v. State of Kerala, (2017) 10 SCC 689

[3] Naz Foundation v. Govt. (NCT of Delhi), (2016) 15 SCC 619