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Inclusivity in Judiciary: SC collegium firm on appointing gay lawyer as HC judge

GS Paper 2

Syllabus: Structure, Organization and Functioning of the Executive and the Judiciary

 

Source: IE

Direction: The article mainly discusses the issue of appointing a judge of different sexual orientations and how it will ensure diversity in the judiciary.

  

Context:

  • The SC Collegium headed by CJI reiterated its decision to appoint five advocates as HC judges, including a senior advocate (Saurabh Kirpal), who if appointed, could be India’s first openly gay judge
  • Earlier the government had sought reconsideration of these names
  • The importance of diversity and inclusivity in the judiciary
  • Constitutional Morality vs Majoritarian and Social Morality
  • Transformative Constitutionalism and a Living Constitution

 

What are the objections made by the government?

  • A candidate’s sexual orientation and his “foreign-national” partner.
  • An advocate sharing content critical of the PM on social media.

 

Government’s position behind these objections: According to the Union Law Ministry, despite the fact that homosexuality is no longer a crime in India, same-sex marriage is still not recognized in either codified statutory law or uncodified personal law.

 

On what grounds Collegium reiterated its decision:

  • The SC (in Navtej Singh Johar case 2018), has established the constitutional position that every individual is entitled to maintain their own dignity and individuality, based on sexual orientation.
  • It would be clearly contrary to the SC’s constitutional principles to reject the candidacy on the basis of sexual orientation.
  • There is no reason to believe that the candidate’s Swiss national partner would be hostile to India because his home country is friendly.
  • All citizens have the right to free speech and expression, and the views critical to government do not disentitle a candidate from holding a constitutional office so long as s/he is a person of competence, merit and integrity.

 

Significance of appointing a judge of different sexual orientation:

  • His appointment will add value to the Bench of the Delhi HC and provide inclusion and diversity.
  • Diverse judges challenge and enhance one another’s perspectives.

 

Significance of Diversity in our Judiciary:

  • It refers to efforts to ensure that the composition of a nation’s judiciary reflects the diversity of the population it serves
  • Eg: measures to increase the representation of women, minorities, SC/STs, Divyangjan and other vulnerable sections like LGBTQ community.
  • “The social & geographical diversity must find its reflection at all levels of the judiciary as diversity on the bench promotes diversity of opinions & efficiency. People from different backgrounds enrich the Bench with their diverse experiences.”: Former CJI Ramana.

 

Conclusion: Several judgments have advanced and advocated for the rights of the LGBTQIA+ community. We must not sacrifice constitutional morality at the altar of social morality. The SC’s decision to make public the Government’s objections shed some light on the process, but it also heightens tensions with the Centre. Questions will be raised as to why the Collegium released only three objections, rather than all.

 

Quotes:

“We cannot change history but can pave a way for a better future. The Constitution is a living organism and it has to be given life. It is time to bid adieu to prejudicial perceptions deeply ingrained in societal mindset.”- Navtej Singh Johar v. Union of India

 

InstaCurious:

DOCTRINE OF MANIFEST ARBITRARINESS:

If a law is drastically unreasonable, capricious, irrational or without adequate determining principle, excessive & disproportionate, it would be manifestly arbitrary.

Eg: Navtej Singh Johar’s judgement held that Section 377 was “manifestly arbitrary”

 

The Collegium system and the process for appointing judges to the higher judiciary:
  • The Collegium system (headed by the incumbent CJI) is the way by which judges of the SC and HCs are appointed and transferred.
  • The Collegium system is not rooted in the Constitution or a specific law promulgated by Parliament, rather it has evolved through judgments of the SC.
  • The Government’s role:
    • Names recommended for appointment reach the Government only after approval by the Collegium.
    • The role of the government in this entire process is limited to getting an inquiry conducted by the Intelligence Bureau (IB) if an advocate is to be elevated as a judge in an HC or the SC.
    • The government may also object to and seek clarification on the Collegium’s choices, but if the Collegium reiterates the same names, the government is bound to appoint them.

Insta Links:

Law Minister’s suggestion to CJI on the appointment of judges: The context and background