Supreme Court invoking possible discrimination of a gay person for scrapping the NJAC is dubious

In December 2013, Supreme Court had quashed a petition seeking review of the judgment that criminalised homosexuality

WrittenBy:Vikram Johri
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One of the reasons forwarded by the Constitutional bench that scrapped the National Judicial Appointments Commission (NJAC) last week was unexpected: if the government was given a say in the appointment of judges, the reasoning went, it may bar certain members from becoming judges on the basis of their sexual orientation.

As reported in the Times of India, Justice Madan B Lokur said, “Australia and South Africa have had a gay judge on the bench. The present political executive in India would perhaps not permit the appointment of a gay person to the bench.”

He further said: “There can be a situation where the personal traits of a person may be such as to disqualify that person from being appointed as a judge and there can be a situation where the personal traits, though objected to, would not have any impact whatsoever on the potential of that person becoming a good judge.”

He added: “For example, in the recent past, there has been considerable debate and discussion, generally but not relating to the judiciary, with regard to issues of sexual orientation. It is possible that the executive might have an objection to the sexual orientation of a person being considered for appointment as a judge but the Chief Justice of India may be of the opinion that that would have no impact on his/her ability to effectively discharge judicial functions or the potential of that person to be a good judge.”

These are strong words coming from the highest court of the land, the same court that in December 2013 quashed the Delhi High Court order of 2009 which had scrapped Section 377. Section 377, by outlawing sexual acts “against the order of nature”, criminalises homosexuality.

Already, there is a flutter of activity within the government over the Supreme Court (SC)’s verdict. On Sunday, Finance Minister Arun Jaitley questioned the logic of the decision. But on the particular matter raised by Justice Lokur, the government has little room to defend itself. Even if it chooses to ignore this aspect of the decision, it cannot deny that the comments are equivalent to egg on its face.

There is another aspect to this. Justice Lokur’s egalitarian comments are such a contrast to the 2013 verdict of the SC that they end up ironically bolstering the argument for a judicial commission. The wheels of justice are so beholden to the views of the judge presiding over a case that a demand for greater reform in the appointment of judges – a demand that has come to encompass working around the collegium system in some way – is bound to be made.

In September, the Times of India carried a report that quoted Justice Shah criticising the Supreme Court judgement of 2013. Justice Shah was one of the architects of the landmark Delhi HC verdict, so his disappointment in the SC verdict was not only reasonable but warranted. India’s is a rare case where a lower court took a principled and virtuous stand only to be negated by a higher court. Contrast this with the US, where the SC allowed nationwide gay marriage in June after a bevy of lower courts had refused to grant gay unions legal sanctity under the pretext that it was up to the states to frame the relevant laws. Justice Kennedy of the United States Supreme Court threw out this argument by framing marriage as a fundamental right that cannot be circumscribed by the gender of the people getting into a union.

Justice Shah’s statements focused attention on how whimsical the processes of law can be. If he had been part of the SC bench that brought back Section 377, we could have hoped for a different judgement. To add insult to injury, the text of the SC judgement referred to gays as a “minuscule minority” – a term with which SC sought to justify its discriminatory opinion on the basis of the numbers. (Even by this yardstick, though, the judgement fails, since the LGBT community is reckoned to make about 10 per cent of any society. By this logic, we are close to 120 million in India.)

A story in the August issue of the Caravan detailed the different judgments announced by two judges in quite similar cases, with one leading to the death penalty and the other not. Clearly, judges’ bias is as much an element in the dispensing of justice as other, more objective criteria. And while this may be accepted as asystemic evil otherwise, perhaps the system does need an overhaul in the case of essential human rights.

The SC, in its NJAC verdict last week, took issue with the granting of veto powers to eminent persons in the appointment of judges. “The sum and substance of this discussion is that in principle, there can be no objection to consultation with eminent persons from all walks of life in the matter of appointment of judges, but that these eminent persons can veto a decision that is taken unanimously or otherwise by the Chief Justice of India (in consultation with other judges and possibly other eminent persons) is unthinkable… it confers virtually a monarchical power on the eminent persons in the NJAC, a power without any accountability,” Justice Lokur said.

When justice under the present system remains as susceptible to subjective biases, it is worth questioning Justice Lokur’s apprehensions. Who is to say that the presence of eminent persons on the appointment panel will not have a salubrious effect on the quality of judges, and ergo, judgements?


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