A Deadlock that Threatens LGBTQ+ Lawyers, Advocates, and Especially Law Students

The Government of India, be it this one or its predecessors, has ceaselessly let down the LGBTQIA+ community. The Supreme Court of India empowered the queer folks on 6 September 2018 by decriminalizing homosexual intercourse between consenting adults in the landmark case of Navtej Singh Johar v. Union of India. The Government of India, on the other hand, has constantly been harsh on the queer community, be it through the regressive Transgender Persons (Protection of Rights) Bill, 2019 or by the removal of the gender-neutral module, meant to sensitize teachers towards gender non-confirming students, by the National Council of Education Research and Training (NCERT) in November 2021. But this time the Centre has pointed swords towards the LGBTQIA+ people in the law fraternity, especially law students, unknowingly. The deadlock on the appointment of the Delhi-based openly gay senior advocate Saurabh Kirpal as a High Court Judge by the Centre on recommendation of the Supreme Court Collegium, comprising of the Chief Justice of India N.V. Ramana and the four senior-most Supreme Court Judges in line, poses a sense of fear among LGBTQIA+ judiciary aspirants.

Who can be a High Court Judge?

The qualification to hold the office of a High Court Judge is given in Article 217(2) of the Constitution of India.  Article 217(2) reads:

“A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and

(a) has for at least ten years held a judicial office in the territory of India; or

b) has for at least ten years been an advocate of a High Court or of two or more such Courts in succession.”

So, does Mr. Kirpal check these qualifications? To put a long story short, he does with no exceptions. Then why has been the government been wary of appointing him? Why did it take four years for the Supreme Court to come to conclusion since his candidature was presented the first time?

Why is the Centre Wary of Saurabh Kirpal’s Elevation?

The Supreme Court has deferred four times on his elevation – 4 September 2018,  16 January 20191 April 2019 and 2 March 2021. Since the criteria on which the merit of a candidate for the judge of a higher court is gauged is unrevealed and debating on the opacity of the Collegium System can be saved for some other day, the reason for the delay on his recommendation is not speculated. The influence of the Government seems to be the only reason when there are no other reasons to point to. The Centre maintained the stand, both after a 2018 background check and when responding to the then CJI S.A. Bobde’s concern over the stand of the Law Ministry in April 2021, that since Mr. Kirpal’s partner is a foreign national it poses “conflict of interest” and “security concerns”.

What is Conflict of Interest? When does it Arise?

While there is no law in India that deals with management of conflict of interest, it has often found its mention in acts, bills and judicial interpretations. A conflict of interest for a public official can be accepted to be a conflict between the workplace/public duties of the official and the private interests of the public official. This conflict may incapacitate the decision-making capabilities of the public servant. But in India there is no law that lays down the criteria and ground of conflict of interest. Thereby, the phrase can be very loosely used and molded as per convenience. Similar is the case with the recommendation of Saurabh Kirpal. The government gave no rationale behind how exactly a conflict-of-interest arise by having a partner who is a foreign national.

The country has had ministers and Members of Parliament (“MPs”) who have had spouses and partners hailing from other countries. For example, during his term as the Minister for External Affairs, Dr. Shashi Tharoor was associated with a Canadian citizen, working as a diplomat in the US, in a matrimonial alliance. How does having a partner of foreign origin affect one’s service to public office? And if it does, why did it not have any effect in Dr. Tharoor’s case one government ago?

Often, due to the dearth of any provision or law, a tussle between interests could not have been legally identified while conflicting interests were visible right in front of naked eyes. For example, in the economic fugitive offender Nirav Modi’s case, it was heavily debated if the then Minister for External Affairs Smt. Sushma Swaraj would face any conflict in interests while dealing with the offender’s case for her daughter worked as a junior lawyer under Modi’s lawyer.

Throughout the 2010s “cricket in India and conflict of interest” were the spouses everyone wanted to separate. Board of Control for Cricket (BCCI) v. Cricket Association of Bihar & Others was the most prominent case that had the nation’s attention. The Supreme Court not only gave a judgement on whether the BCCI is an instrumentality under State, but it also underlined the soaring conflict of interest of certain members at key positions of BCCI. The fumes of the soup can still be sensed when time and again the name of Saurav Ganguly appears in columns of newspapers. The “BCCI-IPL conflict of interest” phrase kept and keeps looming every now and then as well.

Therefore, the question arises – where are we drawing lines for different public offices? Do conflicts of interest arise at different times for different public offices?

These are certain questions and aspects that are worth pondering by the legal fraternity because “conflict of interest” should not be blatantly and irresponsibly used by the government arbitrarily. That is why it becomes all the more important to have a law that stipulates what leads to conflicting interests, their grounds and their criteria while performing duty as a public officer. A disclosure, as to what may lead to be deemed to be a conflict of interest, through a statutory passage would bring transparency within the “system”. In that way no machinery of the state would be able to use such a loose term just to treat to its whims and fancies. Accountability of the machineries will augment because in order to officially use the term, the respective machinery will have to consider and consult the law. Naturally, arbitrariness will systematically drum out.

This is not the first time that the legal fraternity is at hand fists with this open-ended phrase. Another tussle with this phrase is within the legal fraternity itself.  Whenever judicial appointments of higher courts are talked about post the Three Judges Case, the discussion of the Collegium System is attached with accusations of calling it an inhibitor of merit, manufacturing an “imperium in imperio”, precipitating opacity and latently giving spaces to borne conflicts of interest. For the moment if we consider the last accusation, we will realize that factors like nepotism, friendships, personal prejudices, etc., can pollute the decisions of recommendations. Further, a National Judicial Appointments Commission would not have made much difference. ‘Conflict of interest’ would still have remained in a hidden abbey, ready to be used whenever pleased. In fact, keeping the current ‘political psyche’ in mind, an involvement of political actors would have meant closing doors for diversity in judicial appointments.

What to Expect Next? Will the Centre Violate the Memorandum of Procedure, Yet Again?

The Government is known to mischievously remain inert and candidly reject the recommendations of the Supreme Court Collegium. A sluggish development was observed as CJI Ramana pointed out the deadlocks created by the Centre by not approving the recommendations, but it was only transient.

Likewise, the Centre is expected to throw a nefarious shade, and sadly yet again. According to the Memorandum of Procedure the recommendations are supposed to be binding, but Centre has often sent the recommendations back. For example, the Law Ministry had sent back two names in August 2021 despite the SC Collegium’s reiteration. With the soaring vacancy crisis at the High Courts, the Centre’s silence and rejections, which are violations, if reiterated, are proving to be something more than counter-productive. Justice is not only getting delayed to the marginalized, but judiciary is also getting handicapped at the hands of Centre. Heavy vacancies at the courts, purely because the recommendations are not a political fit is at the expense of the nation’s judicial independence and division of power.

It will not be surprising if Kirpal’s name is also rejected or no development is made in the due process. For that matter, that is what should be expected.

How is this Expected Non-Approval Different? How does it Bother Judiciary Aspirants and Young Law Students?

But this time, the shelving or non-approval will have a different toll. LGBTQIA+ law students and judiciary aspirants are anxious by this bigotry of their government. They are anxious if they will not have a career as a public law officer solely because of their biology.

Biology is a branch of science. Science is something which is predictable, factual and based on cause-and-effect relation. Rejecting someone’s sexual orientation and preferences, and gender identity is undeniably unscientific.

It is crystal clear that neither it is any “conflict of interest” nor any “security concern” that is a factor leading to the resent manifested by the Centre. It is apparent that the senior advocate’s sexual orientation that bothers them. Although the State has got out of the beds of individuals (after the draconian Section 377 of the Indian Penal Code was repealed), the government certainly has no intentions to let the community feel the same.

This article is authored by Prakhar Arora, student at Five Year Law College, University of Rajasthan.

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