The recent controversy about the appointment of senior advocate Saurabh Kirpal as a judge of the Delhi High Court is gaining traction, mostly because the issue has brought to the forefront a stereotypical generalization of justice. In a recent interview given to the Print, Mr. Kirpal had admitted that he had given consent for consideration of his name as a judge in the Delhi High Court back in 2017 itself. However, the Supreme Court of India deferred his name thrice. Mr. Kirpal also said that the main reason for the deferment of his name might be his sexual orientation and the fact that his partner is a foreign citizen.

The appointment of High Court judges in India is governed by a very sound convention backed by the memorandum of procedure under which for elevating an individual to the High Court, the Chief Justice of the High Court in consultation with two of his senior-most colleagues in the Court needs to recommend names for appointment to the Chief Justice of India, the Union Law Minister, the Chief Minister, and the Governor of the respective State.

The Governor or the Chief Minister could add comments on the names recommended, however, in absence of any comments received within six weeks, the Union Law Minister can presume there are no comments to be added by the Governor or the Chief Minister and can proceed. The fact that Mr. Kirpal’s name had reached the Supreme Court Collegium thrice raises questions over the report submitted by the Intelligence Bureau (IB), which collects information regarding the individual suggested for the appointment and this information is sent by the Union Law Minister to the Supreme Court collegium for its consideration. The final decision rests with the Collegium of the Supreme Court.

The fact that the name of Mr. Kirpal has been deferred thrice suggests that a flag was raised by the IB report. Chief Justice S A Bobde who was part of the Ranjan Gogoi-led collegium in 2019, the last time Kripal’s name was deferred, must be acquainted with the reason behind it. Meanwhile, CJI Bobde in March wrote to the Union Law Minister asking for clarification as to why Mr. Kirpal’s name was not being cleared. A constant narrative maintained by the Centre has been that Mr. Kirpal’s partner is a foreign national, which might lead to a conflict of interest; however, there is lack of a definitive response from the Central government.

Underlying this ambiguity is a hue of homophobic concern of the Central government. The fact that Mr. Kirpal admitted that his sexual orientation might be the reason for his non-elevation raises some serious concerns regarding the objective decision- making of the Central government, especially because it has not been very vocal about the rights of the LGBTQIA community. Whether it be the definition of marriage or the new surrogacy provisions, the Centre seems to have maintained a genderexclusive stance when it comes to the rights of non-binary gender. Thus, this issue raises questions about the intersectionality of gender identity and representation.

What lies within Mr. Kirpal’s elevation as a judge is the potential of adequate representation of a marginalized community within the legal ecosystem of India. On the contrary, the Supreme Court of India has represented its predilection towards gender- inclusiveness and non-binary gender rights, whether it be the landmark case of Navtej Singh Johar v. Union of India (2018) wherein the Court had decriminalized homosexuality because it is a direct violation of expression and right to life or whether be it the NALSA v. Union of India (2014), wherein the Court had recognized third-gender rights.

Notably, recognition of the rights of the marginalized community and their participation in the legal system will have serious repercussions on their citizenship rights. Adequate representation continues to be the backbone of a sovereign democracy, the absence of which has the capacity of deteriorating the basic structure of the Constitution. The potential of a diverse gender sitting on the bench lies in its capacity of recognizing rights that so far have stayed defunct. It is an opportunity to operationalise the silent portions of the Constitution and thus bring equity in its true sense.

Further, the Supreme Court recently had laid its elaborative opinion on indirect discrimination through Justice D.Y. Chandrachud in Lt. Nitisha v. Union of India (2021). Justice Chandrachud had said categorically that uncritical application of law might lead to exclusion, which is a clear violation of substantive equality. Keeping this as a normative basis of equality, it becomes important for us to analyze the application of substantive equality, which calls for a more conscious and accommodative application of the law. The fact is that there is a clear convention set for the elevation of judges backed by the memorandum of procedure. It becomes a condition for the central government as well as the Collegium to apply the normative condition of substantive equality while considering the name of an individual for the elevation. Further, the Supreme Court has time and again elaborated on Article 15 of the Constitution and has categorically held that the wording of Article 15, clause 1 is large enough to include ancillary cases of discrimination, the term ‘only’ used under Article 15 (1) of the Constitution does not mean that discrimination could only happen on the grounds mentioned in the clause, rather, it is inclusive of any ancillary ground of discrimination as well: sexual orientation is a part of ‘sex’ as given under article 15 (1).

Further, Article 217of the Constitution which deals with the elevation of an individual as a judge of the High Court, in all its captivating characteristics does not exclude the LGBTQIA community from being considered for the position. So, the onus shifts to the Centre and the Collegium to show a justifiable reason why an individual from a particular community cannot be given representation in the higher judiciary.

The writers are, respectively, an Advocate of the Supreme Court of India and an Assistant Professor, National Law University, Jabalpur.