Appointment to high offices in India
Markandey Katju 31 Oct 2022

A lawyer based in Delhi with a good law practice was recommended by the Indian Supreme Court Collegium in November 2021 for being appointed as a judge of the Delhi High Court. Ordinarily when the Supreme Court Collegium, which is a body of 3 seniormost Supreme Court judges headed by the Chief Justice of India, recommends someone for appointment as a High Court judge, the Government of India accepts the recommendation and the appointment is made.
However, when the government did not make the appointment for a long time I asked a sitting senior Supreme Court judge for the reason. He said that the reason why the government was not willing to accept the recommendation was because the lawyer was openly gay.

Now in Navtej Singh Johar vs Union of India, a verdict delivered in 2018, the Supreme Court decriminalised gay sex, and declared that a gay person enjoyed all the rights available to others, including the right to equality. It logically followed that a person could not be denied appointment as a judge just because he was gay.

Nevertheless, the Indian Govt was not willing to appoint a gay person, even though he had been recommended by the Collegium of the Delhi High Court as far back as in 2017, and the recommendation had been approved by the Supreme Court Collegium. The appointment has yet not been made, and it is doubtful it will ever be made.

When I was Chief Justice of Delhi High Court, I was inclined to recommend a lawyer having a good practice and good reputation for appointment as a judge of the Delhi High Court. However, the recommendation for appointment as a High Court judge has to be made by a Collegium of 3 senior most judges of the High Court, including the Chief Justice, but not by the Chief Justice alone. One of my 2 colleagues in the Collegium strongly opposed my proposal, saying that the lawyer was in an open live in relationship with a lady lawyer. Consequently the recommendation could not be made.

These instances show the difference between values in India and Western countries. In Western countries, the fact that a person is gay, or in a live in relationship, would be irrelevant for appointments to high offices under the state. In India, and probably in most underdeveloped countries, the situation is otherwise. In India gay sex or live in relationship is not a criminal offence, nevertheless, it is unlikely that an openly gay person, or a person in an openly live in relationship, will be appointed to high offices, e.g. as a Minister, a Judge, or a bureaucrat. 

This is because though the law in India has been largely modernised, and we have a Constitution granting modern rights ( personal liberty, equality, freedom of speech, freedom of religion, etc ), Indian society is still largely conservative. For instance, though gay relationships are now legal (after Navtej Singh Johar's case), most Indians still frown on it, and on live in relationships. Many regard them as totally abhorrent.
Consequently there were, and are, no gay judges in the Indian judiciary.
This is unlike the situation in Western countries, where many gay persons are judges

Similarly, in Western countries, the fact that one is in a live in relationship will not be a ground for denying him/her appointment as a judge, if the person is otherwise qualified and deserving. In India, however, it is very unlikely that a person in a live in relationship will be appointed as a judge, however qualified and deserving he/she may be.
And this situation is likely to continue for a long time to come.

By Justice Markandey Katju, former Judge, Indian Supreme Court
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