In the last decade, we’ve seen significant and progressive changes concerning the rights and acceptance of the LGBTQIA+ community in the judicial space. There were a good number of laws and policies that were either being enacted or repealed to protect queer and transgender individuals. Time and again, we see individuals and a handful of politicians filing petitions in the court of law or submitting bills in front of the Parliament House.
These stories in the media keep bringing up the conversations around gender identities and sexual orientations, helping to “normalize” the need for acceptance of the same. While it is great to see all this from the judiciary, the lack of queer representation in the judiciary can be the reason why we don’t see even more changes and shifts or much stronger judgments. It is often argued that the judiciary, being the embodiment of justice, falls behind in being
Although the judiciary is the fourth pillar of democracy and the embodiment of justice, it does fall behind when it comes to being proactive in wanting to include individuals belonging to the queer community in the judiciary. One example is when an openly gay senior advocate, Saurabh Kirpal, was recommended for elevation to the Delhi High Court by the Supreme Court collegium led by Chief Justice NV Ramana. He was first recommended in 2017.
The whole issue has been loaded with controversy for years now due to the union government’s preliminary objections because of his sexual orientation and also on the ground that his partner is a foreign national, Nicolas Germain Bachmann, a Swiss human rights activist. They had flagged their partner as a “potential security risk.” Then, while talking to HT in 2020, Kirpal acknowledged that his sexuality could be the reason behind the Supreme Court collegium deferring the decision as well as the government’s raising objections.
The Supreme Court of India, back in September 2018, read down Section 377 of the Indian Penal Code. Reading down meant, that sex between same-gender people is not criminalized anymore, and yet, how Kirpal’s situation was handled may suggest how the judiciary continues to discriminate against people from the LGBTQ community even within the judiciary system. One milestone he did cross was to be the first gay judge of the Delhi high court.
Aside from Saurabh Kirpal’s recommended-but-not-appointed situation, in 2017, Mondal became the first transgender judge of a Lok Adalat from WB. She attended office as judge of a Lok Adalat at Islampur in North Dinajpur. A little after that In 2018, we saw Sathyasri Sharmila become India’s first transgender lawyer. Hailing from Tamil Nadu, her journey wasn’t an easy one! Then in 2019, we’ve had Menaka Guruswamy and Arundhati Katju making history by coming out as a couple becoming the only openly gay women lawyers in India.
The road to acceptance is never an easy one and for the LGBTQ+ community it’s been gradual yet significant strides toward becoming a more inclusive society. With more and more people ‘coming out’ the systems, including the government and the legal system would need to come up with steps to be an inclusive system themselves!