Having sent the LGBT community back into the closet by re-criminalising homosexual acts, the Supreme Court tried to argue that Centre might object to appointment of a gay judge.
“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,” justice Madan B Lokur said.
In the last 22 years, the SC collegium never appointed an openly gay judge while many countries, including the US, Canada, UK, Australia, New Zealand, and South Africa have had LGBT judges.
The top court’s conservative mindset could be gauged from its December 2013 verdict overturning the Delhi high court’s decision to water down Section 377 of the Indian Penal Code — a law framed in 1860 that criminalises consensual sex among adult homosexual men.
Senior advocate Harish Salve on Saturday termed it a case of “judicial underreach” as the SC asked the LGBT community to go to Parliament to change the law, instead of declaring it unconstitutional.
The SC collegium chose not to elevate justice AP Shah — who wrote the Delhi HC verdict in Naz Foundation case to de-criminalise homosexual acts between consenting adults in private.
Salve told a TV channel that there were judges who were so conservative that they would “fall off their chairs” at the mention of the word homosexual.
Justice Lokur said: “The present political executive in India would perhaps not permit the appointment of a gay person to the bench.”
Salve rejected it saying, “I have met civil servants and politicians of great vision. We cannot stereotype executive like this.”