‘Immoral thing’: Row erupts after high court judge’s homophobic remarks
“Is this a queer couple matter?...take this immoral thing back where it came from,” the judge remarked in the open court, throwing the file
History owes a debt to members of the Lesbian, Gay, Bisexual and Transgender (LGBT) communities for the delay in providing redressal for the ignominy and ostracism they suffered through centuries, the Supreme Court had held five years ago as it decriminalised homosexuality, affirmed the rights of the community, and asked the government to sensitise all stakeholders to stop discrimination.
Punjab and Haryana high court judge, justice Pankaj Jain, apparently didn’t get the memo.
The judge, who joined the high court bench in 2021, stoked a controversy on Friday when he reacted sharply to a case of a same-sex couple before him. The petition was filed by a 23-year-old woman, who said that her 19-year-old partner was being held captive by her parents in Uttar Pradesh, one of a bevy of similar petitions that have been adjudicated favourably by high courts across the country, and even the apex court.
But justice Jain flew into a temper.
“Is this a queer couple matter?...take this immoral thing back where it came from,” the judge remarked in the open court, throwing the file.
When the petitioner’s lawyer attempted to interject, the judge cut her off. “Madam I don’t subscribe to the theory that constitutionality and morality are different,” justice Jain said.
An order released later in the day said that the next hearing was fixed for January 15.
“On the mentioning of the counsel representing the petitioner, the matter has been taken up. On being asked as to how the petitioner has assumed the role of the next best friend of the alleged detenue who belongs to district Unnao, Uttar Pradesh, counsel for the petitioner refers to transcription of telephonic conversation between the detenue and mother of the petitioner. On being asked that apart from the said conversation what material petitioner has to demonstrate that the petitioner is a person who can act as next best friend of detenue, counsel for the petitioner prays for time,” the order read.
The petitioner’s lawyer refused to comment on the issue.
But the judge’s juxtaposition of constitutionally protected rights of same-sex people and his personal morality sparked condemnation.
“The incident, if true, should not have occurred. The queer community is heavily relying on the judiciary to get their rights. Judiciary is their last resort because since the 2018 Navtej Singh Johar judgment, legislature has done very little to reform the system,” said advocate Maninderjit Singh.
The British outlawed homosexuality in colonial India with section 377 of the Indian Penal Code, which criminalised “carnal intercourse against the order of nature” with punishment up to 10 years in jail and a fine. The Delhi high court first decriminalised homosexuality in 2009, before the apex court set aside that order in 2013.
Five years later, in a watershed verdict, a Constitution bench of the apex court unanimously read down section 377, saying that the criminalisation of sex between consenting adults violated Articles 14 (equal protection before the law), 15 (no discrimination on the grounds of religion, race, caste, gender, or place of birth), 19 (freedom of speech), and 21 (protection of life and liberty) of the Constitution.
In his concurring verdict, justice Dhananjaya Y Chandrachud, then a member of the bench and now Chief Justice of India, decried pervasive discrimination against members of the LGBT community.
“Individuals belonging to sexual and gender minorities experience discrimination, stigmatisation, and, in some cases, denial of care on account of their sexual orientation and gender identity….their exclusion, discrimination and marginalisation is rooted in societal heteronormativity and society’s pervasive bias towards gender binary and opposite-gender relationships,” he held.
Friday’s developments hinted that even some sections of the higher judiciary were not immune from this bias.