Centre’s Failure to Clear Saurabh Kirpal as HC Judge is an Act of Unlawful Discrimination

There are strong reasons why the Supreme Court’s next collegium – to be headed by Justice N.V. Ramana – should call the Centre’s bluff, and ensure Kirpal’s elevation without further delay.

New Delhi: Article 15 of the Indian constitution prohibits discrimination on grounds of religion, race, caste, sex or place of birth.

The state, specifically, is enjoined by Article 15 (1) not to discriminate “against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”

Can the word “only” as used in this provision imply that discrimination on these five listed grounds alone is to be restricted? And that if discrimination on any of these listed grounds is accompanied by “classification” on other unlisted grounds, will the bar under Article 15(1) still apply?

If the answer to the first question, available in the latest judgments of the Supreme Court, is a clear ‘no’, the answer to the second question will undoubtedly be ‘yes’.  Yet, the Centre, while sitting on the Delhi high court collegium’s October 2017 recommendation to elevate senior advocate Saurabh Kirpal as a judge of the court, appears to rely on the word “only” in Article 15(1) to justify its conduct.

Kirpal faces dual discrimination at the hands of the Centre: first because of his sexual orientation as a gay person; second, on the ground that his partner is a foreign national – a Swiss human rights activist, Nicolas Germain Bachmann. It is hard to see how these two grounds, independently or together, could pass the Article 15(1) prohibition on discrimination.

Chief Justice of India S.A. Bobde has reportedly written to Union law minister Ravi Shankar Prasad, giving him “four weeks to clear the air” about whether the matter is pending because of Kirpal’s sexual orientation. As Justice Bobde is set to retire on April 23, one can well presume that he must have written to Prasad well in advance to enable him to consider Kirpal’s elevation to the high court before the CJI retires. With the appointment of Justice N.V. Ramana as the next CJI by the president on April 6, propriety will require CJI Bobde not to hold any more meetings of the collegium during his last days in office.

Ball in Supreme Court’s Collegium’s court

According to the memorandum of procedure (MoP) for appointing high court judges, the proposal for appointment of a judge is initiated by the chief justice of the high court, after consulting two of his senior colleagues.

The high court chief justice is then expected to simultaneously mark copies of his proposal to the CJI, the Union law minister, the state chief minister and the governor to avoid delay. In this, the role of the Delhi lieutenant governor, as advised by the Delhi chief minister, to forward the high court chief justice’s recommendation is just a formality. If comments are not received within six weeks from the date of receipt of the proposal from the high court chief justice, the Union law minister should presume that the LG has nothing to add to the proposal, and proceed accordingly.

Also read: CJI Bobde Needs to Know That Goa Family Laws Are Not All Uniform or Equal

The Union law minister considers the recommendation in the light of “such other reports” as may be available to the government on the names under consideration. The complete material is then forwarded to the CJI for his advice. The CJI then calls a meeting of the three-member collegium of the Supreme Court to form his opinion about the choice.

Given this clear procedure, it is intriguing why CJI Bobde has written to Prasad asking for the reasons behind Kirpal’s non-elevation. As the MoP makes it clear, the ball is clearly in the Supreme Court collegium’s court. It is reasonable to presume that Prasad’s office must have sent the complete material on Kirpal along with “such other reports” to the CJI to enable the collegium to take an appropriate decision.

According to a report by Bhadra Sinha of The Print, Kirpal agreed to be nominated on April 22, 2017, four days after he turned 45, and the Supreme Court collegium discussed his name three times, “found no inadequacies in his candidature and yet took no final call on his appointment”.

Kirpal himself hinted at the possible reason last year, when he referred to an Intelligence Bureau report – which he did not have access to – indicating some problem with his partner. “This non-elevation has probably got to do with my sexuality,” he had said then.

If the Supreme Court collegium had earlier deferred a decision on Kirpal not once, but three times, surely CJI Bobde knew the reason, as he himself was part of the collegium, led at the time by the then CJI, and now Member of Parliament, Ranjan Gogoi. The Gogoi-led collegium last discussed Kirpal’s elevation on April 1, 2019.

If the government (or indeed the collegium) has not cleared Kirpal’s name because of reservations about his sexuality or the nationality of his partner, the law as it stands today offers them no refuge.  On this, there is no scope for ambiguity.

Jurisprudential shift

Much water has flowed since the Calcutta high court’s 1951 judgment in Sri Mahadeb Jiew v Dr.B.B.Sen. In that case, the Civil Procedure Code’s distinction between resident males and resident females who did not have sufficient immovable property was under scrutiny. The high court held that if other factors in addition to sex come into play in making a discriminatory law, then such discrimination does not come within the prohibition envisioned by 15(1).

This interpretation held the field for three decades and was even upheld by the Supreme Court in Air India v Nergesh Meerza, (1981). In that case, Regulations 46 and 47 of the Air India Employees Service Regulations were challenged for causing a disparity between the pay and promotional opportunities of men and women in-flight cabin crew. Under Regulation 46, while the retirement age for male flight pursers was 58, air hostesses were required to retire at 35, or on marriage (if they married within four years of joining service), or on their first pregnancy, whichever occurred earlier. This period could be extended on the absolute discretion of the managing director. Even though the two cadres were constituted on the grounds of sex, the court upheld the regulations in part and opined that Articles 15(1) and 16(2) prohibit discrimination only and only on the ground of sex. They do not prohibit the state from making discrimination on the ground of sex coupled with other considerations.

However, in 2018 the Supreme Court held – in Navtej Singh Johar  – that this formalistic interpretation of Article 15 would render the constitutional guarantee against discrimination meaningless.

The court spelt out its reason:

“For it would allow the State to claim that the discrimination was based on sex and another ground (‘Sex plus’) and hence outside the ambit of Article 15.   Latent in the argument of the discrimination, are stereotypical notions of the differences between men and women which are then used to justify the discrimination.   This narrow view of Article 15 strips the prohibition on discrimination of its essential content.  This fails to take into account the intersectional nature of sex discrimination, which cannot be said to operate in isolation of other identities, especially from the socio-political and economic context. For example, a Rule that people over six feet would not be employed in the army would be able to stand an attack on its disproportionate impact on women if it was maintained that the discrimination is on the basis of sex and height.  Such a formalistic view of the prohibition in Article 15, rejects the true operation of discrimination, which intersects varied identities and characteristics.”  (Paragraph 388)

In paragraph 393 of the same judgment, the Supreme Court held that if any ground of discrimination, whether direct or indirect, is founded on a stereotypical understanding of the role of the sex, it would not be distinguishable from the discrimination which is prohibited by Article 15 on the grounds only of sex.

Justice D.Y. Chandrachud, who authored this judgment, applied the same reasoning later that year while upholding the right of women to worship at Sabarimala in Indian Young Lawyers Association and Others v the State of Kerala.

In Anuj Garg v Hotel Association of India, (2008), the Supreme Court grounded the anti-stereotyping principle as firmly rooted in the prohibition under Article 15. In this case, Section 30 of the Punjab Excise Act, 1914 which prohibited the employment of women (and men under 25 years) in premises where liquor or other intoxicating drugs were consumed by the public, was under challenge. The court stuck down the law as suffering from “incurable fixations of stereotype morality and conception of sexual role”.

In National Legal Services Authority v Union of India, (2014), the Supreme Court, while dealing with the rights of transgender persons under the Constitution, opined:

“Articles 15 and 16 sought to prohibit discrimination on the basis of sex, recognising that sex discrimination is a historical fact and needs to be addressed. Constitution makers, it can be gathered, gave emphasis to the fundamental right against sex discrimination so as to prevent the direct or indirect attitude to treat people differently, for the reason of not being in conformity with stereotypical generalisations of binary genders. Both gender and biological attributes constitute distinct components of sex. Biological characteristics, of course, include genitals, chromosomes and secondary sexual features, but gender attributes include one’s self image, the deep psychological or emotional sense of sexual identity and character. The discrimination on the ground of sex under Articles 15 and 16, therefore, includes discrimination on the ground of gender identity.”

In Naz Foundation v Delhi  Administration, the Delhi high court introduced the ground of ‘sexual orientation’ as an analogous ground under Article 15(1), challenging the view that Article 15(1)’s five grounds are exhaustive.

As Shreya Atrey has argued, Article 15(1) does not imply that ‘only’ can be interpreted to mean discrimination on just one ground, as such an argument lacks a justifiable basis.

According to her, the word ‘only’ in the Article, therefore, can be interpreted as meaning ‘simply’, ‘merely’, ‘exclusively’ or ‘just’, such that it relates to the inadequacy or inappropriateness of certain grounds being invoked as the basis of discrimination.

In other words, the Article is understood as emphasising the causative element in discrimination, that is, something is discriminatory because it is based on certain grounds. The phrase ‘or any of them’ occurring in the Article is a clear indication that it covers multi-ground discrimination within its ambit. The Article indicates that the basis of discrimination can be any of the grounds, alone or in some combination, but the bar will apply.  The Article, contrary to what one would assume by a flawed reading, recognises discrimination on more than a single ground, and bars it, along with discrimination based on a single ground.

Lessons from the US

The Centre as well as the Supreme Court may well find in Saurabh Kirpal’s selection as a high court judge an opportunity to learn from recent jurisprudence in the United States.

Title VII of the 1964 Civil Rights Act bars discrimination in employment on the basis of race, colour, religion, sex, and national origin. It was enacted by the US Congress to address the pervasive problems of employment discrimination and to ensure that, among the other enumerated characteristics, an employee’s “sex” was not relevant to their selection, evaluation, or compensation.

In Bostock v Clayton County, the US Supreme Court held in a 6:3 decision last year that an employer violates Title VII when it intentionally fires an individual employee based in part on sex. Gerald Bostock was a gay man from the state of Georgia who was fired from his job in 2013.

“It doesn’t matter if other factors besides the plaintiff’s sex contributed to the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group,” Justice Neil Gorsuch, who penned the majority opinion in that case, wrote.

Justice Gorsuch adopted a simple test to determine whether an employment decision was made “because of sex”.  If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee – put differently, if changing the employee’s sex would have yielded a different choice by the employer – a statutory violation has occurred, he explained. To him, Title VII’s message is simple but momentous: An individual employee’s sex is “not relevant to the selection, evaluation, or compensation to employees”.  The words “sex” and “sexual orientation” and sex and “transgender status” are inextricably intertwined, the US Supreme Court found in this case.

The court’s hypothetical explained it succinctly thus:

“Consider, for example an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman.  If the employer fires the male employee for no reason other than the fact that he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.”

The analogy between Bostock and Saurabh Kirpal is striking: one was fired and another was not selected for a position on the ground of their sexual orientation. While Justice Gorsuch conceded that “homosexuality and transgender status are distinct concepts from sex”, he added that “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second”.

In Bostock, the US Supreme Court bended to reality on LGBTQ rights, with two conservative judges joining with the liberals to form a solid majority on the bench. It was because the expansion of LGBTQ rights was one of the factors which helped the US Supreme Court enjoy highest public confidence. Today, the public confidence enjoyed by the Indian Supreme Court may be very high, but its credibility has often come under severe stress because of its inability to safeguard its independence from the executive. By recommending Saurabh Kirpal for appointment as a judge of the Delhi high court despite the objections or reservations of the government, the Supreme Court collegium may well enhance its credibility in the eyes of the public.

Red herring of foreign partner or spouse

If it really wants to, the next Supreme Court collegium – comprising CJI-designate N.V. Ramana, Justices R.F. Nariman and Uday Umesh Lalit as the three senior most judges – will not find it hard to call the bluff of the Centre’s unstated reason for not selecting Kirpal.

While the law minister may be wary of objecting to the sexuality of an individual in writing, it is being claimed that members of the higher judiciary cannot have spouses or partners who are foreign citizens. Apart from Kirpal, The Wire has learned that a highly regarded lawyer was recently denied a judgeship because her spouse is not Indian.

Leaving aside the obvious questions of morality, constitutionality and logic that such an objection raises, it would be strange to penalise Kirpal and others when the nationality of a spouse has not stood in the way of earlier judicial appointments.

The former chief justice of the Patna high court, Ravi S. Dhawan, who held office from 2000 to 2004, was married to a citizen of the United States who retained her American passport. Surely, the Centre needs to follow some consistency based on convincing reasoning when it comes to deciding who should be our judges, rather than giving in to prejudice and xenophobia.