“History owes an apology to the members of [the LGBT] community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries. The members of this community were compelled to live a life full of fear of reprisal and persecution. This was on account of the ignorance of the majority to recognise that homosexuality is a completely natural condition, part of a range of human sexuality. The mis-application of this provision denied them the Fundamental Right to equality guaranteed by Article 14. It infringed the Fundamental Right to non-discrimination under Article 15, and the Fundamental Right to live a life of dignity and privacy guaranteed by Article 21. The LGBT persons deserve to live a life unshackled from the shadow of being ‘unapprehended felons’.”
This is an extract from the September 2018 verdict of the Honourable Supreme Court of India that decriminalized consensual sexual relations among adults of any gender. It could well be the most referenced extract from the 493 pages long document. It could also be the one that gives rise to the most disenchantment in many a queer Indian’s mind.
In a somewhat predictable turn of events, the ‘apology’ owed to queer Indians and their families is still trying hard to ‘come out’ from the pages of the verdict into day-to-day life – even when the Supreme Court itself is trying to set a progressive example for the rest of the polity to follow. The central government’s unwillingness to accept the Supreme Court’s recommendation for the appointment of senior advocate Saurabh Kirpal as a judge of the Delhi High Court is a case in point.
Recently, the Supreme Court revealed details of the objections raised by the Ministry of Law and Justice, Government of India to the appointment of Kirpal as a judge. The government seems to have problems with his being open about his sexual orientation, his having a same-sex partner who is a foreign national, and his being engaged with the cause of queer rights. In the government’s opinion, all these aspects mean Kirpal is likely to lack objectivity in his work and therefore make him unfit to be a judge.
Thankfully, the Supreme Court is sticking to its stand and reiterating its recommendation in favour of Kirpal. It means a lot that the highest court in the land is unambiguously driving home the point that a person’s gender or sexuality have got nothing to do with their professional abilities.
Kirpal himself has explained astutely why the government’s ‘fears’ are unfounded. He makes a strong and humane argument that no one, including judges, can be completely divorced from their upbringing, social milieu, conceptions, and ideas, and that this needn’t be seen as a weakness. Diverse backgrounds and lived experiences in any institution are likely to lead to richer thinking, and better decisions and outcomes.
He’s also pointed out at the predominance of upper caste, heterosexual men in the Indian judiciary. Indeed, if the government is worried about Kirpal’s sexual orientation, why isn’t it concerned about the ‘male and heterosexual bias’ of the other judges? Or is that bias ‘natural’, ‘justified’ and in keeping with India’s ‘culture’?
Moreover, what if Kirpal hadn’t been open about being gay? Would that have reduced his so called bias as a ‘gay judge’? He could still be ‘pro-queer’ in his rulings on the sly so to speak, couldn’t he?
Then again, what if some of the current judges come out as queer in the years to come? Will their past verdicts in matters related to gender, sexuality, privacy and so on become suspect in the eyes of the government on the grounds of objectivity? This is something for the Indian judiciary also to think about – as a place of work, is it prepared with an inclusive environment that welcomes gender and sexuality diversity in its human resources?
On the point of coming out as queer, a lot of the debates seem to miss one point. How long will the onus of coming out be on the queer individual, when it’s society that creates the ‘need’ to come out in the first place? When will all of us – parents, siblings, friends, communities, institutions, governments – learn to ask respectfully what the person across us desires instead of putting inhuman pressure on them to tell us at the risk of losing everything?
When will we come to terms with our collective G-spot and become kinder and freer as a society? If that happens, won’t that be the best apology that the Supreme Court hoped to deliver?