Should It Matter to Your Employer If You’re Gay? Why Then is Delhi HC Lawyer’s Elevation as Judge Delayed?

In September 2018, the Supreme Court of India struck down the archaic, colonial-era Section 377 — a law that criminalised homosexuality and equated same-sex relations with bestiality and other “unnatural” acts. Along with the momentous judgment years in the making, an SC bench headed by then Chief Justice Deepak Mishra made a strong statement on the dignity and autonomy of all citizens, deeming the regressive law as contrary to constitutional freedoms. Justice Indu Malhotra, in a memorable speech, said that history owes the LGBT+ community an apology.

It was a triumph for queer Indians and their allies, as well as for lawyers Menaka Guruswamy and Arundhati Katju, who fought hard to make the case against Section 377 and then revealed after the verdict that they themselves are a couple. The glass ceiling for openly LGBT people in the judiciary should have been shattered that day. So three years on, why does Delhi High Court lawyer Saurabh Kirpal believe he is facing discrimination on the basis of his sexual orientation?

A year prior to the landmark ruling on Section 377, in October 2017, Kirpal was recommended unanimously by the Delhi HC collegium for a position as High Court judge. Despite this, the SC collegium did not approve the senior advocate’s candidacy as is routine practice; instead, they placed the matter before Law Minister Ravi Shankar Prasad. Since his initial nomination, the decision to elevate Kirpal has been deferred four times, causing the process of his promotion to drag on for years. Kirpal was one of the lawyers who fought against Section 377, and has a host of other high-profile cases to his credit. He is currently representing embattled comedian Munawar Faruqui, who is facing allegations of hurting religious sentiments.

Now, CJI Bobde has asked the Centre to clarify their stance on Kirpal’s nomination so the SC collegium can go ahead with a final decision. The Centre, however, earlier claimed that intelligence agencies had red-flagged Kirpal because his partner is a European working at the Swiss Embassy. According to the Intelligence Bureau, this foreign connection could make Kirpal a security threat – a stance that provides little clarity on how exactly the diplomat might compromise our HC judgments or the nation’s safety. Perhaps that’s why Kirpal as well as other sources believe that the irregular delay has actually come down to his identity as a gay man. In an interview to ThePrint last year Kirpal said, “There was some kind of an Intelligence Bureau report, which I don’t have access to but only read about in the media, that there was some problem with my partner. So, this (non-elevation) has probably got to do with my sexuality.”

Kirpal was one of the lawyers who fought against Section 377.

While there is no way to verify that the opposition towards Kirpal’s nomination is due to his sexual orientation, the controversy does point to a larger problem that goes far beyond the courts and plagues the whole of society: the Indian employer’s propensity to make decisions based on people’s personal lives rather than their credentials.

As a 2018 report on workplace discrimination outlined, many ordinary Indians can relate to Kirpal’s sentiments that he is being unfairly treated just for who he is. For instance, women in the workplace know that job interviews often come with sexist questions about their marital status and children, along with the weight of their prospective employer’s judgments. Working mothers are written off for being more dedicated to their families than their careers, and even in 2021, bosses stereotype married women as being unable to put in long hours because they will not be “allowed” by their in-laws.

However, the discrimation does not end with gender. In India, anyone who doesn’t fit into a narrowly defined work culture can be summarily called “unsuitable” for a job. Whether you are the only one who doesn’t belong to a particular caste, or the only middle-aged candidate in a Gen-Z startup, the Indian office is unlikely to welcome you, regardless that your CV says they should.

In India, anyone who doesn’t fit into a narrowly defined work culture can be summarily called “unsuitable” for a job.

So pervasive is this mentality that even in the US, awareness of caste discrimination has hit the mainstream in recent years, as Indian-origin managers – many hailing from prestigious IIT/IIMs – have come under fire for harassing Dalit employees. Although caste is not yet a protected category, activists are campaigning for it to be added under workplace discrimination laws following a major lawsuit against tech giant Cisco alleging casteist practices. Like theplas and bhangra music, wherever Indians go, our narrow-minded views are bound to follow.

For employees who have been shunted aside professionally, the devastating cost of workplace discrimination is already clear. But for employers too, the loss of talent and skill simply on the grounds of baseless and arbitrary biases can’t be overstated. Making no space for a diverse workplace means there is no space for fresh perspectives and new ideas, leading to little opportunity for progress. Besides the LGBT+ community, Indian workplaces have a lot of apologies left pending to the people they have historically refused to consider.