• Recently, the Supreme Court Collegium reaffirmed its recommendation to appoint Saurabh Kirpal, an openly gay lawyer as a judge of the Delhi High Court.
• The Government had earlier returned the proposal on the grounds that his partner was a Swiss national and that there was a possibility of the candidate being biased.
• Faizan Mustafa, an expert in Constitutional Law has discussed this standoff between the Constitutional Morality of the Judiciary and the Majoritarian Morality of the Government in the article titled “Pride and Prejudice” published in the Indian Express on Jan 21, 2023.

How has the Supreme Court responded to the Government’s objections?

• The Supreme Court stated that Switzerland is a friendly country and no precedent or rule exists that bars people with foreign spouses from being appointed to Constitutional posts. Moreover, the R&AW report had not raised any concerns about national security.
• The Court pointed out that its judgement in the Navtej Singh Johar case(2018), which decriminalized homosexuality, held that every individual is entitled to maintain their dignity and individuality, based on their sexual orientation.
• The Collegium said that the candidate possessed the necessary competence, integrity and intellect, displayed good conduct and behaviour and would provide diversity and inclusivity in the judiciary.

Supreme Court’s verdict in the Navtej Singh Johar Case

• In the Navtej Singh Johar & Ors vs Union of India case, the Supreme Court struck down Section 377 of the IPC as unconstitutional.
• The then CJI Dipak Misra, had said that an individual may desire solitude in the exercise of his choices but it may not be imposed on him.
• The CJI called for the evolution of a more accepting and inclusive mindset in the society.
• He opined that Consitituitonal morality was not limited to the text of the Constitution but also included virtues like developing a pluralistic society.
• Freedom of choice of any section of citizens could not be restrained on the grounds that it was opposed to the perception of the majority as the Constitution was not intended to protect just the majority.
• The Court expanded the ambit of Art 15 to include the prohibition of discrimination on the basis of sexual orientation and questioned whether the government had a role in the personal relationships of citizens.

Reason behind the stalemate

• The author has said that the hesitance of the government to appoint a member of the LGBTQ community to a constitutional post is to indicate its commitment to the majoritarian morality of Indian society.
• He has also said that this could be a response by the collegium to the repeated criticism of the judicial appointments process by members of the Executive.

Constitutional Morality

• Constitutional morality implies that the democratic government should reinstate fundamental democratic principles like liberty, equality, justice, and fraternity, uphold the rule of law in its administration, and alter the preamble''s ideals in order to create a more dynamic social, economic, and political system based on democratic principles.
• Constitutional morality is thought to be the highest form of respect for the constitution.
• Constitutional morality offers a moral framework to the government in the discharge of its duties.
• It outlines the standards that must be adhered to in order to continue functioning, as well as the conduct expected to uphold the Constitution in letter and spirit.
• It also demands accountability from the executive branch and its representatives.
• The various dimensions of Constitutional Morality include:
• Constitutionalism
• Rule of Law
• Basic Structure of the Constitution
• It ensures the establishment of the rule of law in the country in line with the evolving goals and values of society.
• As a guiding principle, it highlights the significance of maintaining public confidence in democratic institutions and encourages cooperation and coordination among citizens in order to advance constitutional ambitions.
• Through rules and regulations, constitutional morality can affect and transform prevailing social morality.
• The Supreme Court''s loose definition of constitutional morality''s scope and extent leaves it open to the discretion of judges'' interpretations.
• Critics contend that the idea of constitutional morality is merely one more step in the judiciary''s campaign to undermine the authority of Parliament.