On March 11, a significant judgment was delivered by the Supreme Court of India in regards to habeas corpus writ petitions and police protection pleas filed by couples in Courts. These pleas, which are usually filed by couples exercising their right to choose, urge judicial intervention as they face societal stigma and fear to life from families. While dealing with a particular matter concerning a petition filed by a woman against a Kerala High Court order which, while considering a habeas corpus petition, directed her alleged lesbian partner to undergo counselling. Taking exception of the directions issued by the High Court in its order, the Supreme court deemed such directions to torment the members of the LGBTQ+ community, having the potential to have deterrent effects.
The Supreme Court bench comprising CJI DY Chandrachud and Justices JB Pardiwala and Manoj Misra then issued directions that the courts shall be required to following while dealing with such cases. The bench emphasised that having an empathetic approach while hearing a habeas corpus petition or police protection plea is essential. Notably, the guidelines give special emphasis on the need for queer-sensitive conduct of the court and the judge when habeas corpus petitions or police protection is moved by members belonging to the LGBTQ+ communities.
CJP is a huge supporter of equal rights for people of all sexes, genders and sexualities. We believe Love is Love! To know more about CJP’s commitment to spreading awareness about the LGBTQIA community, please join us and become a friend. You can also support us by tweeting with #AbkiBaarEqualPyaar to keep the #JungJaari for Equal Rights.
While the guidelines issued by the Supreme Court bench majorly death with queer-couples, the bench had also directed the courts to acknowledge the hardships and social stigma faced by inter-caste and inter-faith couples while dealing with pleas of police protection and habeas corpus and grant them interim relief.
“Therefore, a court while dealing with a petition for police protection by intimate partners on the grounds that they are a same sex, transgender, inter-faith or inter-caste couple must grant an ad-interim measure, such as immediately granting police protection to the petitioners, before establishing the threshold requirement of being at grave risk of violence and abuse. The protection granted to intimate partners must be with a view to maintain their privacy and dignity;” (Para 16)
Case before the Kerala High Court:
Brief background: The writ petition for habeas corpus was moved by a woman to the Kerala High Court in regards to her lesbian partner. It was alleged in the writ petition that the partner was being forcibly kept by her parents in their custody, even when she wished to remain with the appellant.
The proceedings: On January 13, 2023, at the stage of admission, the Kerala High Court ordered the Secretary of the jurisdictional District Legal Services Authority to visit the parents of the partner allegedly forcibly kept in custody and record her statement to ascertain if she was under illegal detention. The High Court further directed that in the event that the woman is in illegal detention, the Station Head Officer of the jurisdictional Police Station must ensure that the woman is produced before the Secretary, DLSA to facilitate an interaction with the High Court through a video conferencing session. The court had instructed that the parents of the woman in alleged forced custody were allowed to join and remain present during the video conferencing session.
The order of the High Court: On 31 January 2023, the Kerala High Court directed the production of the woman allegedly in forced custody before the Secretary, DLSA on February 2, 2023 to facilitate an interaction with the High Court. After an interaction with woman, the High Court had proceeded to direct the said woman to undergo a counselling session with a psychologist attached to a counselling centre.
The case before the Supreme Court:
On February 6, 2023, the Supreme Court had issued notice against the aforementioned order of the Kerala High Court. The Supreme Court bench and also stayed the order of the Kerala High court and had issued interim directions requiring for the parents to produce the woman allegedly forced to be in their custody before the Family Court at Kollam on February 8, 2023. The Supreme Court had also directed the Principal Judge of the Family Court was to arrange for an interview of woman with Ms Saleena V G Nair, a Member of the e-Committee of the Supreme Court. Notably, Ms Nair is in the judicial service of the State of Kerala.
The Supreme Court had directed for an interview to be arranged with the woman in consultation with the Principal Judge of the Family Court. it is essential to note that the court appointed Ms Nair was directed to interact with the woman and submit a report to the court upon ascertaining the woman’s wishes on whether she is voluntarily residing with her parents or is kept under illegal detention.
As provided by the Supreme Court, the report regarding the modalities followed in the case was submitted by the Principal Judge of the Family Court. In addition to this, Ms Saleena V G Nair also submitted a comprehensive report regarding her interaction with the woman alleged to be in forced custody.
As per the report provided by Ms Nair, sufficient time was granted to the woman to express her intent and desire. The report also highlighted that the woman was also given a break in the course of the recording of her statement in order to ensure that she reflects on what she had stated.
Decision of the Supreme Court:
In its judgment, the Supreme Court emphasised that the woman alleged to be forcefully detained by her parents is a major and has completed her post-graduation in Arts. It was also provided by the said woman that she intends to become a lecturer and is focused on her career.
The Supreme Court bench pointed to the fact that the woman has stated that she is in possession of a mobile phone and is free to move wherever she desires. It was also highlighted by the bench that during her interaction, the woman had stated that she is living with her parents out of her own volition. It was additionally provided that while the woman has stated that the appellant is an “intimate friend”, she expressed her wish to not marry any person or live with any person for the time being.
The bench found no reason for the Court to disbelieve the report which has been prepared by a senior Judicial Officer after duly ascertaining the wishes of woman. In view of the statements made by the woman alleged to be in forced custody of her parents and the report filed before the Court, the bench was not inclined to entertain the Special Leave Petition on the ultimate outcome before the High Court.
Directions to deal with couples seeking police protection and filing habeas corpus petitions:
The Supreme Court bench did not limit the judgment to the said case. Rather, the Supreme Court also dealt with the bigger issue of the court’s conduct when couples from the queer community approach the court for judicial intervention.
It was brought to the bench’s attention that High Courts have been passing similar order as above, direction for counselling of the queer persons involved, which has resulted in the apprehension that the counselling should not turn out into a means to overcome the will of the corpus particularly in regard to their sexual orientation.
In regards to this, the Supreme Court stated “The High Courts must duly bear this facet in mind. Ascertaining the wishes of a person is one thing but it would be completely inappropriate to attempt to overcome the identity and sexual orientation of an individual by a process of purported counselling. Judges must eschew the tendency to substitute their own subjective values for the values which are protected by the Constitution.” (Para 13)
The Supreme Court emphasised upon the detrimental impact such directions for counselling or parental care can have on the members of the LGBTQ+ community. Referring to the violence that members of the queer community might face at the hands of their natal family, the Supreme Court said “Courts must bear in mind that the concept of ‘family’ is not limited to natal family but also encompasses a person’s chosen family. This is true for all persons. However, it has gained heightened significance for LGBTQ+ persons on account of the violence and lack of safety that they may experience at the hands of their natal family. When faced with humiliation, indignity, and even violence, people look to their partner and friends who become their chosen family. These chosen families often outlast natal families as a source of immeasurable support, love, mutual aid, and social respect.” (Para 14)
Setting aside the direction for counselling made out by the Kerala High Court, the Supreme Court bench said that often the courts, wittingly or unwittingly, become allies to the natal families who do not respect the person’s choices and freedoms. In its judgment, the Supreme Court stated that “The importance of a chosen family is sometimes lost to the traditional assumption that the natal family is respectful of a person’s choices and freedoms. Courts must not wittingly or unwittingly become allies in this misunderstanding, more so in cases involving habeas corpus petition, petitions for protection of the person, or in missing persons’ complaints. Since a direction for counselling has been given by the High Court, which we are inclined to set aside, it is imperative that clear guidelines be formulated for the courts dealing with habeas corpus petitions and in petitions seeking protection from family or police interference.” (Para 15)
Following guidelines were then provided by the Supreme Court for the courts to follow while dealing with habeas corpus petitions or petitions for police protection:
Immediate listing:
“a. Habeas corpus petitions and petitions for protection filed by a partner, friend or a natal family member must be given a priority in listing and hearing before the court. A court must avoid adjourning the matter, or delays in the disposal of the case;”
Supportive environment:
“b. In evaluating the locus standi of a partner or friend, the court must not make a roving enquiry into the precise nature of the relationship between the appellant and the person;”
“c. The effort must be to create an environment conducive for a free and uncoerced dialogue to ascertain the wishes of the corpus;”
Ensuring privacy, protecting identity:
“d. The court must ensure that the corpus is produced before the court and given the opportunity to interact with the judges in-person in chambers to ensure the privacy and safety of the detained or missing person. The court must conduct in-camera proceedings. The recording of the statement must be transcribed and the recording must be secured to ensure that it is not accessible to any other party;”
Enable free expression of the detained person:
“e. The court must ensure that the wishes of the detained person is not unduly influenced by the Court, or the police, or the natal family during the course of the proceedings. In particular, the court must ensure that the individuals(s) alleged to be detaining the individual against their volition are not present in the same environment as the detained or missing person. Similarly, in petitions seeking police protection from the natal family of the parties, the family must not be placed in the same environment as the petitioners;”
“f. Upon securing the environment and inviting the detained or missing person in chambers, the court must make active efforts to put the detained or missing person at ease. The preferred name and pronouns of the detained or missing person may be asked. The person must be given a comfortable seating, access to drinking water and washroom. They must be allowed to take periodic breaks to collect themselves. The judge must adopt a friendly and compassionate demeanour and make all efforts to defuse any tension or discomfort. Courts must ensure that the detained or missing person faces no obstacles in being able to express their wishes to the court;”
Minority of age should not lead to dismissal:
“g. A court while dealing with the detained or missing person may ascertain the age of the detained or missing person. However, the minority of the detained or missing person must not be used, at the threshold, to dismiss a habeas corpus petition against illegal detention by a natal family;”
Judges to show empathy, compassion:
“h. The judges must showcase sincere empathy and compassion for the case of the detained or missing person. Social morality laden with homophobic or transphobic views or any personal predilection of the judge or sympathy for the natal family must be eschewed. The court must ensure that the law is followed in ascertaining the free will of the detained or missing person;”
Respecting wishes of the person detained:
“i. If a detained or missing person expresses their wish to not go back to the alleged detainer or the natal family, then the person must be released immediately without any further delay;”
Acknowledging the social stigma and hardships faced by queer, inter-caste and inter-faith couples:
“j. The court must acknowledge that some intimate partners may face social stigma and a neutral stand of the law would be detrimental to the fundamental freedoms of the appellant. Therefore, a court while dealing with a petition for police protection by intimate partners on the grounds that they are a same sex, transgender, inter-faith or inter-caste couple must grant an ad-interim measure, such as immediately granting police protection to the petitioners, before establishing the threshold requirement of being at grave risk of violence and abuse. The protection granted to intimate partners must be with a view to maintain their privacy and dignity;”
Courts not to adopt measures to change the minds of the appellant:
“k. The Court shall not pass any directions for counselling or parental care when the corpus is produced before the Court. The role of the Court is limited to ascertaining the will of the person. The Court must not adopt counselling as a means of changing the mind of the appellant, or the detained/missing person;”
“l. The Judge during the interaction with the corpus to ascertain their views must not attempt to change or influence the admission of the sexual orientation or gender identity of the appellant or the corpus. The court must act swiftly against any queerphobic, transphobic, or otherwise derogatory conduct or remark by the alleged detainers, court staff, or lawyers;”
“m. Sexual orientation and gender identity fall in a core zone of privacy of an individual. These identities are a matter of self-identification and no stigma or moral judgment must be imposed when dealing with cases involving parties from the LGBTQ+ community. Courts must exercise caution in passing any direction or making any comment which may be perceived as pejorative.”
Towards the end of the judgment, the Supreme Court bench once more emphasised the necessity of following the Supreme Court guidelines in letter and spirit. As per the court, the above-mentioned guidelines will work as a mandatory minimum measure to secure the fundamental rights and dignity of intimate partners, and members of the LGBTQ+ communities in illegal detention. The court must advert to these guidelines and their precise adherence in the judgment dealing with habeas corpus petitions or petition for police protection by intimate partners.
The complete judgment can be read here:
Related:
Can pride be apolitical? Queer and trans* voices and politics