Justice Anand Venkatesh of the Madras High Court delivered a landmark judgment directing the protection of LGBTQIA+ people from systemic and police harassment. The judge had been hearing the plea filed by a lesbian couple in Chennai, who had left Madurai to live together. Their parents, unhappy with the idea, filed missing persons complaints and the police tracked them down to Chennai. Interrogated by the police at their home and later fearing a threat to their safety and security, the couple moved the High Court seeking a direction to the police against harassment and also sought protection from any form of threat or danger from the police.
The Madras High Court judgment is historic not only for the guidelines issued for ensuring the safety of the community and protection from police harassment, but also for the way the judge treated the case. And it is evident in the order that the judge, Justice Anand Venkatesh, made an effort to understand same-sex relationships and the issues faced by the community, a welcome change from judgments and orders that are passed based on a heteronormative template. The honesty with which the judge accepted the prejudices and stereotypes that he had in his mind — much like the rest of the society — is being appreciated by many.
In the previous hearing, the judge acknowledged that he did not know much about same-sex relationships and said that he wished to read up before passing an order without understanding the issue at hand. “I want to give myself some more time to churn. Ultimately in this case, the words must come from my heart and not from my head, and the same will not be possible if I am not fully ‘woke’ on this aspect,” Justice Venkatesh had written in his interim order in March.
After this, the judge signed up for a psycho-education with a psychologist, saying that this may help him understand same-sex relationships better. “If I write an order after undergoing psycho-education, I trust that the words will fall from my heart,” the judge had said.
The judge also sought a report from the psychologist after directing that the petitioners and their parents also attend such sessions. Based on the psychologist’s report, he ordered more sessions for the parents to help them accept their children’s relationship.
The judge also shared that the session with the psychologist was held on May 7, a month before he delivered the order. After that, he said he also had an interaction with individuals from the LGBTQIA+ community, stating that these sessions ultimately convinced him that he needs to change all his preconceived notions and start looking at persons belonging to the LGBTQIA+ community as they are. The judge wrote that his conversation with a transwoman shed more light on the horrors that they face, from bullying and societal stigma to the very problematic practice of conversion therapy, which is illegal and a pseudoscience that claims to ‘cure’ queer persons, and can lead to a lot of trauma.
The judge also explained why he decided to take these sessions. “The present case has given this Court, not only an opportunity but also a vested responsibility to weigh the cause for inclusivity and justice against discrimination by heretofore social understanding of morality and notions of tradition,” Justice Venkatesh said.
“I have no hesitation in accepting that I too belong to the majority of commoners who are yet to comprehend homosexuality completely,” the judge wrote in the order. “Ignorance is no justification for normalising any form of discrimination. Therefore, I took upon myself, the vested responsibility and the duty to deliver justice in all its forms and spirit, of cutting across personal prejudices and notions and setting forth to, at the least, educate myself lest my ignorance interfere with in guiding homosexuality and the LGBTQIA+ community towards social justice,” the judge said.
“The society and my upbringing have always treated the terms ‘homosexual’, ‘gay’, ‘lesbian’ as anathema. A majority of the society would stand in the same position of ignorance and preconceived notions,” the judge wrote in his order. “The societal impact has a lot of bearing in our understanding of relationships right down to our subconscious, and we involuntarily vouch only for those relationships which the society deemed ‘fit and proper’,” Justice Venkatesh said.
The judge noted that the LGBTQIA+ community has come together with a request to the society to not interfere with their choice of sexual orientation, gender identity, gender presentation and gender expression even if the society refuses to recognise such choices. “The voice of this community is now getting louder and stronger and the society can no more turn a deaf ear and a time has come to make that change,” the judge added.
“I realized, after a one-on-one interaction with the Petitioners, that it was I (us), who has to set off on a journey of understanding them and accepting them and shed our notions, and not they, who have to turn themselves inside out to suit our notions of social morality and tradition,” Justice Venkatesh said.
The judge pointed out that when he spoke to the couple who had moved the plea, they sounded ‘very natural’ and made him question himself as to where the conflict actually arises. “This change happened within the mere duration of 15 minutes,” the judge said.
The judge, before issuing guidelines for the safety of the LGBTQIA+ community, said, “It is clear that the actual problem is not the fact that the law does not recognise a relationship but that the sanction that is accorded by the society is not available. It is only for this reason, I strongly feel that the change must take place at a societal level and when it is complemented by a law there will be a remarkable change in the outlook of the society by recognising same-sex relationships.”