‘Judges shouldn’t attempt to change sexual orientation, identity’: SC

The SC observed that it was “completely inappropriate” to attempt to overcome the identity and sexual orientation of an individual by a process of purported counselling.
Supreme Court with the backdrop of a rainbow flag
Supreme Court with the backdrop of a rainbow flag
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The Supreme Court, in its recent judgement, has issued guidelines to the High Courts dealing with habeas corpus petitions or petitions for police protection. The court passed the judgement on March 11, while hearing a case, filed by a woman who identifies as lesbian, challenging a Kerala High Court judgement that directed her partner to undergo counselling. 

A bench of Chief Justice of India (CJI) DY Chandrachud and Justices JB Pardiwala and Manoj Misra, while passing the guidelines, also observed that the attempt to overcome the identity and sexual orientation of an individual by a process of purported counselling was “completely inappropriate.” The court also said that judges “must eschew the tendency to substitute their own subjective values for the values which are protected by the Constitution.”

Stating that the directions for counselling have a deterrent effect on LGBTQIA+ persons, the SC said that the courts should remember that the concept of ‘family’ was not limited to natal family but also encompasses a person's chosen family. “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,'' the court said and set aside the Kerala High Court’s order directing the woman to go for counselling.

The judgement was delivered on March 11 and uploaded on the Supreme Court website on March 20. These are the guidelines issued by the apex court:

> 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.

> 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 petitioner and the missing/detained person.

> The effort must be to create an environment conducive for a free and uncoerced dialogue to ascertain the wishes of the missing/detained person.

> The court must ensure that the missing person 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.

> 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.

> 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 comfortable seating, access to drinking water and a 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.

> 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.

> 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.

> 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.

> 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.

> 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.

> The judge, during the interaction with the missing/detained person, 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.

> 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 judgement 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.

On February 6, 2023, the Supreme Court stayed the Kerala High Court order that directed the petitioner's partner, a 23-year-old woman, to undergo counselling. The court passed the order while hearing a habeas corpus petition filed by the petitioner, who moved the SC challenging this order. The SC stayed the HC order and directed a member of its e-committee, Saleena VG Nair, to talk with the 23-year-old woman. Saleena submitted a report at the SC saying that the woman said she wanted to stay with her parents and not to live with or marry anyone. The court refused to pass any directions in the case but passed the guidelines for all the courts.

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