'Judges Shouldn't Attempt To Change Views Of Couples, Sexual Orientation' : Supreme Court Issues Guidelines To HCs On Habeas Corpus & Protection Petitions

In a significant judgment, the Supreme Court has issued guidelines for the High Courts in dealing with habeas corpus petitions or petitions seeking police protection.

The guidelines come as a consequence of 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. The court in issuing the said guidelines observed that such directions for counselling often torment the members of the LGBTQ+ community and could have deterrent effects.  

The bench led by CJI DY Chandrachud and comprising Justices JB Pardiwala and Manoj Misra has directed the court shall have an empathetic approach while hearing a habeas corpus petition or police protection plea. 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 raised by members belonging to the LGBTQ+ communities. 

In the judgment delivered on March 11 but uploaded today, the Court has issued the following guidelines :

"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;

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;

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;

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;

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;

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;

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;

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;

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; and
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" 

The Court further specified the necessity to follow the above guidelines in 'letter and spirit', viewing the same a tool for ensuring the protection of the dignity and other fundamental rights of the intimate partner, same-sex partners and members of the LGBTQ+ community.  

" The above guidelines must be followed in letter and spirit 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." 

Directions Of Counselling Have A Deterrent Effect On The Queer Community 

The bench clarified that the meaning of 'family' is not just limited to the biological family one is born into, but also includes friends, intimate partners and those who one considers close in their social circle. Emphasizing the same for the LGBTQ+ Community, the bench highlighted that often same-sex partners have to face social oppression and family disapproval which may manifest in violent and violative ways. It is the chosen social family that comes to the rescue of the queer members when in need.  

"Directions for counseling or parental care have a deterrent effect on members of the LGBTQ+ community. 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" 

It is in view of the above discussion, that the bench further noted that often the traditional assumption of the biological family thinking the best for us is overpowered in the arena of judicial decisions.  The bench asserted the need for judges to keep one's personal traditional values at bay while deciding matters involving values which the constitution provides and protects. 

"Judges must eschew the tendency to substitute their own subjective values for the values which are protected by the Constitution." 

The issuance of the said direction came with a strong-worded caution that the Judiciary must not knowingly or unknowingly join hands in coverted violation of the dignity and rights of the queer members. 

"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." 

Observing the above, the bench proceeded to set aside the Kerala High Court's directions for counselling of the lesbian partner of the petitioner. 

Background  

A bench comprising CJI DY Chandrachud, comprising Justices JB Pardiwala and Manoj Misra was hearing a petition filed by a woman against a Kerala High Court order which directed her alleged lesbian partner to undergo counselling. The High Court's direction was passed while considering a habeas corpus petition filed by the petitioner alleging that her partner was being illegally detained by her parents.

Last year, while staying the High Court's order, the Supreme Court had directed a member of its e-committee(Ms Saleena V.G. Nair, a former judicial officer from Kerala) to interact with the alleged partner to ascertain her wishes. According to the report submitted by Ms.Saleena Nair, the woman expressed her desire to stay with her parents. As per the report, the woman stated that she did not want to marry or live with anyone. 

In the light of the report, the Court refused to pass further directions in the case. However, taking note of the larger issue, the Court issued the above guidelines.

Advocate-on-Record Sriram Parakkat appeared for the petitioner.

Case Details : DEVU G. NAIR vs. THE STATE OF KERALA SLP(Crl) No. 001891 - / 2023

Citation : 2024 LiveLaw (SC) 249

Click here to read the judgment