Freedom to Choose – Supreme Court’s Guidelines for LGBTQ+ Rights and Dignity

Case title – Devu G Nair Vs The State of Kerala & Ors.

Case no. – Special Leave Petition (Criminal) No 1891 of 2023

Decision on – March 11th, 2024

Quoram – Chief Justice of India Dr. D Y Chandrachud, Justice J B Pardiwala, Justice Manoj Misra

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Fact of the case

The present appeal was filed under Article 136 of the Constitution against the interim orders issued by the Kerala High Court in a petition seeking a Writ of Habeas Corpus.

The appellant and the ‘corpus’ (referred as ‘X’) in the present case are both female. According to the appellant, they were in an intimate relationship. Accordingly, the petition seeking a writ of habeas corpus was instituted by the appellant on the ground that ‘X’ was being forcibly kept by her parents in their custody even though she wished to stay with her.

The Kerala High Court ordered District Legal Services Authority (DSLA) to ascertain the illegal detention of ‘X’ and facilitate an interaction between ‘X’ and the High Court. After an interaction with ‘X’, the High Court directed ‘X’ to undergo a counselling session with a psychologist attached to a counselling centre.

The HC, later, directed Ms Nair to interact with ‘X’ and submit a report after ascertaining her wishes on whether she is voluntarily residing with her parents or is kept under illegal detention.

In the report, ‘X’ stated that she is in possession of a mobile phone and is free to move wherever she desires. Moreover, she has stated that she is living with her parents out of her own volition. Although she stated that the appellant is an “intimate friend”, she did not wish to marry any person or live with any person for the time being.

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Legal provisons :

• Article 136 of the Constitution of India: This article allows for Special Leave Petition to the Supreme Court against any judgment, decree, determination, sentence, or order passed or made by any court or tribunal in the territory of India.
• Guidelines for Protection of Fundamental Rights and Dignity of LGBTQ+ Community

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Court’s Analysis and Directions:

The Supreme Court has noted that the High Courts have been issuing orders for counselling in similar cases and in a similar position as that of person X in the matter before it. In order that the process of counselling and the pertinent orders passed by the lower courts do not affect sexual orientation of the persons involved, the SC held that judges must avoid a tendency to substitute their own subjective values for the values which are protected by the Constitution. Accordingly, the SC has issued guidelines to the lower courts dealing with similar cases and directed following them in letter and spirit:

• Habeas corpus petitions filed by a partner, friend or a natal family member must be given a priority in listing and hearing before the court.
• 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.
• The effort must be to create an environment conducive for a free and uncoerced dialogue to ascertain the wishes of the corpus.
• The Court during interactions must conduct in-camera proceedings to ensure privacy and safety of the detained individual.
• The Court must avoid undue influence on the detained individual’s wishes, especially concerning their sexual orientation or gender identity.
• To grant immediate release if the detained individual expresses a desire not to return to their alleged detainer.
• It must prohibit courts from directing counselling or parental care, focusing solely on ascertaining the individual’s will.
• To maintain neutrality and respect for LGBTQ+ identities throughout legal proceedings.

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Conclusion

The Court held that these guidelines must be strictly adhered while dealing with habeas corpus petitions to protect the fundamental rights and dignity of intimate partners, and members of the LGBTQ+ communities in illegal detention.Accordingly, the Court disposed of the appeal in view of the report of the Judicial Officer.

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Judgement Reviewed by – Koustav Ghosh