The August Order
In this blogpost, I will provide an update on the subsequent hearings in the S. Sushma case. Summarily, that case concerned a lesbian couple who had run away from their homes and had filed a writ of mandamus in the Madras High Court seeking protection from harassment, both, from the police, and their parents. The court had ordered accordingly (‘June Order’). A detailed discussion of that order is here. Further, the court had also issued certain directions to the police, centre and state authorities, and various regulatory bodies. The court treated the case as a continuing mandamus and provided a future date to check up on the implementation of its directions.
In the next few blogposts, I will scrutinize what came to pass in those subsequent hearings. This blogpost concerns the hearing on 31st August, 2021.
The first direction, Direction A, given in the June Order required that if there are missing complaints filed with respect to queer persons, but the police ascertains that they have actually left their homes of their own volition, the case should be closed and the police should not harass the queer persons involved. The Director General of Police (DGP) for Tamil Nadu filed a compliance report stating that all commissioners of police and superintendents of police in the state had been made aware of this direction and been required to strictly comply with it.
The police force of other states and union territories did not indicate whether they had implemented this direction. Even so, they are required to close cases in which adults have left of their own accord. It is to be noted that through Direction A, the court was not creating a new right. That a closure report should be filed in missing person cases when the police ascertain that the person has left on their own accord, is axiomatic. Therefore, this right is already available all over the country. However, the court had been compelled to issue this specific direction because the police had been found wanting.
Further, NGO personnel working with the queer community made the court aware that police officers at various police stations were failing to protect the community members even after the June Order. Further, they alleged that the police were also responsible for harassing NGO personnel and fieldworkers working with the community. In refusing help to the community, the court noted that the police use the excuse that they have not received any department orders with respect to protecting the queer community. Appalled by this, the court vehemently reminded the police that they were public servants, and the lack of departmental orders could not be the reason to refuse to carry out their chief role of serving the people. The court gave two further directions considering these circumstances.
First, the court directed that the police should not harass NGOs persons working with the queer community.
Secondly, the court directed that any harassment of the queer community or the activists working with the queer community should be added as misconduct within the Police Conduct Rules, which should also provide for punishment for this misconduct.
Transgender and Intersex Prisoners and Training of Police Personnel
In the June Order, in Direction H(1), the high court had required the Tamil Nadu Government to implement a host of training programmes for the police and prison authorities regarding the queer community. A specific direction was also issued that transgender and gender non-conforming prisoners were to be housed separately from cis-men to prevent sexual assault by the latter on the former. The DGP’s compliance report addressed both these issues.
On the issue of imprisonment, The DGP’ report averred that was no discrimination and abuse against transgender and intersex prisoners during the process of incarceration. It further averred that the gender of the transgender prisoner for the purpose of determining which prison they would be housed in, was determined from the arrest warrant received from the Judicial Magistrate concerned with the case. Transwomen were lodged in the special prisons for women, whereas transmen were lodged in the central prison with men.
However, prima facie, this does not seem to follow the June Order. That order had required transgender persons to be housed separately from cismen. While that seems to be the case for transgender women, transgender men are housed with cis-men in the central prison. This not only violates the June Order, it also leaves transmen vulnerable to sexual assault from cis-men in the prisons.
On the issue of training of the police personnel, The DGP’s report conveyed The Tamil Nadu Police Academy has conducted training programmes to make the police aware of the offences and penalties under Chapter VIII of the Transgender Persons (Protection of Rights) Act, 2020 and the Transgender Persons (Protection of Rights) Rules, 2020, and plans are in place for training more staff.
However, apart from creating awareness on the Transgender Act and Rules, the June Order had specifically directed that training programmes be conducted on how the rights of the queer community could be protected. Further, the June Order had required that police personnel be sensitized about the rights of the queer community. The DPG’s report did not explain whether steps had been taken to both these ends. The court did not ask the DGP about the former direction. With respect to police sensitizations programmes, the court directed that these must be conducted by community members and/or activists involved with the present case.
Media Reporting on Queer Persons and Issues
In this hearing, the court also took notice of the unscientific and queerphobic reporting that surrounds queer stories in the media. It took on record various news items that had portrayed in a stigmatizing way, with dramatic words, sounds and pictures, the most intimate personal details of queer couples. While the court did not issue any directions to the press, it sought the co-operation of the press in this matter. The court urged them to sensitive reporting which should not demean the persons of the community. The court also reminded the press of its duty to maintain the confidentiality of the queer persons who were the subject of such reports. The court had not issued any direction on this matter in the June Order as well.
Inquiry Re. MBBS Curricula Reform
In this order, the court also raised the issue of the revision of the MBBS curricula. In the current medical undergraduate curricular, lesbianism, oral sex, sodomy, transvestism etc. are still classed as sexual perversions. This was a point that was brought forward in the report of Dr. Trinetra Haldar Gummaraju; a trans doctor whom the court had previously consulted. The report had been mentioned in the previous order of June 2021, but no specific directions had been made in that regard. In this order too the court has not made any specific directions about this issue. It has bemoaned this situation and directed the National Medical Commission and the Indian Psychiatric Association to file a report in the next hearing about their plans of changing the curriculum in the future.
Legal Awareness Programmes
In the June Order, the High Court had directed the District and State Legal Services Authorities in Tamil Nadu to conduct legal awareness programmes regarding the queer community. In this hearing, it was shown that such awareness programmes had been conducted in 28 districts in Tamil Nadu.
Conversion Therapy Condemned
In the June Order, the court had directed the regulatory bodies to take action, including withdrawal of license for those health professionals who engaged in conversion therapy practices. No follow-up was filed on whether this was being implemented. However, the court once again reiterated that conversion therapies were illegal.
The court had in its June Order, issued a variety of directions, of which the one addressed in this hearing constitute but a fraction. Specifically, the court had required the Ministry of Social Justice and Empowerment to enlist NGOs and CBOs to provide a list of organizations the queer community members could approach if they faced any issues by the reasons of being queer. Such a list had to be finalized within 2 months of the June order—early August. However, there was no update provided on this directions by the said ministry. Further, the ministry was also required to detail their plans of extending their shelter homes to all members of the queer community. Finally, the June Order had directed training programmes for the judiciary, and placed obligations on health professionals, education institutions and workplaces to put in place, trainings and arrangements to secure various rights of the queer community. There was no follow-up on these matters in this hearing.
The next hearing was scheduled for the 4th of October, 2021.