I. The Supreme Court Deals with Queer Women
Finally, the Supreme Court has dealt with a matter specifically concerning the lived experiences of queer women and persons raised as women. When they run away to escape family violence, often one or both sets of parents file missing complaints, or kidnapping charges against the partners. If apprehended, they are detained by their natal families. Case analysis has shown that in many instances the police and courts side thoughtlessly with the family. In such cases, habeas corpus petitions have been immensely useful in securing the couple’s freedom. Through these petitions the court summons the allegedly detained person (detenue) to court to ascertain their will. In this case the court passed important directions on how to deal with runaway cases.
In this case, a lesbian couple from Kerala had run away and when apprehended by the family, one of them, called X, was taken back to her family home. The Kerala High Court had directed that she undergo counselling and on appeal, the Supreme Court stayed this direction and asked her to be interviewed in the family court to determine her desire. She desired to reside with her parents and so the Supreme Court ordered accordingly, but it also passed certain directions to deal with habeas corpus cases of runaway couples in the future. Although many directions concerned the lived experiences of queer women and persons raised as women, they are equally applicable to any runaway couple, queer, straight, inter-religious, etc. The court also issued a very important direction regarding counselling of queer persons.
II. When Counselling can be Used
The court cautioned against the use of counselling in such cases. Counselling should not become a means to try and change the sexual orientation of a person. The court noted that directions for counselling have a detrimental effect on LGBT+ persons, especially when they are aimed at changing sexual orientation or gender identity. Chosen families are an immeasurable source of support for LGBT+ persons who are liable to face violence and indignities within their natal families. While this observation of the court is helpful to all queer persons, it is especially helpful to queer women and persons raised as women because family is the main source of violence for this section. In the Navtej case, Justice Chandrachud had observed that counselling services must focus on providing support to queer clients in becoming comfortable with who they are rather than to change them. These services must share the responsibility of correct sexuality education to rid families, workplaces, and individuals from discrimination towards the queer population (para 96). The Indian Psychiatric Society has also clarified that homosexuality is not a sexual deviation. Therefore, this is an important intervention of the Supreme Court to once and for all, clarify the uses of counselling regarding sexual orientation and gender identity.
Courts must bear in mind that the concept of ‘family’ is not limited
to natal family but also encompasses a person’s chosen family.-Devu G v Kerala
In the case of Sushma, a similar situation regarding a runaway lesbian couple was before the Madras High Court. When the couple had runaway, their parents had filed missing complaints with the police and the police failed to close the case even upon learning that the women were adults and had run away of their own volition. The couple filed a writ of mandamus before the High Court requesting that court direct the police and the family to stop harassing them. The court while making its orders had directed that the women undergo counselling with their parents. While the judge was at pains to clarify that the scope of the counselling was not change the sexual orientation of the couple but to serve as an opportunity for all parties to understand each other, I had cautioned that this process should not be abstracted to a precondition for resolving such cases. Counselling should not become the legal process through which queer couples win their freedom to live with each other. If they are adults and have decided to live together willingly, they are perfectly within their rights to do so without any prior counselling. This is the state of the law.
However, even after the clarification issued by the Supreme Court and the Indian Psychiatric Society, there are cases as late as June of 2024 where a queer person has been admitted to a mental hospital and been coerced to sign a consent form to undergo counselling.[1]
III. Directions Passed by the Court for Dealing with Cases Seeking Protection from Family and Police
- These cases must be listed on a priority basis and adjournments and delays must be avoided.
- Cases may be filed by the concerned partner or friend and the police must not waste precious time in ascertaining the exact relationship of the petitioner to the detenue.
- An effort must be made to create an uncoerced environment to determine the true intention of the detenue.
- In cases where one partner has been detained, the court must require that they be interviewed in chambers to ensure their privacy and safety. The proceedings must not be open to the public and their recorded statement should not be available to anyone else.
- The persons alleged to be detaining the person must not be present in the same environment.
- The police, family, and court must not exercise undue influence on the detenue during the proceedings.
- The court must put the detenue or missing person at ease, ask them their pronouns and address them accordingly. They must be provided with a comfortable seat, access to water and a washroom and periodic breaks. The court’s demeanour must be compassionate so as to diffuse tension to enable them person to freely express their wish.
- The court must determine the age of the detenue or the missing person.
- Being under 18 must not be taken as automatic grounds for dismissing petitions where illegal detention by the natal family is at issue.
- The judges must not be guided by homophobic or transphobic views or unquestioned sympathy towards the view of the natal family.
- If the detenue does not wish to return to their natal family, their wish must be honoured, and they must be immediately released.
- When police protection is sought by intimate partners in same-sex or inter-caste or inter-faith couples, it must be granted as an interim measure before determining the level of risk to them.
- Court should not order counselling or parental care of the detenue or missing person.
IV. Expansion of the Privacy Concept
Previously, I had highlighted the traditional notion of privacy protected only small sub-section of the queer population; those with means. Speaking specifically of queer women and persons raised as such, there was little or no access to private spaces, because of familial control of female sexuality. Thus, privacy should be expanded to include access to public spaces, access to shelter homes, and protection orders, among other things. These directions do just that and the court is cognisant that these are privacy enhancing measures. Privacy can now begin to take a more meaningful place in the lives of innumerable queer persons.
[1] Adithya Kiron v The Station House Officer, Palarivattom Janamythri Police Station and Ors Writ Petition (Crl) 704 of 2024. The court directed the mental hospital to set the person free.