Category Archives: 377

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Legal Discourses on Queer Women- Privacy

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Reading Time: 3 minutes

What are the legal experiences of queer women in India? This is a severely under-researched topic from the legal point of view. Most of the academic work on the experiences of queer women in India lies in the area of literature and culture and associated fields.

In the present blog, I will discuss one aspect of an article that I recently wrote about the legal issues of queer women. That article had the following aims: 1. to study the case law and understand the legal narrative surrounding queer women in India; 2. theorize about the main legal problems faced by them; 3. analyze the Navtej judgment to see whether it provides solutions for those problems; and 4. begin a conversation to address the problems.

Queer women are women, i.e., persons who are socialised as women, who have, romantic and/or sexual feelings for/relations with, other women. The history of activism on this issue in India has shown that a variety of terms have been used to refer to them. Examples include, lesbians, bisexual women, ekal mahila, gender non-conforming women, women in a husband-wife relationship. Some of these terms reflect personal choices, but some also reflect what was possible to say at a particular time in history. In this article, I argued that the experiences of transgender men may have commonalities with queer women since many of them may have been socialized as women. Therefore, to that extent, the findings of the article were relevant to understand the problems faced by that community as well. I identified the core issues faced by queer women through two distinct methods. The first was a case-law method where I identified cases pertaining to queer women using a keyword search on Manupatra. The second was to study various scholarly articles and stock-taking reports that have concentrated on queer women in India. These two methods allowed me to cull out the seemingly core areas of concern for queer women that law needs to address. They were: 1. Privacy; and 2. Live-in relationships; 3. Marriage pressure; and 4.allegations of lesbianism in divorce cases. In this blog, I will discuss the issue of privacy as it relates to the legal entitlements of queer women.

1. PRIVACY

The lack of privacy is a major area of concern for women, and queer women India. The Navtej judgment has allowed sexual relationships between two consenting queer adults in private. This formulation of the sexual right has failed to take into account the realities of the lives of queer women. Women in general, including queer women, do not have access to privacy within their homes, and little say over how they would like to exercise their sexuality. In the first known large-scale Indian study to understand the violence faced by lesbians, Bina Fernandez and NB Gomathy found that the family was the main source of violence for lesbian women. They faced physical, mental, and sexual violence from their family members, which only ever abated when they either left their homes or lied about not being attracted to women anymore. Thus, for this section of the queer community, granting a right in private was no grant at all, not unless the idea of privacy was connected to the idea of access to public spaces.  What those spaces could be, whether hostels, or cafes, or parks, etc. is a question that can be best answered by taking the views of a wide cross-section of queer women, and the State and funding bodies should devote funds to this enterprise. In the meanwhile, within existing structures, two options can be further strengthened; 1. Access to shelter homes; and protection orders.

1a. ACCESS TO SHELTER HOMES

Shelter homes have their own set of problems. They restrict the mobility of women, and their ability to take up employment among other things. Many of them are queerphobic, and either refuse to take in queer women or claim to cure them. Still, being able to take shelter in a shelter home offers immediate access to a physically safe place for queer women who leave their home, and are in need. They also offer a bargaining position to women who can then negotiate better terms of treatment with their families.

1b. PROTECTION ORDERS AS PRIVACY ENHANCING TOOLS

Understanding privacy from the point of view of queer women also offers up other legal solutions to their concerns. One such solution is a protection order which is available through the writ jurisdiction of the High Court. Recorded cases show that women who exercise their choice to live with one another have taken recourse to these orders. These orders typically place the local station house officer in charge of the physical safety of the couple, with the responsibility to determine the safety protocol for the couple. Usually the phone number of a beat constable is shared with the couple to call in case of any actual or apprehended danger. Lawyers working on these cases have shared that these orders provide an immediate sense of physical safety to the couple, even if they can provide only limited protection from emotional blackmail from the families involved.

The discussion on other areas identified by this blog, along with a fuller discussion on privacy can be found in the forthcoming article, Surabhi Shukla, The L World: Legal Discourses on Queer Women 13 NUJS Law Review 3 (September 2020). Update (Oct, 2020): The article can be found here.

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Shampa Singha v. The State of West Bengal & Ors. WP 23120(W)of 2018

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Reading Time: 2 minutes

On the 29th of January, 2019, a division bench of the Calcutta High Court applied the Navtej Johar decision to a lesbian couple, holding that consensual co-habitation and intercourse between adults of the same sex does not fall within the ambit of S.377. As in the Sreeja case, the sexual relationship between the two women involved was openly mentioned in the court. The facts of the case are not entirely clear but it is evident that the writ is filed by one of the partners. Presumably, one of the partners, had returned to her mother and the petitioner partner had filed a writ alleging that the mother was holding her partner captive. The other partner, who had hitherto been residing with her is now inclined to stay with her own mother. There are three facets which are interesting to note about this case:

  1. Article 21

Following Navtej Johar, this case also finds that the right to life under Article 21 includes an inherent right to determine, by oneself, one’s sexual orientation and sexual partner. This choice is inherent under Article 21 even if the choice is not made for procreation. Additionally, the court notes that not only is this right inherent under Article 21, it is also essential for the enjoyment of the life and liberty guaranteed under Article 21.

  1. Constitutional Morality

The court also notes that our scheme of constitutional morality does not permit objections of religion or personal morality to whittle down this inherent right (of orientation and choice of partner). It is unclear why the court specifically mentions religion as an impermissible restriction on the abovementioned right. One can conjecture that perhaps in the argumentation stage before the court, one’s religious beliefs were pleaded as a ground to deny cohabitation of the two women involved.

  1. Psychological Test

Finally, the court notes that the partner of the petitioner, whom the court calls a “victim” for unexplained reasons, has been assessed for psychological soundness. It is unclear why the court mentions it. It is also unclear whether the court ordered this test or whether this test has been performed due to extant facts of the case. Since the judgment does not summarize the facts or the arguments, it is hard to determine the appropriateness of this psychological test. However, at the outset, it can be said that a psychological test does prima facie seem out of place in this kind of case which involves two majors who want to exercise their right of whether or not to live together arguably, though not explicitly, protected under Article 21 in this case. The Navtej judgment has clearly stated that adults have a right to consensual sexual intercourse with a person of their choice regardless of sex. To avail this right, that judgment has not forwarded a requirement of psychological testing.

I am grateful to Dr. L. Ramakrishnan (Ramki) for telling me about this case. Ramki is the Vice-President at SAATHII, a public health non- profit, and volunteers at Orinam, a volunteer collective with extensive internet resources on the queer movement in India.

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Sreeja S. v. The Commissioner of Police, Thiruvananthapuram and Ors. W.P. (Crl). No. 372/2018

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Reading Time: 4 minutes

On the 24th of September, 2018, a division bench of the Kerala High Court ruled that a same sex couple had a right to live in a live-in relationship. However, this question arose only co-incidentally in a case which was primarily about illegal confinement. This is the first documented case, as per available court records, in which the romantic relationship between the two women in question is openly acknowledged. It also has the distinction of being the first to apply the Navtej judgment which, pertinently, found that consensual same-sex sex was no longer criminal between adults. This blog post will first summarize the case and then focus on why the open acknowledgement of the relationship between these women is a significant moment in legal history.

Facts of the Case

Sreeja and Aruna were two women in a romantic relationship. Both were majors i.e. above the age of 18. Aruna had left her parental home to live with Sreeja. Aruna’s parents filed a missing person complaint with the police, which resulted in the police taking Aruna into custody and producing her before a judicial magistrate. The custody was illegally in this case, she should have been asked to present herself before a magistrate for the recording of her statement. In those proceedings, Aruna clarified that she was living with Sreeja of her own volition and thus secured her liberty. However, Aruna’s parents forcibly took her with them after the hearings and admitted her to a mental hospital. The hospital was not ready to release her without a court order. Thus, the present proceeding.

Decision and Reasons of the Court

The court found that Aruna was under confinement in her parental home against her will. The court reasoned that regardless of the relationship between the women, Aruna was an adult, and therefore, at liberty to make a choice about where and with whom she wanted to live. The court could have stopped at this point but it took the opportunity to reiterate, citing the Navtej case, that sexual orientation is a natural variation of human sexuality and because 377 no longer criminalizes same sex sexual relationships, Sreeja and Aruna’s sexual relationship, lived through in the form of a live-in relationship will not, “offend any provisions of the law or become a crime in any manner.” Further, the court went on to say that, “on the other hand, if the jurisdiction vested on this court is not exercised, it will amount to permitting a violation of the Constitutional right to perpetrate.” This statement arguably signals to the fact that the legality of live-in relationships of persons in different sex sexual relationships is well established in Indian legal jurisprudence, and if the court does not find that same sex sexual relationship are eligible for the same entitlement, an Article 14 (equality) violation would occur.

The Romantic Relationship Between the Women

The most significant aspect of this case is the fact that it was openly mentioned in the judgment, and therefore, one assumes, was argued in the court, that, the women in question were involved in a romantic relationship. What had hitherto been happening in similar cases was that when 2 women would decide to live together in a romantic relationship, the parents of one of them would accuse the other of kidnapping/kidnapping with the intention of compelling marriage/abduction/illegal confinement. The legal battle, would then involve proving that the woman in question, esp. the one’s whose parents have alleged the above-mentioned crimes, is an adult, and capable of making decisions about her living situation. The romantic relationship between the 2 women would never be brought out before the court by the lawyers of the women. Partly, it was due to the uncertainty over whether 377 criminalized lesbian sex, and partly the romantic relationship was silenced because of the negativity and illegitimacy surrounding such relationships.

Ponni Arasu and Priya Thangarajah[1] have shown these very same findings in their 2009 paper. They performed a case search from 1940s-2007 of all habeas corpus matters with ‘lesbian undertones’ and found that only 2 High Court cases appeared which involved what could arguably be, women in sexual relationships. In both of these cases, the romantic nature of their relationship was not brought before the judge though the lawyers involved knew about it. What was argued was that the women were adults and therefore entitled to decide their living arrangements. I performed a case law search on Manupatra, a standard Indian legal database, with the keyword “lesbian.” This search looked for results from all Indian High Courts,  Tribunals, and the Supreme Court. Since Manupatra has case law from the pre-independence era as well, the search covered a period before 1947 and up till 2018. I found no results at all pertaining to the lesbian relationships in such legal battles i.e. to say that in court records, the word “lesbian” has never been used in a matter pertaining to live-in relationships before.

Therefore, I conclude that either: 1. Similar cases have been occurring in court but the romantic aspect has been kept under wraps for the reasons mentioned above; or 2. Cases in which the romantic aspect has been clearly mentioned are not reported cases. The third possibility that such cases have not occurred before is negatived by the fact that: 1. 2 cases have been found by Arasu and Thangarajah, and; 2. anecdotally, I have been made aware that such cases do occur and lawyers still use the strategy of classifying the women involved as adults and ‘good friends’ and as such entitled to decide with whom they wanted to live.

This means that cases which may have involved the same questions of law were being handled without acknowledging that the women are in a romantic relationship (until 2018). Therefore, I argue, that though the results of the case are not new, the manner in which they are achieved i.e. by putting in public records of the court that the women are in a same sex relationship and as such are entitled to live-in, is a significant moment in legal history, attributable to, both: 1. The growing sense of the right to legal entitlements of the LGBT community; but also, very importantly, to, 2. The reading down of S.377.

 

[1] Ponni Arasu and Priya Thangarajah, “Queer Woman and the Law: The Love that Blinds the Court” (Presented at the 2009 LASSNET Conference).

I would like to thank Dr. L. Ramakrishnan (Ramki) for pointing me to the Arasu and Thangarajah paper. Ramki is the Vice-President at SAATHII, a public health non- profit, and volunteers at Orinam, a volunteer collective with extensive internet resources on the queer movement in India.