Category Archives: queer women

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Devu G v State of Kerala and Ors Special Leave Petition (Criminal) Diary No(s) 5027/2023

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This month’s blog concerns an appeal from an order of the Kerala High Court concerning a queer/lesbian couple. One of the partners filed a habeas corpus petition in the Kerala High Court alleging that their partner was being illegally detained by the parents who were against the relationship. When the petition came up for hearing in the Kerala High Court on the 13th of January, 2023, that court passed an order directing the District Legal Services Authority to interview the allegedly detained partner at her parent’s house to determine the truth of matter. If the interview were to reveal forceful detention, the court order stated, the detenue would be produced before it, but if no such concerns were revealed, the case would proceed no further. The Kerala court also stated that the detenue must attend counselling at an authorised counselling centre in the following days and had set a date for a next hearing.

This order was appealed in the Supreme Court on the 6th of February where counsel for the petitioner raised concerns about the ability of the detune to offer free and fearless views in the presence of her parents were she to be interviewed in the manner ordained by the High Court. The Supreme Court accordingly ordered that the detenue be produced before the family court in Kerala without any prior interview to provide her an occasion to frankly give her opinion on the nature of her stay at her parent’s. The judicial officers at the family court were ordered to prepare a report based on the interaction and provide it to the Supreme Court for the next hearing which was scheduled for the 17th of February. No further hearing has occurred before the Supreme Court but the court in parting stayed the orders of the Kerala High Court in this matter.

While the lawyers for the petitioners did raise concerns over the fundamental incorrectness of requiring the alleged detenue to undergo counselling, the Supreme Court order is silent on the issue. In the suggestion that the detenue should undergo counselling, there are echoes of the concern that had previously been raised following the 1st order of the S. Sushma decision of the Madras High Court. In that case, the judge, the parties, and the parents had all undergone counselling, at the behest of the judge so that prejudicial unlearning can happen through expert guidance, and grievances can be shared. The judge also arranged a mediation session between the parents and the daughters so that grievances and vulnerabilities can be shared in a potentially safe and open manner (though it must be remembered that this is the idealised version of mediation). The judge was at pains to clarify that the counselling was not meant to require the lesbian couple involved in the case to change themselves, but was to provide a space to challenge heteronormative assumptions for the family member and the judges. The mediation session was arranged in the same spirit. While appreciating the productive potential of the judge’s technique in that case, I had raised a concern that counselling and mediation should not be seen as a sine qua non for availing of the right to choose a partner, the basis of which lies in Article 21 as held in Navtej Johar in particular, and more broadly through a joint operation of the Puttaswamy, NALSA, and Navtej cases. The Supreme Court has not been possessed of a case where it can analyse the lived experiences of queer women and interpret the law accordingly. Habeas corpus and mandamus writs have been the typical ways in which queer couples, particularly queer women/transmen have sought to assert their rights against restrictive family structures and the criminal justice system which prevent them from taking advantage of the full range of rights relating to gender and sexuality. Now for the first time to the best of my knowledge, the Supreme Court has a discreet occasion to observe this interaction, and especially, to clarify the role of counselling in exercise of Article 21 rights to choose a partner.

Note: the couple in this case has been classified as a lesbian couple based on the information available in the Supreme Court judgment wherein the relationship was classified as a same-sex relationship. The Kerala court proceedings being unavailable, further details are unavailable, but the blog will be modified should some new information come to light.

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S. Sushma and Others v. Director General of Police and Others WP 7284/2021 (December Hearings)

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PART I

Previously

This blogpost pertains to the December hearings in the S. Sushma case. To recap, the case originally concerned a lesbian couple who had run away from their homes to be together. They approached the Madras High Court as they were being harassed by the police and their parents although they were adults who had left of their own volition. Through a writ of mandamus, the court ordered the police to close the missing persons cases that had been filed by the parents of the couple, and passed other orders to central and state governments, and regulatory bodies (June order). The orders are wide-ranging and cover a host of issues that arise when queer life intersects with societal and legal authority structures. The court has kept the case open and hears it from time to time to gauge the progress on its orders and issue new ones, in a PIL-style continuing mandamus.

This is Part I of a two part blog. In this part, I will focus on certain substantive matters dealt with by the court in December. The next part will carry a summary of compliance measures taken by various authorities.

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S.Sushma v. DGP, Tamil Nadu and Ors WP No. 7281/2021 (August 2021 Hearing)

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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.

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S. Sushma and Anr. v. Commissioner of Police, Chennai and Others WP No. 7284/2021

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A COUPLE, THE PARENTS, AND THE POLICE

In early June, 2021, the Madras High Court gave a truly unique order. The occasion arose when a lesbian couple ran away from their parental homes. As is often seen in such cases, the parents of the two women filed missing complaints with the police. The police interrogated the couple at their residence. They failed to close the case upon learning that the women were adults and had left their homes of their own volition, once again, not an uncommon occurrence in such cases. Feeling threatened for their safety both by the police and their parents, the women filed for a writ of mandamus before the Madras High Court. A writ of mandamus is an instrument which directs a public body to perform its duty. They prayed for a writ directing the police not to harass them and to protect them from threat and danger from their parents. The government advocate who represented the police confirmed that the police will be instructed to provide protection, no longer interfere with the petitioners, and close the missing cases immediately. The court ordered accordingly. 

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Poonam Rani and Ors. v. State of UP and Ors. Writ C No. 1213 of 2021

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1.PROTECTION ORDERS

On the 20th of January, 2021, a Division Bench of the Allahabad High Court granted a protection order to two women in a live-in relationship. I have previously argued[1] that protection orders are privacy enhancing tools for queer women and transgender men in live-in relationships. Recorded cases show that live-in relationship related litigation is a unique category of litigation that queer women and transgender women face in the queer community. In this blog, I will discuss why protection orders can be an important legal instrument for queer women in live-in relationships and then specifically discuss the case at hand and the protection order granted therein. Protection orders can be utilized not just by queer couples but more generally by members of the queer community.

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Legal Discourses on Queer Women- Privacy

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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.