"Ignorance is no justification for normalizing any form of discrimination", said Justice Anand Venkatesh of the Madras High Court in a judgment which issued a slew of guidelines to ensure the protection of LGBTQIA+ persons in consensual relationships from police harassment.
To deal with a writ petition filed by two lesbian women seeking protection from police harassment at the instance of their parents, Justice Anand Venkatesh voluntarily underwent psycho-educational sessions and interactions with LGBTQI+ people to have a better understanding of their emotions and problems.
Justice Anand Venkatesh exhibited remarkable humility in the judgment to admit his "pre-conceived notions" about same-sex relationships and to explain the educative processes undertaken by him to overcome inherent prejudices and biases against them.
"I have no hesitation in accepting that I too belong to the majority of commoners who are yet to comprehend homosexuality completely.....The society and my upbringing have always treated the terms"homosexual", "gay", "lesbian" as anathema. A majority of the society would stand in the same position of ignorance and preconceived notions",he said in the judgment.
The judge also said in his judgment that he has never personally encountered a person of LBTQIA+ community and never had the opportunity to understand and appreciate their emotions and feelings.
"I realized, after a one-on-one interaction with the Petitioners, that it was I (us), who has to set off on a journey of understanding them and accepting them and shed our notions,and not they who have to turn themselves inside out to suit our notions of social morality and tradition", he said.
Judge undergoes psycho-educative sessions to break "pre-conceived notions".
To break his "pre-conceived notions", the judge decided to undergo psycho-educative sessions with professionals specialized in LGBTQIA+ issues. The Court also directed the parents of the petitioners to undergo psychological counselling with a professional counsellor.
Justice Anand Venkatesh attended a session with clinical psychologist Dr Vidya Dinkaran. The report of the psychologist regarding the interaction with the judge is completely extracted in the judgment(in paragraph 7).
The report says that the judge became aware of his own "flawed notions" only after interacting with the petitioners :
"A misconception that came to the forefront was how homosexuality is very often viewed only with a sexual connotation (i.e.), a relationship confined only to sex. The client(Justice Venkatesh) expressed how listening to the petitioners was when he realised the flawed notion he had and how two women came to be seen as a couple by the end of that discussion for him.
He came in with the awareness of the prejudice he holds. This was deepened by understanding how no two heterosexuals in a relationship will be judged immediately as being together only to engage in sex and it shouldn'tbe different for any two people with any other orientation", the report of the psychologist said.
After gaining a great amount of insight and understanding from Dr Vidya Dinakaran, Justice Venkatesh felt that a further interaction with person(s) who belong to the LGBTQIA+community would be greatly instrumental to help myself understand the ground realities, the emotions,social discrimination and exclusion, and several other difficulties faced by the community. Therefore, an interaction was scheduled with Dr. L.Ramakrishnan, Vice President, SAATHII, Ms. Shanmathi, PCVC,Dr. Trinetra Haldar Gummaraju, Digital-Content Creator, Actor, MBBS Intern – Kasturba Medical College and her mother Ms. Haima Haldar .Dr. Trinetra, a transwoman herself shared her journey and lived experiences with the judge.
"This session ultimately convinced me that I must change all my preconceived notions and start looking at persons belonging to the LGBTQIA+ community as they are. I must frankly confess that the Petitioners, Ms. Vidya Dinakaran and Dr. Trinetra became my gurus who helped me in this process of evolution and pulled me out of darkness(ignorance)", the judge noted in his judgment.
The judge clarified that the psycho-educative sessions were organized not because it was felt that the petitioners had psychological anomalies but to help himself understand their relationship in a better manner.
The judge added in the judgment :
"Unlike regular litigations, the present case has given this Court, not only an opportunity but also a vested responsibility to weigh the cause for inclusivity and justice against discrimination by heretofore social understanding of morality and notions of tradition. That being said, I also felt that I remove the "Lordship's" hat and instead wear the hat of the average commoner in the society, who have not given thought to understand or accept, who are attempting to understand, who totally refuse to understand or accept the LGBTQIA+ community. I have no hesitation in accepting that I too belong to the majority of commoners who are yet to comprehend homosexuality completely. Ignorance is no justification for normalizing any form of discrimination.
Therefore, I took upon myself, the vested responsibility and the duty to deliver justice in all its forms and spirit, of cutting across personal prejudices and notions and setting forth to, at the least, educate myself lest my ignorance interfere with in guiding homosexuality and the LGBTQIA+ community towards social justice. I believe in all honesty and sincerity that even if my endeavor inspires, informs and changes a small collective of persons in understanding and accepting the LGBTQIA+ community, I would have achieved in delivering justice in its true spirit against discrimination and towards inclusivity".
Love and emotions of same-sex couple the same as hetrosexual persons
Justice Venkatesh further explained in the judgment how he came to an understanding that the love and emotions the people in a same-sex relationship feel for each other are the same as those expressed and felt by those in a hetrosexual relationship.
"To begin with, if someone had approached me saying that they are attracted to or are in a relationship with a person of the opposite sex, Iw ould have had no difficulty in understanding them, since I have experienced the same personally. Similarly, I would have probably had no difficulty in understanding or sharing someone's happiness, joy or anguish and sadness. This is because, I have personally experienced those emotions as well. Such parallels can be drawn endlessly. I have never personally known homosexual persons, and 'what do any other know about the shoes he has never walked', for I have not walked in their shoes. The society and my upbringing have always treated the terms"homosexual", "gay", "lesbian" as anathema. A majority of the society would stand in the same position of ignorance and preconceived notions.I have, at the best, read or come across people talking about the LGBTQIA+ community, but not to an extent where it made a positive impact on me or influenced me"
"If I have to figuratively describe the change in my perspective from right at the start of the conversation and to the time it ended, the Petitioners described their love and companionship in exact terms of how two cis-heterosexuals, in my understanding would have addressed their relationship. Whatever they said sounded very natural and made me question myself as to where the conflict actually arises. This change happened within mere duration of 15 minutes.
Therefore, as mentioned earlier, the only reason for referring the Petitioners to counselling was to enable myself to understand something more about this relationship from a professional. To reiterate my position, I am venturing into unchartered territory and without my understanding the issue, the final outcome will only be half-baked and ineffective. Upon going through the report of the psychotherapist, I gained better understanding than I had at the commencement of the proceeding and that the second phase involved a further counselling for the parents and a psycho-educational session for myself explains that it had nothing to do with assessing where the Petitioners stand"
The Court has issued a slew of guidelines to ensure that LGBTQIA persons are not harassed by police and authorities. The Court has also issued directions for holding sensitization programs for police, judiciary, schools etc. Detailed story on the guidelines may be read here.
"...the actual problem is not the fact that the law does not recognise a relationship but that the sanction that is accorded by the society is not available. It is only for this reason, I strongly feel that the change must take place at a societal level and when it is complemented by a law there will be a remarkable change in the outlook of the society by recognising same-sex relationships", the Court said in the case S. Sushama and another v Commissioner of Police and others.
The Court observed that legislative changes are needed to eradicate the social discrimination against LGBTQIA+ community and to ensure the protection of their life and dignity. In this regard,the court mentioned how legislative interventions are changing the attitude towards persons with disabilities and mental illness. The Court called for similar legislative interventions with respect to LGBTQIA+ community as well.
"Till the legislature comes up with an enactment, the LGBTQIA+ community cannot be left in a vulnerable atmosphere where there is no guarantee for their protection and safety. This gap is now sought to be filled in by way of issuing guidelines till law takes over and guarantees safety and protection", the Court said while proceeding to issue certain guidelines.
Title : S. Sushama and another v Commissioner of Police and others.
Bench : Justice Anand Venkatesh
Appearances : S Manuraj for petitioners; Hasan Mohammed Jinnah State Public Prosecutor; Shanmugasundaram Advocate General Assisted by Ms.Shabnam Banu Government Counsel; Shankaranayanan Additional Solicitor General Assisted by Mr.V.Chandrasekar Central Government Standing Counsel