In a significant judgment upholding the rights of members of LGBTQIA+ community, the Madras High Court has issued a slew of guidelines to ensure that they are not harassed by police in missing complaints lodged by their parents.
While considering a writ petition filed by two lesbian women against police harassment, a single bench of Justice Anand Venkatesh noted that a societal change is needed in the approach towards LGBTQIA+ relationships. The hostilities they face are due to the fact that their relationship do not enjoy societal sanction.
"...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.
The Court issued the the following interim guidelines/directions:
A.The police, on receipt of any complaint regarding girl/woman/man missing cases which upon enquiry/investigation is found to involve consenting adults belonging to the LGBTQIA+ community, shall upon receipt of their statements, close the complaint without subjecting them to any harassment.
B.The Ministry of Social Justice & Empowerment (MSJE), has to enlist Non-Governmental Organizations (NGOs) including community-based groups which have sufficient expertise in handling the issues faced by the LGBTQIA+ community. The list of such NGOs along with the address, contact details, and services provided shall be published and revised periodically on the official website. Such details shall be published within 8 weeks from the date of receipt of copy of this order.
C.Any person who faces an issue for the reason of their belongingness to the LGBTQIA+ community may approach any of the enlisted NGOs for safeguarding and protecting their rights
D.The concerned NGO in consultation with the MSJE, shall maintain confidential records of such persons who approach the enlisted NGOs and the aggregate data shall be provided to the concerned Ministry bi-annually.
E.Such problems shall be addressed with the best-suited method depending on the facts and circumstances of each case be it counselling, monetary support, legal assistance with the support of District Legal Services Authority, or to co-ordinate with law enforcement agencies about offenses committed against any persons belonging to the LGBTQIA+ community.
F.With specificity of issue of accommodation, suitable changes are to be made in existing short stay homes, Anganwadi shelters, and "garima greh" (a shelter home for transgender persons, the purpose of which is to provide shelter to transgender persons, with basic amenities like shelter, food, medical care and recreational facilities. Besides, it will provide support for capacity-building/skill development of persons in the community, which will enable them to lead a life of dignity and respect) to accommodate any and every member of the LGBTQIA+ community, who require shelters and/or homes. The MSJE shall make adequate infrastructural arrangements in this regard, within a period of 12 weeks from the date of receipt of copy of this order.
G.Such other measures that are needed for eliminating prejudices against the LGBTQIA+ community, and channelizing them back into the mainstream shall also be taken up. The Union and State Governments respectively, in consultation with such other Ministries and/or Departments shall endeavour to device such measures and policies.
H.For the sake of creating awareness, this Court suggests following sensitization programs to be conducted by the concerned Ministry of the Union/State Government(s)(The judgment lists out an indicative list of sensitization programs).
The High Court noted that the Supreme Court has decriminalized homosexuality between consenting adults by reading down Section 377 of the Indian Penal Code in the 2018 Navtej Singh Johar judgment. It noted that the Supreme Court has held discrimination against homosexauls for their sexual orientation as discrimination on the ground of 'sex' under Article 15 of the Constitution.
Judge undergoes counselling to understand homosexuality
A highlight of the judgment is that Justice Anand Venkatesh details the counselling process underwent by him to understand the problems faced by homosexual persons, by shedding his personal ignorance and prejudices.
In what comes across as a laudable expression of humility and willingness to learn, Justice Venkatesh says in his judgment that the psyho-educative sessions and interactions with LGBT community convinced him that he "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)."
"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".
The judge says 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", Justice Venkatesh says in his judgment
"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. 15. 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"
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