Sexual preferences were once again the crux of a legal battle which unfolded in the Kerala High Court where the love affair of two women was taken in by the Court with raised eyebrows and a reprimand. A judicial intervention by the apex court, however, ensured that LGBTQ+ couple’s rights are protected from wanton intervention by courts and society
By Sanjay Raman Sinha
“I am what I am, so take me as I am”
—German writer Johann Wolfgang von Goethe
The case in the Kerala High Court involving the love affair of two women created a stir when the bench while considering a habeas corpus petition issued an order directing the alleged lesbian partner to undergo counselling. This order was challenged by the partner in the Supreme Court, where a bench, comprising Chief Justice of India (CJI) DY Chandrachud and Justices JB Pardiwala and Manoj Misra took strong exception to the High Court’s order and asked the Court not to pass any directions for the counselling or parental care when such marginalized people are produced before the Court.
CJI Chandrachud, a votary of gender rights, wrote: “It is completely inappropriate to attempt to overcome the identity and sexual orientation of an individual by a process of purported counselling. Judges must eschew the tendency to substitute their own subjective values for the values which are protected by the Constitution.”
The writ petition for habeas corpus was moved by the woman in the Kerala High Court in regard to her lesbian partner. It was alleged in the petition that the partner was being forcibly kept by her parents in their custody even when she wished to remain with her. The Kerala High Court had ordered the Secretary of the jurisdictional District Legal Services Authority to visit the parents of the partner and record her statement to find out if she was really under illegal detention. After interaction with woman, the High Court proceeded to direct the partner to undergo a counselling session with a psychologist.
The order was challenged by the woman’s partner in the Supreme Court. The apex court upbraided the Kerala High Court bench, saying: “The importance of a chosen family is sometimes lost to the traditional assumption that the natal family is respectful of a person’s choices and freedoms. Courts must not wittingly or unwittingly become allies in this misunderstanding, more so in cases involving habeas corpus petition.” In the same breath, the Supreme Court bench set out guidelines for the courts to deal with habeas corpus petitions or petitions dealing with LGBTQ+ rights.
LGBTQ+ rights, which includes rights for lesbian, gay, bisexual, transgender and queer individuals, gained prominence in India after the battle for sexual preference rights was won in 2018 in the historical Navtej Singh Johar case which decriminalised all consensual sex among adults, including homosexual people. Laws now bat for equal rights, dignity and protection of LGBTQ+ individuals and aim to stop discrimination and ensure their full participation in the society.
CJI Chandrachud wrote in this particular Kerala case: “Sexual orientation and gender identity fall in a core zone of privacy of an individual. These identities are a matter of self-identification and no stigma or moral judgment must be imposed when dealing with cases involving parties from the LGBTQ+ community. Courts must exercise caution in passing any direction or making any comment which may be perceived as pejorative.”
These words of the CJI are reminiscent of his stand in the nine-judge bench decision in KS Puttaswamy case wherein he had opined that sexual orientation is an essential component of rights guaranteed under the Constitution which are not formulated on majoritarian favour or acceptance.
In the NALSA case, while dwelling on the status of identity of the transgenders, Justice Radhakrishnan had asserted that gender identity is one of the most fundamental aspects of life which refers to a person’s intrinsic sense of being male, female or transgender or transsexual person. In the seminal Naz Foundation case, the Delhi High had taken the view that Article 15 of the Constitution prohibits discrimination on several enumerated grounds, including sex. The High Court preferred an expansive interpretation of “sex” so as to include prohibition of discrimination on the ground of “sexual orientation” and “that sex-discrimination cannot be read as applying to gender simpliciter”.
The corpus of verdicts supporting LGBTQ+ rights have grown over the years. A whole jurisprudence has developed on the issue, and most importantly, the basic rights have been shown to be yoked to the constitutional guarantees of right to life and right to equality. The constitutional underpinnings of the rights have emboldened the marginalized community members to come out of the closet and demand and fight for their rightful place under the sun. Fear of societal discrimination had often forced LGBTQ+ individuals to conceal their sexual orientation; now slowly the “mind is without fear and the head is held high”.
CJI Chandrachud’s emphatic assertion to basic rights includes LGBTQ+ individuals: “right to privacy cannot be denied even if there is a minuscule fraction of the population which is affected,” he said. In the Navtej judgment, three essentials were underscored by the Supreme Court. These triune cardinal features form the cornerstone of jurisprudence till date. The Navtej verdict held right to privacy as encompassing people with alternate sexual orientation.
Earlier, the Supreme Court in its 2017 KS Puttaswamy order had already recognized the right to privacy as a fundamental right. In the Navtej case, the Court held that it includes the right to make choices about one’s sexual orientation. Secondly, the Court underlined the principles of equality and non-discrimination, as applied to the LGBTQ+ community members. Thirdly, the Court stressed on the concepts of dignity and individual autonomy, asserting that criminalizing consensual same-sex relationships goes against these principles and breach individual’s right to lead a life of their choice. That is to “let be”.
Today, while international human rights treaties obligates States to protect all individuals from violations of their human rights, including on the basis of their sexual orientation, the ground realities continue to defy pacts and laws. The onus is therefore on a sensitized judiciary to hold hands of the stakeholders in order to ensure an unprejudiced milieu where “the love that dare not speak its name” can flower.