The Supreme Court has come up with a slew of guidelines for the courts to follow while dealing with petitions filed by couples seeking protection, advising the courts not to make any roving enquiry into the nature of their relationships.
The guidelines were issued by the Bench of Chief Justice of India (CJI) DY Chandrachud, Justice JB Pardiwala and Justice Manoj Misra on a Habeas Corpus petition alleging illegal detention of a woman’s lesbian partner by her parents.
The Apex Court observed that clear guidelines needed to be formulated for the courts dealing with habeas corpus petitions and petitions seeking protection of couples from family members or police interference
It directed the courts to follow them in ‘letter and spirit’ as a ‘mandatory’ minimum measure to secure the fundamental rights and dignity of intimate partners, including the members of LGBTQ+ community.
The courts were further directed against passing moral judgments against such couples, stating that social morality laden with homophobic or transphobic views or any personal predilection of the judge or sympathy for the natal family must be eschewed. The court must ensure that the law was followed in ascertaining the free will of the detained or missing person, it noted.
It said that same-sex, transgender, interfaith, or inter-caste couples must be provided immediate protection before the Court requires them to establish the threats they face.
The guidelines said that the age of a party must not be a ground to dismiss a habeas corpus petition at the threshold stage.
The High Courts were particularly warned against attempts to ‘overcome’ the identity and sexual orientation of an individual by a process of purported counselling.
The Bench was apprised that the Kerala High Court was frequently passing orders directing counselling in same-sex couple matters. It observed that the directions for counselling or parental care have a deterrent effect on members of the LGBTQ+ community.
It said the importance of a chosen family was sometimes lost to the traditional assumption that the natal family was respectful of a person’s choices and freedoms.
The Courts must not wittingly or unwittingly become allies in this misunderstanding, more so in cases involving habeas corpus petition, petitions for protection of the person, or in missing persons’ complaints, it added.
As per the guidelines, Habeas corpus petitions and petitions for protection filed by a partner, friend or a natal family member must be given priority in listing and hearing before the court. A court must avoid adjourning the matter, or delays in the disposal of the case;
While evaluating the locus standi of a partner or friend, the court must not make a roving enquiry into the precise nature of the relationship between the appellant and the person.
Efforts must be made towards creating a conducive environment for a free and uncoerced dialogue to ascertain the wishes of the corpus.
The court must ensure that the corpus was produced before the court and allowed to interact with the judges in-person in chambers to ensure the privacy and safety of the detained or missing person. The court must conduct in-camera proceedings. The recording of the statement must be transcribed and the recording must be secured to ensure that it is not accessible to any other party, it maintained.
The guidelines further directed the courts to ensure that the wishes of the detained person were not unduly influenced by the Court, police, or the natal family during the course of the proceedings.
In particular, the court must ensure that the individuals(s) alleged to be detaining the individual against their volition are not present in the same environment as the detained or missing person.
Similarly, in petitions seeking police protection from the natal family of the parties, the family must not be placed in the same environment as the petitioners.
Upon securing the environment and inviting the detained or missing person into chambers, the court must make active efforts to put the detained or missing person at ease. The preferred name and pronouns of the detained or missing person may be asked. The person must be given a comfortable seating, access to drinking water, and washroom. They must be allowed to take periodic breaks to collect themselves. The judge must adopt a friendly and compassionate demeanor and make all efforts to defuse any tension or discomfort. Courts must ensure that the detained or missing person faces no obstacles in being able to express their wishes to the court.
The courts were directed that while dealing with the detained or missing person may ascertain the age of the detained or missing person. However, the minority of the detained or missing person must not be used, at the threshold, to dismiss a habeas corpus petition against illegal detention by a natal family;
The judges must showcase sincere empathy and compassion for the case of the detained or missing person. Social morality laden with homophobic or transphobic views or any personal predilection of the judge or sympathy for the natal family must be eschewed. The court must ensure that the law is followed in ascertaining the free will of the detained or missing person;
If a detained or missing person expresses their wish to not go back to the alleged detainer or the natal family, then the person must be released immediately without any further delay;
The court must acknowledge that some intimate partners may face social stigma and a neutral stand of the law would be detrimental to the fundamental freedoms of the appellant.
While dealing with a petition for police protection by intimate partners on the grounds of being of the same sex, transgender, inter-faith or inter-caste couple, the courts must grant an ad-interim measure, such as immediately granting police protection to the petitioners, before establishing the threshold requirement of being at grave risk of violence and abuse. The protection granted to intimate partners must be with a view to maintain their privacy and dignity;
The courts were directed not to pass any directions for counselling or parental care when the corpus was produced before the Court. The role of the Court was limited to ascertaining the will of the person. The Court must not adopt counselling as a means of changing the mind of the appellant, or the detained/missing person.
The Judge during the interaction with the corpus to ascertain their views must not attempt to change or influence the admission of the sexual orientation or gender identity of the appellant or the corpus. The court must act swiftly against any queerphobic, transphobic, or otherwise derogatory conduct or remark by the alleged detainers, court staff, or lawyers.
Observing that sexual orientation and gender identity fell in a core zone of privacy of an individual, the Apex Court said these identities were 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, it added.
The petitioner was represented by Advocate Sriram P.
Advocates Nishe Rajen Shonker, Anu K Joy, Alim Anvar; Sayooj Mohandas M, S Jyotiranjan and Sandeep Singh appeared for the respondents.