A Madras High Court judge shed his "preconceived notions" about same-sex relationships and banned attempts of "conversion therapy". The high court also issued a slew of guidelines to ensure that the queer community is protected from harassment.
The high court also directed the police to take strict actions against those attempting to 'cure' or change a person's sexual orientation.
The court directed the police to close all missing person complaints, without harassment, if after an investigation it was found that they involved consenting adults in same-sex relationships. The court further directed sensitization and outreach programs to be conducted for police, officials of the Centre, States, judiciary, educational institutions, and prison authorities to understand the rights of members of the LGBTQIA+ community.
The High Court's order came following a plea filed by a same-sex couple seeking police protection from irate parents.
The high court ruled that sexual autonomy of LGBTQIA+ persons, just like a cis person's "is an essential aspect of the right of privacy which is another right recognised and protected under Article 21 of the Constitution." The high court's order comes at a time when global communities celebrate June as Pride Month.
"After the decision in Navtej Singh Johar (cited supra), it is no longer open to doubt that Article 21 of the Constitution protects and guarantees to all individuals, complete autonomy over the most intimate decisions to their personal life, including their choice of partners," Justice N Anand Venkatesh said. "Furthermore, the enactment of the Transgender Persons (Protection of Rights) Act, 2019 is a clear pointer that Parliament has recognized varying forms of sexual identity," he added.
The grounds for non-discrimination as enumerated in Article 15 of the Indian Constitution are not "water-tight compartments to be viewed divorced from discrimination…", the judge said. Rather, they are "merely instruments to find and eliminate discrimination and are, therefore, a means to an end."
"Discrimination is not a self-referencing concept. A meaningful attempt to identify and eliminate discrimination must necessarily involve the identification and protection of the constitutional values of personal autonomy, dignity, liberty, and privacy," the judge observed.
The high court, while granting protection to the same-sex couple, further directed the Centre and the state to primarily focus on stamping out prejudices and device measures to channelise members of the LGBTQIA+ community "back in the mainstream".
Justice Venkatesh has kept the matter open in order to monitor compliance with his orders.
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"Petitioners became my gurus who helped me in this process of evolution"
Justice Venkatesh in his June 7 order noted that his directions were borne from his interaction with a counselor who helped him understand the plight of the queer community. Justice Venkatesh added that he shed his bias after meeting with members of the community who helped him understand the "ground realities, the emotions, social discrimination and exclusion", and several other difficulties faced by the queer community.
"Dr. Trinetra, a transwoman herself, generously accepted to share her journey and lived experiences, and the same furthered my holistic understanding of the LGBTQIA+ community," the judge further noted in his order. This interaction helped the judge clear many of his "personal misconceptions on the issue," the order noted.
"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)," Justice Venkatesh added.
While dealing with this plea, Justice Venkatesh on March 29 had acknowledged attempts to break his own preconceived notions. "To be open, I am also trying to break my own preconceived notions about this issue, and I am in the process of evolving, and sincerely attempting to understand the feelings of the petitioners and their parents, thereafter, proceed to write a detailed order on this issue," the order had read.
Justifying the elaborate exercise that was undertaken before this order was issued, as opposed to simply researching on the issue and relying on constitutional judgments, Justice Venkatesh said "unlike regular litigations", the present case gave this Court, "not only an opportunity but also a vested responsibility to weigh the cause for inclusivity and justice against discrimination by a heretofore social understanding of morality and notions of tradition."
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Society "hell-bent against same-sex relationships"
In his order, the judge said that he had "no hesitation in accepting" that he too belonged to the majority of commoners who are yet to comprehend homosexuality completely. However, the judge noted that "ignorance is no justification for normalizing any form of discrimination".
The voice of this community is now getting louder and stronger and the society can no more turn a deaf ear and a time has come to make that change, Justice Venkatesh said. "Both these relationships as they stand today do not have any legal sanctity and it is not recognised by any existing law. However, the society does not have any problem in recognising a live-in relationship between two cis-heterosexuals, but it is hell-bent against same-sex relationships," he added.
The high court further noted that the actual problem faced by the queer community was the fact that society did not sanction their relationship. "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 judge noted in his order.
Acknowledging that a law cannot be effective without it being acknowledged by the society and that it is not going to happen overnight, the judge said, "It requires regular deliberation and it has to necessarily fall out very strongly from the constitutional institutions and I believe that the judiciary and particularly the constitutional courts have a major role to play in spreading this awareness and awakening the society."
In the 107-page order, the judge wrote, "I sincerely hope that the legislature also starts evincing more interest on this very important issue. This is more so since people, especially the present generation have started talking more about it and they are desperately wanting to find a solution at least to the extent that persons of the LGBTQIA+ community are left to live peacefully," the judge added.
"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," Justice Venkatesh concluded.
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What Are The Guidelines?
The court issued a set of guidelines adding that it expects the authorities and institutions to implement them not just for the sake of complying with a judicial fiat but to ensure that the queer community is not pushed out of the mainstream.
1. The Ministry of Social Justice & Empowerment (MSJE) is directed to enlist and publish details of NGOs including community-based groups which have sufficient expertise in handling the issues faced by the LGBTQIA+ community.
2. 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.
4. 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.
5. Such problems shall be addressed with the best-suited method depending on the facts and circumstances of each case be it counseling, monetary support, legal assistance with the support of District Legal Services Authority, or coordination with law enforcement agencies about offenses committed against any persons belonging to the LGBTQIA+ community.
6. Suitable changes must be made within 12 weeks to existing Short Stay Homes, Anganwadi shelters, and "Garima greh" (shelter home for transgenders), to accommodate same-sex couples. The Centre shall make adequate infrastructural arrangements in this regard.
7. Centre and the state shall undertake such other measures that are needed for eliminating prejudices against the LGBTQIA+ community and channelizing them back into the mainstream.
8. Educational Institutions are directed to make necessary amendments to their policies to include students belonging to the LGBTQIA+ community. These also include ensuring the availability of gender-neutral restrooms for gender-nonconforming students; allowing change of name/gender on academic records for transgender persons; Inclusion of Transgender as an option in addition to M (male) and F (female) gender columns; Appointment of counselors who are LGBTQIA+ inclusive, for the staffs and students to address grievances, if any, and to provide effective solutions for the same.
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