New Delhi: The concept of a family is not limited to “natal family,” but encompasses a person’s chosen family. With this observation, the Supreme Court laid down guidelines for High Courts to deal with habeas corpus petitions or petitions for police protection.
Habeas corpus petitions are usually filed by a partner, friend or a family member seeking direction to the police to produce the “corpus”, meaning a person who is missing, untraceable or is in someone’s illegal custody, in the court.
Petitions for police protection are normally filed by inter-caste runaway couples or LGBTQ+ couples when they fear societal oppression over their choice of partner.
A bench led by Chief Justice D.Y. Chandrachud took strong exception to High Courts passing orders directing counselling of LGBTQ couples, expressing apprehension that such counselling sessions turn into a means to overcome the will of a person particularly in regard to their sexual orientation.
“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,” read one of the guidelines underscored by the SC for high courts.
Though the judgment was delivered on 11 March, its formal copy was uploaded on the Supreme Court website Wednesday.
Asking the HCs to follow its guidelines in “letter and spirit” as a mandatory minimum measure to secure the fundamental rights and dignity of intimate partners, particularly the LGBTQ+ communities, the top court restrained the courts from passing any directions for counselling or parental care when the corpus is produced before the court. It said the court’s role is limited to ascertaining the will of the person and not to counsel the detained or missing person.
Further, the top court advised the HCs to grant interim police protection to inter-faith, inter-caste or LGBTQ+ couples immediately upon filing of a petition. This, SC said, should be done 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 court said.
The SC judgment came on a woman’s petition challenging the Kerala High Court’s January 2023 direction, asking her lesbian partner to undergo a counseling session with a psychologist.
AS per the petitioner’s case, she and her partner were in an intimate relationship, before the latter’s parents forcibly kept her in their custody, which was apparently against her wishes.
In response, the HC had directed the secretary of the jurisdictional district legal services authority to visit the partner’s house and meet her parents. The police were also told to produce the partner before the court secretary legal services authority to facilitate an interaction with the HC.
After the interaction, which took place in February 2023, the HC proceeded to direct the partner to undergo a counselling session.
Upon receiving the petition, the SC directed an interview to be arranged between the partner and judicial officer Saleena V.G. Nair. A report was also sought from the Principal Judge of the Family court.
Both Nair and the Principal Judge submitted in their report that the partner is a major and she intends to become a lecturer. She also told the two officers that she was living with her parents out of her own volition.
While she has stated that the petitioner is an “intimate friend” of hers, she submitted that she does not wish to marry any person or live with any person for the time being.
Deprecating the HC direction on counselling, the top court observed: “Directions for counseling or parental care have a deterrent effect on members of the LGBTQ+ community.”
It added: “Courts must bear in mind that the concept of ‘family’ is not limited to natal families but also encompasses a person’s chosen family. This is true for all persons. However, it has gained heightened significance for LGBTQ+ persons on account of the violence and lack of safety that they may experience at the hands.”
“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, petitions for protection of the person, or in missing persons’ complaints,” the court said.
During the interaction with the corpus, to ascertain their views, HC must not attempt to change or influence the admission of the sexual orientation or gender identity of either the petitioner or the corpus.
In case the detained or missing person expresses their wish to not go back, the court must immediately release the corpus, without any further delay, and hold the SC guidelines.
(Edited by Zinnia Ray Chaudhuri)
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