Supreme Court Issues Guidelines For Dealing With Habeas Corpus Or Police Protection Matters Involving LGBTQ+/Inter-Faith/Inter-Caste Couples

The Court discovered that the Kerala High Court had been passing orders directing the counselling of LGBTQ+ after it was argued that “there is an apprehension that the counselling should not turn out into a means to overcome the will of the corpus particularly in regard to their sexual orientation.”

Chief Justice DY Chandrachud, Justice J.B. Pardiwala, and Justice Manoj Misra observed, “Ascertaining the wishes of a person is one thing but it would be 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.”

Advocate M.S. Vishnu Sankar represented the appellant, while Advocate Anu K Joy appeared for the respondents.

The High Court had issued interim orders in response to a petition for a writ of habeas corpus filed by a woman alleging that her partner was being forcibly held by her parents and sought her release. It turned out that the partner was living with her parents of her own volition and that she did not wish to live with any person for the time being.

The Court stated that it had no reason to disbelieve the said statements and consequently, declined to entertain the SLP.

The Court remarked, “The concept of ‘family’ is not limited to natal family 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 of their natal family.”

In light of this, the Court issued the following directions for dealing with habeas corpus petitions or petitions for police protection:

• Prioritizing habeas corpus petitions and petitions for protection filed by partners or friends of the detained individual.
• Conducting in-camera proceedings to ensure privacy and safety during interactions with the detained individual.
• Avoiding undue influence on the detained individual's wishes, especially concerning their sexual orientation or gender identity.
• Granting immediate release if the detained individual expresses a desire not to return to their alleged detainer.
• Prohibiting courts from directing counseling or parental care, focusing solely on ascertaining the individual's will.
• Maintaining neutrality and respect for LGBTQ+ identities throughout legal proceedings.

Accordingly, the Supreme Court disposed of the appeal with these guidelines:

a. Habeas corpus petitions and petitions for protection filed by a partner, friend or a natal family member must be given a priority in listing and hearing before the court. A court must avoid adjourning the matter, or delays in the disposal of the case;

b. In 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;

c. The effort must be to create an environment conducive for a free and uncoerced dialogue to ascertain the wishes of the corpus;

d. The court must ensure that the corpus is produced before the court and given the opportunity 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;

e. The court must ensure that the wishes of the detained person is not unduly influenced by the Court, or the 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

f. Upon securing the environment and inviting the detained or missing person in 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;

g. A court 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;

h. 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;

i. 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;

j. 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. Therefore, a court while dealing with a petition for police protection by intimate partners on the grounds that they are a same sex, transgender, inter-faith or inter-caste couple 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;

k. The Court shall not pass any directions for counselling or parental care when the corpus is produced before the Court. The role of the Court is 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;

l. 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; and m. 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

The above guidelines must be followed in letter and spirit as a mandatory minimum measure to secure the fundamental rights and dignity of intimate partners, and members of the LGBTQ+ communities in illegal detention. The court must advert to these guidelines and their precise adherence in the judgment dealing with habeas corpus petitions or petition for police protection by intimate partners.

Cause Title: Devu G Nair v. The State of Kerala & Ors. (Neutral Citation: 2024 INSC 228)

Appearance:

Appellant: AOR Sriram Parakkat; Advocates M.S. Vishnu Sankar, Sreenath S., Koshy John, Athira G. Nair and Adithya Santosh

Respondents: AOR Nishe Rajen Shonker and Sandeep Sing; Advocates Anu K Joy, Alim Anvar and Sayooj Mohandas M

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