- Facts
The proceedings were under article 136 of the Indian constitution and arose from the interim orders of the Kerala high court on 13th January 2023 and 02nd February 2023 in a petition seeking a writ of habeas corpus.
A writ of habeas corpus is a legal recourse that allows a person to appeal to a court if they believe they are being unlawfully detained or imprisoned. The term literally means “to have a body of”, and the writ requires the person’s custodian to bring them to court so the court can determine if their detention is legal. If the court finds that the detention was unlawful, it can order the person’s release.
The Kerala High Court faced a petition seeking a writ of habeas corpus, which was filed on behalf of an individual referred to as ‘X’, who contended that she was being held against her will by her parents and wished to be with the appellant. This situation prompted the High Court to take several procedural steps to address the claims made.
On January 13, 2023, during the initial phase of the case, the High Court issued an order for the Secretary of the District Legal Services Authority (DLSA) to visit the home of ‘X’s’ parents, identified as the fourth and fifth respondents in this matter. The purpose of this visit was to record ‘X’s’ statement and determine whether she was being unlawfully detained. This preliminary measure aimed to establish the veracity of the claim that ‘X’ was being held against her wishes. If it was found that ‘X’ was indeed under illegal detention, the Station Head Officer of the local police station was instructed to ensure that ‘X’ was presented before the Secretary of the DLSA. This step was intended to facilitate a video conferencing session with the High Court, allowing for a direct interaction between ‘X’ and the court. The presence of ‘X’s’ parents was also permitted during this video conference to ensure transparency and fairness in the proceedings.
On January 31, 2023, the High Court took additional action by directing ‘X’ be produced before the Secretary of the DLSA on February 2, 2023 intended to enable ‘X’ to interact directly with the court, after which it was decided that ‘X’ should undergo a counseling session with a psychologist affiliated with a counseling center. This decision aimed to provide ‘X’ with professional support and further assess her situation.
In response to these developments, on February 6, 2023, the court issued notice and interim directions. The parents of ‘X’ were instructed to present her at the Family Court in Kollam by 5:00 PM on February 8, 2023. Additionally, the Principal Judge of the Family Court was tasked with arranging an interview between ‘X’ and Ms. Saleena V. G. Nair, a Member of the e-Committee of the Supreme Court, who was then on deputation in the judicial service of Kerala.
The purpose of this interview was to determine ‘X’s’ true intentions and whether her current living arrangement was voluntary or the result of illegal detention. The Principal Judge of the Family Court coordinated the modalities for this interview, and Ms. Nair was directed to submit a detailed report on her findings.
Ms. Saleena V. G. Nair’s comprehensive report revealed that ‘X’ had been given adequate time to express her intentions and reflect on her statements. According to the report, ‘X’, who is an adult holding a Master’s degree in Arts, expressed a clear desire to focus on her career as a lecturer and stated, she had the freedom to use a mobile phone and move as she pleased, and affirmed that she was living with her parents by her own choice. Although she referred to the appellant as an “intimate friend,” she made it clear that she did not wish to marry or live with anyone at that time.
Given these findings, the Court found no reason to dispute the conclusions presented in Ms. Nair’s report. The evidence indicated that ‘X’ was not being unlawfully detained but was residing with her parents voluntarily. Consequently, the Court decided not to entertain the Special Leave Petition, thereby upholding the High Court’s decision and concluding the matter based on the presented evidence and reports.
- Issues raised
(i) Whether the conversion therapy was valid?
(ii) Were the rights of the respondent and petitioner violated?
- Contention
Petitioner’s contention
The appellant, represented by Advocates M.S. Vishnu Sankar, Sreenath S., Koshy John, Athira G. Nair, and Adithya Santosh, has filed a special leave petition challenging the interim orders passed by the Kerala High Court on January 13 and February 2, 2023. The petitioner’s counsel argues that these orders are legally flawed and raises significant questions about the legitimacy of “conversion therapy.” They assert that the High Court should have allowed the alleged detainee to appear in person before the court to make her statement, rather than deciding based solely on the submissions and evidence presented by the respondents. Furthermore, the petitioner claims that the interim orders have infringed upon both their and the detainee’s fundamental rights, maintaining that these violations have persisted since January 9, 2023.
Respondent’s contention
The respondents countered the petitioner’s claims by asserting that the individual in question, referred to as X, was not unlawfully detained as alleged. They further contended that X had no intention of marrying the appellant and was instead focused on pursuing her career. According to the respondents, X’s decision to concentrate on her professional aspirations negates any claim of unlawful detention or coercion, thereby justifying the actions taken under the disputed interim orders.
- Rationale
The ratio decidendi of this case was that *conversion therapy*, a practice aimed at changing an individual’s sexual orientation or gender identity, is unconstitutional as it violates the fundamental rights guaranteed under the Indian Constitution, particularly Articles 14, 15, 19, and 21.
The Kerala High Court held that:
1. Right to Life and Personal Liberty (Article 21): The court affirmed that the right to life includes the right to live with dignity and privacy. Any practice that seeks to forcibly alter an individual’s inherent sexual orientation or gender identity infringes upon this right. Conversion therapy subjects LGBTQ+ individuals to mental and physical trauma, which is contrary to the principles of human dignity and personal liberty.
2. Equality Before Law (Article 14) and Non-Discrimination (Article 15): The court emphasized that all individuals, regardless of their sexual orientation or gender identity, are entitled to equal protection under the law. Conversion therapy discriminates against LGBTQ+ individuals by treating their identity as a condition that requires “correction,” which violates the right to equality and non-discrimination.
3. Freedom of Expression (Article 19): The court underscored that forcing individuals to undergo conversion therapy curtails their freedom of expression by denying them the right to express their true identity.
- Defects of law
India, with its diverse culture and deep-rooted traditions, has long faced challenges regarding LGBTQ+ rights within its legal system. The struggle for equality is intertwined with colonial-era laws and prevailing societal norms. The LGBTQ+ community has faced numerous legal battles, from the criminalization of same-sex relationships to the fight for marriage equality and adoption rights. Though significant progress has been made, substantial challenges remain.
The colonial-era Section 377 of the Indian Penal Code, which criminalized same-sex relationships, had adversely impacted the LGBTQ+ community for nearly 150 years. However, in 2018, the Supreme Court’s landmark ruling in the Navtej Singh Johar case declared this section unconstitutional, decriminalizing same-sex relationships and affirming the right to love and intimacy. Despite this victory, same-sex marriage remains unrecognized under Indian law. Influenced by religious customs, the Indian Marriage Laws do not permit same-sex unions, denying LGBTQ+ couples rights like property ownership, inheritance, and adoption.
Adoption and parenting rights for LGBTQ+ individuals also remain constrained. The Surrogacy (Regulation) Bill of 2019 restricts surrogacy to heterosexual married couples, further excluding LGBTQ+ families. Despite such hurdles, there have been notable rulings, like the Delhi High Court’s recognition of cohabiting same-sex partners in 2020 and the Madras High Court’s acknowledgment of transgender marriages under the Hindu Marriage Act.
While progress is evident, India must undertake legislative reforms to achieve full equality for LGBTQ+ individuals, including legal recognition of same-sex unions, adoption rights, and comprehensive anti-discrimination laws.
- Inference
For LGBTQ+ persons, chosen families comprising friends, partners, and allies often offer a haven from the discrimination and violence they might face from their natal families. These chosen families frequently play a critical role in providing emotional support and social respect, sometimes surpassing the natal family in terms of stability and safety. Courts need to be mindful of this dynamic and recognize that traditional assumptions about natal families being inherently supportive may not apply in all cases. To better serve individuals in habeas corpus petitions or protection requests, especially those from LGBTQ+ communities, courts should follow specific guidelines:
Priority and Timeliness: Habeas corpus and protection petitions must be prioritized, ensuring swift hearings and avoiding unnecessary delays.
Locus Standi: Courts should not excessively probe into the nature of the relationship between the appellant and their partner or friend but rather focus on the essence of the claim.
Facilitating Free Dialogue: Create an environment conducive to open and uncoerced discussions to understand the wishes of the individual involved.
In-Person Interaction: The detained or missing person should be brought before the court and allowed to speak with the judges in private chambers. Proceedings should be held in-camera, with secure recording methods to protect privacy.
Preventing Coercion: Ensure that the detained person is not influenced by the police, the court, or their natal family during proceedings. Those allegedly detaining the person should not be present during their interaction with the court.
Comfort and Support: During interactions, the court should make efforts to ensure the individual’s comfort, including providing breaks, using preferred names and pronouns, and maintaining a compassionate demeanor.
Consideration of Minority Status: While the age of the individual may be considered, it should not automatically dismiss claims of illegal detention by a natal family.
Empathy and Objectivity: Judges should approach each case with empathy, avoiding any personal biases or prejudices. They must focus on following the law and respecting the individual’s wishes.
Immediate Release: If the detained person wishes not to return to their alleged detainer or natal family, they should be released without delay.
Protection Measures: For petitions seeking police protection from violence, particularly in same-sex, transgender, inter-faith, or inter-caste relationships, interim protection should be granted to safeguard the petitioners’ privacy and dignity.
Avoiding Counseling as Coercion: Courts should refrain from mandating counseling or parental care as a means to change the individual’s mind. The court’s role is limited to ascertaining the individual’s wishes without influencing them.
Respecting Privacy: Sexual orientation and gender identity are deeply personal aspects of an individual’s privacy. Courts must avoid any comments or directions that could be perceived as judgmental or stigmatizing.
Implementation and Adherence: These guidelines are intended as minimum standards to protect the fundamental rights and dignity of LGBTQ+ individuals in legal proceedings. Courts must strictly adhere to these guidelines to ensure fair treatment and respect for all parties involved. The current case is resolved based on the provided judicial report, and any pending applications are also concluded.
Achuda Manickam
BBA LLB (Hons)
Sastra Deemed University