2024 Supreme(SC) 253

SUPREME COURT OF INDIA
Dhananjaya Y Chandrachud, CJI., J B Pardiwala, Manoj Misra, JJ.
Devu G. Nair – Appellant
Versus
The State of Kerala & Ors. – Respondents
Criminal Appeal No 1891 of 2024, Special Leave Petition (Criminal) No 1891 of 2023
Decided On : 11-03-2024

IMPORTANT POINT
LGBTQ+ community – Ascertaining wishes of a person is one thing but it would be completely inappropriate to attempt to overcome identity and sexual orientation of an individual by a process of purported counselling – Judges must eschew tendency to substitute their own subjective values for values which are protected by Constitution.

Headnote:

(A) Constitution of India – Article 226 – Writ of Habeas Corpus – ‘X’ is a major and has completed her Masters degree in Arts – She has stated that she intends to become a lecturer and is focused on her career – She has stated that she is in possession of a mobile phone and is free to move wherever she desires – Moreover, she has stated that she is living with her parents out of her own volition – While she has stated that appellant is an “intimate friend”, she has stated that she does not wish to marry any person or live with any person for the time being – There is no reason for this Court to disbelieve report which has been prepared by a senior Judicial Officer after duly ascertaining wishes of ‘X’ – Court not inclined to entertain Special Leave Petition on ultimate outcome before High Court. (Paras 9, 10 and 11)

(B) Constitution of India – Article 226 – Writ of Habeas Corpus – Ascertaining wishes of a person is one thing but it would be completely inappropriate to attempt to overcome identity and sexual orientation of an individual by a process of purported counselling – Judges must eschew tendency to substitute their own subjective values for values which are protected by Constitution – Directions for counselling or parental care have a deterrent effect on members of LGBTQ+ community – Courts must bear in mind that 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 violence and lack of safety that they may experience at hands of their natal family – When faced with humiliation, indignity and even violence, people look to their partner and friends who become their chosen family – These chosen families often outlast natal families as a source of immeasurable support, love, mutual aid, and social respect – Importance of a chosen family is sometimes lost to traditional assumption that 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 person or in missing persons’ complaints – Since a direction for counselling has been given by High Court, which this Court is inclined to set aside, it is imperative that clear guidelines be formulated for courts dealing with habeas corpus petitions and in petitions seeking protection from family or police interference. (Paras 13, 14 and 15)

(C) Constitution of India – Article 226 – Writ of Habeas Corpus – Guidelines for the courts in dealing with habeas corpus petitions or petitions for police protection –

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. Court must avoid adjourning the matter, or delays in the disposal of the case;

b. In evaluating locus standi of a partner or friend, court must not make a roving enquiry into precise nature of relationship between appellant and the person;

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

d. Court must ensure that corpus is produced before court and given opportunity to interact with Judges in-person in chambers to ensure privacy and safety of detained or missing person. Court must conduct in-camera proceedings. Recording of statement must be transcribed and recording must be secured to ensure that it is not accessible to any other party;

e. Court must ensure that wishes of detained person is not unduly influenced by Court, or police, or the natal family during course of the proceedings. In particular, court must ensure that individuals(s) alleged to be detaining individual against their volition are not present in same environment as detained or missing person. Similarly, in petitions seeking police protection from natal family of parties, family must not be placed in same environment as petitioners;

f. Upon securing environment and inviting detained or missing person in chambers, court must make active efforts to put detained or missing person at ease. Preferred name and pronouns of 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. Judge must adopt a friendly and compassionate demeanor and make all efforts to defuse any tension or discomfort. Courts must ensure that detained or missing person faces no obstacles in being able to express their wishes to court;

g. Court while dealing with detained or missing person may ascertain age of detained or missing person. However, minority of the detained or missing person must not be used, at threshold, to dismiss a habeas corpus petition against illegal detention by a natal family;

h. Judges must showcase sincere empathy and compassion for the case of detained or missing person. Social morality laden with homophobic or transphobic views or any personal predilection of Judge or sympathy for the natal family must be eschewed. Court must ensure that law is followed in ascertaining free will of detained or missing person;

i. If a detained or missing person expresses their wish to not go back to alleged detainer or natal family, then person must be released immediately without any further delay;

j. Court must acknowledge that some intimate partners may face social stigma and a neutral stand of the law would be detrimental to fundamental freedoms of appellant. Therefore, 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 threshold requirement of being at grave risk of violence and abuse. Protection granted to intimate partners must be with a view to maintain their privacy and dignity;

k. Court shall not pass any directions for counselling or parental care when the corpus is produced before Court. Role of the Court is limited to ascertaining will of the person. Court must not adopt counselling as a means of changing mind of appellant, or detained/missing person;

l. Judge during the interaction with corpus to ascertain their views must not attempt to change or influence admission of the sexual orientation or gender identity of appellant or corpus. 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 LGBTQ+ community. Courts must exercise caution in passing any direction or making any comment which may be perceived as pejorative.

These guidelines must be followed in letter and spirit as a mandatory minimum measure to secure fundamental rights and dignity of intimate partners, and members of LGBTQ+ communities in illegal detention. Court must advert to these guidelines and their precise adherence in Judgment dealing with habeas corpus petitions or petition for police protection by intimate partners. (Paras 16 and 17)

Facts of the case:

These proceedings under Article 136 of Constitution arose from interim orders of Kerala High Court dated 13 January 2023 and 02 February 2023 in a petition seeking a writ of habeas corpus. Appellant and the ‘corpus’ (‘X’ for convenience of reference) are both female According to appellant, they were in an intimate relationship. Petition seeking a writ of habeas corpus was instituted on the ground that ‘X’ was being forcibly kept by her parents in their custody whereas she wished to remain with appellant.

Findings of Court:

Court must advert to these guidelines and their precise adherence in Judgment dealing with habeas corpus petitions or petition for police protection by intimate partners.

Result : Criminal Appeal disposed of.