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The Supreme Court has said High Courts must grant an ad-interim measure, such as immediate police protection, while dealing with a plea by intimate partners on the grounds that they are a same sex, transgender, inter-faith or inter-caste couple.

"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," it said.

Issuing detailed guidelines, a bench of Chief Justice of India D Y Chandrachud and Justices J B Pardiwala and Manoj Misra said the judges must showcase sincere empathy and compassion for the case of the detained or missing person and must eschew the tendency to substitute their own subjective views for the constitutional values, in dealing with pleas for grant of immediate police protection to same sex, transgender, and inter-faith couple.

“Courts must bear in mind that 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,” the bench said.

It also pointed out directions for counseling or parental care have a deterrent effect on members of the LGBTQ+ community. 

"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," the bench said.

The court said 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," the court said. 

The court said 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, it said.

"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; the effort must be to create an environment conducive for a free and uncoerced dialogue to ascertain the wishes of the corpus," the bench said.

"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," the bench added.

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, the court said.

"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," the bench added.

"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," the court said.

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, the court directed.

"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 court said.

The court said the 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, the bench said.

The matter arose out a special leave petition by Devu G Nair against the interim orders of the Kerala High Court of January 13, 2023 and February 2, 2023 in a petition seeking a writ of habeas corpus. 

The petitioner claimed that her same-sex partner was illegally confined by her family. 

The court ordered a judicial officer to meet the woman who was allegedly confined and interview her at a family court in Kollam. The report, submitted by the officer, said the petitioner was the woman’s “intimate friend”, but the woman did not want to marry any person at the moment.

"There is no reason for this court to disbelieve the report which has been prepared by a senior judicial officer after duly ascertaining the wishes of ‘X’," the bench said.

The court, however, decided to lay down guidelines in such matters, which also stated, “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."