Madras High Court advocates for substantive equality in hetero-normative frameworks, issues guidelines for protection of same-sex couples

  • Sakshi Shukla
  • 02:47 PM, 07 Jun 2021

Justice Anand Venkatesh of Madras High Court has authored a comprehensive judgment detailing directions for protecting those couples who subscribe to the LGBTQ spectrum.

Apart from passing the detailed order stipulating interim directions, Justice Venkatesh has observed that substantive equality for LGBTQ Individuals is only possible, if both the society & the law push beyond hetero-normative frameworks simultaneously. Interestingly, the Judge has delved into his inherent biases as well and 2 months after stipulating that his understanding of the LGBTQ issues need more introspection, passed a purposeful order.

“I have no hesitation in accepting that I too belong to the majority of commoners who are yet to comprehend homosexuality completely. Ignorance is no justification for normalizing any form of discrimination. Therefore, I took upon myself, the vested responsibility and the duty to deliver justice in all its forms and spirit, of cutting across personal prejudices and notions and setting forth to, at the least, educate myself lest my ignorance interfere with in guiding homosexuality and the LGBTQIA+ community towards social justice. I believe in all honesty and sincerity that even if my endeavour inspires, informs and changes a small collective of persons in understanding and accepting the LGBTQIA+ community, I would have achieved in delivering justice in its true spirit against discrimination and towards inclusivity.”
~ Justice Venkatesh

This Judgment normalizes the fact that Judges are after all human beings and are prone to personal biases too. What differentiates them is the zeal to identify, accept and overcome that personal prejudice and adjudicate in the larger interest of justice.

It also reminds us that societal acceptance cannot be mandated by judicial pronouncements. It may create a societal awakening but the change has to come from within.

In a comprehensive Judgment of over 100 pages, Justice Anand Venkatesh while admitting to his pre conceived notions and demonstrating willingness to overcome the same, says,

“I realized, after a one-on-one interaction with the Petitioners, that it was I (us), who has to set off on a journey of understanding them and accepting them and shed our notions, and not they who have to turn themselves inside out to suit our notions of social morality and tradition. This necessitated that I record my journey from venturing into uncharted waters to educating myself and trying to understand that the nature of relationship, love and bond between homosexual persons and the LGBTQIA+ community at large is equally as pure, legitimate and real as that experienced and shared by cis-heterosexual persons.”

The facts of the case relates to a Lesbian couple whose relationship was being opposed by their parents. They fled from their respective houses in Madurai and with the support extended by certain NGOs, persons belonging to LGBTQIA+ community, managed to secure an accommodation and were in search of employment to financially sustain themselves.

In its order dated 22nd March, 2021, Court considered to hear the parties in camera.

On 29th March, Petitioners and their parents were referred to a counsellor specializing in working with LGBTQ+ individuals.

In the same order, Justice Venkatesh hinted at his personal prejudices, in the words,

“It would have been possible for me to pack my Order with a lot of research material and get applauded by the outside world for rendering a scholarly Order. There was a call from inside which kept reminding me that if I venture into such an exercise at this stage, it will only be hypocritical of me since the Order will not reveal my true and honest feeling about this very important issue. To be open, I am also trying to break my own preconceived notions about this issue and I am in the process of evolving, and sincerely attempting to understand the feelings of the Petitioners and their parents thereafter, proceed to write a detailed Order on this issue. That is the reason why I am trying to develop this case brick by brick and ultimately, construct something purposeful on this issue.”

On 29th April, Court recorded the receipt of report by Counsellor Ms. Vidya Dinakaran who classified the report into four parts, first part dealt with falsified notions of sex, gender, sexual orientation, second part delved into mental status and observations made after counselling the petitioners, third part dealt with mental status and observations made while counselling the parents of first petitioner and fourth part dealt with observations on counselling parents of the second petitioner.

 The order records,

“Insofar as the parents of the petitioners are concerned, it is observed that they are more concerned about the stigma attached to the relationship in the society and the consequences it may ensue on their family. They also apprehend that they will be looked down upon by the society and their own community. The parents are also very much concerned about the safety and security of their respective daughters. One more interesting observation that has been made in the report is that the parents would rather prefer their daughters to live a life of celibacy, which according to them will be more dignified than having a partner of the same sex. They also have serious confusions regarding the lineage, adoption and other normal consequences that follow a heterosexual relationship and as to how the same would apply in a case of same sex relationship.”

In an additional report submitted by the counsellor, it was recorded that one of the petitioner’s parents expressed that happiness is fundamental to them and that they accept her despite them differing in their opinions about homosexuality and the social exclusion that they apprehend.

Under Para 7 of the judgment, Justice Venkatesh enumerate the findings of his session with Dr. Vidya Dinakaran, calling it necessary for the sake of “transparency” and interest of all stakeholders.

Drawing analogy with live in relationships, Court says,

“Even live-in-relationships have not been given any legislative sanctity so far and the parties involved can get in and get out of the relationship at any given point of time without any legal consequences. The scenario as it stands today does not make any difference to heterosexuals involved in a live-in-relationship and two homosexuals in a relationship. Both these relationships as they stand today do not have any legal sanctity and it is not recognised by any existing law. However, the society does not have any problem in recognising a live-in relationship between two cis-heterosexuals, but it is hell bent against same-sex relationships. It is therefore clear that the actual problem is not the fact that the law does not recognise a relationship but that the sanction that is accorded by the society is not available. It is only for this reason, I strongly feel that the change must take place at a societal level and when it is complemented by a law there will be a remarkable change in the outlook of the society by recognising same-sex relationships.”

Directions passed by the Court:

  1. The Police, on receipt of any complaint regarding girl/woman/man missing cases which upon enquiry/investigation is found to involve consenting adults belonging to the LGBTQIA+ community, shall upon receipt of their statements, close the complaint without subjecting them to any harassment.
  2. Ministry of Social Justice & Empowerment (MSJE) to publish a comprehensive list of NGOs, including community based groups which have sufficient expertise in handling the issues faced by the LGBTQ+ community, within 8 weeks.
  3. Person belonging to LGBTQIA+ community may approach any of the enlisted NGOs for safeguarding and protecting their rights.
  4. Confidential records shall be maintained by these NGOs and the aggregate data shall be provided to MSJE bi-annually.
  5. Best suited method shall be adopted depending upon the facts and circumstances of each case, be it providing monetary support, legal assistance or coordination with law enforcement agencies.
  6. With specificity of issue of accommodation, suitable changes are to be made in existing short stay homes, Anganwadi shelters and garima greh (shelter home for Transgender persons). The MSJE shall make adequate infrastructural arrangements in this regard, within a period of 12 weeks.
  7. Other measures that are needed for eliminating prejudices against the LGBTQIA+ community, and channelizing them back into the mainstream shall also be taken up. The Union and State Governments respectively, in consultation with such other Ministries and/or Departments shall endeavour to device such measures and policies.
  8. Court also suggested sensitization programs for Police/prison authorities, District/State Legal Services Authorities, Judiciary, Physical and Mental Health Professionals, Educational Institutions, Health Workers, Public/Pvt. Institutions and Parents of LGBTQ+ member

Reliance was further placed on settled Judicial Precedents and Constitutional safeguards under Articles 14, 15, 21.

Case Title: S. Sushma & U. Seema Agarval v. Commissioner of Police | WP No. 7284 of 2021