Case title:
Devu G Nair v. The State of Kerala & Ors
Date of Order:
11th March 2024
Bench:
Hon’ble Dr. Chief Justice Dhananjaya Y Chandrachud
Hon’ble Mr. Justice J B Pardiwala
Hon’ble Mr. Justice Manoj Misra
Parties:
Appellant: Devu G Nair
Respondent(s): The State of Kerala & Ors.
SUBJECT:
The Hon’ble Supreme Court of India (hereinafter referred to as ‘the Supreme Court’ or ‘the Court’) dealt with a writ petition for Habeas Corpus filed by the appellant. The appellant claimed that her intimate partner, X, was being illegally detained by her parents. The Supreme Court delved into the broader issue of ensuring the rights, autonomy and dignity of persons belonging to the LGBTQ+ community and their intimate partners who face societal prejudice. The Supreme Court issued guidelines for handling of such writ petitions to prevent undue influence or discrimination based on the individual’s sexual orientation.
IMPORTANT PROVISIONS:
The Constitution of India, 1950:
- Article 136
OVERVIEW:
- The appellant and her partner (‘X’) were in an intimate relationship.
- The appellant alleged that X was being held against her will by X’s parents, even though X wished to live with the appellant, and filed a writ petition of Habeas Corpus, alleging the same.
- On 13th January 2023, the Kerala High Court at the stage of admission, ordered the Secretary of the jurisdictional District Legal Services Authority (DLSA) to visit X’s parents and record her statement to determine whether she was unlawfully detained.
- In the event X was found to be in illegal detention, the Station Head Officer of the jurisdictional Police Station and ensure that X is produced before the Secretary, DLSA for an online interaction.
- X was directed to be produced before the Secretary of DSLA on 2nd February 2023 for an interaction with the High Court.
- The High Court instructed X to undergo counselling with a session with a psychologist attached to a counselling center.
- X’s parents were ordered to produce X before the Family Court on 08.02.2023.
- The report of the interview between X and Ms. Saleena V G Nair, a member of the e-committee of the Supreme Court showed that X was given ample time and opportunity to express herself freely.
- X, being of legal age and have completed her Master’s degree wished to pursue a career as a lecturer and explicitly stated that she has free access to a mobile phone to allow her to move wherever she desires. She also clarified that she was living with her parents voluntarily and did not wish to marry or live with any person at the time.
- Having no reason to doubt the reports, the High Court dismissed the SLP.
- However, the High Court acknowledged that although it is important to ascertain the wishes of a person, it is inappropriate to suppress or try to change the sexual orientation of an individual through counselling and that Judges should refrain from imposing their own subjective values and adhere to the constitutional values instead.
- The appellant aggrieved by the High Court’s decision, has brought it before the Supreme Court.
ARGUMENTS ADVANCED BY THE APPELLANT:
- The appellant’s intimate partner- X, a woman, is being held against her will by her parents.
- The Counselling session ordered by the High Court attempted to suppress X’s sexual orientation.
JUDGEMENT ANALYSIS:
- The Supreme Court stated that counselling should not be used as a means to influence or suppress an individual’s sexual orientation.
- Urging Judges to separate their personal values and choices from adjudication process and upholding the Constitutional Values instead, the Supreme Court issued guidelines and directives for handling petitions for Habeas Corpus or involving police protection for LGBTQ+ or intimate partners.
GUIDELINES ISSUED BY SUPREME COURT:
- prioritizing habeas corpus petitions and petitions for protection filed by partners or friends of the detained individual.
- When evaluating the locus standi of a partner or friends, the Courts should not meander inquiry into the precise nature of the relationship between the appellant and the person in question.
- The concerned person should be provided with a safe and conducive environment to allow them to express their wishes freely.
- Individuals should be produced before courts, allowing them to interact with the judges in-person.
- 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.
- Courts should actively try to put the individual at ease by asking their preferred names or pronouns, and provide comfort breaks as need be.
- If the detained person turns out to be a minor, the courts should showcase sincere empathy and not use minority as grounds for dismissal of a Habeas Corpus petition.
- In the event the individual expresses desire to return to their natal family, they should be allowed to do so without any delay.
- Cases where intimate partners face social stigma, police protection should be provided prior to the establishment of ascertained risk of violence and abuse.
- A court’s role in such cases is limited to ascertaining the will of the individual, therefore no directions for counselling or parental care should be passed when the individual is produced before the court.
- Maintenance of neutrality and respect for the LGBTQ+ communities during judicial proceedings is mandatory.
CONCLUSION
The instant case serves as a landmark judgment in affirming the constitutional rights of persons belonging to LGBTQ+ community. The Court highlighted the necessity of upholding individual rights, dignity, and autonomy, specifically for marginalized communities by urging Judges to not be prejudiced in their judgment and risk compromising the judicial integrity of the proceedings. The Supreme Court dismissed the SLP.
