Madras High Court’s Historic Guidelines : Protecting the Rights of the LGBTQI+ Community
Across the world, the month of June is seen as the ‘Pride month’ which is dedicated to the struggles and discrimination faced by the LGBTQI+ community. It is originated from the U.S. laying roots in the Stonewall Riots of 1969. These riots were held in aftermath of a raid conducted by the Police on the Stonewall Inn in Greenwich Village which is popular for gay men and is one of the places allowing gay people to dance. Further, police even made 13 arrests. As a result of the raid, several demonstrations were held by the LGBTQI+ community in and around New York which eventually turned out into a hostile condition occasioning a situation of riot. To remember the societal struggle faced by the LGBQI+ community, President Obama during his term, declared June as the LGBT pride month each year. Therefore, now every year, June is observed as the Pride month to remember the social ostracisation and discrimination faced by this community.
However, recently in India, a set of guidelines issued by the Madras High Court in a matter related to the rights of LGBTQI+ have now become a center of attraction for the Pride month of this year. In the case of S. Sushma v. Commissioner of Police, Chennai1 the Court has held that LGTBQI+ communities cannot be left in a vulnerable atmosphere and therefore, the Court went ahead and has issued a slew of guidelines to ensure that they are not harassed by police in missing complaints lodged by their parents.
Facts of the case
The factual matrix of the case relates to a relationship of a lesbian couple (petitioners) which was being critically opposed by their parents as the parents conveyed that they feel a great amount of shame, fear, and social disdain upon them because of their daughter’s homosexual relationship. Meanwhile, the petitioners with the help of NGOs and persons belonging to the LGBTQI+ community managed to secure accommodation and protection and were apparently looking for employment opportunities to financially sustain themselves. The parents of the couple on the other hand filed a missing complaint before the Police and thereby, registered two FIRs. As a result, police went to the residential premises of the petitioners for the interrogation. Petitioners, apprehending a threat to their safety and security approached this court seeking a direction to the police not to cause harassment and protection from any form of threat or danger to their safety and security from their parents.
OBSERVATION of the Court
While the matter came before Justice N Anand Venkatesh, he firmly said that he is not fully woke to the idea of same-sex couples and would rather undergo an educational counselling session with a psychologist to understand such form of relationship before delivering a judgment on this point. During the initial hearing, the judge was of the view that this matter has to be dealt with sensitively and with empathy. The Court even stated that “Ultimately, in this case, the words must come from my heart and not from my head and the same will not be possible if I am not fully ‘woke’ on this aspect.”
Finally, the interim direction by the court where it has granted protection to the couple from any sort of harassment by the police. Going one step ahead, the court even passed guidelines to ensure the protection of LGBTQI+ persons in a consensual relationship from police harassment. The Court guided that police on receipt of any complaint regarding missing cases which upon investigation is found to involve consenting adults belonging to the LGBTQI+ community, shall after taking their statements close the complaint without subjecting them to any form of harassment. Even more, the Court has also suggested various sensitization programs to be conducted for different stakeholders including Police and Prison Authorities, Judiciary, Physical and Mental Health Professionals, Educational institutions, etc. The Court opined that this case should be regularly monitored to see the implementation of the measures.
Justice Venkatesh held that the actual problem is not the fact that law does not recognize such a relationship but that the sanction that is accorded by the society is not available. The Court of the opinion that a societal change is needed in the approach towards LGBTQI+ relationships. Right to life and dignity is equally ensured to members of this community as well and therefore, it the duty of the court to safeguard them from any sort of arbitrary discrimination. The Court held that ignorance of the concept of homosexuality is no justification for normalizing any form of discrimination.
Coming to the specific guidelines, the Court was pleased to pass eight directions-
- The Court made it clear that the police will not harass the consenting adults belonging to LGBTQI+ community and whenever such missing complaints are filed, those should be closed after making a preliminary enquiry.
- It has directed the Ministry of Social Justice & Empowerment to prepare and make it public a list of all NGOs including community-based groups which have sufficient expertise in handling LGBTQI+ related cases.
- Direction has been given that person belonging to such community can approach these NGOs for safeguarding and protecting their rights.
- The Court has directed that these NGOs in consultation with Social Justice Ministry shall maintain confidential records of those people who approach to them.
- On the aspect of finding solution, the court has directed that the problems of the members of community should be addressed with a suitable and case-to-case basis methodology including counselling, monetary support, legal assistance with the help of District Legal services authority. Even it is the duty to coordinate with law enforcement agencies when any offence has been committed against them.
- Direction has been issued to deal with the issues of accommodation. The court has directed that suitable changes should be made to provide shelters to LGBTQI+ persons with basic amenities included in it, and such shelter homes should accommodate any and every member of this community who is need of the same. Stress has also been given to provide support for skill development of these persons making them capable of leading a life with dignity.
- All such measures and policies to be taken that are required to eliminate prejudices against LGBTQI+ community so that they can be amalgamated into mainstream.
- Different sensitization programmes to be undertaken for different stakeholders in order to create awareness.
A ray of hope and enlightenment that matters
One of the essential aspects of this High Court order is the acceptability of this Court of having pre-conceived notions about same-sex relationships. It is remarkably appreciative that how Justice Venkatesh took educative processes to overcome these inherent prejudices and biases rather than ignoring them. The Court took the onus on itself to understand the love and emotions of the LGTBQI+ people and then accept the same community so that the Court could deliver justice in all its forms and spirit and fulfil his commitments towards ensuring social justice. Through the Court’s commitment to educating itself and overcoming the perception of the LGBTQI+ community, it is a strong message for the society who would stand in the same position of ignorance and preconceived notions to undertake counselling sessions for a better understanding of homosexuality.