The controversy arose during a hearing of a habeas corpus petition filed by a 23-year-old woman. She claimed her 19-year-old same-sex partner was being held captive by her parents in Uttar Pradesh.
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A recent incident in the Punjab and Haryana High Court has sparked widespread controversy and debate. Justice Pankaj Jain, a judge of the High Court, made remarks that have been perceived as homophobic, causing a stir in legal and social circles. This incident comes despite the Supreme Court’s landmark decision five years ago, which decriminalized homosexuality and called for an end to discrimination against the LGBT community.
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The controversy arose during a hearing of a habeas corpus petition filed by a 23-year-old woman. She claimed her 19-year-old same-sex partner was being held captive by her parents in Uttar Pradesh. Similar petitions have been favorably adjudicated by high courts across India, including the apex court. However, Justice Jain’s reaction to this particular case was sharply different.
In the open court, Justice Jain reportedly remarked,
“Is this a queer couple matter?…take this immoral thing back where it came from,” visibly throwing the file. When the petitioner’s lawyer attempted to interject, Justice Jain stated, “Madam I don’t subscribe to the theory that constitutionality and morality are different.”
The order released later that day scheduled the next hearing for January 15, with the judge questioning the petitioner’s capacity to represent the alleged detainee, despite being presented with evidence of their relationship.
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Justice Jain’s comments have drawn criticism for juxtaposing constitutionally protected rights of same-sex individuals with personal morality. Advocate Maninderjit Singh expressed concern, stating,
“The incident, if true, should not have occurred. The queer community is heavily relying on the judiciary to get their rights. Judiciary is their last resort because since the 2018 Navtej Singh Johar judgment, the legislature has done very little to reform the system.”
The historical context of this issue dates back to colonial India when the British criminalized homosexuality under Section 377 of the Indian Penal Code. This law was first decriminalized by the Delhi High Court in 2009, only to be reinstated by the Supreme Court in 2013. However, in a landmark 2018 verdict, the apex court unanimously read down Section 377, affirming the rights of the LGBT community under various constitutional articles.
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Justice Dhananjaya Y Chandrachud, then a member of the bench and now Chief Justice of India, highlighted the discrimination faced by the LGBT community in his concurring verdict. He stated,
“Individuals belonging to sexual and gender minorities experience discrimination, stigmatization, and, in some cases, denial of care on account of their sexual orientation and gender identity….their exclusion, discrimination, and marginalization is rooted in societal heteronormativity and society’s pervasive bias towards gender binary and opposite-gender relationships.”
The recent developments in the Punjab and Haryana High Court indicate that biases against same-sex relationships persist, even within sections of the higher judiciary. This incident underscores the ongoing struggle for acceptance and equal rights for the LGBT community in India.