On Monday (11th March): The Supreme Court remarked that attempting to alter an individual’s sexual orientation through counseling was highly inappropriate.
NEW DELHI: On Monday (March 11), the Supreme Court of India addressed a petition involving a same-sex couple from Kerala and emphasized the importance of respecting individual sexual orientations without the imposition of corrective counselling. The case centered on a woman’s plea alleging that her same-sex partner was unlawfully detained by her family.
The decision was presided over by a bench including Chief Justice Dhananjaya Y. Chandrachud, Justice JB Pardiwala and Justice Manoj Misra.
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The decision reiterates the Supreme Court’s stance from a previous 2018 judgment( Navjot Singh Johar case) that decriminalized homosexuality, marking a significant step towards recognizing and protecting the rights of the LGBTQI community in India.
Despite this, the ruling carried a broader message concerning the handling of similar cases by high courts across India. The Supreme Court explicitly discouraged the practice of using counselling as a tool to alter an individual’s sexual orientation. The decision comes in the wake of instances where courts have ordered counselling for individuals in same-sex relationships, raising concerns about efforts to ‘correct’ their sexual orientation through such measures.
Advocate Sriram Parakatt, representing the petitioner, highlighted the inconsistency of counselling orders with this landmark ruling, asserting the fundamental right of individuals to live freely according to their sexual orientation without coercion or restraint.
Background
The case was initially brought to the Supreme Court’s attention following an order by the Kerala High Court, which had led to an official inquiry to determine whether the woman was being held against her will. The Supreme Court’s intervention, requesting a senior judicial officer’s involvement, was aimed at ensuring the woman’s wishes were fully respected and understood.
The court’s decision followed a detailed investigation, where a senior judicial officer was tasked with evaluating the situation directly. After interacting with the involved parties at a family court in Kollam, the officer reported that the so-called detainee did not wish to marry or live with the petitioner, describing their relationship as close yet non-committal. Given these findings, the Supreme Court bench found no grounds to dispute the officer’s conclusions, leading to the dismissal of the petition.
After reviewing the report, the counselor acknowledged,
“It seems I’ve lost the battle here, my lords.”
According to the report, the detainee expressed her desire to stay with her family rather than go with her partner.
“We made efforts to understand her perspective,” responded the CJI.
“There’s a legal aspect… It might interest your Lordships! I’m here also due to the difficulty in the order on page 62, which various High Courts are passing. I’ve compiled to prevent counseling that would essentially aim to change orientation,” he argued.
“This raises an interesting concern because, after the Navjot Singh Johar judgment, when someone petitions the High Court in Habeas Corpus…,” the counsel began.
The CJI expressed that “high courts cannot mandate counseling.” “That’s precisely the issue here. That’s what I’m pointing out. A single sentence from your lordships would make a difference,” the counselor emphasized. “Agreed,” concurred the CJI, proceeding to issue the order.
The Court’s order stated, “These proceedings under Article 136 of the Constitution, invoked from interim orders by the Kerala High Court on January 13, 2023, and February 2, 2023, in a Habeas Corpus Petition,. Both the petitioner and the alleged detainee are females, allegedly in an intimate relationship. The petition claimed the detainee was forcibly kept by her parents against her wishes.”
Continuing, the Court detailed,
“In response to the grievance, this Court issued notice on February 6, 2023, and issued interim directions.” “The detainee’s parents, the 4th and 5th Respondents, were ordered to produce her before the Family Court at Kollam by 5 pm on February 8, 2023.
The Principal Judge of the Family Court was instructed to arrange an interview between the detainee and Saleena V. G. Nair, a member of the E-Committee of the Supreme Court,” the order stated.
“The Principal Judge of the Family Court and Ms. Saleena ensured a fair and unbiased interview,” the Court noted.
The report indicated that the detainee, a major pursuing her Master of Arts, expressed her freedom and career aspirations.
“She clarified her relationship with the petitioner as a friend and expressed her independence in living with her parents.”
the court observed.
“Based on the report’s credibility, we dismiss the petition under Article 226,” the bench concluded, cautioning against counseling that could manipulate sexual orientation.
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The CJI referred to a Madras High Court judgment advocating LGBT rights awareness during counseling, which he agreed to include in the order. Accordingly, the Court disposed of the petition and stayed the Kerala High Court’s order for gender sensitization counseling on February 6, 2023.
Case Title: Devu G. Nair v. The State of Kerala & Ors. [SLP Crl No. 5027 – 2023]
