The Supreme Court establishes fresh guidelines for handling protection petitions filed by couples, emphasizing the right to dignity. These directives safeguarding the dignity of intimate partners without passing moral judgments.
NEW DELHI: Recently (March 11), the Supreme Court of India laid down detailed guidelines while dealing with petitions from couples or inquiries about the nature of their relationships. The court must respect their relationships without delving into unnecessary details.
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The bench, led by Chief Justice DY Chandrachud alongside Justices JB Pardiwala and Manoj Misra, emphasized that the guidelines must be followed “in letter and spirit” as a “mandatory minimum measure” to secure the fundamental rights and dignity of intimate partners, including members of the LGBTQ+ community.
Legal representatives, including advocate Sriram P for the petitioner and a team led by advocates Nishe Rajen Shonker and others for the respondents.
The Supreme Court said that
“The court must avoid being influenced by societal morals filled with homophobia or transphobia, any personal biases of the judge, or a preference for the biological family.The court must ensure that the law is followed in ascertaining the free will of the detained or missing person.”
The apex court’s guidelines are a significant stride towards inclusivity, mandating immediate protection for vulnerable couples, such as those in same-sex, transgender, interfaith, or inter-caste relationships, without requiring proof of threat as a precondition.
“The significance of a chosen family is often overlooked due to the conventional belief that a person’s birth family will honor their decisions and liberties. It is crucial that courts do not, intentionally or unintentionally, support this misconception, especially in situations dealing with habeas corpus petitions, requests for personal protection, or reports of missing individuals,” observed the Supreme Court.
The Supreme Court mentioned that while dismissing habeas corpus petitions based on age, it criticized the practice of “counseling” aimed at altering an individual’s identity or sexual orientation. The issue came to attention through the Kerala High Court’s rulings in cases concerning same-sex couples.
The Supreme Court’s guidelines also advocate for the prioritization and expedited handling of habeas corpus petitions and protection requests. Courts are advised to facilitate a supportive environment for the individuals involved, respecting their privacy, and ensuring their statements are made freely and without undue influence.
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The court established the following directives:
1. Habeas corpus petitions and petitions for protection filed by a partner, friend, or a natal family member must be given priority in listing and hearing before the court. A court must avoid adjourning the matter or causing delays in the disposal of the case.
2. In evaluating the locus standi of a partner or friend, the court must not make a roving enquiry into the precise nature of the relationship between the appellant and the person;
3. The effort must be to create an environment conducive for a free and uncoerced dialogue to ascertain the wishes of the corpus;
4. The court must ensure that the corpus is produced before the court and given the opportunity to interact with the judges in person in chambers to ensure the privacy and safety of the detained or missing person. The court must conduct in-camera proceedings. The recording of the statement must be transcribed, and the recording must be secured to ensure that it is not accessible to any other party.
5. The court must ensure that the wishes of the detained person are not unduly influenced by the court, the police, or the natal family during the course of the proceedings. In particular, the court must ensure that the individual(s) alleged to be detaining the individual against their volition are not present in the same environment as the detained or missing person. Similarly, in petitions seeking police protection from the natal family of the parties, the family must not be placed in the same environment as the petitioners;
6. Upon securing the environment and inviting the detained or missing person into chambers, the court must make active efforts to put the detained or missing person at ease. The preferred name and pronouns of the detained or missing person may be asked. The person must be given comfortable seating, access to drinking water, and a washroom. They must be allowed to take periodic breaks to collect themselves. The judge must adopt a friendly and compassionate demeanor and try to defuse any tension or discomfort. Courts must ensure that the detained or missing person faces no obstacles in being able to express their wishes to the court;
7. A court, while dealing with the detained or missing person, may ascertain the age of the detained or missing person. However, the minority of the detained or missing person must not be used, at the threshold, to dismiss a habeas corpus petition against illegal detention by a natal family;
8. The judges must showcase sincere empathy and compassion for the case of the detained or missing person. Social morality laden with homophobic or transphobic views or any personal predilection of the judge or sympathy for the natal family must be eschewed. The court must ensure that the law is followed in ascertaining the free will of the detained or missing person;
9. If a detained or missing person expresses their wish to not go back to the alleged detainer or the natal family, then the person must be released immediately without any further delay;
10. The court must acknowledge that some intimate partners may face social stigma, and a neutral interpretation of the law would be detrimental to the fundamental freedoms of the appellant. Therefore, a court, while dealing with a petition for police protection by intimate partners on the grounds that they are a same-sex, transgender, inter-faith, or inter-caste couple, must grant an ad-interim measure, such as immediately granting police protection to the petitioners, before establishing the threshold requirement of being at grave risk of violence and abuse. The protection granted to intimate partners must be with a view to maintaining their privacy and dignity.
11. The Court shall not pass any directions for counselling or parental care when the corpus is produced before the Court. The role of the court is limited to ascertaining the will of the person. The Court must not adopt counselling as a means of changing the mind of the appellant or the detained/missing person;
12. The judge, during the interaction with the corpus to ascertain their views, must not attempt to change or influence the admission of the sexual orientation or gender identity of the appellant or the corpus. The court must act swiftly against any queerphobic, transphobic, or otherwise derogatory conduct or remark by the alleged detainees, court staff, or lawyers; and
13. Sexual orientation and gender identity fall within the core zone of privacy for an individual. These identities are a matter of self-identification, and no stigma or moral judgment must be imposed when dealing with cases involving parties from the LGBTQ+ community. Courts must exercise caution in passing any direction or making any comment that may be perceived as pejorative.
The Supreme Court’s decision, guided by Chief Justice DY Chandrachud , alongside Justices JB Pardiwala and Manoj Misra, sets a progressive precedent, reinforcing the judiciary’s role in protecting individual liberties against societal and familial pressures.
CASE TITLE: Devu G Nair vs. The State of Kerala & Ors
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