'Don't try to change views, sexual orientation of LGBTQ couples': SC tells HCs
The judges should adopt an empathetic approach and should not try to change views of couples or their sexual orientation, said the guidelines
In a significant judgement, the Supreme Court issued guidelines for the High Courts in the country on how to deal with habeas corpus petitions or petitions seeking police protection.
This was in response to a petition filed by a woman against a Kerala High Court order which directed her alleged lesbian partner to undergo counselling, when hearing a habeas corpus petition. The petitioner alleged that her partner was being illegally detained by her parents.
The SC bench led by Chief Justice DY Chandrachud and comprising Justices JB Pardiwala and Manoj Misra observed that issuing such directions for counselling often was a cause of torment for members of the LGBTQ+ community and could have deterrent effects.
The judges in their guidelines said the courts should have an empathetic approach while hearing a habeas corpus or police protection petition.
Guidelines
The judgement that was delivered on March 11 but uploaded on March 20 issued the following guidelines:
* 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.
* 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.
* The effort must be to create an environment conducive for a free and uncoerced dialogue to ascertain the wishes of the person.
* 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 ensure that the wishes of the detained person is 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 persons alleged to be detaining the individual against their volition are not present in the same environment.
* The court must make active efforts to put the detained or missing person at ease. The judge must adopt a friendly and compassionate demeanour and make all efforts to defuse any tension or discomfort.
* The court may ascertain the age of the missing or detained person. However, the minority of the person must not be used, at the threshold, to dismiss a habeas corpus petition.
* Social morality laden with homophobic or transphobic views or any personal predilection of the judge or sympathy for the natal family must be avoided.
* 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.
* 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.
* The court shall not pass any directions for counselling or parental care when the person is produced before the court. The role of the court is limited to ascertaining the will of the person.
* The judge must not attempt to change or influence the admission of the sexual orientation or gender identity of the appellant or the corpus.
* Sexual orientation and gender identity fall in a core zone of privacy of an individual. These identities are a matter of self-identification and no stigma or moral judgement must be imposed when dealing with cases involving parties from the LGBTQ+ community.
The court further specified the necessity to follow these guidelines in “letter and spirit”.
