“I realized, after a one-on-one interaction with the Petitioners, that it was I (us), who has to set off on a journey of understanding them and accepting them and shed our notions, and not they who have to turn themselves inside out to suit our notions of social morality and tradition.” – Justice Anand Venkatesh
In the case of S. Sushma v. Commissioner of Police[W.P.No.7284 of 2021], Justice Anand Venkatesh of the Madras High Court, on 7 June 2021, issued comprehensive guidelines to ensure inclusion and non-discrimination of persons from the LGBTQIA+ community. What’s interesting to note is that, in an unprecedented one-of-a-kind manner, before issuing the said guidelines, Justice Venkatesh first made an attempt to educate himself on the lives of LGBTQIA+ people. He acknowledged the lack of narratives around homosexuality, lack of exposure or personal experience and awareness about the prejudice and preconceived notions he holds. “I have no hesitation in accepting that I too belong to the majority of commoners who are yet to comprehend homosexuality completely. Ignorance is no justification for normalizing any form of discrimination”, he said.
The facts of the case are that a lesbian couple (Petitioners), opposed by their parents, fled to Chennai from their respective houses in Madurai. The families individually filed girl-missing-complaints before the Police and two FIRs came to be registered. Having faced interrogation by the Police at their residential premises, and apprehending threat to their safety and security, the Petitioners approached the Court seeking (i) a direction to the Police not to cause harassment; and (ii) protection from any form of threat or danger to their safety and security from their families. On hearing the facts of the case for the first time on 22 March 2021, the Court acknowledged that the case needs to be dealt with more sensitivity and empathy and ordered to hear the parties on 29 March 2021 in camera (i.e., in person).
On 29 March, the Court passed an order requesting Ms. Vidya Dinakaran, a Psychologist, to provide counselling to the Petitioners as well as their families, and to provide a report on her observations by 26 April 2021. Additionally, the Court remarked that the parties will work towards a peaceful resolution, and the Police was asked to close the missing girl complaints with immediate effect. By the next hearing on 28 April 2021, Ms. Dinakaran had submitted her report, which was divided into 4 parts: (i) the falsified notions of sex, gender, sexual orientation and how these terms must be understood; (ii) mental status of the Petitioners and the observations made after counselling; (iii) and (iv) mental status of Petitioners’ respective parents and the observations made after counselling. This report primarily brought to light that the Petitioners perfectly understood the nature of their relationship and feared that their parents would coerce them into separation, while the parents were concerned about the stigma attached to such a relationship in the society and the consequences it may ensue on their family.
The learned Counsel appearing for the Petitioners requested the Court to issue certain guidelines to deal with cases of similar nature, so the persons involved in same sex relationships are treated with dignity and their safety is ensured. In response to this, Justice Venkatesh humbly submitted to educate himself first – he accordingly undertook psycho-education with Ms. Dinakaran so he is able to understand same sex relationships better and he also decided to schedule a virtual meeting with person(s) who are from the community and/or work closely with people from the community, i.e., Dr. L. Ramakrishnan, Vice President, SAATHII, Ms. Shanmathi, PCVC, Dr. Trinetra Haldar Gummaraju, Digital-Content Creator, Actor, MBBS Intern – Kasturba Medical College and her mother Ms. Haima Haldar, to gain an understanding of the ground realities, the emotions, social discrimination and exclusion, and several other difficulties faced by the community.
In the context of these discussions, the Court deliberated upon the fundamental rights guaranteed under Article 14, Article 15 and Article 21 of the Constitution of India, and also relied on the landmark judgments of Naz Foundation v. Government of NCT of Delhi [2010 Cr LJ 94], NALSA v. Union of India [2014 (5) SCC 438] and Navtej Singh Johar v. Union of India [2018 (1) SCC 791], among others. Subsequently, the Court issued guidelines for proper recognition of rights of the LGBTQIA+ community and to ensure their safety and security to lead a life chosen by them:
- On receipt of any missing girl/woman/man complaint, and upon investigation, if the Police finds that the complaint involves consenting adults belonging to the LGBTQIA+ community, the Police should close the complaint without subjecting them to any harassment.
- The Ministry of Social Justice and Empowerment (MSJE) is required to enlist NGOs which have sufficient expertise in handling the issues faced by the LGBTQIA+ community within 8 weeks from the date of receipt of this order. The list of such NGOs to be published and revised periodically on the official website. Any person from the LGBTQIA+ community who faces an issue may approach any of the enlisted NGOs for safeguarding and protecting their rights. Such problems shall be addressed with the best-suited method depending on the facts and circumstances of each case, including counselling, monetary support and legal assistance.
- For accommodation, suitable changes are to be made in existing short stay homes, Anganwadi shelters, and garima greh (a shelter home for transgender persons), with basic amenities like shelter, food, medical care and recreational facilities. The idea is to provide support for capacity-building/skill development of persons in the community, which will enable them to lead a life of dignity and respect. The MSJE is required to make adequate infrastructural arrangements in this regard, within a period of 12 weeks from the date of receipt of this order.
- The Union/State Governments in consultation with other Ministries and/or Departments, should formulate measures and policies to eliminate prejudices against the LGBTQIA+ community, and ensure they are brought into the mainstream of the society.
- The Union/State Governments are required to create awareness through sensitisation programs, including for the Police and prison authorities, District and State Legal Services Authorities, Judiciary, physical and mental health professionals, educational institutions, health workers, workplaces and parents.
Specifically, some of the measures that have been suggested for awareness and sensitisation are:
- Police and Prison Authorities: Programs at regular intervals on sensitisation about legal rights of LGBTQIA+ community, awareness about the offences set out under The Transgender Persons (Protection of Rights) Act, 2019, and steps to be taken for protection from and prevention of offences against the LGBTQIA+ community. Outreach programs to put forth first-hand problems faced in the hands of law enforcement agencies, and to train them in providing effective assistance. Ensure that transgender and gender-nonconforming prisoners are housed separately from cisgender prisoners to eliminate chances of sexual assault by the latter on the former.
- Workplaces: Awareness programs and workshops with the help of LGBTQIA+ members/workers for inclusion of LGBTQIA+ community amongst the employees, suitable changes in hiring policies for inclusivity, setting up and enforcement of Human Resource policies to make them LGBTQIA+ community-friendly, suitable policies that address non-discrimination on grounds of sexual orientation, including sexual harassment of persons belonging to the LGBTQIA+ community, grievance redressal mechanism to support members of the LGBTQIA+ community, extension of benefits such as insurance to members of the LGBTQIA+ community.
- Educational Institutions: Effective change in curricula of schools and universities to educate students on the understanding of the LGBTQIA+ community, outreach programs, Parent Teachers Association (PTA) meetings to sensitize parents on issues of LGBTQIA+ community and gender nonconforming students, necessary amendments be made to policies and resources such as gender-neutral restrooms, change of name and gender on academic records, inclusion of ‘transgender’ in addition to ‘M’ and ‘F’ gender columns in admission forms, competitive entrance exams, etc., appointment of mental health counsellors who are LGBTQIA+ inclusive.
- Physical and Mental Health Professionals: Mental health camps and awareness programs should be conducted to understand gender, sexuality, sexual orientation and promote acceptance of diversity. Any attempts to medically “cure” or change the sexual orientation of LGBTIQA+ people to heterosexual or the gender identity of transgender people to cisgender should be prohibited. Action should be initiated against the concerned professional involving themselves in any form or method of conversion “therapy”, including withdrawal of license to practice.
- Parents: Understanding and accepting children of diverse gender expressions, sexual orientation, gender identities and gender presentation. Provide peer support for parents of members belonging to the LGBTQIA+ community through support groups.
In conclusion, the Court held that this writ petition would remain pending and issue continuing mandamus from time to time after hearing the parties concerned. This is because the issues involved require regular monitoring and follow up with various concerned departments to ensure that the aforesaid directions issued by the Court are executed and enforced. Further orders are likely to be passed on 31 August 2021.
– Aakriti Chokhani, Advocate & Associate, POSH at Work