Facts:
This was a case where a same-sex couple in an intimate relationship had been
separated and the appellant had filed a writ of habeas corpus before the High Court
of Kerala on the ground that X was forcibly kept in custody of their parents despite
their wishes to stay with the Appellant. The Appellant had approached the Supreme
Court after the interim order of the Kerala High Court after a report was filed before
the High Court in which the Court directed that X undergo counselling.
Court Decision and Reasoning:
The Supreme Court noted the apprehensions of counselling in being used to
overcome the will of the person with regards to their sexual orientation. The Court
issued the following guidelines in cases of habeas corpus petitions:
- Habeas Corpus petitions and petitions for protection can be filed by a
partner, friend or natal family member and Court must not enquire about
the nature of relationship between Appellant and person concerned. - The Court while dealing with police protection for partners, be it same
sex, transgender, inter-faith or inter-caste, must grant ad-interim
measure before establishing the threshold requirement of being at grave
risk of violence and abuse. - Role of courts is limited to ascertaining will of person and the Court
should not issue directions for counselling or parental care to change the
mind of the Appellant or detained person. - Courts must ensure an environment that is conducive for free and non
coercive dialogue to ascertain the will of the person and adopt a
compassionate demeanour to ensure that the detained person can
freely express their wishes. - Being a minor must not be the threshold for dismissing habeas corpus
petitions where there is illegal detention by the natal family. - Where a detained person expresses their desire to not go back to the
alleged detainer, they must be released. - Courts must take note of the social stigma that queer couples face and
grant immediate police protection as an interim measure where the
same is sought.
Significance:
The Supreme Court recognized the harmful nature of conversion therapy, and actively
took steps to ensure that courts embrace a gender-affirming and queer-affirmative
approach when handling habeas corpus petitions and cases involving police
protection. Importantly, it also paved the way in recognizing that the concept of family
is not strictly heteronormative in nature and persons belonging to one’s chosen family may also approach the Court in the interest of ensuring that one’s right to safety, dignity and privacy is given precedence.