KEY FACTS:
The Petitioners in this case are a lesbian couple. Both their parents opposed the relationship.The Petitioners fled to Chennai from their respective homes in Madurai because of the fear of getting separated.
The parents of the Petitioners filed missing complaints for their respective daughters with the police. The police started interrogating the Petitioners at their residence. Facing such interrogation, and apprehending a threat from their parents, the Petitioners filed a writ petition at the Madras High Court to ask the police to stop harassing them, and to seek protection from their parents.
ISSUE AND DECISION:
The primary issue before the Court was whether the police should be ordered to stop harassing the Petitioners and provide police protection. However, after this issue was decided, the counsel for the Petitioners urged the Court to issue further guidelines for other cases of similar nature.
The Government Advocate for the police agreed to the primary plea and assured that the police would be instructed properly, and the safety of the Petitioners would be ensured.
Fundamental Rights
The Court held that the LGBTQIA+ community has the right to equality under Article 14. The Court also said that after the judgments in NALSA vs. Union of India and Naz Foundation vs. Government of NCT of Delhi, prohibition against discrimination in Article 15(1) ‘on grounds only of religion, race, caste, sex, place of birth or any of them’ was no longer restricted to just the listed characteristics. It also includes ‘gender identity’ and ‘sexual orientation’. The Court went further and said, ‘The grounds are merely instruments to find and eliminate discrimination and are, therefore, a means to an end.’
Besides jurisprudence from other common law jurisdictions, the Court also relied on rights provided under Article 21 of the Constitution. These included the rights of liberty, dignity, autonomy and privacy including the right to sexual autonomy.
The Court held that till the legislature comes up with an enactment on the issue, the LGBTQIA+ community cannot be left in a ‘vulnerable atmosphere’. So, the Court must fill in the gap by issuing guidelines.
Guidelines and Directions
The Court held that the police should close complaints for missing persons once they find that they are in a consensual relationship.
The Ministry of Social Justice and Empowerment was asked to enlist and publicise NGOs which would be able to help people from the LGBTQIA+ community. It must also provide shelter in existing government short-stay homes for people from the community who need it.
The Court ordered sensitisation programs to ensure that the rights of LGBTQIA+ persons under the Constitution as well as the provisions of the Transgender Persons (Protection of Rights) Act, 2019 (‘Trans Act’) are guaranteed. The Court recognised multiple stakeholders for which these programs should be carried out: the police, legal services authorities, the lower judiciary, health professionals and workers, educational institutions, public and private workplaces, and parents of LGBTQIA+ persons.
Some of the other significant guidelines include:
- prohibition of any attempts to medically ‘cure’ sexual orientation or gender identity;
- change in curricula to educate students on understanding the LGBTQIA+ community;
- inclusivity in hiring policies and extension of work benefits to members of the LGBTQIA+ community;
- the right to free legal aid for the LGBTQIA+ community.
The Court kept the writ petition continuing to be able to monitor and follow up with the concerned departments regularly.
SIGNIFICANCE:
The judgment reiterates the Constitutional guarantees of freedom of sexual orientation and freedom of gender identity and puts the same in practice. It seeks to enforce and supervise the implementation of multiple important measures which the community has fought for, such as banning conversion therapy, LGBTQIA+ inclusive curricula and sensitisation programs. It also reiterates this as a duty of the State under the Trans Act.
It also categorically lays down the procedure that the police must follow when missing persons complaints are filed for people in a consensual relationship, ensuring the freedom of choice of a partner.
However, the judgment only covers medical conversion therapy and does not extend to therapies used in alternative medicine or religious therapy.