Supreme Court Sets Guidelines for Habeas Corpus Petitions Involving LGBTQ+ Individuals: Devu G Nair vs. State of Kerala (2024)

Date of the Judgment: March 11, 2024
Citation: 2024 INSC 228
Judges: Dr. Dhananjaya Y Chandrachud, CJI, J.B. Pardiwala, J., Manoj Misra, J.
Can High Courts direct counseling for individuals in habeas corpus petitions, especially when it involves LGBTQ+ persons? The Supreme Court of India addressed this critical question in a recent judgment, emphasizing the importance of individual autonomy and the need to protect the rights of LGBTQ+ individuals. This case highlights the delicate balance between parental rights and the fundamental freedoms of individuals, particularly concerning their sexual orientation and gender identity. The judgment was delivered by a three-judge bench comprising Dr. Dhananjaya Y Chandrachud, CJI, J.B. Pardiwala, J., and Manoj Misra, J., with the majority opinion authored by Dr. Dhananjaya Y Chandrachud, CJI.

Case Background

The case originated from a habeas corpus petition filed by Devu G Nair (the appellant) in the High Court of Kerala, seeking the release of ‘X’, who, according to the appellant, was being forcibly detained by her parents. The appellant and ‘X’ were reportedly in an intimate relationship. The High Court, during the proceedings, directed ‘X’ to undergo counseling. This led to the appellant approaching the Supreme Court, raising concerns about the appropriateness of such directions, particularly in cases involving LGBTQ+ individuals.

Timeline

Course of Proceedings

The Kerala High Court, upon receiving the habeas corpus petition, initially directed the DLSA to investigate the alleged illegal detention of ‘X’. Subsequently, the High Court ordered ‘X’ to attend a counseling session with a psychologist. The appellant, aggrieved by these directions, especially the counseling order, appealed to the Supreme Court. The Supreme Court, recognizing the sensitivity of the matter, issued interim directions for ‘X’ to be interviewed by a judicial officer to ascertain her wishes independently. The Supreme Court also took into consideration the report submitted by the judicial officer and the Principal Judge of the Family Court.

Legal Framework

The judgment primarily deals with the interpretation and application of Article 136 of the Constitution of India, which grants the Supreme Court special leave to appeal against any judgment, decree, determination, sentence, or order in any cause or matter passed or made by any court or tribunal in the territory of India. The Court also considered the fundamental rights of individuals, particularly those related to personal liberty and privacy, and the rights of LGBTQ+ individuals.

Arguments

The appellant argued that the High Court’s direction for counseling was inappropriate and could potentially be used to undermine the will and sexual orientation of ‘X’. They contended that such counseling could be a means to pressure individuals, especially those from the LGBTQ+ community, to conform to societal norms. The appellant emphasized that the focus should be on ascertaining the free will of the individual, and not on trying to alter their identity or sexual orientation.

The Supreme Court noted the apprehension of the appellant that the High Court has been passing orders directing counseling of persons similarly situated as ‘X’ and there is an apprehension that the counseling should not turn out into a means to overcome the will of the corpus particularly in regard to their sexual orientation.

Issues Framed by the Supreme Court

The Supreme Court did not frame specific issues but addressed the following concerns:

• Whether the High Court’s direction for counseling was appropriate in a habeas corpus petition, particularly involving an adult individual from the LGBTQ+ community.
• The need to formulate guidelines for courts dealing with habeas corpus petitions and petitions seeking protection from family or police interference in cases involving LGBTQ+ individuals.

Treatment of the Issue by the Court

Authorities

The Supreme Court did not explicitly cite specific cases or books. However, the court emphasized the importance of protecting the fundamental rights of individuals, particularly those related to personal liberty and privacy, and the rights of LGBTQ+ individuals, drawing from constitutional principles.

Judgment

What weighed in the mind of the Court?

The Supreme Court was primarily concerned with safeguarding the autonomy and dignity of individuals, particularly those from the LGBTQ+ community. The Court emphasized that the judiciary must not impose its subjective values on individuals and must respect their fundamental rights, including their sexual orientation and gender identity. The Court recognized the potential harm that can be caused by forced counseling and the importance of allowing individuals to make their own choices without undue influence.

The Court’s reasoning was focused on ensuring that the legal system does not inadvertently perpetuate discrimination against LGBTQ+ individuals. The Court emphasized that the concept of family is not limited to natal families but also encompasses chosen families, which are often crucial for the well-being of LGBTQ+ individuals. The Court stressed that the role of the court is to ascertain the free will of the individual and not to impose societal norms or personal biases.

The Supreme Court stated, “Judges must eschew the tendency to substitute their own subjective values for the values which are protected by the Constitution.”

The Court also noted, “Courts must bear in mind that the concept of ‘family’ is not limited to natal family but also encompasses a person’s chosen family.”

Further, the court observed, “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.”

Key Takeaways

• Habeas corpus petitions involving LGBTQ+ individuals must be given priority.
• Courts must not make a roving inquiry into the nature of relationships.
• The focus should be on creating an environment for free dialogue.
• The wishes of the detained person must not be unduly influenced.
• Courts must not direct counseling in such cases.
• Judges must avoid imposing personal biases and societal norms.

Directions

The Supreme Court issued specific guidelines for courts to follow in habeas corpus petitions and petitions seeking protection from family or police interference, particularly in cases involving LGBTQ+ individuals. These guidelines include:

1. Priority in listing and hearing of such petitions.
2. Avoidance of roving inquiries into the nature of relationships.
3. Creating an environment for free and uncoerced dialogue.
4. Ensuring the privacy and safety of the detained or missing person.
5. Avoiding undue influence by the court, police, or natal family.
6. Adopting a friendly and compassionate demeanor.
7. Not using the minority of the detained person to dismiss a habeas corpus petition.
8. Avoiding social morality laden with homophobic or transphobic views.
9. Releasing the detained person immediately if they do not wish to return to the alleged detainer.
10. Granting ad-interim police protection to intimate partners in same-sex, transgender, inter-faith, or inter-caste relationships.
11. Not passing directions for counseling or parental care.
12. Avoiding any attempt to change or influence the sexual orientation or gender identity of the appellant or corpus.
13. Acting swiftly against any queerphobic, transphobic, or derogatory conduct.

Development of Law

The judgment establishes clear guidelines for handling habeas corpus petitions involving LGBTQ+ individuals, emphasizing the need to protect their fundamental rights and avoid imposing societal biases. The ratio decidendi of the case is that the role of the court in habeas corpus petitions is limited to ascertaining the free will of the individual, and not to direct counseling or impose societal norms, especially in cases involving LGBTQ+ individuals.

Conclusion

The Supreme Court’s judgment in Devu G Nair vs. State of Kerala (2024) is a landmark decision that reinforces the fundamental rights of individuals, particularly those from the LGBTQ+ community. By setting clear guidelines for courts, the Supreme Court aims to ensure that the legal system protects the autonomy and dignity of all individuals, regardless of their sexual orientation or gender identity. This judgment is a step towards creating a more inclusive and just society.