SC issues guidelines for dealing with Habeas Corpus petition involving LGBTQ+ community
Case title – Devu G Nair Vs The State of Kerala & Ors.
Case no. – Special Leave Petition (Criminal) No 1891 of 2023
Decision on – March 11th, 2024
Quoram – Chief Justice of India Dr. D Y Chandrachud, Justice J B Pardiwala, Justice Manoj Misra
Facts of the case
The present appeal was filed under Article 136 of the Constitution against the interim orders issued by the Kerala High Court in a petition seeking a Writ of Habeas Corpus.
The appellant and the ‘corpus’ (referred as ‘X’) in the present case are both female. According to the appellant, they were in an intimate relationship. Accordingly, the petition seeking a writ of habeas corpus was instituted by the appellant on the ground that ‘X’ was being forcibly kept by her parents in their custody even though she wished to stay with her.
The Kerala High Court ordered District Legal Services Authority (DSLA) to ascertain the illegal detention of ‘X’ and facilitate an interaction between ‘X’ and the High Court. After an interaction with ‘X’, the High Court directed ‘X’ to undergo a counselling session with a psychologist attached to a counselling centre.
The HC, later, directed Ms Nair to interact with ‘X’ and submit a report after ascertaining her wishes on whether she is voluntarily residing with her parents or is kept under illegal detention.
In the report, ‘X’ stated that she is in possession of a mobile phone and is free to move wherever she desires. Moreover, she has stated that she is living with her parents out of her own volition. Although she stated that the appellant is an “intimate friend”, she did not wish to marry any person or live with any person for the time being.
Court’s Analysis and Directions
The Apex Court considering the observations of the HC and the report submitted by Ms. Nair stated that it had no reason to disbelieve the said statements and consequently, declined to entertain the SLP.
The Court though disposed of the appeal, made significant observations on the subject matter of the case and issued guidelines for the courts dealing with habeas corpus petitions in similar circumstances.
The Court observed that the counselling of persons similarly situated as ‘X’ should not be a means to overcome the will of the corpus particularly in regard to their sexual orientation and thus stated that the Judges must avoid the tendency to substitute their own subjective values for the values which are protected by the Constitution.
The Court pondering on the counselling or parental care directions given to the members of the LGBTQ+ community pointed out that the concept of ‘family’ is not limited to natal family but also encompasses a person’s chosen family.
It opined that the importance of a chosen family is sometimes lost to the traditional assumption that the natal family is respectful of a person’s choices and freedoms and therefore, the Courts must not become allies in this misunderstanding especially while dealing with the cases involving habeas corpus petition.
In light of this of the aforementioned observations, the Court issued set aside the counselling directions given by the HC and issued the following directions for dealing with habeas corpus petitions or petitions for police protection:
- Habeas corpus petitions filed by a partner, friend or a natal family member must be given a priority in listing and hearing before the court.
- 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 corpus.
- The Court during interactions must conduct in-camera proceedings to ensure privacy and safety of the detained individual.
- The Court must avoid undue influence on the detained individual’s wishes, especially concerning their sexual orientation or gender identity.
- To grant immediate release if the detained individual expresses a desire not to return to their alleged detainer.
- It must prohibit courts from directing counselling or parental care, focusing solely on ascertaining the individual’s will.
- To maintain neutrality and respect for LGBTQ+ identities throughout legal proceedings.
The Court held that these guidelines must be strictly adhered while dealing with habeas corpus petitions to protect the fundamental rights and dignity of intimate partners, and members of the LGBTQ+ communities in illegal detention.
Accordingly, the Court disposed of the appeal in view of the report of the Judicial Officer.
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Judgement Reviewed by – Keerthi K