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The task at hand for Justice Venkatesh was not to legitimise a same sex relationship, since the Supreme Court has already observed in Navtej Singh Johar v. Union of India and Ors (2018) that homosexuality is neither unnatural nor is it a “mental disorder or a disease”. It was a petition by two women in a same sex relationship fearing danger to their lives from their families and seeking non-interference in their lives.
The court could have simply declared that they are two adults and they have the right to live their lives on their own terms. Yet, his Lordship set aside his hat as a judge of the Madras High Court, and assumed the role of a commoner, attempting to understand the LGBTQIA+ community. He admitted his ignorance and wanted to give an honest order without defying his beliefs. So, he made an honest endeavour to challenge his own beliefs by undergoing counselling to understand the LGBTQIA+ community.
The petition and hearings
The petition was filed seeking police protection from the parents of the petitioners, and to direct them not to interfere with the lives of the petitioners. In April, the court had directed that the missing persons FIRs filed by both sets of parents be closed immediately. Justice Anand Venkatesh had also stated that he will himself undergo psycho-education. “I honestly feel that such a session with a professional will help me understand same-sex relationships better and will pave way for my evolution. If I write an order after undergoing psycho-education, I trust that the words will fall from my heart,” he had said.
The court had also directed that the petitioners and their parents be referred to counsellor specialising with LGBTQIA+ individuals. The court had said that this move was vital since the court is moving into unchartered waters and a report from a specialist will provide support to this Court to move forward in this case. The bench wanted to refrain from just reading up on the issue and give a scholarly order since it would be hypocritical and would not reveal the judge’s true and honest feeling about the issue.
“To be open, I am also trying to break my own preconceived notions about this issue and I am in the process of evolving, and sincerely attempting to understand the feelings of the Petitioners and their parents thereafter, proceed to write a detailed Order on this issue,” the court had said.
Parents’ counselling reveals fear and shame
After the counselling sessions with the petitioners and the parents, the psychologist opined that both petitioners perfectly understand the relationship they have entered into, and there is absolutely no confusion in their minds about the same. It was further observed that they have a lot of love and affection for their parents, and their only fear is that they may be coerced into separation.
About the parents, it was observed that they were more concerned about the stigma attached to the relationship and the consequences that may have on their family. They were also concerned about the safety and security of their daughters. The court had then directed another session of counselling for the parents to see how far the earlier counselling has impacted the minds of the parents, and how far they are able to understand the relationship between the petitioners.
After the second session of counselling with the parents that took place on May 21, the psychologist’s report suggested that both sets of parents felt a great amount of shame, fear and social disdain due to the relationship, and were ready to let them live their lives out of a sense of hopelessness. They even expressed concerns over their daughters’ safety and future. One of the parents stated that their daughter’s happiness was fundamental to them and they are ready to accept them despite their differing opinions.
The court observed that there was no substantial change in the parents’ attitude but it was satisfied that it made all attempts to assuage their feelings. The court also appreciated the parents for willingly cooperating to undergo counselling, and to make an effort to understand the same-sex relationship of their respective daughters.
A Judge’s quest for authentic information to ensure compassionate justice
Justice Venkatesh’s session with the psychologist was also put down in a report which summarised that the session had an organic flow as the judge expressed that there was a lack of narratives on the issue, and laid out some misconceptions he had and came in with the awareness of his prejudices. A major part of the session addressed the problematic binary understanding of sex, gender and sexuality. He questioned how something that is so authentic forms an exceedingly small percentage in the society and why it is rather treated as a ‘new’ phenomenon. The counsellor reasoned that because of the stigmatised notions, any exposure to what lies beyond heteronormativity is limited.
During the session, the judge questioned his responsibility and purpose which helped him refrain from just stating that the petitioners are adults and hence have the right to choose the partners and pass the judgement then and there.
Justice Venkatesh felt the need to interact with members of LGBTQIA+ community to understand ground realities and thus spoke to Dr. L.Ramakrishnan, Vice President, SAATHII, Ms. Shanmathi, PCVC, as also Dr. Trinetra Haldar Gummaraju MBBS Intern – Kasturba Medical College and her mother Ms. Haima Haldar. Trinetra submitted a detailed report about her and her mother’s interaction with Justice Venkatesh, where she recounted her experience of being born as a male and coming out as a transgender woman. She recounted that Justice Venkatesh intently listened to the exchange of thoughts, acknowledging that there is a fundamental flaw in how entire generations including his own grew up believing in falsehoods, fully ignorant of their cisgender heterosexual privileges, woefully unaware of the pains and traumas faced by LGBTQIA+ individuals.
He also acknowledged that listening to lived experiences was a powerful means of understanding the lives of queer individuals, and that the institutions of this country have absolutely no right to interfere in aspects of one’s identity which are but natural, and integral to their overall existence.
Justice Venkatesh considered these interactions to be additional psycho-educational sessions which cleared his misconceptions.
“This session ultimately convinced me that I must change all my preconceived notions and start looking at persons belonging to the LGBTQIA+ community as they are. I must frankly confess that the Petitioners, Ms. Vidya Dinakaran (the psychologist) and Dr. Trinetra became my gurus who helped me in this process of evolution and pulled me out of darkness (ignorance),” the order reads.
Why counselling was preferred
The court held that the present case gave it “not only an opportunity but also a vested responsibility to weigh the cause for inclusivity and justice against discrimination by heretofore social understanding of morality and notions of tradition”.
“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. Therefore, I took upon myself, the vested responsibility and the duty to deliver justice in all its forms and spirit, of cutting across personal prejudices and notions and setting forth to, at the least, educate myself lest my ignorance interfere with in guiding homosexuality and the LGBTQIA+ community towards social justice,” the order states.
Justice Venkatesh believes that even if his endeavour inspires, informs and changes a small collective of persons in understanding and accepting the LGBTQIA+ community he will have achieved “delivering justice in its true spirit against discrimination and towards inclusivity”.
He stated that without understanding the issue the final outcome will only be half-baked and ineffective.
Seeds of a transformation sowed during Pride Month
Justice Venkatesh stated that he had never encountered anyone from the LGBTQIA+ community and the facts of this case led him to unknown territory. He admitted that he had at the best read or come across people talking about the LGBTQIA+ community, but not to an extent where it made a positive impact on him or influenced him.
“If I have to figuratively describe the change in my perspective from right at the start of the conversation and to the time it ended, the Petitioners described their love and companionship in exact terms of how two cis-heterosexuals, in my understanding would have addressed their relationship. Whatever they said sounded very natural and made me question myself as to where the conflict actually arises. This change happened within mere duration of 15 minutes,” he said in the order.
He recognised that the actual problem is not the fact that the law does not recognise a relationship, but that the sanction that is accorded by the society is not available. He recognised that a social awakening cannot happen overnight, but he believes that the judiciary and particularly the constitutional courts have a major role to play in spreading this awareness and awakening the society.
The court’s findings
“Till the legislature comes up with an enactment, the LGBTQIA+ community cannot be left in a vulnerable atmosphere where there is no guarantee for their protection and safety. This gap is now sought to be filled in by way of issuing guidelines till law takes over and guarantees safety and protection,” the court observed.
Legal rights: Equality for all
Article 14 of the Constitution embodies a guarantee that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. The Constitution lays down particulars of the equality principle in the two succeeding provisions viz., Articles 15 & 16, which are a species of the genus contained in Article 14. Earlier, the word “sex” occurring in Article 15(1) was construed to mean: male and female. But the Supreme Court in NALSA v. UOI (2014) drew a distinction between sex and sexual orientation and held that “Each person’s self defined sexual orientation and gender identity is integral to their personality… and no one shall be forced to undergo medical procedures… as a requirement for legal recognition of their gender identity”.
The order goes into the genesis of Article 15 and its debate in the Constituent Assembly, where members called for the deletion of the word “only” from it and how it has been construed by the Supreme Court over the years. The court also ventured into international jurisprudence and put forth how South Africa specifically listed “sexual orientation” as one of the prohibited grounds of discrimination; while in UK, the House of Lords upheld the judgment of the Court of Appeal holding that discrimination based on sexual orientation was unacceptable.
The court cited the Supreme Court’s judgement in Navtej Singh case where it was inter alia, held that under Article 15 (1) the word “sex” is not merely restricted to the biological attributes of the individual but also their “sexual identity and character” as well as “sexual orientation”.
“After the decision in Navtej Singh Johar (cited supra), it is no longer open to doubt that Article 21 of the Constitution protects and guarantees to all individuals, complete autonomy over the most intimate decisions to their personal life, including their choice of partners… That apart, sexual autonomy is an essential aspect of the right of privacy which is another right recognised and protected under Article 21 of the Constitution. LGBTQIA+ persons, like cis persons, are entitled to their privacy and have a right to lead a dignified existence, which includes their choice of sexual orientation, gender identity, gender presentation, gender expression and choice of partner thereof. This right and the manner of its exercise are constitutionally protected under Article 21 of the Constitution,” the court held.
The court concluded that time-worn aids of literal and pedantic construction which plagued the early jurisprudence of Article 15 of the Constitution no longer holds sway today.
“The “grounds” enumerated in Article 15 of the Constitution are not water-tight compartments to be viewed divorced from discrimination which is the sheet anchor of the provision. The grounds are merely instruments to find and eliminate discrimination and are, therefore, a means to an end. Discrimination is not a self-referencing concept. A meaningful attempt to identify and eliminate discrimination must necessarily involve the identification and protection of the constitutional values of personal autonomy, dignity, liberty and privacy,” the court observed.
The court gave some directions expecting the authorities to implement the guidelines in letter and spirit not for the sake of complying with a judicial fiat but to ensure that this society evolves, and the LGBTQIA+ community is not pushed out of the mainstream of the society.
This landmark ruling could not have come at a better time than in June which is celebrated world-wide as the Pride Month!
The complete judgement may be read here:
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