Safe houses, sensitising police: CJI lists measures against discrimination

It also directed them to ensure that “treatments” offered by doctors or other persons, which aim to change gender identity or sexual orientation, cease with immediate effect, and that inter-sex children are not forced to undergo operations with regard only to their sex, especially at an age at which they are unable to fully comprehend and consent to such operations.

CJI Chandrachud said police should not force queer persons to return to their natal families if they do not wish to do so and when queer persons file a complaint against the families, police must verify and ensure their freedom is not curtailed.

“Often, instruments of the State which are tasked with protecting human rights, perpetuate violence. Police and prison officials exhibit violence towards the queer community. Lesbian and gay couples often approach the police for protection from family violence… However, instead of granting protection to the couple, police ‘hand over’ the couple to their families,” the CJI observed.

His ruling directed that “before registering an FIR against a queer couple or one of the parties in a queer relationship (where the FIR is sought to be registered in relation to their relationship), they shall conduct a preliminary investigation… to ensure that the complaint discloses a cognizable offence”.

Rejecting the Centre’s argument that the case of the petitioners “is… mere urban elitist views for the purpose of social acceptance”, the CJI wrote that India has a “rich history of the lives of LGBTQ persons… which continue into the present” and that “persons with a gender queer identity who do not fit into the binary of ‘male’ and ‘female’ have long been known by different names including hijras, kothis, aravanis, jogappas, thiru nambis, nupi maanbas and nupi maanbis”.

He said “even the limited exploration of the literature and reportage on the subject makes it abundantly clear that homosexuality or queerness is not solely an urban concept, nor is it restricted to the upper classes or privileged communities… People may be queer regardless of whether they are from villages, small towns, or semi-urban and urban spaces. Similarly, they may be queer regardless of their caste and economic location. It is not just the English-speaking man with a white-collar job who lives in a metropolitan city and is otherwise affluent who can lay claim to being queer but also (and equally) the woman who works in a farm in an agricultural community. Persons may or may not identify with the labels ‘queer,’ ‘gay,’ ‘lesbian,’ ‘trans,’ etc. either because they speak languages which are not English or for other reasons, but the fact remains that many Indians are gender queer or enter into relationships with others of the same sex”.

Turning down the plea to strike down or tweak the Special Marriage Act, the CJI’s ruling said the Act “was enacted to enable persons of different religions and castes to marry. If the SMA is held void for excluding same-sex couples, it would take India back to the pre-independence era where two persons of different religions and caste were unable to celebrate love in the form of marriage. Such a judicial verdict would not only have the effect of taking the nation back to the era when it was clothed in social inequality and religious intolerance but would also push the courts to choose between eradicating one form of discrimination and prejudice at the cost of permitting another”.

Justice S K Kaul, in his judgment, said he is “wholeheartedly in agreement with the opinion of the Hon’ble Chief Justice that there is a need for a separate anti-discrimination law which inter alia prohibits discrimination on the basis of sexual orientation”.

He said “presently, there are several laws that have an anti-discrimination aspect to them. However, they are fragmented and may fail to capture the multitudinous forms of discrimination”.

In the recent past, state governments have been asked by High Courts to form guidelines and a panel for queer couples.

Raising concerns over alleged coercion by police, a division bench of the Bombay High Court, led by Justice Revati Mohite Dere, had asked the Maharashtra government in August this year to consider forming a committee comprising government officers and stakeholders from the LGBTQIA+ community to formulate guidelines for sensitising the police force. The HC was hearing a plea filed by a lesbian couple, seeking protection for one of them.

The HC said it expected sensitisation of police to handle cases related to “same-sex couples in conflict with their families” as well as cases related to missing or kidnapping complaints filed by family members.

Justice Mohite Dere referred to guidelines passed by a Madras High Court bench led by Justice N Anand Venkatesh, in its June 2021 order, to protect same-sex couples from police harassment and said “broader picture” of guidelines beyond the police department could be considered.

The HC asked the Maharashtra government to consider if provisions similar to Tamil Nadu’s modified Subordinate Police Officers’ Conduct Rules could be adopted.