By Jacob Benny
The judiciary has lent a helping hand to the much persecuted LGBTQ+ community by amending the law of the land regarding homosexual relationships. The Supreme Court in the case of Navtej Singh Johar vs Union of India declared Section 377 of the Indian Penal Code to be unconstitutional in so far as it criminalises consensual sexual conduct between adults of the same sex.
Although this is a great stride towards ensuring privacy and personal liberty to each citizen of our country, the society at large has failed to acknowledge and accept the LGBTQIA+ community. There have been continuing instances of discrimination, abuse and ostracism towards people in same sex relationships. This issue is deep-rooted within the Indian populous as there is a general misconception that homosexuality is unnatural and that it is a mental disease/disorder with various medical practitioners as well as yoga instructors claiming to have the cure for it, even though, the Supreme Court has categorically stated in Navtej Singh Johar vs Union of India that homosexuality is neither unnatural nor is it a mental disorder or disease.
In such a backdrop, Justice N. Anand Venkatesh of the Madras High Court has gone out of his way to understand the issue and provide much needed attention to the plight of the LGBTQIA+ community. The Court while dealing with a case ofharassmentfaced by a lesbian couple from their parents and the police, gave an extensive judgment of over 100 pages, wherein the Court adopted an out of the box approach towards the case in order to weigh the cause for inclusivity and to provide justice against discrimination faced by the LGBTQIA+ community.
The case primarily involved a lesbian couple, who fled from Madurai to Chennai, as their relationship was highly opposed by their parents pursuant to which the respective parents filed girl missing complaints even though the petitioners were majors and had left Madurai by their own volition. Subsequently, the couple faced interrogation by the police at their residential premises. Apprehensive of their safety, the couple approached the Court seeking a direction to the police not to cause harassment and protection from any form of threat or danger to their safety and security. The Court ordered for ensuring protection of the couple and made an earnest attempt to mediate the matter between the Petitioners and their parents.
What makes this particular Judgement distinctive is that Justice N. Anand Venkatesh admits in the Judgement that he himself has had a wrong notion about same-sex relationships and further acknowledges that the case fell in unchartered territory for him. Justice N. Anand Venkatesh felt that the case required attention in detail, for which he went to the extent of attending a session with a clinical psychologist and further interacted with persons from the LGBTQIA+ community in order to better understand the ground reality and let go of the prejudices he held. The Court took an empathetic stance while attempting to shed light and spread awareness about the issue.
The Court while emphasising the duty of judiciary to spread awareness in the society, provided in its Judgement dated 07.06.2021 as follows:
“18. The issue on hand is very important and requires awakening in the society, and law, by itself, may not be able to achieve the desired result. A law cannot be effective without it being acknowledged by the society and such an awakening in the society is not going to happen overnight. It requires regular deliberation and it has to necessarily fall out very strongly from the constitutional institutions and I believe that the judiciary and particularly the constitutional courts have a major role to play in spreading this awareness and awakening the society…..”
The Court further observed that there is a legislative vacuum with reference to protection and safety of the LGBTQIA+ community and therefore issued several guidelines/directions in the interim,until a legislation is passed to the effect.
The guidelines as enumerated by the Court provides for protection of consenting adults belonging to the LGBTQIA+ community against police harassment, legitimisation of NGOs specialising in LGBTQIA+ issues by promoting them to work closely with the government, District Legal Services Authority and the law enforcement agencies in reference to offenses committed against any persons belonging to the LGBTQIA+ community and ensuring safe accommodations for all members of the LGBTQIA+ community.
Within the guidelines/ directives issued, the Court further directs the Union and State Government to endeavour to device measures and policies for eliminating prejudices against the LGBTQIA+ community, and channelizing them back into the mainstream.
The Judgement also lays out an indicative list of various sensitization programs to be conducted by the concerned Ministry of the Union/State Government(s) in order to create awareness about the issue amongst the members of the society and to promote inclusiveness. These sensitization programs include curbing of attempts to medically cure or change the sexual orientation of LGBTQIA+ people by physical and mental health professionals by taking action against professionals indulging in such practices, including withdrawal of license to practice. Educative reforms have also been suggested as a part of this list in order to educate students on understanding the LGBTQIA+ community.
The approachtaken by Justice N. Anand Venkatesh in the instant case is truly ground breaking and sets a benchmark for the judiciary in dealing with cases of discrimination and abuse of marginalized communities. The Judge put himself in the shoes of the Petitioners to provide relief and went beyond what was expected of him to understand the issue properly, provide effective adjudication and spread awareness regarding the problems faced by the LGBTQIA+ community.
Justice N. Anand Venkatesh has stepped up for protection of persons from the LGBTQIA+ community in other cases as well. In one such case, the petitioner was forced to marry at an age of 17 years, thereafter which she realised and conveyed to her parents that she could not subsist in a heterosexual relationship and that she is a queer person, for which the petitioner was subjected to abuse, and even received death threats from her family and had to flee from home due to fear for her life and safety. In this case as well, the family members of the petitioner in collusion with the police filed an F.I.R for woman missing despite being in continuous contact with the petitioner. The Court in this case observed that the petitioner is a major and can decide her path of life as she wishes and further directed the police not to cause any harassment and to ensure protection for safety and life of the petitioner.
Justice N. Anand through these cases has made significant headway in recognition of LGBTQIA+ rights and acceptance of the community within the society. That being said, there needs to be more of such endeavours being taken up by the judiciary for the normalization and de-stigmatisation of homosexual relationships for ensuring a more inclusive and safe society for the members of the LGBTQIA+ community.