Supreme Court Sets Landmark Guidelines Protecting LGBTQ+ Rights in Habeas Corpus Cases

Court Rules Out Counseling to Alter Sexual Orientation, Emphasizes Respect for Chosen Families and Privacy of Intimate Partners

In a significant judgment delivered on March 11, 2024, the Supreme Court of India, led by Chief Justice Dr. Dhananjaya Y. Chandrachud along with Justices J.B. Pardiwala and Manoj Misra, issued crucial directives aimed at safeguarding the fundamental rights of LGBTQ+ individuals in habeas corpus and police protection petitions. The case, Criminal Appeal No. 1730 of 2024, arose from a habeas corpus plea involving two women in an intimate relationship, where the High Court of Kerala had initially ordered the production of one party and mandated counseling by a psychologist.

The apex court took a firm stance against the use of counseling as a tool to alter or influence an individual’s sexual orientation or identity. Emphasizing constitutional protections, the Court stated that judges must refrain from imposing their personal subjective values in matters of identity and sexual orientation. The Court underscored that ascertaining the wishes of the person involved is paramount, and any attempt to "overcome the identity and sexual orientation of an individual by a process of purported counselling" is wholly inappropriate.

The judgment also recognized the concept of ‘family’ beyond traditional natal ties, highlighting the critical role of ‘chosen families’—partners and friends who provide support, love, and social respect, especially for members of the LGBTQ+ community who may face violence or lack of safety within their natal families. The Court warned against directions for counseling or parental care that may have a deterrent effect on such individuals.

To ensure protection and dignity for LGBTQ+ persons involved in legal disputes concerning custody or protection, the Court formulated detailed mandatory minimum guidelines for courts handling habeas corpus petitions and police protection requests:

- Priority listing and prompt hearing of such petitions to avoid delays.

- Avoiding intrusive inquiries into the precise nature of relationships between petitioners and the persons concerned.

- Creating safe, private, and comfortable environments for the person concerned to interact freely with the court, including in-camera proceedings.

- Ensuring the detained or missing person is not influenced by family, police, or the court during proceedings, and that alleged detainers are not present.

- Judges must show empathy and compassion, avoiding homophobic, transphobic, or other derogatory attitudes.

- Immediate release if the detained person wishes not to return to the alleged detainers.

- Granting interim police protection to intimate partners facing social stigma, particularly same-sex, transgender, inter-faith, or inter-caste couples, without waiting to establish grave risk thresholds.

- Courts must not order counseling or parental care intended to change the detained person’s will or sexual orientation.

- Respecting the person’s preferred name, pronouns, and privacy throughout the process.

- Taking swift action against discriminatory conduct by any party involved in the legal process.

The Court’s judgment marks a progressive step toward upholding the dignity, privacy, and freedom of choice of LGBTQ+ individuals, reinforcing that sexual orientation and gender identity are core aspects of personal privacy and self-identification protected under the Constitution of India.

In the present case, the Supreme Court accepted the report of a senior judicial officer who had ascertained that ‘X’, the person at the center of the habeas corpus petition, was a major, living with her parents by her own volition, pursuing her career goals, and had chosen to maintain a relationship described as an "intimate friendship" with the appellant, without any wish to marry or cohabit at the moment. Consequently, the Court declined to interfere with the High Court’s ultimate outcome but set aside the counseling order and laid down the crucial guidelines for future cases.

This judgment serves as a vital precedent in ensuring that courts respect the autonomy and rights of individuals from the LGBTQ+ community, particularly in sensitive family and custody disputes, and curbs the misuse of counseling as a tool of coercion or correction.

Statutory provisions

Constitution of India, 1950, Article 226

Devu G. Nair v. State of Kerala (SC) : Law Finder Doc Id # 2524733