The Madras High Court on Monday, 7 June, categorically held that it is the constitutional duty of the state to protect the LGBTQIA+ couples fearing backlash from their families or society. The Bench of Justice Anand Venkatesh issued a series of directions to ensure that such couples are not harassed by the police while handling “missing person” complaints filed by the family members.
The court recognised that there’s an absence of a specific law to protect the interests of the LGBTQIA+ couples. However, it is the responsbility of the constitutional courts to fill this vaccum with necessary directions to ensure protection of such couples from harassment sourced from stigma and prejudices.
“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.”The Madras High Court
However, the court did not stop there. It expressed its opinion that the legislature must acknowledge its responsibility to make laws to “eradicate social discrimination against the LGBTQIA+” community.
The order has come in a plea moved by a lesbian couple who fled their biological family households to escape the backlash towards their relationship. However, they continued to face harassment by the police as their biological families filed “missing person” complaints.
Society Needs to Address Its Prejudices
The court clearly pointed out that the problem doesn’t lie with the LGBTQIA+ couples, but with the society that stigmatises them. Therefore, it’s society’s responsibility to address its prejudices and embark upon the journey towards inclusivity and acceptance.
“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. It is only for this reason, I strongly feel that the change must take place at a societal level and when it is complemented by a law, there will be a remarkable change in the outlook of the society by recognising same-sex relationships.”The Madras High Court
In order to ensure that LGBTQIA+ couples are not subjected to the harassment caused by the “missing person” complaints filed by their biological families, the court passed the following guidelines:
- The police, on receipt of any complaint regarding girl/woman/man missing cases which upon enquiry/investigation is found to involve consenting adults belonging to the LGBTQIA+ community, shall upon receipt of their statements close the complaint without subjecting them to any harassment.
- The Ministry of Social Justice & Empowerment (MSJE), has to enlist Non-Governmental Organisations (NGOs), including community-based groups which have sufficient expertise in handling the issues faced by the LGBTQIA+ community. The list of such NGOs, along with their address, contact details, and services provided shall be published and revised periodically on the official website. Such details shall be published within eight weeks from the date of receipt of this order.
- Any person who faces an issue for the reason of their belongingness to the LGBTQIA+ community may approach any of the enlisted NGOs for safeguarding and protecting their rights.
- The concerned NGO, in consultation with the MSJE, shall maintain confidential records of such persons who approach the enlisted NGOs, and the aggregate data shall be provided to the concerned Ministry bi-annually.
- Such problems shall be addressed with the best-suited method depending on the facts and circumstances of each case be it counselling, monetary support, legal assistance with the support of District Legal Services Authority, or to coordinate with law enforcement agencies about offences committed against any persons belonging to the LGBTQIA+ community.
- With the specificity of issue of accommodation, suitable changes are to be made in existing short stay homes, Anganwadi shelters, and "garima greh" (shelter home for trans persons) to accommodate any and every member of the LGBTQIA+ community, who require shelters and/or homes. The MSJE shall make adequate infrastructural arrangements in this regard, within a period of 12 weeks from the date of receipt of copy of this order.
- Such other measures that are needed for eliminating prejudices against the LGBTQIA+ community, and channelising them back into the mainstream shall also be taken up.
- Sensitisation programmes to be conducted by the concerned Ministry of the Union/State Government (The judgment lists out an indicative list of sensitisation programmes).
Counselling Helped Me Shedding My Personal Prejudices: Justice Venkatesh
While setting out the contours of change for the society and the government, Justice Anand Venkatesh also opened up about the journey of his personal change.
Justice Venkatesh said that psyhco-educative counselling on LGBTQIA+ issues helped him shed his personal ignorance and prejudices. He said that the petitioners, Vidya Dinakaran and Trinetra, became his “gurus” who “pulled him out of the darkness of ignorance”.
“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 normalising any form of discrimination.”Justice Anand Venkatesh
Justice Venkatesh realised this and clearly stated in the judgment that the responsibility to change, the burden of unlearning stigma, and learning about the lived experience of the queer community lies on the society and not the queer individuals.
“It was I (us), who has to set off on a journey of understanding them and accepting them and shed our notions, and not they who have to turn themselves inside out to suit our notions of social morality and tradition.”Justice Anand Venkatesh