DATE OF JUDGEMENT:
7th June 2021
Honourable Justice N.Anand Venkatesh
(Appellants):- S.Suman and Ors.
(Respondents):- Commissioner of Police and Ors.
1. Article 14 of the Constitution - This Article states that no individual should be denied by the state, either equality before the law or equal protection by the law within India. It also prohibits discrimination on the grounds of the religion, or the sex, or the race or the caste or even the place of birth of any individual.
2. Article 15 of the Constitution – According to this Article, no individual can be subjected to discrimination on the grounds of their religion or their race or caste or sex or even their place of birth by the state. It also states that under this Article the state is allowed to make provisions for women and children, or people who belong to the social and educational backward classes of the SCs and STs.
3. Article 21 of the Constitution - This Article states that no individual should be deprived of their right to life or personal liberty except according to the procedure which has been established by law.
1. Does Article 15(1) include or can it include sexual orientation within its ambit? [covered from paragraph 1 to 5]
2. Does Article 21 encompass the right to sexual autonomy and freedom of expression? [covered from paragraph 6 to 9]
The facts of this case are as follows:- The petitioners are a lesbian couple who fled from their hometown Madurai to Chennai because of their relationship being opposed by their parents. They managed to secure an accommodation with the help of NGOs and people who belong to the LGBTQIA+ community. They were looking for job opportunities to sustain themselves financially. During this time, their parents had filed missing complaints of them before the Police. It was because of these complaints that the petitioners had to go through police interrogation at the place where they were residing and felt like there was a threat to their safety and security. In light of this issue, the petitioners approached the court by which they wanted the police to not harass them and requested for protection from any form of threat or danger to their safety and security from their parents.
1. As far as this particular issue is concerned, the court stated that which the paradigm shift in the ambit of gender and gender identity and also the concept of sexual orientation across the globe there was a very big question raised of weather clause one of Article 15 could not include the concept of sexual orientation within its ambit.
2. The issue of homosexuality was initially raised in the case of ‘Naz Foundation V. Government of the NCT of Delhi’. This case questioned the Constitutional validity of section 377 of the Indian Penal Code and in the judgement it was declared that this section was violative of Articles 21, 14 and also 15.
3. Another very important judgement following this was of ‘NALSA V. Union of India' Where the transgender community had complained that illegal declaration of non recognition of their gender identity which is assigned to them at birth is violated of their rights under Articles 14 and 21. In their judgement the quote stated that the term person that is mentioned under Article 14 and the term citizen mentioned under Article 15 along with the term sex mentioned under Article 16, all of them are expressions which are gender neutral and refer to human beings and so they will include within them, the transgenders.
4. A few review petitions were filed after this to re-examine the law which had been laid down in the case of ‘Suresh Kumar Kaushal', and were to be placed before the court in the case of ‘Navtej Singh Johar V. Union of India'. By this case, the court overruled the judgement of ‘Suresh Kumar' case and approved the decision of the High Court of Delhi in the case of ‘Naz Foundation’. It was stated by Justice Indu Malhotra in this concurring judgement she stated that the part of the clause in discussion is regarding something which isn’t even in the control of the person. She also mentioned that discriminating an individual on these grounds would undermine their personal autonomy.
5. It was also held that the term “sex" mentioned under Article 15(1) is not limited to the biological attributes of an individual, but is also inclusive of their sexual identity and character along with orientation. It was also stated that the grounds which are mentioned under Article 15 are not watertight compartments but they are just instruments which I used to find and eliminate discrimination and are a means to an end.
6. It was the case of ‘Navtej Singh Johar’ which helped in understanding that Article 21 protects and guarantees every individual the complete autonomy over their decisions to their personal life which is inclusive of their choice of partners. These choices are supposed to be protected by Article 21 and it is because, the right to life and liberty consists of the right to sexual autonomy along with the freedom of expression. To further understand this we have to understand that sexual autonomy is a very essential aspect of the right of privacy which is considered and also protected under Article 21. The people belonging to the LGBTQIA+ Community are also entitled with their right to privacy and have alright to lead a very dignified existence, this includes their choice of sexual orientation and their gender identity along with their gender expression and the choice of the partner that they make.
7. It was also stated that this particular right along with the manner in which it is exercised is supposed to be protected under Article 21 by the Constitution. Apart from this, the Transgender Persons (Protection of Rights Act) stands as a very strong and clear point that there has been recognition of different forms of sexual identity by the parliament.
8. This court further stated that the homosexuality or the transgender status of an individual is not relevant to their employment decisions.
9. In their final judgement the court stated that the issue at hand requires monitoring at a regular level along with follow ups with the variety of departments which are concerned with regards to this issue in order to make sure that the directions which have been issued by this court are executed and enforced. The writ petition has been kept pending buy the court and it has also stated that ‘mandamus’ will be issued from time to time after hearing the parties which are concerned. The court also ordered that strict action must be taken against those who are found to be indulging in attempts which focus on curing or changing of sexual orientation.
10. There are also a set of guidelines which have been laid down by this particular judgement in various fields like education, judiciary, police and the prison authorities and also for the physical as well as mental health professionals.
11. For the field of Education the guidelines which have been laid down include:
i) Sensitising parents regarding the LGBTQIA+ community and the concept of gender nonconforming in order to ensure that families are supportive.
ii) Ensuring that there are gender neutral restrooms for the gender nonconforming students.
iii) There should be an option to change the name and gender on the academic records for people who belong to the transgender community.
iv) There should also be an inclusion of the term transgender in addition to the male and female gender columns in the application forms for the purpose of admissions or competitive exams etc.
v) Appointing counsellors who are more gender inclusive be it with respect to the staff or the students so that the grievances are being addressed in a proper manner.
12. When it comes to Judiciary, the guidelines state that awareness programmes should be conducted for judicial officers irrespective of their levels and these programmes should be in coordination which the NGOs and the community support so that proper and informed suggestions are provided which focus on reducing discrimination of people who belong to this community.
13. For the Police and prison authorities the guidelines suggest that:
i) There should be regular programmes which focus on the steps which should be taken to protect and also prevent offences against the people belonging to this community.
ii) There should also be proper sensitisation about their legal rights along with creating awareness about the offences and the penalties which are mentioned under The Transgender Persons (Protection of Rights) Act.
iii) Programmes should be conducted by various NGOs along with community support which put forward the problems which are faced when it comes to the law enforcement agencies and proper training should be provided so that there is effective assistance regarding these issues and also there should be separate prisons two eliminate the chances of sexual assault by cis-men to the transgender and non-conforming prisoners.
14. For the Physical and Mental Health Professionals the guidelines state that:
i) There should be mental health camps along with awareness programmes which helped in understanding the concept of gender, sexuality and sexual orientation and promote acceptance off diversity.
ii) There should be a strict prohibition on any attempts which focus on medically curing or changing the sexual orientation of the LGBTQIA+ community people two heterosexual.
iii) People who engage in this conversion therapy along with professionals should be punished by taking a strict action against them or even withdrawing the licence to practise.
This is a very beautiful judgement by the High Court of Madras, because this is the type of judgement that we need in our society. The way in which this judgement has been articulated is beyond commendable and also looking at the efforts which Justice Venkatesh has taken with respect to this case, it is something that we urgently need. this judgement has helped and will help to retain the trust of people in the judicial system because no matter how much we may have developed we are still those orthodox people because the majority population of our country fails to give basic respect let alone acknowledging or recognising the people who belong to this very special community.
We have failed as humans because we are trying to curb someone’s natural identity or even the identity that they choose for themselves. we are in no place to control their life or take decisions for them and neither are we the light bearers of what is wrong and what is right. There can be no denying to the fact that the homosexual orientation has been existing since any other orientation which is heterogeneous, just because we failed to give it the respect and the acknowledgement that it deserves does not mean that it is not capable of it in the first place.
We take a lot of pride in calling ourselves liberals and walk but this judgement has opened up the eyes of so many people who have been trying to force their ideologies on others.
The way Justice Venkatesh himself accepted that he cannot give a judgement because this issue is very critical especially coming from our society and without wholly understanding the ideology behind it or the way that things function within this community would be very wrong.
He did have an easy way out but he chose to unlearn what he was taught and relearn what was necessary, and this exactly is what we need in our society.
Sexual orientation or the gender identity of a person is a very personal choice and it should be something that every individual chooses and it does not make anybody less competent or less human than the other. As humans we are always afraid of being wrong or doing something which is not common and so we tend to question those who have the courage to do it. We need to stop this unconventional practise of calling it unnatural and start accepting it and learning about ways in which we can support this community and help people who belong to this community to come forward and grow in their respective fields because it is only then that we can progress as a nation.
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