Don’t use counselling to turn LGBTQ+ persons against their own identity, says Supreme Court

SC warns judges not to depend on their own subjective values, social morality, or sympathy for birth families; emphasises importance of chosen families, issues guidelines based on Constitutional values

Updated - March 21, 2024 07:20 am IST

Published - March 20, 2024 10:38 pm IST - NEW DELHI

A three-judge Bench headed by Chief Justice of India D.Y. Chandrachud said that it would be completely inappropriate to attempt to overcome the identity and sexual orientation of an individual through a process of counselling. File

A three-judge Bench headed by Chief Justice of India D.Y. Chandrachud said that it would be completely inappropriate to attempt to overcome the identity and sexual orientation of an individual through a process of counselling. File | Photo Credit: SHASHI SHEKHAR KASHYAP

The Supreme Court has cautioned judges against using the court-ordered counselling of members of the LGBTQ+ community as a way to turn them against their own identity and sexual orientation. In such cases, they are often in distress or have been separated from their partners by their own relatives, it observed.

A three-judge Bench headed by Chief Justice of India D.Y. Chandrachud said that ascertaining the wishes of a person is one thing; however, it would be completely inappropriate to attempt to overcome the identity and sexual orientation of an individual through a process of counselling.

“Judges must eschew the tendency to substitute their own subjective values for the values which are protected by the Constitution,” Chief Justice Chandrachud observed, in a judgment published on Wednesday.

‘Eschew social morality’

The verdict laid out a series of guidelines for courts to follow while dealing with habeas corpus petitions and pleas for protection from family or police interference filed by members of the LGBTQ+ community.

“The judges must showcase sincere empathy and compassion for the case of the detained or missing person. Social morality laden with homophobic or transphobic views or any personal predilection of the judge or sympathy for the natal family must be eschewed. The court must ensure that the law is followed in ascertaining the free will of the detained or missing person,” the Supreme Court directed.

The verdict came in a petition filed by a Kerala-based woman, represented by advocates Sriram Parakkat and Luke J. Chirayil, who had filed a habeas corpus petition to know the whereabouts of her same-sex partner. The Kerala High Court had ordered the partner, found to be with her parents, to be counselled. Following this, the High Court had a woman judicial officer interact with her. The final report was that the partner did not want to live with the petitioner and looked ahead to a career.

Chosen families

The petitioner had appealed to the Supreme Court, which refused to intervene. However, Mr. Parakkat raised an apprehension that the counselling ordered by High Courts would become a means to push a person against his or her sexual orientation or chosen partner.

“The concept of ‘family’ is not limited to natal family but also encompasses a person’s chosen family. This is true for all persons. However, it has gained heightened significance for LGBTQ+ persons on account of the violence and lack of safety that they may experience at the hands of their natal family. When faced with humiliation, indignity, and even violence, people look to their partner and friends who become their chosen family. These chosen families often outlast natal families,” Chief Justice Chandrachud observed.

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