The LGBTQIA+ community has always faced discrimination by our society, being the member of the community is considered to be disease rather than a sexual orientation. Being born as a member of LGBTQIA+ community is considered to be a disgrace to the society, a punishment for some past life sins. Our society is still not ready to accept the people of the community as a part of our society. The people of the community face physical and mental abuse, they do not have proper access to education, they have been deprived of basic facilities that are provided to every citizen of this country.
Being a law student, we often struggle with this thought that what kind of foot step we want to follow. How can we serve the society in the best possible way as being the part of the system that act as pillar on which our democratic structure is based? How can justice be served to those who’s rights and freedom are being infringed?
Recently, a judgement pronounced by Justice Anand Venkatesh in the case related to atrocities faced by a lesbian couple and the efforts made by him to empathize with the victims has thrown light on the path we wish to follow. This judgement made us realise that as the emblem of justice the judges not only have the duty to hear the cases that has been brought to their court but also, they have to flex their thinking ability and have to go to the root cause of the issue to ensure justice and a fair trial. Principle of equity, justice and good conscience has to be followed by a judge in dealing with scenarios where no pre-defined law exist. This principle has been one of the key points in adjudicating dispute relating to religious matters (Hindu Law and Muslim law).
In S. Sushama and Ors. v. Commissioner of Police and Ors.[1], a writ petition was filed by two lesbian women seeking protection from being harassed by police on the basis of complaint filed by their parents. The petition was heard by Justice Anand Venkatesh of the Madras High Court. Justice Anand said that “ignorance is no justification for normalizing any form of discrimination”. He said that he belongs to that section of the society that still considers homosexuality an anathema and that the society is yet to empathize with the member of the LGBTOIA+ community. Justice Anand decided to undergo psycho-educative session to understand the feelings and emotions of those belonging to LGBTQIA+ community.
After undergoing a session with the victims, the judge realized that homosexuality is been viewed as sexual connotation i.e., relationship only confined to sex. It has been viewed as a form of disease by the society. During the session the judge came to realize that homosexual couples are as much couple as any other heterosexual couples. The report of the session stated that the judge became aware of his own “flawed notion” after interacting with the petitioners. Justice Venkatesh further stated that he wants to remove the hat of “Lordship” and wear the hat of an average commoner as his views are no different from society.
Judge issued a set of guidelines to protect this vulnerable section of the society from getting exploited by the police. Following points were mentioned in the guideline.
1. The police on receiving complain regarding any person (girl/woman/man) and on enquiry if finds them to be consenting adult belonging to LGBTQIA+ community, shall close the complaint without subjecting them to any kind of harassment.
2. Ministry of Social Justice and Empowerment (MSJE), has to prepare a list of NGOs and community-based groups who have expertise in dealing such kind of issues. The list should be uploaded on the website along with contacts and other required details of these NGO’s and community-based groups. The details should be updated within 8 weeks from the date of this order.
3. If any member of the LGBTQIA+ community faces any problem they may approach these NGOs or community-based groups to seek help and protection.
4. The NGOs in consultation with the Ministry shall maintain a confidential list of these people who approached them for help and protection. The list should be provided to the ministry bi-annually.
5. The problems of the people belonging to this community should be addressed and solved in the best way possible. Every effort should be made from counseling to providing monetary help, legal assistance and others to ensure justice.
6. Necessary changes should be made in all shelter homes to make it community friendly. The Ministry should allot 12 weeks from the date of Order to make these necessary changes.
7. Any required measures should be taken to eliminate any kind of prejudice against this community. The Union and State Governments should ensure protection to this community.
8. The Court also suggested some sensitization programs for creating awareness.
The judgment given by Justice Anand and the procedure undergone by him to understand the mindset of the aggrieved party is commendable. This judgment has made us realize that even the judge might not have knowledge on the issue raised in his/her Court but to ensure justice they have to flex their boundaries and thought process.
Society is dynamic it adapts to changes, the stigma relating to homosexuality is an infringement to the rights of the homosexual couples, right to privacy, right to life and right to personal liberty. Homosexuals are humans who have the right to live freely and it’s time for the society to adapt to it. Just like Justice Anand we all should respect the members of LGBTQIA+ community and make this society to be a better for them to live freely. Being the citizen of India along with the fundamental rights, fundamental duties have also been bestowed on us; fundamental duty to promote harmony and the spirit of brotherhood; to not subject others to discrimination.
_______________________________ [1] S. Sushama v. Commissioner of Police W.P. No. 7284 of 2021
*The author of this post is Saman Rahman a law-student from Faculty of Law, University of Lucknow. She can be reached at samanrahman3103@gmail.com.
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Article Number: 2021/LNLR/08B19
The views expressed in this article belong to the author/s and do not necessarily reflect those of the Journal.