Before the Obergfell v. Hodges judgment finally declared homosexual marriage as an individual’s fundamental right across the United States, various state and circuit courts ruled in favor of this right. A similar ray of hope seems to be rising for the LGBTQ community in India when Justice Anand Venkatesh of the Madras High Court gave protection to a lesbian couple from police and issued various guidelines. The judgment calls for and justifies the quote used by the justice himself, “Ignorance is no justification for normalizing any form of discrimination.”

The unprecedented judgment in the case of S. Sushama & another v Commissioner of Police and others is a landmark one in various ways. It came as a very distinct approach to deal with the matters of emotional concern of people belonging to minority communities or suffering to get social validation. Justice Anand Venkatesh went beyond the books of laws to understand the societal notions and disagreements which create a blockage in comprehending the relationship of the LGBTQ community. However, the court, without waiting for any legislative step to be taken suo motu added the concerned ministries and institutions as the respondents and issued guidelines to extend the protection of the LGBTQ community.

The guidelines largely reflect the psychological understanding of the justice. Therefore, the guidelines given by the court directs police to provide the necessary protection from the families of two consenting adults of the LGBTQ community. Further, the 107-page judgment provides significant measures to sensitize the various state machinery such as judiciary, police, Ministry of Social Justice and Empowerment, educational institutions, health workers, etc.

The details of the measures to sensitize various institutions are as follows:

Educational institutions: The educational institutions are directed to make the arrangements for gender-neutral washrooms, add an additional gender for the LGBTQ community in the academic records, and to sensitize the admission and application process. Further, to sensitize this issue remotely to the parents of children who have not confronted the issues consciously, the use of traditional Parents Teacher Association (PTA) meetings is suggested by the court.

Judiciary: The court also gave directions to run various awareness programs for judicial officers at all levels while coordinating with the NGOs that are dedicated to the welfare of the LGBTQ community to help wipe the preconceived notions to ensure the non-discrimination of persons belonging to the community.

Health workers: The court gave strict direction to the mental and physical health profession not to indulge in any kind of conversion therapy. Therefore, any attempts to medically cure the sexual orientation of LGBTQ people are prohibited.

Police: This state machinery has the most important job in ensuring the protection of people of the LGBTQ community. Police personnel are directed to be educated about the offenses and penalties provided under the Transgender Persons (Protection of Rights) Act, 2019. Further, and most importantly, the court also directed police to stop the harassment of LGBTQ based on missing reports filed by their parents.

The ruling conforms to India’s obligations set out in 2015 by the United Nations High Commissioner for Human Rights (A/HRC/29/23) which sets out the state’s obligations to identify, recognize, and protect LGBTQ people, as well as conforming to the Human Rights Council recommendations in A/HRC/35/36 and A/72/172. The judgment follows not only the international obligations but also the constitutional obligation of Article 15 (1) which prohibits discrimination based on race, religion, caste, gender, etc; wherein the word “sex” in the NALSA judgement has been made to include sexual orientation. The right to privacy as a part of the right to life enshrined under Article 21 of the Constitution as well ICCPR guarantees protection of such disadvantaged communities.

In fact, the case was already a hot potato when the justice himself booked an appointment with a psychotherapist to understand the issues faced by the community. This raises a pressing need for a system where such awareness is a prerequisite to deliver justice. However, this is uncharted territory for the masses as well as justice-deliverers as no such awareness training has been provided in schools or the Judicial Academy. The justice in the present case has himself remarked that his upbringing treated homosexual, gay, or lesbian people as an anathema, which holds true for society in general as well. With such social prejudice in mind and without any official education regarding the issues faced by the community, the future cases demanding such protection are bound to fall prey to discrimination unless such exceptional steps are taken.

The judgment, no matter how effective, is not a panacea even to the legal recognition part of the problem due to the jurisdictional limitation, as well as such norm settlement being the primary task of the legislature. After Navtej Singh Johar, all three organs of state felt so content as to not taking any further steps baring a pending case of legalizing marriage. The court merely took over when the voice of the community could not be turned a deaf ear, whereas the governments are still unable to hear it.

Hope is said to be the strongest of emotions and in this pride month, such a ray of hope is a drop in the ocean. However, it is significant for every individual that has been waiting for love to be legitimized as social acceptance is still a distant dream. This judgment might help those in the LGBTQ community who have been subject to name-calling and bullying, to being denied a job or appropriate healthcare, or receiving threats on their lives.

Prakul Khera and Jayesh Sitlanin are law students at the Institute of Law Nirma University, Ahmedabad, India.

Suggested citation: Prakul Khera and Jayesh Sitlani, A Glimmer of Hope: An Indian State Court Issues Guidelines for Protection of LGBTQ, JURIST – Student Commentary, June 28, 2021,
https://www.jurist.org/commentary/2021/06/khera-sitlani-indian-courts-issues-guidelines/.

This article was prepared for publication by Anushka Sahay, JURIST’s Assitant Editor. Please direct any questions or comments to
her at commentary@jurist.org