In a landmark ruling, the Supreme Court has issued a comprehensive set of guidelines aimed at safeguarding the rights and dignity of intimate partners, especially those from communities such as LGBTQ+. 

These guidelines, issued by a bench comprising Chief Justice of India DY Chandrachud, Justice JB Pardiwala, and Justice Manoj Misra, represent a significant step towards ensuring equal treatment and protection under the law for all individuals, regardless of their sexual orientation, gender identity, or other personal characteristics.

The genesis of these guidelines stemmed from a case before the Kerala High Court, wherein interim orders were issued based on a petition for a writ of habeas corpus filed by a woman alleging her partner's unlawful detention by her parents. However, upon investigation, it was revealed that the partner had chosen to reside with her parents willingly and expressed no desire to live with any other individual at that time. 

The court, acknowledging the importance of an individual's chosen family alongside their natal family, recognized the significance of this concept, especially for LGBTQ+ individuals facing potential violence and lack of safety within their natal families.

The Supreme Court's guidelines represent a pivotal step towards ensuring that LGBTQ+ individuals are afforded the same rights and protections as any other citizen. By affirming the principle of individual autonomy and recognizing the significance of chosen families, the court has sent a clear message that discrimination and coercion based on sexual orientation or identity will not be tolerated.

Thus, the guidelines come in response to a pressing need to address the challenges faced by couples seeking protection from family members or police interference, particularly when their relationships do not adhere to traditional societal norms. 

With a keen understanding of the urgency and sensitivity of such cases, the Supreme Court laid down these directives aimed at streamlining the legal process and protecting the rights of those seeking assistance.

Among the key directives outlined by the Supreme Court are the following:

1. Habeas corpus petitions and petitions for protection filed by a partner, friend or a natal family member must be given a priority in listing and hearing before the court. A court must avoid adjourning the matter, or delays in the disposal of the case;

2. In evaluating the locus standi of a partner or friend, the court must not make a roving enquiry into the precise nature of the relationship between the appellant and the person;

3. The effort must be to create an environment conducive for a free and uncoerced dialogue to ascertain the wishes of the corpus;

4. The court must ensure that the corpus is produced before the court and given the opportunity to interact with the judges in-person in chambers to ensure the privacy and safety of the detained or missing person. The court must conduct in-camera proceedings. The recording of the statement must be transcribed and the recording must be secured to ensure that it is not accessible to any other party;

5. The court must ensure that the wishes of the detained person is not unduly influenced by the Court, or the police, or the natal family during the course of the proceedings. In particular, the court must ensure that the individuals(s) alleged to be detaining the individual against their volition are not present in the same environment as the detained or missing person. Similarly, in petitions seeking police protection from the natal family of the parties, the family must not be placed in the same environment as the petitioners;

6. Upon securing the environment and inviting the detained or missing person in chambers, the court must make active efforts to put the detained or missing person at ease. The preferred name and pronouns of the detained or missing person may be asked. The person must be given comfortable seating, access to drinking water and a washroom. They must be allowed to take periodic breaks to collect themselves. The judge must adopt a friendly and compassionate demeanor and make all efforts to defuse any tension or discomfort. Courts must ensure that the detained or missing person faces no obstacles in being able to express their wishes to the court;

7. A court while dealing with the detained or missing person may ascertain the age of the detained or missing person. However, the minority of the detained or missing person must not be used, at the threshold, to dismiss a habeas corpus petition against illegal detention by a natal family;

8. 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; 

9. If a detained or missing person expresses their wish to not go back to the alleged detainer or the natal family, then the person must be released immediately without any further delay;

10. The court must acknowledge that some intimate partners may face social stigma and a neutral stand of the law would be detrimental to the fundamental freedoms of the appellant. Therefore, a court while dealing with a petition for police protection by intimate partners on the grounds that they are a same sex, transgender, inter-faith or inter-caste couple must grant an ad-interim measure, such as immediately granting police protection to the petitioners, before establishing the threshold requirement of being at grave risk of violence and abuse. The protection granted to intimate partners must be with a view to maintain their privacy and dignity;

11. The Court shall not pass any directions for counseling or parental care when the corpus is produced before the Court. The role of the Court is limited to ascertaining the will of the person. The Court must not adopt counseling as a means of changing the mind of the appellant, or the detained/missing person;

12. The Judge during the interaction with the corpus to ascertain their views must not attempt to change or influence the admission of the sexual orientation or gender identity of the appellant or the corpus. The court must act swiftly against any queerphobic, transphobic, or otherwise derogatory conduct or remark by the alleged detainers, court staff, or lawyers; and

13. Sexual orientation and gender identity fall in a core zone of privacy of an individual. These identities are a matter of self-identification and no stigma or moral judgment must be imposed when dealing with cases involving parties from the LGBTQ+ community. Courts must exercise caution in passing any direction or making any comment which may be perceived as pejorative.

Case: Devu G Nair v. The State of Kerala & Ors,

Criminal Appeal No of 2024  Special Leave Petition (Criminal) No 1891 of 2023.

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