Revision as of 21:27, 6 December 2023

Court decisions

HC bans ‘cure’ for LGBTIQA+ members/ 2021

Sureshkumar k , June 8, 2021: The Times of India

The Madras high court suggested a ban on health professionals from attempting to medically ‘cure or change’ the sexual orientation of LGBTIQA+ people to heterosexual or the gender identity of transgender people to cisgender. The court also directed National Medical Commission, Indian Psychiatric Society and Rehabilitation Council of India to take action, including withdrawal of licence to practise, against professionals involved in any form or method of conversion “therapy” to LGBTIQA+ members.

Justice N Anand Venkatesh laid down a slew of guidelines covering issues ranging from gender-neutral restrooms for the gender-nonconforming student and help to change name/gender on academic records for transgender persons, besides suggesting separate jails for transsexuals.

These are among directives issued by Justice Anand Venkatesh, who chose to undergo ‘psycho-education’ under qualified counsellors to understand same-sex relationship issues, before writing the verdict.

Duo moved HC to restrain police from harassing them

The case relates to a Madurai-based lesbian couple, aged 23 and 20 years, who chose to live as a married couple. Facing resistance from their families, they fled to Chennai and took refuge with an NGO. As police continued to visit them following complaints lodged by their parents, the two had moved the HC to restrain cops from harassing them.

Justice Anand Venkatesh said: “The voice of this community is now getting louder and stronger and society can no more turn a deaf ear and the time has come to make that change.” Noting that he himself was “pulled out of darkness (ignorance)” by two counsellors, he said: “The society and my upbringing have always treated the terms ‘homosexual’, ‘gay’, ‘lesbian’ as anathema.”

The court has directed the Centre to organise sensitisation programme for judiciary, police, public servants, health professionals and parents of LGBTIQA+ persons. The matter has been adjourned to August 31.

Glossary

 HC proposes glossary on LGBTQIA+ for media reports

Suresh Kumar, Dec 28, 2021: The Times of India

CHENNAI: In a bid to add dignity to the lives of members of the LGBTQIA+ community, Madras high court has come up with a style sheet -- a standardised glossary -- to be followed by media in their news articles about the community.

Justice N Anand Venkatesh has also requested the media, particularly Tamil media, to adopt the style sheet till the state government comes up with a glossary to be followed by media.

“This court wants to make an earnest request to the media to take into consideration the words and expressions mentioned in the glossary, to be used while addressing persons belonging to the LGBTQIA+ community,” the judge said.

If these words and expressions are used regularly, it will become a common practice and that will pave the way for a dignified identity for persons belonging to this community, the court added. “This court reposes confidence in the media that they will seriously consider the request made by this court and start implementing the same henceforth,” the judge said. The issue pertains to a plea moved by a same-sex couple who faced harassment at the hands of police and their parents.

Initially, when the plea came up for hearing, Justice Anand Venkatesh chose to undergo a counselling session, as he felt that lacked understanding of the issues faced by the community. The judge then passed a series of orders touching upon the need to sensitise people, particularly judiciary and police, on the issue. The court also highlighted the need to revamp the medical education curriculum to sensitise medical practitioners.

On December 23, when the plea came up for hearing, advocate S Manuraj, who initially represented the petitioners and now assisting the court, circulated a short note focusing on the standardised guide/prescriptive glossary containing the words and expressions to be used by the press and media while addressing persons belonging to the LGBTQIA+ community. Taking the note on record, the court passed the order.

TN unveils glossary

Sureshkumar k, August 24, 2022: The Times of India

Chennai:In a first for the nation, Tamil Nadu has issued a government order publishing a glossary of Tamil terms to address LGBTQIA+ community members. Nudged by the Madras high court to do so, the government has also made it mandatory for all forums, including the media, to address them only by using the specific terms published in the gazette.


The order dated August 20 was passed following a suggestion made by Justice N Anand Venkatesh to address persons belonging to the LGBTQIA+ community with due dignity. The suggestion was made during the hearing of a plea moved by a lesbian couple alleging police harassment.

When the plea came up for hearing, counsel for the state produced a copy of the order issued by the social welfare and women empowerment department in the court.

“It is made clear that all concerned, including the press, must take note of the notification published in the gazette on August 20 and address persons belonging to LGBTQIA+ community by using only the notified terms wherever required,” said Justice Anand Venkatesh, recording the order.

The judge directed the state to file a status report and adjourned the hearing to September 2.

Same-sex marriage

Madras HC asks TN government to consider adopting a “deed of familial association” for recognising gay relationships

Ambika Pandit, Nov 27, 2023: The Times of India

New Delhi : The Madras high court order aimed at providing minimum protection from harassment and discrimination to LGBTQIA+ couples by suggesting to the Tamil Nadu government to consider adopting a “deed of familial association” for recognising such relationships, has come like a ray of hope for the community.


An emerging concept, the ‘deed of familial association’ as proposed by the petitioner in the case provides for a deed to ensure that two persons from the LGBTQIA+ will have a right to live in a relationship and also have a right to protection. The deed will provide a shield against harassment by society and discrimination that can impact employment, housing and assimilation in society. However, the deed will not give the contracting individuals the legal status or rights flowing from a marriage or a civil union.


After the Supreme Court judgement refused to recognise same sex marriages or even civil unions putting the ball in the court of the legislature, the community was seized by disappointment. Interestingly, the HC order suggests a deed of familial association while citing the SC judgement.


Justice N Anand Venkatesh said that though the SC has refused to recognise marriage between same sex cou ples, it has categorically recognised the right of choice of two persons to have a relationship.


With no specific guidelines yet on safeguards against harassment for such couples, the legal experts and the community are now hoping to see if the deed of familial association (DFA) going forward could provide that much needed legal template for recognition of such relationships and safegaurd against harassment.


All eyes are now on the Tamil Nadu government as to whether it will agree to creating a mechanism for DFA and define the scope of a such deeds. The HC order puts the onus on states to take the lead.

SC, 2023: Judges enumerate hurdles

Dhananjay Mahapatra, April 26, 2023: The Times of India

SC judges on religion vis-à-vis the Special Marriage Act
From: Dhananjay Mahapatra, April 26, 2023: The Times of India

New Delhi: A five-judge constitution bench of the Supreme Court was prima facie unanimous that even if it decides to grant marriage rights to same-sex couples, it will refrain from determining consequential rights, including adoption, succession and inheritance, as these are inseparably linked to religion-based personal laws.


On the fourth day of hearing on pleas by LGBTQIA+ community members and social workers demanding right to marriage as a natural corollary to decriminalisation of gay sex, a five-judge bench headed by Chief Justice DY Chandrachud offered a reality check to them by pointing out that nearly three dozen laws governed various rights accruing to spouses from a marriage. 
“There is no denying the fact that these issues are intrinsically linked to religion-based personal law. The Special Marriage Act is a secular law and intended to facilitate inter-caste and interfaith marriages. But Hindus, Jains, Buddhists and Sikhs, who get married under this law, fall back on their perso- nal law for inheritance and other benefits,” the CJI said. 

“The canvas covered by the petitioners demanding marriage rights for same-sex couples does fall in the domain of Parliament,” he added.

SC rejects same sex marriage 5 – 0, adoption 3 – 2

Dhananjay Mahapatra, Oct 18, 2023: The Times of India

NEW DELHI: The Supreme Court rejected the plea to legalise same-sex marriages and extend the right of adoption to queer couples, in a setback to the push for equal treatment of those with alternative sexual orientation.

Despite asserting that queerness is neither urban nor elite, a bench of Chief Justice DY Chandrachud and Justices SK Kaul, SR Bhat, Hima Kohli and PS Narasimha disappointed the hopeful faces in the courtroom with a unanimous ruling that the right to marry was not a fundamental right and the legislature had the power to regulate it in accordance with societal conditions.Unequivocally stating that the legislature alone could effect changes in marriage laws and other consequential legislations to allowsame-sex couples the right to legally tie the knot, the bench said it was not for the court to read down or insert words into Section 4 of the Special Marriage Act (SMA), 1954, to erase the statutorily essential man-woman component of a marriage.

The bench also agreed that a high-powered committee to be set up by the government should examine all factors relevant to the queer community and consider benefits for them.

But the unanimity ended there. While the CJI and Justice Kaul opined that same-sex couples could adopt, the majority opinion was against it.

An emotional roller coaster in apex court

It was a roller-coaster of emotions as CJI DY Chandrachud on Tuesday held that same-sex couples could adopt a child - an opinion Justice SK Kaul concurred with. After the rejection of same-sex marriage, hopes were momentarily raised for a consolatory relief for the LGBTQIA+ community, 21 of whom had petitioned the Supreme Court last year and numerous others had intervened.

But their hopes crashed as the opinions of the CJI and Justice Kaul became the minority view after the blunt opinion of Justices SR Bhat and Hima Kohli, with whom Justice PR Narasimha agreed, rejecting adoption rights to same-sex couples. Both Justice Chandrachud and Justice Bhat spent 45 minutes each reading out important portions of their judgment in the courtroom.

While the bench unanimously held that right to marry was not a fundamental right, the judges differed on the issue of same-sex couples entering into civil unions which would entitle them to marriage-like rights.

CJI Chandrachud, in his 247-page opinion, said, "Queerness is a natural phenomenon known to India since ancient times. It is not urban or elite." However, he conceded that the regulation of marriage through legislation by the state was necessitated to "democratise personal relationships”.

"The Constitution does not expressly recognise a fundamental right to marry. An institution cannot be elevated to the realm of a fundamental right based on the content accorded to it by law... This court cannot either strike down the constitutional validity of SMA or read words into the SMA because of its institutional limitations. This court cannot read words into the provisions of the SMA and provisions of other allied laws because that would amount to judicial legislation. The court, in the exercise of the power of judicial review, must steer clear of matters, particularly those impinging on policy, which fall in the legislative domain," he said. However, the CJI and Justice Kaul said a transgender male could legitimately marry a transgender woman under SMA. This opinion was agreed to by other three judges.

The CJI said, "The gender of a person is not the same as their sexuality. A person is a transgender person by virtue of their gender identity. If a transgender person is in a heterosexual relationship and wishes to marry their partner (and if each of them meets the other requirements set out in the applicable law), such a marriage would be recognised by the laws governing marriage. This is because one party would be the bride or the wife in the marriage and the other party would be the bridegroom or the husband.”

Agreeing with the CJI, Justices Bhat and Kohli said, "There cannot be a per se assertion that there exists an unqualified right to marry which requires treatment as a fundamental freedom." However, they disagreed with the CJI and said it was not necessary to refer to same-sex relationships as civil unions and make them entitled to other rights that flow from a marriage-like relationship.

"We do not, therefore, agree with the CJI who has underlined that the positive postulate of various rights leads to the conclusion that all persons (including two consenting adult queer persons) have an entitlement to enter into a union, or an abiding cohabitational relationship which the state is under an obligation to recognise 'to give real meaning' to the right," Justices Bhat and Kohli said. Justice Narasimha agreed with their opinion.

Referring to the Navtej Johar judgment decriminalising same-sex relationships, Justices Bhat and Kohli said, "Previous judgments of this court have established that queer and LGBTQ+ couples too have the right to union or relationship (under Article 21) - 'be it mental, emotional or sexual' - flowing from the right to privacy, right to choice, and autonomy. This, however, does not extend to a right to claim entitlement to any legal status for the said union or relationship.”

How queer couples could achieve legal status for their relationships was an issue to be addressed by the legislature, Justice Bhat said. "The modalities of how it should play out, what it will entail etc are facets that the state - here the legislature and the executive - needs to exercise its power in furtherance of. Now, whether this will happen through proactive action of the state itself, or as a result of sustained public mobilisation, is a reality that will play out on India's democratic stage, and something only time can tell.”

See also

Homosexuality and the Indian law

LGBT: Bangladesh