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S. Sushama and another vs Commissioner of Police and others. (W.P.No.7284 of 2021)

“There are many branches on the tree of life. There is no one way to be, and there is room for everyone to be who they are.”


CASE

S. Sushama and another vs Commissioner of Police and others.


CITATION

W.P.No.7284 of 2021


CORAM

High Court of Madras (Writ Petition)

Single Bench: Justice N. Anand Venkatesh


ALSO KNOWN AS

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POINT OF CONSIDERATION

Whether the court should direct the police to inquire with the parents of the Petitioners and instruct them not to interfere with the life of the Petitioners and grant the necessary Police Protection to the Petitioners?


FACTS

  1. The Petitioners, a lesbian couple whose relationship was being opposed by their parents, fled to Chennai from their respective houses in Madurai. The said Petitioners, with the support extended by certain NGOs and persons belonging to the LGBTQIA+ community managed to secure accommodation and protection, and were in search of employment to financially sustain themselves.

  2. Meanwhile, the Parents individually filed girl-missing-complaints before the Police and two FIRs came to be registered. Having faced interrogation by the police at their residential premises, and apprehending threat to their safety and security, the Petitioners approached the High Court of Madras seeking a direction to the police not to cause harassment and protection from any form of threat or danger to their safety and security from the parents.

  3. The Court, felt that the case required attention in details and therefore, passed the order on 22.03.2021 to hear the parties in camera and provide interim protection to the petitioners.

  4. Before proceeding further with the case, the Court conducted counselling/mediation process between the petitioner and their parents in order to assess their mental status and to understand their stand.

  5. Pursuant to the order dated 28.04.2021, the Honb’le Justice himself underwent a several session of psycho-education to understand the problems faced by homosexual persons, by shedding his personal ignorance and prejudices. He also interacted with the members of LGBTQIA+ community, which included, Dr. L.Ramakrishnan, Vice President, SAATHII, Ms. Shanmathi, PCVC, Dr. Trinetra Haldar Gummaraju, Digital-Content Creator, Actor, MBBS Intern – Kasturba Medical College and her mother Ms. Haima Haldar.

ISSUES RAISED & RATIO

  • What are the guidelines issued by the court to ensure the protection of LGBTQIA+ community and their safety?

The discussions in the case leads this Court to the framing of guidelines and issue of directions for proper recognition of the rights of the LGBTQIA+ community and to ensure their safety and security to lead a life chosen by them.


This Court expects the respective departments/authorities and institutions to implement these guidelines in letter and spirit not for the sake of complying with a judicial fiat but to ensure that this society evolves, and the LGBTQIA+ community is not pushed out of the mainstream of the society.


The Court proceeds to issue the following interim guidelines/Directions:

  1. The police, on receipt of any complaint regarding girl/woman/man missing cases which upon enquiry/investigation is found to involve consenting adults belonging to the LGBTQIA+ community, shall upon receipt of their statements, close the complaint without subjecting them to any harassment.

  2. The Ministry of Social Justice & Empowerment (MSJE), has to enlist Non-Governmental Organizations (NGOs) including community-based groups which have sufficient expertise in handling the issues faced by the LGBTQIA+ community. The list of such NGOs along with the address, contact details, and services provided shall be published and revised periodically on the official website. Such details shall be published within 8 weeks from the date of receipt of copy of this order.

  3. Any person who faces an issue for the reason of their belongingness to the LGBTQIA+ community may approach any of the enlisted NGOs for safeguarding and protecting their rights

  4. The concerned NGO in consultation with the MSJE, shall maintain confidential records of such persons who approach the enlisted NGOs and the aggregate data shall be provided to the concerned Ministry bi-annually.

  5. Such problems shall be addressed with the best-suited method depending on the facts and circumstances of each case be it counselling, monetary support, legal assistance with the support of District Legal Services Authority, or to co-ordinate with law enforcement agencies about offenses committed against any persons belonging to the LGBTQIA+ community.

  6. With specificity of issue of accommodation, suitable changes are to be made in existing short stay homes, Anganwadi shelters, and "garima greh" (a shelter home for transgender persons, the purpose of which is to provide shelter to transgender persons, with basic amenities like shelter, food, medical care and recreational facilities. Besides, it will provide support for capacity-building/skill development of persons in the community, which will enable them to lead a life of dignity and respect) to accommodate any and every member of the LGBTQIA+ community, who require shelters and/or homes. The MSJE shall make adequate infrastructural arrangements in this regard, within a period of 12 weeks from the date of receipt of copy of this order.

  7. Such other measures that are needed for eliminating prejudices against the LGBTQIA+ community, and channelizing them back into the mainstream shall also be taken up. The Union and State Governments respectively, in consultation with such other Ministries and/or Departments shall endeavour to device such measures and policies.

  8. For the sake of creating awareness, this Court suggests following sensitization programs to be conducted by the concerned Ministry of the Union/State Government(s).


The issue involved in the present Writ Petition requires regular monitoring and follow up with various concerned departments to ensure that the directions issued by this Court is executed and enforced. In view of the same, this Court is inclined to keep this Writ Petition pending and issue continuing mandamus from time to time after hearing the parties concerned.


IMPORTANT CASES REFERRED

  1. Navtej Singh Johar v. Union of India and Ors, 2018 (10) SCC 1.

  2. V.G. Row v. State of Madras, AIR 1951 Madras 147.

  3. NALSA v. Union of India reported in 2014 (5) SCC 438.

  4. Naz Foundation v. Government of the NCT of Delhi, 2010 Cr LJ 94.

  5. Suresh Kumar Kaushal v. Naz Foundation, 2014 (1) SCC 1.


Read the complete judgment here.


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