DEVU G. NAIR vs THE STATE OF KERALA, 2024
Case Title and Citation: DEVU G. NAIR V. THE STATE OF KERALA 2024 INSC 228 (11 March 2024).
Factual Background
The Appellant, Devu G. Nair, and ‘X’, the detainee, were women involved in a same-sex intimate relationship. The Appellant filed a petition for a writ of habeas corpus in the Kerala High Court, claiming that ‘X’ was being illegally held by her parents to prevent her from being with the Appellant. The High Court initially directed the Secretary of the District Legal Services Authority (DLSA) to record ‘X’s statement to confirm illegal detention. Later, the High Court directed ‘X’ to undergo counselling sessions with a psychologist. The Appellant challenged these High Court orders before the Supreme Court, arguing that mandatory counselling was fundamentally flawed and infringed upon ‘X’s personal autonomy. The Supreme Court subsequently directed that ‘X’ be produced before the Family Court at Kollam for an interview with a senior Judicial Officer to confirm her wishes. The resulting reports confirmed that ‘X’ is an adult who had completed her Masters degree, was residing with her parents voluntarily, wished to focus on her career, and did not currently want to live with or marry the Appellant.
Issue(s)
- Whether the Appellant’s petition for a writ of habeas corpus seeking the release of her same-sex relationship partner, alleged to be under illegal detention by her parents, should be granted?
- Whether High Courts are permitted to order compulsory counselling or therapy that may attempt to undermine or change an individual’s sexual orientation and identity?
Decision of the Supreme Court
The Supreme Court did not intervene in the case’s final outcome, as there was no reason to doubt the report that the individual (‘X’) was residing with her parents voluntarily. However, the Court set aside the counselling order issued by the High Court and emphasized that High Courts must respect the sexual orientation and identity of members of the LGBTQ+ community. The Court also issued mandatory guidelines for all courts handling habeas corpus and protection petitions involving intimate partners and family interference.
Reason for the decision
- Voluntary Residence Confirmed: Based on the report submitted by a senior Judicial Officer, the Court was satisfied that ‘X’ was a major individual who freely expressed her intent to remain with her parents and focus on her career for the time being.
- Protection of Autonomy and Identity: The Court stressed that the Constitution protects the rights and dignity of LGBTQ+ individuals. It is inappropriate for judges to attempt to overcome an individual’s identity or sexual orientation through mandatory counselling or therapeutic measures. Judges must not substitute their own subjective beliefs for the constitutional ideals of freedom.
- Scope of Family: The judgment highlighted that the concept of ‘family’ is not limited to the natal (birth) family but includes a person’s “chosen family,” a support system crucial for LGBTQ+ persons who may face violence from natal relatives.
- Mandatory Guidelines for Courts: The Supreme Court formulated comprehensive, mandatory guidelines for courts dealing with habeas corpus petitions involving intimate partners and family interference. These guidelines require courts to:
- Prioritize such petitions and avoid delays.
- Avoid influencing the detained person’s wishes.
- Conduct in-camera proceedings to ensure the privacy and safety of the detained person.
- Release the detained individual immediately if they express a wish not to return to the detainer or natal family, and provide immediate police protection if necessary.
- Refrain from passing directions for counselling or parental care, as the court’s role is strictly limited to ascertaining the person’s will.
Conclusion
Although the specific release of ‘X’ was not ordered because the investigation confirmed she was residing voluntarily, the Supreme Court used this case to deliver a cautionary note and establish mandatory legal standards. These standards ensure that judicial processes respect the autonomy, sexual orientation, and gender identity of intimate partners and members of the LGBTQ+ community, reinforcing that courts must avoid imposing moral judgments or using counselling to alter an individual’s core identity.
