CASE ANALYSIS: S. SUSHMA & ANR. V. COMMISSIONER OF POLICE AND ORS.
Author: Manali Agrawal
CASE NAME: S. Sushma and Another v. Commissioner of Police and others
CITATION: W.P. No. 7284 of 2021
COURT: Madras High Court
CORAM: Justice Anand Venkatesh
DECIDED ON: 07.06.2021
This case is a landmark case in the Indian Legal System as it prohibits Conversion Therapy in the Country and provides for strict legal actions against any person indulged in such practice. The Court also issued various guidelines so as to prevent harassment of persons belonging to the LGBTQIA+ community.
Following are the facts of the case:
1. Ms. S. Sushma and Ms. U. Seema Agarval, who are the petitioners in the instant case, is a lesbian couple. Their parents, who are also the respondents in the instant case, are opposed to their relationship and resultantly the couple eloped from their house in Chennai to Madurai.
2. They were able to secure accommodation and protection with the aid of some NGOs and other members belonging to the LGBTQIA+ community.
3. Meanwhile, the respondent parents filed the missing complaints before the police who are also the respondents in the instant case. The couple faced interrogation and apprehension of threat to their safety and security.
4. As a result, the petitioners approached the court 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 Respondents police.
1. Whether Police protection for the threat and danger to the safety and security of the LGBTQIA+ Community should be given or not?
A single bench of Justice Anand Venkatesh observed that persons belonging to LGBTQIA+ Community face various atrocities due to societal sanctions as they are not considered good for society. There is a need to change the perspective of the society towards the LGBTQIA+ Community so as to improve their condition and ensure the protection of their life and dignity under Article 21 of the Constitution of India. This societal change must then be complemented by a law. In this way social discrimination against LGBTQIA+ persons can be eradicated.
The Court issued certain guidelines for police officers to protect the LQBTQIA+ persons from harassment by the police when a missing complaint is lodged by their parents. The court observed that as there is no guarantee for the protection and safety of the LGBTQIA+ Community they cannot be left in a vulnerable atmosphere until then. Therefore, till the legislature makes separate legislation for the welfare of the LGBTQIA+ Community these guidelines will fill the gap.
Following are the interim guidelines as given by the court:
A. When the missing complaint regarding girl/women/man filled in a police station and if the police find that the people and the persons are belonging to the LGBTQIA+ Community the police should record their statement and close the missing complaint without asking any question which harasses them.
B. The high court asked the Ministry of Social Justice & Empowerment (MSJE) to recruit the Non- Profiting Organization (NGO) and other community-based groups consist of experts which have sufficient knowledge to handle the issue of harassment faced by the LGBTQIA+ community. The details of NGOs such as name, address and contact number shall be published on the official website. Within 8 weeks from the date of receipt of the copy of this order, these details shall be published.
C. Any persons who belong to LGBTQIA+ Community and because of their belonging if they face harassment or any other issue may complain against them by approaching the enlisted NGOs for safeguarding and protecting their rights.
D. The confidential record of such person who approaches the enlisted NGO’s shall be maintained by them and data should be provided to the Ministry of Social Justice & Empowerment (MSJE).
E. Such a problem shall be tackle with the best-suited method before examining the facts and circumstances of each case. It may be counseling, legal assistance, monetary support with the help of the District Legal Service Authority or with the support of legal enforcement agencies about the crimes against the LGBTQIA+ Community peoples.
F. The Court asked to make a suitable change in existing short-stay homes, Anganwadi shelters, and ‘Garima greh’( home for transgender persons to provide necessities) to provide shelter to every LGBTQIA+ Community member who requires homes. For this MSJE shall make all the arrangement of infrastructure within 12 weeks from the date of receipt of the copy of this order.
G. The Court also asked the government to take up the other measures to eradicate the prejudices against the LGBTQIA+ community and guiding back to the mainstream. Such measures and policies set out by the Union and the State Government respectively with the consultation of other departments or Ministries.
H. The court suggested that the sanitization programs should be conducted for police and prison authorities, district and state legal service authorities, officials in the judiciary, physical and mental health professionals, education institutions, health workers, the public or private institution as well as parents of LGBTQIA+ Community to create awareness.
The court also orders the Union and State Government to complete a ban on any attempts to medically change or “cure’’ the sexual orientation of the LGBTQIA+ community to heterosexual or gender identity of transgender people to cis gender. Also, action will be taken for those involves in the therapy of conversion.
ANALYSIS AND CONCLUSION:
This judgment makes a significant change in society if they properly understand the need for this change. Anand Venkatesh underwent the counseling process to understand the problem faced by a homosexual person by hiding their personal identity and prejudices. He understands the problem then he delivered his judgment like him people of nations also understand the humility faced by the LGBTQIA+ Community. The present case has allowed the court to change the morality and notions of tradition in the society and provide justice to the LGBTQIA+ Community. With the help of guidelines issued by the Court, LGBTQIA+ Community ensures safety while filing against the offence faced by them.
Tamil Nadu becomes the first state to ban the conversion therapy of homosexual persons for fear of living happily in society. This procedure is prevalent in the hospital as well as a religious institution. But this not fair with the LGBTQIA+ Community because sexual autonomy is the essential aspect of to right to privacy society cannot snatch this right just because they did not feel it right. The guidelines are seeking changes in school and university curricula and also conducting awareness programs for the judicial officer, police and prison authority as well as parent of the LGBTQIA+ Community. To understand and create awareness among these people so that LGBTQIA+ Community members don’t fear and facing any kind of problem due to their belonging. This judgment is protecting the rights of the LGBTQIA+ Community till proper legislature enacts their rights