Section 377 of the Indian Penal Code was a colonial relic that should not have been part of the statute books at all. It was only in 2018 that the Indian Judiciary took the historic step of striking down the law that went against equality, the right to privacy and freedom of expression. So when it comes to people of the LGBTQ community, the law is still nascent. Judges may still have doubts about which way to rule in matters relating to this. So, when a Madras High Court Judge sought counselling before ruling in such a matter, he literally shows the way for other judges.
The judge had before him, a case relating to a same-sex couple. A lesbian couple from Madurai had approached the High Court for the quashing of a missing persons FIR. The FIR was lodged by the parents of the women who objected to their relationship. The two women had eloped to Chennai to escape family censure and were petitioning the court for protection in the matter. The lawyer for the petitioners also asked for guidelines to be formed in respect of such cases.
So, when the matter came up before Justice N Anand Venkatesh this was an unusual situation for him. The judge felt that he needed to handle this sensitively and with empathy. He acknowledged that perhaps he wasn’t ‘fully woke’ and that he needed to ‘evolve’ and understand same-sex relationships better. The parties in the matter – the two women as well as their parents were also asked to undergo counselling. As importantly, the judge himself sought counselling from a psychologist to understand the situation as well as to ‘remove preconceived notions on the subject’.
This is tremendously refreshing. Here we have a person in a position of authority admitting to his own possible limitations and expressing the desire to learn and evolve. The judge admits that he needs to know more about 'homosexual orientation' and 'relationship dynamics'. This points to a progressive mindset and the willingness to change; it points to humility and self-awareness.
The judge has passed an interim order in the matter but decided that he needs some more time to dwell on the matter before deciding it. The matter will now come up in June. The observations made by the court are interesting. While the court is clear that the two women are not ‘confused’ and that forced separation would cause trauma, the court also notes the concerns of the parents who fear social stigma and worry for their daughters.
This image is that of the first Indian lesbian marriage in 2017 – Shannon and Seema’s marriage is still very much an outlier. This fact and the matter before the Madras High Court captures an essential contradiction of Indian society. On the one hand, we have a tradition of accepting alternative sexualities and are open-minded about it. On the other, there is ignorance, secrecy, misinformation, disapproval and social stigma.
It is bizarre that the parents of a same-sex couple had such a problem with their daughters’ sexual orientation that they filed missing-persons reports to try and get break up the relationship. Presumably, they were hoping that the threat of criminal proceedings would break up a loving relationship between two women.
Someone like a judge admits to not knowing enough about the LGBTQ to make a fair and equitable decision in the matter. It is telling that while the judge observed that there is love and affection between the women and their parents, the problems of social censure outweigh those emotions for the parents.
It is also telling that the position of the centre on the matter of same-sex marriages still seems stuck in the past. It is sad that ours is still a society where consenting adults should have to apply to the High Court just to be able to live life on their own terms; for protection from society and their own parents.
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