The Supreme Court of India has once again overstepped its mandate given under the Constitution of India by transgressing the boundaries of separation of powers given in the Constitution of India under Article 50, usurping the powers of the Centre and State Legislatures. The Apex Court has issued a set of guidelines to the High Courts when dealing with habeas corpus petitions filed by partners belonging to the LGBTQ+ community and for those petitions seeking police protection by intimate partners.

The case concerned an alleged detention of a lady who was above the age of 18 years by her family members. It is astonishing to note that both the Kerela High Court as well as the Supreme Court took erroneous cognizance of the habeas corpus petition which is categorically invoked for missing persons or persons in illegal detention, even when the lady had categorically stated before the Supreme Court that she was living with her parents out of her own free choice. The other interesting part is that petitions were accepted without following the necessary procedure of law in the case of habeas corpus petitions which is proving a prima facie case of illegal detention of the person. The Apex Court in its previous judgments such as Union of India v. Yumnam Anand M. alias Bocha alias Kora alias Suraj & Anr. (2007) 10 SCC 190, Dushyant Somal v. Sushma Somal (1981) 2 SCC 277, Tejaswini Gaud & Ors. v. Shekhar Jagdish Prasad Tewari & Ors. (2019) 7 SCC 42 has held consistently that habeas corpus petition would be maintainable before the Courts only where there is a case of detention by parents or others.

Besides this, by accepting a petition which otherwise should not have been accepted and setting up erroneous precedents of law, the Apex Court issued a set of guidelines for partners belonging to the LGBTQ+ community who have filed habeas corpus petitions or petitions seeking police protection. These set of guidelines have not only usurped the powers of the Parliament of India and State Legislatures granted to them by virtue of Entry No.5 of List III of Schedule VII to legislate on family matters but also have wide ramifications for the entire society at large.

The Supreme Court in its judgment through judicial interpretation has expanded the legal meaning of the term family by not limiting to the natal family but also including the person's chosen family. This meaning of family has been provided under different statutes in India and it varies depending upon the subject matter of the statute, but by and large, it includes only those relations established by blood, marriage and adoption. The definition of family is also subject to personal laws of different religions and imposition of the concept of a person’s chosen family not only goes against the letters of law under different statutes but also the respective personal laws. Brushing them under one plain stroke of letter that family includes even a person’s chosen family goes against the statutory provisions defining family under different statutes and is akin to legislative defining of the term ‘family’. Besides this, defining family to include a person’s chosen family would have implications on the personal laws of the individual including succession, marriage, divorce, minority and guardianship, adoption, taxation laws, civil service laws etc. of the country.

The Apex Court in its tearing hurry to pass the judgment seems inclined to legislate and introduce the concept of ‘civil unions’ or partners-in-relationship in India to which the Legislature should have decided to grant with respect to their legal validity, their rights, obligations etc. In addition to this, the guidelines issued by the Supreme Court stated that in the case of habeas corpus petitions filed by intimate partners belonging to LGBTQ+ community, the Courts will not enquire into the precise nature of their relationship. This approach of the court is erroneous as the entire standing of a partner or friend needs to be precise in order to discern the cases marred by criminal intimidation, kidnapping, undue influence and coercion exerted by the partner/friend. In case of imprecise determination of the nature of the relationship, the existence of any kind of dispute including forceful thrusting of sexual orientations remains imminent which can be averted by the courts. That these disputes are not fictitious and are arising in the Indian context can be gauged with the help of two news articles - read here, here.

Further, guidelines passed by the Apex Court also have a detrimental effect on the minor children of the society as they can readily invoke habeas corpus petitions for removing themselves from their parents without any legal prohibition if they supposedly identify with LGBTQ+ community. This direction of the Court is also against the letter and spirit of the Hindu Minority and Guardianship Act, 1956 wherein the father and mother are the natural guardians of the person and property of the minor child. In the eventuality of these guidelines being implemented, the minor children who may have been unduly influenced, coerced may invoke the Court’s support only to have them separated from their parents. Besides this, if minor children express a wish that they do not want to go back to their family, the court has now given them the liberty to do so by these directions and guidelines.

Further, counselling by parents or parental care has been prohibited by the Courts for the fear that counselling may be misused by the parents to allegedly change the sexual orientation of their children. The same counselling is made mandatory under several statutes including those of marriage or divorce such as the Hindu Marriage Act, 1956 wherein counselling is deemed mandatory for the partners there. It seems incongruous and arbitrary to readily suggest counselling for married couples and to detest them in the case of those adults or minors who belong to the LGBTQ+ community. The judgment indeed has been pronounced in a hasty manner without taking into consideration the ramifications for the society at large. The implementation of these guidelines will by and large take away the parental rights of minor children who are in a better position to understand the welfare of these children and their orientations which include sexual orientation.

Author is an Assistant Professor of Law at KIIT(deemed to be University) Bhubaneshwar, Odisha.

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