DEVU G NAIRversusTHE STATE OF KERALA & ORS.

                 [2024] 3 S.C.R. 1273 : 2024 INSC 228

                              Devu G Nair
                                    v.
                        The State of Kerala & Ors.
                     Criminal Appeal No. 1730 of 2024
                (Arising out of SLP (Crl.) No. 1891 of 2023)
                                 11 March 2024
                [Dr Dhananjaya Y Chandrachud,* CJI,
                 J B Pardiwala and Manoj Misra, JJ.]

                            Issue for Consideration
       Whether the High Court, in a habeas corpus petition, was correct
       in directing the ‘corpus’ to undergo a counselling session with a
       psychologist; what guidelines should be followed by courts while
       dealing with habeas corpus petitions or petitions for police protection.

                                    Headnotes
       Constitution of India – Art. 226 – Habeas Corpus petition filed
       in High Court on the ground that Corpus (also referred to as
       ‘X’) was being forcibly kept by her parents in their custody
       whereas she wished to remain with the Appellant – High Court
       met X and directed counselling with a psychologist – Appeal
       against order of High Court – Appeal disposed of as X wants
       to live with her parents out of her own volition – direction
       for counselling set aside – note of caution – completely
       inappropriate to attempt to overcome the identity and sexual
       orientation of an individual by a process of purported
       counselling – guidelines issued.
       Held: Appellant filed petition seeking writ of habeas corpus in the
       High Court – Appellant and X are both female and according to
       the Appellant in an intimate relationship – petition instituted on
       ground that X was being forcibly kept by her parents in their custody
       against her wishes – Interim Order of High Court directing Secretary,
       District Legal Services Authority (DLSA), Kollam to interact with
       X to ascertain if she was in illegal detention – subsequent interim
       order of High Court directing production of X before Secretary,
       DLSA to facilitate interaction with High Court – High Court directing
       X to undergo a counselling session with a psychologist – order
       challenged. [Paras 3-5]

* Author
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    Principal Judge, Family Court, Kollam directed to facilitate an
    interaction between X and Ms. Saleena VG Nair, member of
    e-committee of Supreme Court – report submitted by Ms. Nair –
    X has stated that she is living with her parents out of her own
    volition – focussed on her career – did not wish to marry any
    person or live with any person for the time being – no reason to
    disbelieve report prepared after duly ascertaining wishes of X –
    not inclined to entertain Petition on ultimate outcome before the
    High Court – direction for counselling set aside. [Paras 6, 9-11]
    Note of caution – completely inappropriate for courts to attempt
    to overcome the identity and sexual orientation of an individual
    through purported counselling – Judges must eschew tendency
    to substitute their own subjective values for the values which
    are protected by the Constitution – Directions for counseling or
    parental care have a deterrent effect on members of the LGBTQ+
    community – family is not only natal family but encompasses
    chosen family – chosen families source of immeasurable support,
    love, mutual aid and social respect – courts to consider importance
    of chosen family – more so in cases involving habeas corpus
    petition, petitions for protection of the person, or in missing
    persons’ complaints – guidelines issued for courts in dealing with
    such cases – guidelines must be followed in letter and spirit as a
    mandatory minimum measure to secure the fundamental rights
    and dignity of intimate partners, and members of the LGBTQ+
    communities in illegal detention. [Paras 12-17]

                               List of Acts
    Constitution of India – Article 136 and Article 226

                            List of Keywords
    Habeas Corpus; Illegal detention; Personal freedom; Right to
    choose family; LGBTQ+ persons; Sexual orientation; Judge-in
    chamber; Counselling; Dignity; Privacy

                           Case Arising From
    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.1730
    of 2024
    From the Judgment and Order dated 13.01.2023 of the High Court
    of Kerala at Ernakulam in WPCRL No.28 of 2023
[2024] 3 S.C.R.                                                        1275

                Devu G Nair v. The State of Kerala & Ors.


                         Appearances for Parties
      Sriram P., Adv. for the Appellant.
      Nishe Rajen Shonker, Mrs. Anu K Joy, Alim Anvar, Sayooj Mohandas
      M, S. Jyotiranjan, Sandeep Singh, Advs. for the Respondents.
                 Judgment / Order of the Supreme Court

                                 Judgment
      Dr Dhananjaya Y Chandrachud, CJI
1.    Leave Granted.
2.    These proceedings under Article 136 of the Constitution arose from
      the interim orders of the Kerala High Court dated 13 January 2023
      and 02 February 2023 in a petition seeking a writ of habeas corpus.
3.    The appellant and the ‘corpus’ (‘X’ for convenience of reference)
      are both female According to the appellant, they were in an intimate
      relationship. The petition seeking a writ of habeas corpus was
      instituted on the ground that the ‘X’ was being forcibly kept by
      her parents in their custody whereas she wished to remain with
      the appellant. On 13 January 2023, at the stage of admission, the
      Kerala High Court ordered the Secretary of the jurisdictional District
      Legal Services Authority1 to visit the fourth and fifth respondents
      who are the parents of ‘X’, and record her statement to ascertain
      if she was under illegal detention. The High Court further directed
      that in the event that ‘X’ is in illegal detention, the Station Head
      Officer of the jurisdictional Police Station must ensure that ‘X’ is
      produced before the Secretary, DLSA to facilitate an interaction
      with the High Court through a video conferencing session. The
      parents of ‘X’ were allowed to join and remain present during the
      video conferencing session.
4.    On 31 January 2023, the High Court directed the production of
      ‘X’ before the Secretary, DLSA on 2 February 2023 to facilitate an
      interaction with the High Court. After an interaction with ‘X’, the High
      Court proceeded to direct ‘X’ to undergo a counselling session with
      a psychologist attached to a counselling centre.


1    DLSA
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5.   Faced with the above grievance, this Court on 6 February 2023
     issued notice and issued interim directions. The parents of ‘X’ were
     directed to produce her before the Family Court at Kollam by 05:00
     pm on 8 February 2023. Further, the Principal Judge of the Family
     Court was directed to arrange for an interview of ‘X’ with Ms Saleena
     V G Nair, a Member of the e-Committee of the Supreme Court who
     was, at that point in time, on deputation. Ms Nair is in the judicial
     service of the State of Kerala.
6.   The interview was directed to be arranged in consultation with the
     Principal Judge of the Family Court and Ms Nair was directed to
     interact with ‘X’ and submit a report after ascertaining her wishes
     on whether she is voluntarily residing with her parents or is kept
     under illegal detention.
7.   The Principal Judge of the Family Court has submitted a report on
     the modalities which were followed.
8.   Ms Saleena V G Nair has also submitted a comprehensive report
     dealing with her interaction with ‘X’. The report by Ms Nair indicates
     that sufficient time was granted to ‘X’ to express her intent and desire
     and she was given a break in the course of the recording of her
     statement so as to reflect on what she had stated.
9.   ‘X’ is a major and has completed her Masters degree in Arts. She
     has stated that she intends to become a lecturer and is focused on
     her career. She has stated that she is in possession of a mobile
     phone and is free to move wherever she desires. Moreover, she
     has stated that she is living with her parents out of her own volition.
     While she has stated that the appellant is an “intimate friend”, she
     has stated that she does not wish to marry any person or live with
     any person for the time being.
10. There is no reason for this Court to disbelieve the report which has
    been prepared by a senior Judicial Officer after duly ascertaining
    the wishes of ‘X’.
11. Consequently, we are not inclined to entertain the Special Leave
    Petition on the ultimate outcome before the High Court.
12. However, we would wish to address a note of caution. Learned
    counsel for the appellant has submitted that in such matters, the
    High Court has been passing orders directing the counselling of
    persons similarly situated as ‘X’ and there is an apprehension that
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                Devu G Nair v. The State of Kerala & Ors.


     the counselling should not turn out into a means to overcome the
     will of the corpus particularly in regard to their sexual orientation.
13. The High Courts must duly bear this facet in mind. Ascertaining
    the wishes of a person is one thing but it would be completely
    inappropriate to attempt to overcome the identity and sexual
    orientation of an individual by a process of purported counselling.
    Judges must eschew the tendency to substitute their own subjective
    values for the values which are protected by the Constitution.
14. Directions for counseling or parental care have a deterrent effect
    on members of the LGBTQ+ community. Courts must bear in mind
    that the concept of ‘family’ is not limited to natal family but also
    encompasses a person’s chosen family. This is true for all persons.
    However, it has gained heightened significance for LGBTQ+ persons
    on account of the violence and lack of safety that they may experience
    at the hands of their natal family. When faced with humiliation,
    indignity, and even violence, people look to their partner and friends
    who become their chosen family. These chosen families often outlast
    natal families as a source of immeasurable support, love, mutual
    aid, and social respect.
15. The importance of a chosen family is sometimes lost to the traditional
    assumption that the natal family is respectful of a person’s choices
    and freedoms. Courts must not wittingly or unwittingly become allies
    in this misunderstanding, more so in cases involving habeas corpus
    petition, petitions for protection of the person, or in missing persons’
    complaints. Since a direction for counselling has been given by the
    High Court, which we are inclined to set aside, it is imperative that
    clear guidelines be formulated for the courts dealing with habeas
    corpus petitions and in petitions seeking protection from family or
    police interference.
16. Guidelines for the courts in dealing with habeas corpus petitions or
    petitions for police protection are formulated below:
     a.    Habeas corpus petitions and petitions for protection filed by a
           partner, friend or a natal family member must be given a priority
           in listing and hearing before the court. A court must avoid
           adjourning the matter, or delays in the disposal of the case;
     b.    In evaluating the locus standi of a partner or friend, the court
           must not make a roving enquiry into the precise nature of the
           relationship between the appellant and the person;
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    c.   The effort must be to create an environment conducive for a free
         and uncoerced dialogue to ascertain the wishes of the corpus;
    d.   The court must ensure that the corpus is produced before
         the court and given the opportunity to interact with the judges
         in-person in chambers to ensure the privacy and safety of
         the detained or missing person. The court must conduct in-
         camera proceedings. The recording of the statement must be
         transcribed and the recording must be secured to ensure that
         it is not accessible to any other party;
    e.   The court must ensure that the wishes of the detained person
         is not unduly influenced by the Court, or the police, or the natal
         family during the course of the proceedings. In particular, the
         court must ensure that the individuals(s) alleged to be detaining
         the individual against their volition are not present in the same
         environment as the detained or missing person. Similarly, in
         petitions seeking police protection from the natal family of the
         parties, the family must not be placed in the same environment
         as the petitioners;
    f.   Upon securing the environment and inviting the detained or
         missing person in chambers, the court must make active efforts
         to put the detained or missing person at ease. The preferred
         name and pronouns of the detained or missing person may be
         asked. The person must be given a comfortable seating, access
         to drinking water and washroom. They must be allowed to take
         periodic breaks to collect themselves. The judge must adopt a
         friendly and compassionate demeanor and make all efforts to
         defuse any tension or discomfort. Courts must ensure that the
         detained or missing person faces no obstacles in being able
         to express their wishes to the court;
    g.   A court while dealing with the detained or missing person may
         ascertain the age of the detained or missing person. However,
         the minority of the detained or missing person must not be used,
         at the threshold, to dismiss a habeas corpus petition against
         illegal detention by a natal family;
    h.   The judges must showcase sincere empathy and compassion
         for the case of the detained or missing person. Social morality
         laden with homophobic or transphobic views or any personal
         predilection of the judge or sympathy for the natal family must
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           be eschewed. The court must ensure that the law is followed
           in ascertaining the free will of the detained or missing person;
     i.    If a detained or missing person expresses their wish to not go
           back to the alleged detainer or the natal family, then the person
           must be released immediately without any further delay;
     j.    The court must acknowledge that some intimate partners
           may face social stigma and a neutral stand of the law would
           be detrimental to the fundamental freedoms of the appellant.
           Therefore, a court while dealing with a petition for police
           protection by intimate partners on the grounds that they are a
           same sex, transgender, inter-faith or inter-caste couple must
           grant an ad-interim measure, such as immediately granting police
           protection to the petitioners, before establishing the threshold
           requirement of being at grave risk of violence and abuse. The
           protection granted to intimate partners must be with a view to
           maintain their privacy and dignity;
     k.    The Court shall not pass any directions for counselling or parental
           care when the corpus is produced before the Court. The role of
           the Court is limited to ascertaining the will of the person. The
           Court must not adopt counselling as a means of changing the
           mind of the appellant, or the detained/missing person;
     l.    The Judge during the interaction with the corpus to ascertain
           their views must not attempt to change or influence the admission
           of the sexual orientation or gender identity of the appellant or
           the corpus. The court must act swiftly against any queerphobic,
           transphobic, or otherwise derogatory conduct or remark by the
           alleged detainers, court staff, or lawyers; and
     m.    Sexual orientation and gender identity fall in a core zone of
           privacy of an individual. These identities are a matter of self-
           identification and no stigma or moral judgment must be imposed
           when dealing with cases involving parties from the LGBTQ+
           community. Courts must exercise caution in passing any direction
           or making any comment which may be perceived as pejorative.
17. The above guidelines must be followed in letter and spirit as a
    mandatory minimum measure to secure the fundamental rights and
    dignity of intimate partners, and members of the LGBTQ+ communities
    in illegal detention. The court must advert to these guidelines and
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     their precise adherence in the judgment dealing with habeas corpus
     petitions or petition for police protection by intimate partners.
18. Insofar as the present facts are concerned, the Criminal Appeal is
    disposed of in view of the report of the Judicial Officer.
19. Pending applications, if any, stand disposed of.


     Headnotes prepared by:                           Result of the case:
     Niti Richhariya, Hony. Associate Editor           Appeal disposed.
     (Verified by: Shibani Ghosh, Adv.)