Over the rainbow

It’s high time civil society woke up and addressed heteronormativity

While June is traditionally Pride Month for India’s queer community, the landmarks are really July 2009 when the Delhi High Court read down Section 377 for the first time, August 2014 when the Supreme Court declared transgender persons full citizens of the country and September 2018 when the Supreme Court resoundingly endorsed the reading down of Section 377.

However, with a nice sense of timing, the significant order delivered on June 7, 2021 by Justice Anand Venkatesh of the Madras High Court has reclaimed June as Pride Month for the queer community in India. The facts of the case pertain to Sushma (aged 22) and Seema (aged 20) who ran away from their home in Madurai and chose to begin their life anew in Chennai with each other as partners. The families of both the girls filed FIRs at the local police station. Sushma and Seema, with the support of the local LGBTI community, then filed a petition before the High Court to prevent any coercive action by the police and to allow both of them to lead their lives as adults who are constitutionally entitled in India. Justice Venkatesh’s order went beyond merely protecting the right of the two women to be with each other and marks a milestone in Indian legal history in terms of both the reliefs as well as the method adopted by the judge in arriving at the reliefs.

One of the unique features of the Navtej judgement was the fact that it acknowledged that ‘civilisation had been brutal’ as far as LGBT persons were concerned and that ‘history owed an apology to LGBT persons and their families’.

The ‘apology’ of Navtej is taken forward in unprecedented ways by Justice Anand Venkatesh. Justice Venkatesh’s order states that the law was clear and that he could have recognised the right of Sushma and Seema to be with each other, but that would have been ‘hypocritical,’ as he would not have dealt with his own ‘true and honest feeling’ about this issue. Justice Venkatesh goes on to say that he is trying to ‘break his ‘own notions’ and is in the ‘process of evolving’ and attempting to ‘understand the feelings of the petitioners.’

The judge’s search for true understanding leads him to undergo a session with a psychologist and he reproduces the documentation of the session in the order. One of the key misconceptions ‘that came to the forefront was how homosexuality is very often viewed only with a sexual connotation’. During the session, the ‘client,’ namely the judge, expressed how after ‘listening to the petitioners,’ he realised that ‘two women’ together can be ‘seen as a couple’. Since one does not think of ‘two heterosexuals in a relationship’ as being in it ‘only for sex’ it ‘should be no different’ for persons of ‘other orientation’. The judge then goes on to interact with members of the ‘LGBTQIA+ communities and he reproduces the documentation of the interaction by Dr Trinetra, a transwoman. In the report by Dr Trinetra, as reproduced in the order, it is observed that, ‘Justice Venkatesh questioned if any external effort goes into making somebody feel homosexual/gender non-conforming, to which I reply, absolutely not. Such truths — of our gender identities and sexual orientations — are deeply felt and visceral.’ Dr Trinetra goes on to say that Justice Venkatesh, ‘acknowledged that listening to lived experiences was a powerful means of understanding the lives of queer individuals.’ Justice Venkatesh in the order concludes that ‘I must frankly confess that the petitioners, Vidya Dinakaran and Dr Trinetra, became my gurus who helped me in this process of evolution and pulled me out of darkness (ignorance).’

In terms of constitutional law, Justice Venkatesh says he is bound by Navtej Singh Johar and finds that the interference in the intimate decision of the two adult women to live together violates the constitutional protection of equality, non-discrimination and in particular the ‘guarantee to all individuals of ‘complete autonomy over the most intimate decisions to their personal life, including their choice of partner.’

What is remarkable about this order is that Justice Venkatesh vests the reason for the discrimination faced by Sushma and Seema in structures and institutions and passes a slew of orders which begin to address heteronormativity in police stations, prisons, judiciary, educational institutions, workplaces and among mental health professionals, health workers and parents.

Justice Venkatesh has through his empathetic and imaginative order initiated a court induced process of social change. It is up to civil society to capitalise on this new thrust and work towards transforming the institutions which limit and constrain the constitutional freedoms of queer people. This order gives hope to many that Navtej was not just a flicker in the wind and that the judiciary will stand by the queer community in its struggle for justice.

(The author is a lawyer & writer based in Bengaluru. He is the co-editor of Law like love: Queer perspectives on law.)