New Delhi: In an expression of refreshing candour, a judge at the Madras high court said on March 29 that he was attempting to move beyond his own preconceived notions while hearing a case concerning an LGBTQI+ couple, LiveLaw has reported.
A bench of Justice N. Anand Venkatesh was hearing a petition for protection filed by two men who wished to recognise each other as partners but whose parents were opposed to their relationship, the report has noted.
Last week, the judge had highlighted the sensitivity of the matter while expressing willingness to hear it.
The two men, both students and aged 20 and 22 respectively, told the court that they have known each other for the last two years. Justice Venkatesh noted the “clarity” of their statement and said they did not “mince any words” in recognising their intent to be each other’s partners.
Justice Venkatesh referred the parents of the couple to a counsellor who is experienced in LGBTQI+ issues, noting that this was “unchartered waters” for his court and a report from such a specialist would help provide support. Counselling psychologist Vidya Dinakaran has been asked to submit her report in a sealed cover by April 26.
Notably, Justice Venkatesh made comments that go some way in recognising the true trials of processes involved in ensuring justice for all.
LiveLaw has quoted him as having said that while the judge did conduct research and while he did feel that it would have been possible for him to pack his order with it “and get applauded by the outside world for rendering a scholarly order,” he was prevented from doing this.
“There was a call from inside which kept reminding me that if I venture into such an exercise at this stage, it will only be hypocritical of me since the Order will not reveal my true and honest feeling about this very important issue,” Justice Venkatesh said.
Significantly, he further said, as LiveLaw quoted:
“To be open, I am also trying to break my own preconceived notions about this issue and I am in the process of evolving, and sincerely attempting to understand the feelings of the Petitioners and their parents thereafter, proceed to write a detailed Order on this issue. That is the reason why I am trying to develop this case brick by brick and ultimately, construct something purposeful on this issue.”
Justice Venkatesh said his bench was convinced that the parties would work towards peace and was assured by the government that police would not interfere in the case.
In 2018, a Supreme Court constitution bench scrapped the provisions of Section 377 of the Indian Penal Code, which criminalised ‘unnatural sex’ between consenting adults, and was effectively used to criminalise homosexual relations in India for more than a century.
“Majoritarian views and popular morality cannot dictate constitutional rights. We have to vanquish prejudice, embrace inclusion and ensure equal rights,” the then CJI Dipak Misra had said.
However, India remains largely a country where same-sex couples find it difficult to go about their daily lives without incidents of homophobia. The judge’s rare and sensitive admission also stands as a reflection of practices in India which sees heteronormative behaviour as the norm.
In September 2020, the Centre told the Delhi high court that marriage between same-sex couples was “not permissible” as it is not recognised by “our laws, legal system, society and our values”.
Justice Venkatesh’s comments also come at a time when judiciary’s attention to complainants is under the radar. On the same day as the Madras high court judge’s comments, a 22-year-old woman who had accused anchor Varun Hiremath of rape wrote a letter to Chief Justice of India S.A. Bobde, bringing his attention to an additional sessions judge’s insensitive, inappropriate and traumatising behaviour during an anticipatory bail hearing in her case.
The Supreme Court has also issued guidelines aimed at ensuring that subordinate courts avoid passing insensitive bail orders in cases involving sexual violence.