Supreme Court cautions Kerala High Court against use of counseling to influence sexual orientation of person

The Supreme Court on Monday cautioned the Kerala High Court against the possibility of using counseling as a tool to influence the gender identity or sexual orientation of a person..A bench of Chief Justice of India (CJI) DY Chandrachud and Justices JB Pardiwala and Manoj Misra said that while counseling can be used to ascertain wishes of an individual in cases relating to illegal detention, it would be inappropriate to influence one's gender identity or sexual orientation by such counselling.The Court was hearing a habeas corpus petition filed by a 21-year-old woman alleging that her lesbian partner was being illegally detained by her parents.The observation was made by the apex court after it was alleged that High Court, instead of granting relief, had ordered that the detenu attend a counselling session allegedly to change her sexual orientation. "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 the counselling should not turn out into a means to overcome the will of the corpus particularly in regard to their sexual orientation. 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" the Supreme Court said.As regards the relief sought, the Court noted that it had earlier directed a member of the Supreme Court E-committee to meet the detenue and ascertain her wishes and whether she was being kept illegally under custody by her parents as alleged.Pursuant to that, the E-committee member interacted with the detenue who denied that she was being kept under illegal custody.She said that she was staying with her parents on her own will and does not want to marry or live with anyone else. The Court noted the same in its order. "This court on Feb 6, 2023 issued notice and passed certain interim directions, The parents of the detenue was directed to produce her before the family court Kollam and the detenue be interviewed by a member of the e committee of the supreme court. Ms Salina Nair has filed a detailed report of her interaction and that detenue was given enough time to express her genuine desire. The detenue who is a major and has completed her MA and that she was staying with her parents out of her own wish and while she has stated that petitioner is an intimate friend, she does not want to marry or live with anyone," the Court said..It, therefore, refused to entertain the plea."We have no reason to disbelieve the report. We are not inclined to entertain the plea..," the Supreme Court said..However, petitioner's counsel advocate Sriram Parakkat insisted that the Court must observe that the directions earlier given by the Kerala High Court were not in good taste.This prompted the Supreme Court to caution the High Court against misuse of counseling..Pertinently, in support of couples seeking protection from courts and the police, the top court issued the following guidelines:-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; - 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; - 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..[Read order]