Case Analysis: S. Sushma v. Commissioner of Police, Greater Chennai Police
The recent Madras High Court judgment in the case of S. Sushma v. Commissioner of Police, Greater Chennai Police has been a game-changer for the LGBTQIA+ community in India, a predominantly socially conservative country. The plea involved a complaint brought by a lesbian couple who eloped from their homes, as their parents were not supportive of their relationship. Subsequently, their parents filed missing person complaints, as a result of which the police tracked and harassed them in the pretext of interrogation. This caused the couple to approach the High Court seeking a direction to stop harassment from the police and to protect them from any form of threat or danger to their safety and security from their parents.
The author, in an attempt to analyse the efficacy of the judgment, shall first explain how Madras High Court has mapped the rights of LGBTQIA+ persons. Subsequently, the author shall proceed to explain how the judgment provides for a subtle approach to address sensitive issues and how it can influence other countries to protect the rights of LGBTQIA+ persons. Thereafter, examining the guidelines laid down in the judgment, the author shall conclude by providing suggestions for addressing the concerns of the queer community.
The court, in the process of tracing the constitutional rights available to persons belonging to the LGBTQIA+ community, examined Articles 14, 15 and 21 of the Constitution of India along with a number of legal developments across the world on the interpretation of similar non-discriminatory provisions.
After opening that a general guarantee of equality is provided to all persons in an inclusive sense under Article 14, the court observed that Article 15 further particularizes this equality principle. Justice Venkatesh held that LBGTQIA+ persons are entitled to their privacy and have a right to lead a dignified existence, which includes their choice of sexual orientation and choice of partner thereof, swaying away from Queen Victoria’s proclamation of an early version of equality after the First War of Independence to Section 298 of the Government of India Act of 1935 which is the precursor of Article 15(1) to elucidate the paradigm shift in the jurisprudence of sexual orientation across the globe.
Furthermore, the court banned the questionable practice of ‘conversion therapy’ that attempts to cure or change the sexual orientation of queer people striving to eliminate the prejudices against them, noting that there is no reliable evidence that sexual orientation can be changed, and medical institutions warn that conversion therapy practices are ineffective and potentially harmful. In the final portion of the judgment, the court, on realizing that it cannot wait for the legislature to come up with an enactment to protect the LGBTQIA+ persons from such a practice, framed and issued specific ground-breaking guidelines by way of mandamus to the State and its instrumentalities in an effort to eliminate the existing bias against them. These guidelines emphasise the need for police and government officials to undergo LGBTQIA+ community awareness training, counselling for parents, gender-neutral restrooms in schools and colleges, and action against medical practitioners who claim to be able to ‘cure’ homosexuality.
The verdict in the Sushma case stands as a landmark judgment and presents an applaudable stance for two reasons. First, because of the unusual activity on the part of Justice Venkatesh, who, in order to unlearn that heteronormative behaviour is the norm, subjected himself to psycho-educative sessions before writing the judgment for the single judge bench. To ensure that a 107- page judgment does not emanate from a superficial understanding of the issue, this abstraction of personal bias was indeed essential. In a country full of prejudices, the judgments should stand as a reflection of a free, impartial, and unprejudiced mind. The judges must realise that loading the judgment with a lot of research material and being commended by the world for delivering a scholarly verdict is alone not sufficient. What is also required is that the judges delve into the process of breaking their pre-conceived notions, evolving themselves, simultaneously trying to develop the case step by step, and ultimately, constructing something purposeful on the issue at hand.
Second, the judgment bans the unethical practice of ‘conversion therapy’ based on the medically false pathologization of sexual orientation and gender identity that causes a detrimental effect on the psychological and physical health of an individual. The judgment again represents a case in point across the world where about 69 countries still follow the practice even after being disregarded by international organizations like the Pan American Health Organization and the United Nations treaty bodies, including the Human Rights Committee and the Committee on the Elimination of Discrimination against Women. The Indian case by banning the objectionable practice persuades countries throughout the world where the therapy is promoted and carried out in its most heinous forms to ban the abhorrent practice and adopt anti-discrimination measures ensuring protection from discrimination based on sexual orientation or gender identity.
However, on closely analysing the guidelines that have been laid down, a few problems can be effectually underscored. Firstly, the judgment bans the practice of conversion therapy without overtly specifying all the possible perpetrators of the practice. It is not just the medical practitioners who are involved in any form or method of conversion therapy; there are faith-based organizations and people who claim to be traditional healers; there are also other agents, including community and family members, who promote and carry out the practice. While the guidelines provide for action only against medical professionals by withdrawing their license, they do not provide for any action against other individuals and groups engaged in the practice.
Secondly, while the judgment exhibits an effort to include public and private workplaces and institutions where LBGTQIA+ persons might face discrimination, it fails to include public places like parks and beaches, which are also areas where the LGBTQIA+ persons frequently encounter discrimination. Such public places, unlike banks and restaurants, do not come under the category of workplace or any healthcare or educational institution so as to be eligible to be included within the ambit of the guidelines. This shows the need to opt for a holistic approach in order to sensitise people from every corner of society. Not just categorical sensitization but general awareness campaigns is also what is required.
Thirdly, one of the directions that are made to educational institutions is that they add the third gender as a category for students. But this might not be what many transgender students want. They might want to be recognised as males or females and not as a separate gender.
The Sushma case represents one of the positive steps that has been taken to bring reforms for the LGBTQIA+ community in India. The judgment bans the practice of conversion therapy, accompanied by other measures designed to promote the inclusion of LGBTQIA+ persons in mainstream society. The guidelines, despite a few criticisms, are worth commending as they advocate for accommodating the LBGTQIA+ persons with equality in society.
There is a lack of sensitivity regarding the problems and the rights of LGBTQIA+ persons across the world. The judgment indeed disposes of the countries where transgender and gender non-conforming people still continue to suffer extreme humiliation to bring reforms favouring them. However, in the context of conversion therapy, along with educational and socio-cultural reforms, there is also a need for our country to take particular legislative action against the advertisers, perpetrators, and practitioners of the so-called therapy to remove the trauma attached with it. This will allow the law in our country to stand at parity with countries like Brazil, Ecuador and Malta, which have enacted special laws to restrict the baseless practice. Such legislation might reduce the anguish of LGBTQIA+ persons till they begin being received with open arms in society.
*Kirti Harit is a third year student at National Law University Jodhpur.
Views are personal.