Courts should not issue directions for counselling or parental care for members of the LGBTQ+ community who are in illegal detention to influence their sexual orientation, the Supreme Court said in a recent judgement.

A bench of Chief Justice DY Chandrachud and Justices JB Pardiwala and Manoj Misra on March 11 issued guidelines for High Courts dealing with habeas corpus petitions or petitions for police protection. The judgement was shared on Wednesday.

A habeas corpus is a petition through which courts can order the authorities to produce a person before it to verify if they have been detained.

The top court issued the guidelines after hearing a plea by a woman against a Kerala High Court order that had directed her partner to undergo counselling. The High Court passed the direction while considering a habeas corpus petition filed by the woman alleging that her partner was being illegally detained by her parents.

“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,” the Supreme Court remarked. “Judges must eschew the tendency to substitute their own subjective values for the values which are protected by the Constitution.”

According to the court’s judgement, the concept of “family” is not limited to “natal families” but also includes a person’s “chosen family”. “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,” the top court said.

The guidelines have instructed High Courts to prioritise habeas corpus petitions and petitions for protection filed by a person’s partner, friend or a member of their natal family. Courts have also been directed to refrain from asking about the precise nature of the relationship between the appellant and the person while evaluating their right to a plea.

“The court shall not pass any directions for counselling or parental care when the corpus [detained/missing person] is produced before the court,” the guidelines said. “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 court observed that sexual orientation and gender identity form the core of privacy of an individual and said that no stigma or moral judgement must be imposed on persons when dealing with cases involving members of the LGBTQ+ community.

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