“Love knows no bounds… Even in same-sex relationships,” said the Orissa high court, while extending the court’s habeas corpus jurisdiction to a lesbian woman held in confinement against her wishes by her family.
The writ, which literally translates as ‘produce the body’, has constitutionally developed as a protective shield against illegal detention, arrest, or confinement. Earlier restricted to only agencies of the State, in Mohd Ikram v. State of UP, the Supreme Court extended the said protection to illegal confinement by private persons as well. The common law even gives superior courts constitutional responsibility to sustain habeas corpus – regardless of the identity of the person being illegally detained.
In the present case, a plea was moved by the petitioner, Chinmayee Jena, who chooses to identify as he/him/his, against the family members of his partner Rashmi (name changed) for illegally taking her away from him. Jena thus asked the court to issue a writ of habeas corpus to produce Rashmi before it for the passing of the appropriate orders.
While granting the relief sought by the petitioner, the court categorically stated that persons belonging to sexual minorities have a fundamental right to not just take decisions about their life, but also express themselves in whatever way they want to.
The court further clarified that self determination of gender is an integral part of personal autonomy and squarely falls within the ambit of personal liberty protected under Article 21 of the constitution. Therefore, same-sex couples can’t be restrained from exercising consensual cohabitation.
The textual reading of the judgment reflects ideological underpinning that has significance beyond the substantive meaning. At the outset, the court should be praised for recognising the right of the petitioner to self-determine his gender and refraining from misgendering him during the course of the entire proceedings. The court also positively refused to accept the argument which tried to infer psychiatric ailments and intellectual disability with regard to the petitioner’s gender dysphoria.
Most importantly, the fact that the court decided to exercise the habeas corpus jurisdiction in the present case shows that the legitimacy of individual choice of queer individuals triumphs over societal expectations and apprehension against the same.
Through its rhetoric of love, the court is implicitly declaring that the non-consensual guardianship of an adult queer individual cannot be justified as the choices made by queer individuals can no longer be perceived as emanating from intellectual disability, mental disease or moral turpitude and warranting of such guardianship.
Along with its triumphs, the order has its good share of travails. By the tail end of the judgment, we can see Justice Savitri Ratho noting that Rashmi should not completely disregard the feelings of her family as the latter lives in a society which still attaches stigma to same-sex relationships.
This caveat is problematic and unnecessary. When the court has accepted Rashmi’s right as an adult to make choices to exercise her identity, this ancillary caveat acts as a moral obligation which is not attached to the exercise of the same right by persons who do not identify as sexual minorities.
This caveat, therefore, creates an arbitrary and unreasonable distinction between sexual minorities and the sexual majority. The line of reasoning provided by the court might also justify putting a similar caveat for couples escaping honour killing as society’s refusal to accept their relationship is the very reason behind them eloping and seeking protection. Therefore, Rashmi’s duty towards her family is justified so long as it is coming from a space of voluntary realisation, and not a court dictated obligation.
Secondly, it can be argued that the court has somehow tried to adjudicate this case from the looking glass of heteronormativity. In order to ensure Rashmi’s protection, the court highlighted that the provisions governing the rights and duties of live-in couples and those enshrined under the Domestic Violence Act will obligate the petitioner to take care of and provide for his partner.
While on the surface, it does come across as extending the affirmative action jurisprudence to same-sex couples as well, a deeper probing would reveal that it is also the extension of the gendered reading of the said provisions and the heteronormativity that underlines them. Therefore, instead of understanding the nuances or uniqueness of a queer lived experience, the court has simply juxtaposed the power relations apparent in the said provisions to same-sex relationships as well.
The queering of the habeas corpus is definitely a landmark moment in the jurisprudential history of queer rights. One can only wish for the subsequent developments to build upon this foundation, further interrogate the complexities and uniqueness of queer lived experience, instead of subjecting their relationships to heteronormative tropes.
Karan Tripathi is a queer man who works as an Associate Editor with LiveLaw.
Featured image credit: Orissa high court/official website