Devu G Nair vs The State of Kerala 2024: Landmark Case

In Devu G Nair vs The State of Kerala 2024 addressed habeas corpus petition involving the rights of LGBTQ+ individuals. The Petitioner, Devu G Nair, challenged Kerala High Court’s direction that her partner undergo counselling despite being an adult who chose to live with her parents. The Court highlighted the fundamental rights to autonomy, dignity and privacy under Article 21 and issued landmark guidelines for handling similar cases involving queer individuals. Explore other important Landmark Judgements.

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The present case revolves around the Appellant who approached the Supreme Court under Article 136 of Indian Constitution and challenged interim orders passed by the Kerala High Court on 13th January, 2023 and 2nd February, 2023. The case involved a habeas corpus petition regarding the alleged illegal detention of a woman referred to as ‘X’ with whom the Appellant claimed to be in an intimate relationship. The following are the brief facts of Devu G Nair vs The State of Kerala:

Background

The Appellant and ‘X’ are both adult females. The Appellant contended that ‘X’ was being forcibly confined by her parents and sought her release through a writ of habeas corpus, claiming that ‘X’ wished to live with her voluntarily.

High Court Proceedings

On 13th January 2023, the Kerala High Court ordered the Secretary of the jurisdictional District Legal Services Authority (DLSA) to visit the residence of ‘X’s parents (Respondents 4 and 5) and record her statement. The Court directed the Station House Officer to ensure that ‘X’ was produced before the Secretary, DLSA, if found to be under illegal detention. The Court also allowed her parents to attend the video conferencing session during which ‘X’ was to interact with the Court.

Subsequently, on 31st January 2023, the High Court ordered the production of ‘X’ before the DLSA Secretary on 2nd February 2023 to facilitate further interaction. After this, the Court directed that ‘X’ undergo a counselling session with a psychologist.

Proceedings Before the Supreme Court

Aggrieved by these directions, the Appellant filed a Special Leave Petition before the Supreme Court. On 6th February 2023, the Supreme Court issued notice and passed interim orders. It directed the parents of ‘X’ to produce her before the Family Court at Kollam by 5:00 PM on 8th February 2023. The Court instructed the Principal Judge of the Family Court to arrange an interview between ‘X’ and Ms. Saleena V.G. Nair, a judicial officer deputed to the Supreme Court’s e-Committee.

Interaction with Judicial Officer

The Family Court coordinated the interview. Ms. Saleena V.G. Nair conducted a detailed interaction with ‘X’ and submitted a comprehensive report. She ensured that ‘X’ was given adequate time and a break to freely express her thoughts.

Findings from the Report

The report revealed that ‘X’ is an adult who has completed her Master’s degree in Arts. She expressed her intent to pursue a career in academia and become a lecturer. She confirmed that she had access to her mobile phone, enjoyed freedom of movement, and chose to reside with her parents voluntarily.

While acknowledging the appellant as an “intimate friend,” ‘X’ clearly stated that she did not wish to marry or live with anyone at the moment.

Devu G Nair vs The State of Kerala 2024 Issue addressed

The following issues were addressed in Devu G Nair vs The State of Kerala -

• Whether courts can direct counselling for adults exercising their personal liberty The Supreme Court examined whether it is legally permissible for a High Court to direct an adult to undergo counselling when they are not under illegal detention and have clearly expressed their desire to live freely?

• Right to autonomy, privacy and dignity of individuals under Article 21 of Indian Constitution. The Court acknowledged whether orders such as compulsory counselling or forcing individuals to return to their natal families violate their fundamental rights to life and personal liberty, especially when they belong to the LGBTQ+ community?
• Scope of Habeas Corpus in matters involving consenting adultsThe Court explained the purpose of a habeas corpus petition in Devu G Nair vs The State of Kerala.
• Protection of LGBTQ+ persons from coercion and violenceThe case addressed the vulnerability of LGBTQ+ persons to coercive actions from natal families including forced confinement, conversion efforts, or moral policing and affirmed their right to choose partners, friends or support systems.

In Devu G Nair vs The State of Kerala 2024, Article 14, Article 19 and Article 21 of Indian Constitution played an important role. The following are the analysis of these provisions -

Article 14 of Indian Constitution: Equality before Law

Article 14 guarantees that the State shall not deny to any person equality before law or the equal protection of the laws within the territory of India. This provision includes two important expressions:

• Equality Before the Law
• Equal Protection of the Laws

Article 19 of Indian Constitution: Protection of certain rights regarding freedom of speech etc.

• Freedom of Speech and Expression (Article 19(1)(a)): Citizens can express opinions freely with reasonable restrictions under Article 19(2) for state security, public order, decency and more.
• Freedom of Assembly (Article 19(1)(b)): Citizens can assemble peacefully, with restrictions to maintain sovereignty and public order.
• Freedom of Association (Article 19(1)(c)): Citizens have the right to form associations, unions, or cooperatives, with reasonable restrictions allowed under Article 19(4).
• Freedom of Movement (Article 19(1)(d)): Citizens can move freely across India, though Article 19(5) permits restrictions to protect Scheduled Tribes and the public.
• Freedom to Reside and Settle (Article 19(1)(e)): Citizens can reside anywhere in India.
• Article 19(1)(f) was repealed by the 44th Amendment Act, 1978.
• Freedom of Profession (Article 19(1)(g)): Citizens may pursue any profession, trade, or business, subject to reasonable restrictions.

Article 21 of Indian Constitution: Protection of life and personal liberty

Article 21 under Part III of Indian Constitution states no person can be deprived of life or personal liberty except in accordance with procedure established by law. The Supreme Court emphasized that this includes the right to choose one’s partner, the freedom to express sexual orientation, and live with dignity.

Devu G Nair vs The State of Kerala 2024 Judgment and Impact

On 13th September, 2024 in Devu G Nair vs The State of Kerala 2024 the Supreme Court of India issued comprehensive guidelines to be followed by High Courts when dealing with habeas corpus petitions and petitions sought police protection especially involving individuals from the LGBTQ+ community.

The Court acted on a petition filed by a woman challenging a Kerala High Court order that directed her partner to undergo counselling. The Supreme Court noted that such directions especially when involving queer individuals often lead to psychological distress and deterrence from asserting their constitutional rights.

Decision and Guidelines

A Bench of former CJI DY Chandrachud, Justice JB Pardiwala and Justice Manoj Misra set aside the High Court’s counselling direction and issued comprehensive guidelines for handling habeas corpus and police protection petitions, especially when they involve members of the LGBTQ+ community.

The Court in Devu G Nair vs The State of Kerala noted that counselling orders in such cases could undermine the autonomy of individuals and have a detrimental impact on their dignity and mental well-being. It highlighted the need for courts to adopt a queer-sensitive, empathetic and constitutionally grounded approach.

Key Guidelines Issued in Devu G Nair vs The State of Kerala

The Supreme Court issued the following guidelines:

1. Prioritize listing and prompt hearing of habeas corpus and protection petitions filed by partners, friends, or family members.
2. Avoid detailed probing into the nature of the relationship between the petitioner and the individual.
3. Ensure an atmosphere of freedom and safety to ascertain the individual’s true wishes without external pressure.
4. Produce the individual before the court and conduct in-camera proceedings for privacy and comfort.
5. Prevent undue influence by ensuring that alleged detainers, police, or family members are not present during the individual’s interaction with the judge.
6. Foster a supportive environment by respecting the individual’s preferred name and pronouns, and providing basic amenities and time to reflect.
7. Do not dismiss petitions solely due to minorities, consider the circumstances holistically.
8. Reject societal morality or personal views of the judge that may conflict with constitutional values.
9. Release the individual immediately if they express a clear desire not to return to the natal family or alleged detainers.
10. Provide interim protection in cases involving intimate partners facing threats due to their relationship, especially if it is same-sex, interfaith, inter-caste, or gender non-conforming.
11. Avoid directing counselling or parental care, as these may attempt to alter the person’s wishes or identity.
12. Do not challenge or influence a person’s stated sexual orientation or gender identity; address any inappropriate conduct or language promptly.
13. Recognize sexual orientation and gender identity as protected aspects of personal privacy and identity, free from stigma or moral judgment.

Remarks on ‘Family’ and Judicial Responsibility

The Supreme Court in Devu G Nair vs The State of Kerala highlighted that ‘family’ must be understood broadly to include not just biological relatives but also chosen families such as close friends and partners especially in the context of LGBTQ+ persons, who may experience rejection or violence from natal families.

It cautioned judges against letting personal beliefs or traditional values influence judicial reasoning. The Court highlighted that judicial conduct must align with constitutional principles, not subjective morality.

Conclusion

In Devu G Nair vs The State of Kerala 2024 the Supreme Court not only quashed the Kerala High Court’s counselling direction but also issued far-reaching guidelines to protect the dignity, autonomy and constitutional rights of LGBTQ+ individuals. These directives now serve as a binding reference for all courts in India when addressing habeas corpus or police protection matters involving individuals from marginalized sexual and gender identities.