Deed of familial association- Sushma vs Commissioner of Police judgement

Source– This post is based on the article “Same-sex couples: A judge to the rescue” published in “The Hindu” on 23 November 2023.

Why in the News?

Recently the Madras High Court has asked the Tamil Nadu government to come up with a procedure for registering the deed of familial association to recognise the rights of LGBTQIA+ partners.

What is the background ?

1. Justice Anand Venkatesh of the Madras High Court recently heard a petition on the need for familial recognition among the LGBTQIA+ persons who choose to form and retain families, and has asked the Tamil Nadu government to work out a deed (agreement) of familial association.

2. The plea was filed by Prasanna, who intervened in an ongoing case that began with a plea by a lesbian couple seeking protection from their relatives (Sushma v. Commissioner of Police and ors. case)

What is the significance of a deed of familial association?

1. The deed of familial association stands as documentary “proof” of their relationship which would help couples in obtaining various benefits and entitlements that would previously be impossible.

2. It will provide legal status to relationships between same-sex couples and other LGBTQIA+ couples. It will protect them against harassment and violence, and discrimination in matters of employment, housing, etc. and ensure integration into the society.

3. The ruling holds significance in light of the recent Supreme Court judgment in Supriyo vs Union of India case whereby the court refused to recognise the rights of same-sex couples to marry.

What is the Sushma vs Commissioner of Police judgement?

Background-  The court was hearing a petition against the harassment faced by same-sex couples at the hands of the police who often file “missing” complaints against such couples, at the parents’ behest. It further sought to establish guidelines for other cases of similar nature.

Highlights of the Judgement-

1. The Court held that the LGBTQIA+ community has the right to equality under Article 14.

2. It held that after the judgments in NALSA vs. Union of India and Naz Foundation vs. Government of NCT of Delhi, prohibition against discrimination in Article 15(1) ‘on grounds only of religion, race, caste, sex, place of birth or any of them’ was no longer restricted to just the listed characteristics. It also includes ‘gender identity’ and ‘sexual orientation’.

Guidelines Issued by the Court-

1. The police should close complaints for missing persons once they find that they are in a consensual relationship.

2. Directed the Ministry of Social Justice and Empowerment to enlist and publicise NGOs which would be able to help people from the LGBTQIA+ community. It must also provide shelter in existing government short-stay homes for people from the community who need it.

3. Prohibition of any attempts to medically ‘cure’ sexual orientation or gender identity.

4. Change in curriculum to educate students on understanding the LGBTQIA+ community.

5. Inclusivity in hiring policies and extension of work benefits to members of the LGBTQIA+ community.

6. The right to free legal aid for the LGBTQIA+ community.

UPSC Syllabus- Polity and Nation