On June 25, 2021, Justice Anand Venkatesh, Judge Madras High Court, spoke at a Lexidem Webinar organised by KD Lex Chambers LLP, ADR ODR International, and Indian Dispute Resolution Centre on the topic of Scope for Mediation in LGBTQ Issues.
He shared his journey that he undertook while writing his 7th June judgment in which he issued a slew of guidelines for the protection of homosexual couples. Sir also looked into the scope of mediation, as the way forward, in addressing issues governing the LGBTQ community.
Ms. Shiva Subbaraman, Founding Director, LGBTQ Center, Georgetown University, Washington DC, Ms. Chitra Narayanan, Mediator and Founder-Trustee, Foundation for Comprehensive Dispute Resolution, and Mr. Vikas Bhuvana Muralidharan, Advocate and Activist were also on the panel.
The procedure for writing this decision
When asked about the process of writing this judgement, Justice Anand Venkatesh stated that he was destined to write it because this matter came before him as a lunch motion, and the petitioners' counsel requested an urgent hearing, citing a potential threat to the petitioners' life and liberty (a homosexual couple).The Court could have responded by granting the requested relief, but instead, Justice Venkatesh felt compelled to address the core issue and expose his own bias.
"I thought that destiny had chosen me to do this. This case was mentioned to me as a lunch motion. (.....) It would have been possible that I could have just closed the petition by giving directions to the police saying don't disturb them, it is their life and you don't have any right to go and interfere with their lives. But I think that's why I'm saying there's destiny here because something told me that I'll have to restrain myself from passing such an order. So I sat back and then I thought okay, let the first move to be grant protection because there was ready an NGO for taking care of these two petitioners. So I thought, let me sit back now. There is protection to them. Let me at least stop ", he said.
After granting them protection from retaliatory police action, Your Lordship considered delving deeply into the matter at hand.
"The next thing which was striking to me was the fact that I wanted to understand more about this. I had zero video opinion of it, I have heard people talking about it, but nothing had impressed me in the past and like any other things that are happening in the world, this is one more thing which had followed in my ears and it had absolutely no impact on me. So, when this came to me, something said : why don't you look back? It's always important that as a judge, you keep learning on a daily basis, you keep evolving on a daily basis. You become aware of what is happening around you", he remarked.
Sir, proceeded by acknowledging that,
“As a member of society, I am also dealing with this issue. So please allow me to investigate this matter and speak with the petitioners. Allow me to speak with their parents. Allow me to speak with those who are interested. Let me figure out what this is all about.”
On the second hearing, the Court summoned the petitioners, their parents, and the police, and one of the reasons for summoning the parents was that Justice Venkatesh wanted to hear the parents' perspectives on the matter.
“There was one reason I thought the parents had to be there (...) because I am also a parent and I immediately put myself in their shoes.If my son comes to me tomorrow and tells me he's in a relationship with another male, I'll be shocked. I immediately replied to myself that I would be extremely embarrassed. It would not make me very happy. I would sort of start by convincing him that it may not be right for him to do that. All those things started coming to me. Therefore, I thought it's important that the parents will have to come because I am on the same footing as the petitioners' parents. The second reason is I always felt that (I may be wrong also), that by trying to get involved (...) We frequently forget about the people who are directly affected by it,” he added.
The Petitioners were heard in person by Justice Venkatesh in his chamber.
“I listened to them for 15 minutes and it felt like the absolute truth was being told. I had no idea there were two females there after hearing them. It sounded very natural to me the way they expressed themselves, and about their love, the affinity that they have for both of them. I had a completely different perspective on it.When I heard them moist, I thought it was unnatural, but what they expressed was very natural, like a heterosexual couple,” he said while adding, “Judges should not think they know everything; judges are just as ignorant as everyone else in so many areas. So just because you hold a constitutional position and people come to respect you, it doesn't mean I know everything.”
Finding himself in a position where he did not have an in-depth understanding of the LGTBQ community, Justice Venkatesh felt the need to understand it from a psychological standpoint, and so the petitioners were asked to go for a session with the psychotherapist on the second hearing itself.
"I understood what both petitioners were trying to say based on their expressions. They were saying, sir, you listened to us for 15 minutes, we sounded so natural, and now you're sending us to the psychiatrist (...) So I immediately responded to them, saying, "I know what's going on in your head.I'm not sending you to have a psychological evaluation. I'm sending you for my own benefit, so that I can understand what's going on in your head. So that's why I'm sending you", he noted.
On the third hearing, Sir felt the need to conduct counselling sessions himself after evaluating the psychiatrist's report and instead of writing an Order granting the Petitioners' requested protection.
To this he said, "So the question that arose for me was, Why don't I understand this? The first question was whether a judge should go through this process in order to write a judgement.As I stated at the outset, a judge does not know everything. There are areas where an expert's opinion is required, and the Judge requests reports from them, after which a judgement is issued based on an understanding of the report.(...) In this case, despite the psychologist's report, I was unable to understand it because the understanding is not a part of the theory. In this case, comprehension necessitated a complete shift in mindset.So, without a shift in mindset, whatever I write in the order- will sound completely theoretical, devoid of life, and devoid of the palpitations that we are experiencing right now. As a result, I reasoned, Why not take advantage of this opportunity to learn more about such an important issue?"
He went on to say that he didn't want to give the impression to the rest of the world that he was fine with the relationship. He refused to write a scholarly Order, for which I would have applauded. He preferred to write a genuine Order. In the month of May, Justice Venkatesh underwent counselling.
“It was such a large session, and a lot of clarity came out of it. Then I told her that I, too, wanted to meet someone in the community who had supported such a person, along with their parents.So that was the next meeting, and it was one of the most exciting meetings. I've never had friends from the neighbourhood. I'd never felt like that before.So, if I'd been exposed to such interactions, I'd understand what it is. If I had a friend like that, he would have probably shared it with me. I always thought of it as filthy sex,” he noted.
After meeting Trinetra, a community member, and her mother, Justice Venkatesh felt obligated to reflect his true understanding and emotions with the utmost honesty and sensitivity.
“I believed that this case could never be solved mechanically. I reasoned that society had placed me in my position and that I should handle it with sensitivity. Society is having difficulty understanding it, and I am a member of that society. If I can convince society, that person, that he can change if he makes an effort to understand something, ”he remarked.
Seeing him, he added that if the Society even tries to understand it, it would be a step forward. Your Lordship also mentioned,
“It's a completely natural thing to do. There is nothing unnatural about this community, the relationship, or anything else. And that's why I said that just because you're ignorant doesn't mean it's bad.”
“As a result of realizing all of this, things began to flow out of me. I wrote this order over the course of 15 days, piece by piece. I also wrote from a religious and evolutionary standpoint, but after talking with others, I realized that this might detract from the focus.(...) As a result, I had to remove a lot of things on purpose in order to keep this Order focused on the core issue.”
He emphasized the assistance and importance of all stakeholders (counsellor, interns, and Trinetra), saying,
“I cannot take credit for this order on my own. It took a lot of brains, and I had my interns to help. They were just as important to me as the other stakeholders, and the order would not have come in the way it did if it hadn't been for my interns.I let my interns argue with me. In fact, they overruled many of the things I wrote in the order. They are of this generation, and this generation appears to accept it.I'm not sure how much they've grasped, but they're willing to accept it. (...) So I decided to do something for this generation. This generation can benefit from it. (...) Because this order is the result of so many minds working together, credit must be given to everyone.”
Suggestions for changes to the legal regime in order to accommodate and address the needs of the LGBTQ communitym
The Hon'ble Justice emphasized the critical role of representation of members of this community in our socio-legal-political and other structures. He also emphasized the role that mediation can play in this process.
“Our entire structural development of the judiciary, society, and so on is all traditional. It is the hetero normal people who continue to interact and form opinions, and as a result, the majority crushes this minority. They are not a minority; they were born this way.It is critical that members of this community serve in the judiciary, executive, legislature, and other professions. It is critical that we begin by accommodating them. What kind of discrimination are we talking about when we talk about it? How do you know what a person has been through?”
He went on to say,
“If we truly want to make a difference, we must begin by accommodating more and more community members in every area. We need more interactions with them to understand the type of discrimination they face.From the family to the parents, there is no peace for them. They waste their prime years struggling to identify themselves and fight for their rights.”
He emphasized the importance of mediation, saying:
“Today, mediation is the only option that may work because it is not governed by the law.The goal here is to settle a disagreement between two people outside of the rigid legal system. As a result, mediation may be a very useful tool in resolving disputes not only between members of the LGBTQ community and those who do not, but also between members of this community themselves.”
He went on to say how mediation can be a useful tool,
“Mediation is a great option because there is no legal problem, there is communication and a great deal of privacy without the names of the parties being revealed, and it preserves relationships without bringing in the law.When a case is brought before the judiciary, it is handled according to the law; you can only change the law to a certain extent.”
He suggested inclusivity in mediation, by adding,
“Mediation must involve a member of the community mediating between two parties, one of whom is a member of the community and the other a heterosexual being.A heterosexual person mediating, as I did in this case, may not work at all.The mediator must also be made aware of the situation. We all have subconscious prejudices. When we talk about mediation, we need to have either sensitized mediators or, more importantly, bring LGBTQ community members into the mediation system and have them mediate these disputes.”
Sir stated in his closing remarks that when we interact with the LGBTQ community, we begin with our own prejudices toward them. We are sitting on Article 21 and pleading with you not to harm them or interfere in their lives. So, what we're doing is saying everything at the cross-level, at the physical level.Nobody knows where other rights, such as the right to property and the right to marry, stand. In every other country, the judiciary was the institution from which this movement arose.At its best, the judiciary can try to protect them and change some terms to benefit these communities, such as the couple being interpreted to mean a homosexual couple, but it is up to legislators to provide legal safeguards.
“We have a long way to go, this judgement will rot in the papers, and we can congratulate ourselves. However, this will not suffice. We must address the reality on the ground. A social revolution is required, as is a legal revolution. I have faith in this generation because they are understanding and accepting it, which will result in positive change,” he noted.
“It will be a very slow process until we make room for them in our structure. (...) The way forward is to recognise them, acknowledge their presence, and make room for them. It will not work if you approach it in the traditional manner. Consider them as human beings; that is all they are requesting,” Justice Anand Venkatesh finally remarked.