S. Sushma v. Commissioner of Police Case Comment

MAHARASHTRA NATIONAL LAW UNIVERSITY
MUMBAI
Human Rights Law Project
WRECKING PREJUDICES:
HOW THE MADRAS HIGH COURT JUDGEMENT PAVED WAY FOR A MORE LGBTQ+ INCLUSIVE
INDIA
B.A., LL.B. (Hons.) – 3rd Year Semester- VI
Name: Swathi Sreekumar

Enrolment Number: 2019084
Section: B
Name: Tanisha Agrawal
Section: B
Name: Vartika Gaur
Section: B
1
WRECKING PREJUDICES:
HOW THE MADRAS HIGH COURT JUDGEMENT PAVED WAY FOR A MORE LGBTQ+ INCLUSIVE
INDIA
S. SUSHMA V. COMMISSIONER OF POLICE
Court: Honourable High Court of Madras
Citation: REFERENCE: W.P.No.7284 OF 2021
Date of Judgement: 7th June 2021
Bench: Honourable Justice N. Anand Venkatesh
INTRODUCTION:
“IGNORANCE IS NO JUSTIFICATION TO NORMALIZE DISCRIMINATION”
“This Writ Petition has brought to light an essential issue that needs to be de-stigmatized and
accepted in the eyes of the society. The case at hand is about a lesbian couple, acceptance of
LGBTQIA+ people and LGBTQIA+ rights. As a result, the case is unique as the Court has
purposefully avoided taking the customary approach to resolving instances of this sort that come
knocking at its doors.”1
The Madras High Court's Justice N. Anand Venkatesh wrote a progressive decision that
established new precedents for all instances involving LGBTQIA+ people's rights. The decision is
noteworthy for various reasons, one of which is his attempt to comprehend the processes he intends
to reverse. Justice N. Venkatesh seeks to fully comprehend what it means to be queer in a
heteronormative culture by his acts.
1
S Sushma v. Commissioner of Police, W.P.No.7284 of 2021, Order dated 7th June, 2021, para 1.
2
The Madras High Court Judge received psycho-education in order to deliver this decision "from
the heart, not the head."2 What began with the Navtej Singh Johar3 decision in 2018 continued in
S. Sushma v. Commissioner of Police and ors.
While the Navtej Singh Johar decision decriminalized Section 377, it also recognized the right to
privacy, dignity, and autonomy of individuals. However, the LGBTQIA+ group continues to be
marginalized even after the decision was made.
In India's predominantly socially conservative society, the recent Madras High Court verdict in the
matter of S. Sushma v. Commissioner of Police, Greater Chennai Police has been a game-changer
for the LGBTQIA+ community.
The authors’ primary aim via this analysis is to critically analyze the judgement in light of current
status of the Human Rights available to the LGBTQ+ community in India and highlight the areas
that require reforms. To achieve this, we start by giving a brief background of the circumstances
that led to the present case, followed by its significance, facts and issues. This is followed by an
in-depth legal analysis of the guidelines passed by the court, and our critique and suggestions on
the same. We have also included detailed International Legal standards and obligations India has
to get an exhaustive idea of India’s CURRENT stance regarding the LGBTQ+ Community and to
understand the international perspective.
BACKGROUND:
This case is significant in the Indian legal system because it outlaws conversion therapy in India
and imposes severe legal penalties on anyone who engages in it. The Court also issued a number
of guidelines aimed at preventing harassment of members of the LGBTQIA+ community.
The Madras High Court has called for a total ban on the pseudo-scientific practice of conversion
therapy in India in response to a writ suit brought by a lesbian couple, as well as a wide range of
other provisions that, if followed, would tremendously help India's queer community. The queer
2
3
Navtej Singh Johar & Ors. v. Union of India thr. Secretary Ministry of Law and Justice, AIR 2018 SC 4321.
3
community has applauded the decision, which prompts a much-needed discussion about
conversion therapy and its legal foundation (or lack thereof).4
SIGNIFICANCE:
S. Sushma v Commissioner of Police and ors. went a step farther from all the previous landmark
decisions pertaining to LGBTQIA+ rights as this case shifted from a philosophical and theoretical
to an empirical and humanitarian approach to minority rights.5
The ruling reaffirms and puts into effect the Constitutional provisions of freedom of sexual
orientation and gender identity. It aims to enact and oversee the implementation of a number of
key measures that the LGBTQIA+ community has fought for, such as the prohibition of
conversion therapy, LGBTQIA+ inclusive curriculum, and community sensitization
initiatives. It also states that this is a state responsibility under the Trans Act. The case is a
very important judgement from the Human Rights perspective.
It also defines the procedure to be followed by police when missing people complaints are filed
for those in a consensual relationship, guaranteeing that the right to choose of partner is
safeguarded.6
The uniqueness of the case came from the initiative taken by the judge who presided over the case.
The judge took a number of steps to better grasp the issues at hand, which can be considered as a
template or a roadmap for anyone who wants to unlearn their prejudices and gain a better
understanding of LGBTQIA+ lives. The court ordered that the petitioners, their parents, and even
the court itself receive counseling.7
4
Kirti Harit, Case Analysis: S Sushma v. Commissioner of Police, Greater Chennai Police, 5th September, 2021,
available at https://www.calq.in/post/case-analysis-s-sushma (Last visited on 5th April 2022).
5
Wrecking prejudices: This is how the Madras HC judgement rethinks transformative Constitutionalism, June 19,
2021, available at https://www.lawctopus.com/academike/transformative-constitutionalism/ (Last visited on 9th April,
2022).
6
S Sushma and ors. v. Commissioner of Police, Greater Chennai Police and ors., available at
https://translaw.clpr.org.in/case-law/s-sushma-and-ors-v-commissioner-of-police-greater-chennai-police-and-ors/,
(Last visited on 8th April, 2022).
7
Surabhi Shukla, S. Sushma v. Commissioner of Police, Chennai and others WP. No. 7284/2021, 11th June, 2021,
available at https://lawandsexuality.com/2021/06/11/s-sushma-and-anr-v-commissioner-of-police-chennai-and-
others-wp-no-7284-2021/ (Last visited on 7th April, 2022).
4
The case was heard by Justice Anand Venkatesh. He offered a number of rules (both mandatory
and advisory) for the LGBTQIA community's safety, harassment prevention by authorities, and
societal de-stigmatization.8 Justice Venkatesh actively participated in psycho-educational sessions
with a clinical psychologist in order to gain a better understanding of the LGBTQIA community.9
FACTS:
The Petitioners, a lesbian couple whose relationship was being opposed by their parents who are
the 4th and 5th Respondents fled to Chennai because of the fear of getting separated from their
respective houses in Madurai.10 With the help of NGOs and members of the LGBTQIA+
community, the Petitioners were able to get housing and shelter, and were looking for work to
support themselves financially.11
Meanwhile, the 4th and 5th Respondents each filed missing persons complaints with the 6th and
7th Respondent Police, resulting in the filing of two FIRs.12 After being interrogated by the police
at their home and sensing a threat to their safety and security, the Petitioners came to this Court
requesting a direction to the police not to harass them and protection from the 4th and 5th
Respondents' threats and dangers to their safety and security.13
The honorable judge decided to consult with a counsellor who specializes in this area in order to
gain a better understanding of both parties' positions. The girls were extremely clear about what
they were doing, according to the counsellor, and they had absolute and great love for each other.
The girls' parents, on the other hand, were more concerned about their daughters' safety and
security, as well as their reputation. They refused to let the girls have their relationship even after
the second round of counselling. This case drew a lot of attention to the LGBTQIA+ community
and the problems they face in society. The honorable court gave a number of guidelines to help
this community's general condition, as well as their individual circumstances.14
8
9
10
11
12
13
14
Simran Bhasin, S Sushma v. Commissioner of Police: Homosexuality is a choice and not a Disease, It does not need
a Cure: Madras HC, 9th June, 2021, available at https://www.lawyersclubindia.com/judiciary/s-sushma-vs-
5
ISSUES:
The case revolved around the questions whether:
1. Article 15(1) includes or can it include sexual orientation within its ambit?
2. Does Article 21 encompass the right to sexual autonomy and freedom of expression?
IMPORTANT PROVISIONS:
1. Article 14 of the Constitution - This Article states that no individual should be denied by the
state, either equality before the law or equal protection by the law within India. It also prohibits
discrimination on the grounds of the religion, or the sex, or the race or the caste or even the place
of birth of any individual.15
2. Article 15 of the Constitution – According to this Article, no individual can be subjected to

discrimination on the grounds of their religion or their race or caste or sex or even their place of
birth by the state. It also states that under this Article the state is allowed to make provisions for
women and children, or people who belong to the social and educational backward classes of the
SCs and STs.16
3. Article 21 of the Constitution - This Article states that no individual should be deprived of
their right to life or personal liberty except according to the procedure which has been established
by law.17
WHAT IS CONVERSION THERAPY?
"Conversion therapy," "aversion treatment," or "reparative therapy" are all terms for the pseudo-
scientific practice of attempting to modify a person's sexual orientation or gender identity. This
can be accomplished in a number of ways, ranging from basic conversation to electro-convulsive
shock therapy. All of these acts are motivated by a widespread belief that identities other than
commissioner-of-police-homosexuality-is-a-choice-and-not-a-disease-it-does-not-need-a-cure-madras-hc-5245.asp
15
The Constitution of India, 1950, Art. 14.
16
17
6
heterosexual and cisgender are unnatural and wrong. Conversion therapy began in the West, when
homosexuality was seen to be an illness that could be treated and cured. The British brought
conversion treatment to India, along with Section 377, which made homosexuality illegal.18
Despite the fact that science and medicine have demonstrated its inefficiency, it still exists.
Following the Stonewall Riots of 1969, the American Psychiatric Association removed
homosexuality off the Diagnostic and Statistical Manual of Mental Disorders in 1973 (DSM). In
2018, the Indian Psychiatric Society released a statement emphasizing that same-sex attraction is
not a mental condition and that there is no evidence that treatment may change someone's sexual
orientation. Furthermore, 98 percent of individuals who received conversion therapy had long-
term implications, according to research done by an independent expert for the United Nations
Human Rights Council. The repercussions included permanent physical injury, suicidal thoughts,
grief, self-hatred, loss of faith in one's own talents, worry, and shame.19
DECISION:
According to a single bench led by Justice Anand Venkatesh, people in the LGBTQIA+ group face
a variety of atrocities as a result of societal penalties since they are not seen as beneficial to society.
He feels that in order to better their status and ensure that their lives and dignity are safeguarded
by Article 21 of the Indian Constitution, society's attitude toward the LGBTQIA+ community must
be changed. Then, in order to match the societal revolution, a law must be enacted. This is one
strategy to eliminate social discrimination against LGBTQIA+ persons.20
The court looked at Articles 14, 15, and 21 of the Indian Constitution, as well as a number of legal
rulings around the world on the interpretation of similar non-discriminatory articles, to determine
the constitutional rights available to LGBTQIA+ people in India.
18
Jayalakshmi Sankar, Conversion Therapy in India: In light of S Sushma v. Commissioner of Police, July 12, 2021,
available at https://rmlnlulawreview.com/2021/07/12/conversion-therapy-in-india/ (Last visited on 4th April, 2022).
19
Id.
20
Manali Agrawal, Case Analysis: S. Sushma & Anr. v. Commissioner of Police and Ors. 13 June, 2021 available at
https://www.lawgicstratum.com/post/case-analysis-s-sushma-anr-v-commissioner-of-police-and-ors (Last visisted
5th April, 2022).
7
When petitioners’ parents submitted a missing person report, the Court issued directions for police
officers to follow in order to protect LQBTQIA+ people from police harassment. The court stated
that the LGBTQIA+ community cannot be held in a perilous situation until then because there is
no guarantee of their protection and safety. As a result, these guidelines will fill the hole until the
legislature develops separate legislation to protect the LGBTQIA+ community's welfare.21
This Madras HC judgement serves to be a catalyst to an Indian State (Tamil Nadu) becoming the
first state in India to enact a specific legal provision against police violence on the marginalized
community.
In this case, the court stated that there was a significant question raised as to whether clause one
of Article 15 could not include the concept of sexual orientation within its ambit due to the
fundamental shift in the scope of gender and gender identity, as well as the concept of sexual
orientation.22
The issue of homosexuality was first highlighted in the case of 'Naz Foundation v. Government of
the NCT of Delhi23.' In this case, the court ruled that section 377 of the Indian Penal Code was
unconstitutional because it violated Articles 21, 14, and 15 of the Constitution. Following this, the
transgender community filed a complaint in 'NALSA v. Union of India24,' alleging that the illegal
declaration of non-recognition of their gender identity, which is assigned to them at birth, is a
violation of their rights under Articles 14 and 21. The term person mentioned in Article 14, the
term citizen mentioned in Article 15, and the term sex mentioned in Article 16 are all gender-
neutral phrases that refer to human beings, and so they will include transgender people.25
Following this, a few review petitions were filed to re-examine the law established in the case of
'Suresh Kumar Kaushal26,' which were to be presented before the court in the case of 'Navtej Singh
Johar V. Union of India.' The court in this case overturned the judgement in the 'Suresh Kumar'
21
Id.
22
Simran Bhasin, S Sushma v. Commissioner of Police: Homosexuality is a choice and not a Disease, It does not need
a Cure: Madras HC, 9th June, 2021, available at https://www.lawyersclubindia.com/judiciary/s-sushma-vs-
commissioner-of-police-homosexuality-is-a-choice-and-not-a-disease-it-does-not-need-a-cure-madras-hc-5245.asp
23
Naz Foundation v. Government of the NCT of Delhi, 160 Delhi Law Times 277.
24
NALSA v. Union of India, AIR 2014 SC 1863.
25
26
Suresh Kumar Koushal and Anr. v. Naz Foundation and Ors., Civil Appeal No. 10972 OF 2013.
8
case and upheld the High Court of Delhi's verdict in the 'Naz Foundation' case. In this concurring
judgement, Justice Indu Malhotra noted that the part of the clause under discussion is about
something that isn't even under the person's control. She further stated that discriminating on these
grounds would jeopardize an individual's personal autonomy.27
It was also observed that discrimination based on homosexuality or transgender status is

inextricably linked to sex discrimination; the first cannot exist without the latter. It was decided
that the term "sex" as defined in Article 15(1) does not only refer to an individual's biological
characteristics, but also includes their sexual identity, character, and orientation. It was also noted
that the grounds listed in Article 15 are not watertight chambers, but rather instruments that were
utilized to detect and eliminate discrimination, and that they are merely a means to a goal.28
Article 21 is designed to protect the choices involving one’s own life decisions and their choice of
partners because the right to life and liberty includes the right to sexual autonomy as well as the
freedom of expression. To fully comprehend this, we must first recognize that sexual autonomy is
a critical component of the right to privacy, which is considered and protected by Article 21. People
in the LGBTQIA+ community have the right to privacy and to live a dignified life, which includes
their choice of sexual orientation, gender identity, gender expression, and the partner they
choose.29
It was also mentioned that under Article 21 of the Constitution, this particular right, as well as the
manner in which it is exercised, is meant to be safeguarded. Apart from that, the Transgender
Persons (Protection of Rights Act) is a very powerful and obvious statement that the parliament
has recognized various forms of sexual identification.30 The court went on to say that an
individual's homosexuality or transgender status has no bearing on their job decisions.31
Furthermore, the court outlawed the dubious practice of 'conversion therapy,' which aims to cure
or change the sexual orientation of queer people in order to eliminate prejudices against them. The
court noted that there is no reliable evidence that sexual orientation can be changed, and medical
27
28
29
30
31
9
institutions warn that conversion therapy is ineffective and potentially harmful. The Madras High
Court ordered all physical and mental health experts to refrain from attempting to "cure" or change
the sexual orientation of LGBTQIA+ people through medical means. The court also ordered the
authorities to take stern action against any professional who uses the conversion treatment practice.
However, in other sections of the country, such a progressive stance is not being duplicated.32
The court, realizing that it could not wait for the legislature to pass an enactment to protect
LGBTQIA+ people from such practices, framed and issued specific ground-breaking guidelines
to the State and its instrumentalities by way of mandamus in an effort to eliminate the existing bias
against them. These guidelines stress the importance of LGBTQIA+ community awareness
training for police and government officials, as well as parent counselling, gender-neutral
restrooms in schools and colleges, and action against medical practitioners who claim to be able
to "cure" homosexuality.33
LEGAL ANALYSIS OF INDIA’S STANCE ON CONVERSION THERAPY:
At the moment, there is no legislation that expressly prohibits the use of conversion therapy.
In Bostock v. Clayton County34, the US Supreme Court took the view, ruling that it is impossible
to discriminate against someone on the basis of gender identity or sexual orientation without also
discriminating against them on the basis of "sex." Any type of conversion treatment would be a
violation of an individual's fundamental rights.
The Supreme Court recognized in the Navtej Singh Johar decision that the right to health is not
just the right to not be sick, but also the right to be healthy. It covers both freedoms such as the
right to regulate one's health and body and the right to be free from interference, as well as the
absence of disease or disability (for instance, from non-consensual medical treatment and
32
Gaurav Choudhary and Vanshika, Conversion Therapy: Banning the Bane, 19th June, 2021, available at
https://www.barandbench.com/apprentice-lawyer/conversion-therapy-banning-the-bane (Las visited on 5th April,
2022).
33
34
Bostock v. Clayton County, 140 S. Ct. 1731.
10
experimentation). The right to privacy and the ability to make personal decisions were also
emphasized by the court.35
Furthermore, the Supreme Court held in Samira Kohli v. Dr. Prabha Manchanda and Common
Cause v. Union of India36 that the right to a dignified existence, the liberty to make decisions and
choices, and individual autonomy are central to the quest to live a meaningful life, and that
continuing treatment against a patient's wishes is a violation of the principle of informed consent.
In addition, as stated in the landmark case of K.S. Puttaswamy v. Union of India, forcing therapy
against an individual's physical privacy and integrity is a violation of informed consent and the
right to privacy.37
In NALSA v. The Union of India, the Supreme Court cited the United Nations' Yogyakarta
Principles and ruled that they should be regarded part of Indian law. Conversion therapy would
then be a breach of the Yogyakarta Principles' Principles 17 and 18, which stipulate that "everyone
has the right to the best attainable quality of physical and mental health, without discrimination
based on sexual orientation or gender identity." "No person may be forced to undergo any form of
medical or psychological treatment, procedure, testing, or confinement in a medical facility
because of their sexual orientation or gender identity," and "No person may be forced to undergo
any form of medical or psychological treatment, procedure, testing, or confinement in a medical
facility because of their sexual orientation or gender identity," respectively. Similarly, the Supreme
Court declared in Common Cause v. Union of India38 that every individual of normal mental
faculties has the right to determine their own medical care and health decisions. Forced Conversion
Therapy would be in direct conflict with the Supreme Court's decision. Even if consenting adults
make an informed decision to undertake Conversion Therapy, considerations including societal
35
2022).
36
Samira Kohli v. Dr. Prabha Manchanda and Common Cause v. Union of India, Appeal (civil) 1949 of 2004; AIR
2018 SC 1665.
37
2022).
38
Common Cause v. Union of India, AIR 2018 SC 1665.
11
conditioning and internalized homophobia and transphobia must be considered before approving
it.39
Any non-consensual treatment that hurts a person's bodily or mental health would be a breach of
Article 21 of the Indian Constitution, based on the principles that the court has recognized over
time.
Finally, in S. Sushma v. The Commissioner of Police, the Madras High Court addressed conversion
therapy head on and called for a prohibition on all forms of conversion therapy in a praiseworthy
judgement. It further noted that healthcare practitioners should get LGBTQIA+ sensitization
training, and that strong action, such as revocation of their license to practice, should be taken
against professionals who provide conversion therapy.
GUIDELINES PASSED BY THE COURT:
A number of orders were issued by the court to the police, federal and state government
departments, and regulatory bodies. If consenting adults were involved in a missing persons case,
the police were told to close the case.40
Furthermore, the federal and state governments were tasked with launching public awareness
campaigns to combat prejudice against LGBT people. To that purpose, the court drew out a list of
authorities that the governments should target. Prison officials, judges, the DLSA, mental and
physical health specialists, educational institutions, companies, and LGBT parents were among
them.41 The court further demanded that these public awareness campaigns include explicit
instructions. For example, prison officials were required to ensure that transgender inmates were
not housed with cis-men, the DLSA was to provide free legal services to the LGBT community,
corrective treatment in medical practices was to be prohibited, change of curricula was required in
39
40
S Sushma v. Commissioner of Police, W.P.No.7284 of 2021, Order dated 7th June, 2021, para 43A.
41
S Sushma v. Commissioner of Police, W.P.No.7284 of 2021, Order dated 7th June, 2021, para 43H.
12
schools and universities, with the inclusion of gender-neutral bathrooms, change of name and
gender in academic records, and the inclusion of the transgender gender column in application
forms.42 The court also issued orders for anganwadi staff to be trained, for public and private
employers to change their hiring rules, and for LGBT parents to receive peer support.43
AN INTERNATIONAL PERSPECTIVE:
As more countries throughout the world impose prohibitions, the discussion over the many
components that should be included in law banning conversion has intensified. The following are
some of the ways that conversion therapy can be proven to be illegal and a violation of a person's
rights. Corrective rape, electro-convulsive shock therapy, chemical aversion, and other forms of
conversion therapy are torture and directly violate the Convention against Torture and Other
Cruel, Inhuman, or Degrading Treatment or Punishment, to which India is a signatory.
Despite the fact that some forms of Conversion Therapy do not precisely come within the legal
definition of "torture," they still subject people to very painful, humiliating, and upsetting
treatment.44
Individuals are frequently subjected to conversion therapy at a young age. Conversion Therapy is
a clear violation of the UN Convention on the Rights of the Child, which asks for children to be
protected from all forms of violence. It has a negative impact on their growth and development.
Some countries have already taken cognizance of this issue. For instance, Germany imposed
punishment on parents and guardians for coercing their wards to undergo Conversion Therapy
with fine up to €30,000 or 1 year imprisonment.45
Article 5 of the Universal Declaration of Human Rights and Article 7 of the International
Covenant on Civil and Political Rights make it mandatory for states to protect people from
"torture or cruel, inhuman or degrading treatment or punishment," which is also a part of jus
42
S Sushma v. Commissioner of Police, W.P.No.7284 of 2021, Order dated 7th June, 2021, para 43H.
43
S Sushma v. Commissioner of Police, W.P.No.7284 of 2021, Order dated 7th June, 2021, para 43F.
44
45
13
cogens, or peremptory norms from which states cannot deviate. No one shall be subjected to
medical or scientific research without his or her voluntary permission, according to the ICCPR.46
'States should take the necessary legislative, administrative, and other measures to guarantee
respect for the autonomy, physical, and personal integrity of LGBTQIA+ persons, and prohibit
the practice of "conversion therapy" and other forced, involuntary, or otherwise coercive or
abusive treatments performed on them,' according to the UN's Special Rapporteur on Torture.
'Medical care that causes extreme pain for no acceptable reason can be considered cruel,
inhuman, or humiliating treatment or punishment, and if there is State involvement and specific
intent, it constitutes torture,' they go on to explain.
India is also a party to the International Covenant on Economic, Social, and Cultural Rights,
which states that every person has the right to the "best attainable quality of bodily and mental
health," according to Article 12(1). The LGBTQIA+ group has been denied this right to health
and has faced discrimination on numerous occasions. Discriminatory treatment in healthcare,
according to the United Nations Development Programme (UNDP), involves denial of
necessary health treatments and treatment that can be harsh.47
As a global leader, India must recognize its responsibilities to the LGBTQIA+ population around
the world and the Human Rights that India needs to ensure to the LGBTQ community.
ANALYSIS:
The verdict in the Sushma case stands as a landmark judgment and presents an applaudable stance
for various reasons.
First, because of Justice Venkatesh's atypical behavior, in which he had psycho-educative sessions
before authoring the single judge bench judgement in order to relearn that heteronormative
behavior is the norm. This abstraction of personal prejudice was necessary to ensure that a 107-
page verdict did not result from a rudimentary comprehension of the topic. The verdicts should
stand as a reflection of a free, fair, and unprejudiced intellect in a country full of prejudices. The
46
2022).
47
Id.
14
judges must realize that simply including a lot of research material in the ruling and being
applauded across the world for giving a scholarly decision is not enough. The judges must also
dive into the process of breaking their pre-conceived notions, evolving themselves, simultaneously
trying to develop the case step by step, and ultimately, constructing something purposeful on the
issue at hand.48
Second, the ruling prohibits the unethical practice of 'conversion therapy,' which is based on the
medically erroneous pathologizing of sexual orientation and gender identity and has a negative
impact on an individual's psychological and physical health. The ruling is another example of how
international institutions such as the Pan American Health Organization and United Nations
treaty bodies such as the Human Rights Committee and the Committee on the Elimination
of Discrimination against Women have ignored the practice. The Indian case, by outlawing the
undesirable practice, persuades governments all over the world, where the therapy is advertised
and practiced in its most terrible forms, to outlaw it and implement anti-discrimination laws to
ensure protection from discrimination based on sexual orientation or gender identity.49
The current case, has permitted the court to alter society's morals and concepts of tradition in order
to offer justice to the LGBTQIA+ community. The LGBTQIA+ Community guarantees their
safety while filing against the offence they are facing with the help of guidelines set by the Court.
For fear of living peacefully in society, Tamil Nadu becomes the first state to outlaw homosexual
conversion therapy. However, this is not fair to the LGBTQIA+ community because sexual
autonomy is an important component of the right to privacy, and society cannot take away this
freedom simply because they do not feel it is morally correct. This decision has been made to
protect the rights of the LGBTQIA+ Community till proper legislature enacts their rights.50
CRITIQUE OF THE JUDGEMENT:
48
49
Manali Agrawal, Case Analysis: S. Sushma & Anr. v. Commissioner of Police and Ors. 13 June, 2021 available at
https://www.lawgicstratum.com/post/case-analysis-s-sushma-anr-v-commissioner-of-police-and-ors (Last visited 5th
April, 2022).
50
Id.
15
There are a few issues which might be effectively identified by carefully reviewing the guidelines
laid down by the judge. The criticisms are:
To begin with, the judgement outlaws conversion therapy without clearly naming all possible
culprits. Conversion therapy is used by faith-based organizations and those who claim to be
traditional healers, as well as medical professionals. Other agents, such as members of the
community and family, support and carry out the practice. While the criteria only allow for medical
practitioners' licenses to be withdrawn, no action against other individuals or groups involved in
the practice is permitted.
Anti-conversion therapy law has a tendency to solely cover conversion therapy provided by
medical professionals, rather than conversion therapy provided by religious communities. As a
result, religious conversion treatment victims are without legal remedy. As a result, legislation
prohibiting Conversion Therapy without exception is crucial. It is even more significant in
religiously diverse countries like India.51
Second, while the ruling attempts to encompass both public and private businesses and
organizations where LBGTQIA+ individuals may face discrimination, it does not include public
venues such as parks and beaches, which are also frequent sites of harassment for LGBTQIA+
people. Such public locations, unlike banks and restaurants, do not fit under the categories of a
job, a hospital, or an educational institution, making them ineligible to be covered by the criteria.
This emphasizes the significance of a holistic strategy to sensitizing people from all walks of life.
There is a need for not only category sensitization, but also general awareness campaigns.52
Finally, educational institutions have been instructed to add the third gender as a student category.
Many transgender students, on the other hand, may not want this. They may want to be labelled as
males or females instead of a third gender.53
51
52
Id.
53
Id.
16
Moreover, given its restricted capacity, the judgment's directions only address the real difficulties.
There is no comprehensive anti-discrimination law in India. While the Constitution prohibits
discrimination, the prohibition only applies to the government and its agents. As a result, the
private sector is free to discriminate in employment, housing, health, and education, among other
sectors. While there is debate regarding the need for such legislation, there appears to be little
political agreement in favor of its passage.54
The LGTBQ community requires an anti-discrimination law that allows them to develop
productive lives and relationships regardless of gender identity or sexual orientation, and places
the responsibility for change on the state and society rather than on the individual. To ensure that
the LGBTQ community is not refused public services or harassed because of their sexual
orientation, government bodies, particularly those relating to health and law and order, must be
sensitized.55
IMMEDIATE DEVELOPMENTS POST THE JUDGMENT:
This Madras High Court decision serves as a catalyst for an Indian state (Tamil Nadu) to adopt a
specific law provision against police violence against the marginalized community. The Tamil
Nadu government amended the Tamil Nadu Subordinate Police Officers' Conduct Rules to prevent
harassment of LGBTQIA+ individuals and those who work to help them.56
The amendment was made in response to a Madras High Court order on a protection petition filed
by a lesbian couple who had been harassed by the police. "A specific clause is to be added in the
Police Conduct Rules specifically providing that any harassment by the police of persons
belonging to the LGBTQIA+ community, activists and NGO workers, will be treated as misconduct
54
Business Standard, The state of LGBTQ+ rights: ‘India does not have anti-discrimination code’, 12th July, 2020,
available at https://www.business-standard.com/article/current-affairs/the-state-of-lgbtq-rights-india-does-not-have-
anti-discrimination-code-120071200179_1.html, (Last visited on 7 th April, 2022).
55
Id.
56
The Hindu, Govt. amends police rules on harassment against LGBTQIA+ community, 17th February, 2022, available
at https://www.thehindu.com/news/national/tamil-nadu/govt-amends-police-rules-on-harassment-against-lgbtqia-
community/article65058978.ece, (Last visited on 8 th April, 2022).
17
and will entail a punishment for such misconduct," Justice N Anand Venkatesh said in the August
court order.57
Despite the repeal of Section 377, police officials and volunteers continue to harass homosexual
and transgender persons. Such instances of abuse were highlighted in the Supreme Court verdict
when Section 377 was read down, and it is terrible that this persists. In India, there have been
numerous reported cases of police brutality directed towards LGBT individuals in recent years.
Many police departments have been accused of being insensitive, including failing to respond
adequately to violence directed at LGBT persons. Extortion, illegal detention, abuse, and outing
are all types of police oppression in India.
Moreover, activists praised the order as well. “We think this is a very significant order and can
help in reducing police violence on our communities. We have already lost so many of our trans
brothers and sisters to harassment and brutality. We also face everyday harassment and torture at
the hands of policemen. We hope this law is strongly implemented to end this,” said Grace Banu,
a Dalit and transgender rights activist.58
CONCLUSION:
An analysis of existing laws, precedents, and international treaties reveals that conversion therapy
is illegal for a variety of reasons and should be outlawed as soon as possible. Despite having
specific avenues to argue in court that conversion therapy is unconstitutional, little has changed in
the widespread practice. The fact that this practice has been proven ineffectual, is harmful to LGBT
people, and sets India back several years in terms of social development implies that criminalizing
it through independent and thorough legislation and imposing a statewide ban is the order of the
day. This will be a significant step forward in the long and laborious process of transforming India
into a welcoming and safe environment for the LGBTQIA+ community.59
57
Indian Express, Explained: Tamil Nadu’s rule to protect LGBTQIA+ community from police harassment, 18th
February, 2022, available at https://indianexpress.com/article/explained/explained-tamil-nadus-rule-protect-lgbtqia-
community-police-harassment-7779906/, (Last visited on 7th April, 2022).
58
Hindustan Times, Tamil Nadu amends law to punish cops for harassing LGBTQ people, 18th February, 2022,
available at https://www.hindustantimes.com/india-news/tamil-nadu-amends-law-to-punish-cops-for-harassing-
lgbtq-people-101645123047218.html, (Last visited on 9 th April, 2022).
59
18
The Sushma case is an example of one of the positive initiatives taken in India to provide changes
to the LGBTQIA+ community. The ruling prohibits the practice of conversion therapy, as well as
other steps aimed at promoting LGBTQIA+ people's inclusion in mainstream society. Despite
some complaints, the rules are worth applauding because they push for LBGTQIA+ people to be
treated equally in society.60
There is a lack of awareness in the world when it comes to the challenges and rights of LGBTQIA+
people. The ruling effectively disposes of countries where transgender and gender nonconforming
people are still subjected to great humiliation in order to bring about reforms that benefit them.
However, in the case of conversion therapy, in addition to educational and socio-cultural reforms,
our country must take specific legislative action against the promoters, offenders, and practitioners
of the so-called therapy to alleviate the trauma associated with it. This will bring our legal system
in line with that of countries like Brazil, Ecuador, and Malta, who have established special
legislation to prohibit the practice. Such law could ease the suffering of LGBTQIA+ people until
they can find a solution. 61
In conclusion, The Naz Foundation and NALSA decisions provided the impetus for the
decriminalization of Section 377 in the Navtej Singh Johar decision. While the Navtej Singh Johar
decision acknowledged this dynamic of transition and the Constitution's evolving nature, J.
Venkatesh's order in this case concretized it further.62
There will be concerns about the future, to be sure. Yes, it's possible that a single HC Judge won't
be able to change the entire culture. However, the constant mandamus imposed on the state
authorities as a result of this verdict, forcing them to respond quickly, leaves no room for error. At
least not in this instance, which perhaps sets a positive example for future cases of a similar kind
60
61
Id.
62
Wrecking prejudices: This is how the Madras HC judgement rethinks transformative Constitutionalism, June 19,
2021, available at https://www.lawctopus.com/academike/transformative-constitutionalism/ (Last visited on 9th April,
2022).
19
to truly imbibe the spirit of Human Rights enshrined in the Constitution. The orders granted in this
case will not only serve as a mandate in this case, but also as a precedent in future cases.63
However, the work J. Venkatesh had placed in his personal capacity would have an impact on the
impending judgements, in addition to the formal procedural considerations. And perhaps push
society to comprehend and normalize identities and desires other than those of cisgenders and
heterosexuals.
63
Id.
20

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MAHARASHTRA NATIONAL LAW UNIVERSITY

Human Rights Law Project

B.A., LL.B. (Hons.) – 3rd Year Semester- VI

Name: Swathi Sreekumar

S. SUSHMA V. COMMISSIONER OF POLICE

Court: Honourable High Court of Madras

Citation: REFERENCE: W.P.No.7284 OF 2021

Date of Judgement: 7th June 2021

Bench: Honourable Justice N. Anand Venkatesh

“IGNORANCE IS NO JUSTIFICATION TO NORMALIZE DISCRIMINATION”

The case revolved around the questions whether:

2. Article 15 of the Constitution – According to this Article, no individual can be subjected to

WHAT IS CONVERSION THERAPY?

It was also observed that discrimination based on homosexuality or transgender status is

LEGAL ANALYSIS OF INDIA’S STANCE ON CONVERSION THERAPY:

GUIDELINES PASSED BY THE COURT:

CRITIQUE OF THE JUDGEMENT:

IMMEDIATE DEVELOPMENTS POST THE JUDGMENT:

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