Right of an individual to self-determination
Isha Sawant | Government Law College | 30th August 2020
Chinmayee Jena @ Sonu Krishna Jena v. State of Odisha
The petitioner- Sonu Krishna Jena, age 24 years, filed an application under Articles-226 and 227 of the Constitution of India, 1950, whereby he approached the Orissa High Court with the grievance that his life partner- Rashmi(name changed) was forcibly taken away by her mother and uncle- respondents no- 5 and 6. The petitioner prays for a writ of Habeas Corpus directing the opposite parties to produce his partner before the court and to pass appropriate orders. The case was heard before the bench of S.K. Mishra and Savitri Ratho, JJ. The petitioner originally belonging to the female gender has exercised his rights of self-determination and preferred to be addressed as he/his, he relied on the judgement of the Supreme Court in the case of National Legal Services Authority v. Union of India and others (2014) in which it was held that self-determination is an integral part of personal autonomy, and self-expression falls under the realm of personal liberty guaranteed under Article-21 of the Constitution of India, this judgement also gave weightage to follow the psyche of the person in determining the sex and gender and preferred the ‘Psychology Test’ instead of ‘Biological Test’. As per this decision the petitioner has gone through two rounds of psychiatric evaluations and had Gender Dysphoria, he availed a certification from Dr. Amit Pattojoshi, D.R.M, M.D. (Neuro Psychiatry), dated 25-01-2020. The High Court recognized the right of the petitioner to be treated as male and be referred to as he/him/his.
- Article 226 and 227 Constitution of India
- Article 21- Right to life and liberty, Article 14- Right to Equality and Equal Protection of Law.
- Protection of women from Domestic Violence Act. 2005.
The counsel for the petitioner stated that the petitioner and his life-partner have been in a consensual relationship since 2017. The went to the same school and same college, after completion of studies, the petitioner got a private job in Bhubaneshwar and was staying on rent in a housing colony, they mentioned that the petitioner and his life-partner fell in love in 2011, thereafter they decided to stay together. While they were residing together, on 09-04-2020, mother and uncle of the petitioner’s partner- Rashmi, came to the petitioner’s house and took her away against her will despite both the petitioner and Rashmi having attained the age of maturity and consensually deciding to stay in a live-in relationship. They contended that under the provisions of the Protection of Women from Domestic Violence Act, 2005 legislature had acknowledged live-in relationship by giving rights and privileges to women in such relationships. The also stated that though they belong to the same gender and are not competent into a ‘wedlock’, they still have the right to live together outside ‘wedlock’ in a live-in relationship. They also stated that the petitioner had filed a report before the Inspector in-charge at the Police Stations at Khandigiri and Jajpur, but the police authorities did not take any action. When the petitioner came to know that Rashmi’s family members were going to arrange her marriage with someone else, he filed a petition for the writ of Habeas Corpus.
The counsel appearing for the State Government did not file a counter-affidavit, they recognized the right of persons belonging to the same gender for live-in relationship and submitted that the State was willing to carry out any order passed by this court. A notice was also sent to Opposite party no. 5 and 6 who did not file a counter-affidavit. However, when the court was going to pronounce its judgement, the counsel appearing for opposite party no. 5 and 6 prayed for adjournment twice. On 21-08-2020 when the court was to give its judgement the counsel for opposite party no. 5 and 6 while admitting to the legal position on rights of individuals belonging to the same gender set by the Supreme Court in its judgements, expressed concern about the well-being of Rashmi- opposite party no. 5’s daughter and prayed that if any order is passed in the petitioner’s favour appropriate safeguards should be given to Rashmi for her well-being and safety.
Observations of the Court:
The court observed the certification provided by the petitioner and said that the petitioner is a major having no psychological problem except for Gender Dysphoria/ Gender Incongruence and that he has normal cognitive functions, therefore, he is a mature adult and capable of taking his medical decisions. It also stated that he and his partner were residing at the same place in a live-in relationship. The court directed the Superintendent of Police, Jajpur to ascertain whether Rashmi wants to stay with the petitioner and to ensure that her marriage is not solemnized against her will. On 10-08-2020, the court direct the Superintendent of Police, Jajpur to secure the victim-Rashmi’s attendance and have a video conference with her on 17-08-2020. The court communicated over phone with the lady identified as the petitioner’s partner, she was explained that merely because a writ petition was filed making allegation of illegal restraint, she was not obligated to join the company of the petitioner and could stay with her family if she chooses to do so, but she specifically stated that she wants to join the company of the petitioner without any delay. The decision was not given on that day pursuant to respondent no. 5 and 6 requests. The matter was listed on 21-08-2020; the court referred to the judgement of the Supreme Court in National Legal Services Authority v. Union of India, wherein it considered the view of the United Nations and other Human Rights bodies and quoted the Yogyakarta Principles on application of International Human Rights in relation to Sexual Orientation and Gender Identity.
The court allowed the writ petition and directed that the petitioner and the daughter of respondent no-5 have the right to decide their sexual preferences including the right to stay as live-in partners. The State would provide them with all the protections enshrined in Part III of the Constitution which includes the right to life, right to equality and equal protection of law. The respondent was directed let the police/administration take appropriate actions to facilitate Rashmi to join the society of the petitioner. Taking into consideration the concern of Respondent no. 5, the court directed the petitioner to take good care of Rashmi as long as she is residing with him and that the respondent nos. 5, 6 and Rashmi’s sister would be allowed to communicate with her over phone and otherwise. Rashmi was to have all the rights of a women under the Protection of Women from Domestic Violence Act, 2005. The Inspector in-charge of Police Station, Khandigiri, Bhubaneshwar was to obtain a written undertaking (to that effect) from the petitioner and to keep a copy with them and to send the original to the court to be kept as record. Justice Ratho, mentioned that the petitioner should ensure that his and Rashmi’s relationship does not affect the latter’s relationship with her mother and sister and the petitioner would ensure that Rashmi stays in touch with them and extends monetary support to them. The opposite party was not to create problems for them.
The Orissa High Court made some really progressive observations on an individual’s right to autonomy and self-identity. The State and the court both recognized and upheld the rights of individuals in same-sex relations living together and guaranteed their protection as per the provisions of the Constitution. The Yogyakarta Principles provide a detailed guide on how the State can adopt provisions and make legislations to cater to the needs of Individuals in relation to Gender Identity and Sexual Orientation.