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Gaurav Choudhary & Vanshika
The month of June marks Pride Month, a time dedicated to celebrating the victories, contributions, and visibility of the LGBTQIA+ community. But as the celebrations go on in full gusto, it is essential to remember that it is not just about honoring them but also an opportunity to raise awareness about the grave issues that concern the community.
One of the cruelest injustices faced by the community is the pseudoscientific practice of Conversion Therapy. The momentous judgement by the Madras High Court, on 7th June 2021, in the case of S Sushma v. Commissioner of Police has again fuelled the conversation around this unethical and potentially life-threatening practice.
Conversion therapy is a group of therapies aimed at “correcting” or “curing” non-homosexual and non-cisgender people and “converting” them to cisgender and heterosexual beings. The victims undergo excruciating physical and emotional pain and abuse resulting from aversion treatments and electro-convulsive therapy using homosexual pornographic material, and manipulation and spiritual interventions through religious groups.
At the core of it lies the assumption that homosexuality is a disease or a mental disorder cured by corrective therapy. However, it has become scientific orthodoxy that this assumption is false. Multiple theories have tried to explain an evolutionary purpose of homosexuality which has led to its persistence for eons, including the Kin Selection Hypothesis and the Sociosexual Hypothesis. Thus, there is no valid evidence that sexual orientation can be changed.
Throughout the modern ages, Indians have been victims of the deceitful practice of Conversion therapy. The tragic case of Anjana Harish, a woman from Goa who reportedly committed suicide after undergoing physical and mental abuse at the hands of quacks who attempted to 'cure' her of bisexuality, is just one of the many horrendous incidents of the ostracization of LGBTQIA+ individuals.
In a historic move, the Madras High Court directed all the physical and mental health professionals to prohibit any attempts to medically “cure” or change the sexual orientation of individuals in the LGBTQIA+ community. The court further asked the authorities to take strict action against any professional found using the method of conversion therapy. However, such a progressive stance is not being replicated in other parts of the country.
LEGAL ANALYSIS OF INDIA’S STANCE ON CONVERSION THERAPY
Currently, no legislation explicitly prohibits the use of conversion therapy. However, the Mental Healthcare Act, 2017, can be used to grant limited protection to the LGBTQIA+ community. The Act specifies that informed consent is necessary for the treatment of the mental health of an adult. Section 2(i) states that informed consent has to be without any force, undue influence, fraud, threat, mistake, or misrepresentation, and has to be obtained after disclosing to a person all the adequate information, including risks and benefits of the specific intervention.
In the Navtej Singh Johar judgement, the Supreme Court recognised that the right to health is not simply the right to not be unwell, but rather the right to be well. It encompasses not just the absence of disease or infirmity, but ‘complete physical, mental and social well being’, and includes both freedoms such as the right to control one’s health and body and to be free from interference (for instance, from non-consensual medical treatment and experimentation). The court also emphasised the right to privacy and the right to make personal decisions.
Moreover, the Supreme Court in Samira Kohli v. Dr. Prabha Manchanda and Common Cause v. Union of India had held that the right to a dignified existence, the liberty to make decisions and choices and the autonomy of the individual are central to the quest to live a meaningful life and that continuing treatment against the wishes of a patient is a violation of the principle of informed consent. Also, forcing treatment against the bodily privacy and integrity of the individual is also considered a violation of informed consent and the right to privacy, as highlighted in the landmark judgement of K.S. Puttaswamy v. Union of India.
Going by the principles that the court has recognised over the years, it is evident that any non-consensual treatment that harms a person's physical and mental health would constitute a violation of Article 21 of the Indian Constitution.
INDIA’S INTERNATIONAL OBLIGATIONS
India being a pioneer in the international sphere, also has to take cognizance of its obligations to the global LGBTQIA+ community.
Article 5 of the Universal Declaration of Human Rights and the Article 7 of International Covenant on Civil and Political Rights make it mandatory for the States to protect people from ‘torture or to cruel, inhuman or degrading treatment or punishment.’, which is also a part of jus cogens or the peremptory norms which are of grave nature and the states cannot deviate from them. ICCPR in particular stipulates that no one shall be subjected without his free consent to medical or scientific experimentation.
The UN’s Special Rapporteur on torture emphasised that ‘States should take the necessary legislative, administrative and other measures to guarantee respect for the autonomy and 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’. Furthermore, they go on to say that ‘medical care that causes severe suffering for no justifiable reason can be considered cruel, inhuman or degrading treatment or punishment, and if there is State involvement and specific intent, it is torture.’
India is also a signatory to the International Covenant on Economic, Social and Cultural Rights which provides in Article 12(1) for the State to recognize everyone’s right to enjoyment of the “highest attainable standard of physical and mental health”. The LGBTQIA+ community is deprived of this right to health and have been discriminated against time and again. The United Nations Development Programme (UNDP) states that discriminatory treatment in healthcare includes the refusal of needed health services and treatment that can amount to abusive treatment.
The Supreme Court in the case of NALSA v. Union of India while recognising the rights of the LGBTQIA+ community gave way to the ‘Yogyakarta Principles on the Application of International Law in Relation to Issues of Sexual Orientation and Gender Identity’ to be applied in India for further protection of the LGBTQIA+ community. The conversion therapy is in direct contravention of Principle 17 which provides the right to the Highest Attainable Standard of Health. Additionally, the therapy also violates Principle 18 as it provides for the Protection from Medical Abuse. States must take all necessary action to protect the LGBTQIA+ community from such medical abuse and prevent any medical procedure that could lead to something irreparable.
CONCLUSION
Unarguably, India has made great strides in safeguarding the human rights of LGBTQIA+ persons. However, much remains to be done. Banning Conversion Therapy's unethical and discredited practice is a laudable step, and states must take cognizance of it. Safe, healthy, and inclusive spaces for the LGBTQIA+ community are not only essential but will also ensure that nobody has to experience pain and anguish merely for being themselves.
(Gaurav Choudhary is a first-year student at Dr. Ram Manohar Lohiya National Law University, Lucknow and Vanshika is a student of Lady Shri Ram College for Women, Delhi University)