This post is written by Ishita Goyal, a student of Symbiosis Law School, Noida.
“To deny people their human rights is to challenge their humanity”- Nelson Mandela
In September 2018, the Hon’ble Supreme court of India decriminalised homosexuality. With the landmark ruling, same sex relations were legalised, giving homosexual couples the myriad rights that heterosexual couples enjoy. However, the decriminalisation does not by itself wash away the years of oppression that the community as a whole had to go through or the prejudices and lack of acceptance that still continue to exist in our society. The Madras High Court in July 2022 noted that the National Medical Commission (NMC) will be taking strict action against medical professionals who prescribe illegal practices like conversion therapy and directed the NMC to issue necessary official notification by enlisting “Conversion Therapy” as a form of professional misconduct.
Conversion therapy is a pseudoscientific practice that is performed so as to alter the sexual orientation of an individual, from homosexuality to heterosexuality. The very idea of such conversion therapies is to view homosexuality as “unnatural” and “abnormal”, which should ideally be “treated” or “cured”. The therapy is performed commonly in the form of counselling, visualization, social skills training, psychoanalytic therapy, and even spiritual training. The more aversive version of such training also involves giving shock treatment to the person or “corrective rape”. Through this article, the aim is to highlight the grave psychological and legal repercussions of such practice and construe them from the lens of human rights.
Impact of the Gender conversion therapy
Image Credit: BBC
The practice of queer conversion therapy has no rationale basis or standing in medical science. Yet it is a commonly practised therapy across the world. Due to its unscientific and irrational methods, it causes deleterious impact on the psychological, physical, emotional, and the mental well-being of a person. In some cases, the methods incorporated are so aversive that the victims are administered strong injections, electrocutions and painful medicines. These methods are excruciating in nature and cause a long lasting impact on the personality and the body of a person.
Madrigal-Borloz, a Costa Rican jurist and advocate of human rights said, “The combined effects of feeling powerless and extreme humiliation generate profound feelings of shame, guilt, self-disgust and worthlessness, and can result in a damaged self-concept and enduring personality changes.”
What is more disheartening is that young people and children are particularly greater victims of such torture. Studies show that having gone through such therapies at a younger age led to grave consequences like severe anxiety, confusion about oneself and depression at the later stages of life.
Video Credit: Insider
Gender conversion therapy vis a vis human rights
The Universal Declaration of Human Rights states that all human beings are born equal and have the right to live their lives free and with utmost dignity and without any discrimination. Article 3 of the Declaration specifically sets forth that everyone has the right to life, liberty and the security of person. In light of the same, any sort of prejudice against the queer community is nothing but the blatant violation of the International Human Rights regime. What the Declaration further sets forth is that respect for the dignity and equality of all would be the bedrock for the foundation of peace, justice and freedom in the world.
Many acts of conversion therapy bear strong similarities to internationally acknowledged acts of torture and other cruel, inhumane or degrading treatment and punishment. A long-term impact on the individual’s body and mind is a common phenomenon from these types of crimes. The United Nations General Assembly (UNGA) has been actively involved in ensuring that states take effective measures towards protection of all lives within their respective jurisdiction and to take strict actions for crimes against the people due to their sexual orientation. The UNGA resolution, A/RES/67/168, is one such example of the same.
Current Legal Regime in India
Part III of the Indian Constitution is meticulously drafted to incorporate the Human Rights regime in India and the Hon’ble Supreme Court has time and again gone into discussing the same by interpreting various rights and freedoms enshrined under the Constitution. In 2020, the debate on queer conversion therapy was sparked after a young Indian, Anjana Harish, committed suicide after having being subjected to such forceful conversion by her own family. Her unfortunate death became a strong reason for many courts across India to notice the plight of the victims of these practices and the dire consequences of the same.
Recently, in the case, S. Sushma v. Commissioner of Police,[1] the Apex Court came out strongly on the practice of queer conversion therapy and prohibited the same. The judicial stance on the same is also about holding the doctors liable in the first by attracting on them civil liabilities, in the form of medical negligence and making them conscious about taking any such conversion cases for treatment.[2]
At present, there are no specific provisions that have been crafted for the sole purpose of criminalising such barbaric practices in India. Therefore, recourse can only be taken by a constructive interpretation of the existing penal provisions. Section 319 of the Indian Penal Code stipulates “hurt” is deemed to be caused by causing infirmity. Whether to constitute depression, anxiety, any other mental stress caused on account of these therapy as “hurt” is left to the judicial interpretation only. Simultaneously, it is also already affirmed that medical negligence can be set out if a doctor takes up such conversion therapy. In doing so, the Apex Court has in a way allowed recourse under Section 304-A of Indian Penal Code. However, the lack of any penal provision with respect to the said practices is still a lacuna that the Indian legal framework faces.
Conclusion
In National Legal Services Authority v. Union of India, it was categorically noted that no person should be coerced into undergoing any form of medical treatment to correct their sexual orientation or gender identity. Yet, the practice continues in the country. One of the major reasons why such practise exists is the lack of social awareness on the homosexuality. It is disheartening to see the country being so intolerant towards the same when the notion of homosexuality finds its roots since time immemorial, almost similar to the existence of the very society.
Even though heavy duty is casted upon the doctors, yet the threshold for proving the medical negligence stands to be very high. This becomes another reason why some corrupt medical practitioners get away easily. The media and civil society, in this aspect, can play a colossally important role by actively spreading awareness and bringing such stories of forced conversion to the limelight. After all if as a society we continue to ignore the existence of these issues in our surroundings, we are being passive conspirators in normalising discrimination.
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