Bhavyata Kapoor, an independent litigation counsel and an LL.M. candidate at Panjab University in India, analyzes the positive impact of the Madras High Court's recent ban on conversion therapy...
Inspired by landmark judgments like Navtej Singh Johar v. Union of India (2018) and NALSA v. Union of India (2014), India’s Madras High Court in S. Sushama v. Commissioner of Police (2021) has prohibited ‘conversion therapy’. Conversion therapy, also called “reparative therapy”, is the process of medically “curing” or changing the sexual orientation of LGBTQIA+ people. This makes Tamil Nadu the first Indian state to institute a ban on such an unethical practice.
This case involved a lesbian couple whose parents were opposed to their relationship. Because the two women had left their homes, the parents had individually filed missing complaints. After being sharply interrogated by the police, the couple approached the court seeking protection from police harassment at the insistence of their parents, and from any form of threat or danger to their safety and security.
The court not only granted protection to the petitioners, but also issued a slew of interim guidelines. The court directions forced the Ministry of Social Justice & Empowerment to provide adequate protection to community members by creating shelter homes with basic amenities like food, clothing, medical care, and recreational facilities. The court also suggested that the government come up with different awareness programs to sensitize police and prison authorities, district and state legal service authorities, health professionals, educational institutions, and most importantly, parents of LGBTQIA+ members.
Although this verdict shows the slow transformation and progression of Indian society, shock and outrage will not stop Indian parents from forcing their queer children into conversion therapy. Hence, there still lies an exigency for a separate law that would institute a nationwide ban on conversion therapy. Presently, the LGBTQIA+ community is being granted limited protection under the Mental Healthcare Act, 2017, which stipulates that there cannot be discrimination against any patient on the basis of gender and sexual orientation. The Act further requires medical professionals to seek “informed consent” before treating LGBTQIA+ patients.
There are three problems with placing LGBTQIA+ members generally under this Act. First, just by virtue of sexual orientation, a member of this community cannot be deemed to be a “mental health” patient. Second, the very concept of informed consent embedded in the Act is parochial because it fails to protect patients who are either less educated or simply brainwashed into believing that their sexuality is a “disease”. In Common Cause v. Union of India (2018), the court held that every person has the right to exercise self-determination, which includes the right to choose. This right entails the extent to which patients are willing to submit themselves to medical treatments, and also the right to choose among alternative medical treatments. LGBTQIA+ patients are pressured into consenting to and enduring such a barbaric practice so as to conform to societal beliefs. Furthermore, the culture of shame, cruelty, and abuse that surrounds alternative sexual identities does indeed have a significant influence on the victims’ mental health, and in order to comply with “society’s standards”, an individual sometimes consents to bogus treatment. Third, the Act imposes liability only on the State and mental health professionals, but leaves out other perpetrators, such as parents. According to a recent study, parents play a pivotal role in efforts to “change” one’s sexual orientation. Religious therapists or babas who administer this therapy independently, or at the insistence of parents, are also left outside the loop of liability.
Conversion therapy has a physical and long-term psychological impact on patients. The treatment may involve electric shocks, lobotomies, chemical castration, etc. Such treatment leaves patients who receive it scarred for life. In order to attribute criminal liability, this adverse psychological impact should fall under Section 319 of the Indian Penal Code (IPC), which provides that any act that causes infirmity will constitute the offense of “hurt,” and according to Jhamatmal v. Brahmanand, hurt includes both bodily and mental injury. Because courts have not applied this penal provision to conversion therapy to date, it gives rise to the need for courts to either include the act under the offense of “hurt,” or simply create a special criminal provision that addresses the problem.
The idea of having conversion therapy criminalized is also supported by the standards set by the international conventions of which India is a signatory. This futile “treatment” falls under the ambit of cruel, inhuman, and degrading treatment, thereby violating Article 5 of UDHR and Article 7 of ICCPR, which places an obligation on the States to protect people from “torture or cruel, inhuman or degrading treatment or punishment”. Article 12(1) of ICESCR provides that States recognize the right of everyone to enjoyment of the highest attainable standard of physical and mental health. In the resolution adopted by the Human Rights Council in June 2016 (32/2) and September 2014 (27/32), States have been mandated to deplore acts of violence and discrimination committed against individuals because of their sexual orientation or gender identity. Furthermore, UNDP has stated that discriminatory treatment in healthcare includes not only the denial of necessary health services, but also treatment that can be abusive.
It is interesting to note that the judge in this case, Justice Anand Venkatesh himself, underwent different psycho-educative sessions to understand the daily prejudices and problems faced by people belonging to the LGBTQIA+ community. This shows that judicial officers are also trying to break preconceived notions, and are in the process of evolving. The judgment is definitely a tribute to the community during Pride month. Although it seems like a long battle, the Madras High Court’s judgment is a laudable milestone for courts in granting rights and equal opportunities to the LGBTQIA+ community.
Bhavyata Kapoor is an independent litigation counsel practicing at the Punjab and Haryana High Court, India. She is also an LL.M. candidate at Panjab University, India, and her interests lie in human rights and comparative public law.
Suggested citation: Bhavyata Kapoor, India’s High Court Bans Conversion Therapy: A Much Needed Law, JURIST – Professional Commentary, June 22, 2021, https://www.jurist.org/commentary/2021/06/bhavyata-kapoor-india-high-court-bans-conversion-therapy/.
This article was prepared for publication by Heidi Johnson, JURIST Associate Editor. Please direct any questions or comments to her at email@example.com
Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.