A DIRE NEED FOR SEPARATE LAWS TO ERADICATE THE ABHORRENT PRACTICE OF CURING QUEER SEXUALITY IN INDIA

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ABSTRACT

Conversion therapy is a blot on humanity today. The archaic notions of normality is evidently visible in the viciousness of the therapy and its existence. In the name of religion and science, several versions of the therapy took birth, ranging from prayers to corrective rapes. These reparative therapies aim to cure the sexual orientation of an individual but most of them are in violation of human rights. A recent report by the UNHRC on conversion therapy stated that it had interviewed over 8000 respondents who were subjected to the therapy and 98% of them reported that it had caused them physical and psychological damage.

At present, there are very few countries that have banned the practice completely. India is yet to bring a strict legislation to curb the practice of conversion therapy. However, it is very difficult to change the social stigma attached to homosexuality in Indian society because of the presence of strong cultural relationship with the concept of marriage and procreation. This article tries to shed light on various concerns related to the conversion therapy and its impact on the queer community. Also, it analyses the validity of this practice and the need for special legislation in order to eradicate the practice of curing queer sexuality in India.

Keywords: conversion therapy, homosexuality, mental illness, heterosexuality, criminalization

INTRODUCTION

The first formal step of accepting homosexuality in Indian society was done in the case of Navtej Singh Johar vs. UOI[1] in 2018, where the Supreme Court decriminalized homosexuality. But the action of establishing this law in our society is a long and intricate process and there has not been much progress since decriminalization. Despite wide publicity of this judgement, the social stigma about homosexuality persists, depriving them of basic human rights. Same-sex attraction is considered an abnormal behaviour and is considered to fall under the ambit of mental illness. As a result, many groups and professionals conduct various therapies assuming this behaviour can be treated. This gave birth to various forms of conversion therapies. These treatments include electric shocks, medicines/injections, prayers, corrective rapes, forced marriage and various other brutal and barbaric procedures. The importance of traditional marriage and the heterosexuality in Indian society along with the pressure from family members has kept these conversion therapies alive until the present day.

CONVERSION THERAPY

The ancient Hindu texts like the Vedas and the Kama sutra indicated the presence and acceptance of homosexuality during that period. While the Christians and the followers of Islam opposed homosexuality as it was considered a sin according to their religious texts.

The British imported the concept of conversion therapies to India. These therapies were similar to the aversion techniques that are used to treat alcoholics and drug addicts by psychiatrists. Slowly, this was implemented as a cure for homosexuality.

Curing queer sexuality is the ultimate goal of conversion therapies. It attempts to change the sexual orientation, gender expression and identity. This pseudo-medical process falsely claims to change the sexual orientation. Several quacks of all stripes offer services promising to change their non-heterosexual orientations. Despite the tragic suicide of Anjana Harish – a 21 year old bisexual woman, the use of conversion therapies continue to grow in India.

Patients are made to watch same-sex porn or photographs and while viewing it, they would receive an electric shock in order to supress the feeling of arousal. While receiving the shock, the photograph will be replaced with a heterosexual image or porn and the shock would subside. Some practitioners also use women’s perfume as a stimulant. In western countries the main aim of the therapy is to remove same-sex desires, while in India the objective of the therapy is to change the patient into a heterosexual and procreate. Male patients were forced for passivity and female patients were forced to become more feminine.

The suicide of Anjana Harish, a 21 year old bisexual woman in Goa revealed the dark side of the conversion therapies. After she revealed herself as bisexual to her family, she was forced to undergo the therapy for months. During the course, she was assaulted, sedated with medicines and was kept in isolation in a de-addiction centre. Following which she posted a video on Facebook, expressing how unhappy she was with her family who tortured her instead of protecting her. The psychological stress due to the therapy led her to commit suicide. There are several other similar instances across the country that go unreported.

Shreya Reddy, a trans-woman revealed her mother about her sexuality when she was 12 years old. She was later taken to a dargah in Mumbai and was told that she was in possession of an evil spirit and was beaten endlessly for four weeks. She was forced to drink water mixed with the ash of incense stick, which she had to consume three times a day. Shreya would pray for some miracle to turn her into a woman. But nothing worked.

There are numerous faith groups, cosmic healers, physicians and psychiatrists relate religion and science while practising conversion therapies. Family members often consider homosexuality as a mental illness and an immoral representation in the society. Hence, they force them undergo these therapies. And several quacks take advantage of this and make money in the name of curing queer sexuality.

THE LEGAL POSITION OF CONVERSION THERAPY

As there is no scientific evidence of curing homosexuality through conversion therapies, the medical community has denounced this practice as unethical. Also, the Indian Psychiatry Society gave an official statement that it will no longer consider homosexuality as an illness.

Hence, any doctor practicing such therapies would attract civil liability, where it would be payment of some compensation under medical negligence. In Laxman Balkrishna Joshi vs. Trimbak Bapu Godbole[2], the Supreme Court held that the doctors have the duty to decide whether they want to take up the case or not.

With regards to criminal liability, two possibilities can be explored even though the judiciary does not entertain the application of these provisions for conversion therapy:

  • Under Section 319 of the Indian Penal Code, causing infirmity will be considered as an offence of hurt. This was held by the Supreme Court in the case of Jhamatmal vs. Brahamanand[3]. As there is enough evidence that conversion therapy leads to mental infirmities like depression and anxiety, it will fall under the ambit of hurt.
  • Section 304-A of Indian Penal Code deals with medical negligence. Under this section, the act must be of high degree and gross. Conversion therapy could be considered as an act of high degree.

THE NEED FOR CRIMINALIZATION OF CONVERSION THERAPY

Despite decriminalization of homosexuality, the community still lacks recognition in employment sectors which in turn deprives them from leading a dignified life. They still face violence, harassment, physical and mental abuse. Sometimes, parents force them to leave their homes. The heteronormative structure of the society and people’s prejudice makes homosexuality abnormal in the Indian society. The lack of social acceptance of homosexuality adds up to their agony. Some sections of the society consider homosexuality as a treatable disorder and the fact that some doctors practice these therapies firms their beliefs that it is curable. This completely destroys the purpose of decriminalization of homosexuality. Hence, decriminalization of homosexuality is not enough and it must be backed with criminalization of conversion therapy, so that it can be eradicated completely.

In the case of Anjana, the de-addiction centre was run by Christians. Groups opposing criminalization of conversion therapy might use Freedom of religion to back the therapies that the doctors are practicing in their centres. Hence, State must intervene so that no harm is caused in the name of religion.

Several individuals who have undergone these pseudo-medical therapies, have specified the use of high voltage of electric shock as part of the therapy to treat homosexuality. This is a clear violation of not just Human Rights but also violation of Article 21 of the Indian Constitution which lays down the fundamental right of Right to life.

In National Legal Services Authority vs. Union of India[4], the court held that no one can be forced to undergo any form of medical or psychological treatment for sexual orientation/gender identity. This judgement makes it evident that conversion therapies are illegal and discriminatory and there needs to be a specific law banning it, which would provide positive support to the community and equal opportunity to live a life with dignity.

Tamil Nadu is the first state in India to ban the conversion therapy. The Madras High Court passed a verdict directing prohibition of conversion therapy in the case of S. Sushma vs. Commissioner of Police[5]. The court also called for banning the practice across the country and taking legal action against those who practice it. This judgement became an important precedent for ensuring protection of the queer community.

Many countries like Canada, Germany, Mexico and Australia have completely or partially banned the practice of conversion therapy. Certain countries like Brazil, Taiwan, Malta and Ecuador have specifically banned conversion therapy for minors. India is yet to impose similar ban on such therapies.

CONCLUSION

The criminalization of homosexuality and the concept of conversion therapy was introduced during the British colonization period. In 2018, homosexuality was decriminalization under Section 377 of Indian Penal Code but the conversion therapy continues to be in practice even today and individuals are castigated and punished for being homosexuals. Some of the communities consider homosexuality as a sin, some consider it as a curable mental illness. Conversion therapy enhances the stigma of homosexuality. The social stigma when supported by customs like marriages or religious beliefs becomes a difficult mind-set to change. 

Decriminalization alone will not be sufficient to eradicate the abhorrent practice of curing queer sexuality. There needs to be stricter penal restrictions in order to curb the practice completely. Such therapies are against the principle of justice. The judgement given by Madras High court is a progressive achievement for the queer community. To add voice to this judgement, it is essential to introduce legislation criminalizing and banning the practice of conversion therapy along with laws to protect the rights and dignity of the queer community. 

After the death of 21 year old Anjana in May 2020, a Kerala based LGBTQ activism group called Queerala has been petitioning for conversion therapy to be declared illegal in India. The Indian Psychiatric Society has issued a statement that anyone offering conversion therapy would amount to violation of human rights and could invite legal action.


[1] 2018 (10) SCALE 386

[2] AIR 128, 1969 SCR (1) 206

[3] AIR 1944 Sindh 19

[4] WRIT PETITION (CIVIL) NO.400 OF 2012

[5] W.P. No. 7284 of 2021

Author: Zaina Aboobaker, CMR School of Legal Studies, Bangalore

Editor: Kanishka VaishSenior Editor, LexLife India.

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