Opinion Based Blog

Conversion therapy in India through the judicial lens


Author(s): Partha Singh, 2nd year Student at Institute of Law, Nirma University.

Introduction

Conversion therapy is a societal norm that promotes psychological treatment as an answer to homosexuality. It essentially started to be regarded as a treatment of choice when people started looking at homosexuality as a disease and illness, something which was to be filtered out of society. Even though there have been legislative efforts made by a lot of countries around the world, conservatives and traditional activists still look at homosexuality as a disease, which further promotes medical practices that aim to convert people into straight, heterosexual beings. Such therapy includes the study of individualistic sexuality as a construct of choice and liberty, and aims to come up with methods to figure out how that construct can be broken down by effectively gaslighting people into believing what is the acceptable version of normal. People in the LGBTQIA community are mostly influenced by those who impose righteous and ill-framed reviews of religious and psychotherapeutic texts that promote a certain image of an intolerant society that proposes that the likes of the majority supersede those of the minority. Multiple studies and research display a compilation of data that shows the harmful effects that flow from such practices. This post is an attempt to show that the validity of conversion therapy in India is highly questionable, owing to the judicial response that was received by its citizens. [1]

What is conversion therapy

Conversion therapy is the branch of psychological study that deals with changing or altering the sexual orientation of homosexual individuals in an attempt to convert them into heterosexual human beings. This would include the help of talk therapy, behavioral therapy (training the mind to promote certain stimuli in order to encourage or refrain an individual from performing certain tasks), and milieu treatments (making harsh changes in the patient’s immediate life to make sure that other methods of therapy work efficiently). However, such practices have been denounced by mental health organizations and also various states. The consensus regarding conversion therapy remains the same. Many judiciaries across the world feel like the existence of such therapies poses a sizeable threat to law and order and, hence, there exists ample reason to make efforts to save sexual and other minorities that are easily susceptible to such practices.[2]

The Judgment of the Madras High Court

In June 2021, the Madras High Court, in the case of S. Sushama and Ors. v. Commissioner of Police, banned conversion or reparative theory as a preventive measure for homosexuality. The petitioners in this case were a lesbian couple who had previously run away from home in order to live a free life with respect to their sexual identity. One of the contentions that the petitioners presented before the court was that their parents were not supportive of their choices and had subjected them to conversion therapy. Upon running away from home, the parents of the petitioners filed a missing complaint with the Madurai police. The petitioners also stated that they were repeatedly harassed by the police and were also forcefully asked to return home. In response to that, the petitioners filed a writ in the Madras High Court, stating their contentions. Upon serious deliberation and taking into consideration the arguments from both sides, the bench declared the following:

  1. The Madurai police were asked to not harass the couple and stop all their operations regarding that case at once. They were also asked to close the missing persons complaint that they had received because it had come to their knowledge that the couple were involved in a consensual adult relationship, which is in accordance with the law.
  2. The Court ordered that the Ministry of Social Justice and Empowerment should publish a list of NGOs, government provisions, and shelter homes that are involved in protecting the lives and rights of the LGBTIA community.
  3. In order to safeguard the rights of LGBTQIA+ people under the Constitution and also the provisions of the Transgender Persons Act, 2019, the court ordered sensitization training. The Court acknowledged that these programmes should be implemented for a variety of stakeholders, including the police, legal services, public authorities, lower courts, health professionals and employees, educational institutions, public and private businesses,  and parents of LGBTQIA+ individuals.
  4. The landmark judgment that follows is that the court declared conversion therapy, which is used to convert the sexual identity of LGBTQIA+ individuals into that of heterosexuals, as illegal. The court declared that such practices are unscientific and unconstitutional and cannot be used as a means to harass individuals.
  5. Some minor details of the judgment also include:
    • Change in the curriculum present in educational institutions to educate people about the LGBTQIA+ community;
    • Make job hiring processes more inclusive by offering jobs to such individuals;
    • The people of the LGBTQIA+ community, like every other citizen, have the right to exercise free legal aid under article 14 of the Indian Constitution.[3]

Other major statutes

The Indian judiciary has taken landmark steps in order to ensure the rights of sexual minorities. Apart from the recent order issued by the Madras High Court, various other precedents set in the past, they have helped in denouncing conversion or reparative therapy in India. Although a lot of work has been done, there is still work to be done to make sure that sexual minorities are granted the right to live a dignified life, as vested in them by the power of Article 21 of the Indian Constitution.  Here is a list of a few cases that paved the way for LGBTQIA++ rights in India:

  1. National Legal Services v. Union of India

The bench of the Hon’ble Supreme Court held that the transgender community should be legally recognized as the third gender within India. It closes upon the idea that gender identity is determined solely at the discretion of an individual, and an individual should not face any restrictions when they choose to exercise that right. Additionally, it specifies the rights that members of any gendered minority community have under Indian Constitutional Articles 14 (right to equality before the law), 15 and 16 (right against discrimination), 19 (right to freedom of speech), and 21 (right to live with dignity). When the Apex Court invalidated section 377 of the Indian Penal Code and recognised homosexuality in the case of Navtej Singh Johar v. Union of India, this case served as a precedent.

  1. Common Cause v. Union of India

The Apex Court in this case held that the citizens of India have the right to live and also die with dignity under Article 21 of the Constitution of India. This right also entails that people have the right to choose any medical treatment that they feel is desirable and is in accordance with expert opinion. It also gives people the right to receive any medical treatment freely as equal citizens of the country, and also the equal right to deny any such treatment. This case law was used as a precedent in the order that was issued by the Madras high Court, which affectively banned conversion therapy in India.[4]

  1. Naz Foundation v. Govt. of NCT of Delhi

In this case, the two-judge bench of the Delhi High Court held that it is prohibited for anyone within the sight of the judiciary to treat any consensual sex between two Homosexual adults as a crime. This is because such an act was in accordance with the provision of fundamental rights as stated within the Indian Constitution. This judgment was also used as a precedent when the Supreme Court struck down the criminal validity of section 377 of IPC (the Indian Penal Code) and recognized homosexuality in the cases of Navtej Singh Johar v. Union of India and in that of S. Sushama and Ors. v. Commissioner of Police as it prohibited conversion therapy.

  1. Samira Kohli v. Prabha Manchanda

In this case, the Honorable Supreme Court elaborated upon the fact that the patient must consent to any kind of treatment that they are supposed to go through. Any treatment that violates the consent of the person is beyond the scope of legality. This helped as a convincing argument that was presented before the Madras High Court in the case of S. Sushama and Ors. v. Commissioner of Police. This is because it was argued that conversion therapy, even if a valid treatment, when not consented to by the patient, is not something that can be subjected to them in the absence of their consent, which is what the current social scenario is like.[5] This judgment helped in declaring conversion therapy as constitutionally invalid.[6]

Conclusion

This post was an attempt to analyze the history of conversion therapy in India. It has been established that conversion therapy as a pratice is largely unconstitutional and was hence banned. Although such a judgment is a landmark ruling when it comes to protecting the rights of the LGBTQIA+ community, it is still only a small step towards ensuring the rights of the community. The government is yet to take major steps to reinstate the pride of the community by providing further reforms that help them live free and fearless lives.


References

[1] Douglas C. Haldeman, The practice and ethics of sexual orientation conversion therapy., 62 Journal of Consulting and Clinical Psychology 221–227 (1994).

[2] Jack Drescher et al., The growing regulation of Conversion Therapy, 102 Journal of Medical Regulation 7–12 (2016).

[3] S. Sushma and Ors. vs. commissioner of police, Greater Chennai Police and ors., South Asian Translaw Database (2021), https://translaw.clpr.org.in/case-law/s-sushma-and-ors-v-commissioner-of-police-greater-chennai-police-and-ors/ (last visited Jul 8, 2022).

[4] Privacylibrary.ccgnlud.org. 2022. Common Cause (A Regd. Society) vs. Union of India and Anr., https://privacylibrary.ccgnlud.org/case/common-cause-a-regd-society-vs-union-of-india-uoi-and-ors.

[5]  Misra, N., 2021. Informed consent: a case analysis of Samira Kohli vs. Prabha Manchanda – iPleaders.,  iPleaders, https://blog.ipleaders.in/informed-consent-case-analysis-samira-kohli-vs-prabha-manchanda.

[6] Tashi Saraf, Conversion Therapy In India: Thorough Analysis of the Madras High Court Judgement NLUJ Law Review (2021), http://www.nlujlawreview.in/conversion-therapy-in-india-thorough-analysis-of-the-madras-high-court-judgement.

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