On September 6, 2018, the Apex Court of India pronounced a judgment paving the way for a new era for human rights and sexual autonomy in the country. However, the death of Kerala student, Anjana Hareesh (also known as Chinnu Zulfikar) shook the LGBTQIA+ community in May 2020. Anjana, who identified as a bisexual, was forced by family members to undergo “conversion therapy” without her consent to ‘cure’ her of the ‘disease’ of bisexuality. After receiving heavy medication in a psychiatric hospital affecting her both physically and mentally, she allegedly committed suicide as she was unable to endure further treatment.
While shocking, Anjana’s case is not a standalone incident in a country like India, where deviations from heterosexuality are perceived to be a sin and hold social stigma. Although the Indian Psychiatric Society and various global psychiatric associations have proven that homosexuality is not a disease or illness, it continues to be seen as one by many in India. The existence of homophobia, biphobia, and/or transphobia thus leads to attempts to change a person’s sexual orientation through conversion therapy.
What is Conversion Therapy?
Conversion therapy refers to the practice of returning the sexual orientation of an individual to heterosexuality. This practice is based on the presupposition that non-binary sexual orientation is a pathological problem requiring medical attention. The “cure” of such “illnesses” includes religious, psychoanalytical, behavioral, and psychological methods. These methods have developed and broadened over time, and include processes such as castration, hormone therapy, sterilization, electric shocks, and masturbatory reconditioning among others.
Several international agreements and covenants condone the practice of conversion therapy, placing responsibility for each state to ensure its eradication. The UN’s Special Rapporteur on Torture states that “conversion” therapy leads to severe and life-long physical and mental pain, due to torture and ill-treatment. It also asserts the need to apply the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in a gender-inclusive manner. Conversion therapy also violates Principle 17 of the Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity, formally recognized by the Supreme Court of India in the judgment of National Legal Services Authority v. Union of India. Furthermore, the World Health Organization had declassified homosexuality as a disease decades earlier, stating it requires no cure. Article 12 of theInternational Covenant on Economic Social and Cultural Rights (which has been ratified by India) provides that the State Parties should ensure that everyone has the right to achieve the highest standard of physical and mental health. As a result, many countries have acknowledged the violation of human rights and ethics that occur due to conversion therapy, and so have banned this practice.
India and Conversion Therapy: The Existing Legal Framework
Article 19(1)(a) of the Indian Constitution guarantees the right to self-expression, which was extended to sexual orientation by the Supreme Court while decriminalizing homosexuality in Navtej Singh Johar and Ors. v. Union of India. Therefore, if an individual is coerced to undergo conversion therapy, it defies their right to self-expression. Furthermore, the Right to Privacy under Article 21 of the Constitution was extended to include sexual orientations in the landmark case of Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors. It was iterated that the Right to Privacy calls for the preservation of an individual’s sexual orientation, and so cannot be lost or surrendered in a public setting. As a result, guaranteed protection from conversion therapy would be expected under the right to privacy. However, it must be noted that the rights granted under Article 19(1)(a) only protect individuals against the actions of the state based on the vertical application of fundamental rights, and the liability of private entities is precluded. On the other hand, the rights guaranteed under Article 21 grant protection against private entities, but a horizontal application has not been observed in the specific context of sexual orientation.
A possible solution is through Judicial Activism recognized under Articles 32, 141, and 142 of the Constitution of India. These Articles allow the Indian Courts to fulfill their obligation as a guarantor of fundamental rights, through formulating guidelines and granting in them the force of law. It also meets existing inadequacies in the legal framework until Parliament enacts a formal legislation to do so. Additionally, the Mental Healthcare Act of 2017 explicitly prohibits mental health treatment for an adult without their informed consent. Section 2(i) of the Act states that adequate information, including risks, benefits, and alternatives, needs to be disclosed prior to giving such consent. Conversion therapy and its affiliated procedures thus directly contradict the Act. Finally, Common Cause v. Union of India held that every person has the right to autonomy and the right to self-determination (the process of choosing). In the context of ‘forced conversion therapy’, consent is not obtained prior to rigorous medical procedures that adversely affect physical and mental health.
Based on these observations, the current legal framework fails to explicitly provide any protection against conversion therapy, though existing legislation and precedents are largely inclined against it. In such a scenario, there is a need for a separate law to address this issue and place an outright ban on conversion therapy.
Criminalization of Conversion Therapy in India- a Distant Reality or a Far Away Dream?
Although anti-conversion therapy legislation is gaining global momentum, societal attitudes towards these therapies are an obstacle for the Indian government, due to fears of alienating a large voter base if anti-conversion law is implemented. As a result, critics of criminal law such as feminist legal scholarship, have argued that as Indian criminal laws have been historically drafted from the perspective of heterosexual cisgender men, they fail to acknowledge socio-cultural changes. Criminalizing conversion therapy therefore cannot prevent this practice if done covertly, and so wider socio-cultural change in the country is required. Additionally, the reformative theory of criminal law, coupled with gender and sexuality-based sensitization schemes, needs to be applied to safeguard the interest of innocent minorities.
The tragic death of Anjana Hareesh has again placed a spotlight on those in the Indian LGBTQ+ community subjected to conversion therapy and other extreme treatments because of their sexual orientation or gender identity. Several states in India have anti-conversion laws in place, but there is less unanimity among legislators regarding gender conversion. Although the decriminalization of homosexuality was a great step towards LGBTQ+ equality and acceptance in India, further progress can still be made. When the practice of conversion therapy prevails even after condemnation by international bodies, a stricter legal regime is required to resolve the issue.
Conversion therapy enhances the stigma attached to homosexuality and compounds their perception of discrimination. The forceful application of such therapies is against the very principle of justice, and thus it is high time that this practice is criminalized.