Two years after the Navtej Singh Johar judgment which decriminalized homosexuality in India, the death of Anjana Hareesh, also known as Chinnu Zulfikar, shook the whole LGBTQIA+ community, earlier this May. Claimed to have committed suicide, Anjana identified herself as bisexual and was forced by her family members to undergo “conversion therapy” without her consent which could “cure” her of the “disease” of bisexuality. She was sent to a psychiatric hospital where she was given heavy medication which affected her physically and mentally. Unable to endure more pain, she killed herself. Such incidents are not uncommon in a country like India, where not conforming to the binary sexual orientation is a sin and any deviation from this attracts a lot of stigma in society. The Navtej Singh Johar judgement which decriminalized Sec. 377 of the Indian Penal Code mentioned explicitly that homosexuality is not a “mental illness.” It is deplorable to note that in spite of Indian Psychiatric Society as well as various psychiatric associations of the world declaring that homosexuality is not a disease or an illness, psychiatric hospitals continue to treat it as one. Besides, there are numerous anomalies in the mental healthcare system in India which have time and again proven to be detrimental to the already suffering members of the LGBTQIA+ community.
Conversion therapies entail a range of high-risk practices which falsely claim to change the sexual orientation of a person. Such use of conversion therapies presupposes that non-binary sexual orientation is pathological and is a problem which warrants medical attention. There are various methods in which this therapy is practiced like the religious, psychoanalytical, behavioral and the psychological methods. These methods, which have developed and broadened over time, include processes like castration, hormone therapy, sterilization, electric shocks, masturbatory reconditioning, aversion therapy, visits to prostitutes and so on. However, medical establishments all over the globe discredit conversion therapy on many grounds. These therapies violate ethical principles of health care and human rights that are protected by international and regional agreements.
The existence of homophobia, biphobia and/or transphobia in the society consequentially leads to attempts to change a person’s sexual orientation by adopting conversion therapy. This however, has disastrous repercussions on the mental health of the individual concerned. According to a report released by the American Psychological Association, some of the many menaces of reparative therapy are depression, shame, hopelessness, self-destructive behavior and suicidal tendencies. A survey conducted by Ozanne Foundation presented that 68.7% of the respondents experienced suicidal thoughts and many of them had attempted the same. Furthermore, more than half of them were reported suffering with depression and in need of medication. Nearly 40% of them self-harmed and 20% had eating-disorders. The perils of conversion therapy are magnified in the youth. Family rejection and pressure of undergoing the therapy during adolescence poses more than eight times more likelihood of committing suicide and three times more of falling into the traps of illegal drugs only exacerbating their mental state.
No Indian law today expressly prohibits conversion therapy. However, the Mental Health Act, 2017 explicitly prohibits treatment for the mental health of an adult without their informed consent. Additionally, Section 2(i) mentions that the consent for a specific intervention must be given without any force while also disclosing adequate information including risks, benefits and alternatives prior to giving such consent. Conversion therapy and its affiliated procedures, thereby, pose as a direct contradiction to the Act.
Furthermore, when we look at the aspect of forced consent as in Anjana’s case, in Common Cause v. Union of India (2018) it was held that every person has the right to autonomy, which is, the right to choose, and exercise self-determination which entails the process of choosing. In this case, the judges opined that with reference to health and medical care decisions, a person’s exercise of self-determination and autonomy includes their right to choose to what extent they are willing to submit themselves to medical treatments and to choose amongst alternatives or no treatment at all, whichever aligns with their own individual aspirations. Therefore, all adults with the capacity to consent have the right to refuse medical treatment. In the context of “forced conversion therapy,” there is clearly no consent of the individual prior to submitting them to rigorous medical procedures which adversely affects their physical and mental health.
Additionally, in the Navtej Singh Johar judgement, the court emphasized on the right to privacy as guaranteed under Article 21 of the Indian Constitution which extends to the right to make personal decisions. Along with decisional autonomy, the judgement also includes the right to health as a crucial element of the right to life (Article 21) where health includes both – physical and mental health. Going by the merits of this judgement, it is evident that “forced conversion therapy” prima facie violates a fundamental right, i.e., Article 21 of the Indian Constitution. The current legal framework fails to explicitly provide any protection against the dreadful practice of conversion therapy. However, existing legislation and judicial precedents are largely inclined against the performance of such a barbaric practice.
There are international agreements and covenants which condone acts like conversion therapy. The UN’s Special Rapporteur on torture recalls the need to apply the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in a gender-inclusive manner. It says “conversion” therapy leads to severe and life-long physical and mental pain and suffering and can amount to torture and ill-treatment. Such kind of discrimination meted out against the LGBTQ community members is also violative of Principle 17 of the Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity, which have been given due recognition in the judgment of NALSA v. Union of India. The WHO had declassified homosexuality as a disease decades earlier and stated that since it is not a disease, it requires no cure. In 2012, the Pan American Health Organisation gave a statement urging governments all across the world to expose such “therapies” and promote diversity and gave certain recommendations and suggestions for governments, academic institutions, media and societies across all nations to address the problems posed by conversion therapies. Many countries have acknowledged the violation of human rights and ethics which take place due to conversion therapy, and have banned it.
With respect to one’s right to mental health – it has been declared by the Human Rights Council in its Resolution 36/13 that mental health is a human right. Article 12 of the International Covenant on Economic Social and Cultural Rights (ICESCR – 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. The mental abuse experienced by Anjana due to “forced conversion therapy” is a clear violation of the aforementioned provisions of international law.
The dreadful case of Anjana Hareesh brings to light the plight of victims of homophobia and biphobia being harassed to go through conversion therapies. It is imperative for India to address the issue of conversion therapies through legislation. A focus on delegitimizing and banning conversion therapies through law and policy thus becomes crucial. India should learn a lesson from the countries which have banned such therapies and in addition to that penalize professionals who carry out such therapies hence expanding their civil liability. It is high time that India ratifies the UN Convention against Torture, implements the ICESCR and the Yogyakarta Principles and makes laws which ensure conformity with international laws. Sensitization measures should be taken up in order to spread awareness in a society like India where baleful stereotypes about the LGBTQIA+ community make life difficult for its members.
Akanksha Agrahari, Riddhi Bang, and Prerna Sengupta are second-year students at NALSAR University of Law in Hyderabad, India. They are passionate about LGBTQIA+ rights both domestically in India and internationally.
Suggested citation: Akanksha Agrahari, Riddhi Bang, and Prerna Sengupta, Examining the Legality of Forced Conversion Therapy in India, JURIST – Student Commentary, June 5, 2020, https://www.jurist.org/commentary/2020/06/agrahari-bang-sengupta-forced-conversion-therapy/.
This article was prepared for publication by Tim Zubizarreta, JURIST’s Managing Editor. Please direct any questions or comments to him at commentary@jurist.org
