“There are many branches on the tree of life. There is no one way to be, and there is room for everyone to be who they are”- the Madras High Court observed in S Sushma vs. Commissioner of Police (2021). This verdict prohibited conversion therapy in Tamil Nadu and the court suggested that action should be initiated against the professionals involving themselves in any form or method of conversion therapy, including withdrawal of licence to practice. “It was I (us), who has to set off on a journey of understanding them [LGBTQ+ community] and accepting them and shed our notions, and not they who have to turn themselves inside out to suit our notions of social morality and tradition’’-Justice N. Anand Venkitesh pointed out in the landmark judgment.
The so-called ‘conversion therapy’ is a range of dangerous and discredited practices that falsely claim to change a person’s sexual orientation or gender identity or expression. The National Medical Commission, the apex regulatory body of medical professionals in India, has recently directed all State Medical Councils to ban conversion therapy and termed it a “professional misconduct” under the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002.
Supreme Court verdict
The Supreme Court of India decriminalised homosexuality in its landmark judgment in Navtej Singh Johar & Ors vs. Union of India (2018). It was a hard-earned fruit for the queer community in India. However, their struggle for the right to identify themselves as human beings with equal rights goes on. The struggle now demands to eliminate the barbaric ‘conversion therapy’ which consists of diverse methods, ranging from counselling, correctional rape, exorcisms, forceful starving, electro-convulsion, shock therapy, lobotomy, marriage therapy, aversive stimulation and religious counselling etc. It is practiced in many conversion therapy centres all over India ultimately leading to depression, anxiety, stress, suicidal tendencies and in many cases resulting in victims taking off their lives.
The earliest traces of conversion therapy was witnessed during the Nazi regime where homosexual prisoners were targeted and tortured by injecting high levels of testosterone into their bodies, resulting in their death. Though no medical evidence proves that this practice is successful, this dangerous practice, which was initially restricted to converting gays and lesbians has now been extensively used to convert all classes of sexual minorities alike, regardless of scientific evidence that states that sexual orientation or gender identity is innate to an individual, something an individual is born with and has no control of and therefore cannot be subject to reversion.
Though no express provision, restricting the practice of conversion therapy is mentioned in Indian law, and civil liability can be attracted on the doctors who practice conversion therapy as it amounts to medical negligence. At present, the provisions in the Indian Penal Code (S. 44, S. 304-A, S. 319), can be invoked to attract criminal liability and the doctors and healthcare service providers who practice conversion therapy can be made liable under the Consumer Protection Act, 1986 too. Moreover, S. 18(2) of the Mental Health Care Act, 2017 refrain any discrimination based on gender or sexual orientation.
Though conversion therapy is declared to be a professional misconduct, it applies only to forcible conversion therapy and therefore, it will continue to take place through other forms, especially among parents of those sexual minorities who will pressure and force their children to identify themselves with the heterosexual norms of society. Tamil Nadu had been the only State that had made a step forward in the right direction, by banning conversion therapy under the direction of the Madras High court in S. Sushma v Commissioner of Police. The Kerala High court, too has directed the State government to frame guidelines against forced conversion therapy in Queerala, an organisation for Malayali LGBTIQ community v. State of Kerala in 2021.
The need of the hour is to enact a stringent, effective and devoted piece of legislation that will outlaw the odious practice of conversion therapy. This can be achieved only by bringing forth criminal liability to those who indulge in this inhuman practice. and will make sure that no segment of society engages in this dangerous practice. Furthermore, as a society, we have to acknowledge that every individual is unique and therefore gender expression, sexual identity or sexual orientation cannot be forced upon any individual or controlled by any external force.
‘Dignity of individual’ is a grand promise that our Constitution gives to every citizen irrespective of his caste, creed, gender or sexual orientation. “No past civilizational glories, no future superpower status, nothing redounds more to the true greatness of a nation than the dignity of every individual in it. Dr. Ambedkar held this view, and the appearance of the term ‘dignity’ in the Preamble to our Constitution stemmed from this unique conviction.’’- opines Aakash Singh Rathore in his Ambedkar’s Preamble: A Secret History of the Constitution of India. Practices like Conversion Therapy are aspersions on the dignity jurisprudence of the Constitution. Hence, Conversion therapy should be duly criminalised and effectively eliminated from our republic.
Faisal C.K. is Under Secretary (Law) to the Government of Kerala. Anjana Satheesh is a PhD candidate in the National University of Advanced Legal Studies, Kochi.