|Year : 2018 | Volume
| Issue : 2 | Page : 95-98
The interplay of sexual orientation, social discrimination, and legislation: A consensus yet awaited!
Abhijit R Rozatkar1, Nitin Gupta2
1 Department of Psychiatry, All India Institute of Medical Sciences Bhopal, Bhopal, Madhya Pradesh, India
2 Department of Psychiatry, Government Medical College and Hospital, Chandigarh, India
|Date of Web Publication||29-Jun-2018|
Dr. Nitin Gupta
Department of Psychiatry, Government Medical College and Hospital, Chandigarh
Source of Support: None, Conflict of Interest: None
|How to cite this article:|
Rozatkar AR, Gupta N. The interplay of sexual orientation, social discrimination, and legislation: A consensus yet awaited!. Indian J Soc Psychiatry 2018;34:95-8
|How to cite this URL:|
Rozatkar AR, Gupta N. The interplay of sexual orientation, social discrimination, and legislation: A consensus yet awaited!. Indian J Soc Psychiatry [serial online] 2018 [cited 2019 Feb 17];34:95-8. Available from: http://www.indjsp.org/text.asp?2018/34/2/95/235662
If there is one constitutional tenet that can be said to be underlying theme of the Indian Constitution it is that of “inclusiveness.”
| Definitions/concepts|| |
At the outset, for clarity of understanding the aforementioned discussion, we would like to briefly touch upon the terms and phrases being used/discussed here. As per the American Psychological Association, LGBT stands for lesbian, gay, bisexual, and transgender. The “LGB” in this term refers to sexual orientation. Sexual orientation has been defined as an often enduring pattern of emotional, romantic, and/or sexual attractions of men to women or women to men (heterosexual), of women to women or men to men (homosexual), or by men or women to both sexes (bisexual). It also refers to an individual's sense of personal and social identity based on those attractions, related behaviors, and membership in a community of others who share those attractions and behaviors. Some people who have same-sex attractions or relationships may identify as “queer,” or, for a range of personal, social, or political reasons, may choose not to self-identify with these or any labels. The “T” in LGBT stands for transgender or gender nonconforming and is an umbrella term for people whose gender identity or gender expression does not conform to that typically associated with the sex to which they were assigned at birth. Some who do not identify as either male or female prefer the term “genderqueer.” While it is important to understand that sexual orientation and gender identity are not the same thing, they do both reflect differing forms of gender norm transgression and share an intertwined social and political history.
| Historical Background|| |
Section 377 of the Indian Penal Code (IPC) (Section 377. Unnatural offences.—Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to fine) has been considerably debated in the last two decades. This section, which criminalized same-sex relationship, was introduced by Lord Macaulay in 1860 in British India. Historically, Common Law in England (Fleta, 1290 and Britton, 1300) was the first legislature to consider sodomy as a crime, the punishment for which was to burn alive such individual. In 1563, under Queen Elizabeth-I, the punishment changed to death by hanging, but it was not until 1861 that the death penalty was abolished. Sodomy, however, continued to be a crime in England until 1967 when the Sexual Offences Act, 1967, decriminalized the acts of sodomy between consenting adults. Fifty years since then, many countries have adapted laws to decriminalize nonheterosexual sexual relationship and some have even allowed same-sex marriage.
There are certain peculiarities of Section 377, IPC. First, it uses the expression “carnal intercourse” instead of the term “sexual intercourse” used in Section 375 (Rape) and Section 497 (Adultery). Second, no distinction regarding age is made in the section. Third, consent is no defense to an offence under Section 377. It has been contended that Section 377 is based on archaic religious moral and ethical standards which consider sex as merely a functional activity – for procreation purpose only. Thus, nonprocreative sex is viewed as “carnal,” i.e., for pleasure of senses.
Criminalization of a consensual and private same-sex conduct has been a weapon for police for abuse including locking-up, extortion, intimidation, harassment, payment of hush money, and forced sex. Apart from victimization of homosexuals, the section also perpetuates negative and discriminatory attitude toward same-sex relationship. As per estimates for the year 2006, in India, about 25 lakh men practice homosexuality. Section 377 has being argued to be a roadblock in identification, prevention, and treatment of those with sexually transmitted diseases, particularly the spread of human immunodeficiency virus (HIV).
| Psychosocial Aspects|| |
Psychological investigations in people with homosexual orientation do not show any objective impairment or dysfunction in judgment, stability, or vocational abilities. Mental health-related classification systems of the World Health Organization and American Psychiatric Association also do not deem homosexuality as a disorder. Regrettably, homosexuality continues to be stigmatized due to which nonheterosexual individuals experience chronic stress. Minority stress theory  hypothesizes three processes, in addition to universal stressors, that compromise the psychological well-being of nonheterosexual individuals: (1) institutionalized discrimination and directly experienced prejudices, (2) expectation of victimization/rejection and the efforts to avert them, and (3) internalization of stigma (internalized homophobia). Multiple studies across the world have shown increased rates of depression, anxiety disorders, alcohol use and abuse, suicidal ideation and attempts, and suicides as well as other comorbid psychiatric disorders in homosexual men. In a community-based study, nearly one-third of nonheterosexual individuals met diagnostic criteria for a mental disorder and/or reported suicide attempt.
In addition, there are sufficient data to show that a significant number of LGBT students regularly experience bullying at school; end up homeless; are more likely to contemplate or attempt suicide; and the LGBT community has elevated rates of poverty, food insecurity, and joblessness compared to the general population.
| Indian Scenario|| |
However, from India, there is a paucity of literature on the prevalence and the emotional problems faced by individuals with homosexual orientation, primarily due to lack of generation of systematic data. In their editorial of 2012, Rao and Jacob  had highlighted the lack of clear understanding and stand by the Indian mental health professionals on the issue of homosexuality and LGBT. However, in 2014, the Indian Psychiatric Society acknowledged that homosexuality is neither a mental illness nor a disease. More recently, the Indian Psychiatric Society in collaboration with the Bombay Psychiatric Society arranged the first conference in Mumbai on March 10, 2018, to address mental health issues faced by LGBT community, in which the President of Indian Psychiatric Society Dr. Ajit Bhide discussed the sexual identity issues of LGBT community. The aim of this conference was to “positively impact LGBT community by being better equipped to help them.”
| The Legal Aspects|| |
It was on July 8, 2001, that the police raided the Lucknow premises of Bharosa Trust, an nongovernmental organization working for LGBT rights; beat up; and arrested Mr. Arif Jafar, the Director and his four colleagues, and seized literature on gender, sexuality, safe sex, and a large amount of condoms as evidence of a gay sex racket being run from there (which was actually a training material on how to reach out to the vulnerable men having sex with men). The lower court denied bail to Mr. Jafar on the grounds of promoting homosexuality under Section 377 and criminal conspiracy, and he had to spend 47 days in custody before granted relief by Allahabad High Court.
From a legal standpoint, Section 377 IPC has been argued to impinge upon basic freedom guaranteed under the Constitution of India, including the Right to Equality (Article 14), nondiscrimination (Article 15), and Right to Life (Article 21). It is understandable that no aspect of an individual is more private than sexual relations and hence criminalization of sexual preference is a violation of right to privacy under Article 21. In 2007, a group of human right experts formed the Yogyakarta Principles with the idea of equal application of human rights law in relation to sexual orientation and gender equality. They defined sexual orientation as an individual's capacity for profound emotional, affectional, and sexual attraction to, and intimate and gender relation with, individuals of the different gender or the same gender or more than one gender. The principles recognize that human beings of all sexual orientation and gender identities are entitled to the full enjoyment of all human rights and that all persons are entitled to right to privacy, regardless of sexual orientation or gender identity.
When this section was challenged on in the honorable High Court of Delhi, the Union of India filed two separate affidavits, both of which contradicted each other. In an affidavit filed on behalf of the Under Secretary of Ministry of Health and Family Welfare, it was asserted that indeed this section prevented high-risk groups from revealing their same-sex behavior. This resulted in a large section of population with HIV/AIDS being unreachable, thereby pushing the cases of infection underground and making it difficult for public health workers to even access them. On the other hand, the Director (Judicial) in the Ministry of Home Affairs felt that Section 377 was required as it was the only tool for the prosecution of perpetrators of child sexual abuse. It further argued that the society has not yet shown readiness or willingness to accept homosexuality. After going through scientific and medical literatures, international law, and judgments of superior court, in a historic judgment, the honorable High Court of Delhi declared that Section 377 IPC does violate the right to dignity and privacy guaranteed under Article 21 of the constitution. It also pointed out that India is a party to the International Covenant on Civil and Political Rights, Article 17 of which states “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home and correspondence, not to unlawful attacks on his honour and reputation.”
However, this decision was overturned by a two-judge bench of the honorable Supreme Court of India in 2013 on the ground that it is the responsibility of the parliament to bring in a suitable law in order to enact changes in Section 377. It also observed that the section affected only a miniscule percentage of population and that, since 1860, only 200 individuals were prosecuted under it. With regard to misuse of the law, the Supreme Court observed that just because the police is misusing the law does not make the law invalid.
It must be noted that the challenge to the Delhi High Court verdict had not come from the Government of India but from private individuals. In fact, the government worked to pass the Protection of Children from Sexual Offenses Act, which it achieved in 2012. The Act criminalized any form of sexual assault on children up to the age of 18 years, thereby reducing the ambit of Section 377 to adults. Political will can also be noted in ministers' addresses. Speaking on the sidelines of the 17th International Conference on AIDS, the then Health Minister said that a proposal for decriminalization of Section 377 was under consideration by the Government of India. In June 2008, the then Prime Minister in his remarks on the release of the Report of the Commission on AIDS in Asia said “We should work to remove legislative barriers that hinder access of high-risk groups to services. The fact that many of the vulnerable social groups, be they sex workers or homosexuals or drug users, face great social prejudice has made the task of identifying AIDS victims and treating them very difficult.” A parliamentarian, Dr. Shashi Tharoor, also made two attempts to present a private member's bill with regard to decriminalization of homosexuality which was not taken up by the legislatures.
Last year, a nine-judge bench of the honorable Supreme Court headed by the Chief Justice, in its judgment regarding privacy as a fundamental right, declared that sexual orientation is an essential attribute of privacy and discrimination against an individual on the basis of sexual orientation which is deeply offensive to the dignity and self-worth of the individual. It further stated that miniscule fraction of the country's population that constitutes the LGBT community is not a sustainable basis to deny them the right to privacy. This remarkable judgment on privacy has provided the much-needed opportunity to revisit the honorable Supreme Court judgment of 2013.
On April 27, 2018, Mr. Arif Jafar, Director, Bharosa Trust, filed a writ petition in the honorable Supreme Court where he has sought scrapping of Section 377. His petition has received impetus as it has been tagged with similar pleas by prominent individuals, namely, journalist and noted LGBT activist Ashok Row Kavi; Executive Director of Lalit Group of Hotels Keshav Suri; businesswoman Ayesha Kapur; Bharatnatyam dancer and recipient of 2014 Sangeet Natak Akademi award Navtej Singh Johar; well-known journalist Sunil Mehra; noted chef, author, restaurateur, and TV personality Ritu Dalmia; and hotelier, writer, and historian Aman Nath. These combined petitions have been placed before a constitution bench, and the honorable Supreme Court has already issued notice to the Government of India, seeking its views on legalizing homosexuality.
| A Corollary…|| |
It may be recollected that section 309 IPC, which criminalizes suicide attempt, had also been a subject of debate in jurisprudence. Health-care professionals wanted the said clause to be removed as it hindered accesses to mental health services. The law enforcement agency however felt that in the absence of such a provision it shall be difficult to stop a person from attempting suicide for political/religious reasons. The Union of India re-enacted the Mental Health Care Act, 2017, in which Section 115 states “... any person who attempts suicide shall be presumed, unless proved otherwise, to have severe stress and shall not be tried and punished under the said code.” In effect, Section 309 IPC remains but prioritizes mental health needs of an individual over criminalization of the behavior. It would indeed be interesting to see how the judiciary and legislature deal with the much-debated decriminalization of Section 377.
To conclude, the authors would like to clarify that this editorial in no way is trying to put forward any assertions or take any stand with respect to the issues related to the sexual orientation and LGBT phenomena. On the other hand, we have attempted to provide an insight into not only the historical perspective related to this topic in India, the psychosocial issues, and related consequences, but most importantly, the complex interplay of moral, social, and legal dilemmas operating in our society that have gathered steam over the last two decades, reaching a crescendo point in the current year. The outcome of the Supreme Court judgment should serve as a guiding beacon for all mental health professionals in the times to come. “We wait with bated breaths…”!
| References|| |
High Court of Delhi. Naz Foundation Vs Government of NCT of Delhi and Others. WP (C) No 7455/2001 Decision; 2 July, 2009. Available from: http://www.delhihighcourt.nic.in
. [Last accessed on 2018 Apr 25].
National AIDS Control Society & National Institute of Medical Statistics (Indian Council of Medical Research). Technical Report: India HIV Estimates 2006. New Delhi: National AIDS Control Society & National Institute of Medical Statistics (Indian Council of Medical Research); 2006.
Rao TS, Jacob KS. Homosexuality and India. Indian J Psychiatry 2012;54:1-3.
Meyer IH. Prejudice, social stress, and mental health in lesbian, gay, and bisexual populations: Conceptual issues and research evidence. Psychol Bull 2003;129:674-97.
Russell ST, Fish JN. Mental health in lesbian, gay, bisexual, and transgender (LGBT) youth. Annu Rev Clin Psychol 2016;12:465-87.
Mustanski BS, Garofalo R, Emerson EM. Mental health disorders, psychological distress, and suicidality in a diverse sample of lesbian, gay, bisexual, and transgender youths. Am J Public Health 2010;100:2426-32.
Supreme Court of India. Suresh Kumar Koushal and another vs. Naz Foundation and Others. Civil Appeal No 10972/2013 Decision; 11 December, 2013. Available from: http://www.supremecourtofindia.nic.in/judgments
. [Last accessed on 2018 Apr 25].
Supreme Court of India. Justice K.S. Puttaswamy and another vs. union of India and Others. Civil Appeal No 494/2012 Decision; 24 August, 2017. Available from: http://www.supremecourtofindia.nic.in/judgments
. [Last accessed on 2018 Apr 25].