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Unnatural sciences

Medical opinion is irrelevant. Section 377 is an affront to constitutional morality


Updated: January 17, 2015 12:00:19 am

By: Danish Sheikh

In Shakespeare’s “As You Like It”, Orlando finds himself in a state of increasing debilitation, lovelorn as he is. Wracked by love, he seeks a cure for his malady. His disguised beloved, Rosalind, meanwhile delights in taunting him about his state. “Love is merely a madness”, she says, echoing a familiar sentiment, “and deserves as well a dark house and a whip as madmen do”. Love is, by many accounts, a bit of an affliction.

Of course, when Goa’s Sports and Youth Affairs Minister Ramesh Tawadkar announced a plan to provide medication for LGBT youth in the state, he wasn’t quite speaking from within this tradition. No, when the minister spoke of making the youth “normal”, he was echoing an obsession that segments of the medical establishment in the country have nurtured for a while.

Health professionals in many places continue to administer behavioural therapy, including electric shock treatment, psychiatric drugs and hormones in order to “cure” patients of homosexual desire. Interviews with psychiatrists in Bangalore, for instance, have highlighted their belief in the possibility of discovering the gene that determines sexual preference and scientifically suppressing it. Three years ago, I myself sat before a reputed psychiatrist in Indore who calmly gave me a multi-pronged diagnosis: “One, your homosexuality might be caused by hormonal imbalances. Two, it could be the result of a tumour in the brain. Or three, it could be caused by some other mental disorder.” Both him and Ramesh Tawadkar are, of course, distressingly incorrect.

The American Psychiatric Association removed homosexuality from its list of mental disorders back in 1973. The World Health Organisation followed suit in 1990, with its International Classification of Diseases. Following the Delhi High Court judgment decriminalising homosexuality in 2009, the Indian Journal of Psychiatry — the official publication of the Indian Psychiatric Society — took a stand on the issue in an editorial in 2012. The journal acknowledged homosexuality as a natural variant of human sexuality and denounced unethical and unwarranted attempts at conversion therapy. This was followed by an unequivocal statement on its website reiterating the same in 2014.

In December 2013, the Supreme Court went against this scientific consensus. Its judgment in Suresh Kumar Koushal and another vs Naz Foundation and others, which recriminalised homosexuality, implicitly endorsed, or at the least left completely unchallenged, the notion of homosexuality as pathology.

Paragraph 15 of the judgment lists the different intervenors who supported decriminalisation. The absence in the substantive portion of the judgment of the contents of the interventions filed by mental health professionals was notable. Thirteen affidavits of psychiatrists and doctors from across the country were brought together. They testified that homosexuality was not a mental disorder, that it was natural and normal, and that efforts at conversion therapy would prove to be damaging and futile. These arguments are left unchallenged. This is a silence that becomes significant when one notes how Koushal goes on to hold Section 377 of the Indian Penal Code as not violative of constitutional equality since it makes a distinction between carnal intercourse “against the order of nature” and other kinds of carnal intercourse. This conclusion effectively places homosexuality outside the domain of the natural, a position that is not supported by the evidence placed before the court.

Tawadkar’s statement was met with swift reprisal from the community and an almost instantaneous apology and clarification. While Tawadkar himself said he was referring to sexually abused youth (who don’t exactly need “normalising” either), Goa Chief Minister Laxmikant Parsekar took the route of unconditional retraction, even maintaining that “homosexuality is a natural gift”. This brings us right back to the order-of-nature question — clearly it would be difficult to reconcile this “natural gift” with a legal framework that places it outside the order of nature.

In many ways, the natural-unnatural debate is a fig leaf — the relevant framework, as the Delhi High Court had established back in 2009, is whether the law passes the test of constitutional morality. Notions of right and wrong as embodied by popular morality are constantly in flux; if there is a bedrock, it is our constitutional commitment to justice, liberty, equality and fraternity. Regardless of what scientific opinion may have had to say on the matter, sexuality comes down to a fundamental core of individual identity. Any serious commitment to constitutional morality would then see the existence of Section 377 as deeply contradictory. If there’s been anything productive emerging from Tawadkar’s gaffe, it was the televised statement of BJP spokesperson Shaina NC expressing the government’s commitment to decriminalising homosexuality.

It is crucial that the government proceed on this front, without falling back on the claim that the matter is sub judice. While it is true that a curative petition is pending before the Supreme Court, a positive ruling would simply reiterate a point that the government has already seemingly conceded and would, at most, result in a reading down of the law. The real malady is the continued existence of this section in our statute books, and the only cure, a complete repeal.

The writer is a lawyer at Alternative Law Forum, Bangalore
express@expressinida.com

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