Decriminalization of Section 377 IPC provides access of health care facility to LGBT

Decriminalization of Section 377 IPC provides access of health care facility to LGBT

Dr KK Aggarwal and Ira Gupta

Vide judgment dated 06.09.2018, the Hon’ble 5 Judges Bench of the Supreme Court of India has held that Section 377 IPC, so far as it penalizes any consensual sexual relationship between two adults, be it homosexuals (man and a man), heterosexuals (man and a woman) or lesbians (woman and a woman), cannot be regarded as un-constitutional.

However, if anyone, both a man and a woman, engages in any kind of sexual activity with an animal, the said aspect of Section 377 is un-constitutional and it shall remain a penal offence under Section 377 IPC. Any act of the description covered under Section 377 IPC done between two individuals without the consent of any one of them would invite penal liability under Section 377 IPC.

Section 377, refers to “Unnatural Offences”. Section 377 reads as under:

“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 ten years, and shall also be liable to fine.

Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”

The essential ingredient required to constitute an offence under Section 377 is “carnal intercourse against the order of nature”, which is punishable with life imprisonment, or imprisonment of either description up to ten years. Section 377 applies irrespective of gender, age, or consent.  

The expression ‘carnal intercourse’ used in Section 377 is distinct from ‘sexual intercourse’ which appears in Sections 375 and 497 of the IPC. The phrase “carnal intercourse against the order of nature” is not defined by Section 377, or in the Code.

 The term ‘carnal’ has been the subject matter of judicial interpretation in various decisions.

According to the New International Webster’s Comprehensive Dictionary of the English Language, ‘carnal’ means:

“1.Pertaining to the fleshly nature or to bodily appetites.

2. Sensual; sexual.

3. Pertaining to the flesh or to the body; not spiritual; hence worldly.”

In the early 20th century, there were many psychiatric theories, which regarded homosexuality as a form of psychopathology or developmental arrest. It was believed that normal development resulted in a child growing up to be a heterosexual adult, and that homosexuality was but a state of arrested development. Homosexuality was treated as a disorder or mental illness, which was meted out with social ostracism and revulsion.

The treatment of homosexuality as a disorder has serious consequences on the mental health and well-being of LGBT persons. The mental health of citizens “growing up in a culture that devalues and silences same-sex desire” is severely impacted.

Medical and scientific authority has now established that consensual same sex conduct is not against the order of nature and that homosexuality is natural and a normal variant of sexuality. 

Sexual orientation is an innate attribute of one’s identity, and cannot be altered. Sexual orientation is not a matter of choice. It manifests in early adolescence. Homosexuality is a natural variant of human sexuality.

The International Classification of Diseases (ICD-10) by the World Health Organisation is listed as an internationally accepted medical standard and does not consider non-peno-vaginal sex between consenting adults either a mental disorder or an illness.

Parliament has provided legislative acknowledgment of this global consensus through the enactment of the Mental Healthcare Act, 2017. Section 3 of the Act mandates that mental illness is to be determined in accordance with ‘nationally’ or ‘internationally’ accepted medical standards.

The present definition of mental illness in the 2017 Parliamentary statute makes it clear that homosexuality is not considered to be a mental illness. This is a major advance in our law which has been recognized by the Parliament itself. Further, this is buttressed by Section 3 of the Act which reads as follows:

“3. Determination of Mental Illness. 

(1) Mental illness shall be determined in accordance with such nationally or internationally accepted medical standards (including the latest edition of the International Classification of Disease of the World Health Organisation) as may be notified by the Central Government.

(2) No person or authority shall classify a person as a person with mental illness, except for purposes directly relating to the treatment of the mental illness or in other matters as covered under this Act or any other law for the time being in force.

(3) Mental illness of a person shall not be determined on the basis of––

(a) political, economic or social status or membership of a cultural, racial or religious group, or for any other reason not directly relevant to mental health status of the person;

(b) non-conformity with moral, social, cultural, work or political values or religious beliefs prevailing in a person’s community.

(4) Past treatment or hospitalisation in a mental health establishment though relevant, shall not by itself justify any present or future determination of the person’s mental illness.

(5) The determination of a person’s mental illness shall alone not imply or be taken to mean that the person is of unsound mind unless he has been declared as such by a competent court.”

This Section is parliamentary recognition of the fact that gay persons together with other persons are liable to be affected with mental illness, and shall be treated as equal to the other persons with such illness as there is to be no discrimination on the basis of sexual orientation. 

As early as 1948, the World Health Organization (“WHO”) defined the term ‘health’ broadly to mean “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.” Even today, for a significant number of Indian citizens this standard of health remains an elusive aspiration. Of relevance to the present case, a particular class of citizens is denied the benefits of this constitutional enunciation of the right to health because of their most intimate sexual choices.

The term ‘sexual health’ was first defined in a 1975 WHO Technical Report series as “the integration of the somatic, emotional, intellectual and social aspects of sexual being, in ways that are positively enriching and that enhance personality, communication and love.” The WHO’s current working definition of sexual health is as follows:

“…a state of physical, emotional, mental and social well-being in relation to sexuality; it is not merely the absence of disease, dysfunction or infirmity. Sexual health requires a positive and respectful approach to sexuality and sexual relationships, as well as the possibility of having pleasurable and safe sexual experiences, free of coercion, discrimination and violence. For sexual health to be attained and maintained, the sexual rights of all persons must be respected, protected and fulfilled.”

The right to health is not simply the right not to be unwell, but rather the right to be well. It encompasses not just the absence of disease or infirmity, but “complete physical, mental and social well-being”, and includes both freedoms such as the right to control one’s health and body and to be free from interference (for instance, from non-consensual medical treatment and experimentation), and entitlements such as the right to a system of healthcare that gives everyone an equal opportunity to enjoy the highest attainable level of health.

Article 21 does not impose upon the State only negative obligations not to act in such a way as to interfere with the right to health. The Hon’ble Supreme Court also has the power to impose positive obligations upon the State to take measures to provide adequate resources or access to treatment facilities to secure effective enjoyment of the right to health.

A study of sexuality and its relationship to the right to health in South Africa points to several other studies that suggest a negative correlation between sexual orientation-based discrimination and the right to health:

“For example, in a Canadian study, Brotman and colleagues found that being open about their sexual orientation in health care settings contributed to experiences of discrimination for lesbian, gay, and bisexual people.”

“Lane and colleagues interviewed men who have sex with men in Soweto, and revealed that all men who disclosed their sexual orientation at public health facilities had experienced some form of discrimination. Such discrimination [‘ranging from verbal abuse to denial of care’199], and also the anticipation thereof, leads to delays when seeking sexual health services such as HIV counseling and testing.”

Alexandra Muller describes the story of two individuals who experienced such discrimination. T, a gay man, broke both his arms while fleeing from a group of people that attacked him because of his sexuality. At the hospital, the staff learned about T’s sexual orientation, and pejoratively discussed it in his presence. He also had to endure “a local prayer group that visited the ward daily to provide spiritual support to patients” which “prayed at his bedside to rectify his “devious” sexuality. When he requested that they leave, or that he be transferred to another ward, the nurses did not intervene, and the prayer group visited regularly to continue to recite their homophobic prayers. T did not file an official complaint, fearing future ramifications in accessing care. Following his discharge, he decided not to return for follow up appointments and had his casts removed at another facility.

Another woman, P, who had been with her female partner for three years, wanted to get tested for HIV. The nurse at the hospital asked certain questions to discern potential risk behaviours. When asked why she did not use condoms or contraception, P revealed that she did not need to on account of her sexuality. The nurse immediately exclaimed that P was not at risk for HIV, and that she should “go home and not waste her time any longer.” P has not attempted to have another HIV test since.

These examples are illustrative of a wider issue: individuals across the world are denied access to equal health care on the basis of their sexual orientation. That people are intimidated or blatantly denied health care access on a discriminatory basis around the world proves that this issue is not simply an ideological tussle playing out in classrooms and courtrooms, but an issue detrimentally affecting individuals on the ground level and violating their rights including the right to health.

The right to health is one of the major rights at stake in the struggle for equality amongst gender and sexual minorities:

“The right to physical and mental health is at conflict with discriminatory policies and practices, some physicians' homophobia, the lack of adequate training for health care personnel regarding sexual orientation issues or the general assumption that patients are heterosexuals.”

While the enumeration of the right to equal health care is crucial, an individual’s sexual health is also equally significant to holistic well-being. A healthy sex life is integral to an individual’s physical and mental health, regardless of whom an individual is attracted to. Criminalising certain sexual acts, thereby shunning them from the mainstream discourse, would invariably lead to situations of unsafe sex, coercion, and a lack of sound medical advice and sexual education, if any at all.

Laws that criminalize same-sex intercourse create social barriers to accessing health care, and curb the effective prevention and treatment of HIV/AIDS.

Section 377 had a significant detrimental impact on the right to health of those persons who are susceptible to contracting HIV – men who have sex with men (“MSM”) 208 and transgender persons.

Section 377 IPC had had far-reaching consequences for this “key population”, pushing them out of the public health system. MSM and transgender persons may not approach State health care providers for fear of being prosecuted for engaging in criminalized intercourse. Studies show that it is the stigma attached to these individuals that contributes to increased sexual risk behaviour and/or decreased use of HIV prevention services.

In 2017, Parliament enacted the HIV (Prevention and Control) Act, to provide for the prevention and control of the spread of HIV/AIDS and for the protection of the human rights of persons affected. Parliament recognized the importance of prevention interventions for vulnerable groups including MSMs.

Section 22 of this Act provides for protection against criminal sanctions as well as any civil liability arising out of promoting actions or practices or “any strategy or mechanism or technique” undertaken for reducing the risk of HIV transmission. Illustrations (a) and (b) to Section 22 read as follows:

“(a) A supplies condoms to B who is a sex worker or to C, who is a client of B. Neither A nor B nor C can be held criminally or civilly liable for such actions or be prohibited, impeded, restricted or prevented from implementing or using the strategy.

(b) M carries on an intervention project on HIV or AIDS and sexual health information, education and counselling for men, who have sex with men, provides safer sex information, material and condoms to N, who has sex with other men. Neither M nor N can be held criminally or civilly liable for such actions or be prohibited, impeded, restricted or prevented from implementing or using the intervention.”

Persons who engage in anal or oral intercourse face significant sexual health risks due to the operation of Section 377. Prevalence rates of HIV are high, particularly among men who have sex with men. Discrimination, stigma and a lack of knowledge on the part of many health care providers means that these individuals often cannot and do not access the health care they need. In order to promote sexual health and reduce HIV transmission among LGBT individuals, it is imperative that the availability, effectiveness, and quality of health services to the LGBT community be significantly improved.

The repercussions of prejudice, stigma and discrimination continue to impact the psychological well-being of individuals impacted by Section 377.

Mental health professionals can take this change in the law as an opportunity to re-examine their own views of homosexuality.

Counselling practices will have to focus on providing support to homosexual clients to become comfortable with who they are and get on with their lives, rather than motivating them for change. Instead of trying to cure something that isn’t even a disease or illness, the counsellors have to adopt a more progressive view that reflects the changed medical position and changing societal values.

There is not only a need for special skills of counsellors, but also heightened sensitivity and understanding of LGBT lives.

Medical practice must share the responsibility to help individuals, families, workplaces and educational and other institutions to understand sexuality completely in order to facilitate the creation of a society free from discrimination where LGBT individuals like all other citizens are treated with equal standards of respect and value for human rights.

Dr KK Aggarwal

Padma Shri Awardee

Vice President CMAAO

Group Editor-in-Chief IJCP Publications

President Heart Care Foundation of India

Immediate Past National President IMA