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
