You Should Know What 13 Mental Health Experts Told The SC About Section 377

By Chetan Gnanesh:

In light of the Mental Health Awareness Week, I reflected upon the stand of Indian mental health professionals against the Supreme Court 2013 judgement upholding Section 377 thus ruling against the rights of LGBT citizens in India. This resulted from a petition filed by religious and ‘intolerant’ establishments against the Delhi High Court judgement which took down Section 377 in July 2009.

The respondents, of course, were mainly the Naz Foundation who had fought ardently in the High Court against the law in the first place. Besides them, a number of groups intervened in support of the High Court judgement. Needless to mention, the petitioners in the Supreme Court (who were against the High Court judgement) made illogical, unreasonable points as the case took its course. In December 2013 the Supreme Court ruled in favour of these petitioners thus overruling the High Court decision and re-criminalising same-sex coitus in modern democratic India.

During this case, a very strange event took course when the Supreme Court cut short the counsel appearing on behalf of a very significant group of interveners. This group consisted of 13 mental health professionals, highly sought after and reputed ones, from different parts of the country.

This group was significant because it had valid reasons to prove the unconstitutionality of Section 377 while reproaching illogical claims made by the petitioners. In this group of mental health professionals, 10 out of 13 of whom were leading psychiatrists who have come across LGBT individuals time and again, and were arguably, better judges of the mental health risks the discriminatory law subjected those individuals to.

The first of these interveners was the outspoken Dr Shekhar Seshadri of the National Institute of Mental Health and Neurosciences (NIMHANS), in Bangalore, who is one of its leading child and adolescent psychiatrists. It is said that he has assisted many LGBT individuals to embrace their sexual orientation or gender identity.

Another intervener was the internationally renowned psychiatrist, Vikram Patel – author of the book “Where There is No Psychiatrist”, a highly influential figure in global mental health and the co-founder of the award-winning NGO Sangath in Goa. Two years after his intervention in the Supreme Court, he was listed by TIME magazine as one of 100 most influential people in our world. Clearly, in 2013, he wasn’t influential enough to the Supreme Court.

Yet another intervener was Dr Alok Sarin, who is a member of the Indian Medical Association and the government-established Mental Health Policy Group. He wrote reproachfully in the Indian Journal of Medical Ethics, dissenting from the Supreme Court judgement, expressing annoyance in the way the Supreme Court “summarily brushed aside” the medical opinion offered by his group of professionals. Other interveners comprised of psychiatrists and psychotherapists based in Kolkata, Pune and Mumbai – some of whom are members of the Indian Psychiatric Society – with experiences in dealing with a large number of LGBT patients.

They argued that homosexuality was a natural variant of human sexuality and not a mental disorder or disease. Citing latest scientific data, they averred that homosexuality was most likely “caused by a combination of genetic and prenatal environmental factors” and that it “cannot ‘spread’ from one to another.” More significantly, they argued that homosexuality was not ‘unnatural,’ citing documentation of such behaviour among over five hundred species of the animal kingdom, particularly in bonobos.

Reaffirming credible researches conducted in the turn of this century, they suggested that an estimated 5-7% of our population may be considered non-heterosexual. This implies that between 6.6 and 9.2 crores (66 and 92 million) Indians are not heterosexual. Considering the lower figure, it is more than the entire population of the UK. Add Australia to that number, and it is still a few millions shy of the higher figure! This estimation is considered valid across the world however much our government disclaims it. (In 2009, the government submitted a report that said that the male gay population in India was 0.1% when, in fact, 0.1% of the country’s population may just be the gay men of Mumbai.)

They urged that homosexual individuals had no choice in their attraction to members of their own gender – “Just as one cannot choose to be homosexual one cannot choose to abandon homosexual desire.” I ask, why does it become the law makers’ business to keep us from expressing our desires when we do so only to people who reciprocate them? Celibate as some of our leaders may be, what our country needs is a step-change in its attitude toward sex. This is the true meaning of progress. Sex makes me happy. Not having it makes me cranky. Being happy makes me productive, being cranky makes me lazy. See, Parliament, see the science? Huh, Supreme Court?

The interveners reiterated this by arguing that criminalising consensual same-sex intercourse causes “enormous mental and psychological distress to LGBT persons placing them at a significantly higher risk of psychiatric morbidity and fatal outcomes like suicide.” They further state that mental health problems in homosexual persons are not inherent, rubbishing some of the petitioners’ claims and that instead, they result from heteronormativity, indignity and societal disapproval – all three, as they rightly point out, perpetrated by Section 377. They added that Section 377 forces persons of the LGBT community to lead ‘closeted’ lives thus concealing their identities which, they further stated, has deleterious effects on their mental health.

They threw light on recurring cases of double suicide among same-sex couples – especially female. In its unjust judgement, the Supreme Court stated that two people may identify as homosexual or bisexual but may not have sexual intercourse or enjoy such legal rights as heterosexual couples. In my opinion, that judgement is discriminatory and pathetic!

The puritanical approach which disregards sex at the heart of a person’s identity is of an absurd kind since the core of most ‘sexual’ orientations is the act of sex itself! The Delhi High Court acknowledged this in 2009. In 2013, the Supreme Court failed to.

In concluding their arguments, the interveners submitted that Section 377 “violates the constitutional protection embodied in Articles 14 and 21,” and that it is unreasonable that the Section targets individuals for a characteristic “that is innate, unchangeable and a natural variant of human sexuality.” They upheld the Delhi High Court judgement that only constitutional morality, and not public morality, could be a valid ground to restrict fundamental rights under our Constitution.

In fact, in 2016 in India, it is not even public morality that demands certain communities of our society be restricted of their fundamental rights. In fact, the public sympathises with us. In 2016, it is solely religious morality which pushes to discriminate against us when, in fact, by law, religion must take no stand to dictate the Constitution of a supposedly secular nation.

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Image source: Adnan Abidi/REUTERS, Arun Sharma/Hindustan Times
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