September 2020 will mark the two-year anniversary of decriminalization of homosexuality in India. This progressive realisation of human rights was achieved by the Supreme Court of India (SC) in the landmark case of Navtej Singh Johar v Union of India and has since then been celebrated as a win against homophobia – a colonial inheritance which plagued much of post-independence India to date . However, the recent suicide of a queer girl has been suspected to be connected with forceful administration of ‘conversion therapy’ – a discredited pseudo-psychotherapy used for converting an individual’s sexual orientation. This has evinced persistence of heteronormative narratives in India.
The suicide caused unrest and to disregard such practices, which take a toll on the mental health and general well-being of the subject. The Indian Association of Clinical Psychologists, on May 21, 2020, passed a position statement. However, it lacked any legal mandate to deter private entities from non-compliance as no legislative sanctions were imposed.
In this article, we try to analyse the possibility of a Parliamentary anti-conversion therapy law to safeguard the rights of sexual minorities. Alternatively, we further try to explore the manner in which the Judiciary itself can emerge as a custodian of rights of sexual minorities.
Anti-Conversion Therapy Bill: An unlikelihood in India?
Globally, anti-conversion therapy laws are gaining momentum wherein Canada, the US and the UK. Brazil, Ecuador and Germany lead by example by already enacting such laws. Drawing from this outlook would be beneficial for India. However, societal patronage of these therapies creates an obstacle for the government to pass an anti-conversion therapy law owing to fear of being considered unwelcome by a large voter base. Previously, such voter-appeasement caused the government to remain idle over decriminalization of homosexuality. Similarly, in present times, the government by its tacit stand has virtually given its approval to conversion therapies. Such obstacles have also caused the opposition to keep lull, making hopes of this bill’s realization bleak.
The issues of sexual minorities have a tendency to be met with passiveness from the government. Amidst such stalemates caused due to ineffective representation, it becomes necessary, firstly, to examine the constitutional scheme and its application to safeguard the interests of the sexual minorities and secondly, to also recognise the role of the Judiciary to provide these safeguards and give effective representation of the rights of sexual minorities.
Analysis on Horizontal Application of Fundamental Rights concerning Sexual Orientation
Traditionally, fundamental rights under Part III of the Constitution are enforceable only against the State. Enforcement of these rights only against the State, exclusive of non-state entities is known as ‘vertical application’ of fundamental rights. To overcome such non-enforcement of fundamental rights against private entities, ‘horizontal application of fundamental rights’ may be resorted to. This concept follows that fundamental rights are allowed to permeate private law. Consequently, even private parties can be held liable for any action violating fundamental rights.
Notably, Article 19(1)(a) of the Indian Constitution guarantees the right of self-expression, which can only be restricted on reasonable grounds as provided under Article 19(2) such as protecting the sovereignty and integrity of India, the security of the state, relations with foreign states, public order, decency or morality. The SC, while decriminalizing homosexuality in Navtej Singh Johar v Union of India, recognized that right of self-expression extends to sexual orientation, implying a prima facie unfairness in criminalizing intimacy among sexual minorities. Hence coercion to undergo conversion therapy chokes down the right of self-expression, which has been granted to an individual.
Furthermore, the ambit of Right to privacy was extended to sexual orientations in the landmark case of Justice K.S.Puttaswamy(Retd.) v Union of India, wherein it was iterated that the Right to privacy calls for preservation of sexual orientation of an individual and that it cannot be lost or surrendered merely because the individual is in a public place. Therefore, a person whose sexual orientation makes him fall under sexual minorities should be guaranteed protection from conversion therapy under the right to privacy.
It is self-evident that conversion therapy violates the aforementioned rights to its core, however the rights granted under Article 19(1)(a) only protect individuals against the actions of the state, that is, vertical application of fundamental rights and precludes liability of private entities. Whereas, the rights guaranteed under Article 21 as fundamental rights in India can grant protection against private entities but such horizontal application has not been observed in the context of sexual orientation. Hence, the fundamental rights in the context of sexual orientation provided under Article 19(1)(a) and Article 21 of the Indian Constitution, can only be enforced against government facilities and not against private entities.
Although Indian Courts adhere to the general rule of enforcing fundamental rights only against the State, there have been discussions on the horizontal application of right to privacy against both state and non-state actors specifically with regards to right to privacy. However, it has not conclusively been determined whether such application extends to the issue of safeguarding one’s sexual orientation as well.
Dimensions of Judicial Activism in India
Another way to prevent such conversions is through Judicial Activism, under Article 32, 141 and 142 of the Indian Constitution. These Articles permit the SC to fulfil its obligation as a guarantor of fundamental rights, by taking upon itself the task of formulating guidelines having the force of law to make up for inadequacies in the existing legal framework, until the Parliament enacts a formal legislation to do away with the lacunae.
Previously, this was done by the SC in the case of Vishaka v State of Rajasthan. Here, the SC found the issue of sexual harassment at work place unattended by any law. To cure these lacunae, SC observed that guidelines on matters of sexual harassment at workplace can be extrapolated from Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) as India is a signatory to the convention, provided that the scheme of CEDAW does not contravene with fundamental rights provided under the Indian Constitution. On finding CEDAW consistent with fundamental rights, the SC gave its nod to draft guidelines with respect to sexual harassment at workplace which translated into the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 enacted by the Parliament. These guidelines serve as a successful model of judicial legislation by which fundamental rights were secured through judicial process, even making private entities accountable.
Similarly, India is a signatory to Yogyakarta Principles – international standards of state responsibility to protect, respect and fulfil basic human rights of all people regardless of their gender identity. Previously, in the landmark case of National Legal Services Authority v Union of India and Others, , these principles were read harmoniously with Fundamental Rights, giving the latter an expansive interpretation thus, guaranteeing constitutional safeguards to the transgender community.
Given the violation of the community’s rights and absence of an appropriate law, the SC can ensure a wider enforcement of these Principles encompassing all sexual minorities. In the past, the SC on various occasions has appreciated individual and collective fundamental rights through the constitutional scheme of judicial activism. This makes it a powerful tool against the State’s inaction which is causing violation of an entire community’s rights go unnoticed in India despite having gained universal recognition. It effectively promotes furtherance of constitutional guarantees available to sexual minorities in India.
Administration of conversion therapies can be curbed by judicial legislation when the matter appears before the SC as a writ petition or when the SC invokes its epistolary jurisdiction or takes suo moto cognizance of the matter. Functions of the SC rest upon the edifice of the Indian constitutional democracy. Therefore, where the minorities are outvoted by the majority, the onus of protecting their basic rights lies on the SC, so as to achieve the goal of a pluralistic and inclusive democracy.
Conclusion
The SC in the landmark case of Navtej Singh Johar, while recognizing the ‘transformative nature’ of the Indian Constitution, introduced the Doctrine of Progressive Realisation of Rights, in order to advocate the realization of new rights congruent with changing times. However, this an attempt is mere tokenism if the promise of constitutional safeguards to sexual minorities fails to address lacunae in the existing legal framework, thereby allowing these minorities to remain vulnerable. Hence, in this scenario where the State machinery (driven by populism) fails to eliminate these loopholes and tends to inhibit any acts leading to safeguarding rights of sexual minorities in its laws and policies, the judiciary needs to protect the cause. As an eminent jurist of constitutional law, John Hart Ely suggested in his seminal works, it is the duty of the Judiciary to intervene and ensure a wholly participative and representative democracy. Judicial process has the ability as well as authority to give voice to the under-represented communities. Judicial legislation not only has the potential to fill the vacuum in law, but also to infuse life-blood into the process for empowering sexual minorities.
The authors are pursuing LLB (Honours) from Gujarat National Law University, India.