Readers who read Justice Verma's take on the Naz Foundation case will also be interested in a historical connection going back almost a decade. The NAZ case was born out of the NHRC rejecting a gay man's plea against psychiatric abuse by aversion therapy administered to him, which left him devastated. The NHRC reasoned that it couldn't help him, and cited s. 377. This is what inspired Naz Foundation to challenge the section in the Delhi High Court. I think this deserves mention not merely for the immediate context of 377, but the larger context of the appropriate role of the NHRC. In particular, the relationship of the NHRC with the rest of the state apparatus is topical, given the controversy surrounding its recent report on the Batla House 'encounter' case, where it merely endorsed the police's version of the story without making any attempts to corroborate it. [See also, this previous post] On the other hand, the NHRC also has a sterling record of standing up to state institutions implicated in the violence in Gujarat in 2002 (under Justice Verma himself).
The particular history connecting NHRC and the Naz Foundation case is well documented in a book called 'Queering the Pitch' published by the Alternative Law Forum. Relevant excerpts are quoted below:
The NHRC Case
... The wider definition of human rights in The Protection of Human Rights Act seemed to indicate that the NHRC would be more hospitable terrain when it came to protecting the human rights of queer people.
It is in this context that a petition was filed in the case of a patient at the All India Institute For Medical Sciences (AIIMS), who had been undergoing treatment by a doctor in the psy-chiatry department for four years to cure him of his homosexuality. The patient went to Naz Foundation India (an organization working on MSM issues), and the coordinator of the MSM project, Shaleen Rakesh, filed a complaint with the NHRC alleging psychiatric abuse.
The patient himself noted that “[m]en who are confused about their sexuality need to be given the opportunity to go back to heterosexuality. I have never been confused but was nev-ertheless told that I had to be ‘cured’ of my homosexuality. The doctor put me on drugs, which I had been taking for four years.” The treatment reportedly involved two components: counselling therapy and drugs. During counselling therapy sessions, the doctor explicitly told the patient that he needed to curb his homosexual fantasies, as well as start making women rather than men the objects of his desire. The doctor also administered drugs intended to change the sexual orientation of the patient, providing loose drugs from his stock rather than disclosing the identity of the drugs through formal prescription. The patient reported experiencing serious emotional and psychological trauma and damage, as well as a feeling of personal violation.
The moment the petition was filed, there was a wide mobilization of the sexuality minority community and a number of letters were written to the NHRC urging it to protect the rights of the community. The NHRC, after admitting the complaint (#3920), finally chose to reject it. Informal conversations with the Chairman of the NHRC revealed that the Chairman believed that until Sec 377 was repealed nothing could be done and in any case most of the organizations were foreign-funded, without any real grassroots support. (See Annexure I.) According to another NHRC source, “homosexuality is an offence under IPC, isn’t it? So, do you want us to take cognisance of something that is an offence?”
What is clear from the above comments is that there is a significant lack of understanding of gay people as human beings whose lives encompass a complexity beyond the mere fact of a certain kind of sexual act. There seems to be an easy collapsing of the category of sexual act, sexual identity and sexual orientation, with sexual acts defining identity and orientation. (pp. 55-56)
Annexure I: Letter to the NHRC Regarding the Dismissal of Complaint #3920 on Medical Treatment of Homosexuality
Dear (former) C.J. Verma,
We genuinely appreciate the stand of the NHRC that caste discrimination is equivalent to racial discrimination and thereby clearly establishing that the NHRC is a protector of human rights regardless of political concerns. While congratulations are in order with respect to the above decision we are deeply shocked and disheartened by another decision arrived at by the NHRC. This is with reference to the decision of the NHRC to dismiss the complaint of the person who was subject to aversion therapy. Regarding this matter we did have a chance to have a short dialogue with you while you were visiting the National Law School, Bangalore for the Seminar on 'Caste and Racial Discrimination’ held on the 10th of August, 2001.
We asked you about the decision in complaint(No. 3920), which was a case regarding treatment of homosexuality as a disease where a homosexual patient was allegedly adminis-tered aversion therapy (which includes administration of electric shocks along with showing a person homo-erotic pictures to ‘convert’ him to heterosexuality). The patient then complained to an organization NAZ Foundation which then brought the matter before the NHRC. The complaint, though admitted by the NHRC was later rejected. We do know that the complaint received public attention and a number of concerned citizens including gay, lesbian, bisexual people wrote to you. However, in its wisdom the NHRC chose to reject the same.
In our conversation, the grounds you stated which justified the rejection were as follows:
To talk of homosexual rights is okay in other countries but there was little you could do when the law in India, Sec 377 was against it. You advised that one should strive to get rid of the law but nothing could be done till it was repealed. This opinion seems to be buttressed by other reported opinions within the NHRC. As one source within the NHRC put it, “homosexuality is an offence under IPC, isn’t it? So, do you want us to take cognizance of something that is an offence?” (The Pioneer, Thursday, August 2, 2001)
You also mentioned that the entire campaign for the rights of sexual minorities is run and funded by international organizations and that there is no grassroots support or demand for such rights.
It is submitted that none of the above grounds are sound justifications for the rejection of the complaint. The reasons are mentioned hereunder:
Firstly, s. 377 of the IPC does not criminalize homosexuality. It only criminalizes 'carnal intercourse against the order of nature', which has been interpreted to include oral sex, anal sex and some other forms of sex. These sexual practices are neither exclusive to the homosexual community nor definitive of what it means to be a homosexual. It is beyond our comprehension how a legislation which particularly targets certain kinds of sexual acts can be used as a justification for not looking into the human rights violations against a gay person. Is it your understanding that being gay is about engaging in those forms of sex alone or being heterosexual means you do not engage in oral/anal sex? What is clear from the above comments is that there is significant lack of understanding of gay people as human beings whose lives encompass a complexity which goes beyond the mere fact of a certain kind of sexual act.
Secondly, the statute from which the NHRC derives its mandate, i.e. the Protection of Human Rights Act, defines a 'human right' as 'rights guaranteed under the Constitution of India or International Covenants, viz. the ICCPR and the ICSER'. The NHRC mandate is therefore not limited by mere statutory law. Hence the existence of an offensive colonial law, Sec 377 of the IPC ( which the colonial power has finally removed) , cannot trump the right to life ( including privacy) under Art 21 , the right to freedom of expression under Art 19 and the right to equality under Art 14. Thus the argument that a statute criminalizes a particular conduct need not necessarily take it out from the purview of human rights. Apart from being legally unsound, the argument that since law forbids something, it cannot be a human right does not hold waters even logically. If we go by it, then nothing that was done in Nazi Germany shall be a human right violation since it had the sanction of the law! (As a matter of fact, homosexuals were one of the social groups along with Jews, communists and other kinds of dissenters who were targeted in Nazi Germany for persecution).
Further since the two covenants are explicitly invoked by the above mentioned Act, it is appropriate to mention that in Toonen v. Australia, Nicholas Toonen a gay rights activist resident in the Australian state of Tasmania challenged the anti sodomy law as violative of Art 2 (1) Art 17 and Art 26 of the ICCPR , before the Human Rights Committee after exhausting all local remedies.
The Human Rights Committee in its interpretation of the ICCPR has held that the anti sodomy statute did violate Toonen’s right to privacy guaranteed under Art 17. The Committee also held that the reference to the word sex in Art 2(1) and Art 26 is to be taken as including sexual orientation .It held that Art 2(1) was also violated but refused to rule on if Art 26 , the non discrimination clause was violated.
Since India is a party to the ICCPR and human rights as defined in the Protection of Human Rights Act includes the covenant(ICCPR), the interpretation of the rights of those discriminated against on the basis of their sexual orientation needs to be recognized by the NHRC which should if it feels that the barrier to admitting the rights of sexuality minorities is Sec 377 , suo moto challenge the law in the Supreme Court itself , rather than use the existence of the law as an excuse for denying gay lesbian people their rights. To buttress this point further, even the 272nd report of the Law Commission of India has recommended that such an archaic provision be deleted.
Thirdly it comes as a shock to those of us who saw the NHRC as guardian of the human rights of all people in India to understand that the NHRC feels that it can do nothing in the case of a patient at the All India Institute of Medical Sciences (AIIMS) who received almost four years of treatment aimed at the conversion of his homosexuality and was seriously psychiatrically abused. The treatment reportedly involved two components: counseling therapy and drugs. During counseling therapy sessions, the doctor explicitly told the patient that he needed to curb his homosexual fantasies, as well as start making women rather than men the objects of his desire. The doctor also administered drugs intended to change the sexual orientation of the patient, providing loose drugs from his stock rather than disclosing the identity of the drug through formal prescription. The patient reports experiencing serious emotional and psychological trauma and damage, as well as a feeling of personal violation, due to these actions.
This complaint 3920 illustrates the necessity for formal standards to prevent discrimination and abuse on the basis of sexual orientation in medical and psychiatric care. There is no doubt that in the absence of these standards, physicians cannot be held accountable for such human rights violations against lesbian, gay, bisexual, and transgender individuals occurring in psychiatric and medical contexts throughout India. This case also underscores the urgent need for explicit laws preventing discrimination on the basis of sexual orientation to address abuse and inequalities in all sectors of society including the medical establishment.
However this opportunity to address the very real sense of abuse that gay, lesbian bisexual people in India face , was passed by and the medical profession has been allowed to continue its outdated practices of prescribing drugs and trying to change the sexual orientation of a person.
Fourthly it is disheartening to see the stark dissimilarity in the stand taken by the NHRC and the South African Human Rights Commission on the issue of homosexuality. The South African Human Rights Commission acting in coordination with the National Coalition for Gay and Lesbian Equality moved to the highest Constitutional Court in South Africa and got the provision of a similar nature to s. 377 of the IPC struck down as violative of basic human rights of equality, privacy and dignity guaranteed by the South African Constitution. By contrast the NHRC even refuses to acknowledge that the right to choose one's sexual ori-entation is a basic human right.
Finally we would like to make the point that the key to the decision of the NHRC really lies in what you referred to in your second point ie that ‘the entire campaign for the rights of sexual minorities is run and funded by international organizations and that there is no grassroots support or demand for such rights.’ This in a sense is a double failure , the failure of the sexuality movement to communicate its strong indigenous roots and presence, as well as the failure of the establishment to notice the increasingly articulate though marginal voice of people who identify as gay ,lesbian and bisexual.
It is important to understand that today the sexuality minority community comprises a diversity of identities including hijras, gays, lesbians, bisexuals kothis and a multiplicity of other identities both modern and traditional. The lives of individual people who identify as gay or lesbian or hijra or any other sexuality minority deserve a protection which is guaranteed to all other citizens of India.
We do hope that the NHRC would consider the rights of gay, lesbian, bisexual and hijra people as human rights in future complaints which would inevitably come before it.
( Some of the students, faculty and researchers of NLSIU, Bangalore) (pp. 79-81)