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Mental Health Care Bill prevents discrimination on the basis of sexuality, unlike Section 377

Mental Health (Awareness) Week was observed in many countries, culminating in the World Mental Health Day on Monday, 10 October.

It seems a timely opportunity to highlight that homosexuality has been taken off the list of mental disorders. It is now, considered a normal orientation.

The new Mental Health Care Bill 2016 passed by the Rajya Sabha . Representational image. File photo/Reuters

The new Mental Health Care Bill 2016 passed by the Rajya Sabha does not discriminate against people of any sexual orientation. Representational image. File photo/Reuters

As a gay man in post-colonial India, I have something more challenging to worry about. I am subjected to a discriminatory colonial law: Section 377 of the Indian Penal Code, which renders the law of our country against me. This Section criminalises sexual behaviour that’s 'against the order of nature'. Despite homosexuality and forms of sexuality besides heterosexuality being found in over 450 species of the animal kingdom, ‘order of nature’ is loosely interpreted as just penile-vaginal sex. Or worse, sex only for the purpose of procreation. Truth be told, heterosexuals don’t have sex only when they decide to have a baby either.

Besides, I learn from my numerous heterosexual girl friends that they have received great sexual pleasure even when it didn’t involve penile-vaginal sex. While this law is used in divorce cases, where the husband is penalised under Section 377 if it is proven that he persuaded his wife to have oral or anal sex with him, in the case of homosexuals, their very existence comes under threat. I should add that it is not illegal to identify as gay in India, any kind of sexual expression between men — fondling of penises, oral sex or anal sex — could be used to implicate gay men under Section 377.

To say that society has shut its empathetic eye to homosexuals is not an exaggeration by any means. There are tales of discrimination one would hear even from activists who celebrate their sexuality. Discrimination has not come to an end — but yes, the reactions of activists to the discrimination has evolved over time.

When you have the law of the land against you, you will be most vulnerable. If you are in a prejudiced society that thinks of everyone who is different as odd, you will be vulnerable. And vulnerable people sadly become a reservoir of mental health challenges. Bullying, pressure to be ‘normal’, lack of support systems, marital pressures and inability to be open about their relationship, all add up to an aggravated mental health issue. It is hence not surprising that suicide attempts are high in the LGBTIQ community. Many people who are out today and proud are also people who I could term as “survivors” because suicide is way too common.

Why am I talking about this now?

Because I was amazed when I found something very interesting in the Mental Health Care Bill that was passed recently in the Rajya Sabha. The Bill projects a ray of hope. With positive measures such as access to public healthcare, insurance cover for mental health patients and, more importantly here, the decriminalisation of suicide attempts; the Bill clearly mentions that there would be no discrimination on the basis of sexual orientation.

Clause 21(1)(a) of the Bill speaks about the right to equality and non discrimination. It reads, “there shall be no discrimination on any basis including gender, sex, sexual orientation, religion, culture, caste, social or political beliefs, class or disability”. Yes, besides this, Article 15 of the Indian constitution asserts, “no person shall be discriminated on the basis of religion, race, caste, sex or place of birth” and sex, much to the annoyance of homophobes and bigots, is extended to “sexual orientation.” However, clause 21(1)(a) of the Mental Healthcare Bill explicitly mentions ‘sexual orientation.’ [View the entire Bill, especially clauses 15(2) and 21(1)(a), here.]

So, in a way, the nation causes duress with an inhuman, unscientific and insensitive law that is detrimental to mental health through Section 377, and then it offers the same people access to mental health without discrimination under clause 21(1)(a) of the new Bill. These point at a great paradox in the Indian Constitution.

It is reasonable to suggest it may be prudent to strike down a law which criminalises consensual sexual behaviour between adults in the first place. I hope the five-judge Constitution bench, which is taking a closer look at Section 377 to determine if the Supreme Court needs to review its constitutionality, looks at the Mental Health Care Bill to draw much needed inspiration.

Updated Date: Oct 11, 2016 16:58 PM

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