Developments at the Intersections of Psychology, Policy and Law: June Edition

A monthly segment of psytizenship

The June edition of psytizenship’s monthly segment — Developments at the Intersections of Psychology, Policy and Law — is being published late for one reason: the last Friday of the month fell on 25th and I wanted to wait for the remaining five days so that no new development was missed. In the May edition, a couple of developments were missed due to this, which I am covering today. From July, I am thinking of doing this segment on the last day of the month.

Let us see what we have in the June edition:

1.     S Sushma v. Commissioner of Police: Justice N Anand Venkatesh of the Madras High Court delivered a landmark judgement on June 7, 2021, in the widely reported S Sushma v. Commissioner of Police case, whose proceedings I covered in the April edition also. Most probably, you have already read about the judgement. Here it is in brief:

The relationship of a lesbian couple belonging to Madurai was being opposed by their respective parents. The couple escaped to Chennai, and their parents filed “girl missing complaints” with the police. To seek protection, the couple approached the Madras High Court.

As Justice N Anand Venkatesh noted in the order, he “consciously refrained from adopting the usual course of disposing” of the case as it “brought to light an important issue requiring de-stigmatisation and acceptance in the eyes of the society.”

The “unusual course” which Justice N Anand Venkatesh took was this: he asked the police to close the girl missing complaints, appointed a psychologist, Ms Vidya Dinakaran, to counsel the parties and submit reports to the Court, decided to take a session himself with the psychologist, and interacted with some members of the LGBTQIA+ community to know about their lived experiences. He wrote in a previous order dated 28.04.2021:

“Ultimately in this case, the words must come from my heart and not from my head, and the same will not be possible if I am not fully “woke” on this aspect. For this purpose, I want to subject myself for psycho-education with Ms. Vidya Dinakaran and I would request the psychologist to fix a convenient appointment for the same. I honestly feel that such a session with a professional will help me understand same-sex relationships better and will pave way for my evolution. If I write an order after undergoing psycho-education, I trust that the words will fall from my heart.”

On May 07, 2021, Justice N Anand Venkatesh underwent “a session of psycho-education” with Ms Vidya Dinakaran. She submitted a report about this session, which spans 14 pages of the judgement.

After this, the judge “felt that a further interaction with person(s) who belong to the LGBTQIA+ community would be greatly instrumental to help myself understand the ground realities, the emotions, social discrimination and exclusion, and several other difficulties faced by the community. Therefore, an interaction was scheduled with Dr. L. Ramakrishnan, Vice President, SAATHII, Ms. Shanmathi, PCVC, Dr. Trinetra Haldar Gummaraju, Digital-Content Creator, Actor, MBBS Intern – Kasturba Medical College and her mother Ms. Haima Haldar.” Dr Trinetra Haldar Gummaraju submitted a report to the Court after the interaction.

Justice N Anand Venkatesh wrote in the judgment:

“I must frankly confess that the Petitioners, Ms. Vidya Dinakaran, and Dr. Trinetra became my gurus who helped me in this process of evolution and pulled me out of darkness (ignorance).”

In the final judgement, after a discussion of provisions of the Constitution of India and relevant court orders from around the world, Justice N Anand Venkatesh issued guidelines/directions “for proper recognition of the rights of the LGBTQIA+ community and to ensure their safety and security to lead a life chosen by them,” which include:

a)     The police should close girl/woman/man missing cases, which involve consenting adults belonging to the LGBTQIA+ community.

b)    The Union Ministry of Social Justice and Empowerment should make a list of NGOs “including community-based groups which have sufficient expertise in handling the issues faced by the LGBTQIA+ community.” Any person belonging to the LGBTQIA+ community can approach these NGOs for the protection of their rights.  [Action asked to be taken within 8 weeks from the date of receipt of a copy of the judgement.]

c)     The Union Ministry of Social Justice and Empowerment should make suitable arrangements “to accommodate any and every member of the LGBTQIA+ community, who require shelters and/or homes.” [Action asked to be taken within 12 weeks from the date of receipt of a copy of the judgement.]

d)    The Court asked various government departments and organizations, inter alia, to conduct awareness and sensitization programmes, make changes in curricula of schools and universities to educate students about the LGBTQIA+ community, ensure availability of gender-neutral restrooms for the gender-nonconforming students, make workplaces LGBTQIA+ community-friendly, and provide physical and mental health assistance. [Interestingly, in the list of organizations made responsible for provision of physical and mental health assistance, the Indian Psychiatric Society is mentioned but not the psychology associations such as the Indian Association of Clinical Psychologists and the National Academy of Psychology. Why is it so? Is the judiciary not aware of these organizations and the role of psychologists in mental health?]

e)     The High Court banned the practice of so-called “conversion therapy.” Justice N Anand Venkatesh directed to:

“Prohibit any attempts to medically “cure” or change the sexual orientation of LGBTIQA+ people to heterosexual or the gender identity of transgender people to cisgender,” and “take action against the concerned professional involving themselves in any form or method of conversion “therapy”, including withdrawal of license to practice.”

The Court kept the petition open for regular monitoring of the implementation of the directions and guidelines, and the next date of hearing is August 31, 2021.

Some observations from my side:

a)     One must read this outstanding judgement. A copy is available here.

b)    The psychology associations need to wake up from their deep slumber and start making contributions to our society and policy making processes. In the instant case, they should be part of the programmes seeking to implement the guidelines. More importantly, they should ensure that the governments implement these guidelines in letter and spirit.

c)     This judgement has many good sentences and paragraphs. I’m ending this long section with this line from the order: “Ignorance is no justification for normalizing any form of discrimination.”

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2.     Enforcement of the NCAHP Act, 2021: The National Commission for Allied and Healthcare Professions Act, 2021 came into force on May 25th, 2021. The gazette notification is available here. One immediate impact of this Act coming into force is that the qualifications obtained through distance learning mode are not recognized as allied and healthcare qualifications. Now, only those with regular learning mode degrees/diplomas can practice as allied and healthcare professionals, including psychologists, in India.

If you are not well versed with the NCAHP Act, 2021, you can read this FAQs guide.

3.     Rules under section 65 of the NCAHP Act: The Government of India notified the Rules under section 65 of the NCAHP Act on May 27th, 2021. The National Commission for Allied and Healthcare Professions Rules, 2021 encompass the following provisions:

a)     Qualifications, experience and manner of selection of Part-time Members of the Commission

b)    Salaries, allowances and conditions of service of Chairperson, Vice-Chairperson, Members and officers of the Commission

c)     Rules regarding the transaction of business of the Commission

d)    Rules regarding application for a certificate of registration (the registration fee is Rs 2,000.)

e)     Qualifications, experiences and manner of appointment of members of Interim Commission

f)     Rules regarding establishment of new allied and healthcare institutions [An important qualifying criteria: “The institution is within the vicinity of a functional medical college or University and has an attached hospital for the purposes of practical exposure and internships to the students.”]

g)    Financial provisions

The rules regarding other matters such as basic standards of education, courses, curricula, infrastructural facilities, faculty, examinations (including entrance and exit exams), training, research, continuing professional education, fee,  distribution of seats, and recognition of degrees/diplomas granted outside India would be made by the Commission under section 66 of the NCAHP Act.

4.     Human Rights Advisory on Right to Mental Health in view of the second wave of COVlD-19 pandemic by National Human Rights Commission (NHRC): In the last edition of Developments at the Intersections of Psychology, Policy and Law, I had covered the Rehabilitation Council of India’s Model Recruitment Rules and stated that I “saw several posts on social media full of happiness as the psychologists hoped that they would get better pay and perks now.” I was puzzled as it was not the first time that the RCI had come up with such Rules. They had notified the Model Recruitment Rules in 2016 also, but, as it turned out, most psychology professionals and students were not even aware of the old Rules. Hence, as I stated then, the misplaced optimism.

Something similar happened again. India’s National Human Rights Commission issued a Human Rights Advisory on Right to Mental Health in view of the second wave of COVlD-19 pandemic to Central and state/UT governments on May 31, 2021, and the social media saw similar optimistic posts again. What they ignored was that earlier, on October 8, 2020, the NHRC had issued another Human Rights Advisory on Right to Mental Health in Context of Covid-19 Pandemic with the instruction that “all the concerned authorities are requested to implement the recommendations made in the advisory and to submit the action taken report for information of the Commission.”

A contentious issue is this: the new advisory does not tell us if these Action Taken Reports were submitted by the Central and state governments or not. If the reports were submitted, then where are they? If they were not submitted, then what were the actions taken by the NHRC against the Central and state governments? In the new advisory, the NHRC wrote that “all the concerned authorities of the Union/State Government{s)/UTs are advised to implement the recommendations made in the said Advisory 2.0 and need to submit the action taken report (ATR) within four weeks for information of the Commission.” The four weeks ended on June 28, 2021. Were the recommendations implemented? To find out, I am filing a Right to Information request and will post an update whenever I receive the reply.

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PS. Arjun Kapoor and Sayali Mahashur of Centre for Mental Health Law and Policy, Pune wrote a must-read article on mental health insurance. Despite the enabling provision in the Mental Healthcare Act 2017, the insurance companies keep denying the claims submitted by people and the Insurance Regulatory & Development Authority of India is not doing enough to enforce the law.

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