38. On the question of chemical castration as a cruel and unusual punishment, we find that chemical castration is an injection for sex offenders with drugs such as Depo-Provera which has the effect of reducing the levels of testosterone and thereby controlling libidinous urges. There are varying groups of drugs that effect libidinous urges, these have been categorized in the following way:
“For patients with obsessive sexual fantasies, antidepressants from the family of SSRIs that includes Prozac, often prescribed to treat obsessive compulsive disorder, can help them control their sexual thoughts. The second and more radical approach is an antiandrogen drug, such as leuprorelin, which reduces testosterone levels to those of a prepubescent boy, and makes the patient impotent.”
39. It is important to understand that unlike surgical castration, the effects of chemical castration are temporary and therefore repeated monitored doses at regular intervals is a necessary prerequisite. It is pointed out before us that 9 States in the United States of America have introduced legislation which has permitted chemical castration of sex offenders, making it discretionary for the first time offenders and mandatory for repeat offenders as a pre-condition for release from imprisonment and/or release on parole. Till date, a challenge to the constitutionality of these laws has not been considered by the US Supreme Court. It is the stand of the Working Group on Human Rights that mandatory chemical castration for sex offenders is unconstitutional as it would violate the fundamental right to privacy and the right to refuse invasive medical treatment and would constitute a violation of the prohibition against “cruel and unusual punishment” contained in numerous international covenants including the ICCPR and CAT.
40. We note that it would be unconstitutional and inconsistent with basic human rights treaties for the State to expose any citizen without their consent to potentially dangerous medical side effects. For this reason we do not recommend mandatory chemical castration of any type as a punishment for sex offenders. For the same reason the government of India also does not prescribe chemical castration as a family planning method.
41. However, we note that in the UK, sex offender treatment programs sometimes offer chemical castration of one of the two types mentioned to convicted sex offenders as a form of psychiatric treatment. This is done in consultation with doctors and psychiatrists with the consent of the sex offender. We recommend further research and study on the matter before commenting on its applicability or effectiveness in the Indian context.
42. We also notice from literature that side effects of chemical substances like Depo-Provera may include osteoporosis, hypertension, fatigue, weight gain, nightmares, muscle weakness and apart from that the long term side effects are still not known. We are further of the opinion that chemical castration fails to treat the social foundations of rape which is about power and sexually deviant behaviour. We therefore to hold that mandatory chemical castration as a punishment contradicts human rights standards.
43. We, therefore, reject the possibility of chemical castration as a means of punishment. We must take on record a suggestion from a leading doctor for permanent surgical castration. We think that a mutilation of the body is not permitted by the Constitution. ‘Death’ is a known form of penalty but mutilation has not been recognised in progressive jurisprudence as prescribed punitive action. [Emphasis supplied]
Vivek S Patwardhan