Weapon 377

Blackmail, harassment and arrests: one year after the Supreme Court recriminalised homosexuality, this is how Section 377 is being used

"Iam in a state of despair. My case has become public knowledge, and even though it's not my fault, my reputation is tarnished. You know how it is, it's always the woman's fault," Lisa M (name changed at her request) says on the phone from Bengaluru. She sounds more tired than angry.

Lisa's husband had concealed that he was gay when they got married, but her suspicion was aroused as he refused to consummate the marriage even after a year and her neighbours told her about male strangers dropping in frequently when she was away. She finally recorded him having sex with other men in their home using hidden cameras and, armed with this evidence, she filed a police complaint last month under Section 377, the 1860 law that prohibits "carnal intercourse against the order of nature".

It is a law that came back into force a year ago with the Supreme Court upholding its constitutional validity, reversing the Delhi High Court judgement of 2009.

It is hard not to sympathise with Lisa, who says the issue is about being exploited and that no woman should have to go through what she has. But it also shows the worst fears of rights activists becoming a reality. "The law is being used in the case of two adult men having consensual sex in the privacy of their home. If they convict him, it means they can convict anybody not having peno-vaginal sex in the privacy of their home," points out Vinay Chandran, director of Swabhava, a non-profit providing support services to members of the LGBTQ (lesbian, gay, bisexual, transgender and queer) community.

In 2009, the Delhi High Court had read down Section 377, or legally interpreted the law in the light of its intention, for violating the fundamental rights to equality, life and personal liberty as it "criminalises consensual sexual acts of adults in private". But four years later, the Supreme Court upheld the Victorian-era legislation on the grounds, among others, that it did not violate the fundamental rights because it "does not classify people into groups but only describes an offence".

In the year since the apex court judgement, cases have emerged of Section 377 being used to harass members of the LGBTQ community. At times, police complaints are filed against them even in instances of sex between consenting adults. Mumbai-based Humsafar Trust, which works for the rights of the LGBTQ community and documents incidents of harassment against homosexuals through its network of 51 organisations in five states, says 264 "crisis cases" have been reported to it since the December 2013 recriminalising of homosexuality. While the number of cases reported between July and September 2013 was 48, this doubled to 102 in the same period in the year after the verdict.

The depressing narrative plays out in various ways. Last month, a homosexual marketing executive was beaten up by the railway police at a Navi Mumbai railway station after they found an old condom in his wallet and declared that it was "illegal". The executive suspects he had been identified as a homosexual by someone who had seen him at local LGBTQ gatherings and who then pointed him out to the police. He was finally released after some more blows (one of which tore his eardrum) and payment of Rs 3,000. Though he fears being targeted again, he says he decided to file a complaint against the police because "others should not suffer the same fate".

In Delhi, Prince (he uses only his first name), who works with Naz Foundation to spread awareness about HIV prevention, says he was targeted by the police when he had gone to a colony of sex workers as part of an outreach programme. "My friend was standing at a street corner and as soon as we met, four policemen in plainclothes pounced on us," he recounts. When they checked his bag, they found it full of the condoms meant for distribution in the area and they did not accept his explanation that it was part of his work. "They thought I was promoting homosexuality by distributing condoms!" he says. When a Naz coordinator called the police asking under what law they had detained the two, the lawkeepers claimed they had been caught having sex and were going to be charged under Section 377. The police let them off only when the coordinator asked them , "Aapne range haatho pakda hai, with their clothes down, kyunki condom rakhna gunaah nahi hai? (Have you caught them red handed with their pants down, because carrying condoms is not a crime?)"

"We are definitely seeing an increase in the way the section is being used as a threat," says Anjali Gopalan, founder of Naz Foundation. "It's not about the law being invoked but the fact that you can use the law as a sword over your head all the time. The problem lies in plugging all consensual activity with non-consensual activity and then persecuting people."

A silent protest to mark one year of the verdict at Rajghat, New Delhi, on December 11

Section 377 is such a dreaded law that it is often used as a tool of blackmail by homosexuals themselves. "A lot of people use apps like Planet Romeo to meet gay men. They then blackmail them, saying they will out them to their families or colleagues or the police if they don't have sex with them," said Ramachandran Srinivasan, on the sidelines of the Bengaluru Pride March held last month. Srinivasan, an openly gay man, returned from the UK after the December 2013 verdict to work for the LGBTQ rights movement in India and runs the Chennai Rainbow Meetup group. Gopalan says a man from Madhya Pradesh has been in touch with them after his partner filed a complaint against him under Section 377. "His partner stole from him and he filed a case. In turn, the man filed a case against him under 377, and now the police are after him (the original complainant). It is increasingly becoming a tool of revenge," she says.

It is something of a vicious cycle. "In the last year, we have come across 6-7 cases where, if one of the partners does not bow to the demand of blackmail, the other person invokes 377. There is no legal recourse because even when it is consensual, it is still an offence, so essentially you are trapped," says Amritananda Chakravorty, advocacy officer at Lawyer's Collective, a non-profit working for LGBTQ rights and women's rights, which had filed the petition in the Delhi High Court challenging the constitutionality of Section 377 on behalf of Naz Foundation. In recent cases, the problem lies in the use of the law, and not its misuse, she says. "If somebody complains, the police have to apply the law because it is there."

P Harishekaran, additional commissioner of police (crime) in Bengaluru, says that since Section 377 involves a cognisable offence, there is no option but to register a case and carry out an investigation. "But such cases are very rare," he says. When asked about complaints of harassment by the police, he says training programmes have been carried out to sensitise the force. Pallav Patnakar, director of the HIV programmes at the Humsafar Trust, says he is surprised to find that there actually is little homophobia among senior police officers. "The problem lies at the lower level in the constabulary where they have no training and understanding about things like the usage of condoms."

Rajesh, who works with the non-profit Sangama, an LGBTQ rights organisation in Bengaluru, says Section 377 is used mostly against working-class sexual minorities, particularly men and transgenders (see: 'It feels like we are back to square one'). This is despite the ruling of the Supreme Court in April this year, referred to as the NALSA (National Legal Services Authority) verdict that recognised transgenders as a third gender. There are inherent contradictions between the 377 and NALSA judgements, points out Lawyers Collective's Chakravorty. "Even though now you tell me I have all the rights and the court has said that I should be categorised as OBC, the core of my identity, which is my sexual identity, is still criminal - as a trans person how do I deal with this contradiction, they ask me."

It feels like we are back to square one: Kiran

Kiran, who identifies as koti (transgender) describes her own experiences

“Harassment by the police in public spaces has been a regular part of our lives. From our body language, they can find out if we are gay or transgender and then they try to throw us out, without even giving us a chance to say anything in our defence. In a public space where there are scores of people, like a park or a market, only trans people are targeted. Once, when my friends and I were just sitting and talking in a park, the police tried manhandling us to throw us out out. I screamed and told them firmly that if you are asking us to go away, you have to ask other people also to leave. They tell us ‘hum gandgi failane aaye hai (we have come here to just pollute society)’. Since Section 377 has been reinstated, I have also faced a lot of trouble in finding a house to stay — I thought I’d have to live on the street. The moment the landlords see us they refuse to rent us the flat. People are scared of 377. They don’t understand it but they are scared of it, and so they end up discriminating. After the Delhi High Court judgement, people were starting to understand that we too are a part of society — now it feels like we are back to square one.”

As told to Ritika Bhatia

The struggle is not just about Section 377 but also other laws such as Section 36 (A) of the Karnataka Police Act, which has separate provisions to "suppress or control undesirable activities of eunuchs," says Rajesh. "If you look at the sexuality minority struggle in India, it started as a fight against Section 377. But for us, it's also a human rights issue."

While the current debate tends to focus on Section 377 and homosexual men, attention should also be paid to the issues of lesbians, transgenders and of lower caste transgenders who are marginalised twice over, he says.

At corporate workplaces, too, though there has been no change in diversity policies after the Supreme Court verdict, the nuances have changed, recent studies have found. Cavin C Moulee, who identifies himself as gay and works as a content analyst with an IT firm in Chennai, was told it would not be possible for him to start an official LGBTQ resource group in his office because of Section 377 even though the firm is considered among the top 10 LGBTQ-friendly organisations in the world. "My organisation offers same-sex employee benefits where same-sex marriages/partnerships are recognised and even paid leave and medical assistance for employees who want to undergo sex reassignment surgery. But this is now restricted to the US. This raises questions about the implementation of the NALSA verdict," says Moulee.

‘Court cannot abdicate its responsibilities to protect fundamental rights’

I read the judgment of the Delhi High Court when it came out four years ago. It was a model of learning, humanity, and application of Indian constitutional principles. It was well crafted, and its reasoning clearly set out. It decided that Section 377 of the Indian Penal Code infringed Article 14 of the Constitution, which deals with the fundamental right to equality. It infringed Article 15, which deals with the fundamental right to nondiscrimination. And it infringed Article 21, which covers the fundamental right to life and liberty, including privacy and dignity. The judgment of the High Court “read down” Section 377 in order to decriminalize private, adult, consensual sexual acts.

The government found no fault with the judgment and did not appeal. However, a number of people who had no real standing in the matter did challenge it. Two judges of the Supreme Court heard the appeal in early 2012. Then, twenty-one months later, and on the very morning of the retirement of one of them, the judgment was finally pronounced. The Delhi High Court judgment was set aside, Section 377 was reinstated in full, and even private, adult, consensual sexual acts other than the one considered “natural” were criminalized again.

#NoGoingBack to #Sec377 has become the catchphrase of the protests against the Supreme Court judgment

The SC judgment claimed that the fact that a minuscule fraction of the country’s population was gay or transgender could not be considered a sound basis for reading down Section 377. In fact, the numbers are not small. If only 5 percent of India’s more than a billion people are gay, which is probably an underestimate, it would be more than 50 million people, a population as large as that of Rajasthan or Karnataka or France or England. But even if only a very few people were in fact threatened, the Supreme Court could not abdicate its responsibilities to protect their fundamental rights, or shuffle them off to Parliament. It would be like saying that the Parsi community could be legitimately imprisoned or deported at Parliament’s will because they number only a few tens of thousands. The reasoning in the judgment that justice based on fundamental rights can only be granted if a large number of people are affected is constitutionally immoral and inhumane.

Excerpted from  Leila Seth’s recent book, Talking About Justice: People’s Rights in Modern India, published by Aleph

Chandran adds that harassment of homosexuals at the workplace operates in the same way as for women, except that there is no legal recourse. LGBTQ members and activists alike emphasise the importance of changing mindsets, along with the law. It is hard to forget the case of Ramachandra Siras, the Aligarh Muslim University professor, who was initially suspended after a "sting operation" caught him having sex with a man at his campus residence. Though he was reinstated after successfully challenging the suspension in court, Siras committed suicide soon after. This was in 2010, after the Delhi High Court verdict. And in 2012, there was the case of Shruthi and Saranya (names given by the media), a lesbian couple from Kerala who sought refuge in Bengaluru. Saranya's parents initially filed a habeas corpus writ in the Kerala High Court and later pressured her to return home, say Sangama activists, who had offered shelter to the couple.

Then there is the bogey of marriage, either as the "cure" for homosexuality or to conform to social norms. In Lisa's case, she says her husband had entered into the relationship of his own accord, denied he was homosexual on being questioned repeatedly and later asked her to walk out, when she confronted him with the evidence. But instances abound of parents pressuring children to get married. Ankit Bhuptani, a gay rights activist in Mumbai, says a close friend in Madurai was in the process of making his parents understand and accept his sexuality but within hours of the Supreme Court ruling, the mood changed. "They got him married to a girl and he got a divorce in July. Now his parents are pressuring him to get married again," Bhuptani says.

The community is now pinning its hopes on a curative petition filed in the Supreme Court which will be heard by a five-judge bench, the last resort after a review petition challenging the verdict was dismissed without comment. As Leila Seth, former senior judge and mother of writer Vikram Seth, eloquently wrote in her recent book, Talking of Justice: People's Rights in Modern India, that the December 2013 judgement "has treated people with a different sexual orientation as if they are people of a lesser value."

Ranjita Ganesan contributed to this report