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HindustanTimes Thu,18 Sep 2014

Decoding section 377: How the verdict erased basic human rights

Poulomi Banerjee, Hindustan Times  New Delhi, December 21, 2013
First Published: 23:44 IST(21/12/2013) | Last Updated: 01:02 IST(22/12/2013)

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 On 16 December, D, 25, a Kolkata resident, was returning home, from the fashion boutique he owns, when some people on the street threw eggs at him. A day or two earlier, a group of approximately seven men from the neighbourhood had blocked his way, demanding to know how much they would have to pay him in return for sexual favours. He was also groped on the street. D, or Diya as he is known among friends, is a man who is feminine in his ways. Sometimes, though not often, he likes to dress like a woman and wear make-up. He is a transgender, in love with another man.

The attacks on Diya come less than a week after the Supreme Court (SC) verdict overturning a 2009 Delhi High Court (HC) decision that decriminalised homosexuality. The apex court verdict, passed on 11 December, reinstated section 377 of the Indian Penal Code (IPC) that criminalises sexual activities “against the order of nature”.

The section is a relic from the colonial age, introduced in the 1860s, and criminalises any kind of sexual act that is not peno-vaginal, including anal and oral sex. The SC held that Section 377 of the IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable. The apex court added that amending or repealing Section 377 should be a matter left to Parliament, not the judiciary.

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“Section 377 violates one’s Constitutional right of equality. The Supreme Court in its verdict overlooks the scope for judicial laws, an example of which is the Vishaka Guidelines to prevent sexual harassment of women at the workplace. Such laws remain valid till Parliament has made the necessary changes to existing laws,” says lawyer Vikas Gupta. The Centre has filed a review petition against the SC ruling.

“Section 377 is not just directed at homosexuals. A study conducted by the Family Planning Association of India has found that a good number of heterosexual couples in India engage in anal sex. So, under provisions of section 377, they too can face criminal proceedings. Besides, oral sex, which is a part of the sexual repertoire of all people  irrespective of their sexual orientation and has been mentioned in the Kamasutra in great detail, is also illegal as per section 377,” points out Ashok Row Kavi, a Mumbai-based activist and chair of the Humsafar Trust, a homosexual community-based organisation.

At a recent interview to Hindustan Times, author Vikram Seth had exclaimed, “By the way, you are talking to a criminal,” a reference to the SC verdict and his own sexuality. Seth is gay. Had the Supreme Court heard Seth, it would have noted perhaps that Seth was not a criminal, unless caught engaging in non-peno-vaginal sex.

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Decoding section 377

 “Section 377 does not criminalise homosexuality. You cannot be arrested for being gay. But you can be arrested for engaging in non-peno-vaginal sex,” explains Arvind Narrain, activist, lawyer and founder member of Alternative Law Forum. Which is to say, you can be a homosexual, but you cannot engage in homosexual sex. Explains Kavi, “Not all homosexual couples are into penetrative sex. But if a homosexual couple does want penetrative sex, it has to be either anal or oral sex. So that lands them immediately under the purview of section 377.” Agrees Narrain, “There is a close link between the act and the identity.”

Also the usage and interpretation of the section leaves huge scope for misuse and harassment of the lesbian gay bisexual transgender (LGBT) community. “The act, under section 377, is a non-bailable cognizable offence. Which means the police can break into any house and pick up a couple they suspect of being homosexuals under the claim of preventing a criminal activity. Since it is a non-bailable offence, getting the person out will depend on the wish and attitude of a judge. One can stay in jail for months on end once arrested,” says lawyer and activist Aditya Bondyopadhyay.

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Bondyopadhyay remembers a case in Lucknow where seven people were arrested under section 377. While Bondyopadhyay’s efforts succeeded in getting four of them out in 47 days, one person languished in lock-up for eight months. Finally the charges against him were dropped. Thus, while the Supreme Court may claim that only 200 people have been prosecuted under section 377 in the more than 100 years that it has been in existence, cases of harassment are many.

Even when “unnatural sex” has not been engaged in or proved, the police has been known to harass. “There have been cases where two boys were seen holding hands or kissing and been harassed by the police. They either beat them up or threaten them with arrest and demand money to let them off. Demands for sexual favours in return of non-prosecution are also common,” says Kolkata-based activist Pawan Dhall.

A case in point is that of Pushkin Chandra, whose murder in 2004 was widely publicised in the media and held up by many as an example of the decadent lifestyle of the homosexual community. A homosexual, Pushkin was spotted by a cop at Nehru Park, a popular cruising point for the gay population in the capital, and demands for money started. When Pushkin approached Bondyopadhyay for help, he had already paid approximately Rs. 10,000 to the cop, says the lawyer. “One day, the official called Pushkin for money while he was at my office. I answered the call and told him we plan to complain and that he will lose his job. That stopped the calls,” recalls Bondyopadhyay.

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But owing to the threat of being declared a criminal under section 377, many from the community are reluctant to speak up. Rocky, a young homosexual guy was picked up by officials of the Dhaula Kuan police chowki one Diwali. He was confined at the police station and raped by the officials. He refused to file a complaint. “There is always the chance that the cops can turn around and say that the accused had initiated it,” explains Bondyopadhyay.

Not just the establishment. “Section 377 gives anybody, be it family members or neighbours who disapprove of a homosexual relationship, the opportunity to call the cops and claim to have witnessed anal or oral sex and the police will have to file an FIR,” says lawyer Anand Grover, who had represented the Naz Foundation (the NGO whose petition had led to the landmark Delhi HC verdict in 2009) at the Delhi HC and SC. In case of arrest, the normal procedure of investigations will follow. One can fight the case in court. Guilt, if any, has to be proved through a medical examination. “But just the act of having an FIR filed and a police investigation initiated against you is harassment enough,” says Bhan.

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… Are many. Section 377 does not give a landlord the right to throw out a homosexual tenant from his house or an employer the right to terminate employment on the basis of one’s sexuality. But if an individual or organisation does indulge in such practices, section 377 takes away the gay person’s confidence to challenge such acts of discrimination. “Also, the police verification of tenants can identify a gay person as a potential criminal, citing which a landlord can refuse to rent out to him. Transgender and hijra persons are often ghettoised in the margins of urban areas, because no one would rent property to them,” points out Bondopadhyay.

Acts of biased treatment by employers are not uncommon. “There are no laws in India against discrimination in the private sector,” rues Grover. “In India, a large section of the population work in the unorganised sector. Even in the organised sector, only about 5 per cent of companies would have an anti-discrimination policy and even less would include discrimination based on sexual orientation or gender identity under that,” says Bhan adding, “There was a case in Aligarh Muslim University where a homosexual professor was framed and thrown out of job. We approached the Allahabad High Court, which stayed his termination order citing the 2009 judgement. What the 2009 verdict did was that it allowed activism to go deeper.”

The 2009 verdict did another thing. It gave visibility to the country’s homosexual population. Released of the fear of law, they had taken to the streets to celebrate, to claim their place in society, to come together in various Pride Parades. Yes, it did force people to accept their existence, but closet homophobics, forced to tolerate them for the past four years, now know exactly whom to target.

Till the laws are amended, the best safeguard for the community, feels Bondyopadhyay, is to band together and stay connected. “The Supreme Court verdict has attracted a lot of attention. In case of arrest, the only thing to do is to go all out, publicise the case as much as possible and try to put pressure on the authorities to withdraw the case.” Meanwhile, Diya is scared to go out alone after dark. “Even at home I have to hear barbed comments. They think it’s only about sex,” he rues.


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