Section 377 and the biases against sexual minorities in India

  • Poulomi Banerjee, Hindustan Times, New Delhi
  • Updated: Oct 04, 2015 19:00 IST
LGBT (lesbian, gay, bisexual and transgender) activists protest against Supreme Court's judgment on Section 377 that upheld section 377 of the Indian Penal Code that criminalizes homosexuality. (Photograph by Raj k Raj/ Hindustan Times)

Ramesh Singh (name changed), a professional in his early thirties, had more than a broken heart to nurse, when his love affair turned sour sometime in 2014. Suddenly, the resident of a conservative small town in India, found himself evading the police and trying to arrange bail for himself. His only crime was that he had been in love with another man. “The two had been in a consensual relationship, but then his partner started demanding money. When he tried to put his foot down, it turned to outright blackmail and an extortion bid. Ramesh refused to pay up, prompting his partner to file a police complaint against him under Section 377, alleging that Ramesh had forced him to have sex with him. He managed to get anticipatory bail, but the case is still on,” recalls Tripti Tandon, of Lawyers Collective, a public interest service provider engaged in human rights advocacy.

Approximately four years after the Delhi High Court decriminalised homosexuality in a landmark verdict, in December 2013, the Supreme Court set it aside and reinstated Section 377 of the Indian Penal Code (IPC) arguing that “the said section does not suffer from any constitutional infirmity”. Enacted in 1860, Section 377 of the IPC criminalises “carnal intercourse against the order of nature”. Punishment may extend to life imprisonment. The section does not directly target homosexuals. Even heterosexual couples caught having oral or anal sex may be booked under it. But homosexuals are made the most vulnerable since any form of penetrative sex for them will necessarily be non-peno-vaginal. Activists and representatives from the Lesbian Gay Bisexual and Transgender (LGBT) community had protested against the verdict, fearing that it would empower those biased against the sexual minority. The only sliver of hope remaining had been the SC’s statement that “Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same as per the suggestion made by the Attorney General”.

LGBT activists protest against Supreme Court's judgement on Section 377 at Jantar Mantar, in New Delhi, India on 15 December, 2013. (Photo by Mohd Zakir / Hindustan Times)

More than a year after the SC verdict, the legislature is yet to take a step towards scraping Section 377 or tweaking it in a way to exempt non-pino-vaginal sex enjoyed in private between consenting adults. Meanwhile, figures released by the National Crime Records Bureau (NCRB) would indicate that the worst fears of the LGBT community are coming true. According to Crime in India 2014, “1148 incidences of ‘unnatural offences’ were reported to the police. This is the first time that we have collected data on crimes registered under this particular section of the IPC. While 383 of them were cases involving adults, the remaining 765, were cases of child abuse registered under Section 377. In the cases involving adults, we do not know whether sex was consensual or non-consensual,” said an NCRB official.

(Waseem Gashroo/HT Photo)

Standing in for POCSO
Activists find it strange that incidents of child abuse are being registered under this section. “I could understand that being the case when there were no specific laws relating to child abuse. In cases where a minor was being abused, the law would take recourse to Section 377. But now that we have the Protection of Children from Sexual Offences (POCSO) Act 2012, there is no reason to invoke Section 377. It seems that there are other forces at play here,” says Anjali Gopalan, founder and executive director, Naz Foundation, the organisation that had been at the forefront of the movement to have Section 377 scrapped. Others believe it to be a result either of police ignorance about POCSO - a far more child-friendly law than Section 377 - or an attempt by the police and lawyers to book an accused under as many heads as possible. In the days before POCSO, Section 377’s utility in cases involving sodomy had been used by some as an excuse in its favour. “It continues to be used to book accused in cases of adult male rape, because our rape laws are not gender neutral,” says lawyer and activist Aditya Bondyopadhyay. Or, in the absence of laws against marital rape, by women forced into unnatural sex by their husbands, points out Tandon. Few, however, see that as a reason for its continuance, especially in its current form. As Gowthaman Ranganathan of the Alternative Law Forum points out, Section 377 has a moral intent and isn’t essentially concerned about protection against sexual abuse. In using it to book those accused of child abuse perhaps, a section of law-enforcers are giving in to this moral bias - equating homosexuality with paedophilia. It’s almost like saying that someone who cheats, can definitely kill!

LGBT activists protest against Supreme Court's judgement on Section 377 at Jantar Mantar, in New Delhi, India on 15 December 2013. (Photo: Waseem Gashroo/ HTCity)

What’s in a number?
Meanwhile, activists are divided on whether the NCRB statistics can be used to prove that there has been an uptick in the persecution of consenting homosexual couples. “Anecdotal evidence does show more cases being filed under Section 377,” says senior advocate Anand Grover. In October 2014, a software professional in Bangalore was booked under Section 377 after his wife made video recordings of him having sex with another man on a hidden camera. In another case, a doctor in Bangalore was faced with possible arrest after he was blackmailed for money by a group of seven youths. He had allegedly had sex with four members of the group. Media quoted the police as saying that the doctor too would face arrest even if investigations showed that the sex had been consensual. In Delhi, an AIIMS doctor committed suicide, accusing her husband of mental torture, dowry harassment, and of having sexual relationships with other men. As a result, her suicide letter and a note on her Facebook page said, her marriage of five years was never consummated.

Gay people in India often have to deal with unsympathetic families, disgruntled spouses (when a gay person marries someone to present a heterosexual persona to the world, or if he or she has been coerced into matrimony by family), and lovers who turn hostile or become extortionists. In all these instances, Section 377 comes in handy to harass, threaten and control sexual minorities. “The prevailing anti-minority mood in the country adds to the climate of fear. Like religious minorities, sexual minorities are also being targeted,” says Gopalan.

LGBT activists protest against Supreme Court's judgment on Section 377 that upheld section 377 of the Indian Penal Code that criminalizes homosexuality during “WE THE PEOPLE, RECLAIM THE REPUBLIC” A Republic day March at Jantar Mantar on December 15, 2013 in New Delhi. (Photograph by Raj k Raj/ Hindustan Times)

The absence of recorded evidence from previous years makes it difficult to state for sure if there has been a rise in the misuse of Section 377. What last year’s NCRB figures do show, however, is a wide gap between the number of those booked and those convicted. “It is easy to blame someone. But how does one define ‘unnatural sex’?” asks Gopalan. According to Crime in India 2014, out of a total 1835 cases of “unnatural offences” awaiting trial in 2014 (956 of which had been pending from the previous year), trial was completed in only 233. While there was conviction in 100 cases, 133 cases were either discharged or ended in acquittal. As many as 1601 cases were pending trial at the end of the year. “Being a non-bailable congnizable offence, getting bail depends on the discretion of the judge. If the judge is homophobic, the accused may indefinitely languish in lock-up,” says Bondyopadhyay. The harassment in custody may put one off sex entirely. In the later part of 2013, thirteen people were arrested under Section 377 by the Hassan police in Karnataka. The case is still on trial, though the accused are out on bail. In a report available on the website of Alternative Law Forum, the accused describe the treatment meted out to them in custody. “Violence was continuous... Many of them spoke of how they were forced to strip off their clothes, their underwear pulled down and the policemen touching their private parts with a lathi,” says the report. One of the accused also speaks of abuse by fellow inmates.

LGBT activists protest against Supreme Court's judgement on Section 377 at Jantar Mantar, in New Delhi, India on 15 December 2013. (Photo by Mohd Zakir / Hindustan Times)

Beyond prosecution
Prosecution, however, continues to be a small percentage of the persecution that those from the sexual minority have to endure almost on a regular basis. Often it comes from those in uniform. “Harassment has almost doubled since the SC verdict reinstating Section 377. Recently for instance, a gay man was picked up by the police from a public toilet, just because they are common cruising points. The police pointed to the condom in his wallet and threatened to book him under Section 377 unless he paid up,” says Sonal Giani advocacy manager at the Mumbai-based LGBT organisation Humsafar Trust. “So many from the community are refusing to carry condoms now for fear of being targeted. This is a serious concern,” she adds. While being homosexual or being found with a condom is not enough grounds to be booked - there has to be proof of the individual indulging in ‘unnatural sex’ - few can stand up for their rights in the face of public humiliation and violence. “It is difficult to get them to even go back to the police and complain about harassment,” says Giani. When harassment culminates in arrest, the fear is even more palpable. “In one such case when we presented ourselves at the court after learning of it in the media, the accused was reluctant to even talk to us,” says Gowthaman. Distrust in the media is extreme. Even when assured that personal details won’t be disclosed, most of the victims are unwilling to speak up.

The threat from Section 377 is not new. But as Grover points out, “the discourse following the Delhi High Court verdict has made many more aware of the law. With the SC verdict reinstating it, they are now in a better position to use it”. It’s a free pass for blackmailers, extortionists and violent homophobes.

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