Section 377 has real repercussions on real people.
People like you and I. People who have friends and families.
They do all the mundane things that you and I do — they watch movies, they hang out with friends, they buy groceries, they eat at restaurants, they get their hearts broken and they break hearts.
They are people like you and I. No difference at all. The Indian Penal Code (IPC), however, denies them the right to be just like you and I.
Section 377 tells them that they are less than and that they should be persecuted — why? Because they have sex that the IPC defines as "unnatural". So when the LGBTQI community does all the mundane things that you and I do, they also fear.
Not like you and I.
Naz Foundation, that has been at the helm of fighting this draconian law has consistently maintained that over and above being unconstitutional, the law is dangerous to the community — it bars an individual from expressing their true identity and criminalises that said identity.
According to the National Crime Records Bureau, in 2014, a total of 1148 cases were registered under "unnatural offences". In Suresh Kumar Koushal vs NAZ Foundation, court documents, Naz Foundation specifically states that the section "serves as a weapon for police abuse in the form of detention, questioning, extortion, harassment and forced sex."
The Supreme Court will decide on a curative petition on the Section 377 on Tuesday, the stories you will now read in this article are a small but significant reminder that there are real people who's lives have been affected by this archaic law that truly others an entire set of humanity, simply because sex should mean penis meets vagina. The popular or legal understanding of Section 377 is that it criminalises 'unnatural sex' — and that LGBTQI persons should worry about it only when they have sex. But that is missing the point completely. If we agree that ’sex’ is a perfectly normal human activity, a part of creation itself, then, to criminalise gay sex is to deny the very existence of this community entirely. Sort of like punishing them for existing in the first place.
Section 377 has been grossly misused by the police (and almost anybody in a position of authority). As explained in this Firstpost article, "the section was written to criminalise, discourage and prevent homosexual relations, especially acts involving penile penetration."
18-year-old Pandian, a resident of Vyasarpadi in Chennai worked as a helper in a vegetable shop, Pandian was a transgender. Police personnel barged into the house searching for Pandian claiming to interrogate him on theft charges and after the whereabouts of Saranraj 'linked to the case' were known, Pandian would be released. The police produced them in front of the Metropolitan Magistrate — who remanded them to judicial custody. Pandian was tired and she did not take any food, cried and told her sister that she was tortured by the police and was sexually assaulted everyday. After the mother enquired about this, she was beaten up. In August 2006, Pandian was threatened and told that she should not tell anything about what was happening to her, but the police continued the harassment, when Pandian's sister enquired, the police abused her, threatened her with a false case charging her as a prostitute.
Consequently, Pandian set herself ablaze, because she had been continuously getting sexually assaulted by the police and that they had tortured her by "lathi inside her anus and few other police personnel forced him to have oral sex." She was laughed at and told that no one would be bothered if she died. While she was getting treated for injuries, Pandian was compelled to sign blank papers by the police who threatened that treatment would stop if she did not, but it was stopped by the doctors who chanced upon the incident. Pandian however, succumbed to the injuries and died. Read the case here.
Kokila, a sex-worker by profession was assaulted by 10 men on 18 June 2004. She was gang-raped and threatened that if she raised her voice, she would be killed. Two policemen arrived on the scene when this ordeal was going on. The rapists absconded, except two and police took them along with Kokila to a police station. Tehelka reports that was stripped naked, handcuffed to a window and beaten with lathis by six policement. "They questioned my identity as a woman because I am eunuch," she told the magazine. She was taken to a bath-house where eunuchs live in Bengaluru and was assaulted again in front of other eunuchs. The police then abused her with various foul names and made her change into a shirt and trousers.
For Arif Jafar
In July 2002, four staff members from two organisations, Naz Foundation and Bharosa Trust, working towards creating awareness about HIV/AIDS among men who have sex with men in Lucknow were arrested. They were imprisoned for 47 days, according to this Human Rights Watch report. The police raided the office on a "tip" that a "gay sex racket" was being run. They pronounced the awareness pamphlets as "obscene". The four members were arrested under various sections of the IPC, including 377, 292 (sale of obscene materials and Indecent Representation of Women Act).
When the detained members made formal appeals for release on bail, the Chief Judicial magistrate in Lucknow denied it on the grounds that they are "polluting the entire society by encouraging young persons and abetting them to committing the offence of sodomy." The prosecutor claimed that it was "against Indian culture." One of the detainees, Arif Jafar told HRW that they were not provided with anything for the first ten days of their detention — "not even clean water". And because he is a Muslim, Arif was also linked with Pakistan's Inter-Services Intelligence (ISI) and with Kashmiri militants. The Human Rights Watch report claims that the police also told him that he was trying to bring destruction upon the country through homosexuality and that "Hindus don't have these practices — these are all perversions of the Muslims."
And for all the others
These are just a few of the stories amidst a sea of others who have faced police brutality in the name of Section 377 and those who continue to face discrimination everyday.
Speaking to Firstpost, Bhavya Dore, a journalist who extensively reported on Section 377 and LGBT issues under a Humsafar Trust Media Fellowship says, "While reporting and speaking to people, I have seen pervasive fear, stigma and continuing discrimination, not necessarily through prosecution under Section 377, but equally, if not more, because of the threat of persecution, blackmail and extortion that the section entails...there isn't really data available (at least when I tried filing RTIs in Mumbai) on the number of people convicted or even tried under this section. However, from one reply I did get, it is evident that the number of FIRs registered under the section has increased in the past five years, noticeably since the December 2014 apex court judgement once again recriminalising homosexuality."
In 2000, according to a report, Rights for All: Ending discrimination under Section 377, 10 men were arrested by the police near Vidhan Soudha in Bengaluru and taken to the station, where they were beaten up and their money was taken away and the police blackmailed them that if they said anything, their families would be informed and they would be publicly humiliated.
Section 377 is a non-bailable cognizable offence and getting bail depends on the discretion of the judge, if the judge is homophobic, the accused might not see justice. This Firstpost article reports an incident about a doctor who was blackmailed by seven men who threatened to spoil his reputation and release a video-tape; the doctor faces criminal charges as well.
The Rights for All: Ending discrimination under Section 377 report quotes Ajai Kumar Singh, Joint Commissioner of Police:
"Homosexuality is an offence under Section 377 of the Indian Penal Code and it is the duty of the police to prevent any kind of offence from happening. If the cop on duty questions or prevents any form of crime, he is only doing his job. Where is the question of harassment or atrocity? These are not cases of human rights because these groups are not legally recognised. Let them repeal the IPC Act which bans homosexuality."
The monologue in Sridhar Rangayan's film, 'Breaking Free', is stirring, "We always lived in fear, doubt and anxiety...and also we could contain our love that dare not speak its name. We started living in shadows, in twilight zones." In the film, Chanakya Nugoor, recounts of a time when he went to Cubbon Park in Bengaluru to meet and flirt with someone, he was aware that there was a law that could punish him. Nugoor picked up a guy who then later stole his mobile phone and money, "I felt terribly helpless," he says in the video interview. He went to the police station, only to be questioned as to what he was doing in the park, which followed abusive words like g***** and that he was there to do "dirty things". "Because Section 377 is existing (sic), the first guilty party is me," he says.
Dore, writes in The Caravan about an engineer who was accosted by some men during his rendesvouz with another man; they threatened to reveal his sexuality to his family and that they would call the police on him. The men beat him up, stole his money, laptop and camera. "The law in its current form makes gay men vulnerable to both prosecution under the law, and the prospect of persecution through other means that seek to exploit its discriminatory nature," she describes.
In 2008, two married women who shared a lesbian relationship immolated themselves after their families tried to seperate them, The Times of India reports that the police recovered charred bodies of the women who died hugging one another in Tamil Nadu.
02 Feb could be not the day of the verdict, but the beginning of a long battle. Even if we win, it is still a long road...
Section 377 is not just a collection of sentences on a piece of paper, its consequences are real and painful to those being wronged by it. Pandian, Kokila and Arif have all been victims to a law that is draconian, dangerous and one that has snatched away a life of dignity and liberty and equality from them and 2.5 million others, a "miniscule minority", according the courts. It is imperative that we stick to BR Ambedkar's words on constitutional morality, "It is not a natural sentiment. It has to be cultivated."
First Published On : Feb 2, 2016 17:03 IST