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FAQ – Legal issues

LGBTIQA people in India are often concerned about how the law of the land affects them and what protection if offers them. This is not surprising at all given the widespread prevalence of social stigma, discrimination and various forms of violence against them. This section explores some legal issues that frequently bother LGBTIQA people in India

There is so much talk about rights. What exactly do they mean?

There is so much talk about rights. What exactly do they mean?

A right can be defined as an interest protected by law or, in some cases, by social conventions. A right means something which you are permitted to do or not do and if any one tries to stop you from doing something or forces you to do something, such a person can be prevented from encroaching upon your rights and can also be punished by law. There are several forms of rights, namely, human, constitutional and legal rights.

Wikipedia describes human rights as moral principles or norms that describe certain universal standards of human behaviour applicable for everyone, every time and everywhere in the world. Example: The right to freedom of speech, freedom of movement, or the right to freedom from unlawful imprisonment, slavery or torture.

Human rights are commonly understood as inalienable rights to which a person is entitled simply because she or he is a human being, regardless of nation, location, language, religion, ethnic origin, gender, sexuality or any other status. They can’t be taken away except through due process described by law. They are often recorded in various international treaties and provided concrete shape and protected through the constitutional and legal rights in different countries.

Constitutional rights, by their very name, are those enshrined in the constitution of a country. In the Indian context, they include the Fundamental Rights engrafted in Part III of the Constitution of India. For example, Right to Life, Right to Liberty, Right to Equality before Law, and even the Right to Privacy. Certain other rights explained in other sections of the Constitution also are part of constitutional rights, example Right to Property.

Legal rights are those which have their origin in the Constitution of India, as all the laws of the land do. Since the Constitution could not have incorporated everything within its fold, separate laws were required to be made to take care of the situations arising from time to time. For example: Laws against cheating, those that protect women from domestic violence or sexual assault, laws against medical negligence, and so on.

Please note, everyone also has the right to say no! Just as you have a right to decide something for yourself, others have the right to decide something for themselves, and that could include saying no to your proposal.

What can you do if your rights are violated?

What can you do if your rights are violated?

The simplest and most immediate response can be to lodge a complaint against the offending party with the relevant authority. Depending on who has violated your rights and in which environment, the authority could be the school or college administration, a committee set up to deal with sexual or other forms of harassment or abuse in the workplace, a consumer court, or even an owners association in an apartment complex. If the offence committed is criminal in nature, you also have the option of filing an FIR with the police, or approaching a court of law if the police do not accept your complaint.

If it is the police or any government official that has violated your rights, or if the police do not act on an FIR filed by you, you have the option of approaching the Human Rights Commission in your state. There are similar other statutory bodies like the State Women’s Rights Commission, Child Welfare Committees and the National and State Commissions for the Protection of Child Rights. These organizations can exert pressure on the police to act.

If you think any of your Fundamental Rights are being violated, you have the option of filing a writ petition (in the form of public interest litigation) in a High Court or the Supreme Court.

What is an FIR and how to file one?

What is an FIR and how to file one?

A First Information Report or an FIR can be lodged in case of a cognizable offence. In the Indian Code of Criminal Procedure, 1973, there is the description of two kinds of offences: cognizable and non-cognizable. It is usually the more serious offences that are cognizable and in which the police can arrest an accused without a court issued warrant.

An FIR can be oral or written. If it is oral, then the police must write it down, read it out to you and make you sign it. If it is written, the police can still jot down the contents of it in their FIR book and should give you an acknowledgment of receipt of the same. The police are duty bound to supply a free copy of the formal FIR to the complainant.

When you are writing the FIR, make sure you give the specific details of ‘who, when, where and how’. That is, who committed the offence, when it was committed (date and time), where it was committed (the specific location), and how it was committed. Without these specifications the FIR will be vague and devoid of material particulars. If the details are not known, you must state why they are not known. See here for a typical FIR format.

If the offence committed is not cognizable, the police will make a General Diary (GD) entry of your complaint in their register. In such cases they are not empowered to act on their own. So you will have to approach a court of law with a copy of the GD, and the court will direct the police for further legal action based on your complaint.

What is Section 377 and why is there so much noise about it?

What is Section 377 and why is there so much noise about it?

Section 377, Indian Penal Code, 1860 was enacted by the British colonial regime to criminalise ‘carnal intercourse against the order of nature’. Section 377, IPC reads as:

“377. Unnatural offences — Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Explanation — Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”

Why Section 377 is vague and unjust: Lacking precise definition for terms like ‘order of nature’, this outdated and draconian law has been subject to varied judicial interpretations over the years. Initially covering only anal sex, it later included oral sex and still later, was read to cover penile penetration of other ‘artificial’ orifices like between the thighs or folded palms. This law makes consent and age of the person irrelevant by imposing a blanket prohibition on all non penile-vaginal penetrative sexual acts under the vague rubric of ‘unnatural offences’.

Though ostensibly applicable to everyone irrespective of sexual orientation or gender identity, Section 377 acts as a complete prohibition on the penetrative sexual acts between men (or more precisely persons assigned male sex at birth), thereby criminalising their sexual expression and identity.
Society too identifies the proscribed acts with men who have sex with men or MSM (including those who identify as gay, bisexual or homosexual) and often also transgender women. Such criminalisation has a severe impact on their dignity and self-worth.

Application of Section 377: Interestingly, in more than 150 years of its existence, very few convictions have taken place under Section 377 in court. A key reason may be that the medical evidence required to prove that non penile-vaginal penetrative sex has actually taken place is difficult to gather. In the past the law was often used to penalize child sexual abuse in the absence of any suitable law for the purpose. After the passing of the POCSO Act, 2012 this is no longer necessary. However, the bigger question is why have a law to penalize something (homosexuality or being transgender) that according to bodies like World Health Organisation and World Psychiatric Association is neither a disease nor a marker of criminality or any kind of socially harmful abnormality?
The answer perhaps lies in the fact that Section 377 is used more as a tool for persecution rather than prosecution. Considerable research shows that Section 377 is used by the police to harass, extort and blackmail not just gay or bisexual men and transgender women, but also lesbians, bisexual women, transgender men and other queer people who too face socio-legal stigma because their genders and sexualities don’t match so called ‘social norms’. Often families and healthcare providers also misuse this law to threaten LGBTQIA members of the family into silence or submission.

Negative impact of the law: This law also prevents LGBTQIA people from seeking legal protection against sexual violence for fear that they will themselves be penalized or harassed for ‘unnatural sex’. The stigma and prejudice creates and perpetuates a culture of silence around homosexuality and transgender issues and results in denial and rejection at home along with discrimination in healthcare institutions, workplaces and even public spaces.

Legal challenge against this law: Section 377 has been challenged in court. The first petition against the law was filed in Delhi High Court by civil rights group AIDS Bhedbhav Virodhi Andolan in 1994. This petition did not make much headway. Later in 2001, Naz Foundation (India) Trust, an NGO based in Delhi and working in the field of HIV prevention among MSM filed a PIL against Section 377 in Delhi High Court on grounds that it acted as one of the biggest impediments in access to HIV and other health services for MSM. A collective called Voices Against 377 also became co-petitioners on the grounds that Section 377 violated human rights of LGBTQIA people.

After eight long years of court proceedings, Delhi High Court issued a landmark verdict on July 2, 2009 reading down Section 377. The court declared Section 377 as unconstitutional and decriminalized non penile-vaginal penetrative sex in private among consenting adults. But this verdict was challenged by a number of religious groups in the Supreme Court and in a regressive turn of events, the apex court reinstated the law on December 11, 2013. It said the responsibility of changing or repealing Section 377 lay with the Parliament.

Soon after, LGBTQIA and other civil rights groups filed a review petition against the court’s decision. When this was turned down, several curative petitions were filed in the summer of 2014 urging the apex court to reconsider its decision. A favourable decision in case of a curative petition is an extreme rarity, but the court did not reject the petitions. In February 2016 the Supreme Court decided to refer all curative petitions to a constitution bench consisting of five senior-most judges. In the same year, more petitions were filed in the Supreme Court challenging the legal validity of Section 377. MP Shashi Tharoor also challenged this law in the Parliament through a private member’s Bill, but was unsuccessful.

Current status: In August 2017, in another landmark ruling, this time on the matter of Right to Privacy as a Fundamental Right, the apex court said that sexual orientation was part of an individual’s right to privacy and Section 377 violated it. This raised expectations that the court was willing to reconsider its earlier verdict on the law. In January 2018, even as these pages were being written, the court set up the constitution bench mentioned earlier and hearing on the curative petitions were expected to begin soon.

If you’re gay, lesbian, bisexual or transgender, can the police arrest you under Section 377?

If you’re gay, lesbian, bisexual or transgender, can the police arrest you under Section 377?

Section 377 comes into play, not in the case of sexual orientations or gender identities, but only in relation to particular sexual acts, namely non penile-vaginal intercourse. The prosecution has to prove the alleged sexual acts in a court of law beyond reasonable doubt on the basis of medical forensic evidence. However, if someone makes an open admission regarding commission of such sexual acts, then the same may amount to extra judicial confession and can be used as evidence against the person in a trial.

What is the status of same-sex marriage in India? Can you legally live together with your same-sex partner? Can you will your property to your same-sex partner?

What is the status of same-sex marriage in India? Can you legally live together with your same-sex partner? Can you will your property to your same-sex partner?

There is no legal bar on two adults of the same sex or gender in India from performing a ritual wedding (social marriage) and residing together in a household. A transgender man or woman can also similarly wed a person of their choice and live with them. But Indian law does not acknowledge such marriages or live-in relationships. It is at best two friends staying together under the same roof. The only exception is in the case of post-operative transsexual persons, who can enter into legally recognized marriages with a person of the opposite sex or gender.

Our Constitution confers the right to every citizen to reside and settle in any part of the territory of India. Two adults have the right to reside in the same house of their choice without any disturbance from either their families or law enforcing agencies. Even buying a property as co-owners or accessing joint home loans is legally possible, though banks often discourage such practices.

Again, when it comes to inheritance, you can will away your self-acquired property to anyone, even a person not related to you. But your legal heirs, after your death, may challenge the validity of your will in court, which may complicate issues.

Why do the police often question LGBTIQA people in public places like parks?

Why do the police often question LGBTIQA people in public places like parks?

As has been mentioned earlier, Section 377 is often used by the police to harass LGBTQIA people and extort money out of them under fear of arrest and loss of face at home and in larger society. This may also happen in public places like parks and other cruising areas that are popular with men sexually and socially interested in men, as well as transgender women looking for male sexual partners. Often male and transgender sex workers too frequent these places and become victims of police harassment for no fault of theirs.

However, the police know that even if they arrest anyone under Section 377, they will not be able to provide evidence of ‘carnal intercourse’ taking place in a public space. So when they present the person arrested in court (that is, if the person has not already bribed them and escaped), they often press charges under other laws related to vagrancy, public nuisance, obscenity and even laws used to criminalize different aspects of sex work.

If something like this happens to you, it is important to keep your cool and remember that you have rights against harassment and arbitrary arrest. You have the right to know the grounds of arrest, and the right to make a phone call to a family member, friend or lawyer at the police station. If the police question you, you have the right to remain silent and speak only in the presence of your lawyer. It would also help to maintain contact with any local LGBTQIA support group or community leader for help during such a crisis.

How can you tackle blackmail around your gender identity or sexual orientation?

How can you tackle blackmail around your gender identity or sexual orientation?

The offence of blackmailing is legally termed as ‘extortion’ and is dealt with between Sections 383 to 389 of the Indian Penal Code. Section 383 defines extortion as an act of intentionally putting someone in fear of any injury (harm illegally caused to their body, mind, reputation or property) and making the person pay up. Even if the actual extortion doesn’t happen, the person may be put in fear or an attempt is made to put the person in fear – the same is punishable too.

The offence of extortion only takes within its ambit squeezing out of money or any valuable security. If the offender forces the victim to have sex with them, it will be a separate offence under Section 376 or 377, as the case maybe.

Sections 388 and 389 clearly state that whoever commits extortion or puts another in the fear of extortion by threat of accusation of an offence punishable with death or imprisonment for life can be punished with imprisonment for 10 years. The law also says that if such extortion or threat of extortion is regarding an allegation of offence under Section 377, then the extortionist can be punished with imprisonment for life.
Therefore, if any person, including a police official, asks for money from someone on the threat of exposing them for having committed an offence under Section 377, a complaint can be lodged under Sections 388 or 389, as the case maybe.

It will be important to have substantial evidence since finally it will be the complainant’s word against the blackmailer’s. Therefore, a video or audio recording of such extortion may help in proving the allegation. These days blackmail may happen online or through social media. Records of chats with the blackmailer may also serve as evidence of blackmail.

It is important to report a crime of extortion or else it can’t be investigated and punished. The person who is put under fear needs to be courageous and should be supported by well-wishers to lodge a complaint against the blackmailer.

However, it must be kept in mind that the reason for which the complainant was being blackmailed might also surface during the investigation. The reason could be the complainant’s gender identity or sexual orientation, which they don’t want to reveal to others. It could also be evidence of non penile-vaginal intercourse having taken place, which can prove tricky for the complainant.

So the complainant has to be very careful about maintaining their privacy since neither our legal system nor investigating agencies are sensitive enough about protection of privacy.

What does sexual consent mean?

What does sexual consent mean?

In legal terms, two or more persons provide consent when they agree upon the same thing in the same sense. And consent is said to be free or informed when it is not caused by force, undue influence (say, of alcohol or drugs), fraud, misrepresentation or a mistake. The same principle applies for sexual consent.

This may sound simple, but there can be some complexities. So, for instance, you and your sexual partner both should know about the issues involved in having sex with each other. Does anyone of you have an STI or HIV infection and do both of you know about it? Are you freely willing to have sex with or without this knowledge? Do you both agree to the kind of sexual acts you may want to have?

In the Indian context, under Section 377, mutual consent even among adults to practice non penile-vaginal intercourse is a crime. Or, let’s take the case of marital rape. A married woman has no right to say no to sex to her husband, and if he forcibly has sex with her, she can’t complain of rape! Another grey zone is the legal capacity of a person with a mental illness to provide consent to sex or marriage. Clearly, Indian law is not entirely black and white with regard to sexual consent.

How can you deal with same-sex sexual violence?

How can you deal with same-sex sexual violence?

The only legal recourse for an adult male person in case of a same-sex sexual assault in India is under the provisions of Section 377. Our criminal laws don’t make the provisions of sexual assault gender neutral for the victim. Therefore, under Indian law only a woman can be raped or sexually assaulted and not a man. For a man, who is a victim of same-sex sexual assault, it will be seen as an ‘unnatural offence’ that can only be dealt under Section 377. As for sexual assault of a woman by another woman, unfortunately there is no recognition in law till date.

How can you deal with intimate partner or family violence?

How can you deal with intimate partner or family violence?

Indian law does not acknowledge same-sex or same-gender marriages or live-in relationships, or a marriage / live-in relationship between a transgender person and another person of their choice (unless the transgender person is post-operative transsexual and their partner is of the opposite sex or gender). Such relationships will be seen at best as two friends staying together under the same roof.

If one of the ‘friends’ beats up and / or verbally abuses the other, the recourse to law is the same as in the case of an assault by a stranger. Depending on the nature and extent of the injury, the victim can go to a government hospital, get a medical check-up done and receive treatment. At the time of the medical check-up, the victim must inform the doctor about the cause of injury and give the details of the person who caused the injury. An alert here – the nature of the relationship might also surface in the course of the investigation!

With the medical check-up report, the victim can approach the local police station within whose jurisdiction the assault was committed, and an FIR can be lodged. Punishment will depend on the seriousness of the injury and nature, extent and intent of the attack. If the injuries are serious, chances of the offence being treated as non-bailable will be higher and the accused will be charged under more stringent laws.

Women in India facing family violence can take recourse to the Protection of Women from Domestic Violence Act, 2005 and lesbians, bisexual women and transgender men (who are not post-operative transsexual) may technically be able to benefit from this law. But if you are a gay or bisexual man, or a transgender woman (who is not post-operative transsexual), this law will not protect you from family violence. In that case you will have to depend on more generally applicable sections of the law, as in the case of intimate partner violence.

What has the Supreme Court said about transgender rights?

What has the Supreme Court said about transgender rights?

NALSA judgment: On April 15, 2014, the Supreme Court of India came out with a path-breaking and progressive verdict on transgender identities and rights. The court affirmed the constitutional rights and freedoms of transgender persons, including those who identify as ‘third gender’ and those who identify in a gender opposite to their biological sex, that is, persons, assigned female sex at birth, identifying as male and vice-versa.

The judgment also acknowledged the existence of intersex persons though it did not elaborate on the their unique concerns, and the fact that though there may be an overlap, being transgender and being intersex can be two different things.

The judgment was pronounced in National Legal Services Authority Vs. Union of India and Others by a division bench of Justices K. S. Radhakrishnan and A. K. Sikri. The judgment is popularly known as the NALSA judgment. The court noted that its verdict was based on an Expert Committee Report on issues relating to transgender people prepared earlier by the Ministry of Social Justice and Empowerment.

Breaking new ground: By recognizing diverse gender identities, the court broke the binary gender construct of ‘man’ and ‘woman’ prevalent in Indian law. The judgment gave every Indian citizen the right to self-identification of their gender as male, female or third gender.

No medical screening, gender reassignment surgery or any kind of feminization or masculinization process was made a pre-requirement for a person to identify as transgender, seek legal gender identity change, and have their new (desired) gender identity reflected in all identity and citizenship proof documents.

What transgender people could look forward to: The court directed the central and state governments to make sure that transgender persons received equal opportunities in all socio-economic spheres in their desired gender identities – education, skills building, livelihood, social welfare, sexual health and mental health (including addressing specific health issues around gender dysphoria, gender reassignment surgery and HIV vulnerability).

It became necessary for all schools, colleges, employers, public service competitive examinations and different service providers to include the third gender option in their admission / application / appointment processes and policies.

The judgment also stated that transgender persons should have equal rights with regard to marriage, divorce, adoption and inheritance. Above all, given their severely disadvantaged socio-economic status, the court directed the central and state governments to treat transgender persons as deserving of reservations in all educational institutions and for public appointments.

Shortcomings: The weakest aspect of this judgment was that it did not spell out how the parties concerned should carry out the court’s directives. Though central and state governments have taken some steps to promote socio-economic inclusion of transgender persons, like announcing specific social welfare schemes and setting up transgender welfare boards at state and district levels, the implementation of the judgment has been quite poor till date.

What is the government’s position on transgender rights?

What is the government’s position on transgender rights?

After the Supreme Court passed the internationally acclaimed NALSA verdict in April 2014 to recognize the citizenship rights of transgender people, LGBTIQA groups and human rights activists worked with the government to implement the court’s directives through the passage of a comprehensive law in the Parliament. The government also sought clarifications from the court on a few aspects of the verdict. After this process, the government engaged in civil society consultations and a draft Bill emerged in August 2016. This was considered inadequate by transgender groups and the consultations continued.

Government letdown: In November 2017, the Ministry of Social Justice and Empowerment went back on its word and proposed to table the 2016 version of the Bill in Parliament that could harm the very communities it aimed to protect. After nationwide protests broke out against the government’s decision, the tabling of the Bill was deferred. But it is still important to understand its serious shortcomings and question it in its current form.

Serious shortcomings: The proposed Transgender Person (Protection of Rights) Bill, 2016 goes against not just the NALSA verdict but also the government’s own Parliamentary Standing Committee report. This Bill is wrong in its understanding of ‘transgender’ and ‘intersex’ persons and how they may be different. It defines transgender people based on their anatomical maleness or femaleness rather than self-defined gender identity.

The proposed Bill does not uphold the right to self-identify one’s gender, as assured by the apex court. Instead it proposes to set up District Screening Committees to ‘certify’ people as transgender. How can a committee decide if one is transgender or not, when international guidelines recommend self-determination of gender? Moreover, if other people don’t have to be ‘screened’ to decide if they are men or women, why should transgender people be subjected to such a screening?

The Bill offers only token measures in the name of anti-discrimination and protection from violence, and criminalizes begging without offering other livelihood options to transgender people, including hijras. The Bill neither comprehensively addresses the educational, skills building and health concerns of transgender persons (including safe and quality feminization or masculinization services), nor protect their socio-cultural rights.

Turning the clock back? All these issues make the Bill a grave violation of the NALSA judgment. It fails to address the historical social, cultural and legal injustices faced by transgender people since British rule and even after India became independent. Many people argue that India will be stepping backwards if this Bill is passed.

Last Modified: 18 June 2018

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