The unending nightmare of Section 377

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Catch 22 Situation ‘You can have all the rights but you can’t have sex’
Catch 22 Situation ‘You can have all the rights but you can’t have sex’, Photos: Vijay Pandey

On the intervening night of 3 and 4 November 2013, while the rest of the country geared up to celebrate Diwali, the lives of 14 individuals in Hassan, Karnataka turned upside down. The Karnataka Police charged these 14 health workers, who identified with the female gender, under Section 377 of the Indian Penal Code (IPC) — the largest arrest under the section in independent India.

The arrests were made under three FIRs. The first set of arrests was made in the wee hours of the night of 3 November, based on the complaint of a 21-year-old student. The FIR states that the six accused had coerced him to have “unnatural sex” with them and with an individual who had HIV over several months in 2011. The student alleged that, as a result, he contracted HIV.

Based on this complaint, the police registered a case under Sections 143 (being member of an unlawful assembly), 377 (unnatural intercourse), 114 (abetment of offence, if abettor present should be given same punishment), 506 (criminal intimidation), 270 (malignantly engaging in an act likely to spread infection or disease) of the IPC. The second set of arrests, according to another set of FIRs, charged the other eight with public sex.

All arrests, according to the police, were made at cruising spots. However, those arrested say that they were picked up from their homes in the middle of the night while the rest of the town was asleep.

“The police came to my house a little past midnight with my programme manager and asked to me to come to the police station for a case,” says A, who works with Sanjeevani Nagara Grameena Abivrudhi Samudhaya Seva Samathi, an NGO that worked on HIV/AIDS prevention and awareness.

A was forced to take the police to the addresses of his other colleagues. “They hit me and asked me to show their addresses, I knew only the address of B and took them there. B took them to C’s house,” adds A.

C says that the police asked him to accompany them to the police station to help two HIV positive individuals. They asked him to call another colleague, who took them to D’s house and then to the police station.

At the police station, D was humiliated and called a “chakka”. “They took down my pants and said ‘look at your penis’! How can you have a child?” he says. The 14 men were not just arrested, but outed to their families and the public at large.

“The complainant went to the drop-in centre regularly to seek treatment and counseling but had last come in six months before the arrests were made. Community members who knew the complainant reported that he was pressurised by the police to lodge a complaint and has gone off the radar since the arrests were made,” says Rajesh Umadevi, State Coordinator for Karnataka and Kerala of Sangama, a Bengaluru-based NGO that works for the protection of human rights of the transgender community.

The Hassan arrests were made under IPC Section 377 despite a 2009 Delhi High Court (DHC) judgement that had decriminalised homosexuality by reading down the section.

The 150-year-old section states that “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 10 years, and shall also be liable to fine.” The law imposed a blanket prohibition on all penile-non-vaginal sexual intercourse under the vague rubric of “unnatural offences”.

However, in 2009, the DHC judgement removed “private consensual sex” from the purview of this section on the grounds that it was found violative of the right to privacy, dignity and health under Article 21, of equal protection of law and non-discrimination under Articles 14 and 15 and of freedom of expression under Article 19 of the Constitution.

Advocate Gowthaman Ranganathan says that the position of the law is such that unless there is a contrary opinion of another high court on a certain point, the DHC judgment will stand. Since there was no contrary judgement from any other high court of the country on section 377, the DHC judgement applied to the rest of the country. “If not to intimidate the community, why were the arrests made under this section?” he asks.

The 14 men were released on bail soon after but many of their lives went haywire, with their sexuality revealed to their families.

Although the DHC judgement offered some hope to those arrested in the case, it was crushed within a month, when on 11 December 2013, a Supreme Court judgement upheld the criminalisation of homosexuality. It held that LGBTQ individuals constituted “a miniscule fraction of the population” as there have been only 200 reported judgments in the 150 years of the law’s existence.

In the judgement, Justices GS Singhvi and Sudhansu Jyoti Mukhopadhyaya said, “We would like to make it clear that this Court has merely pronounced on the correctness of the view taken by the Delhi High Court on the constitutionality of Section 377 IPC and found that the said section does not suffer from any constitutional infirmity and left 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.”

The judgement was met with protests and the LGBTQ community found support not just across the country but around the world. Although petitions seeking a review of the judgement were filed, they were dismissed by a two-judge bench comprising Justices Dattu and Mukhopadhaya without hearing any oral argument on the ground that the petition had no merit.

In April this year, the SC agreed to hear a curative petition challenging the court’s December 2013 verdict criminalising same-sex intercourse; it is awaiting a date for an open court hearing.

In one of the affidavits filed in the review petition by Voices Against 377, X, who works as a field officer with the same NGOs as those arrested in Hassan, testified to facing harassment by the police both before and after the judgment.

“I identify myself with the female gender and my work involves promotion of HIV awareness, mobilising community members for HIV testing and also distribution of condoms, which is the reason I have faced police harassment. We are shooed away, manhandled and subjected to all sorts of insults and uncomfortable questions,” she says.

In the affidavit, she has also said that police harassment has been on the rise since the Hassan arrests and especially the SC judgement. On one occasion, when X was at a railway station with a colleague — a counselor – the two were accosted by two police officers. Their bags were checked, its contents emptied and then her colleague was dragged by the collar.

“When we protested this uncalled-for treatment, we were told, ‘People like you are ‘illegal’. How can you continue indulging in homosexuality even after such wide publicity of the SC judgement? You should stop being homosexual’,” she says.

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