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Rape, Beatings, Harassment, Extortion: New Report Exposes Shocking Abuse Of Queer Persons In India

The police lead the list of abusers, and Section 377 is not helping
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Adnan Abidi / Reuters

Despite the Indian government's claim in the Supreme Court that Section 377 of the IPC remains on the statute books primarily to tackle crimes that are not covered by other laws, such as child sexual abuse and rape, new evidence in a report by the International Commission of Jurists (ICJ) shows that the section, which criminalises homosexuality, is regularly used to harass and intimidate consenting gay couples. According to the report, the statute casts a shadow over the lives of queer people, preventing them from accessing justice.

The report uses the term "queer" to refer to any individual who identifies with a non-normative sexuality or gender identity, including individuals who identify as lesbian, gay, bisexual, transgender, intersex and gender-queer, and persons who may not fit into any of these identity categories. Comprising 60 eminent lawyers and judges from across the world, the ICJ has worked towards strengthening justice systems since 1952.

The 60-page report, titled '"Unnatural Offences": Obstacles to Justice in India Based on Sexual Orientation and Gender Identity' is based on 150 interviews conducted by the ICJ in nine Indian cities. In the interviews, queer persons have reported abuse, including physical abuse and rape at the hands of their families and the police. Transgender persons have reported harassment in schools and colleges, on public transport, and being barred from using public washrooms.

The threat of 377 was used to intimidate activists seeking permission to organise Pride events, to force settlements in instances where a gay man had been forced to marry a woman, and for extortion and blackmail, with the legal provisions that are meant to protect from such blackmail rarely being enforced.

The interviews reveal that the police routinely refused to file complaints when a queer person was the victim of a crime, including rape and abuse. Relatives of a gay person frequently kidnapped or confined the person to prevent him or her from cohabiting with his or her partner, and the police refused to intervene in such cases, the report found.

"Criminalization, police violence, and the prejudiced attitudes of officials in the courts' system have a profoundly detrimental impact on the ability and willingness of queer persons to resort to legal avenues to obtain justice," said Sam Zarifi, ICJ's Asia Director. "The systemic discrimination and violence faced by queer persons in India, and the challenges they face accessing justice, are clearly contrary to India's international human rights law obligations and the Indian Constitution."

The report recommends the repeal of Section 377 and urges that the police and judiciary be sensitised to the rights of queer persons. The report also comes down heavily against the Transgender Persons (Protection of Rights) Bill 2016 which is currently with a Parliamentary Standing Committee, and recommends that it be immediately withdrawn. "If enacted and enforced in its current form, the Bill would... contravene India's human rights obligations, including in respect of its limited definition of who a transgender person is; its failure to make adequate provisions on employment, education and anti-discrimination measures; and with respect to the penalties for relevant offences," the report says.

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India's LGBT Movement: A Timeline
July 1999(01 of12)
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India's first LGBT pride parade was in Kolkata. Subsequently, gay pride parades spread across the country. (credit:SAJJAD HUSSAIN/AFP/Getty Images)
December 2001(02 of12)
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An NGO fighting for gay rights, Naz Foundation files PIL seeking legalisation of gay sex among consenting adults.
September - November 2004(03 of12)
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Delhi High Court dismisses the PIL seeking decriminalisation of gay sex. The gay right activists file review petition. The HC dismisses the review plea.
December 2004(04 of12)
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Gay rights activists approach the apex court against the order of the High Court.
April 2006(05 of12)
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The apex court directs the HC to reconsider the matter on merit and remands the case back to High Court.
September 2008(06 of12)
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Centre seeks more time to take stand on the issue after the contradictory stand between the Home and Health ministries over decriminalisation of homosexuality. The gay rights activists contend that the government The Court pulls up the Centre for speaking in two voices on the homosexuality law in view of contradictory affidavits filed by Health and Home ministries.cannot infringe upon their fundamental right to equality by decriminalising homosexual acts on the ground of morality. Centre says that gay sex is immoral and a reflection of a perverse mind and its decriminalisation would lead to moral degradation of society.
October 2008(07 of12)
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The High Court pulls up the Centre for relying on religious texts to justify ban on gay sex and asks it to come up with scientific reports to justify it.
July 2009(08 of12)
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The Court refuses the plea and final argument in the case begins. Delhi High Court strikes down Section 377 of IPC, decriminalising homosexuality.
February 2012(09 of12)
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The Indian Home Ministry opposes decriminalization of homosexuality, calling it "immoral." Within days, the Central Government reverses its stance saying there's no illegality in decriminalizing homosexual intercourse.
December 2013(10 of12)
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The Supreme Court of India reverses High Court decision.
January 2014(11 of12)
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Supreme Court dismisses review petition filed by the Central Government and non-profits.
April 2014(12 of12)
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Supreme Court declares transgender people as a socially & economically backward class, entitled to reservations in education and employment.
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