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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