State-supported oppressionof sexual minorities in INDIA

[Guest guest]

State-supported oppression and persecution of sexual minorities in INDIA

Statement by Mr. Aditya Bondyopadhyay in Geneva Today at the UNCHR

NGO Briefing, United Nations Commission on Human Rights

April 8, 2002

My name is Aditya Bondyopadhyay. I speak for the concerns of sexual minorities

in India, be they lesbian gay, bisexual, transgendered, koti, hijras, aali, or

any other traditional name by which they choose to call themselves.

I am a 30-year old lawyer and have worked for sexual minority rights in India

for the last eight years. Today I place before you not only my experiences in

those years, but also a summary of feedback I have requested and received from

organisations across India working with sexual minorities, regarding their

experiences of State- supported/sponsored oppression and persecution. In essence

I carry their message: therefore I stand here as their ambassador.

India is a democracy, and it has, in spite of all its flaws, relatively good

human rights standards in the letter of the law, assured as constitutional

guarantees to citizens and often ensured by a vigilant higher judiciary. This

has earned India a justifiably good reputation in the international community.

Yet, sadly, this good reputation itself allows the State to get away with

abridging human rights--with persecuting, and supporting the oppression of,

sexual minorities in its territories. Its very reputation allows India to escape

detailed scrutiny on this count.

To maintain its reputation, India often offers lip service to received

understandings in the area of international human rights. But in the case of

sexual minorities, its practice is often remote from its promises.

For example: when India formulated its National AIDS Control Policy and put the

National AIDS Control Organisation [NACO] in charge of implementing it, it made

work with MSM, or men who have sex with men, an area of focused and targeted

intervention. This stemmed from the fact that MSM are recognized the world over

as a group highly vulnerable to HIV/AIDS. As part of the same policy, the

government of India invited the participation of NGOs and CBOs to carry on this

work with MSM. Many NGOs and CBOs responded to this call and came forward to

carry out such work.

All this is laudable, but the truth is different from the rhetoric. In reality,

field staffs of these NGOs and CBOs face harassment from police every day, in

public spaces where MSM socially interact. This fact has been documented by too

many studies and researches to cite here. Outreach workers are often members of

sexual minorities themselves, and they along with others are regularly beaten,

blackmailed, extorted, threatened, and sometimes even sexually assaulted and/or

raped by policemen on duty. This obvioulsly impedes intervention work and

increases vulnerability. Moreover, these acts are clear violations of the rights

to health and to life, as well as to personal security and dignity.

The State and especially the apex agency NACO are aware of this conduct of the

beat constabulary: it has been described many times and at many fora by these

NGOs as well as by me. Yet they choose to turn a blind eye to such activities

and to do nothing. They do so because ultimately the State does not recognise

MSM as human beings with human rights--even as thousands more continue to fall

victim to HIV every month. Its positive, forward-looking and supposedly

rights-based policies are like the symphonies played from loudspeakers to new

arrivals at Auschwitz concentration camp. They simply camoflauge the real intent

of oppression.

Another example of this double standard is the fact that in the UN General

Assembly Special Session on HIV/AIDS in June 2001, India supported the

participation of the International Gay and Lesbian Human Rights Commission, and

made a public statement that it considers gays and lesbians especially

vulnerable to HIVand believes in their participation in HIV/AIDS work. This

brought India much international praise. Yet within a month, police in the city

of Lucknow raided and sealed the offices of two NGOs working on HIV

interventions with MSM, under the auspices of NACO--and arrested four workers.

The NGOs are the 'Naz Foundation International' and 'Bharosa Trust'. The police

also raided the various cruising areas of Lucknow and arrested 7 other persons.

The 4 arrested AIDS workers were charged with conspiring to commit " unnatural

sexual acts " under Section 377 of the Indian Penal Code (IPC), read with

Sections 120b (conspiracy) and 109 (abetment) of IPC. They were also charged

under Section 292 of the Indian Penal Code (sale of obscene books), Section 3

and 4 of the Indecent Representation of Women (Prohibition) Act, 1986

(prohibition of advertisements or publication containing indecent representation

of women), and Section 60 of the Copyright Act, 1957 (remedies in the groundless

threat of legal proceedings)--all this because the safer-sex educational

materials found on their premises were construed not as life-saving information

but as pornography. The AIDS workers were kept in captivity for more than 45

days and were refused bail on two occasions by the lower judiciary before being

granted bail by the High Court. After the AIDS workers' bail was finally

granted, all but one of the remaining arrestees were able to obtain bail. But

one of the arrested was granted bail only in January 2002-- more than seven

months after he was arrested. It is abhorrent that in a country priding itself

on its democracy and its constitutionally guaranteed fundamental freedoms of

statement, association, movement, and belief, a person can be jailed for seven

months under an archaic, colonial statute against sodomy, simply because agents

of the State decided to persecute him for his perceived sexual orientation.

The arrest of the 4 AIDS workers raised extensive protest locally, nationally,

and internationally, but throughout their incarceration, NACO did not once come

out in defense of its own proclaimed policies. The silence is ominous. It

continues to have an adverse impact on HIV work with MSM--and consequently

continues to claim lives.

I myself can testify to the brutality of the repression. As an attorney, I went

to Lucknow on the second day after the arrest and remained there till the time

the arrested workers were released on bail. During this time I was kept under

constant observation by the Lucknow Police and the Local Intelligence Unit. My

e-mail account was hacked into and documents related to the case and protected

by client confidentiality were retrieved regularly. The police kept a tab on the

various internet cafés I was using to send mails and keep in touch with other

supporters. In fact, one such café was raided by the Senior Superintendent of

Police himself with a troop of 30 policemen. I am convinced that the intention

was to detain me in the café and arrest me under false charges. I had luckily

left the café a few minutes earlier to buy cigarettes from a shop across the

road: therefore, I saw the raid happening and could escape.

On one occasion when I discovered that the police were trying to plant false

evidence by illegally entering the supposedly sealed offices of Bharosa Trust

without court permission as required under the law, I tried to ask the police

personnel present at the office under which legal provision they had entered the

premises. I was abused by the leader of the police party, one Inspector RP

Singh, who accused me of being a member of a sex racket, made unsubstantiated

accusations about my sexuality, alleged that I was a part of the sex gang he was

trying to bust (and that this explained why I had come from Delhi to Lucknow to

take on the case), and threatened me with arrest on the spot. The privilege of

client-lawyer relations, a feature integral to a free judiciary and to due

process, was regularly abused in the manners described above. I am convinced

from my experiences at Lucknow and more specifically from the utterances of

Inspector RP Singh that the police could abuse this privilege with impunity

simply because I am open about my sexuality, and therefore in their eyes I could

have my professional as well as human rights curbed.

I received at least 2-3 threatening calls a day during my stay in Lucknow. Lok

Prakash, another activist who was organizing a campaign in Delhi to protest the

arrests, also received abusive calls from Lucknow and threatened by the Lucknow

Police. We had to obtain anticipatory bail for him from the Delhi District

Courts for his protection.

The incident at Lucknow also shows how the other arms of the State continue to

oppress and discriminate based on sexual orientation--and how prejudices,

biases, and homophobia override the avowed human rights standards of the State

and distort judicial process. The arrested four were beaten, denied food, forced

to drink sewer water, abused regularly, and refused treatment when they got

sick. One of the arrested had his glasses stamped on and broken and had to spend

45 days' incarceration with impaired vision. When the matter came up for the

first bail hearing before the Magistrate, I appeared and explained the entire

HIV/AIDS and NACO policy framework context in which the work was carried out by

the arrested AIDS workers. The prosecutor for the State argued in response that

homosexuality was being encouraged by these AIDS activists--and this was against

Indian culture. No arguments as to law were placed by him. Thereafter, in his

four-line order rejecting bail, the magistrate stated that " the activities of the

accused are like a curse on society " . At the peril of attracting the contempt

laws of my country, I beg to state that the action of the magistrate had nothing

to do with dispensation of justice or application of the written law, and

everything to do with his personal bias, bigotry, and prejudice. The arguments

of the State prosecutor reflect the “culture policing” practiced by State

agencies in violation of the expressed provisions of the law, the intention

being to oppress and deny rights to citizens based on their sexual orientation

or sexual conduct.

It needs to be pointed out here that freedoms of religion, statement, movement,

association, and belief in India are guaranteed by its constitution to all

citizens. In that scheme of things, “culture policing” has no place. Yet the

Senior Superintendent of the Police in Lucknow, Mr BB Bakshi, made public

statements to the effect that he would “eradicate homosexuality which is against

Indian culture”. This, like the State prosecutor's statements, is not law but

the arbitrary exercise of power. It shows that “culture policing” in violation

of human rights guarantees is part of the State's repertory of oppression. The

complicity of the judiciary is revealed by the fact that the actions of the

police in Lucknow were effectively condoned by the lower judiciary--which did

not rise to protect these rights even when the opportunity arose, and did

nothing to prevent abuse by curbing such extra-constitutional and extra-legal

practices.

In India, Section 377 of the Penal Code hangs like a Damocles' sword over the

heads of all sexual minorities. Most are aware that the lower judiciary is not

only often prejudiced, but also often escapes scrutiny by the higher judiciary

when acting in a biased manner. Most members of vulnerable groups do not have

the capacity to take matters to the higher judiciary to enforce their rights:

rather, homosexual men and other individuals therefore avoid any entanglement

with the courts. Also the judicial process is extremely slow: speedy justice is

nonexistent in India. This means that for a “serious” crime such as 377,

obtaining bail can take a very long time--up to seven months in the Lucknow

example. Such delayed justice is effectively denied justice, and this also

deters one from pursuing judicial remedy.

Policemen take advantage of this fear of the judicial process to threaten sexual

minorities with Section 377. They employ such threats to blackmail, extort,

rape, and physically abuse, their victims. And because obtaining rapid redress

is a virtual impossibility, members of sexual minorities usually pay up or

accede to the abuse. This also means that the police records never reflect the

fact that the threat of 377 was used, for no case is ever registered. This lack

of a paper trail--of records of the prosecution of consensual sexual acts

between adult males-- is in turn used by the police to claim that Section 377 is

a benign provision chiefly enforced, as they falsely claim, to deal with cases

of male rape. In effect it is a vicious cycle of injustice, where the State's

overt and covert support of the oppression and persecution of sexual minorities

leads to the denial and curtailment of their basic human rights at every stage

of the way.

The fact that the State justifies Section 377 as protecting males against rape

itself shows these discriminatory attitudes. Section 377 does not make a

distinction between consensual and non-consensual sex acts between adult members

of the same sex. Thus on the one hand consenting adults continue to be

victimised by 377, but on the other hand, equating male-male rape with

consensual sex reduces the gravity of the former to a frivolity. This confused

provision also states loudly that in the eye of the Indian State all homosexuals

are rapists and therefore should be punished. This is nothing short of

pre-judging a population segment possibly amounting to 5-10% of the population

and condemning them to permanent criminality. India allows this perversion of

human rights of homosexuals and yet calls itself a country based on the rule of

law. What, after all, can one do when the law itself is a perversion?

377 is used to target transgender persons and hijras in the same manner as MSM.

Indeed, in a public space, a hijra or a transgender person is more easily

identifiable. Consequently they are targeted even more frequently for abuse than

gay identified men, panthis, or other MSM.

One needs also to bear in mind that a vast population of MSM do not label

themselves as homosexuals or adhere to any identity. But they do perform

same-sex sexual acts. The state oppresses them with the use of 377 too, and the

freedom of sexual choice with free consent is therefore denied them. This is not

merely discrimination against an identity group: this is an assault upon all

persons' rights to intimacy and privacy.

Today the issue of Section 377 is even broader than the health, life, legal

status, dignity or rights of individuals. It involves the health of the State:

it is a question of corruption, simply because it is one of the most lucrative

and easy sources of supplemental income for a venal police. Their real objection

to its repeal is the fear of losing this easy money.

It is a fact that police use 377 as a threat; however, strict evidentiary

requirements in India mean that it is very hard to prove in a trial. Therefore

often when the police actually want to initiate charges against homosexuals,

they are booked under false accusations. The most common are petty offences:

theft, loitering, pick-pocketing, and the like. But lately a very disturbing

trend is emerging from many parts of the country. Police raid and arrest

homosexual men in cruising areas; if they do not or cannot pay the demanded

bribes, or refuse to service the police sexually, they are booked for possessing

or peddling drugs. This is a more serious offence with a severer sentence. Yet

since it is unrelated to sexuality in the official documents, no paper trail

points to persecution based on sexual orientation. Recently in the city of

Hyderabad the police raided a series of cruising areas, apparently on a drug

haul, and arrested 20 persons who were identifiably 'kothi/gay'. They were kept

in detention for 40 hours and thereafter released without any charges being

pressed.

The other disturbing trend increasingly apparent is that, in ever-greater

numbers, police pretend to arrest homosexual men from cruising areas--only to

take them either to police vans or to the police station to force them to

provide the police with “sexual favors”. Male sex workers (MSW) are especially

vulnerable to this, since usually the beat constables know who they are. This

sexual exploitation often turns violent and sometimes turns to gang rape should

the person arrested refuse. Also--while most homosexuals, including sex workers,

in cruising areas are now aware of HIV/AIDS and increasingly use condoms-- the

police insist on having unsafe sex. The pattern of brutal rape and gang rape is

intensified if the victim resists unsafe sex. This has resulted in terrible

trauma for the victims, and increased fear of contracting HIV and STDs. It also

leads to depression and other psychological/emotional complications, not to

mention physical trauma and hemorrhage from the torture and abuse.

The fact of being homosexual is not technically a crime in India--only (under

Section 377) the act of “unnatural sex”. But “unnatural sex” has been

interpreted by the courts to cover almost every mode of sexual statement between

consenting adult males. Thus in India the State suppresses spaces where sexual

minorities might socially interact--including clubs, bars, and discotheques.

Only private homes and public spaces remain available. Since in India most homes

offer little seclusion, any interaction there is also effectively limited. That

leaves only public areas. Therefore homosexuals, hijras, and transgender men

continue to cruise in public areas in spite of the regular oppression of the

police. And as a result the police also continue to have a field day for

exploiting them. Thus effectively the State herds sexual minorities into public

spaces by denying them other options; there, though, they can readily be

exploited by State agents, namely the police, to obtain illegal gratification of

all kinds.

Hijras, a community comprised of biological intersex persons and transgender men

[as in the “male-to-hijra” transgender population, many of whom opt for

castration, and among whom hijra is treated as itself a separate gender] are

found in all parts of India and come from all ethnic and religious backgrounds.

It is estimated that there a half a million to one million hijras in India. Yet

for half a century since independence the State has assiduously turned a blind

eye and refused to acknowledge their existence. Hijras, who prefer to call

themselves a third gender as distinct from either males or females, are refused

identity papers when they choose to express this gender identification in their

official application forms. Thus deprived of civil status, they are denied

treatment in State-run medical institutions. They are not allowed social service

benefits and are refused access to public housing schemes--thereby ghettoising

them in crammed slum localities with no civic amenities. For a long time the

Election Commission in India refused to give them voter identity cards, denying

them their democratic rights to political participation. When voter identity

cards were at last issued to them they were forced to choose between either male

or female as their gender, thereby negating their chosen and preferred

self-definition. No governmental job has ever been given to a hijra since all

jobs are reserved for either males or females. They are denied protection from

discrimination in the private job market. They are effectively reduced to

subsistence levels of existence, where many are forced to take up sex work as a

means of survival. All this can devastate their mental, physical, and

psychological health and well-being, and increase their vulnerability to

HIV/AIDS.

In recent municipal elections in Delhi, hijras were not allowed to contest seats

reserved for women candidates; but the same logic often denies them the status

reserved for men. In effect the State, by refusing to recognise the gender

identity of hijras, denies them visibility, voice, and existence in political

and civil society. They are not just disenfranchised but denied the rights to

statement, to dignity, and often to life.

Law and State practice also have a devastating effect upon women. There is no

law expressly criminalizing lesbian sexuality or conduct in India. Still, in the

past, when lesbian relationships have come to light, the police have threatened

the use of 377 against them. So far as is known, no charges have actually been

brought. Yet the State has also institutionally acted to oppress and suppress

lesbians. In 1992, two women constables in the Madhya Pradesh Police decided to

marry in a public ceremony. The Madhya Pradesh police authorities expressed

their outrage at what they called “obscene behaviour”: both women were forced to

resign from the police force, and disappeared from public view. The pressure of

silence and invisibility is great. In the year 1999-2000 a Malayalam newspaper

reported 7 suicides of lesbians in Kerela State. In the same year two girls in

the state of Orissa entered into a notarized agreement to stay together. When

this came to light, the family of one of the girls, who had strong local

political connections, debarred her from moving out and apparently beat her.

Ultimately the severe reaction of the family drove both the girls to attempt

suicide by consuming poison. One of the girls died. Since then attempts by

activists to contact the other girl have been thwarted by the family. (This

incident was recorded by the Indian NGO ABVA--“AIDS Bhedbav Virodhi Andolan”, or

“Movement Against Discrimination Based on AIDS”-- in a fact-finding report

called “For People like Us”.)

Lesbians often face oppression and violence within their families when they

express their sexuality or refuse marriage. They carry the double burden of

being women in an oppressively patriarchal society, and of being lesbians. This

burden can lead to violence within relationships. Also, there have been reports

of lesbians who were raped by males to “cure them of lesbianism”. Many lesbians

do not dare to report acts of violence, fearing the repression they would have

to face if their sexuality became public knowledge.

There have been unconfirmed reports from Nagaland of a lesbian woman who was

confined to a police station and raped by the police for 5 months to punish her

for being a lesbian. There have also been reports from lesbian women's groups

about women police officers sexually assaulting women prisoners to extract

information. The violence and brutality increase if there is any indication of

the prisoner being a lesbian. Due to the endangered condition of most lesbians,

no complaint is preferred against these brutal abuses.

It is significant to mention here that a constitutional challenge has been

mounted in the Delhi High Court by the Naz Foundation India Trust against

Section 377 of the IPC. The matter is now sub-judice.

Law reform in India is indeed urgently needed. The Indian Law Commission has in

its recent 172nd report made a recommendation for a new, gender-neutral rape law

which would cover not only male-male rape but also sexual violence and sexual

assault by women against women. It also has called for the repeal of Section

377. Yet given the prejudice against homosexuality publicly expressed by our

legislators/affiliated members from the ruling coalition, as well as by the

Solicitor General's office, it is unlikely that either the parliament will act

on the repeal of 377 in the near future, or that there will be an easy or

uncontested passage in the pending matter before the Delhi High Court. The

interests as well as the prejudices of a repressive State dictate the

perpetuation of laws such as 377 IPC.

Today a debate rages with regard to the recommendations of the Law Commission

and the proposed new law. While on the one hand a segment of the lesbian

movement believes that a law that gives protection to women against sexual

assault/violence by other women is desirable in view of the high degree of such

violence that goes unchecked and unpunished today, another segment fears such a

law would be misused by family members and others to criminalize legitimate,

consensual, non-violent adult lesbian relationships as sexual assault. This

second school of thought also fears that lesbian sexuality will be mentioned in

law for the first time only in a negative criminal light, without any positive

legislative safeguards.

Both opinions are valid. What concerns me, though, is the fact that the

government has thus far turned a blind eye to the real problems of violence that

lesbians face. The proposed legislation simply extends this blindness,

indicating their clear insensitivity to how such legislation can be used against

lesbians. In the course of pre-legislative consultative processes, lesbian

communities are given no voice, space, or priority to explain the possible

consequences to lesbian existence and lives. It is as if lesbians do not exist

in India.

India has now enacted a law to implement the human rights guarantees in

international instruments it has ratified, including the ICCPR, and has formed a

National Human Rights Commission. The various States have also formed Human

Rights Commissions under that law. The National Human Rights Commission has been

vested with authority to investigate violations by State and other actors, and

to protect individuals against such violations.

In the year 2001, the NGO Naz Foundation India Trust instituted a complaint

before the NHRC regarding the fact that medical establishments in India,

including government-run medical institutions, continue to “treat” homosexuality

as a mental disorder, and even administered gruesome electric shocks as“aversion

therapy”'. It pointed out that the scientific understanding of homosexuality has

changed and that most international psychiatric bodies do not consider

homosexuality a sickness or a condition in need of cure. It further pointed out

that the problem arose because the Indian mental health fraternity and its

regulatory bodies have no clearly defined position on homosexuality, exposing

homosexuals to exploitation by doctors and psychiatrists. It asked that such

treatments be declared a violation of human rights.

The NHRC, after prolonged deliberations, dismissed the complaint. Its action

failed the whole sexual minority population of India; many activists, including

myself, consider its decision disgraceful. But the decision also revealed

realistically how far there is to go before our rights are respected, protected,

and realized.

Paradoxically, not long after, the NHRC published a report on a colloquium on

“HIV and Human Rights” which it had organized--expressly urging that Section 377

be repealed as a violation of the rights of MSM. Another test case needs to be

brought before the NHRC to explore its response in light of this new

recommendation.

It is not only State institutions that oppress sexual minorities in India.

Private employers, private extortionists, blackmailers, violence-mongers,

rapists, and many more participate in the work of repression. These private

parties derive their power, however, from the fact that there is effective

criminalisation of homosexuality in India, and that biases are supported and

promoted by State agents. They are therefore confident that no homosexuals would

bring their criminal activities to light for fear of incriminating themselves.

They enjoy effective impunity. And often the police offer no protection, either

ignoring or joining in the abuses in pursuit of gain. Today it is indisputably

understood that States have a responsibility to protect their peoples against

abuses by other parties: here, too, the Indian State deliberately and completely

fails.

I urge the United Nations' human rights mechanisms to hold India responsible

both for its actions and its inaction. Employ your moral pressure and your

powers of suasion to summon it back to full respect for rights. Call upon the

Indian government to ensure that the human rights of all in India are respected,

protected, and promoted; that the practices of discrimination, arbitrary arrest,

invasion of privacy, and torture all end; and that the pall of criminality

hanging over the heads of this segment of its population is immediately removed.

Otherwise India's claim to be a nation of law, a country that protects the human

rights of all its peoples, will be undermined by its own actions, and revealed

to the world as a hollow sham.

---------------------------------