India: State-Supported Oppression and Persecution of Sexual Minorities

Statement by Mr. Aditya Bondyopadhyay 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 expression, 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, expression, 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 377does 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 expression 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 expression, 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.