“Unnatural Offences”: Obstacles to Justice in India Based on Sexual Orientation and Gender Identity

Section 377 of the Indian Penal Code (IPC), which criminalises homosexuality, is the primary law that discriminates against queer persons in India. In 2009 during the Naz Foundation v. Govt. of NCT of Delhi case, the Delhi High Court states, “We declare that Section 377 IPC, insofar it criminalizes consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution”. This ruling, however, was reversed by the Supreme Court in 2013.

Data from the National Crime Records Bureau (NCRB) show that 1,279 and 1,491 people, in 2014 and 2015 respectively, were arrested under Section 377. The NCRB, which compiles data on the use of criminal laws in India, began publishing information on Section 377 only in 2014.

The threat posed and stereotypes fostered by Section 377 frequently prevents queer individuals from accessing justice, the report states. Instances of blackmail and intimate partner violence, where the victims are queer, tend to go unreported due to risk of the victims themselves being arrested.

Police attitudes towards queer people vary depending on region, language, and on the perceived class and caste of the queer person. Notably, a lack of proficiency in spoken English has been correlated with higher chances of discriminatory and abusive treatment by police officers.

Stigma and marginalisation mean that many transgender people resort to begging as a means to earn their livelihoods, the report states. India’s anti-beggary laws make these individuals highly prone to harassment at the hands of the police, including instances of extortion, unwarranted arrest and displacement.

The Supreme Court acknowledged during the National Legal Services Authority (NALSA) v. Union of India case in 2014 that transgender people have a right to legal recognition of their self-identified gender identity. Nevertheless, a lack of clarity and consistency in the bureaucratic processes of legal gender recognition, and the often uncooperative attitudes of the officials, has hindered transgender persons’ access to this right.

The report states that the Transgender Persons (Protection of Rights) Bill 2016, implemented following the NALSA judgement, threatens to dampen the promises of the judgement. Based on incorrect assumptions about gender recognition for transgender persons, it inhibits their ability to legally self-identify their gender by limiting them to the qualifier ‘transgender’ (whereas many of them choose to self-identify as ‘male’ or ‘female’).

In an interview, a transgender man highlighted the discrimination faced while accessing public toilets – “If I go to the Men’s toilet I’m told to go to the Ladies. If I go to the Ladies I’m sent back to the Men’s”. In another interview, a transgender man spoke of his experience of trying to change his name and gender identity on official documents – “An officer there laughed at me and asked me if it’s possible for someone to change their gender”.

Discrimination directed towards queer people by officials in the justice system, as well as administrative difficulties faced by lawyers representing queer individuals, seriously deteriorate their chances of accessing justice even when their cases are taken to court, the report states.

Focus and Factoids by Andrea Fernandez.

PARI Library’s health archive project is part of an initiative supported by the Azim Premji University to develop a free-access repository of health-related reports relevant to rural India.