13 people arrested under Section 377 of the Indian Penal Code in November 2013

377

Midnight, 3rd November 2013, the Hassan police barged into the house of X, a sexual minority person, and asked him to accompany them to the police station under the guise of requiring him to provide counselling to a HIV positive person.
The police had access to the victim’s address from a Program Manager in the Swami Vivekananda Youth Movement (SVYM), an NGO that runs the Government’s HIV prevention project for sexual minorities. The Program Manager was put under tremendous pressure to identify other project staff members. Later, X was asked to provide the addresses of his colleagues.

The Arrests
Within 3 hours, the Hassan police, then carried out a systematic raid arresting 13 persons, most of them from working class backgrounds, under Section 377 of the IPC. Fourteen persons (13 arrested persons and one more person who is ‘absconding’ according to police) were charged under three separate FIRs (First Information Report) by Hassan City Police.

Some people were picked up from their homes and were falsely charged with fatuous allegations that they were having sex in public places. Furthermore they were wrongly charged under Section 377 of the IPC, which was read down in the Delhi High Court Judgment, thereby decriminalising sex between consenting adults.

The arrests and subsequent ill-treatment of the sexual minorities was undertaken at the behest of the Superintendent of Police (SP) Ravi D Channanavar, who was aided by Sub Inspectors PSI Mahesh JE and PSI Krishna SK. Very quickly the arrests became a media spectacle with the media storming the police station and televising photos of the arrested along with details of what they were allegedly doing. . The victims of these false arrests suffered continuous harassment during their 10 day detention in jail They were tortured physically, sexually, psychologically.

Immediate Media Coverage
Some of the headlines in the next day’s newspapers besides being sensational and salacious also played up stereotypical ideas around homosexuality.

For example:
`Student got HIV due to his engagement in Homosexual activities’
(Prajavani dated 05-11-2013 page 5),

Support for homosexuality: Including Doctor 14 Homosexuals Arrested, Homosexual sex in public places, Sexual Violence on innocents’
(Vijayavani 05-11-2013),

`Including Doctor 13 Homosexuals were arrested. Police busted homosexuals network’
(Kannada Prabha dated 05-11-2013- pg1)

`Cops on Lookout for Sex Racket Accomplice’
(The New Indian Express, Bangalore, Wednesday dated 06-11-2013).

Initial FIR
In one FIR, the complainant, a 21-year college student, alleges that in 2011 he was coerced into having sex with 6 persons. These 6 persons, according to him, blackmailed him and said that they would reveal his sexual history, his sexual preference for men, to his college authorities, to other students in his college as well as to his parents, if he did not cooperate. He said that he was forced into having `unnatural’ sex and hence was infected with HIV. It is only now in 2013 that he has had the courage to report on what had allegedly happened to him two years ago. Based on this complaint the police registered a case under Sections 143 (being member of an unlawful assembly), 377 (unnatural sexual intercourse), 114 (punishment for abettor), 506 (criminal intimidation), 270 (malignantly doing an act likely to spread infection or disease dangerous to life) of the Indian Penal Code.

Additional FIRs
Another two FIRs were registered around the same time, suo motu by the police against eight of the accused, under Sections 377 (unnatural sexual intercourse), 114 (punishment for abettor), 294 (doing obscene acts in public) and 34 (act done by several persons in furtherance of a common intention) of the IPC. The complaints by police officers are that eight persons were found engaging in unnatural sexual acts in public.

This suo moto action by the police as well as the collusive fashion in which the three FIRs were registered suggests that the sole objective behind these rapid actions was to target the sexual minority community. The first FIR is supposed to be a complaint of forcible and non consensual sex. A closer analysis reveals many discrepancies and therefore raises doubt about it being an authentic complaint. The forcible sexual intercourse which is the basis of the complaint has occurred in 2011 where as the complaint is filed in 2013, and in the night on a festival day thus lacking in credibility. This tactic of coercing sexual minority persons to file a complaint against their own community members has been used before by the police. A closer reading of the three FIRs and the time and manner in which the arrests were made, provides little proof of reliability regarding the alleged incident. The accused were released after being kept in custody for ten days. The arrest and ten days police custody has greatly affected these individuals lives both emotionally and psychologically. They faced abuse, torture and harassment because they were considered easy targets due to their sexual preference and their class.

Violence and Sexual harassment
The police used intimidation and threats to coerce the accused into coming with them and to “cooperate” in giving details about other sexual minorities. This puts enormous pressure on the individual and the person is wracked by guilt that they betrayed their friends and colleagues.

I was forced to sign on some papers and they took my thumb impression too.
(A, arrested in Hassan)

Every question of the accused regarding their alleged crime or clarifications on the next course of action, was met with severe violence and refusal to provide explanations. Violence was continuous and every action seemed to have elicited violence. They were thus in a state of constant fear, both of unknown consequences and physical, emotional and sexual violence. Many of them spoke of how they were forced to strip off their clothes, their underwear pulled down and the policemen touching their private parts with a lathi. The lathi was pushed between their legs while the policeman, PSI Mahesh made obscene comments.

In police station I witnessed the police beating X and Y. Police humiliated and teased them in filthy language, accused them of not being proper men and wearing saree and made other derogatory remarks…none of us dared to question them after such humiliation. I requested them to allow me to inform my family but they took away my cell phone.
(Z, arrested in Hassan)

The accused were kept in a perpetual state of tension and felt highly vulnerable, by public humiliation, terrorisation and threat of disclosure of their sexual preference to the media. Due to police’s disregard for the rights of X, Y and others, the other inmates at the police station too perpetuated physical and psychological violence on them.

In jail every inmate talked about us in a filthy manner. They called us Gandu, Chakka, they said “oh yours is the chakka case?” Jail inmates joked at us and said we are diwali offer for them.. and that they will have good time using us.
(W, arrested in Hassan)

Right to Dignity
The police publicly humiliated these sexual minorities, mocked them and sexually abused them due to their sexual preference and gender identity. Their right to dignity and privacy was violated by the police when they barged into the homes of some of them and revealed their sexual preference to the family and neighbours. The media’s presence early morning aggravated the situation and the police did nothing to protect sexual minorities’ identities. The harassment was so systematic that many of the arrested were inclined to commit suicide and were begging to be released from jail as early as possible.

My finger got swollen due to the beating. I was extremely upset when they harassed R and, molested him. It was hell as we are not able to understand anything…

Police continued using abusive language.

The PSI asked us who gave us the right to wear Saree?
(X, arrested in Hassan)

Since this incident has revealed the sexual preferences of these individuals, they have faced many familial problems. Y said that his mother didn’t talk to him for a few days after he was released from the police station, because according to her, their entire family has been humiliated by this incident. She even locks him up when she goes to work and does not want her son to even go to the office of the Sexual Minority Community Organisation. X said that even his daughter in school has not been spared, as her teachers have asked her about her father being arrested and the exact reasons for it. X is now attempting to get some stable employment somewhere outside Hassan and find another school for his daughter.

“I can’t live here. I had very good reputation. Now people won’t talk to me. Police have destroyed my life, my future and my right to live. We were tortured and our future is bleak…the police are responsible for this.” – Z

Since everyone one in the neighbourhood knows them and knows about the incident, their movement has become restricted. These sexual minorities are now afraid to move out of their homes freely. Furthermore, they had no support initially either from their employers, or the public. In fact, SVYM (Swami Vivekananda Youth Movement), employer of two of the accused, went so far as to distance themselves from these individuals, by informing newspapers that these people are not employees of their organisation. Since most of the individuals arrested were working class sexual minorities, they were treated in an inhuman manner.

I was shocked that two other people, brought in for our case were let off, only because one person’s wife was in the police force and another person was a lawyer. Even their families were there and they were released immediately. In my case they did not even let me inform my people.
(X, arrested in Hassan)

Creating Fear
The insidious agenda of this whole operation seems to have been to incite fear and create an atmosphere of terror amongst the sexual minorities living in Hassan. This targeting of sexual minorities ignores the fact that as per the judgement of the Delhi High Court in Naz Foundation v. NCR Delhi, sexual minorities are full citizens of India. Just when the struggle for equal citizenship of sexual minorities is slowly getting established, the mass scale of the Hassan arrests seeks to turn the clock back and return sexual minorities to the closet. The arrests are a reminder of the arbitrary power vested in Section 377 of the IPC in local police officers and hence the urgent need for the repeal of this draconian provision.

For any additional information or assistance
Manohar Elavarthi (09632223460)

Shubha Chacko (08197771372)

Arvind Narrain (09980010933)

Gurukiran Kamath (09880365692)
Sangama. Aneka. Alternative Law Forum. Karnataka Sexual Minorities Forum (ksmforum@gmail.com)