One of the most followed legal and political themes in recent times is the development around Section 377 – an archaic law, which dates back to 1861. While there are many such anachronistic laws in our Constitution, this one hits at the root of individual freedoms, and also has the most potential for abuse.
In this interview with Suraj Sanap, a legal officer working with Lawyer’s Collective, Mumbai, we explore the many facets of Section 377; its abuse, and legal remedies under the law for those affected by the section.
The importance of the Supreme Court deliberations on Sec 377
The two-decade-old legal battle will not only result in the decriminalisation of sex between consenting adults and remove the social and legal stigma attached to lesbian, gay, bisexual, transgender and queer persons, but also evolve constitutional jurisprudence on equality, non-discrimination and minority rights.
The Supreme Court is expected to base its decision on Constitutional values like the right to autonomy, the dignity of persons and non-interference by State in private matters.
Therefore, the jurisprudence emerging from this case will lend itself to other minority rights fights such as sexual and reproductive rights of women, right to choose one’s partner without interference from the State or society and facially neutral laws and policies that disproportionately impact a class of persons (beef ban laws and religious liberty).
(A facially neutral law is any government law, regulation, or rule that does not, as written, meaning, from the face of it, discriminate against a particular group.)
Experience with cases related to Section 377
After the SC’s decision in Suresh Kumar Koushal, harassment and blackmail of queer persons spiked dramatically, as a result of re-criminalisation of sex between consenting adults under Section 377 of the IPC.
Families hound lesbians and couples who run away from homes by resorting to false cases of kidnapping and/or theft.
The law as it stands also denied access to justice to male victims of rape, as there is a risk of incriminating oneself under Section 377, IPC, in cases where the accused is a former partner.
Cases of blackmail and extortion
The typical blackmail cases we encounter are where men meet over social media/online dating apps, and then the accused person reveals himself to be only interested in extorting money from the gay/bisexual male victims, who comply either under fear of law or fear of disclosure to family, friends, workplace etc.
In most cases, the victims part with cash and some valuable items to ‘hush’ the threats, and subsequently seek lawyers for legal advice. This is a textbook case of blackmail under fear of abuse of law under Section 377, IPC – however, in our experience, the police still do not understand these cases and merely report them as ‘robbery’ cases.
Between the Bombay and Delhi offices, we have handled around 30-40 cases of harassment and blackmail associated with abuse of the law under Section 377, since December 2013.
Most of the cases remain in the realm of legal advise only, as most people’s socio-economic circumstances do not permit them to file complaints and fight the cases openly. We took three cases to trial courts in Bombay where the victims were ready to fight it, albeit with anonymity.
Of the three cases, only one case survives as the other two victims got tired of the court processes and did not want to risk being publicly identified because news reporters were also covering the trials.
The first case we filed is at the stage of appeal against framing of charge under Section 389, filed by the accused persons before the Bombay High Court. This is reportedly the first case where a trial court has decided to frame the charge of blackmail associated with abuse of law under Section 377 and positively attempted to provide a remedy to a queer person.
Hopes from the bench deliberating this Section
The queer community, as well as the broader movements involving women’s rights and other minority rights groups, hope that the Court will develop an empathetic jurisprudence of constitutional obligation towards protection and promotion of minority rights, regardless of caste, religion, race, sex, gender identity, sexual orientation and health.
Moving beyond identity politics, one hopes that just as the Supreme Court and various High Courts are conscious in the context of transgender rights that the politics of recognition must go hand-in-hand with the politics of redistribution of State resources towards education, employment, health and food security. One is hopeful that this decision will also allow us to push in that direction for other historically marginalised groups.
Rape in the LGBT Community: What to do when a gay man is raped by another
For male-to-male rape, the only remedy presently is Section 377, IPC, which punishes oral or anal sex, regardless of age or consent.
However, the remedy is a limited one, as Section 377 only punishes ‘penile penetrative acts’.
On the other hand, Section 375 (Rape) which punishes male-to-female rape was amended in 2013 to punish all forms of non-consensual, penetrative or non-penetrative sexual acts between a man and a woman. There have to be substantive amendments to the Indian Penal Code to provide remedies for rape/sexual assault for women, men and transgender persons.
What to do if you’re being blackmailed
Sections 388 and 389 of Indian Penal Code provide a remedy in law for blackmail associated with misuse of Section 377. It is advisable that the victim approaches a lawyer for advice, and depending on the victim’s social circumstances, make an informed decision about filing a complaint, whether as an openly queer person or otherwise.
It is not advisable for the victim to directly approach the police station, as the police do not understand the law under Section 388/389, are hostile, and therefore, comes with a real and imminent risk of self-incrimination.
The Indian Constitution is called a living document – it lives and breathes through the people. It is necessary to remove such vestigial laws, as sometimes they can end up causing life-threatening damage to the ‘living’.
(Edited by Shruti Singhal)
Cover Photo: Gaysi Family