india

Updated: Sep 06, 2019 03:17 IST

In the year that has followed the Supreme Court decision reading down Section 377 of the Indian Penal Code, a number of Lesbian, Gay, Bisexual, Transgender and Queer (LGBTQ) identifying persons have approached the courts to assert their rights. Days after the Supreme Court’s verdict in Navtej Johar versus Union of India, the Kerala High Court allowed the petition of a woman, directing her female partner to be released from the forced confinement of her family. A few weeks later, in October, the Delhi High Court granted police protection to two women who fled their hometown facing threats of violence. By November, another bench of the Delhi High Court ordered the release of a woman, whose family had practically kidnapped her from a police station after forcefully separating her from her partner, who identified as a trans man.

As the law has developed, the courts have had to adapt. In February this year, the Calcutta High Court rejected attempts by a family to separate two women in a relationship, reiterating that the freedom of the choice of a sexual partner was inherent in the right of self-determination. It is not for nothing at all of these cases involved women, on whom the impact of the policing of sexuality is far more severe. This is not to say that the courts have been sensitized overnight.

In the months leading up to the SC’s verdict, violence against LGBTQ persons had escalated. Not a week went by without multiple calls seeking advice regarding sexual assault, theft and blackmail in an atmosphere of impunity, enabled by Section 377 with the section itself making it almost impossible to go to the police as the victims feared being charged with the offence.

Now, even though the section does not criminalize consenting adults in same-sex relationships, we have received queries from many queer women, facing backlash from their birth families over their sexuality. With support from lawyers and activists, many couples have fled situations of violence, assault, death threats, and physical separation from their partners.

In our work, we have observed families resorting to well-tested means to control their adult children – approaching the police. The allegations range from kidnapping, theft or even just a missing person complaint.

In many instances, the police have invoked societal norms and morality to justify their sympathy for the violent, but seemingly grief stricken family trying to get their child back. The immediate effort of the family is often to separate the couple. In some police stations in Delhi, however, experience with inter-caste and inter-faith heterosexual couples facing family violence, gave precedent to the police to correctly apply the law to let adult persons choose their partners.

Queer women have limited options. Only few are able to access short stay homes for women facing domestic violence; many such institutions do not take in same sex couples. In Delhi, some of our clients have found shelter at one NGO shelter home for women, which recently opened its doors to trans women as well. The options are even more limited for gay men and trans persons, who then must seek shelter from others in the community. There is an urgent need to have shelters for LGBTQ persons, and for the state to ensure the safety and security of all its citizens.

The Supreme Court’s verdict on Section 377 was a source of tremendous hope. The statement of Justice Indu Malhotra, who was one of the five judges in the Constitution Bench that delivered the judgment — that history owed an apology to members of the community — held out a promise that things may be different going forward.

A common question being raised is - what’s next? Over the last few months, the efforts of many LGBTQ persons to access the rights guaranteed by the Constitution has often been at the cost of terrible and life threatening consequences. The services and systems in place to facilitate this, however, are severely lacking. The cases show that it is predominantly working class persons approaching the courts and seeking relief. Immediate steps toward setting up emergency shelters, police protection from family violence and ensuring access to education and employment are essential.

Mihir Samson is a lawyer practicing in Delhi. He was part of the legal battle against Section 377 at both, the Delhi High Court as well as the Supreme Court