6th September, 2019: 1st Anniversary of the Verdict on 377


Congratulations to the LGBTQ Community on the 1st Anniversary of the SC verdict on Section 377!

The Honourable Supreme Court of India today (6th September, 2018) defanged section 377 of the Indian penal code that criminalised homosexuality.

A bench consisting of Chief Justice Dipak Misra and Justices D Y Chandrachud, A M Khanwilkar, Indu Malhotra, and Rohinton Fali Nariman, in separate but concurring judgments, ruled that India’s LGBTQ community has the same sexual rights as everyone else.

“A hundred and fifty eight years is too long a period for the LGBT community to suffer the indignities of denial. That it has taken sixty eight years even after the advent of the Constitution is a sobering reminder of the unfinished task which lies ahead. It is also a time to invoke the transformative power of the Constitution.”

“The choice of a partner, the desire for personal intimacy and the yearning to find love and fulfilment in human relationships have a universal appeal, straddling age and time. In protecting consensual intimacies, the Constitution adopts a simple principle: the state has no business to intrude into these personal matters. Nor can societal notions of heteronormativity regulate constitutional liberties based on sexual orientation.”

“Sexual and gender based minorities cannot live in fear, if the Constitution has to have meaning for them on even terms. In its quest for equality and the equal protection of the law, the Constitution guarantees to them an equal citizenship. In de-criminalising such conduct, the values of the Constitution assure to the LGBT community the ability to lead a life of freedom from fear and to find fulfilment in intimate choices.”

“The impact of Section 377 has travelled far beyond criminalising certain acts. The presence of the provision on the statute book has reinforced stereotypes about sexual orientation. It has lent the authority of the state to the suppression of identities. The fear of persecution has led to the closeting of same sex relationships. A penal provision has reinforced societal disdain.”

“Sexual orientation is integral to the identity of the members of the LGBT communities. It is intrinsic to their dignity, inseparable from their autonomy and at the heart of their privacy. Section 377 is founded on moral notions which are an anathema to a constitutional order in which liberty must trump over stereotypes and prevail over the mainstreaming of culture. Our Constitution, above all, is an essay in the acceptance of diversity. It is founded on a vision of an inclusive society which accommodates plural ways of life.”

“We hold and declare that in penalising such sexual conduct, the statutory provision violates the constitutional guarantees of liberty and equality. It denudes members of the LGBT communities of their constitutional right to lead fulfilling lives. In its application to adults of the same sex engaged in consensual sexual behaviour, it violates the constitutional guarantee of the right to life and to the equal protection of law.”

“Society cannot dictate the expression of sexuality between consenting adults. That is a private affair. Constitutional morality will supersede any culture or tradition.”

“The choice of a partner, the desire for personal intimacy and the yearning to find love and fulfilment in human relationships have a universal appeal, straddling age and time. In protecting consensual intimacies, the Constitution adopts a simple principle: the state has no business to intrude into these personal matters. Nor can societal notions of heteronormativity regulate constitutional liberties based on sexual orientation.”

Click on the link for : The entire verdict on Section 377

GayBombay Congratulates the LGBTQ Community


Congratulations!!

The Honourable Supreme Court of India today (6th September, 2018) defanged section 377 of the Indian penal code that criminalised homosexuality.

A bench consisting of Chief Justice Dipak Misra and Justices D Y Chandrachud, A M Khanwilkar, Indu Malhotra, and Rohinton Fali Nariman, in separate but concurring judgments, ruled that India’s LGBTQ community has the same sexual rights as everyone else.

“A hundred and fifty eight years is too long a period for the LGBT community to suffer the indignities of denial. That it has taken sixty eight years even after the advent of the Constitution is a sobering reminder of the unfinished task which lies ahead. It is also a time to invoke the transformative power of the Constitution.”

“The choice of a partner, the desire for personal intimacy and the yearning to find love and fulfilment in human relationships have a universal appeal, straddling age and time. In protecting consensual intimacies, the Constitution adopts a simple principle: the state has no business to intrude into these personal matters. Nor can societal notions of heteronormativity regulate constitutional liberties based on sexual orientation.”

“Sexual and gender based minorities cannot live in fear, if the Constitution has to have meaning for them on even terms. In its quest for equality and the equal protection of the law, the Constitution guarantees to them an equal citizenship. In de-criminalising such conduct, the values of the Constitution assure to the LGBT community the ability to lead a life of freedom from fear and to find fulfilment in intimate choices.”

“The impact of Section 377 has travelled far beyond criminalising certain acts. The presence of the provision on the statute book has reinforced stereotypes about sexual orientation. It has lent the authority of the state to the suppression of identities. The fear of persecution has led to the closeting of same sex relationships. A penal provision has reinforced societal disdain.”

“Sexual orientation is integral to the identity of the members of the LGBT communities. It is intrinsic to their dignity, inseparable from their autonomy and at the heart of their privacy. Section 377 is founded on moral notions which are an anathema to a constitutional order in which liberty must trump over stereotypes and prevail over the mainstreaming of culture. Our Constitution, above all, is an essay in the acceptance of diversity. It is founded on a vision of an inclusive society which accommodates plural ways of life.”

“We hold and declare that in penalising such sexual conduct, the statutory provision violates the constitutional guarantees of liberty and equality. It denudes members of the LGBT communities of their constitutional right to lead fulfilling lives. In its application to adults of the same sex engaged in consensual sexual behaviour, it violates the constitutional guarantee of the right to life and to the equal protection of law.”

“Society cannot dictate the expression of sexuality between consenting adults. That is a private affair. Constitutional morality will supersede any culture or tradition.”

“The choice of a partner, the desire for personal intimacy and the yearning to find love and fulfilment in human relationships have a universal appeal, straddling age and time. In protecting consensual intimacies, the Constitution adopts a simple principle: the state has no business to intrude into these personal matters. Nor can societal notions of heteronormativity regulate constitutional liberties based on sexual orientation.”

A great thank you to

The Honourable Supreme Court of India

Click on the link for : The entire verdict on Section 377

View: Strike down Section 377 as it has no place in today’s India


Written by Vikram Doctor,
Jan 13, 2018

For The Economic Times

If, in the course of this year, the Supreme Court of India finally declares that Section 377 of the Indian Penal Code (IPC) must stop criminalising consenting adults in same sex relationships, it will be almost 18 years since the current battle to change the law began.

In the current state of the Supreme Court, of course, all bets are off. But if it happens, it will mean a generation of young lesbians, gays, bisexuals and transgender (LGBT) people will have come of age in the time taken to fight the case. They have helped change the world in which the case is being heard, and will determine where the future challenges for LGBT people will lie.

In all this time, of course, the basic logic of the case has never changed. It was always absurd to treat people as criminals for something intrinsic to them. It was always absurd that love between consenting adults is subject to the censure of the state.

And it was always absurd beyond belief that the 19th century British law that underpins this, continues to apply in such a different time and place. Last year marked the 50th anniversary of the UK removing the law itself, and yet that same proscription continues to apply in India.

But if the reason for the case has never changed, the context in which it was fought has. Partly it was time and the transformation in the world at large. With most of the world moving towards acceptance and the matter-of-fact integration of openly LGBT people into regular aspects of life, India is an increasingly awkward fit with the mostly fervently religious countries that still strongly oppose LGBT rights.

New Horizons
The growth of new industries in the digital, service-oriented and creative fields has also increased the push towards LGBT rights. It’s not quite correct to assume the older industries of manufacturing, farming and resource extraction were intrinsically homophobic. The British film Pride, based on a true story of gays and miners supporting each other in the Thatcher years, showed how attitudes can change and, trade unions today are often strongly LGBT supportive.

But the newer industries allowed for greater diversity — in fact, required it, since success in them came from mental and physical skills that weren’t, literally, embodied in how one looked or behaved. Knowledge-driven industries couldn’t afford to lose the people they needed just because of their race, sex or who they slept with. And countries that saw such industries as their future had to realise the same.

One of the unexpected beneficiaries of the call-centre boom were young LGBT kids from middle-class families and small towns. At one time such kids would have had no option but to follow their families’ choices for them, getting married before they had any real chance to understand their sexualities. But call centres, with their constant need for new young workers, offered them jobs at just that young adult phase.

The salaries often equalled what their parents earned, so couldn’t be countered. Best of all, all that mattered was your voice and how you used it, not how you looked and who you flirted with. Call centres opened horizons by specifically teaching their young workers to deal respectfully with possibly gay and lesbian customers abroad — an important lesson for their straight workers as much as their gay ones.

Homophobes often fume about the entertainment world promoting LGBT rights, not least because so many LGBT people work there. This is, again, not entirely right since the entertainment industry is as profit-driven and risk averse as any mainstream industry and has actually tended to lag social change in how they show the LGBT community. Hollywood, as much as Bollywood, is happiest with the unchallenging stereotypes used for mainstream entertainment, in Will & Grace as much as Dostana.

But in the end, the entertainment industry catches up and, rather than influencing change, is a barometer for how much has changed. The fact that a gay romance like Call Me By Your Name is a top Oscar contender — just a year after a gay film like Moonlight won — reliably indicates mainstream acceptance, as much as the now fairly routine inclusion of LGBT characters in Bollywood shows. When Sridevi, in her hit film English Vinglish, reproved a homophobic comment about her gay English teacher, she sent a quiet message not just to young people watching, but also their parents’ generation, who would have idolised her.

Perhaps the biggest sign of how far change has come was provided by the anti-Section 377 legal battle itself. The recent stimulus in the process came from a new petition filed by a group of LGBT people, led by the noted dancer Navtej Singh Johar. This might seem routine, but in fact represented something new since none of the petitions in the past involved LGBT people themselves.

The reason for this was simple. When a law defines someone as a criminal, it is hard to challenge it for fear of losing, and having one’s criminal status confirmed. Reading the actual wording of Section 377, where the punishment prescribed is “imprisonment for life, or with imprisonment of either description for a term which may extend to ten years” is an excellent deterrent to challenging it.

Legal Raps
Around 2000, when activists in India started considering filing a challenge, no LGBT person was willing to take the risk of becoming a petitioner. Instead, Naz India Foundation, an organisation headed by Anjali Gopalan, that dealt with HIV prevention — working with the Lawyers Collective, headed by Anand Grover — filed a case based on the problems Section 377 caused in preventing the spread of HIV.

Because gay men are at high risk for contracting HIV, any effective programme needs to be able to address them — but this was hard when they were also at a risk of being arrested. (The argument that the law itself prevents the spread of HIV by deterring gay men from having sex simply doesn’t work in practice. It just drives homosexual behaviour further underground and makes it harder to tackle the HIV risk.)

An earlier attempt had in fact been made in 1994 by the AIDS Bhedbhav Virodhi Andolan (ABVA), a NGO that was stung into doing it by the news that Kiran Bedi, the highprofile police officer in charge of Tihar Jail, had banned the use of condoms to control HIV. Any use of condoms there, she reasoned, would be for homosexual sex and that would contravene Section 377. ABVA’s petition challenged this inconsistency between trying to prevent the spread of HIV and upholding the law. It was an important step, but perhaps too soon to expect logic to prevail and the case languished and was eventually dismissed.

The case filed by Naz in 2001 did progress, though with several set-backs. At one point, the Delhi High Court threw it out on the grounds that Naz had no locus standi, since no LGBT people were directly shown as victims. This was appealed in the Supreme Court, which agreed that the matter was important and that Naz has locus, and the case went back to the Delhi High Court. To bolster the campaign, an organisation called Voices Against 377 was formed and also filed a petition.

In July 2009, a Delhi High Court bench made up of Chief Justice AP Shah and Justice S Muralidhar finally delivered a victory with a verdict strongly supporting LGBT rights. But this was immediately challenged in the Supreme Court and to defend it several petitions were filed — from a group of parents of LGBT people, a group of teachers, a group of psychiatrists and the filmmaker Shyam Benegal in his individual capacity.

Despite this formidable line-up of support, and the considerable legal talent that came on board to represent the petitioners, in December 2014, Supreme Court Justices GS Singhvi and SJ Mukhopadhaya overturned the earlier verdict in their decision of Suresh Kumar Koushal vs Naz Foundation. A great deal of analysis has gone into exposing the flaws in the Koushal decision, but perhaps the most quietly damning comment came from retired Justice Leila Seth, in a piece written in the Times of India in January 2014. Beyond all the deficiencies in the verdict, she wrote she was pained by how “the interpretation of law is untempered by any sympathy for the suffering of others”. There was ample evidence that LGBT people suffered under the law, but the verdict refused to consider this.

There was an echo here, perhaps, to another famous setback for LGBT rights — the 1986 US case of Bowers vs Hardwick where the US Supreme Court declined to strike down the rights of states to discriminate against homosexuals (this was reversed 16 years later in the case of Lawrence vs Texas). The deciding vote in that case came from Justice Lewis Powell who later told one of his law clerks that he didn’t think he had ever met a homosexual. In reality, he had at least two gay clerks, but who were never open about their sexuality. Powell later admitted that his decision in Bowers might have been a mistake.

Direct Approach
The lessons activists have drawn from this story is that in pushing for change those who desire it most must be open about who they are and why they want the change. Menaka Guruswamy, the Supreme Court lawyer behind the recent petition filed by Johar and other LGBT people, felt that the case had to have this. “There is something very basic to law about it,” she says. “You approach the Court directly saying that you have been harmed by the law and you want it to change. It is a very powerful position.”

Even now, she admits, it wasn’t easy. Many people whom she approached had cold feet at the last minute, but finally, this time, she got a group of LGBT people willing to stand up for themselves in court. Johar was joined by his partner, journalist Sunil Mehra, chef, restaurateur and author Ritu Dalmia, hotelier and writer Aman Nath and business consultant Ayesha Kapur.

On January 8 this year, Chief Justice Dipak Misra passed an order directing that their case be taken up for hearing before a larger bench: “Social morality also changes from age to age. The law copes with life and accordingly change takes place,” he wrote. And in a sentence that stands as a rebuke to that lack of sympathy in Koushal criticised by Justice Seth, he wrote firmly: “A section of people or individuals who exercise their choice should never remain in a state of fear.”

What happens next is an open question, especially given the current state of turmoil of the court. Yet it is also a sign of how much attitudes have changed that, in view of all the highly contentious matters facing the court — the Babri Masjid, the beef ban in Maharashtra, aspects of Aadhaar — the fate of Section 377 seems relatively less trouble to decide.

In all the other matters, it will be impossible to deliver a verdict that will not inflame some section of society. Deciding against Section 377 will definitely provoke some criticism, but much of the media, most social influencers and young people in large numbers will support the decision. Even most major political parties are now tacitly in support, even if they are unable to pass any legislation on Section 377 themselves — the general feeling seems to me that any action is best done by the Supreme Court.

A decision to declare Section 377 inapplicable to consenting adults would also be applauded around the world. Based on simple population statistics, a decision to change the law would, at one shot, remove the stigma of being deemed a criminal from more than one-sixth of all LGBT people in the world. It would be one of the largest leaps for human rights at any one time anywhere.

Whatever turmoil the Supreme Court is currently heading into, it should not come in the way of coming to a decision that is long overdue and striking down a law that has no place in India today.

Gay Bombay Special Sunday Meet: “Privacy & The Law” an A-Z: Report (09/2015)


Sachin Jain

Introduction: People are becoming open online when technology, from WhatsApp to Grindr, collides with real world. Extortion cases and breach of privacy are hot topics now. Even the Supreme Court has been asked to define privacy by government. Vijay Hiremath, an independent human rights lawyer practising in Mumbai, has been dealing with cases related to privacy with LGBT community for over a decade. This report is a transcript of conversations which may provide insights on contemporary privacy issues in Mumbai. It is in no way prescriptory and opinions expressed in discussion are not necessarily of Vijay, Gay Bombay or the report writer.

Blackmail: IPC 389 against blackmail under 377 exists to prevent misuse of 377. Also you have autonomy to reveal if you had sex or not.

Complaints: Cases normally happen in triangles, jilted lovers, etc. That’s the only time police comes. Belgian gay fashion photographer arrested; He had photographed one person, thanks so much reply received. He had rejected another for photo shoot and friendship, who complained. Even though no minors were involved, they still filed case under IT act as nude photo sent on email.

Condoms: Carrying condoms with you, anytime, anywhere, is not a problem and does not signify intention to have sex.

Cross-dressing is not an offense though harassment exists.

Dating Apps: Grinder and PR are a grey area. Men meeting for sex or friendship? Having an account is not an offence, but putting self porno material on is an offense, if someone complains. Nudity as pornography is a grey area, as “prurient interest” is not defined. Previous communication like sexual likes can be used as evidence.

Extortion: After 377 went, extortion cases reduced, but now cases have increased after recriminalization. Typically post-party stranger home-taking drink spiking leading to robbery are common.

Hotels and bars: Using hotels is extremely risky for the community. Precaution may be to use high-end hotel, end up paying more but is safer, and police will think twice. Recently in Mumbai the police raided hotels and took out couples from rooms to police station. They had given correct IDs, and charged them in indecency in public, and produced in court and released them as bailable. It was very humiliating. Case is before high court. Despite backlash, there is no guarantee that this will not happen again. Raids in hotels are easiest even in heterosexual cases, under pretext of cracking trafficking rackets. A Colaba cabaret bar had some topless performances decades ago, patrons filed case of being offended, court dismissed saying you went there yourself. Basic point is not to get paranoid, most of the police or government is not interested despite some busybodies, but its still relatively rare in Bombay. Court has said they will frame guidelines about raids, but none exist yet.

Lawyers: At first instance itself you can ask for a lawyer and wait for 5-10 minutes to speak to lawyer. Technically they need to keep for 24 hours but they can call you everyday and harass you. You can refuse to answer questions, but name and address have to be given.

Minors: Even if counselling informally, always make good intentions clear. If counselling unknown person over email, declare presumption that all conversations are with majors.

Office: In office harassment, document it by sending an email to your boss, and companies take action even when there are no rules.

Parties: Nowadays they are assumed to be easy. The amount of work behind the scenes, who know how to handle cops and excise issues are difficult. Parties also advertise about dark rooms, and sex, which opens self to police raids.

Police entry in premises: Do police have right to enter premises? Generally no, you can ask why you have come, but there is no blanket ban. Only if they fear crime (even sodomy) is being committed, like suspect taking a minor to the bedroom they can enter without a warrant. While dating, anyone even a day below 18 years could cause massive problems due to POSCO law. Case can be filed any time in life, there is no time limit so see ID of people you take things further with if young.

Pornography: Sections 292, 293 and 294 of IPC deal with pornography. The basic rule is that you cannot circulate it, can use it for yourself, including pics and stories. Don’t send it. Child pornography punishable for 5 years. Ensure you do not have any such porn even mistakenly. It is easy to find out through phone or hard disk. Emailing, clips by Whatsapp or DP pictures can be problematic. Police also ask people for passwords to mobile to check for pornography. This is also a grey area. You try to get away by asking reason for why checking phone. Storage of porn is fine: on a raid the police found a room full of porn CDs, and the guy said they are for consumption, the Court and accepted. Watching porn in public, with others watching can be a problem if they complain. Do not send video clips of yourselves having sex on the internet. Carelessness and stupidity have no solution.

Public obscenity: If you show a play or movie where 2 men have sex it is not an offence as long as people don’t object. Then court has to decide, which is why those who come for film screenings we have people sign an undertaking saying they have come here of their own free will and don’t object to films shown. Obscenity in public is not defined. We live in a country where spitting is okay, kissing isn’t.

Resistance: IPC 353 is stopping public servants from performance of duty so it is not possible to stop the police. False cases have been filed when guys get aggressive against the police, so be careful. If somebody stops you in the middle of the night, asks for address, give some address but don’t refuse. Under Bombay Police Act after sunset anyone caught with anything that can be used to break open a lock, for housebreaking. 197 CRPC requires government sanction for prosecuting police while on duty. Important thing is calibrating risk. Anyone can be picked up from questioning anywhere, not only cruising place. If you are scared, they come after u so if u hold your own, rather than crying, don’t tell my parents/wife etc.

Section 377: The biggest problem continues to be 377 sword hanging on our heads and Victorian laws. As long as that is there, peripheral problems, arrest and extortion will continue. 2 consenting men having sex and being found out is an offence and can be prosecuted. Type of prosecutions including wives of gay men finding out their affairs. RTI across Maharashtra reveal numbers are huge. Not only men having sex with each other file cases, but also wives against heterosexual husbands, when they can’t prove rape, or when they discover husbands are gay. What the government is arguing is that 377 is not used is not true; as shown by RTI. Similar RTIs have been filed in Karnataka, Orissa and Manipur. Oral and anal i.e. penetrative sex counts as sex.

Sex toys: Selling is a problem, but having it is not. NGO having dildo to demonstrate condom was used as evidence for sex racket. But there are also NGOs doing programs with police where they learn to put on condoms on dildos.

Suicide notes: IPC 306 most misused, was originally for harassed married women. Cops can question or arrest for abetment, but courts take liberal view, grant bail and quash case. Such things are happening on email, and sending pictures of self-suicide on Whats app such chatting in case gets serious you should tell the police. If you don’t tell and it happens then you are in bigger trouble.

Videographing: Taking videos of police or vigilantes is up to you based on the situation but could lead to aggression so ask first or take a call.

Gay Bombay Special Sunday Meet: ‘Living With The Law”: Report (03/2014)


–       Sachin Jain

Venue: ‘Zouk’, Teli Galli, Andheri East, Mumbai.

Date and time: March 09, 2014; 4 to 7:30pm.

Attendees: 70

Resource Person: Vijay Hiremath

Facilitator: Vikram Doctor.

Disclaimer: This report is a recording of the discussions in this meeting. It is not meant to be recommendatory. The case studies are anecdotal and the author does not take responsibility for their veracity or for the opinions expressed.

Introduction:

Vikram introduced Vijay. Vijay is a lawyer at Mumbai High Court. He previously worked at organizations like ‘India Center for Human Rights and Law’, and ‘Lawyers’ Collective’. He is one of the best criminal lawyers and excels at handling police situations and talking to them as he is thoroughly acquainted with their way of functioning. He has especially been invaluable to the LGBT community. He has taken emergency calls in the middle of the night as well as on Sundays, and done so much, never charging a fee.  This is a meeting about the community, the law and the police. Real life cases without names or details are going to be discussed in a free-flowing, interactive discussion.

Present Situation:

The history of the 377 case, the July 2, 2009 decriminalization as well as the December 11, 2013 decriminalization was laid out. Pre-2009, blackmail was a big issue. Post-2009, families issues like can my son adopt a child with his with partner, property rights after sex change, etc. were coming forward. Now after the December 2013 decision, blackmail cases are being recorded and a resurgence is feared. SC  decision has in a way handed a gift  to blackmailer and abusers.

———————————————

A-Z of Living With The Law:

Adoption

After 2009, there was excitement  about the possibilities of queer people adopting. As a single man there is no problem, no bar. There is no bar against gay-identified men, but adoption agencies have discretionary powers. 2-3 single men have adopted in the past. For a gay couple, each adopted 1 child. There are restrictions for single men more than single woman, like can’t adopt female child etc, age of child, etc. Now all adoption, even within a family, has to go through the court process, and child welfare committee which as to declare child is free for adoption. Lot of gay couples were coming for surrogacy, though their laws allowed, they were not both given child in India. Now they do single parent adoption, go back and show it as done jointly.

Affidavits

An affidavit means writing on a stamp paper, notarized from a notary outside court, keep original give copy to lawyer. In the absence of an affidavit, a kidnapping case can be filed in case of runaways (see under R). When leaving the house to live with a lover, make an affidavit saying you are not taking anything.

Late 40s guy from one city fell in love with early 20s guy from another. Both came to a third city. They wanted to make it look legit, as the younger guy was from a  politicians family. So they decided to make a rent agreement between the two, the older guy landlord, younger, tenant. Their body language was holding, touching, and no notary willing to sign affidavit.

In another case parents took a guy in a gay relationship home and locked him up. He tried to escape but failed. Once he ran away and went back to boyfriend. His parents tried to file a case of kidnapping. But police said you can’t as he has gone off on his own will. We faxed affidavit to the police that he went off his own will, and then told parents. Friends can be witness or lawyer identifies.

Age of consent

Pre-2009, a couple were holding hands on beach and sitting. They were arrested saying you were having sex. One guy said yes we had anal sex. The police claimed other guy was underage. But when it came up at high court level, persons were both adults.

Don’t date or have sex with person below 18 years. Talking about sex is also not okay. In a state’s Children’s Act, onus is on people having sex not to be seen by child. It can go up to life imprisonment. Just being in communication may not be a problem. It may be a problem if parents get involved. Check person’s ID document, and make sure person is 18+. Gay sex unwittingly with minors will become an acute problem and could damage the case for decriminalization and reading down of 377. It is also an offence if you know about underage sex happening and don’t inform anyone.

Aiding and abetting

For adult gay sex, aiding and abetting is not being currently prosecuted. It is normally in terms of robbery or murder. Tomorrow will you arrest a chemist for giving a condom that got used in gay sex? That will not happen.

Asylum

To get gay asylum abroad is not so easy. Criteria is persecution. Here is there persecution like Uganda of people coming to house, arresting or killing you? There needs to be basis, documentation that life is in danger.

Beating

“After a Halloween party a policeman hit a gay man who was dressed ‘pansy’ and smoking. We just said sorry and left.” For smoking the police can ask for a fine but they can’t hit.

Blogs

If there is a complaint about nudity or obscenity on your blog or website, it can be taken down or made age-restricted by the I&B ministry. So be careful with what you post.

Breakups

Messy breakups and bitter exes are the easiest way to screw happiness. One guy put intimate pictures of his ex on the Net. In another case a very bitter ex emailed the anti-terrorism that his ex and his new boyfriend are terrorists. They raided their place. But to their credit the police and anti-terrorism entrapped the bitter ex-boyfriend who made a false complaint. One of those involved tried making money out of them, and according to the couple one of them even wanted to sleep with one of the guys, further complicating matters.

Bribes

It is not the concern of the police whether there is less or more gay sex. They only want money. If you argue it, they may slap some vague charges. For example, Bombay Police Act has proscriptions against carrying ‘housebreaking’ implements at night, even a screwdriver in your car.

Can we ask police questions? How to react when accosted? These are common sense things. React according to the situation. Don’t argue with the police. Preferably talk in Marathi as mostly the force is Marathi. Understand what the police want. They are least bothered with making a case. It is a lot of work to take to court, prepare a charge sheet, investigate the matter. Unless it is a grave case, like child below 18 years having sex.

Community

Members are often unsure and a little scared of legal matters: how to meet a lawyer, court fees etc. Organizations like Gay Bombay frequently get calls from asking for help. Even after getting resource information, community members are reluctant to take matters forward. Though it is not always necessary to come out, the hope is to continuously push forward a little bit.

Dating Websites

Planet Romeo is registered in The Netherlands. To remove something on PR, it needs a huge scrutiny within Dutch laws. For identity theft, they would remove it for 12 hours, then it would be back on PR. Indian Cybercrime departments also sent complaints. But Dutch laws don’t allow tampering with website content unless there is a court order. We actually thought of going to court recommending to Planet Romeo  to remove things. But it is a huge risk since court will say ban PR, and everyone would suffer. So did do it. Planet Romeo was unwilling to disclose IP addresses. Cybercrime will get IP address and catch impersonators. Planet Romeo said get a court order and then only we will give the IP address. Even Gaydar, Grindr servers are abroad.

We don’t want anyone to go away saying, “Oh my God I will never use any online tools, and hide. But be aware and don’t behave like there are no risks. All of you having come here is great, the bigger problem is all who haven’t come. People come in to crisis and then call. This is always much more difficult. It’s ironic that you are not scared to go cruising and take someone home, but you are scared to come to this safe space meeting, and to take this knowledge to your friends.

Documentation

If facing police excess, note description of police and write letter to Commissioner or court saying this is what happened. Some cases have been taken up. It also becomes a good documentation for supreme court how people are getting targeted.

Dos

Fall in love, hold hands, kiss, date, put profiles on dating websites.

Don’ts

Get caught having sex, don’t fear being arrested for being gay.

Email

Make sure you don’t use “Reply All” with dates you don’t know well when you send a festival greeting etc. to relatives’ and office email ids. A bitter ex composed an email saying, “He is gay, I am his boyfriend, we have been involved in sex.” Fortunately the boss summoned the guy and said, “Do you work properly, I am not concerned with your private life”. Don’t give details to person you don’t know properly.

Exes

Harassment form disgruntled ex-boyfriends, and consequently from law enforcement agencies has been seen.

Expenses

Lawyer rates will vary on who is starting, and what kind of lawyer they are. They see what you do to charge. 20,000 is the minimum that anything normally takes.

Extortion

One story after the SC 11.12.13 decision: A guy met an alleged model, went to the model’s house. While they were together, there was a knock on the door. 3 people claimed to represent the model’s landlord. They said the model had not paid rent, they knew what was going on was illegal. They threatened him, took his ATM card and withdrew money.

Fake Accounts

Making a ‘gay account’ and ‘straight account’ on Facebook is a useless waste of time because both can be easily tracked back to you.

Fake Police

In a recent case after the 2013 verdict: When police asked for car papers, they saw his lubes and condoms in the glove compartment. The police took him and forced him to have sex. The city police came across 3-4 cases of 2 guys in dress of police harassing people and getting money.

Films

Is a film depicting gay sex protected? Is the venue protected? Article 19 is about Freedom of expression and speech. If any religious group is hurt, or any linguistic or right-wing group, there could be a problem.

Foreigners

Gay men from abroad are seen as particularly good targets for harassment. Some hotels in Colaba coordinate with the police. It is perfectly fine to be openly gay and meet people, But be careful of where you are, whom you are picking up.

Housing

For example buying adjoining flats with partner in new construction. If not adjoining, in same building; can rent out one and stay with him.

IPC 389

In IPC 389 somebody harassing with blackmail under 377, can be prosecuted under 389 with 10 years imprisonment. This includes the police. Problem is you need sanction from Government to prosecute the police. But it is helpful against street blackmailers. In the cases of house-luring, door-knocking, it is the best response.

Law

Though the main focus is not on the Supreme Court decision on the Section 377 case, we will talk about the present situation including the curative petition. It will be filed before 5 judges, who will decide whether to give a hearing or not. A lot depends on the composition of the bench. It may eventually come before parliament but if we want decriminalization and rights sooner, we it may have to be through courts. But chances are we will have to live with this law for some time to come. We are convinced we will ultimately win. But for now how do we live our daily lives with the law against us?

Media

Story now on the Orinam website, is of someone who took a guy home,  and 3 people claiming to be from the media were there. The empowered guy asked to change his clothes and cheerily faced the cameras, at which the alleged media people lost their nerve and went away.

Memory

On WhatsApp so many pictures get stored automatically on the memory card, and automatically uploaded to Google Plus. If somebody wants to harass u it can be used.

Neighbours

If neighbours say they saw you having gay sex, you are taking a huge risk and you can be investigated. So please close your curtains and doors before indulging in anything. Be mindful of behaviour in common spaces like elevators or building compounds.

Online Identity Theft

If your profile picture is stolen and used under a different name, it is clearly an offence. A bitter ex gave his boyfriends mother’s landline and father’s office # on Planet Romeo for a hot date.

Outing

Do people have a choice of telling the police whom to call and whom not to call from a police station? It’s your right, but they will call whomever will induce fear and they can get money from the guy. For example for a married gay man, they may threaten to inform wife about it. Technically yes but power equation is bad, and they realize you have something to hide, and more blackmail may happen. If you have supportive parents then its fine else may be outed.

A fake online dating website case where someone denounced someone as HIV positive, on a fake profile. The first guy panicked, on his real profile he put his HIV report saying he is not positive. Outing of HIV status will soon be a criminal offence. The bill is in the Rajya Sabha.

Parties

Parties are targeted because the perception is that money is involved, the people coming are middle and upper middle class. So if someone stops and asks if you are coming from gay party, stand up and say yes. It is not illegal. If drugs are distributed or sold in a party it is definitely disallowed and endangers all the other attendees as well.

Phone

If a policeman demands to see my mobile, can I deny? Yes.

Phone number

Do not give your phone number out to anyone who extorts money from you as it just opens up the possibility of further demands.

Photography

A photographer from abroad met people on a dating website. He took their artistic nude pictures. A guy who was refused went to a police station, denouncing the photographer as being a pedophile taking pictures of young guys naked. The photographer was raided his cameras and laptop taken away and arrested under the IT Act. When the case was filed, there was no picture of the complainant and the police relied on previous pictures. However the photographer showed that he had emailed the pics, all with consent of the guys, and they had replied, “thanks for nice pics, now I will get many dates”. Nevertheless the police filed a charge sheet. The problem was multiplied because he was foreigner and it was a pedophilia accusation. Nobody stood surety for bail and cash bail not allowed. He spent 4 months in jail. One of his friends approached us. Vijay went to jail, talked to him, consulate took care of him. Ultimately the case was dismissed by the court.

Police station

If a policeman says come to the police station can I refuse? You can’t say a flat no. You have to give reasons, like I will call somebody first. Nothing stops the policeman as he can cite the fear of a cognizable offence and take you. No court will question it.

Police needs to wear proper name tag, make register entry etc. Depends on arrest or detention, so all things don’t come into the picture. If you enter a police station, you have a right to call a lawyer, friends to the police station and they can come there and meet you. Within 24 hours the police have to produce you before a court. It is your constitutional right.

Porn

Having porn on the phone is not an offence, except child pornography, which is an offence. If u feel the porn you are watching is of people below 18 years, twinks for example, do not watch it. Don’t keep any porn on laptop and phones. Watching is not an offence. Distribution is an offence. It is cognizable and not bailable, and punishable with 3 years imprisonment. Emailing porn, posting it on Facebook, sending it on What’s App etc. can also lead to arrest.

Privacy

If someone asks if you were having sex, say it is none of your business. Unlike in say Uganda, nobody will come to your houses and bully you.

Raids

The Police will not raid offices and houses and arrest you. If you are with someone, you need to be careful. Don’t open the door. Other district police cannot come without local police, so you can ask basic questions. For media you can just ask them to leave. The police don’t need a warrant to enter the house. That’s how parties get raided. They say we suspect minors were there.

Relationship proof

How to build a proof of relationship over many years? Have the same address on the ration or Aadhar card, show electricity  bill, government documents showing you staying together longer time, including telephone bill, joint bank account, insurance policy nomination, bank account nomination.

Avoid lying like opening like joint bank accounts as cousins. Also joint accounts are headaches on breakups. Bad case where older lover legally adopted younger one: when found out by the company they called the cops and forced the older guy into a psychiatric ward.

Runaways

Recent case of two girls who ran away from rich families. One was 20 and the other 30. The tuition teacher and the girl fell in love and left the house. For a long time the families could not trace them. Then they realized a group was helping them in a city. After a month the family filed case of theft that their own daughter has run away with rupees 10 lakhs in cash and 12 lakhs in jewelry. The police had to investigate it, and this gives them the legitimate right to go wherever the runaways are and arrest them. When the police came, they said we are in a relationship and support groups substantiated the story. The police had to come back. Finally we had to take transit anticipatory bail for girls. In another city it was a nightmare as the sessions judge kept asking what do these girls do. “I’m giving you one week i want to interview her in chamber then I will decide whether to grant bail or not.” The lawyer said, “You can reject it. It was volatile, 50 family members standing in court, waiting for girls, abusing and intimidating the 2 lawyers. Many times lower courts don’t understand issues, so we went to HC, who granted anticipatory bail to girls, asked if girls are in love, said yes, granted bail.”

Selfies

Couples having sex and putting the video or pictures in the public domain say on YouTube can be prosecuted.

SIM Cards

SIM cards give out location even if phone off.. After a party one guy picked up another on the road, went to the house. In the morning his cash and laptop were missing. The police tracked the guy with the help of the phone company and recovered part of money and all goods. The cheated guy was willing to go to the police. When asked why he got the guy home he said to talk to, didn’t say for sex. Another similar case of mixing something in drinks at home by the visitor and a robbery was cracked by tracking SIM cards.

Solicitation

Is it a crime to solicit sex  on FB or Grindr? It is up for interpretation. You can technically be arrested for solicitation, but not a single case of arrest for soliciting online has happened so far. You are just opening yourself for more harassment so be careful. Yes you can be accused of soliciting for walking around in drag at night. This is a discussion of risks and relative risks. Take calculated risks.

Visas

If I go to jail for being gay, will I get a foreign visa? You cannot go to jail for being gay.

Voluntary sex or Forced Sex

In a small town case, one guy went to police said I am gay. I was forced to have anal sex with many involved in an HIV-AIDS organization Once the groups were investigated, it was a disgruntled worker, and says he was forcibly made to have sex and now has become gay. Being a small town, he was able to shame and humiliate a lot of people.

How to prove sex voluntary or forced? Depends on medical exam, statements, varous other things. Simply calling someone home doesn’t imply consent.  That does not mean person can force you to have sex. At the time of the act also you can say you don’t want it, and then it becomes non-consensual.

Workplace

If a picture taken of you at a pride march appears on TV or in a newspaper, legally you cannot be fired from the company, society, or family property. If people want to come up with reasons, they will: you have not performed, you are disobedient etc. Hidden reason will be homophobia but nobody will say it.

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Conclusion:

One of the participants summed it up as: “In real terms, lives of gay men in urban India are much more vibrant. Gay pride marches have higher attendance than ever before, more younger people came out and there is tremendous strength to carry the struggle forward. This SC 377 decision does not prevent practical and political solutions to problems.”