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.