– Sachin Jain
Venue: ‘Zouk’, Teli Galli, Andheri East, Mumbai.
Date and time: March 09, 2014; 4 to 7:30pm.
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.
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.
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:
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.
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.
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.
“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.
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.
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.
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.
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.
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.
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.
Fall in love, hold hands, kiss, date, put profiles on dating websites.
Get caught having sex, don’t fear being arrested for being gay.
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.
Harassment form disgruntled ex-boyfriends, and consequently from law enforcement agencies has been seen.
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.
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.
Making a ‘gay account’ and ‘straight account’ on Facebook is a useless waste of time because both can be easily tracked back to you.
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.
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.
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.
For example buying adjoining flats with partner in new construction. If not adjoining, in same building; can rent out one and stay with him.
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.
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?
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.
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.
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.
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 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.
If a policeman demands to see my mobile, can I deny? Yes.
Do not give your phone number out to anyone who extorts money from you as it just opens up the possibility of further demands.
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.
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.
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.
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.
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.
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.
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.”
Couples having sex and putting the video or pictures in the public domain say on YouTube can be prosecuted.
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.
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.
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.
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.
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.”