Too Miniscule for Human Rights and Basic Dignity?

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“…a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders…”
From the Supreme Court of India’s ruling in December 2013 upholding Section 377 of Indian Penal Code and re-criminalizing homosexuality across the country.

One can only wonder what has transpired over the almost seven decades since Independence that led to such a calamitous and unfortunate judgment by the apex court. Glaring in its neglect of the basic human rights protected by India’s Constitution, the detrimental impact of this ruling must not be ignored or hidden.

Mindful that this judicial action could cause great harm, our Pehchan programme documented through programmatic data and research the strong links between this judgment and increased violence against men who have sex with men (MSM), transgender and hijra communities, Pehchan’s principal beneficiaries. In 2013, the year preceding the ruling, the number of cases of violence and harassment reported to the programme’s Crisis Response Teams was 788. In 2014, this figure rose to 1,155, a sharp increase of more than 40%.

Raising the alarm, Pehchan organized a Public Hearing in New Delhi on 11th December 2014 to highlight the increase in violence and discrimination against LGBT Indians since the ruling. The event was attended by more than 500 people, including community members from across the country and stakeholders such as Members of Parliament, religious leaders, senior advocates, journalists, judges, human rights activists, and UN agencies. At the event, seven community members shared testimonies on rape, harassment, blackmailing, extortion, and physical violence they had experienced. One MSM recalled:

“I vividly remember that night in March 2014. I was chatting with my friend in a hotel room when suddenly there was a loud knock on door and two guys forcibly entered. They spoke in a threatening tone, ‘We know you guys are homos.’ They punched me hard in the face and took my cash and laptop. I was too scared to react.”

In most cases, police failed to take survivors’ incident reports seriously and did little to protect them; oftentimes, the police themselves were perpetrators of violence. Clips of testimonies from the Public Hearing are documented in No Going Back, a short film by Alliance India:

In his inaugural speech at the Public Hearing, Justice KG Balakrishnan, who serves as chair of the National Human Rights Commission, acknowledged that it is the duty of the state to protect the rights of all citizens including LGBT populations. Member of Parliament Shri Oscar Fernandez expressed his support for the cause and appreciated Pehchan’s effort to reach out to politicians.

A former Member of Parliament Shri Krishnamurthy expressed shock and outrage at the cases he heard and recognized that LGBT people in India lack their fundamental rights. He spoke about the seriousness of the issue and how, if the Supreme Court deferred to the legislature to look at the issue, then the Parliament must introduce legislation to amend or read down Section 377.

It speaks volumes that the prominent stakeholders present at the Public Hearing recognize that Section 377 constitutes a serious threat to sexual and gender minorities. Without action, LGBT Indians will continue to suffer. It is the responsibility of the government as a nurturer of rights, of the state bureaucracy as a promoter of rights, and of the judiciary as the protector of rights to ensure that human dignity of every individual and every community – no matter how miniscule – is respected and upheld.

“India will never be clean if we do not have our rights.”
Laxmi Narayan Tripathi, hijra activist, at the December 2014 Public Hearing


The authors of this post are Yashwinder Singh, Programme Officer: Pehchan and Balaji Ubarhande, Technical Officer: Monitoring & Evaluation at India HIV/AIDS Alliance in New Delhi.

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