Ground Report: Crime and punishment9 min read . Updated: 05 Dec 2014, 11:53 PM IST
Section 377 is one of many laws that makes potential criminals of ordinary citizens. Proof from the past year
Section 377 is one of many laws that makes potential criminals of ordinary citizens. Proof from the past year
Nagma sits with feline grace on the edge of her black sofa in her one-room-kitchen home in Mumbra, a far-flung, underdeveloped suburb of Mumbai, home to a large Muslim population. She is getting late—her friends have planned a party at midnight to ring in her 26th birthday. But she’s in no hurry when she speaks.
Her words are measured, interspersed with pauses. Her phone rings constantly; each time, the wallpaper lights up, revealing the photograph of a young Aishwarya Rai with piercing ice-grey eyes. Nagma recently got the colour of her eyes changed from dark brown to ice-grey, like the photograph.
Four years ago, Nagma underwent a sex reassignment surgery to give herself a vagina, breasts and a new nose.
Born intersex, Nagma dressed in boy’s clothes till she was a teenager. Secretly, she would meet other hijras who lived nearby. When her mother came to know of these meetings, she beat Nagma, but couldn’t stop her. “I always felt like a girl. What could my mother do?" she says. Nagma, who joined a hijra gharana at the age of 14, works in a dance bar in Thane. She’s the only earning member of her family. Her father, who was working in Saudi Arabia for 20 years, died three years ago and her mother Latifabi now entertains Nagma’s chelas (followers) at home without fuss.
The peace that descended on their household was shattered six months ago, after Nagma returned from a visit to the famous Ajmer Sharif dargah. She wasn’t able to sleep for days. “She doesn’t know what to do," Nagma says softly, even as Latifabi stands at the kitchen entrance looking at her.
On 4 June, Nagma and seven other hijras were detained on the charge of physically assaulting a policeman. An altercation with police constable Bhawani Singh, in which Nagma says she had no part to play, led to the party of eight being shipped off to the Dargah police station, where they were kept for a night. All but Nagma were beaten, according to the first information report (FIR) filed by her. The FIR states that in the wee hours of the following morning, she was taken to another room in the station and sexually assaulted by two policemen, including Singh. “I was made to kneel down in the station (...and) made to say that nothing happened with me," Nagma said. She alleges that a policeman took ₹ 40,000 from her to keep her out of jail after the assault, but she was produced before the magistrate and sentenced to judicial custody for four days, during which time she had no access to medical help. On the fifth day, she was released on bail and taken to a government hospital for treatment after her hijra guru arrived from Mumbai.
Nagma filed an FIR against the three policemen on charges of rape (Section 376 of the Indian Penal Code, or IPC), criminal breach of trust (Section 406), attempts to commit offences (Section 511) and voluntarily causing hurt (Section 323).
Nagma’s assault comes after the two landmark judgements—the December 2013 Supreme Court verdict that criminalized consensual, adult same-sex relations, and the April 2014 National Legal Services Authority (Nalsa) judgement, which asked state governments to address discrimination against transgenders through welfare schemes and corrective actions.
The two verdicts affect the lives of millions in India. “Section 377 is part of a continuum of violence committed against the LGBT community. It also legitimizes an atmosphere of abuse by not just law-enforcers, but also family members. Prejudice and a presumption of guilt is always at play when the law meets sexual difference," explains Gautam Bhan, a New Delhi-based queer activist with Voices Against 377, which petitioned against the section in the Delhi high court. It argued that Section 377 was the reason why crimes against the community occur in the first place. The colonial-era law attached a tag of criminality to individuals on the basis of their sexuality, giving them the status of “unapprehended felons".
The Criminal Tribes Act (1871), drew a direct connection between hijras, “sodomites" and “unnatural" sex. This attitude prevails to this day, though the law has been rescinded.
Nagma and her chelas are as much victims of a crime as of the attitude that these laws engender. A fact-finding report by the People’s Union for Civil Liberties (PUCL), which has extended legal support to Nagma, spoke to people who witnessed the fracas between Nagma’s chelas and the constable. “The people we spoke to asked, how can a hijra be raped? They are always ready to remove their clothes," says Kavita Srivastava, national general secretary, PUCL.
An atmosphere of violence
Nagma and Z, one of her chelas, visited Ajmer in August to attend a court hearing and to follow up on her FIR. During that visit, a couple of goons on a motorbike assaulted Z with a knife, says Nagma, purportedly to prevent them from pursuing their case against the cops.
In October, the duo visited Ajmer again, but this time accompanied by two activists associated with Voices Against 377, Lesley Esteves and Mario da Penha. The queer rights group wanted to let Nagma and her chelas know that they had the backing of a community, while at the same time hoping to offer her a sense of safety. On their way to the hotel, they made a routine stop at an ATM. Two men on a motorbike drove up to their parked car and asked Nagma, who was sitting inside, where she was going to stay. “Nagma was frightened by that incident, even Z was terribly worried," says Esteves.
Since January, over 800 cases of violence against transgenders, hijras, and men who have sex with men (MSM) have been recorded in 17 states, according to data collected by the India HIV/AIDS Alliance from 200 community-based organizations (CBOs), through its national capacity-building programme, Pehchan. “The number of cases of reported violence has gone up after the Supreme Court judgement," confirms Yashwinder Singh, advocacy in-charge for Pehchan. The Humsafar Trust, a Mumbai-based HIV/AIDS literacy and advocacy organization and one of the nodal CBOs of Pehchan, has recorded 328 cases from 33 districts in five states, namely Maharashtra, Madhya Pradesh, Gujarat, Rajasthan and Goa, since December 2013. Many of these cases are instances of institutional violence—policemen are the accused. Other violators include family members and partners.
Since November 2013, Sonal Giani, a young advocacy manager at the Humsafar Trust, has been keeping a tab on incidents of harassment and violence faced by the LGBT community in Mumbai. The perpetrators included partners, strangers met on dating websites, extortionists and policemen. In one case, a lesbian’s husband threatened her. Giani’s fast-growing file has 21 cases but only a handful have made it as police complaints.
“A layman understands Section 377 as criminalizing ‘homosexuality’," says Giani. “There is a feeling (in the community) that the police will harass you because of your sexuality or gender expression. This is not a misplaced fear; in many instances the police itself commit crimes. There is also the fear that if a police complaint is filed (against a perpetrator), then the police will call up the family, or come to their workplace or homes, hence outing them without their consent."
One such case occurred on 27 April. A 30-year-old BPO employee, who had moved recently to Mumbai from his hometown in Meghalaya, was caught by policemen outside the Kopar Khairane railway station around midnight. When they asked him in Marathi why he was out late, and he responded in Hindi saying he was on his way home, they allegedly began to abuse and slap him. They checked his pockets and found a condom along with a lube. They told him, incorrectly, that it was illegal to carry condoms under Section 377 and accused him of being a pimp. They demanded money from him. The man, a member of the scheduled Garo tribe, eventually filed a complaint against them, ignoring the advice of friends that he “drop the matter".
A constellation of laws
Besides Section 377, there are other laws that facilitate abuse faced by the LGBT community. Section 294 of the IPC, which deals with obscene acts in public that “‘cause annoyance to others", and Section 268, dealing with public nuisance, are laws used commonly against the hijra community. Lesbian couples routinely face false cases of abduction slapped on them by one partner’s family, and need to deal with police collusion in “retrieving" the errant daughter. Then there are draconian state-specific laws. In August, Tamil Nadu amended its preventive detention law, called the Prevention of Dangerous Activities of Bootleggers, Drug-offenders, Forest-offences, Goondas, Immoral Traffic Offenders, Sand-offenders, Slum Grabbers and Video Pirates (Amendment) Act 2014, adding sexual offenders, including those who commit offences under Section 377, to its purview. Lawyers and activists fear that this law, shortened to the “Goonda Act", can be used to detain LGBT people arbitrarily. The Karnataka State Police Act has a Section 36 A that is aimed at controlling the activities of hijras, allowing for active policing of the community. Last month, policemen detained over 167 hijras in Bengaluru on various charges, including the Karnataka Prohibition of Beggary Act (1975). Human rights activists protested that several of the transgenders were not committing any offence, but they were nonetheless rounded up and sent to a beggars’ colony on Magadi Road.
Such harassment has dire consequences. On 28 October, Iliyana, a Guntur-based hijra, was picked up by the local, Lalpet police along with a staff member of the Sneha Sri Sadikaraka Welfare Society (SSSWS), a community-based organization working for MSM, transgender, hijras, and female sex workers. While the staff member was let off, Iliyana was reportedly beaten on a false case of kidnapping. She was allowed to return home two days later, but policemen showed up at her home the same night, asking her to visit the police station the next day. “Tired of the atrocities from these policemen, Iliyana hanged herself in her residence this morning due to the fear of further torture to her and her family members," a 29 October press release from the SSSWS stated.
The police later called the matter a misunderstanding, say CBO officials.
“I never expected something like this to happen to me. This sort of thing happens only in the movies. And then it became real," says Nagma, sitting in her flat. Her phone buzzes incessantly, as her colleagues wait for her at the party. It’s very clear that Nagma is popular. At the urs of Hazrat Saiyyad Fakhruddin Shah baba in August, the celebrations at the dargah in Mumbra didn’t begin till Nagma arrived with other hijra gurus—her chadar was the first to be placed on the pir’s tomb.
Nagma wants justice, she says. “I want those cops to know that they cannot abuse me and get away with it."
Nagma was the name given by the local media to describe her after the assault.