How Section 377 Is Being Exploited By The Police and Blackmailers To Extort Men

By Bhavya Dore | 3 November 2015

On 26 March 2014, at around 11 pm on a muggy night in Mumbai, a 31-year-old engineer in Mumbai was taken aback by the brusque knocks at his door. The engineer was a little anxious. Just 20 minutes before, a man called Sahil had come to visit him. The two men had been casually chatting on Planet Romeo—a social networking application for gay, bisexual and transgender men—for the past few months, but this was the first time they were meeting in person. Sahil had taken his shirt off and was preening in front of the mirror when they were both interrupted.

The engineer opened the door to face two men. The new entrants forced their way into and began admonishing the engineer, asking him if he and Sahil were gay, and whether they were having sex. One of the men threatened to reveal the engineer’s sexuality to his family, adding that he would call the police on Sahil and him. Nearly 15 minutes after the ordeal began, the men left with Sahil, but not before they beat the engineer up and robbed him of Rs 5,000, his laptop and his camera.

The engineer did not pursue any action against his assailants until he read a newspaper report about a similar episode. Through this story, he discovered that Sahil had previously targeted at least one other man by arranging a rendezvous online under similar pretences, only to arrive at the designated location with his accomplices to rob the victim later. On  4 April, last year, around 10 days after the engineer had met Sahil, he filed a First Information Report with the police.

“I had heard about one such incident,” the engineer told me when we met on 19 October 2015, “But I never expected it would happen to me.” A short, jovial man, he said that he was hesitant about approaching the police initially. Even when he did, with the help of lawyers and gay activists, they tried to dissuade him. The police warned the engineer that such a case would prove to be a daily nuisance, reminding him that he had been the one to invite Sahil over.    

Although Sahil and the engineer had not been physically intimate, the engineer’s sexuality made him an easy target for extortionists, many of whom operate with impunity across the city, and the state. The three men in this case—Rais Riaz Shaikh, Avdhoot Vijay Hatankar and Sahil Abdul Shaikh—have been arrested and are out on bail. They are now facing trial for assault and extortion.  

Since the December 2013 Supreme Court judgement that upheld Section 377 of the Indian Penal Code, a deep fear has gripped the gay community in a manner fiercer than the years preceding it. This section, grafted from Victorian-era law, criminalises all “carnal intercourse against the order of nature” including consensual sex between adult men. It further states that penetration is sufficient to constitute the carnal intercourse.” The law in its current form makes gay men vulnerable to both prosecution under the law, and the prospect of persecution through other means that seek to exploit its discriminatory nature. However, lesbian women who stay together or have left their parents’ homes are often harassed by the police through laws related to abduction and kidnapping. 

As a consequence, closeted people, already crippled by the stigma of homosexuality in India, can fall easy prey to those who threaten to disclose their sexuality. The fear of having one’s sexual orientation revealed is well founded. Since the apex court judgement, at least 162 people have been booked under Section 377 in Mumbai alone, according to data from the city police commissioner’s office. In August this year I filed a Right to Information (RTI) query seeking to know how many people had been arrested, booked, charged and convicted under Section 377. I wanted to understand if the court’s decision had increased the use of this section of the law in practice. I had posed specific questions regarding the break-up of cases in Mumbai and asked for the distribution of the people arrested, charged and convicted under the section. However, the police had no data on whether chargesheets were filed, charges framed and the legal procedure taken to its ultimate conclusion.

The responses from the Mumbai police revealed that in 2014 alone, 94 people were booked, and till 30 August this year, 68. This is compared to just 22 cases in 2010, 22 in 2011, 38 in 2012 and 62 in 2013, before the Supreme Court judgement. According to data that was presented in the parliament by the home ministry in January 2015, at least 778 people were booked and 587 arrested under Section 377 across the country last year.  However the data was admittedly incomplete as Karnataka and West Bengal did not submit any information.

It is important to note, however, that this section can also be filed by women against men, or in cases where children have been abused. This would explain why cases under this section were recorded between 2010 and 2013, even when consensual homosexual acts had been decriminalised. On 29 October, I met Tripti Tandon, the deputy director of Lawyers’ Collective—a non-governmental organisation providing legal assistance to women, children and other members of marginalised groups, which had argued against Section 377 in the Supreme Court. Tandon pointed out, that since 2012, The Protection of Children from Sexual Offences Act has been put in place to prevent the abuse of children. Similarly, the rape laws in India were amended to accommodate a broader definition of rape; these declared stalking and voyeurism criminal offences and fixed the age of consent for sex at 18 in 2013, making the charges under Section 377 in such cases irrelevant.

This would suggest that the increase in the number of FIRs that have been lodged under the section in 2014 is notable. “It is alarming,” said Sonal Giani, the advocacy officer at Humsafar Trust—a Mumbai based NGO that promotes health and human rights for lesbian, gay, bisexual and transgender (LGBT) communities­—when we met in the trust’s office in Santacruz, a suburb in Mumbai, on 22 September. She added, “But this is probably just a snapshot, and not the full picture.”

What then is the full picture? Understanding the manner in which Section 377 is deployed is one way, albeit an uncertain one, of gauging the problems faced by the gay community. The very existence of this law is a tool for the police and others to harass gay men engaged in a consensual relationship. “If 377 goes, people would have nothing to fear,” said Tandon. “A big part of the problem would go because people could then freely make complaints if threatened.” Tandon told me that Humsafar has witnessed instances in which Section 377 had been invoked by jilted partners. The trust and the Lawyer’s Collective have been working jointly on several such cases.

The complaints lodged with Humsafar illustrate the varied forms of intimidation that the community is subjected to. These include blackmail following consensual sex, threats of “outing” people to family, friends or co-workers or the police and even attempts at defamation (the trust cited cases in which people had been baselessly identified as HIV positive on social media). During one of our meetings, Giani pulled out a large bound file containing descriptions of “crisis cases.” These were cases relating to extortion, blackmail and harassment. According to her data, in 2014, there were 386 such complaints made to 51 community-based organisations under the Pehchan project—a community-outreach programme in Maharashtra, Goa, Madhya Pradesh, Gujarat and Rajasthan that is coordinated by the trust to halt and reverse the HIV epidemic amongst LGBT groups. Till June 2015, 161 complaints were recorded. Overall, since 2011, there have been 835 complaints relating to the harassment of gay men and transgender women.

Giani leafed through the bundle, explaining some of the cases to me. In August this year, a man travelling on a Mumbai-Pune train was approached for money by a railway police officer in uniform as the train was chugging past Lonavla station. The victim called Giani for help on the spot, and the officer backed off. According to the report, “When he [the victim] asked the railway attendant about the officer, he got to know that [the officer] frequently extorts money on the train.” The report recorded that the man had been approached because he appeared effeminate, but did not specify whether any official action had been taken to reprimand the policeman.

Another complaint in the database made by a third party observer refers to an extortion racket being run by the police of Kharghar in Navi Mumbai. The report states that the policemen apprehend sexual minorities and young heterosexual couples, but does not explain how. “Thereafter,” the report goes on to state, “[a man in connivance with the police] would take them to the [railway police] room at platform 1 of the railway station where he would threaten to inform family members of wrong behaviour of targeted people and also require them to empty their pockets in the room.” Early this year, Supriya Shinde—the wife of Ajinkya Shinde, a Marathi actor—reported that her husband had been used to target gay men at the railway station at the behest of the railway police in Belapur, also in Navi Mumbai, who would then extort them. This matter was exposed when a victim of this scheme reported both the police officers and Ajinkya to the commissioner of the railway police on 3 March. An official enquiry into the matter is still underway and only Ajinkya has been arrested so far.  

In some instances, the activists recorded certain complaints but were unable to follow up on them since the victims had not revealed their sexuality to their family yet. In others, victims were reluctant to pursue the matter because they were worried about the social stigma, or had been persuaded by the police to drop the matter. But even this information is limited in its scope, since it is restricted to those who lodge a complaint with either an organisation or the police. All the activists I spoke to believe the overturning of the 2009 Delhi high court verdict—which had read down Section 377—has driven people further underground and far less likely to seek support.

In March last year, an aspiring actor befriended a man on Planet Romeo and the two men met at the latter’s home. Several minutes into the meeting, a man claiming to be the landlord barged into the room, and accused the two men of having sex. He threatened the actor with prosecution. The actor was forced to pay the “rent” for the house—a sum of Rs 4,000—to the landlord who claimed that it was overdue. The Trust’s case report noted that the actor is “heavily closeted about his identity,” and has not filed an FIR yet.

“After 2009 [and until 2014] people were willing to go to the police in cases of blackmail,” Anupam Hazra, deputy director for programmes at Saathii, an NGO working to curb the spread of HIV, told me over the phone from Kolkata. “But now they are more wary they may be caught for committing an offence.” Section 377 is a serious charge and a crime that could, if resulting in a conviction, lead to life imprisonment. In the case of the engineer, as the men did not actually have sex, there was no danger of him being booked under the section. However, in other cases, where the victim and perpetrator have had consensual sex, it becomes far more difficult to approach the police. Last year, a doctor in Bangalore who approached the police after being blackmailed, ended up facing arrest himself.

Danish Sheikh, a 26-year-old consultant with the Alternative Law Forum—a legal research organisation in Bangalore—appeared to agree with Hazra’s line of reasoning. He told me that even though people booked under Section 377 might not be arrested or even charged formally in court with an offence, the act of being booked by the police was bad enough. “The filing of a case is itself highly injurious to their privacy,” he said.

Even employees at the Humsafar Trust have faced harassment. On 21 April, an outreach worker was approached at Vile Parle station by three unidentified men and threatened while he was working. He complained to the railway police, after which the police apprehended two of the men who had threatened him and brought them in for questioning. “On further probing,” said a letter dated 24 April that was sent from the trust to the senior police inspector, Railway Protection Force, Vile Parle, “they [the unidentified offenders] accepted they have been harassing homosexual men on other occasions as well.” The letter continued: “However even after accepting these offences, the police refused to file an FIR and let the offenders go after some scolding. This non-action by the police to book anti-social elements on sites impedes government-run health interventions.” No response from the police was forthcoming in this matter.

In the engineer’s case, on 9 October, a Mumbai magistrate allowed an additional charge, Section 389, to be framed against the men who had robbed and threatened him. This provision —an old if rarely-used one—states that if a person commits extortion by threatening to accuse someone of having committed a Section 377 offence, the extortionist can be punished with a life term. Lawyers have previously pointed out that this could be an effective legal remedy although none of the three lawyers I spoke to could cite a case in which it had been used. Its practical application in actual cases remains unclear. The engineer’s case, if pursued to its ultimate conclusion, could actually help clarify the section.

As his case works its way through the legal system, the engineer has become more circumspect in his online behaviour. Since many interactions are first facilitated through sites such as Planet Romeo and Grindr—another social networking application for gay and bisexual men—it is hard to know the bona fides of the person you are chatting with or planning to meet. The engineer told me of cases in Delhi and Gujarat that he had heard about. Friends of friends had been harassed, and on one occasion by the police themselves. “Now,” he said, at the end of our meeting, “I am more cautious. I no longer call people directly to my place. There are a lot of blackmailers out there.”

Bhavya Dore is a Mumbai-based freelance journalist.

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READER'S COMMENTS

2 thoughts on “How Section 377 Is Being Exploited By The Police and Blackmailers To Extort Men”

It is disheartening to know that the wide surge in negative usage of section 377, Such incidences has only resulted in increased fear and dissatisfaction and mistrust for our judicial system which has created miasma of despair among people whose Right to Freedom and Right to Live have been violated. Section 377 is an anathema to our Fundamental Rights of a Citizen of India. It is paramount to acknowledge that that some rules or laws are to be enacted for the justice,safety and security for people who have become targeted and those who could become targets of such violent acts and schemes. It is imperative that legal actions be taken and made clear before some hot – headed reckless group takes it too far which could result in violent mishap where lives could be endangered.

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