The Indians without laws

Published: 23 October, 2011 11:20 IST | Dhamini Ratnam |

Forget willing your property to a long-time partner, the law doesn't recognise her; Don't dance too hard in a gay party, you could be booked for indecent behaviour; Facing domestic violence? If you are a gay man, the law doesn't protect you. While the country awaits the Supreme Court's judgement on Section 377, lawyers and activists turn their attention to other laws and attitudes that fail to recognise the rights of LGBT persons

Forget willing your property to a long-time partner, the law doesn't recognise her; Don't dance too hard in a gay party, you could be booked for indecent behaviour; Facing domestic violence? If you are a gay man, the law doesn't protect you. While the country awaits the Supreme Court's judgement on Section 377, lawyers and activists turn their attention to other laws and attitudes that fail to recognise the rights of LGBT persons

February 11, 2010: Srinivas Ramchandra Siras, Chairman of the Modern Indian Languages department of the Aligarh Muslim University, was suspended because of a video of Siras having consensual sex with another man. The recording was made by local TV reporters and cameramen as a 'sting operation'. AMU Vice Chancellor reportedly said that he would not allow a homosexual to reside and teach in the campus. Siras then approached the Allahabad High Court, which stayed the suspension order on April 2. The court did not comment on the professor's sexual orientation, but stated that the disciplinary action taken by AMU was not valid. Five days later, the reinstated professor was found dead in his apartment.

Humsafar Trust CEO Vivek Anand (left) and Director, HIV Programs
Pallav Patankar lay out their plans for the impending three-city community
consultation to chart out a legal roadmap for the queer community. The
World Bank has commissioned Amaltas, a New Delhi-based research
organisation, and the Humsafar Trust to carry out this consultation.
Pic/ Suresh KK

February 20, 2011:
A lesbian couple was almost arrested in New Delhi. The father of one had slapped a case of robbery against his daughter, almost a month after she had left home to be with her partner. The duo was being sheltered by a Delhi-based lesbian support group when policemen from Mumbai and Delhi raided their flat with teargas cylinders and a crowbar and a hammer to force open the doors. They reportedly dragged one of the NGO members out of the way using physical force.

July 28, 2011: Beena and Savita, residents of Khekada village, Bhagpat (Haryana), approached a Gurgaon court seeking protection against their family. The couple told the Additional Sessions judge that they had signed an affidavit on July 22 stating that they were married, and Savita's family members were threatening her. The judge not only unquestioningly   made a   note   of   their statement, he also invoked a 2009 Delhi High Court order protecting couples from khap panchayats, and directed the police to provide protection to this runaway couple. This case generated a lot of interest not least because of the fact that an Indian court seemed to have recognised a same-sex wedding, although such marriages are not lawful in the country.

On November 12, a day-long consultation will be held in the hot, dusty city of Baroda. Over 30 lesbian, gay, bi-sexual and transgender persons will congregate to talk about their lives. Pets. Adoption. Marriage. Partnership rights. Workplace discrimination. Snide remarks. Parents. Sex change. Harassment. Love.

Funded by the World Bank and implemented by Amaltas, a research organisation based in New Delhi, and The Humsafar Trust, a gay and transgender sexual health organisation, the consultation titled Amend 377: Legal Support to LGBT Groups in India seeks to develop a framework to 'support the fullest expression of the rights of LGBT people as citizens of India'.

The consultation, which will be held through November in three cities (Chennai and Bhubaneshwar being the other two) forms part of a growing discussion on the various legal rights and privileges that queer persons in the country are still denied, despite the decriminalisation of homosexuality by the Delhi High Court's landmark 2009 judgement. Recent cases in the past two years, including those listed at the start of this article, only reveal the urgent need for these discussions.

In August, advocacy group Mission for Indian Gay & Lesbian Empowerment, published its first edition of Legal FAQs online to address the discrimination faced by the LGBT community. Last November, Bengaluru NGO Swabhava organised a meeting during the Bengaluru Pride, to discuss the various legal concerns of the LGBT community. In the past year, the NGO has been approached by three private firms to create inclusive policies for LBGT employees, informs Executive Director Vinay Chandran.

While equality is a fundamental right, there is no law that criminalises discrimination on the basis of sexual orientation -- a living reality for most queers in the country. At the same time, a host of laws guarantee rights to heterosexual couples -- from marriage to adoption, inheritance, will, insurance and immigration, but leave out queer couples. It is this legal landscape that activists and lawyers are looking to change.

Take the case of Bengaluru-based lesbian couple Seema and Teesta, both keen to start a family. Current adoption laws allow single men, women and heterosexual couples to adopt, as long as certain guidelines are met. However, in the case of the duo, the child will only be legally recognised as the ward of one of them, provided the adoption agency, once it gets to know of the couple's sexual orientation, agrees to hand over the child.

"We want to adopt, but the current law will not recognise both of us as parents," says Seema, a media professional. "For a heterosexual couple however, such a concern will never arise." Teesta, a legal consultant, ticks off the rest. "Our partnership isn't recognised. While the two of us do not want to marry, we feel that our seven-year partnership should count in the eyes of the law. As of now, Seema cannot be counted as my 'next of kin', which means after I die, my family will get to make decisions about where I'll be cremated. They wouldn't even need to consult Seema. If I inherit property from them, I can not leave it to my partner, or child. What's more, even my will, in which I would leave my property to my partner and child, can be contested easily in a court of law."

It's a good thing then that Teesta's family gets along famously with Seema. But the couple has fallen through the cracks, legally.

Usha Andewar, a criminal lawyer for 17 years, points out that the law nowhere explicitly states that queer couples cannot adopt. However, nowhere does it state that such adoptions should be recognised, either. This legal ambiguity needs to be addressed, she points out.

"Till such time that laws are specifically written to recognise the rights of gay persons, or existing laws are amended to include them, there will always be ambiguity about what they can or cannot do. Heterosexual men and women never face this," she says.

"The same can be said for transgenders and those who've undergone Sex Reassignment Surgeries. The definition of 'man' and 'woman' in current laws makes the legal rights of TGs, inter-sex and the hijra community ambiguous," says Andewar, who has  been volunteering at the Humsafar Trust since 1994, and began receiving at least four queries a week regarding the legal implications of SRS, after the 377 verdict.
Alternative Law Forum member Siddharth Narrain agrees.

"We have been receiving a number of cases of persons who are keen to undergo SRS, or simply change their identity without the procedure, but face problems with documents that would be required for  education, employment and other legal matters," says the lawyer.

Uma, who underwent the surgery two years ago, is reminded of her former identity as a man every day. "I can't change the name and sex on my birth and school leaving certificates. The only thing I could manage was to change my name and get a new passport, which needed my surgeon's letter. But there is no legal compulsion to accept my new identity. As a result, everything from travelling abroad to applying for certain jobs, depends on how broad-minded the official accepting my application is. While the state has guidelines for a kidney transfer, there is nothing when it comes to SRS," says the Mumbai resident.

"There are no government orders, rules or regulations that officials are required to follow, when it comes to transgender and inter-sex persons," Narrain points out.

However, the demand for rights runs concomitant to the demand for legal recognition for the 1.2 million strong community, says Uma. Last week, the  Karnataka High Court Legal Services Committee organised a seminar in Bengaluru, in which Supreme Court judge and National Legal Services Authority Executive Chairman Altamas Kabir announced that a special law for adoption by transgenders is being planned.

Humsafar Trust CEO Vivek Anand reveals that the trust's chairman Ashok Row Kavi is also in the process of forming a set of technical and medical guidelines for SRS, as part of National AIDS Control Organisation (NACO).
"A favourable environment needs to be created for LGBT-friendly laws to be passed," says Anand. The three-city consultation next month, points out his associate, Pallav Patankar, is a step in that direction. It will be followed by a National Round Table conference, in which legal experts and lawyers will map out the laws that need to be amended or drafted, based on what has been identified as areas of concern. A second conference of judges and officials of the Health and Law ministries will follow.

By March, says Patankar, the legal roadmap should be ready.

LABIA (Lesbians and Bi-sexuals In Action) founder-member Chayanika Shah, however, points out that the discussion about other legal concerns facing the community has been going on for a while. In 1996, Stree Sangam (what LABIA was formerly referred to as) organised a Gender Just Laws conference. The following year, the organisation along with Counsel Club of Calcutta, Forum Against Oppression of Women and Human Rights Law Network organised a workshop on strategies for furthering lesbian, gay and bisexual persons' rights in India. The result of that workshop was Humjinsi, a book that offered an overview of the existing legal landscape in the country. It was updated and reprinted in 2002.

However, Shah admits that Section 377 was a rallying point that brought all NGO and activist groups together. "Now, we need to focus on anti-discrimination and partnership laws," she says.
According to Mumbai-based lawyer Vijay Hiremath, any law can be potentially misused. In the case of the queer community, a gamut of laws have been used to harass members of the community, ranging from obscenity laws to the immoral traffic (prevention) act, he says.

"While the number of blackmailing cases have declined after the decriminalisation of homosexuality, there are still a number of other laws that can be used to harass gay people."

Names of queer persons have been changed on request

What are the Yogyakarta principles?
In 2006, a group of international human rights experts met in Yogyakarta, Indonesia to outline a set of principles relating to sexual orientation and gender identity. The result was the Yogyakarta Principles -- a set of 29 principles that form a universal guide to human rights that have legal binding on all the countries that are signatories.

Here are some of the principles: 
 -- Rights to universal enjoyment of human rights, non-discrimination and recognition before the law, as laws criminalising homosexuality violate the international right to non-discrimination.
 -- States have an obligation not to discriminate between different-sex and same-sex relationships in allocating partnership benefits such as survivors' pensions.
-- Right to  human and personal security.
-- Right to expression, opinion and association.
-- Freedom of movement and asylum.
-- Right of participation in cultural and family life.
-- Right to found a family.
For the full text, visit

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