Law, Social policy, Arts, culture & society | Asia, South Asia

26 April 2016

A case in India’s Supreme Court outlines the failure of the law to protect the LGBT community, Danish Sheikh and Sanhita Ambast write.

In an affidavit submitted to India’s Supreme Court, Kokila – a member of the traditional male-to-female transgender community known as hijras in South Asia – described how 10 men raped her in 2004.

She was out on a city street in the late evening dressed in women’s clothes when the men began their assault. Two policemen arrived, took her to the police station and instead of processing her complaint or sending her for medical examination, her ordeal continued, with different police officials raping her for hours in custody.

The language of the law gives us a number of terms to describe what happened to Kokila. The latest report by the UN Special Rapporteur on torture and other ill treatment reiterates how “torture” is one of them. The report makes the case for applying the framework of torture more effectively to acts of violence by state and non-state actors against persons who transgress sexual and gender norms.

The custodial rape of LGBT persons, for example, has been recognised as a form of torture under international law for many years now. Kokila’s case tells us the value of applying this perspective – the torture in her case was integrally linked to her transgender identity.

Her painful testimony strengthens the case for getting rid of the criminalization of same-sex relations under Section 377 of the Indian Penal Code (currently subject to constitutional challenge before the Supreme Court of India).

Kokila’s case is evidence of how Section 377 has perpetuated homophobic and trans-phobic attitudes in India, leading to discrimination and violence against LGBT individuals, and furthermore, has created an environment in which state authorities like the police not only fail to protect LGBT individuals, but further violate their rights.

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The Special Rapporteur’s report reaffirms two additional arguments relating to provisions like Section 377.

First, it acknowledges the link between the criminalization of LGBT persons and homophobic and trans-phobic “hate crimes, police abuse, community and family violence and stigmatisation” by state and non-state actors. Such laws foster a climate in which, for example, the police do not protect the victims of homophobic and trans-phobic violence, and even engage in torture of LGBT individuals themselves with impunity.

As a result, Section 377 is not directly invoked in many cases involving persecution of LGBT individuals. In 2014, another transgender woman in the state of Rajasthan was sexually assaulted by the police and threatened with narcotics charges if she did not cooperate with them. As the Special Rapporteur’s report notes, it is the climate of impunity fostered by criminalisation (under laws such as Section 377) that allows for such acts of torture to take place.

This institutionalised lack of accountability is very clearly at odds with the State’s obligation to prevent torture and requires an assessment of how laws like Section 377 create a climate in which violence against and persecution of LGBT persons is carried out with impunity.

Further, these laws also make it impossible for LGBT survivors of violence, particularly sexual violence and assault, to file complaints about their experience, without themselves being at risk, both because of the law itself, and due to the stigma it perpetuates. In Kokila’s case, for example, filing a complaint would have made her vulnerable to possible prosecution under Section 377. All states have an obligation to exercise due diligence to prevent, investigate, prosecute and punish acts of torture, whether committed by state or non-state actors. Laws like Section 377 cast doubt on whether this due diligence obligation is being fulfilled.

India’s general record on respecting international legal norms regarding protection against torture, and accepting international scrutiny on this issue, is poor. India signed the UN Convention against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT) in 1997 and has as yet not ratified it. Attempts have been made to frame an anti-torture bill in India, but nothing has come close to passing. When torture is prosecuted, it is usually under existing provisions of the penal code, such as grievous hurt.

The UN Special Rapporteur on Torture made a request to visit India in 1993. This request is still pending. In 2011, the Indian government issued a ‘standing invitation’ to all Special Rapporteurs indicating that the government would accept all such requests for visits. And since then, several Special Rapporteurs have made visits to India. However, in 2015, the UN Special Rapporteur on Torture said the Indian government was “unresponsive” to his requests for a visit.

The prohibition against torture is now considered a preemptory norm in international law, meaning all states must prevent and punish all acts of torture, notwithstanding their ratification of the CAT. As a signatory to the CAT, India has an obligation to respect the object and purpose of the treaty. This includes ensuring that acts of torture experienced by LGBT persons are prevented and punished.

And this means that, at a minimum, Section 377 must be repealed.

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Sheikh, D. and Ambast, S. (2016). How India’s law fails LGBT people - Policy Forum. [online] Policy Forum. Available at: