In a transphobic and homophobic society, law enforcement officials don’t act as protectors but as perpetrators of hate and abuse against the LGBTQIA+ community. Violence and harassment by both state and non-state actors are disproportionately high against queer individuals. As Rachele Girardi says in her paper, when individuals display non-heteronormative behaviours, they are considered as people who are dangerous and ‘deviant’. This makes them more vulnerable to over-policing, harassment and violence, all done by the police forces.
Even though laws are introduced to protect the community, like the decriminalisation of homosexuality or the NALSA judgement, they have been inadequate at ensuring human rights, dignity or protection for the queer community. At the ground level, compliance with the Supreme Court’s rulings is almost non-existent with police officers acting on their own biases and handling cases without sensitivity.
In an article published in The Swaddle, Koyel from Sappho For Equality, a Kolkata-based feminist organisation, talked about a case from 2019 when a queer couple had run away and took shelter at a friend’s house. She mentioned how the family of one of the persons, with the help of the police, traced their location. The police did nothing as the family beat the partner up and dragged their child back.
Nuances and complexities are missed while carrying out the judgement and there is not enough awareness and sensitisation amongst police, government officials, and doctors to provide help without any judgement. According to a study by the National Institute of Epidemiology, police harass the transgender community the most. As per Sam Zarifi, International Commission of Jurists’ Asia Pacific Director, on India’s NALSA judgement, “It is time for the government to uphold the equality and dignity of transgender persons in India, and enable them to fully enjoy their human rights, free from discrimination and violence”.
This article attempts to provide ways to navigate the inherently discriminatory system and protect yourself. This includes awareness about your rights, directions on how to file a complaint and how to deal with the situation when a complaint is filed against you. However, situations involving minors are not taken into account.
Arrest
If you are accused of an offence and facing arrest then remember that,
- You need to make sure that the arrest is valid by checking the police officers’ uniforms and ranks, and if their name tags are visible and clear to read.
- The police officer should inform you of the reason for the arrest, except in cases of cognisable offences. Cognisable offences are more serious offences like murder, rape or theft for which the police do not need a warrant to make an arrest.
- If it is a bailable offence then you have the right to be released on bail.
- Make sure that the police officer keeps a receipt of all the things which are taken from you during the search and returns them when you leave. You also need to check and make sure that they maintain an arrest memo where they mention your name, date and time of arrest and what the suspected offence is. It is important to check the details in this because if you have been detained for more than 24 hours then it will go under police misconduct (except in a few cases).
- For women, the arrest can be made only in the presence of a female constable and not before sunrise or after sunset. Female offenders can only be examined by a female doctor and will be placed in a women-only lock-up. However, trans women, most of the time. are not able to avail of these rights despite the NALSA judgement.
If the complaint is false and you have not committed the offence, you can file for anticipatory bail at the court before the arrest has been made. If the arrest has already been made, you must approach a court to quash the false FIR. Suppose it is a situation where you are getting extorted. In that case, it is recommended to immediately get out of the situation by paying the amount if you are alone and feel that the situation can escalate. You can later approach the Superintendent with the complaint of extortion against the policeman who threatened you.
After the arrest has been made,
- You have the right to consult a lawyer from the moment you get arrested and have them present during the interrogation.
- A search can only be done if the police have a search warrant unless they are accompanied by a Magistrate/Judge or believe you have something that needs to be investigated immediately.
- The police will need to maintain a seizure memo listing the things found at your house. Two independent witnesses need to be present during the search who should also sign the memo.
- You should immediately get a medical examination done and get the medical report. This should be done to make sure you don’t face custodial violence and if you do, the medical report will be proof. It will also highlight if you have any medical conditions requiring assistance or if staying in custody worsens your health.
- The police do not have the right to abuse, torture or influence you to get a confession. The confession will then be considered invalid.
Custody
In this,
- You need to be presented before a Magistrate’s Court within 24 hours as per the writ of Habeas Corpus.
- The Magistrate will be provided with a copy of the case diary by the arresting officer which details everything that happened throughout the investigation.
- You can demand a medical examination in front of the Magistrate.
- The Magistrate needs to inform you if the offence is bailable or not. You have the right to be represented by the lawyer of your choice or receive free legal services if you do not know one.
- Only if the Magistrate directs for an extended detention, you can be detained by the police for a maximum of 15 days.
- If the case extends, you will be transferred to judicial custody which cannot exceed 60 days or 90 days (only for offences with 10 years of prison sentence).
- After this, you have the right to be released on bail, you will be released if you pay the bail amount. You and your lawyer would need to apply for bail but if you are not able to pay the amount, your detention will be extended. If it is a bailable offence and you are not able to pay the amount then the court will keep you in custody for seven days and then release you.
First Information Report
An FIR or First Information Report needs to be filed at a police station in the district where the offence happened. You can get a copy of the written FIR which will be duly signed, stamped and dated by a police officer.
- In case you face harassment/abuse or the officer refuses to file it, you can approach the Superintendent, Deputy Inspector General or the Inspector General. You can also approach human rights bodies (SHRC/NHRC) or NGOs for help.
- If it is a non-cognisable offence, the police would require getting the Magistrate’s permission before starting the investigation.
- You can also approach the Magistrate in the District Court if the police are hostile, and file the complaint there. It is recommended that you inform the reason for not approaching the police first for the FIR.
Confinement Against Will
Queer people are often wrongfully confined by their family members. This is a criminal offence and one can file a complaint with the police. You can also approach a lawyer to file a writ of Habeas Corpus if your partner or someone you know personally is held against their will. The Court will then take action and ask the accused party to produce the person confined and begin the hearing.
Many times, Habeas Corpus is used by the abusive family members of queer individuals to bring them back when they try to leave their household with their partner. In case you (and your partner, if running away together) are over 18 and planning to leave your abusive household, carry all your original documents (educational, bank, etc) and identity proof, liquid cash and a new burner phone with a new SIM card before leaving. Ensure you don’t use your debit/credit cards or make online transactions in your new location or on the way as your location can be traced. Liquid cash will not leave any trails.
Organisations to Seek Help
If you are under 18, it is recommended that you do not leave your household. However, if it is a life-threatening situation, seek out an NGO to guide you on how to navigate the situation. In case of elopement or running away, abusive family members file a case of kidnapping against the organisation which will provide you shelter and the person you ran away with (if they are over 18). Police acts as the mediator in these cases and as someone who solves the “family issues”. They help the abusive family and perpetrators. It is necessary then to know about your rights and the resources you can avail at that moment.
Under the Transgenders Protection Act of 2019, there are only 12 shelter homes known as Garima Grehs built so far in 9 states which provide shelter and basic amenities to destitute trans people. If you are a trans person and need immediate shelter, you can approach these if they are in your region. Private shelter houses and NGOs like Nazariya Foundation in Delhi, Sangama in Bengaluru and Sappho For Equality in Kolkata work to fill huge gaps left by the authorities to provide temporary shelter, protection and basic amenities to queer people in need.
You can contact your State’s Legal Service Authority for free legal aid/services by filling out a form or writing a letter to the authorities with the reason for seeking help. You can also seek out the National Human Rights Commission or State Human Rights Commission for help. Since state services are many times not queer-friendly or even equipped to handle cases involving queer individuals, private organisations like Varta Trust in Kolkata, Centre for Law and Policy Research and Raahi in Bangalore, provide aid to marginalised communities including LGBTQ+ individuals. You can also check out the Varta Online Locator to locate queer-friendly lawyers in each major city.
In the end, you must keep your and your loved ones’ safety in mind while dealing with the police as the chances of situations escalating are always high. It is always best to get out of the situation as fast as possible before taking any legal action against the police officials. Make sure that you keep your belongings safe and if arrested, do not say or do anything unnecessary and contact a lawyer or anyone you know can help you.