(Un)equal before the law?

Graphic shows the cover of the report talked about in this article. It is titled ‘“Unnatural Offences” – Obstacles to Justice in India Based on Sexual Orientation and Gender Identity’. The cover is deep blue in colour with a patch of lighter blue stylized like a tear falling – this is to the right corner of the cover. The title on the top and the International Commission of Jurists logo at the bottom of the cover are in white. The logo says “ICJ” in lower case – it has a lamp like icon to the left and the full name of the organization to the right. To the right of the cover is a box with a quote from the report. It reads: “In contemporary India, the enforcement of the law by the police and the country’s justice system fails queer people and is in sharp contrast with India’s obligations under international human rights law . . .”

Happenings, Mar '17
Danish Sheikh on the launch of a report on obstacles to justice faced by queer people in India

Delhi, February 24, 2017: The International Commission of Jurists today launched a report titled “Unnatural Offences” – Obstacles to Justice in India Based on Sexual Orientation and Gender Identity at the India International Centre in Delhi.

The event began with an introduction to the report by this author and Sanhita Ambast. We began by speaking about the methodology of the report, which involved interviewing 150 persons across the country, including community members across the queer spectrum, activists, lawyers and academics. The research also drew from the Right to Information applications filed with government departments in different parts of the country, along with existing reports and academic literature.

This is a photograph of the researchers and authors of the report – lawyer Danish Sheikh is standing in the centre displaying a copy of the report; to his right is social researcher Ajita Banerjie and to his left is lawyer Sanhita Ambast. All three are smiling brightly. They are inside the conference room in India International Centre where the report was launched. We can see a whiteboard in the background with the title of the report written on it. The seating arrangement for the panel discussion speakers is also visible behind the three persons. Photo credit: International Commission of Jurists

Report co-authors (from left to right) Ajita Banerjie, Danish Sheikh and
Samhita Ambast. Photo credit: International Commission of Jurists


The presentation then covered the three broad segments the report was divided into. First, the substantive laws discussed in the report, in particular the effects of criminalization of queer people, along with the impact and implementation of the Supreme Court (NALSA) judgment on transgender identities and rights.

Second, the obstacles that arose when queer persons attempted to approach the police to report human rights violations, including the abuse they faced from the police themselves. Finally, the presentation looked at the issues that arose in attempting to navigate the court processes, starting from trying to find queer friendly lawyers to prejudice faced in the court rooms.

The presentation was followed by an introduction by Ajita Banerjie to a short accompanying video to the report. This was followed by the screening of the video that included interviews with five individuals across the queer spectrum in conversation on their conceptions of the law and attempts to navigate the justice system. They also discussed the intersections of caste and class with queer identity.

The video was followed by a panel discussion comprising three panellists. Anand Grover, a senior advocate and Director, Lawyers Collective, commented on the segments of the report that dealt with accessing lawyers and court rooms. He began by talking about some of the challenges he faced in approaching the courts, particularly in an era where Section 377 of the Indian Penal Code was once again applicable law.

The photograph shows the panel discussion mentioned in the report in progress. Seated from left to right are: Report co-author Sanhita Ambast, senior advocate Anand Grover, academic Dipika Jain, and queer activist Rituparna Borah. Anand Grover is speaking while the others look on. There is a whiteboard in the background with the title of the report written on it. To the right side of the whiteboard is a screen projecting the title of the report. In the foreground are chairs for the audience. It is a close shot of the panellists, and so the audience is not visible. Photo credit: International Commission of Jurists

Panel discussion in progress: From left to right are Sanhita Ambast, Anand Grover,
Dipika Jain and Rituparna Borah. Photo credit: International Commission of Jurists


He noted how the issues queer persons faced were located within a broader justice system that was broken and often required a lot of class privilege to approach. He further spoke about the importance of engaging with judges, and how a lot of cases completely depended on the judge having a sense of empathy. He noted how one of the ways of fostering empathy was through approaching judicial academies.

Dipika Jain, Associate Professor at the Jindal Global Law School, Sonepat spoke about how it was crucial that such sensitization and empathy as referred to by Anand Grover began at the level of the university, which otherwise relegated law and society subjects to the optional sphere. She further spoke about the importance of positioning oneself within the research one conducts, in line with feminist research methodology.

She was followed by Rituparna Borah, a queer activist working with Nazariya, Delhi. Rituparna Borah observed how the report with its extensive anecdotes and experiential accounts made it a particularly accessible and useful read for activists like her. She echoed Anand Grover’s points about how class privilege often affected access to justice for queer persons, noting how the police was often the first point of contact for persons from a lower socio-economic background who couldn’t afford to approach the law mediated by a lawyer.

The panel discussion was followed by an hour of questions and answers with the audience, which consisted of a mix of civil society, academics, students, journalists and different embassy officials. Points of discussion included how the report would be disseminated and translated; and how the research in the report could be used to further policy decisions. For instance, there was discussion on the findings such as statistics around prison detention, with a suggestion that the National Crime Records Bureau should start maintaining records of transgender detainees.

Other points of discussion included the FIRs filed in relation to Section 377 at police stations across the country, and further information on the ways in which transgender persons were denied gender identity recognition under the law.

A copy of the report can be accessed here.

Author Photo

Danish Sheikh

Danish Sheikh is a consultant on sexual orientation and gender identity with the International Commission of Jurists, and teaches courses on the intersections of law and literature at law schools across India.

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