To The Secretary, PADC Ministry of Home Affairs, Jaisalmer Man Singh Road, New Delhi !!

Dear Sir, "e write to you as a grou# of indi$iduals and N%&'s wor(ing on issues #ertaining to those whose se)uality is different from the heterose)ual norm, As gay men, les*ians, hi+ras and (othis, dou*le dec(ers and transe)uals, the community of #eo#le who all com*at the heterose)ual norm are su*+ect to numerous a*uses and *rutalities *y the #olice, Perha#s due to the lac( of awareness relating to the e)istence of se)ual minorities in -ndia as well as the continued a*use to which they are su*+ect, there has not *een any sustained state res#onse to countering the human rights $iolations faced *y a section of the -ndian #o#ulation, &ne ho#es that this su*mission will ena*le this committee to treat with seriousness the egergious a*uses faced *y se)ual minorities and seriously contem#late remedial measures, Since we are seriously concerned *y the #attern of human rights $iolation to which the se)ual minority community is su*+ect, we strongly feel that the re#eal of Sec .// is a #art of the legal solution to redressing this #attern of $iolence to which we are committed, Howe$er we do recogni0e that this Committee has a much narrower mandate and our su*missions should *e seen as an effort to ena*le this Committee to fulfill its mandate of addressing the 'concern for human rights ' in its drafting of a new Police Act, To do the same we will structure our su*mission in the following manner, 1) Se)ual minorities in -ndia 1 Conte)t and *ac(ground 2) Pro*lems faced *y se)ual minorities with the #olice 3) -ndian res#onse to Se)ual orientation discrimination 4) -nternational law 1 Non discrimination and se)ual orientation2gender identity 5) 3est Practices in dealing with the concerns of se)ual minorities with the #olice 6) Conclusion and Recommendations House,

4ours faithfully, ! 5 6-RM, 7erala . Amitie, " 3engal 8 Na0 6oundation Trust, Delhi 9 Pratyay %ender Trust, " 3engal : Alernati$e ;aw 6orum, 7arnata(a / Pranta(atha , " 3engal < Humsafar Trust, Maharasthra = Sama#athi(, Maharasthra !> Sura(sha Society, 7arnata(a !! S#andana, 7arnata(a !5 6orum Against &##ressio of "omen, Maharasthra !. %elaya , 7arnata(a !8 Sura(sha , Andhra Pradesh !9 Sahayatri(a , 7erala !: Mithrudu, Andhra Pradesh !/ AASHA , Mani#ur !< ?oices Against Sec .//, Delhi != The &ther 6orum , 7arnata(a 5> DMSC , " 3engal 5! %ood As 4ou, 7arnata(a 55 SAATH-, Tamil Nadu 5. 3harosa Trust, @ttar Pradesh 58 ;a(shya , %u+arat 59 Dai "elfare Society, Maharasthra 5: PARMA, %u+arat 5/ Hum+insi , Maharasthra 5< THAA , Tamil Nadu 5= PS-, Maharastra .> Dum Dum Swi(riti Society, " 3engal .! 3andhan , " 3engal .5 Sangama, 7arnata(a PR-SM, Delhi

.. Samara , 7arnata(a .8 Jyoti "elfare Society, Andhra Pradesh .9 ;es*ians and 3ise)uals in Action, Maharasthra .: Sneha#oor$am, 7erala ./ P;@S, Delhi .< SAATH- , Andhra Pradesh .= ;awyers Collecti$e, Maharashtra and Delhi

Sexual Minorities and the Police In India : Towards a regime of accountability

1) Sexual minorities in India : Background and context Though se)ual minorities ha$e always e)isted in -ndia sometimes in forms which are culturally sanctioned Asuch as the hi+raB and at other times in in$isi*ility and silence,

their issues ha$e ne$er seriously *een articulated, -t is only recently that the rights of se)ual minorities as an issue has *een ta(en seriously in -ndia *y $arious ci$il society organi0ations,1 The #hrase se)ual minorities is meant to encom#ass a range of #eo#le who are marginali0ed on grounds of their se)uality, They minimally include1 The hi+ras1 As a community, they re#resent an e)isting -ndian tradition which clearly contests heterose)ualty as a norm, Hi+ras include men who go in for hormonal treatment, those who undergo se) change o#erations and those who are *orn herma#hrodite, The hi+ra community has its own cultures and ways of li$ing, including its own festi$als and gods and goddesses, Hi+ras di$ide themsel$es into gharanas or houses and the strength of the hi+ra community lies in its close (nit relationshi#s, The (othis2 dou*le dec(ers 1 The (othi is a femini0ed male identity, which is ado#ted *y some #eo#le in the -ndian su*continent and is mar(ed *y gender non conformity, A (othi, though *iologically male, ado#ts feminine modes of dressing, s#eech and *eha$iour and would loo( for a male #artner who #erforms masculine modes of *eha$iour, s#eech and dress, The dou*le dec(er is an identity ta(en on *y one who #refers not to ado#t feminine modes of *eha$iour and is o#en to *oth acti$e and #assi$e roles, The CmodernD communities that ha$e emerged which contest the heterose)ual norm are the les*ian, gay *ise)ual and transgender communities, These grou#s often li$e in ur*an areas,

There are also a

#roliferation of identities and #ractices such as +ogtas,

shi$sha(tisA *oth of which are traditional and culturally sanctioned forms of gender nono conformity, #articularly *y men who ta(e on the gender identity of womenB etc which are too many to *e enumerated,

1 See PUCL- K, Human rights violations against sexuality minorities in India, PUCl, 2000. PUCLK, Human rights violations against the transgender community; A study of hijra and kothi sex workers in Bangalore, 2003, Voices Against 377

&utside the framewor( of communities there are stories of indi$idual #eo#le who assert their right to a different life, The most #u*licised e)am#le was the marriage of @rmila Shri$asta$a and ;eela Namdeo in !=<<, two women from a rural *ac(ground who were ser$ing in the Madhya Pradesh consta*ulary, This of course is not the first or the last such instance as there ha$e *een at least ten documented cases of women who not +ust li$e together *ut want societal recognition for their relationshi# and hence attem#t to marry each other, Thus the #icture which emerges from the a*o$e s(etchy narrati$e is of a di$erse range of #eo#le s#read across class, caste and gender, ha$ing in common only a se)uality which stands in o##ostion to the heterose)ual norm, which in turn *ecomes the *asis of harassment and $iolence *y *oth state and society, Due the limited mandate of this Committee we will confne our analysis to undestanding and #ro#osing changes with res#ect to the interface *etween the #olice and se)ual minorities

2) Problems faced by sexual minorities with the olice "hile it is a fact that -ndia still has on its statute *oo(, Sec .// 2 of the -ndian Penal Code which criminali0es se)ual acts outside the #enile $aginal The #olice framewor(, documented #olice treatment of se)ual minorities e)ceeds the narrow sco#e of Sec .// to result in #atently illegal actions, heads1 1) Torture and ra#e of se)ual minoriies interaction with se)ual minorities can *e understood under the following

2Sec 377 of the IPC reads,

Unnatural offences. Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation.Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

Perha#s one of the most serious #ro*lems faced *y se)ual minorities, #articularly those from a lower socio economic framewor( is the issue of *rutal torture and ra#e *y mem*ers of the law enforcement agency, There are many *rutal narrati$es of how se)ual minorities ha$e *een targetted on the *asis of thier se)uality *y those meant to u#hold the law, This has *een documented e)tensi$ely *y P@C; 7 in its Re#ort, To Euote +ust one instance, 'Nasir, a 27 year old kothi, states: the Sampangiramanagar police filed a false case against me under a wrong name (Saleem) and my father's name as !dul, and put me in the lock"up# $hen % protested against this confinement, they told me we cannot do anything with you, so &ust !e here# % was made to !e there until '' p#m# and after appro(imately an hour, three policemen came to me and asked me whether % ha)e a penis or not, let us see#* $hen % didn't listen to them, they started hitting me in order to make me take off my clothes# +ne policeman put a stick into my arsehole saying you are a ,kho&a' (derogatory term used for kothi-hi&ra)# others, one !y one, till they all came out and left me#'3
The kind of inicidents as documented above are still only those which have emerged to some degree of public attention because of the work of some spirited individuals and organizations. of such brutal violence perpetrated by the police, for thier actions. In the later rape and in However even cases do not result in

nd then one policeman

forci!ly inserted his penis in my mouth and the other in my arse, and so did the

any actions by the state which ensures that the polie are accountable torture of Kokila a hijra being put on the state the angalore, inspite of sustained pressure

to punish the errant officers who were identified by Kokila,

4

authorities refused to take action against those who had violated the law so egergiously.

2) Illegal !etention
The other pattern of harassment which se"ual minorities face is the practise of illegal detention. #ost often $I%&s are not filed agaisnt se"ual minorities, rather they are arbitrariliy picked up by the 3 See PUCL-K, Human Rights Violations Against the transgender community, 2003, p. 35. Also see the subsequent brutal rape and torture of Kokila a hijra. This has been d 4 Deccan Herald, Friday, July 02, 2004, http://www.deccanherald.com/deccanherald/july022004/she1.asp

police, released.

illegal

detained,

money

e"torted,

beaten

up

and

then

These police actions escape legal scrutiny precisely becuase the entire body of accountablity present in the recording of arrest , detention and the filing of cases is simply bypassed. Thus even the most serious offences commited by the police escape the minimum safeguards prescribed by the 'riminal (rocedure 'ode as the arrested do not have to be produced before the #agistrate or be sent for medical e"amination. To cite one e"ample documented by (+',-K, ' On 8 June, 2000, the police arrested Narayana, a self-identified kothi on suspicion of theft. He was not informed of the char e a ainst him, neither was there any implicatin prima facie e!idence. He spoke to mem"ers of the team a"out the a"use meted out "y the police. #$ kept pleadin that $ was innocent, "ut was kept in the lockup was then taken "y a pu"lic "us to Hu"li for in!esti ation and shamefully handcuffed to the seat. %!en after the real thief was arrested on the third day and the oods reco!ered, $ was still not released. &he acti!ists who came to demand my release were informed that $ was not under arrest "ut was co-operatin sei'ed my friends. with the police in!esti ation. &he police then which $ contained was taken the addresses to of the my kothi handcuffed cruisin diary, before )* hours

(u"se)uently

areas and told to identify the other kothis. *hen $ complained to the (tation House Officer a"out my continued detention $ was told that $ would "e released only if $ pro!ided information a"out other kothis. $ was finally released after ei ht days of !er"al a"use and pu"lic if $
5

humiliation did not

and

was

threatened report to

with the

serious police

conse)uences station..+

fre)uently

3) ."tortion
&This appeared to be one of the most common forms of oppression. The police often stop gay/bise"ual men in the cruising areas, threaten them saying we know what you are doing, take their names and addresses and e"tort money from them. It is difficult to estimate the number of cases of e"tortion suffered by the community as there are obviously no police records. 0ince $I%1s are almost never recorded it 5 PUCL- K, Human rights violations against sexuality minorities in India, PUCl, 2000. p. 16.

appears to be one of the easiest ways for the police to make easy money as the gay/bise"ual men are so scared of being 2outed1 to wider society that they will part with whatever they have with them.&6

4) $iling of false cases

3hat seems to underly the treatment of se"ual minorities is the police understanding that se"ual minorites are criminals under the law. This atttitude of presuming the criminality of an kidnapping to theft to cases under 0ec 566. 7ne section which has been fre4uently abused by the police in their upholding a certain social morality which is even opposed to the law is the filing of cases of kidnapping against lesbians. 7ften due to the social pressure to get married, adult women who prefer to lead their lives with each other, choose to run away rather than be forced into a marriage with a man. In such a situation the family approaches the police for help and often the younger girl&s family complains that the older girl has tricked thier daughter and run away with her. .ven after investigation, if it is clear that the women have choosen to voluntarily run away, the police file a false case of kidnapping/abduction with a view to harass two people who though they might be going against a societal morality are not doing anything illegal. The police in thier search for a sensational case have also entire group leads the police to fre4uently file false cases ranging from

resorted to the strategem of filing a case under 0ec 566 against those who may be gay/bise"ual but have not committed any offence under The best unnecessarily the evidence harass of this se"ual said propensity minorities is provision. of seen the in police the to recent

arrest of four men suspected of being gay/bise"ual by the ,ucknow police. 8 $act $inding conducted by the 9ational 'oalition $or 0e"uality %ights :9'0%;, noted that, &8s per an $I% lodged by the ,ucknow police at <udamba police station on * =anuary )>>? at @).*> am, they arrested and * men, <upta, 9ihal on 9a4vi, (ramit of ailey, of 8shutosh Khanna (ankaj charges violation

0ection 566 of the I('. The four men were supposedly indulging in 6 Ibid. p.15.

2unnatural se"1 in a picnic spot and were arrested at A.5> pm on 5 =anuary )>>?.& 8ccording to the finding of the Team,
7

&it was

clear that none of the men involved were having public se", much less present at the alleged spot of the crime. & arrived there at this not a conclusion single by talking to the The Team parties medical

various nor any

concerned. The weakness of the case emerged from the fact that was independent witness evidence to prove that such an act had indeed occured. 8s the $act $inding Team notes, &The story put out by the police in the $I% is a completely false one with the entire process being a se" spectacle put on by the police. This matter, of course, has very serious implications for the trial as it unfolds and should be followed closely so that this perverse desire of the police for free and cheap publicity at the cost of innocent people whose lives are being irreparably damaged is not allowed to persist or recur. &8

5) 9on application of rape, cruelty laws to hijras

8nother problem which has often restricted the struggle for

justice of the hijra community is the failure of the police to use sections of the Indian (enal 'ode to protect their interests. 7ften crimes are committed against hijras targetting both their se"uality and perceived gender. To take one e"ample, when 'handni, a hijra was mudrerd by her husband, the police filed a case of suicide. The possibility that 'handni might have died due to the pattern of harassment by her husband could bring the death not only within the understanding of murder but also dowry death. 0imilarly in cases of cruelty by husbands, the law on cruelty should also become applicable to protect hijras. $urther in cases where hijras have been arrested by the police, the arrest should always be by a woman police officer and the hijra should be sent to the womens wing of the prison.

7 http://www.yawningbread.org/apdx_2006/imp-249.htm 8 Ibid. It has also to be noted that Sec 377 was used to file a case against employees of an NGO , Naz Foundation who were engaged in HIV/AIDs work among the MSM population in 2000. This was a false case as well and as of now the Sec 377 charge has been dropped by the police.

B;Homophobia in the police force combined with ignorance of the concerns of se"ual minorities. If there is a cause which underlies this widespread pattern of unlawful police behaviour and unconscionable actions it is the underlying police knowledge, attitudes and values. .ven with respect to elementary knowledge about what constitutes an offence under 0ec 566 of the I(', there is a shocking ignorance. The (+',-K %eport notes, &3hen the =oint 'ommissioner of (olice !r. 8jai Kumar 0ingh was asked what the police view was on the subject of gay rights, he saidC DHomose"uality is an offence under 0ection 5 of The Indian (enal 'ode and it is the duty of the police to prevent any kind of offence from happening. If the cop on duty 4uestions or prevents any form of crime, he is only doing his job. 3here is the 4uestion of harassment or atrocityE These are not cases of human rights violation because these groups are not legally recognized. ,et them repeal the I(' 8ct, which bans homose"uality. .ven if the 8ct were changed, people would still be penalized if they continued to attract or encourage obscenity in public places. They can carry on with their activities in their homes, but not outsideF9 The ignorance about the law is only compounded by the widespread prejudice against se"ual minorities. 8s another interview with a police officer notes, &8s regards the nature of homose"uality, #r. Hegde was 4uite clear that it was an animal-like behavior.&10

This com*ination of ignorance and #re+udice is also mirrored in a study of attitudes among the #olice to se)ual minorities in Delhi, Jyoti Puri in her study notes, 'These are my summary findings *ased on these discussions 1. Police officers and consta*les do not share a singular $iew of same se) se)ualities, "hile some *elie$e that homose)uality is FunnaturalG and Fagainst natureG, others *elie$e that se)ual acti$ity among consenting adults is not wrong, 2. There was similar disagreement on 0ection 566. .ven as some
opposed

9 PUCL- K, Human rights violations against sexuality minorities in India, PUCl, 2000. p.22. 10 Ibid. p. 23.

changes to 0ection 566, others took the position that the law is wrong and should be changed since it is a colonial relic.&
11

6. Hate crimes committed against se"ual minorities

8s noted earlier, se"ual minorities are not just victimized by the police, but rather because of the wider societal stigma and disapproval are sometimes targetted 4uite viciously by members of the public . the abuse sometimes even amounting to murder is not easily indentifable as a hate crime based on se"ual orientation/ gender identity due to the #ost often

invisibility surrounding the lives of se"ual minorities. (erhaps illustrative is this %eport from 0hillong,

'Meanwhile, mystery shrouds the murder of 22-year old Melambor Syngai of Mawlai Kynton Massar - a peon engaged in the Main Secretariat, whose body was recovered on Saturday.The residents of Kynton Massar were shoc ed over the incident as murder of this nature occurred in the locality after several years. !amily members are also clueless and found no reason for the murder of Syngai.'12
11 Jyoti Puri, Gathering Strength: Against IPC Section 377, Report in Progress, March 2006

12The Shillong Times, "#th !ebruary 2$$%.

The clue to the murder really lay in the boy's se&ual orientation'gender identity which was the result of him being the reason for the emerged through illling local level contacts with the gay illed. This clue to

community in Shillong, all of whom were indeed very fearful as to what this murder meant with respect to their own personal security.13 The other case which has been documented is the murder of Rani, a young hijra who lived in north Kolkata, whose head was smashed in with a heavy stone as she was sleeping on the Calcutta pavements. She died at the Calcutta Medical College of severe head injuries on November 20, 2005. As noted by one of the activists, 'One of the most disturbing issues in this death is the brutality with which Rani was attacked. Her face was unrecognizable and badly smattered.Her condition was so fragile that it was a difficult task to even move her for a CT Scan."# (lso illustrative of the above attitude is the fact that post the murder. The motivation for these crimes is usually based on a hatred of se&ual minorities. +nfortunately the gravity of this 'hate crime' on the basis of se&ual orientatin'gender identity -ndian .egal system. is not yet recogni,ed by the illing of the hi)ra *handni by her husband, the police choose to register a case of suicide as opposed to

7) Se&ual minorities within the police force (s noted in the introduction, se&ual minorities are

everywhere occuping many diverse positions in society. -t should be no surprise to note that there will be se&ual
13 Lgbt-india@yahoogroups.com 14 Ibid.

minorites

even

within

the

police

force.

/owever

when

se&ual minorites are 'found out' , the conse0uences they suffer are usually 0uite severe.

1ne e&ample of this homophobia within the force is the dismissal of two women constables, when it became together. The dismissal too absence, but it was clear nown that they had got married to each other and were living the route of a technical that both the women were
15

matter of the fact that they had an e&tended leave of dismissed for actually getting married to each other.

Another e)am#le in recent times which illustrates the #resence of se)ual minorities within the force is the sensational re#orting around -ns#etor %eneral, @ttar Pradesh, De$endra %u#ta turning u# in court wearing a yellor dress and dar( red li#stic(, The 33C Re#orted that, 'Colleagues (e#t his #enchant for ladies' clothes a secret for years, *ut must now decide what to do with a man who has *ecome a figure of ridicule,' -n the o#inion of the State Director %eneral of Police, MR 4ash#al Singh, HThe a##earance and *eha$iour of Mr Panda is strange,,,,3ut may*e he is suffering from some mental #ro*lem and any disci#linary action may #reci#itate things,H16

!" #es onse to Sexual orientation$ %ender Identity based discrimination by the olice in India "hile one can clearly identify #atterns of a*use *ased on se)ual orientation and gender identity, the -ndian state has not yet res#onded to these documented serious $iolations in any manner, "hen it comes to the #olice force as well, one can note that there are no s#ecific measures which ta(e on *oard the #attern of $iolence faced *y se)ual minorities, Howe$er se)ual minorities *y $irtue of *eing #ersons are entitled to the $arious #rotections under *oth the -ndian Constitution as well as other #ro$isions of -ndian ;aw, As the P@C; 7 Re#ort notes, ' The e)istence of a rule of law framewor( can

15 Bina Fernandez, Ed., Humjinsi, India Center for Human Rights and Law, 1999, Mumbai, p. 63. 16 http://news.bbc.co.uk/2/hi/south_asia/4440504.stm

also *e a s#ace that human rights organi0ations and se)uality minority organi0ations should claim in order to #rotect the *asic rights of se)uality minorities,' 17 -n this conte)t any reform of the Police Act should *e ta(en as an o##ortunity to ta(e on *oard the learnings of the #ast and codify it in the new legislation, Prime among the many $alua*le changes #ro#osed *y different organs of the -ndian State are 1 1) .ecommendations of the National /olice 0ommission '172"77 The National Police Commission was set u# immediately after the emergency with the o*+ecti$e of #ro#osing changes to the #olice force and functioning which was *ased on a !!< year old #olice Act , ie the Police Act of !<:!, "hat the Commission in its Re#ort clearly recogni0ed was that ' The #resent culture of the #olice system a##eared a continuation of what o*tained under the 3ritish regime when the #olice functioned ruthlessly as an agent for sustaining the %o$ernment in #ower, -n #u*lic estimate the #olice a##eared more as an agency to im#lement and enforce the o*+ecti$es of the %o$ernment in #ower as distinct from enforcing law as such as an inde#endent and im#artial agency,'18 Stemming from this recognition, the Recommendations of the Commission tried to conte)tuali0e the role of #olice reform as an effort to change the role of the #olice to fit the ethos of a modern , democratic and socialist state, The difficulty of this effort was ac(nowledged *y the Commission as they noted, '"e are aware that it will *e a $ery difficult tas( to change the centuries old traditions and #ractices under which the #olice had *een the instrument of #ower of the #olitical authority and now finds itself Euite often in an ad$ersary #osition $is a $is the larger #u*lic good and #u*lic interest,' 19 -f one understands that the core #rinci#le underlying the Recommendations is the shift from a a colonial to a democratic set u#, then the Reforms #ro#osed *y the Commission are of great salience e$en today, Three (ey reforms #ro#osed *y the Commission would need to *e im#lemented to ensure the (ey o*+ecti$e of ha$ing a #olice force which is res#onsi$e to the democratic set u#,
17 See supra 9. 18 First Report of the National Police Commission, Government of India, 1979, p. 7. 19 Fifth Report of the National Police Commission , Government of India, 1980, p 9.

aB Setting u# of a State Security Commission The central strategy of ensuring that the #olice are accounta*le to the #u*lic a#art from *eing an agency of the state is to #ut in #lace a State Security Commission, The Commission will ha$e a mem*ershi# which includes the Minister in Charge, two mem*ers of the legislature Aone from the ruling #arty and one from the o##ositionB, four mem*ers from retired +udges, retired senior ci$il ser$ants, and academics and social scientists of eminence and standing, 'The functions of the State Security Council will include 1) laying down *road #olicy guidelines and directions for the #erformance of #re$enti$e tas(s and ser$ice oriented functions of the #olice 2) e$aluation of the #erformances of the State Police e$ery year and #resenting a re#ort to the State ;egislature ,,,,,'20 lay down *road #olicy guidelines as well as e$aluate the functioning of the State Police e$ery year,

*B Setting in #lace a mechanism for inEuiries against the #olice The Commission has also ta(en seriously the series of com#laints against the #olice and set in #lace a mechanism for dealing with these com#laints, The mechanism has three tiers1 3irstly is the mechanism of de#artmental inEuiries *y an officer of a higher ran(, not *elow the ran( of an -ns#ector Secondlyis the mechanism of the Com#laint Cell to *e headed *y a De#uty Su#erintendent of Police to handle inEuiries into allegations of #olice misconduct in which the normal hierarchical le$els are li(ely to ta(e a *iased $iew for any local reason,

20 Second Report of the National Police Commission, Government of India, 1979,p.31

4hirdlyis the mechanism of mandatory +udicial inEuiry in cases in$ol$ing ra#e of women in #olice custody, death or grie$ous hurt caused while in #olice custody and death of #ersons arising from #olice firing in the dis#ersal of an unlawful assem*ly, 21

cB Police training As has *een cited earlier, the o*+ecti$e of ensuring that the #olice function in line with a democratic set u#, will remain a figment until and unless there is #olice training, "ith this in $iew the Commission #ut a s#ecial em#hasis on the 'training of #olice in order to ena*le it to #lay its role in economic de$elo#ment and social welfare1 1) ;oyalty to the Constitution, commitment to the goals of the nation and the conce#ts of an egalitarian society and the need for national integration 2) Awareness of the #ro*lems that arise in the wa(e of the de$elo#ment #rocess , including conflicts , social disorgani0ation, scarcity and controls, regional im*alances etc,,,,,, A9BA new orientation in dealing with the masses who come from $arous strata of society, di$ided among many contours such as religion, caste, region , income as may lead to the correct res#onse in indi$idual cases,'22 "hile none of the recommendations #ertain in #articular to the treatment of se)ual minorities such changes with suita*le modifications would ena*le a more humane and accounta*le #olice which will go towards #rotecting the rights of all citi0ens including se)ual minorities,

2) 5udgements of the Supreme 0ourt- 0onstitutional /ro)isions-/ro)isions of the 0r#/#0 The Su#reme Court has handed out a series of Judgments all of which are aimed at structuring #olice discretion and ensuring that #olice action fits within the framewor( of the Constitution, Some of the #oints made under merely underscore the e)istence of law which the #olice ha$e disregarded, while in other cases the Su#reme Court has laid down law which structures discretion, &nce again there is no s#ecific +udgement
21 Ibid. 22 Fifth Report of the National Police Commission, Government of India, 1979, p9.

with res#ect to se)ual minorities, there are a catena of decisions which go on to try and ensure that #olice action remains constitutional, &) /olice should gi)e a co#y of the 6-R free of charge23 5B There should *e no use of handcuffs without +udges #ermission24 3) Police arresting a #erson must wear clear and $isi*le name tags and uniform25 4) Arrest should *e *ased only on a reasona*le satsifaction as to the *onafide of the com#laint and a reasona*le *elief as to the #erson's com#licity in the offence,26 5) Police must inform the #erson to *e arrested a*out his right to *ail as well as his right to *e re#resented *y a lawyer of his choice,27 5) Police must #re#are a memo of arrest with time and date of arrest which is to *e signed *y family mem*er2res#ecta*le mem*er of neigh*ourhood,28 6) Police must inform any #erson interested in the arrested #ersons welfare a*out his arrest and the location of the #lace where he is *eing (e#t under arrest,29 /B Police must #re#are an accurate list of things sei0ed from the arrested #erson and a co#y of the same must *e gi$en to the arrested #erson,30 8) The #olice must ensure that the accused has the right to inter$iews, $isits and confidential communications with his or her lawyer,31 9) The #olice must ensure that there are two inde#endent witnesses APanchasB who will *e #resent when the #remises of any #erson are searched,32 !>B The #olice must ensure that the accused #erson can consult with his lawyer when he2she is *eing interrogated whether the #erson is arrested or not, 33 11) The #olice must not torture the accused,34

6) 7uidelines issued !y the National 8uman .ights 0ommission (N8.0)

23 24 25 26 27 28 29 30 31 32 33 34

Sec 154 (2) Cr. P. C Prem Shanker vs Delhi Administration, AIR 1980 SC 1535. D.K. Basu vs State of West Bengal , AIR 1997 SC 612. Joginder Singh vs State of Uttar Pradesh, AIR 1994 SC 1349. Art 22 (1) D.K. Basu vs State of West Bengal , AIR 1997 SC 612. Ibid. Sec 100(5) Cr.P.C. Joginder Singh vs State of Uttar Pradesh, AIR 1994 SC 1349. Sec 100 (4) Cr. P. C. Joginder Singh vs State of Uttar Pradesh, AIR 1994 SC 1349. Mohanlal Sharma vs State Uttar Pradesh, (1989) 2 SCC 314

The National Human Rights Commission has issued a series of im#ortant instructions to the all state go$ernments aimed at ensuring the accounta*ility of the #olice force for their actions, &f #articular rele$ance to the continuing ill treatment of se)ual minorities are the following1 aB Detailed instructions on custodial deaths2ra#es These instructions #lay #articular attention to the #oint that the 'auto#sy Re#ort forms now in use in the $arious States are not com#rehensi$e and therefore do not ser$e the #ur#ose and also gi$e sco#e for dou*t and mani#ulation, The Commission, therefore decided to re$ise the auto#sy form to #lug the loo#holes and to ma(e it more incisi$e and #ur#oseful,'35 -ndicati$e of how the Model Auto#sy 6orm attem#ts to ensure that the $arious forms of torture are indeed recorded is a ta*le titled , Torture TechniEue !5 Se)ual A*use Physical finding se)ually transmitted diseases, #regnancy in+uries to the *reasts, e)ternal genitalia, $agina, anus or rectum 17. Heated metal s(ewer inserted into the anus *B ?isits to Police ;oc( u#s2 %uidelines on Polygra#h tests and Arrests &n the Euestion of arrests the guidelines note, 'A large num*er of com#laints #ertaining to Human Rights $iolations are in the area of a*use of #olice #owers, #articularly those of arrest and detention, -t has therefore *ecome necessary with a $iew to narrowing the ga# *etween law and #ractice , to #rescri*e guidelines regarding arrest e$en while at the same time not unduly curtailing the #ower of the #olice to effecti$ely maintain and enforce law and order and #ro#er in$estigation,'36 The guidelines themsel$es are di$ided into four sections Pre Arrest Some of the (ey guideline include the fact that arrest without warrant should *e effected only after reasona*le satisfaction a*out the genuiness of the com#laint and a reasona*le *elief as to *oth the #ersons com#licity as well as the need to effect arrest
35 On Custodial deaths an d rapes, http://www.nhrc.nic.in 36 NHRC Guidelines Regarding Arrest, ibid.

#eri anal or rectal *urns

and that the #ower to arrest must *e a$oided where the offences are *aila*le unless there is a strong sus#icion that the sus#ect will a*scond, Arrest 6orce should *e a$oided while effecting arrest, the dignity of the #erson should *e #rotected and that searches should *e carried out with due res#ect to dignity of the #erson Post Arrest The #erson should *e allowed to meet his or her lawyer and interrogation should *e conducted ta(ing into account dignity of the #erson, and the right against torture Inforcement of guidelines The guidelines must *e dis#layed in e$ery #olice station and the #olice must set u# a com#laint redressal mechanism, cB Measures to im#ro$e #olice #u*lic relationshi#s
37

&ne of the (ey measures #ro#osed is laying down guidelines for the functioning of the Human Rights Cell which will function as a lin( *etween the NHRC and the State Police Agencies, The Human Rights Cell is to regularly interact with the District SP's on human rights #etitions2com#laints and issue instructions 2guidelines so as to minimi0e and #re$ent $iolations of human rights *y the #olice, The Human Rights Cell is also e)#ected to conduct sur#rise $isits to Police Stations to chec( cases of illegal detention and a*use of authority, The a*o$e is a *rief summary of the e)tensi$e guidelines which to towards ensuring accounta*ility *y the #olice force, -t is su*mitted that all these guidelines should form a #art of any re$am#ed legislation so that the functioning of the #olice does indeed *ecome more accounta*le and suited to a democratic society, The attem#ts *y the -ndian state to ensure an accounta*le #olice force ha$e in large measure not ta(en on *oard the s#ecificities which arise from the #olice force ha$ing to deal with se)ual minorities, Howe$er there are a few e)am#les of #ositi$e action *y the -ndian state which can ser$e as a *road tem#late to guide the state in its dealings with se)ual minorities,

37 http://www.nhrc.nic.in

9 :istinguishing law and morality: Some state actions "hile none of the ma+or national *odies *e it the Su#reme Court or the National Human Rights Commission ha$e not laid down any significant law #ertaining to se)ual minorities, the Magistrate's Courts ha$e dealt #roacti$ely with some of the issues facing se)ual minorities, The Magistrate's Court in Halol, Gujarat was confronted with a situation where, "Sonu Avtar Singh, 21, and Rekha Marwadi, 18, had eloped from Halol town in the Panchmahals to a village in Punjab on January 1.They were forced to return to Halol under police custody, after Rekha's parents filed a kidnapping complaint against Sonu. On being produced before the Magistrate, the two women stated that they had voluntarily run away and based on that statement, Judge Parikh said the two women could not be held once the kidnapping charge did not hold.38 The principle underlying 2udge 3ari h's statement is that there is a difference between law and morality and it is the )ob of the police to enforce the law and not moral standards which they thin are appropriate to society. This principle is put rather succinctly by 2acob 3unnose 4 (dd 56 of 3olice, Kerala 7, when he notes, '3olice are not lawfully empowered to enforce any moral code. 3olice are not the arbiters of morals and ethics. .egislatures define the law and the police in a democracy are to concern themselves continuously with the tas of attempting to curb the unlawful, leaving the decision of punishment of the offendor to the courts. The policemaneven a saintly, strong, righteous one- has no right to punish immorality among the general citi,enry.'39 The principle articulated above of distinguishing law and morality and strictly enforcing the law regardless of the moral pre)udices of the enforcing officer would be a useful pointer towards ensuring that the police are more accountable for their actions towards se&ual minorities.
38 Times of India, 31.03.06. 39 Jacob Punnose, Immoral Trafficking- the law and its enforcement, http://www.altlawforum.org/Resources/sexwork/

Training

on

concerns

of

se&ual

minorities

The

/-:'(-5S route. Se&ual minorities have increasingly emerged onto state consciousness through the category of MSM 4Men having se& with men7.adopted by ;ational (ids *ontrol (uthority in the conte&t of vulnerability to /-:'(-5S. <hat /-:'(-5S interventions around the country have reali,ed is that it is very difficult to stem the epidemic by ensuring safer se& practices, until and unless police harassment and violence against se&ual minorities comes down. -t is in this conte&t that a petition has been filed challenging the *onstitutional validity of Sec =>>. !urther numerous training /-:'(-5S pro grammes aimed at training the police on of issues obli0uely introduces the concerns

se&ual minorities.40

'" International (aw: )on discrimination and Sexual *rientation$gender identity Serious concerns for protection of human rights for sexual minorities havebeen raised and addressed at various international fora, especially by jurisdictions where homosexuality is legalized. This section would attempt to lay out the internationally recognized legal practices for protecting the basic human rights of sexual minorities. The most important feature of any attempt at placing the rights of sexual minorities into international human rights arena is that states differ in their attitudes on legality of homosexual conduct. The liberal stance in decriminalizing gay sex in several western countries places the human rights concern on a slightly different plane from countries like India where it still remains a crime. Though in principle such a difference in law must not affect the enforcement of universal human rights for all including sexual minorities, yet arguing for an equal treatment before laws concerned with maintaining morality poses a challenge for
40 See the work of Saathi in Kolkata and Naz Foundation India in Delhi.

regulating the conduct of the police and society towards them. These problems will be discussed a little later in the section with much greater detail but for now the section would lay down the basic international norms governing the human rights of sexual minorities and the obligations of state agency like police to ensure these are respected. International Covenants governing human rights of sexual minorities To list among the most basic rights which every human being, including sexual minorities are entitled to are: equality before the law, right to life 41, to privacy42, to health43, to liberty of movement44 and to freedom of expression45 and association46, as well as freedom from arbitrary arrest and detention47 and from torture, cruel, inhuman or degrading treatment and punishment48. This position of sexual minorities being entitled to all rights to which all citizens are entitled seems to be vindicated by the Toonen decision where the Human Rights Committee read non discrimination on grounds of sex to include sexual orientation.49 The Human Rights Committee, in its recognition of the rights of sexual minorities has urged states to not only repeal laws prohibiting and criminalizing 'same-sex' sexual conduct but also take legislative measures to prevent discrimination against the sexual minorities in their constitution and fundamental laws 50. Further recent developments including the fact the Special Rapporteurs have included discrimination on grounds of sexual orientation within their mandate indicates considerable support for the position

41 Article 3 of the Univeral Declaration of Human Rights (UDHR), G.A. Res. 217A, U.N. Doc A/810 at 71 42 Ibid, Art. 12 43 Art. 12(1), International Covenant on Economic, Social and Cultural Rights (ICESCR), G.A. Res. 2200A (XXI). 44 Supra n. 1, Art. 13(1) 45 Ibid, Art. 19 46 Ibid, Art. 20(1) 47 Ibid, Art. 9 48 Ibid, Art. 5 49 Toonen v. Australia, Comm. No. 488/1992, UNGAOR Hum. Rts. Comm., 49 Sess., Supp. No 40, Vol. 2 at 226, UN Doc. A/49/40 (1994); 1 Int. Hum. Rts. Reports 97 (No. 3, 1994). 50 Human Rights Committee, Concluding observations: Poland 29/07/99 (UN Doc. CCPR/C/79/Add. 110), para 23, 29 July 1999

that sexual minorities have the same rights as all other citizens within UN Mechanisms 51 Referring particularly to the ambit of police action and vulnerable people, there is some degree of development of international law. Under the terms of UN Declarations on policing, law enforcement officials should treat victims with compassion and respect for their dignity.52 There has been a further attempt at structuring discretion of law enforcement officials through the UN Code of Conduct for Law Enforcment Officials. Some of the key provisions state that one should not inflict, instigate or tolerate any act of torture or other cruel, inhuman or degrading treatment or punishment53. Police should receive training to sensitize them to the needs of victims54. Law enforcement officials also must use force only when strictly necessary and only after non-violent means are attempted first, with any use of force proportional to the lawful objectives and with restraint 55. The Basic Principle of the Use of Force and Firearms by Law Enforcement Officials stipulate that, when dispersing assemblies, force must be avoided, or where that is not possible, it is minimally used. The above mentioned universal human rights of all people must be respected irrespective of the existence of the anti-sodomy laws on the rule books. Societal and state biases against sexual minorities often lead to violations of human rights in the guise of enforcing sodomy and other public decency laws in countries like India. However the reality has been that sexual minority rights around the world right from advanced industrial countries to developing countries continues to be violated. The next section will examine some of the ways in which responses have been formulated to this continuing saga of violation.
51 See Out at the UN: Advancing Human Rights based on sexual orientation and gender identity at the 61 Session of the UN Comission on Human Rights, http://www.arcinternational.net/projects.html For a detailed listing of resolutions at the CHR supporting the proposition that sexual minorities are entitled to human rights. 52 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, G.A. Res. 40/34, annex. 40 UN GOAR Supp. (no. 53) at 214, U.N. Doc. A/40/53 53 U.N. Code of Conduct for Law Enforcement Officials, G.A. 34/169, annex. 34 U.N. GOAR Supp. (No. 46) at 186, U.N. Doc. A/34/46 (1979) 54 General Assembly Resolution 40/34 of 29 November 1985 55 International Human Rights Standards for Law Enforcement, A Pocket Book on Human Rights for the Police, available at: http://www.unhchr.ch/html/menu6/2/pocketbook.pdf

Best Practices in dealing with the concerns of sexual minorities with the olice As discussed in the #re$ious section $arious efforts ha$e *een made at the international le$el to to tac(le and deal with some of the #ro*lems faced *y se)ual minorities, "hat has gi$en some momentum to the urgent tas( of #rotecting the rights of se)ual minorities is the decriminali0ing of sodomy laws in some +urisdictions, which has resulted in increased #ressure u#on state agencies li(e the #olice and e$en u#on ci$il society has mounted to ensure that their ci$il rights are res#ected, Some commenda*le attem#ts ha$e *een made in @7, Australia and to some e)tent in the @nited States to ensure #olice accounta*ility through formulation of guidelines and training of #olice #ersonnel, &" +,P* %ood Practice %uidelines for dealing with -omo hobic Incidents56 The #olice structure in @7 is *ased on a system of #u*lic accounta*ility unli(e many other +urisdictions where the #olice force's #rimary aim is to #rotect the interests of the state and its agencies, The Association of Chief Police &fficers 57 AAPC&B has *een acti$ely in$ol$ed since 5>>> in gi$ing out $arious guidelines to im#ro$e the #olicing standards and norms of self disci#ling, Though its guidelines generally deal with im#ro$ing the standards of #olicing in general #ractices, certain s#ecific guidance has also *een discussed with res#ect to se)ual minorities, APC&'s constant attem#ts to truly ma(e the #olice a force of the community ha$e *een the dri$ing force *ehind many of the self initiated #rograms and #olicies of $arious #olice de#artments in dealing with the issues of the se)ual minorities, !, %ntroduction !,! -t is the #ur#ose of these guidelines to su##ort 6orces in de$elo#ing local #olicies which deal with homo#ho*ic incidents and to assist in the de$elo#ment of common standards for dealing with such incidents throughout Ingland and "ales, -t includes a definition which may #ro$ide a focus for future #olicies and facilitate the collection of statistical data,

56 Available at http://www.scotland.gov.uk/cru/kd01/green/gaymen20.htm 57 Background and details of the APCO can be obtained from

http://en.wikipedia.org/wiki/Association_of_Chief_Police_Officers

!,5 ;es*ians and gay men do not see( #referential treatment from any other grou# ha$ing dealings with the #olice, Se)ual orientation should not *e an issue when someone is in$ol$ed with the #olice in whate$er conte)t, Howe$er, attac(s and other incidents associated with homo#ho*ia Ai,e, a hatred or fear of homose)ualsB need to *e regarded in a different light to other incidents re#orted to the #olice, as they in$ol$e a s#ecific hatred against a section of the community, !,. -t is recognised that many homo#ho*ic incidents are either not re#orted, or that $ital information is withheld *y the com#lainant who may not wish the #olice to (now whether they are gay or les*ian, -t may *e necessary to ta(e #ositi$e ste#s to o$ercome the concerns of les*ian and gay #eo#le that the #olice are #re+udiced against them and they may not *e treated in an a##ro#riate manner, !,8 -n formulating #olicy concerning homo#ho*ic incidents forces may wish to consult with mem*ers of, and grou#s within, the les*ian and gay community and in$ol$e other interested agencies, 5, :efinition of 8omopho!ic %ncidents 5,! Homo#ho*ic incidents are moti$ated *y hatred or fear of homose)uality, These incidents include all ty#es of crime, ?ictims need not *e les*ian or gay, *ut #ercei$ed to *e so *y the #er#etrators, 5,5 The definition of a homo#ho*ic incident is HAny incident which a##ears to either the $ictim, in$estigating officer or any other #erson to *e moti$ated *y homo#ho*ia, that is animosity towards les*ians and gay menH, 5,. 6orces acting in the light of local circumstances may wish to issue homo#ho*ic incident forms to organisations, such as hel# lines, for com#letion and su*seEuent collation *y the #olice, Although such forms may not include identification details of the $ictims they may hel# crime #attern analysis, ., .ecording 8omopho!ic %ncidents 3.1 6orces may wish to esta*lish recording systems in order to monitor

homo#ho*ic incidents in their areas, To assist in standardisation *etween and within forces homo#ho*ic incidents should include the following classifications1 aBthose incidents which Home &ffice classify a recorded crime

*B other criminal offences including #u*lic order cB any other incident .,5 -t is recommended that all 6orces record classifications AaB and A*B a*o$e, *ut that the recording of classification AcB is o#tional de#ending on local circumstances, 6orces may use manual or com#uter *ased systems, .,. "hate$er method is ado#ted the systems should ta(e account of local consultation with the les*ian and gay community, 8, /olicing the ;es!ian and 7ay 0ommunity 8,! An area of #otential conflict *etween the #olice and the les*ian and gay community is the wider as#ect of law enforcement relating to homose)uality, 8,5 -n order to #romote eEuality of ser$ice towards les*ians and gay men, any decision to enforce such legislation should ta(e into account #rosecution #olicy for similar ty#es of *eha$iour amongst the heterose)ual community and local #u*lic #ressure, Alternati$e solutions should *e sought, including liaison with the gay community, 8,. 6orces may wish to a##oint an officer or identify a de#artment to ha$e s#ecific res#onsi*ilities for #olicing les*ian and gay #olicing issues, 9, 4raining 9,! A num*er of Police 6orces ha$e now de$elo#ed their own internal les*ian and gay awareness training courses to assist staff in$ol$ed in #olicing the les*ian and gay community, S#ecialist training #ro$ided to officers nominated to deal with homo#ho*ic incidents has had a direct result in an increase in confidence *y the gay community and in the num*er of incidents re#orted to the #olice,

2" %ay and (esbian +nti./iolence Pro0ect58 &ne of the most significant attem#ts made at esta*lishing some (ind of #olice re$iew and training mechanism was mooted *y New South "ales ANS"B Police
58 More information about this program is available for free download at http://www.aic.gov.au/publications/rpp/01/rpp01-04.pdf.

Ser$ice in Sydney in !==>, The #ro+ect called %ay and (esbian +nti./iolence Pro0ect AA?PB was designed and mar(eted *y the NS", The aim of the #ro+ect is to identify the nature, causes and e)tent of $iolence against gays and les*iansJ to mo*ili0e awareness, understanding commitment and action on homo#ho*ic $iolenceJ and to de$elo#, im#lement, monitor and e$aluate #rograms, #olicies, #rocedures and o#erations towards im#ro$ed safety and feelings of safety for gays and les*ians, &ne of the most im#ortant elements of this #rogram and those discussed later in this section is the reliance u#on community #olice colla*oration in any attem#t to cur* $iolence and ma(e the society a secure #lace for the se)ual minorities, Not so much of the #olice disci#line comes from the legislations im#osed u#on the #olice, *ut the #olicies de$elo#ed suo motu *ased u#on the felt need to (ee# u# with the changing times and needs of the society, Paralleling the #ro+ect and o#erating in many ways in tandem with it, was a #rogram de$elo#ed *y the %ay and ;es*ian ;o**y in Sydney, This #rogram, the %ay and ;es*ian Anti ?iolence Pro+ect, focussed #rimarily u#on the a*ility of the gay and les*ian community to #rotect itself and #layed a crucial role in the success of the #olice #ro+ect through its research and analysis of the #ro*lem, dissemination of information and wor( with sur$i$ors, The two #ro+ects aimed to1 aB Incourage a +oint community and #olice #ro*lem sol$ing a##roach *B -ncrease the access of gays and les*ians to sensiti$e and #rofessional #olicing ser$ices which are res#onsi$e to this ty#e of $iolence, cB -ncrease #olice accounta*ility for #re$enting, reducing and res#onding to anti gay2les*ian $iolence, The strategy em#loyed in this #rogram is community liaison and consultation, The #olice ser$ice #rogressi$ely a##ointed #olice gay2les*ian liaison officers, until in !==8 more than half the stateDs #olice stations had liaison officers in attendance, Police also im#lements a coordinated training strategy dealing with #olice relations with the homose)ual community, for use in #atrols !" " Thames /alley Police 1i2ersity Strategy59

59 Source of the information contained in this section is obtained from

http://www.thamesvalley.police.uk/news_info/diversity/pdf/divstrat1.pdf.

Among one of the most im#ortant #rinci#les laid down in Association of Chief Police &fficers AAPC&B is the di$ersity strategy, Issentially it urges there to *e more di$ersity in the #olice force wherein s#ecial attem#ts are made at recruiting #eo#le from $arious social and cultural *ac(grounds, es#ecially from the racial and se)ual minorities who ha$e historically *een at the recei$ing end of the cruelty and insensiti$ity of the #olice force, The retaliation to such systematic $iolence has often raised de*ates a*out the increasing crimes in these marginali0ed communities, the causes of which are highly structural and com#licated, The Di$ersity strategy allows the ga# *etween the two to *e *ridged and their to *e a more #eaceful and harmonious #olicing in the society, The *est e)am#le of im#lementation of the di$ersity strategy is the Thames ?alley #olice di$ersity strategy which is moti$ated *y a legal and moral o*ligation to1 ##!eing a!le to police successfully in a society which consists of multiple ages, faiths, races, lifestyles, needs, disa!ilities, !eliefs, opinions, genders and se(ual orientation* Through the di$ersity #olicy Thames Police ho#es to 1 K Pre$ent crime K Detect crime K Hear early a*out trou*le K 6eeling safer when we #atrol K Harness the energy and su##ort of our communities K 3e more effecti$e at in$estigating crimes K Recruit from the widest #ossi*le #roof of #eo#le, '" %reater Manchester Police olicy on olicing (%BT eo le60 -t is im#erati$e to discuss a model #olice #olicy dealing with the issues relating to #olicing of se)ual minorities since the guidelines #ro$ide a *road framewor( for the #olice to wor( within, The %reater Manchester Police A%MPB Policy on #olicing ;%3T #eo#le is a good s#ecimen of the same *ased on and ins#ired *y the #rinci#les
60 The full policy draft and other information is available at

http://www.pfc.org.uk/legal/gmp1.htm

laid down in the APC& guidelines, The #olicy is *ased on the differences *etween the les*ian and gay community and other communities, e,g, trans community and the need to consult se#arately on the #olicing of these communities, Howe$er, there are clear similarities in terms of e)#erience of dealing with #re+udice and discrimination which mean that many #olicing #rocedures and guidelines will *e similar, -t recogni0es the #ro*lems of se)ual minorities as1 K A general fear of $iolence, ridicule and discrimination *y society K A fear of re#orting incidents to the #olice of1 1. ridicule, discrimination, harassment and inaction *y officers 2. accidental e)#osure of se)uality or trans status and lac( of confidentiality 3. criminalisation, i,e, $ictims *eing #rosecuted for their actions 4. enforcement and entra#ment As #er the reEuirements of Section =: of the Police Act, !==: arrangements must *e made for o*taining $iews of the community a*out the #olicing they e)#erience, So the #olicy ensures the a##ointment of a Di$isional Community Affairs -ns#ectors in its ca#acity as di$isional les*ian and gay liaison officers who ha$e contact with local community grou#s, The #olicy further attem#ts to ensure that the #olice fulfil their duty A as case u#on them *y 4he 0rime and :isorder ct, '11< Bto wor( with the community to address local issues, -t does this *y forming the %reat Manchester ;es*ian and %ay Policing -nitiati$e, which is a formal consultation mechanism led *y the les*ian and gay community which wor(s constructi$ely with %MP the #olice authority, local authorities, local *usinesses and community grou#s, to im#ro$e #olicing for les*ians and gay men, The grou# holds regular meetings, cam#aigns against Chate crimeD and wor(s with %reater Manchester Police to #ro$ide a sounding *oard for #olicing issues, ad$ice and access to the les*ian and gay community and facilitation of les*ian and gay awareness training, Recogni0ing the wides#read hate crimes and the e)istence of homo#ho*ia in society and its im#act u#on se)ual minoritiesD a*ility to access +ustice the %MP is de$elo#ing a hate crime strategy which aims to1 K Incourage greater re#orting of hate incidents

K -m#ro$e the Euality of in$estigations into hate incidents K Pro$ide $ictims with ser$ices a##ro#riate to their needs K -ntroduce a #ro*lem sol$ing a##roach to hate incidents

-t further has a #ragmatic and sensiti$e a##roach at identifying and recording homo#ho*ic and trans#ho*ic incidents, some of them *eing1 K To create an en$ironment where*y a #erson will *e willing to identify themsel$es as su*+ect to homo#ho*ic or trans#ho*ic $iolence and a*use, K The inter$iew should ta(e #lace in an a##ro#riate #art of a #olice station or other #remises which is #ri$ate, K &fficer should gi$e a clear e)#lanation of #olice #rocedure e,g, the re#orting #rocedure, the #ur#ose and conseEuences of #ro$iding a witness statement, su##ort agencies etc, K &fficers should maintain confidentiality throughout, ?ictims and witnesses need assurance that this information will go nowhere else e,g, to em#loyers, family or friends, 6urther the su#erior and su*ordinate officers are su##osed to sign the Chate crimeD form in which all the details of the incident ha$e *een filled in *y the $ictim of the crime, decide on the direction of the in$estigation and allocate it, sti#ulate times for #rogress and send the form intact to the di$isional community affairs ins#ector, These attem#ts ha$e their *ases in the law which #ro$ides for situations of threat of $iolence, intentional harassment, and disorderly *eha$iour, -n matters of arrests and re orting of offenders es#ecially of the se)ual offences, the re#ort urges the need to treat the $ictim sensiti$ely, since their lifestyle may include a degree of secrecy, ;astly in matters of training, training on se)ual orientation and gender $ariance is central to the achie$ement of eEuality of o##ortunity, -t assists officers to understand their own #re+udices and #ro$ide (nowledge and understanding of issues essential to deli$er a Euality ser$ice to the #u*lic and other colleagues, %MP has se$eral forums of se)ual orientation training1

5) :i)ersity training1 A two day course facilitated *y The Di$ersity Training @nit deals with eEual o##ortunities and community relations issues, #lacing les*ian and gay issues in the wider conte)t of general discrimination, The #rogramme in$ol$es all %MP #olice staff, 6) ;es!ian and 7ay awareness days1 6acilitated *y The Di$ersity Training @nit and the ;es*ian and %ay Policing -nitiati$e, The initial training #hase in$ol$ed !>> front line officers, The second #hase targets s#ecific #olice roles, 7) /ro!ationary 4raining1 A half day in#ut incor#orated into stage, All #ro*ationers recei$e les*ian and gay awareness training facilitated *y a #olice trainer and mem*ers of the ;es*ian and %ay Policing -nitiati$e,

3" )ew 4ork Police 1e artment 5)4P1) Programme The N4PD has a training #rogramme which was recently rewrittten into a unified te)t that Fteaches not to ta(e action against #eo#le's differencesG, The N4PD had the curriculum re$iewed and commented u#on *y the community grou#s, including se)ual minority grou#s, The curriculum is taught o$er si) months at the Academy *y officers from the %ay &fficers Action ;eague A%&A;B and is de$elo#ed with the in#ut and guidance of the se)ual minority community, Trainings in$ol$e role #laying, which are de$elo#ed and conducted *y %&A;, and include si) hours of Cultural Awareness and Di$ersity Training and four and a half hours on se)ual minority issues, Training e)#erts as well as #olice officers *elie$e that #ractically oriented training is most effecti$e, since this ma(es the issues concrete and #ro$ides useful tools that officers may use in situations in$ol$ing se)ual minorities61,

6. Conclusion and Recommendations Based on the above study of the problems faced by sexual minorities in the Indian context, and analyzing legal responses as well as best practices around the world, the following recommendations can be made.

61 Press interview of Miranda Stevens, TYRA Chicago, 25 Feburary 2004 available at

http://www.nyc.gov/html/nypd/

The principle which underlies the proposed recommendations is that the law and policing practices in contemporary India should reflect contemporary realities. Of course prime among the contemporary realities is that India is a democratic society and the police force needs to reflect this reality. A second aspect of the democratic society which India is, is that there are a diverse range of people who are citizens of India. This diversity includes those who are not a part of the heterosexual norm such as gays, lesbians, hijras, bisexuals etc. Since these groups form a part of our diverse society, its very important that law not only does not unfairly target sexual minorities , but make a pro-active effort to protect sexual minorities in the event of discrimination. In this context the following recommendations are made: 1 Structural changes aB Setting u# of a State Security Commission 62 At least one #erson who is a mem*er of the Commission to ha$e e)#erience on gender and se)uality issues *B Setting u# a mechanism for inEuiry against the #olice 63 c) Setting u# and ensuring the functioning of Human Rights Cell in each district 64

2) Structuring olice discretion and ensuring olice accountability aB NHRC guidelines on arrest to *e followed *B Su#reme Court +udgments cited a*o$e to *e incor#orated into guidelines c) Model Auto#sy Re#ort recommended *y the NHRC to *e ado#ted dB Human Rights $iolations against se)ual minorities to *e construed as #rofessional misconduct

3. Measures s ecific to sexual minorities aB Training to all #olice officers on the am*it of Sec .// and its restricted nature, *B Training on the concerns and issues of se)ual minorities, c) Training on identifying and #re$enting 'hate crimes against se)ual minorities
62 See the Recommendation of the National Police Commission , supra n. 19 63 See supra n.20 . 64 See supra n. 24.

dB Training to #olice officers to se#erate law from morality and to strictly follow the law, 4. Measures to ensure di2ersity with the force aB The #olice force must re#resent the di$erse range of -ndian society and include within it gays, les*ians, hiras and *ise)uals,