The Violence of ‘Uncodified Crimes’ Against the LGBTQIA+ Community
Despite decriminalisation, sexual minorities are penalised by missing persons FIRs, conversion therapy, etc.
Jennifer was just 14 when an ambulance arrived at the doorstep of her biological family’s household in Kerala. A few minutes later, a group of people entered the house, faces she had never seen before.
They approached her calmly, but as she stepped back to resist the invasion, they became aggressive. They drugged her, picked her up, put her in that ambulance, and drove her to a place where she would be subjected to the “worst form of torture” she could imagine.
Jennifer was taken to what is colloquially called a “conversion therapy” centre. However, she describes it as any other general hospital with medical staff, psychiatrists, and even priests. She can’t recollect exactly how long she stayed there. She lost track of time she said, perhaps because of the heavy doses of hallucinogen, testosterone, and other drugs that were administered to her – all to make her conform to the gender identity her biological family desired.
Jennifer is one of the many from the LGBTQIA+ community who are subjected to “uncodified crimes” against body and mind by their biological families. These uncodified crimes – conversion therapies, surveillance, and missing person complaints – are tools through which the state-family-society nexus of the heterosexual community tries to control and attack the very being of the LGBTQIA+ community.
The state-family-society nexus not only dehumanises the person who identifies as a sexual minority but also uses agents of the criminal justice system to treat such persons as “lesser citizens”, incapable of equal agency and rights.
The Violence of 'Missing Person' Complaints
On 6 September 2018, the Supreme Court attempted to remedy the wrongs perpetrated against the LGBTQIA+ community for generations. In Navtej Johar v. Union of India, which is celebrated as a “landmark judgment”, Section 377 of the Indian Penal Code was read down to decriminalise homosexuality in India.
“Intimacy between consenting adults of the same sex is beyond the legitimate interests of the state.”Supreme Court of India
An elaborately worded judgment affirmed principles such as “the Constitution must guide society’s transformation from an archaic to a pragmatic society”, and “not only must the law not discriminate against same-sex relationships, it must take positive steps to achieve equal protection and to grant the community equal citizenship in all its manifestations.”
Dr Menaka Guruswamy, one of the lawyers who advocated before the court to strike down 377, famously argued that the presence of this provision in the penal code make sexual minorities feel like “unconvicted felons”.
However, even after the decriminalisation of same-sex intercourse, many individuals who identify as a part of the LGBTQIA+ community continue to feel like “unconvicted felons”. The sexual act has been decentred (not completely) from the practices that subject sexual minorities to the criminal justice system.
In the post-Navtej Johar world, the identity-neutral provisions of the law, such as “missing persons complaints” or habeas corpus petitions, are being used by biological families to punish sexual minorities. These legal remedies have been re-imagined as a recourse to not only subjugate and suppress sexual minorities but also to penalise them through FIRs, police harassment, intimidatory police interrogation, and court litigation.
Missing person complaints, surveillance, and conversion therapies reflect the violent paternalism of hegemonic heteronormative identities and the social structures they perpetuate. This violent paternalism becomes a state-sanctioned attack on the fundamental rights of equality, dignity, and privacy when the criminal justice system is set in motion to “rescue sexual minorities” and “restore them to natural households”.
Decoding the State-Family-Society Nexus of Uncodified Crimes
On 29 May, Vinay finally mustered up the courage to approach the police station in Gurugram, Haryana, with two sheets of paper pulled out of his journal. He had thought about doing this at least five times earlier but hesitated each time. The sixth time, after taking advice from a couple of lawyers, he finally covered that last mile.
Those two sheets of paper contained a handwritten letter telling the police that he wilfully and with full knowledge of the consequences of his actions, wishes to leave the house of his biological family. He did that as a premeptive measure to avoid harassment that ensues a missing person complaint, which he knew his biological family would file to coerce him to subscribe to their desires.
Sexual minorities are subjected to the violent paternalism of uncodified crimes by a state-family-society nexus. The criminal justice system and the family work in tandem to suppress sexual minorities, as their very existence is a radical departure from the exclusionary and stratified society that this nexus envisages.
Sexual minorities undermine the well-calibrated system of heteronormative social control that help perpetuate the discrimination, exclusion, and violence that the prevailing system benefits from. The central government itself exposed this nexus in its affidavit filed on 26 February before the Delhi High Court opposing marriage equality for LGBTQIA+ couples.
The central government opposed pleas seeking recognition of same-sex marriage, citing the concept of the Indian family system.
“Living together as partners and having sexual relationship with same sex individual is not comparable with Indian family unit concept of a husband, wife, and children, which necessarily presuppose a biological man as ‘husband’, a biological woman as ‘wife’, and children born out of union.”Central Government
Therefore, this state-family-society nexus increasingly deploys practices of the criminal justice to “retrieve the sexual minorities”. Complaints are filed, FIRs are lodged, investigations initiated, police is involved to intimidate and harass, and conversion therapy centres are allowed to proliferate with impunity like “correctional institutes/prisons”.
We're Not Missing, Rather We're Finally Found
Many individuals and couples who were subjected to the violence of these uncodified crimes found the strength to resist and reclaim themselves. Post Navtej Johar, many such couples moved the high courts challenging the “missing person complaints” and seeking protection from police and biological family abuse.
One such person is Chinmayee Jena (he/him/his), who approached the Orissa High Court seeking reunification with and protection of her partner Rashmi (name changed) who was forcefully held hostage by her biological family. Throughout the proceedings, the counsel for the state and the family deliberately kept on misgendering while referring to Jena.
On 27 August 2020, the Orissa High Court provided protection to an adult lesbian woman held in confinement against her wishes by her biological family. On 3 August 2020, the Gujarat High Court directed the police to give security to two lesbian policewomen fighting against all odds to live together. Similar relief was granted by the Delhi High Court to another lesbian woman on 10 March 2021, who was married against her wishes.
While these judgments are celebrated for seeing sexual minorities as “equal citizens” capable of taking ownership of their lives, such litigation is an unnecessary burden these individuals have to carry to resist the violent paternalism of uncodified crimes.
A step towards lifting this burden was taken by Justice Anand Venkatesh of the Madras High Court while hearing a petition moved by a lesbian couple seeking protection.
The Madras High Court issued a series of guidelines to the state and the society to ban conversion therapy, sensitise schools, police, and prisons on the lived experience of LGBTQIA+ individuals, and create avenues for assistance, recognition, and upliftment of the LGBTQIA+ community.
Justice Venkatesh’s order is a significant as well as an ambitious step towards dismantling the violence of uncodified crimes against the LGBTQIA+ community. However, the real challenge lies in its actual implementation by the state-family-society nexus which sees sexual minorities as a threat.
Therefore, no meaningful change can come about until this very nexus is addressed, attacked, and dismantled – and this is where, I believe, queer politics finds its stone wall.
Jennifer, who developed PTSD due to her horrifying experience at a conversion therapy centre, believes that the Madras High Court judgment is a good step, but it is merely a start.
“We need a comprehensive non-discrimination law. Institutions are run by homophobic and transphobic people. I don’t have much trust in the Indian legal system. It’s a constant site of marginalisation.”Jennifer
It is this marginalisation, entrenched institutional homophobia, and transphobia that needs to be addressed. If left unattacked, this would keep on producing innovative and reimagined forms of subjecting sexual minorities to physical, mental, and psychological punishment – a punishment, without a charge or conviction.
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