Optional Grouping: Police & Complaints

Who (LGBTQ+) can File a Complaint

If you are facing harassment and violence, some of the laws you can use while filing a complaint are based on your gender identity.(( It is the intrinsic sense of being a male, female, transgender or trans sexual person.)) Since there are only three recognized categories(( Navtej and NALSA)) under the law which are ‘male’, ‘female’ and ‘third gender’ (transgender persons), the laws that apply to you also depend on which category you fall under.

It will be helpful for you if you know what laws can help you while filing an FIR. You can take the help of lawyers and NGOs so that you do not face harassment by police officers.

The question of whether or not you can file a complaint under the law will be dependent on the type of violence you have faced:

Sexual Violence

Sexual Violence may be of various kinds like rape or sexual crimes such as inappropriate touching, stalking etc. As per the law, you can only file a complaint with the police if you are a woman. Even though trans women, regardless of whether they have had a gender affirming surgery or not, have a right(( NALSA 55,112, Anamika v. Union of India, WP (CRL) 2537/2018.)) to file an FIR, if you face any trouble while registering your FIR, it is better to take the help of a lawyer to prevent any harassment or violence by the police. Men or trans men cannot be victims of sexual violence under the law, so the alternative for you is to file an FIR with the laws on physical violence as explained below.

Physical Violence

If you have been injured or hurt or someone has locked you up or physically prevents you from carrying on your day-to-day activities, then you can file an FIR against your harasser if you are a man, woman or transgender person. 

Psychological Violence

If someone threatens to hurt you, blackmails you for favors or money then you can file an FIR against your harasser if you are a man, woman or transgender person.

Online Violence

You can complain against any form of online harassment and violence which may be sexual, psychological or computer related crimes such as hacking, impersonation etc.  if you are a man, woman or transgender person.

Complaining/Reporting Problems by LGBTQ+ Persons

You can file a complaint with any of these authorities/forums:

Police

Go to Police Station

You can file an FIR at any police station or the one nearest to you. A friend or relative can also file an FIR on your behalf. If you are a woman or a trans woman, your statement will be recorded by a female police officer.

Call 100

You can call on 100 to seek immediate help from the police. After describing your location, a police unit will be sent to you for further assistance.

National and State Commissions in India

These are forums you can approach if you face any difficulties or resistance from the police if they refuse to file your FIR:

National/State Human Rights Commission

The National Human Rights Commission (NHRC)(( Core Group on LGBTQ+ Issues: https://nhrc.nic.in/sites/default/files/Documents_coregroup_lgbt_29062018.pdf)) is a national level government body which specifically looks into human rights violations, such as illegal detention, harassment in jail, etc. As a LGBTQ+ person, you can also approach them if you require help, if the police are not being cooperative.

Since the NHRC is located in New Delhi, you can also approach the State Human Rights Commission (SHRC) in your state to get immediate help. You can complain to the NHRC or SHRC regardless of your gender or sexual orientation.

You can contact NHRC here and complain if you have faced any harassment or discrimination.

National/State Commission for Women

The National Commission for Women (NCW) is a national level government organization that works in the protection of women from violence such as sexual crimes, domestic violence, etc. The NCW will help you by:

  • Providing you and your harasser counseling or an opportunity to be heard so that the dispute is resolved and the incident is not repeated again.
  • Instituting an inquiry committee in serious cases which would make spot inquiries, examine the witnesses, collect evidence and submit a report to give you immediate relief and protection.

You can get in touch with them only if you are a woman or a trans woman by either calling the helpline number 1091, or sending an email to ncw@nic.in or filing an online complaint.

You can also approach the Women’s Commission in your state to get immediate help.

Online Crime Reporting

You can complain with the Cyber Cell or the police in your state against online crimes. Read here to understand in detail the options that you have to report and complain against online harassment and violence.

Filing an FIR by LGBTQ+ Persons

When you go to the police station to file a complaint, the details of the complaint will be written down in an FIR (First Information Report).

The FIR has to be filed by the police official and if you are a woman or trans woman, then for certain crimes, a woman police officer has to fill out the FIR.

Before filing the FIR, consult with a lawyer and see what all crimes you can file an FIR for as some crimes can only be reported by women or trans women and not men. If you face any difficulties while filing an FIR, read here to see what steps you can take.

Read here to understand what happens after you file the FIR.

Difficulties in filing the FIR by LGBTQ+ Persons

If the police officer refuses to file an FIR or harasses you because of your sexual orientation or gender identity, then you can take the steps below:

  • Write a written complaint to the Superintendent of Police (SP) in writing. The SP may conduct the investigation himself or order his subordinate police officers to carry it out.
  • Take the help of a lawyer while going to the police station. This is useful as lawyers will be able to advocate on your behalf and the possibility of harassment you may face from police officers will be less.
  • Go to another police station nearby to file the FIR. This is known as Zero FIR where an FIR can be filed at any police station and the police officers have to mandatory record the information provided, and then transfer it to the police station in whose area/jurisdiction the offense took place.
  • Request someone else to file the FIR on your behalf. You can give this person details of the violence/harassment that you have faced.
  • Approach the District/Judicial Magistrate directly to file a ‘private complaint’, but only after going to the police.

Approach other complaint forums like the National/State Human Rights Commission, National/State Women’s Commission who will not only assist you in approaching the police, but also look into the incident of violence/harassment themselves.

LGBTQ+ Persons Arrested By the Police

When police officers want to arrest you for any crime or suspicion of any crime, they may come to your location and arrest you. While arresting you, the details of the arrest, place of arrest, time of arrest etc will be written down in an Arrest Memo. They may:

Regardless of your gender or your sexual orientation, you have rights under the law while being arrested.

If you are a woman or a trans woman, then there are specific rights that you have while being arrested. For example, a lady constable has to be present when a woman is being arrested. Click here to understand what these rights are.

Rights of LGBTQ+ Persons While Being Arrested

You are not supposed to be mistreated by police officers while being arrested based on your sexual orientation or your gender identity. So it is helpful to know the 5 rights you have under the law:

Ask police to identify themselves

You can ask the police to identify themselves by showing accurate, visible and clear identification along with name tags which state their designations.

Ask for the reasons for arrest

Even if the police do not need a warrant to arrest you, it is your right to know why you are being arrested and it is the duty of police officers to tell you why.

Ask the police to Inform your family and friends

When you are being arrested, before taking you away to the police station, you can choose any family member or friend to whom the police must inform about your arrest and where you are being detained. The police have a duty to inform your family or friends about your arrest. They have to  record the details of this person as an entry in the police diary and Arrest Memo.(( Joginder Kumar v. State of Uttar Pradesh (1994) 2 Crimes 106 (SC).))

Ask for a lawyer

You can ask the police to call your lawyer. If you do not have a lawyer or cannot afford a lawyer, then you can ask the court to appoint a lawyer for you.

Ask for medical check-up

  • Police officers have a responsibility to conduct a medical examination every 48 hours if you are in their custody.
  • You can ask to be examined for major and minor injuries on your body by a trained doctor.

This physical examination has to be recorded in the Inspection Memo and signed by the police officer. This is done to prevent violence by police while you are in their custody.

Custodial Harassment of LGBTQ+ Persons by Police

If you are arrested, you will be in the custody of the police at the police station for 24 hours, till they take you to the nearest Magistrate (Court). They can keep you for 15 more days only if they get the permission of the Magistrate.(( Section 167, CrPC.)) You may face harassment/violence in many ways such as:

  • The police may harass you or intimidate you into admitting a crime that you may not have committed while you are in police custody.(( Section 163 CrPC; Section 330 and Section 503, Indian Penal Code.)) This is a crime under the law for which the police officers may face jail time and a fine.
  • Police officers may physically hurt you while you are in custody. You should complain about the incident to your lawyer who will be able to help you.
  • If the police sexually assault you or rape you, you should file an FIR against the police officers as this is a punishable crime under the law for which the officers will face jail time and a fine.(( Section 376 (2), 376 B and D, India Penal Code, 1860.)) You will have to file an FIR with the help of Section 376(2), 376 B of the Indian Penal Code, 1860.

During the time you are in the custody of the police, to prevent any form of harassment or if you face any harassment by the police, these are some of the steps you can take :

Ask for a lawyer

You have a right to request for a lawyer from the time you are arrested, and to prevent any violence while you are in custody, it would be helpful to have a lawyer present with you.

Complain to the SP of the police station

Write a written complaint to the Superintendent of Police (SP) of the police who may look into the matter. The SP may look into the matter.

Complain to the Magistrate 

Since the police officer has to mandatory take you to a Magistrate within 24 hours of your arrest, you can file a ‘private complaint’ with the help of your lawyer directly with the Magistrate. You can give details of the harassment and violence you faced while you were in police custody.

Getting Bail by LGBTQ+ Persons

When you are arrested, you have the right to apply for bail regardless of your gender identity or your sexual orientation. This right is dependent on the kind of crime you have been arrested for:

In Cases of Bailable Crimes

If the kind of crime you are arrested for is a bailable offence, then you have a right to apply for bail to the Court and the same will be granted to you.

In Cases of Non-Bailable Crimes

In cases of non-bailable offences, bail is granted to you upon the discretion of the Court, and it will be given to you only in specific circumstances. In such cases, the Court may ask you for a higher bail amount as bond.

Police Verification Process

While renting out their property, landlords/licensors are required by law to get police verification of their tenants/licensees done. This is not optional.

This process is done mainly for security reasons, so as to verify your background and check the details of past residence/family/criminal record (if any) etc.

If they do not comply with this process while making the rent/lease agreement, the owner can be punished jail time and/or fine. However, no action will be taken against the tenant.

There are two ways, you can get the police verification done. You can either approach the nearest police station and acquire a tenant verification form from them or hire a professional to do it for you for a fee. Some brokers also provide this service.

Step 1

For police verification the following documents will be taken from the prospective tenants/licensees:

  • Duly filled police verification form
  • Identification Proof – Aadhar Card, Ration Card, Driving License or Passport
  • Two Passport size photograph

The police verification form can be obtained either directly from the police station, the broker or even online.

Step 2

As soon as the owner receives these documents, they must sign the form and submit it along with the documents provided by the tenant and a copy of the lease/leave license to the police.

Step 3

The police will then verify your background based on the form submitted by the landlord/licensor. At this stage, an acknowledgment receipt will be issued to the landlord/licensor. This process can be done online for some states.

Step 4

After the process is completed, the police will then hand over a signed and attested copy of the form notifying the landlord of the result of the background check or criminal records, if any.

Eviction from rented property

Read below to know the conditions for eviction from the rented property.

Lease Agreement/Rent Agreement

If you have a lease agreement, only you or anyone you give permission to has the right to live in the rented property. However, there are certain circumstances where the landlord can evict you from the house. To do so, the landlord must make an application to an authority under this law called the Rent Controller, to evict you.

Some of the reasons for which a landlord can apply to evict you if you have a rent/lease agreement are mentioned below:

  • You have not paid rent for two months after receiving a demand notice from the landlord.
  • You have sublet the house, either in part or full, to someone else without the consent of the landlord.
  • You have used the house for a purpose other than that for which you rented it, and in this process caused public nuisance, damage to the premises, or harmed the interest of the landlord.
  • Neither you nor your family members have been living in the house for 6 months or more. (If you have rented a house for residential purpose and are using it for commercial purposes, then it will be counted as not living in the house)
  • You have caused substantial damage to the house.
  • The landlord wants to repair, rebuild or reconstruct his property, but cannot do it with tenants living there.
  • The house has become unsafe for human habitation and the landlord must carry out the repairs.

It is important to note that the reasons for eviction may differ from state to state. But largely the principles of eviction stay the same. The landlord must have a reasonable ground within the bounds of the law to evict you. If you feel that you have been unjustly evicted by your landlord, please contact a lawyer for further help.

Leave and License Agreement

A leave and license agreement will have a provision for the licensor (person giving out the property) to give a one month notice to get the licensee (person staying in the property) to leave their property. There are no other protections available under the law for this type of agreement unless explicitly mentioned in the contract.