Theme: Crimes against LGBTQ+

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.

Helplines for LGBTQ+ Persons

There are several government helplines, which help by not only giving information, but supporting you through legal processes and putting you in touch with authorities. The following list provides the contact details of the national helplines across India, for the categories mentioned below:

For Violence and Harassment

If you have faced any harassment or violence or you know someone who has, you can contact the following helplines:

Police 

Anyone regardless of their gender or sexual orientation can call this helpline. You can call 100 to seek immediate help from the police. After describing your location, a police unit will be sent to you for further assistance.

National Commission for Women, Police Helpline: 

You can call this helpline only if you are a woman or trans woman. You can complain about any kind of violence you have faced including sexual offences, domestic violence etc. These are the steps you should take:

Step 1: Call 1091

Step 2: Describe the crime in detail

Step 3: Give your location and contact number

The police will then be sent to your location to assist you and stop the harasser. If you are a trans woman, it is better to take the assistance of NGOs or lawyers, so as to prevent any harassment from police officers themselves while filing an FIR.

Missing Persons and Kidnapping

Deputy Commissioner Of Police (Missing Persons):

This helpline helps track missing persons regardless of gender. You can take the following steps:

Step 1: Call 1094.

Step 2: They will ask for the phone number of the missing person.

Step 3: A phone number search is done on ZIPNET (Zonal Integrated Police Network) where they will trace the location of the missing person and contact the police.

Step 4: If they cannot locate the missing person, they will reach out to the police station to continue the search on the ground level.

Getting Help and Support for LGBTQ+ Persons

It is important to get help and support to protect yourself while complaining about any violence, discrimination or harassment you have faced. Some of the people you can approach are:

Legal Support

  • Approach a lawyer to help you with the complaint processes or if you have to go to Court.  If you cannot afford a lawyer, you can approach the District Legal Service Authority in your district for free legal aid. For example, Delhi Legal Service Authority.
  • If you cannot find a lawyer, then approach NGOs who will help you through the process of filing an FIR and put you in touch with lawyers.

Protection and Shelter

You can approach any NGO, civil society organization or institution that works for LGBTQ+ rights. They may be able to help you by:

  • Assisting you in case you are in trouble or if you need immediate help
  • Providing shelter, employment opportunities and counseling to help you overcome the problems you are facing.

Support while obtaining ID Proof

You can approach the MLA/MP of your area/constituency and ask for help. In many cases, they will direct authorities to help you out in the area you are facing trouble with.

Employment-Related Support

  • Approach the registered Trade Union in your office. They will be able to help you with your grievances at your workplace.

You can also approach NGOs or institutions who work on LGBTQ+ Rights who will be able to provide employment opportunities or put you in touch with people who can.