Theme: Police & Courts

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.

Role of Courts

The Courts play a very important role during the adoption procedure. Given below are some of the important roles played by the Court:

 

Adoption Order (Non-Religious Law)(( Sections 12 and 17, Juvenile Justice (Care and Protection of Children) Act, 2015.)) 

Under the non-religious law on adoption,(( Juvenile Justice (Care and Protection of Children) Act, 2015.)) the Court receives the application from the SAA (Specialized Adoption Agency) with the relevant documents of the child so that the Court can assess whether an adoption order can be granted. The application would include:

  • Details of the SAA and co-applicants (if there are any) like Child Care Institutions
  • Details of the prospective adoptive parent(s) such as name, child adoption resource information and guidance system registration number
  • Details of the child that is going to be adopted
  • The fact that the child has been declared legally free for adoption
  • The fact that the adoptive parents have signed a Pre-adoption foster care affidavit allowing social workers of the SAA, DCPU (District Child Protection Unit) to make home visits
  • Copy of the decision of the Adoption Committee 

Read a format of the application here to understand what other details are included in the application. By passing this adoption order, the Court would be granting permission to the parents to be the adoptive parents of the child. Before passing the adoption order, the Court has a duty to keep in mind:(( Section 61, Juvenile Justice (Care and Protection of Children) Act, 2015.)) 

  • That the adoption is for the welfare of the child
  • That the wishes of the child are taken into consideration, based on age and understanding of the situation
  • That the adoptive parents have not agreed to or received any payment or reward for the adoption
  • That the adoption proceedings in Court  should be in – camera proceedings.

 

Permission to Adopt (Hindu Law)

Under the Hindu law on adoption,(( Hindu Adoption and Maintenance Act, 1956.)) the guardian requires the Court’s permission to adopt a child, or give him up for adoption, in the following cases:(( Section 9(4), Hindu Adoption and Maintenance Act, 1956.)) 

  • where both the father and mother are dead; 
  • where both the father and mother have completely and finally renounced the world; 
  • where both the father and mother have abandoned the child; 
  • where both the father and mother have been declared to be of unsound mind by the court concerned; 
  • where the parentage of the child is not known. 

 

Appeal (Non-Religious Law and Hindu Law)

Under the non-religious law on adoption, if you are not satisfied by the orders given by the relevant authorities while adopting a child or if you adoption application has been rejected, you may appeal to the Children’s Court, within 30 days of the relevant order.(( Section 101(1), Juvenile Justice (Care and Protection of Children) Act, 2015.)) However, even if more than 30 days have passed, you can attempt to appeal, and it will be entertained if the Court believes you have sufficient reason for not being able to appeal within the stipulated 30 days. If you are not satisfied with the order given by the Court, you may file an appeal to the High Court of your state.(( Section 101(5), Juvenile Justice (Care and Protection of Children) Act, 2015.))