If you think we have a hard time in the west then read this and thank your gods that don't live in india.
PUCL, January 2004
Human Rights Violations against the Transgender Community: A PUCL Report
A Study of Kothi and Hijra Sex Workers in BangaloreSept. 2003
Presented below is an extended summary. Instruction for obtaining the complete report are given at the bottom.
See also Summary
Human Rights Violations against SexualityMinorities in India (2000) A PUCL Report)
This poignant expose of human, and human rights, violations against transgender persons and communities should be compulsory reading for Indian human rights communities. The dominant discourse on human rights in India has yet to come to terms with the production/reproduction of absolute human rightlessness of transgender communities. The work in your hands not merely foregrounds the microfacism of the local police state, it also archives practices of everyday resistance to it and a programschrift for a more inclusive formation of human rights movement in India.
At stake is the human right to be different, the right to recognition of different pathways of sexuality, a right to immunity from the oppressive and repressive labeling of despised sexuality. Such a human right does not yet exist in India; this work summons activist energies first towards its fully-fledged normative enunciation and second towards its attainment, enjoyment, and realization. Always a formidable enterprise, it remains even more so in the contemporary regime-sponsored xenophobic militant Hindutva culture--From the Foreword to the Report by Upendra Baxi
Last year, four kothi sex workers, Seeta , Sheela, Vimla, and Malathi (names changed here and throughout to maintain confidentiality) were picked up from the streets by the police and taken to Sampangiramanagara police station in Bangalore. In the police station, they were harassed and severely beaten up, resulting in injuries on their hands, arms and feet. They were later released, without any charges, but with a warning that they should not be seen on the streets of Bangalore again. In a state of considerable physical anguish and despite feeling insecure about appearing in public, they approached Sangama, a sexuality minority rights organization with this complaint. In response to the complaint mentioned above about recurring and pervasive police violence against kothi and hijra sex workers in Bangalore, Peoples Union for Civil Liberties (Karnataka) alongwith other human rights organizations such as Alternative Law forum, Development Initiative for Social Causes, Peoples Democratic Forum, Sangama and Vimochana decided to institute a joint fact-finding to go into such human rights violations, and suggest measures for redressal of grievances and securing justice.
Basically, this report (of which we are presenting a summary here) documents personal anecdotes and experiences that were shared by hijra and kothi sex workers in a series of group meetings. These testimonies were corroborated by the accounts of a number of hijra sex workers in a meeting with the Bangalore press arranged by PUCL on April 12, 2002. This was extensively reported in a number of English and Kannada newspapers such as Asian Age, Janavahini, Samyukta Karnataka etc. The report also draws on these press accounts.
This report is a sequel to the first PUCL report on Human Rights Violations against SexualityMinorities in India (2000) that documented violations against all sexuality minorities. This report focuses on the hijra and kothi sex workers, primarily because of the lack of enough information on these communities. It also uses information about hijras and kothis collected in the earlier report in order to ensure that this report can be read independently of the first report.
In this report, we have consciously tried to avoid the lens of medicine and anthropology in defining the transgender community and have instead sought to look at the transgenders as a culture, a community and a movement. Our purpose is not to exoticise lives of hijras and kothis but to bridge the wide information gap as well as to bring about a measure of recognition and respect for these communities.
Violence and Abuse: Testimonies of Kothi and Hijra Sex Workers
From the human rights perspective, the central concern about hijra and kothi pertains to the state and societal violence inflicted on them. To convey a picture of the pervasive nature of the everyday violence as well as to conceptualize the different kinds of violence, we present two narratives where violence plays a dominant part.
My name is Sachin and I am 23 years old. I am the fifth child in a family of four elder sisters. As a child I always enjoyed putting make-up like vibhuti or kum kum and my parents always saw me as a girl. I am male but I have only female feelings. I used to help my mother in all the housework like cooking, washing and cleaning. Over the years my sisters got married, my parents became old. I was around seventeen years. I started assuming more of the domestic responsibilities at home.
The neighbours started teasing me. They would call out to me and say why dont you go out and work like a man? or why are you staying at home like a girl? But I liked being a girl. I felt shy about going out and working. Relatives would also mock and scold me on this score. Everyday I would go out of the house to bring water. And as I walked back with the water I would always be teased. I felt very ashamed. I even felt suicidal. How could I live like that? But my parents never protested. They were helpless.
Then one day my parents asked me to leave the village to avoid the shame. Go work somewhere else, they said. I dont know how to read or write, I never went to school, how would I ever get a job? That night I cried a lot. I realised that for my parents respect in society was much more important than their own son. I drank some rat poison, hoping to kill myself. But I started throwing up which woke my parents up. They rushed me to the hospital where I recovered. I told my parents, You wanted me to leave, I have nowhere to go. No education. No skills. I wanted to kill myself.
After this incident, I decided to leave home. One night, I took my suitcase with five shirts and five pants. With Rs 500 in my pocket I left for Tirupathi. I sat outside the temple and cried. Then an old man came and asked me why I was crying I told him my complete story. I told him that I like wearing sarees, make up, flowers in my hair. He heard my story and told me about the hijra community. He asked me to go and join them. That was the first time I heard about the hijras.
Later on I was sitting outside the temple, wearing a shirt and pants but with some make-up, when someone picked me up and asked me to come along to his hotel room. I had sex with him. He was very nice. He was leaving that evening but had paid for the hotel room till the next morning and asked me to stay there till the next morning. He also gave me Rs.200.
Since I had the room to myself that night, I went out in the park and managed to pick up two more guys. I brought them back and had sex with them in my room. They both gave me Rs.100 each. This changed my life. I suddenly realised that I wasnt useless. I could take care of my self, I could now live through sex work.
From Tirupathi I moved to Bangalore where I made friends with some hijras. They helped me get a job at Bangalore Dairy in Hosur Road. There were three shifts of 8 hours each. I had the night shift. I would try to be very masculine at work, walk and talk like a man but people still noticed that I was effeminate, they realised that I was a hijra. In fact one of the employees came to me and asked for a blow job. I refused saying that I was a man and not a hijra.
In the Dairy I had just one friend, who I was very close to but it was nothing sexual. During the night shift most people would go up and sleep on the terrace. This friend of mine called me to sleep next to him on the terrace one night. As I went to sleep, some one just took my hands and cupped them on the floor and four guys one after the other had anal sex with me. I realised later that this friend of mine was making money out of it. Next day the inspector of the dairy knew all about what had happened on the terrace. Instead of helping me, he screamed at me and fired me from the job.
I moved in with an old friend of mine from the village, who gave me shelter. Getting a job was very difficult. Wherever I went they asked for qualifications and a smart appearance, neither of which I possess. Finally I got a job in one office. The owner needed an office boy who would also have sex with him. I co-operated. But I wasnt satisfied doing both of these things and the pay was also very low. So I just decided to do sex work directly. But sex work was not easy. The police would just come in the night, see me walking in satla (drag) and would just hit me with a lathi. I became scared of even walking on the streets.
Then I learned about my rights. Things like one should not have sex in public spaces but try and have it in private spaces. Then Preethi asked me to join her. She introduced me to everyone and this way I started helping other kothis and hijras who were doing sex work.
I once called my parents after years, they cried a lot. I said I cant come home because you are embarrassed of me. Then my parents suggested that I come home in the night instead of coming during the day. I followed their advice and went to visit them for the first time after I had left home. I reached home in the night. We had a great time, we ate in the night, talked a lot, and it felt good to be back at home. But suddenly it was nearing dawn and my parents asked me to leave before sunrise.
On my next visit I learnt that my parents had heard from other people that I had become a hijra in Bangalore. This time they interrogated me and my mother insisted that I show her proof that I havent been castrated. I had to undo my pants in front of my mother, which was very embarrassing. I am an akwa. My mother was very relieved.
I am beginning to see a change in the way my family treats me. Now because I am earning, my mother wants me to stay at home. When I go back to the village, no one says anything, because I am earning now. My mother asks me for a fan, a tape recorder, a new stove. I have been giving them money for all this. I have also bought jewellery and other presents for my sisters kids.
Sex work is not always easy. Often, clients having sex with me would reach an orgasm and then quickly runaway without paying. I used to go to the park to pick up customers. Once I met a man but he was a police officer. He asked me to come and have sex with him. I asked for Rs.50 but he said that he would only give me Rs.20. I said o.k. and started sucking him. But after he came he just walked away. I stopped him and asked him for my money but he said that he wont pay. I told him that I would complain, and he laughed at me stating that I had no proof. Then I showed him the condom, tied carefully in a knot that still had his sperm. He said, who knows that its mine? and left the place.
Once a customer picked me up and took me in his car on the Ring Road. We got off the car in the middle of the road and went into the bushes. After he had had his fun, the customer went into the car first, telling me to wait and come out in five minutes to avoid suspicion. But the minute I came out of the bushes the man drove off in his car leaving me alone at 10 p.m. in the middle of the Ring Road. What scared me most was that my pants and shirt were in his car. I was staying with friends in a rented apartment and so I had to change my clothes. I could not go back home in the satla. I was terrified. Then suddenly a policeman came and caught me. He took me back in the bushes and asked me to take all my clothes off. He wanted to see if I could get my penis up. I was completely naked and terrified. Then he started hitting me with a lathi. I begged on his feet to leave me. I also gave him Rs.100.
Then he asked me to leave in a naked condition, refusing to return my clothes. But as I turned I could sense that he was getting sexually aroused. He wanted to **** me. I didnt have a condom. I didnt even like taking it in the backside. Then he hit me very hard. He covered my mouth with his hand and started ******* me. He was very big, and without a condom, it was all so painful. My ass was bleeding. I could feel blood going down on my thighs. The policeman shouted at me, saying Hey, stop crying. I will hit you again if you cried. Then he lifted me, asked me to bend and ****** me more. Finally he was done and he left, thankfully leaving my clothes with me.
I put on my satla and was walking slowly on the street. I was under a lot of pain. But unfortunately it wasnt over yet. A small tourist van came and stopped in front of me on the road. There were around seven people in it, two sleeping and the others drinking and smoking. They asked me what I was doing in the middle of the night and dragged me into the van.
They forced some alcohol down my throat and also forced me to smoke. I got a bit drunk. Then they took an empty bottle, broke it in half against the car window and gashed my arm with it. I bled very badly. I still have these two huge marks on my hands. My right hand was full of blood. They wanted to have sex with me. I was tired and angry. I screamed. I said you want to have sex with me, o.k. then all of you can have sex with me. I was tired of fighting it.
They stopped the car, took me into the field, put me down and started having sex with me. I was forced to have anal and oral intercourse with all of them, one after the other, even sometimes together. I was still bleeding. After it was all over, I just lay there exhausted and completely lost. I stopped thinking. It was already dawn, 5 a.m.
I somehow dragged myself to a hijras house close by. I woke her up and she took me inside, gave me a lungi and a shirt to wear. She washed me, nursed me and took me to the hospital. This incident took place in 2001, after which I learnt an important lesson. I never wear satla during sex work now. I only wear satla in hijra functions.
I have moved on now. I now help other kothis and hijras by teaching them and giving them all the information that I have learnt. I dont believe in any god any more (Hindu or Muslim). They have never helped me at all. Now I have my own hands and I do sex work and fend for myself.
Smita for the past three years has been living with her husband Tejasvi . On the night of 18 March 2002, at around 9 p.m she and her husband were standing in front of a commercial complex on St. Marks Road (opposite Bishop Cotton Girls High School gate, in front of Richie Rich Ice Cream Parlour). Four policemen in a Hoysala van (no. 1) dragged her by her hair and pushed her into the van by force, snatching away her mobile phone.
One of the policemen sat on Tejasvis scooter and forced him to drive the vehicle to the Cubbon Park Police Station. Smita was also taken to the Cubbon Park Police Station in the Hoysala van, and on the way to the police station, two policemen who sat beside her in the van sexually harassed her by fondling her breasts.
In the police station, she was pushed into a room with her husband. 15-20 policemen stripped her naked in the presence of a senior police officer (Circle Inspector Munirathnam Naidu) who was in the Police Station at that time. Smita describes him to be around 50 years old, wheatish skin colour, 54 in height and very fat. All the 15-20 police men stood around her, sexually abusing her by touching all over her naked body. They humiliated her further by forcing her to spread her thighs and touching her sexual organs.
Many of them hit her with lathis on her head, hands, thighs, shoulders etc. They also attempted to shave off her hair. She continuously begged them to let her go and even fell at their feet. They verbally abused her by repeatedly referring to her as khoja, gandu, bastard, son of a bitch and used the foulest language as they continued to beat her, making vile comments like: did you come here to get ****** anally? whose cocks did you come here to suck? People get AIDS from you, one day you will die of AIDS, chakka, I will **** your mother.
They also stripped Tejasvi and physically attacked him. They slapped him, hit him all over with their lathis and kicked him with their shoes. They verbally abused him as well.
It was only after Family, an employee of Sangama, came to the police station and intervened, that Smita was released at around 10 p.m, and was threatened with dire consequences to her husband if she informed anyone about the matter. Fearing for her husbands safety, Smita immediately wrote out a plea and faxed it to V.V. Bhaskar (Director General of Police, Karnataka), and to the Chief Justice of Karnataka High Court.
The next day it was revealed that the police had booked Smita and her husband Tejasvi under the Immoral Trafficking (Prevention) Act. Tejasvi was produced before the court on the 19th where he stated that the police had beaten him up. The magistrate ordered a medical examination and also ordered the Police Circle Inspector Munirathnam Naidu to be present during the hearing the next day. The medical examination report has clearly stated that Tejasvi had multiple injuries on his left arm. Tejasvi was released on bail the same day. Smita went underground to escape arrest by the police who a few weeks later rearrested her and kept her in jail for a week on a false charge of running a brothel. She moved an application for anticipatory bail and had to spend most of her life savings to get out on bail. While Smitas case spurred the community to act and brought about an improvement in the treatment by the police of hijra and kothi sex workers in Bangalore, Smita continues to attend court hearings in this case which is presently being represented by Sangamas lawy
The above narratives are indeed brutal and shocking instances of violence. However, such violence is not isolated and exceptional but incessant, widespread and an ever-present reality of the daily life of hijra and kothi sex workers in Bangalore. The violence is committed not always by the police or the state but, as the narratives show, by the general public itself. The source of such violence is clearly the prejudice about hijras "deviant" sexuality and gender identity which transgresses societys binary division of gender into male and female indicating that what appears as random and arbitrary violence is in fact part of a methodical policing for the preservation of mainstream, therefore heterosexist, society.
Disturbing as these narratives are, they have yet to be picked up by mainstream human rights community in India. It is important that these narratives become part of our understanding of human suffering.
If one is to understand the nature of the violence against kothis and hijras, what emerges clearly is the all-encompassing nature of the violence, its roots in both state and civil society, the nature of surveillance by the state, and the deeply sexual nature of the violence.
Sexual violence is a constant, pervasive theme in all the narratives that weve collected.in our report. Along with subjection to physical violence such as beatings and threats of disfigurement with acid bulbs, the sexuality of the hijra also becomes a target of prurient curiosity, at the least, which leads to brutal violence, at the most. As the narratives indicate, the police constantly degrade hijras by asking them sexual questions, feel up their breasts, strip them, and in some cases rape them. With or without the element of physical violence, such actions constitute a violation of the integrity and privacy of the very sexual being of the person. The police attitude seems to be that since kothis and hijras engage in sex work, they are not entitled to any rights of sexual citizenship.
The reason why the sexuality of hijras incites such gratuitous violence could be two-fold. First, since sexuality is often the most intimate part of a person, sexual abuse and violence can be seen as the most systematic tool of dehumanizing an individual. Second, the sexual nature of the violation can be understood as an apt punishment for a trangressive sexuality. Since this nonconformative, yet highly visible sexuality of hijras is so deeply threatening to the conventional social order, a punishment centering on a targeting of sexuality is deemed most effective.
Apart from the sexual nature of the violence, another feature of the violence against kothis and hijras is its pervasiveness as an everyday reality. No space in which the hijras move is free from violence or the threat of violence. Nothing illustrates this better than the fact that the police in Swati s case (mentioned above) intruded on the hijras home at will. The violence itself owes something to a systemic pattern of police harassment and violence, extortion and the manifestly illegal and even criminal wrongdoing of the police.
However the pervasive and deeply sexual nature of the violence cannot be explained by reference to the police alone. It is social institutions such as the family, the media, and the medical establishment which constantly reinforce the idea that the norm is for a biological male to behave in a gender appropriate manner, i.e. like a man, and thereby legitimize the violence suffered by hijras and kothis.
Most media portrays the family as a haven in which the individual finds fulfillment, love and peace. This commonsense about the institution of the family is further buttressed by international human rights law. According to the Universal Declaration of Human Rights, the founding document of human rights law, the family is the natural and fundamental group unit of society and is entitled to protection by society and the state (Article 16)
Underlying this discourse on the family is the presumption that it is an essential structure even for the protection for the protection of human rights, including the rights of liberty and dignity. However, for the hijra and kothi communities the experience of the family is frighteningly different. The institution of the family plays a significant role in the marginalization of hijras and kothis. Instead of protecting their child from the violence inflicted by the wider society, the family in fact provides an arena to act out the intolerances of the wider society. Those who violate the existing social codes which prescribe how a man is to behave are subject to daily humiliation, beatings and expulsion from the family itself.
In this context of extreme violence and intolerance, the only cultural space available for transgenders in India is the hijra community. Given the enormous sense of isolation faced by the hijras, particularly in close-knit communities in the villages, the only solace or hope is when they get to know that there exist other people like them who live in the bigger cities. This in turn contributes to the formation of the hijra community as a largely urban phenomenon.
However the attitudes of the family sometimes change to a grudging acceptance once the hijra returns to the home after becoming financially independent. While in some cases the return is welcome because of the hijras ability to financially support the family, in others, the fact of the hijra now doing sex work makes the acceptance that much more difficult.
The extreme stigmatization surrounding transgressions around alternative sexuality as well as sex work makes it extremely difficult for families to accept their children. Further there are very few cultural/social resources for families to draw upon that will enable them to understand the sexual and gender identity and behavior of their children.
The law in India is a powerful force to control the hijra and kothi communities. It criminalizes the very existence of hijras and kothis, making the police an omnipresent reality in their lives. Apart from criminal laws which have invited the unwarranted authority of the police in their lives, civil law has not heeded the demands of citizenship and equality for the hijras and kothis. In the following section, we will consider the following:
· Historical Background: The Criminal Tribes Act, 1871
· Section 377 of the Indian Penal Code
· Immoral Trafficking Prevention Act, 1986
· Civil Laws
1) Historical Background: The Criminal Tribes Act, 1871
The roots of contemporary violence can in fact be traced back to the historical form that modern law in colonial India has taken. The Criminal Tribes Act, 1871, was an extraordinary legislation that departed from the principles upon which the Indian Penal Code was based. It mainly targeted itinerant communities comprising entertainers such as acrobats, singers, dancers, tightrope walkers, and fortune-tellers, who were perceived as a threat to the order of sedentary societies. These communities and tribes were perceived to be criminals by birth, with criminality being passed on from generation to generation. It fitted in well with the hierarchical Indian social order, in which some communities were perceived as unclean and polluted from birth. The idea of criminal tribes was based on the notion that crime as a profession passed on from one generation of criminal caste to another: like a carpenter would pass on his trade to the next generation, hereditary criminal caste members would pass on this profession to their offspring.
The linking of the criminal tribes to sexual non-conformity was entailed in the perception on the part of the colonial administration that criminalization itself was traceable to the perceived licentiousness of the itinerant communities. As Meena Radhakrishna notes, for the keepers of social morality, [their] lack of visible social institutions implied complete disorder in their community life. Their lack of written codes of conduct, and absence of articulated norms of morality implied absolute licentiousness.
The link between criminality and sexual non-conformity was made more explicit in the 1897 amendment to the Criminal Tribes Act of 1871, which was sub-titled An Act for the Registration of Criminal Tribes and Eunuchs. Under the provisions of this statute, a eunuch was deemed to include all members of the male sex who admit themselves, or on medical inspection clearly appear, to be impotent. The local government was required to keep a register of the names and residences of all eunuchs who are reasonably suspected of kidnapping or castrating children or of committing offences under Section 377 of the Indian Penal Code. Any eunuch so registered who appeared dressed or ornamented like a woman in a public street .or who dances or plays music or takes part in any public exhibition, in a public street .[could] be arrested without warrant and punished with imprisonment of up to two years or with a fine or both. If the eunuch so registered had in his charge a boy under the age of 16 years within his control or residing in his house, he could be punished with imprisonment of up to two years or fine or both. A phrase used by a British officer for the criminal tribes is equally appropriate to describe the colonial perception of the eunuchs: they are absolutely the scum, the flotsam and the jetsam of Indian life, of no more regard than the beasts of the field.
The sexual non-conformity of the eunuch thus earned severe strictures and penalties from the colonial administration. Being a eunuch was itself a criminal enterprise, with surveillance being the everyday reality. The surveillance mechanism criminalized the quotidian reality of a eunuchs existence by making its manifest sign, i.e. cross-dressing, a criminal offence. Further the ways in which eunuchs earned their livelihood, i.e. singing and dancing, were criminalised. Thus, every aspect of the eunuchs existence was subject to surveillance, premised on the threat of criminal action. The police, inflicting violence through and outside law, thus became an overt and overwhelming presence in the lives of eunuchs as well as of the former criminal tribes. Further, the very concept of personhood of eunuchs was done away with through disentitling them from basic rights such as making a gift or adopting a son.
Even the criminal tribes, hard as their lot was, had some voices of support in the nationalist movement. Jawaharlal Nehru, for example, noted that I am aware of the monstrous provisions of the Criminal Tribes Act which constitute a negation of civil liberty An attempt should be made to have the Act removed from the statute book. No tribe can be classed as criminal as such and the whole principle is out of consonance with all civilized principles of criminal justice and treatment of offenders. However, such was not the case of the eunuchs, who were completely marginalized in all discourses save the discourse of criminal law, in which their sexuality and gender identity were conceptualised as a state of criminality, and the discourse of civil law, in which they emerged as subjects without even the limited rights of other colonial subjects.
What is important about this historical background is that the contemporary perception of hijras as thieves as well as the brutal violence which is inflicited against them can be traced back to this colonial legislation which stands repealed today in theory but continues to exist as part of the living culture of law.
2. Sec 377 of the Indian Penal Code
Sec 377 of the 1860 Code was drafted by Lord Macaulay. It comes under the Section titled Offences Affecting the Human Body and follows the section on the offence of rape. It is not clear in what way the offence defined under Sec 377 is an offence against the human body. Its jurisprudential basis is rather the conceptualisation of a specific morality of gender and sexual conformity and the need to enforce the same on the Indian subjects
Sec 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.
This provision provides the sanction for the prosecution of certain kinds of sexual acts deemed to be unnatural. It is important to note that regardless of consent these sexual acts are liable for prosecution provided they are seen as carnal intercourse against the order of nature, with man, woman, or animal and, thus satisfy the requirement of penetration. To understand the nature and scope of Sec 377 one would have to study the judicial decisions under Sec 377. An analysis reveals that carnal intercourse against the order of nature is conceptualized to include oral sex, anal sex and even thigh sex thereby broadening the meaning of penetration beyond penile-anal penetration. Basically any form of sex which does not result in procreation comes within the rubric of Sec 377.
Section 377 might not seem to be a very dangerous provision in the context of hijras or kothis if the acts were read to be acts which all human beings engaged in. However due to the nature of the homophobic discourse, these acts are specifically located in the bodies of queer people. To be a homosexual or a hijra is to draw the presumption that the hijra or the homosexual is engaging in carnal intercourse against the order of nature
This particular interpretation of Sec. 377 means that all queer people, particularly the kothi and hijra sex worker population, are particularly vulnerable to harassment under this provision. Going by the nature of availability of space, most often it is these marginalized populations who engage in the sexual activity proscribed under Sec. 377 in public areas such as parks and public toilets and hence end up being vulnerable to arrest.
The case law indicates that Sec 377 has not been used extensively to prosecute cases of consensual sex. However this does not limit its significant role in perpetuating a certain kind of discourse about queer people which classifies certain social groups as criminal and stigmatizes their sexual behaviour. Its extraordinary that though one reading of Sec. 377 is that it expressly excludes lesbianism by virtue of the Explanation requiring sufficient penetration necessary to constitute the offence, it has been read expansively by State authorities to harass and intimidate lesbian women as well. The discourse which constructed queer people as unnatural and perverted therefore has the effect of legitimizing violence against all queer people. Further the law has the effect of practically shutting out any further talk of queer rights as all actors rely on the criminality of sodomy to legitimize discrimination against queer people.
3. Immoral Trafficking Prevention Act, 1986
The chief instrument of the Indian states regulation of prostitution is Immoral Traffic Prevention Act of 1956 (amended in 1986), whose mandate is to prevent the traffic of women and children into prostitution. According to Sec 5(f) the original Act of 1956, the volitional act of a female offering her body for promiscuous sexual intercourse for hire whether in money or kind is liable for prosecution. Under Sec 5(f) of the amended Act of 1986, there is a shift of focus from commercial sex undertaken voluntarily to the sexual exploitation or abuse of persons. The stated objective of the law on trafficking is not to criminalize prostitution per se but to criminalize brothel keeping, trafficking, pimping and soliciting. In actuality, the enforcement of ITPA invariably targets the visible figure of the sex worker (who is also the weakest link in the chain) and generally spares the hidden and powerful system that supports the institution of sex work. Thus the operational parts of the ITPA are Sections 7 and 8, which deal respectively with prostitution in public places and soliciting. In fact the majority of arrests of the sex worker take place under Sec 8, which defines the offence of soliciting for purpose of prostitution. This definition makes it clear that under Indian law sex workers may, so to speak, exist but not be seen: sex work is allowed to exist as a necessary evil because it serves a male sexual need, but its practice has to be continually hedged around with legal strictures, police harassment and intimidation.
In modern Indian society, the State and its apparatusesthe police, judges, lawmakersas well as social reformers have attempted with single-minded zeal to put down sex trafficking and rehabilitate female sex workers but in ways that violate their fundamental civil, economic, social and sexual rights, and expose them to organised violence, public stigma and discrimination.
The ITPA has so far been analyzed as applying to women in prostitution, proceeding on the assumption that it is women who are targeted by the ITPA. The original Act of 1956 was entitled Suppression in Immoral Trafficking in Women and Girls Act. Sec 2(f) defined prostitution as a female offering her body for promiscuous sexual intercourse for hire whether in money or kind This Act in all its provisions specifically targeted the female gender. However with the 1986 amendment, the title was modified to Immoral Traffic Prevention Act, and it became gender neutral. The words female and girls were substituted by the word person throughout the Act [Sec (f), Sec 2(aa), Sec (ca), Sec (cb)]. The ambit of the Act now applied to both male and female sex workers and possibly also to those whose gender identity was indeterminate. It is with the 1986 amendment that both male and hijra sex workers became criminal subjects of the ITPA. This provided the legal basis for arrest and intimidation of the transgender sex worker population.
Thus, under ITPA, all sex workers, male and female, face state violence and public stigma and discrimination. On grounds of preventing immoral trafficking and protecting public order and decency, the police exclusively target people in prostitution instead of the institution of prostitution, including brothel keepers and clients. Often the police proceed against the sex workers without any evidence of solicitation (as is required under Section 8 of ITPA) and merely on the suspicion that they are prostitutes. This produces an underclass of permanently targeted people who at any time are liable to be assaulted in public, merely because they happen to be there, taken away to the police station, wrongfully confined and restrained there, subjected to humiliating treatment, their earnings taken away. Sometimes, false cases are lodged against them which serves the double purpose of "solving" an existing case and keeping the sex workers off the street.
As per the Constitution most of the protections under the Fundamental Rights Chapter are available to all persons with some rights being restricted to only citizens. Beyond this categorization the Constitution makes no further distinction among rights holders. However this de jure position is not reflected in the various laws governing the civil conduct of human beings.
Nowhere is this more apparent than in the treatment of marginalized categories such as transgender sex workers. If one considers the position of hijras and kothis, it is clear that gender non-conformity adversely affects their ability to access basic civil rights otherwise available to all other citizens.
Official identity papers provide civil personhood. Among the instruments by which the Indian state defines civil personhood, sexual (gender) identity is a crucial and unavoidable category. Identification on the basis of sex within the binaries of male and female is a crucial component of civil identity as required by the Indian state. The Indian states policy of recognizing only two sexes and refusing to recognize hijras as women, or as a third sex (if a hijra wants it), has deprived them at a stroke of several rights that Indian citizens take for granted. These rights include the right to vote, the right to own property, the right to marry, the right to claim a formal identity through a passport and a ration card, a drivers license, the right to education, employment, health so on. (Nevertheless, some hijras have managed to obtain a ration card, a driving license or a passport by declaring themselves as women.) Such deprivation secludes hijras from the very fabric of Indian civil society.
In north India there are instances of hijras standing for election and winning elections as MLAs, mayors and councillors. These elections however become vulnerable to legal challenge precisely because of the difference between the sex at birth (male) and the assumed gender identity (female). Thus in a recent case, the Madhya Pradesh High Court upheld the order of an election tribunal which nullified the election of a hijra, Kamala Jaan, to the post of Mayor of Katni on the ground that it was a seat reserved for women and that Kamala, being a male, was not entitled to contest the seat. Similarly, the election of Asha Rani the mayor of Gorakhpur was annulled by the court on the ground that she was not biologically female. These decisions essentially imply that one cannot choose ones sex and that one should remain within the sex into which one is born. The fixing of sex at birth as the sex for all subsequent legal transactions means that a hijra who wishes to claim her legal sex as female while being born a male is unable to do so. Thus the binary classification of gender into male and female which does not recognize a third gender category turns the transgender status of hijras into that of a legal nonentity. It is a cruel paradox that while the transgender identity of hijras poses no problems to the operation of criminal law and its role in criminalizing hijra existence itself, the transgender identity becomes a stumbling block in accessing rights under civil law.
The representation of kothis, hijras, homosexuals and transgender sex workers in the media constructs the filters through which these marginalized communities are perceived and hence treated. In reporting about kothis, hijras and transgender sex workers, the local media (both English and Kannada) follows the heterosexist logic of seeing them as lurid, sleazy and evil. What follows is a content analysis of a recent news story that reveals underlying attitudes of popular media towards transgender people.
The Chandini Case
On Dec. 1, 2002, Chandini, a hijra, died of severe burns in her home in Kammanahalli, Bangalore. She had been married to Jnanaprakash, a painter, who claims that he was unaware of Chandinis sexual orientation till the day before her death; his reaction of shock and outrage as well as his threat to expose her to his parents drove her to commit suicide. But many hijras who know Chandini discount the suicide story completely and allege that Jnanaprakash, who met Chandini in a hamam, had a long-standing relationship with her. In fact, Sangama has a videotape of a hijra function showing Jnanaprakash with Chandini and many other hijras. These hijras accused Jnanaprakash of murdering Chandini for her money and jewellery. Along with members of the collective Vividha, they staged a demonstration on Dec. 7, 2002, and demanded that Chandinis death should be treated as a murder case and an impartial probe should be conducted. But the police have turned down these demands and have stuck to their version of the death as suicide.
On December 4, 2002, major English and Kannada newspapers reported the sensational news of Chandinis death as a suicide, basing their report, as usual, entirely on the police version. It was only later that the hijras allegation that her death was in fact a murder was published in the newspapers as part of the coverage of the hijra rally on December 8, 2002. Two popular Kannada weeklies, Police News and Lankesh Patrike, published two long exposés, one sleazier than the other. The story in Police News (22.12.02) starts off as an exciting heterosexual romantic tryst between two strangers that turns into a sordid nightmare of an unsuspecting young man trapped into marriage by a wily hijra whose sexual identity is revealed only after the marriage. Here as elsewhere in society Chandinis sexual and cross-gender identity is seen not as choice but as a deception, a trick to lure innocent men with. Inverting the process of becoming a hijra (a biological male taking on the gender role of the female), the story portrays Chandini as an attractive young woman till her dark secret is revealed and is represented by the writer thereafter as a male imposterChandini alias Nazir. Suicide by Chandini is seen as the only possible way out of an impossible marriage.
This is reinforced by a gruesome photograph of Chandinis charred body. This melodrama of intrigue, exposure and catastrophe is presented entirely from the husbands point of view as the narrative focuses on Jnanaprakashs frustrations, deflecting attention from the traumatic death by burning of Chandini. The main article underwrites the police version of the death as a suicide, while the hijras allegation that the death was not a suicide but a murder is reported briefly under a separate box item; it is suggested that the hijras are trying to put undue pressure on the police to launch further investigations.
The article in Lankesh Patrike by R. Somnath (18.12.2002) repeats many of the characterizations of the Chandini case in Police News. Thus it supports the police version of the death as suicide and sees the hijras demand for an impartial probe not as an expression of protest but as unwarranted intimidation, preventing the police from doing their job. Again, the hijra community is represented as trapping males into marriage as well as others who are unsure of their gender orientation into undergoing sex change operations. But the Lankesh Patrike article goes much further and sets up the hijras as a race apart, freaks of the underworld, half-man half-woman, almost devilish in their customs and practices. (The Kannada word anthara pishachi signifies a ghost, animal or man, in anguish for want of habitation, condemned to eternal wandering, like a wandering Jew). Sangama wrote a spirited rejoinder to this article pointing out that the articles lurid stigmatization throws light not so much on transgenders but on the writers own homophobia and transphobia, his confusion and ignorance about transgender identity (referring to them alternately in the masculine and feminine genders), and a rigid sexual morality.
As in much regional media, the article freely uses a variety of derogatory epithets to describe sexuality minorities such as khoja, chakka, gandu (homosexual), and napumsaka (eunuch), and so on. The commonly used word eunuch merits special mention here. It is based on an antiquated and patriarchal notion of gender and sexual identity that stems entirely from masculinity and sexual potency as the norm. Given such a notion, the sex reassignment surgery undergone by hijras to embrace a female identity appears as grotesque emasculation. Again, the writer describes with fascinated revulsion many marriages in which the man lives off the earnings of his hijra partner as if such sexual exploitation is peculiar to the hijra community and not representative of many heterosexual marriages as well. Basically, the article betrays the writers inability to accept the complex reality of relationships and identities among sexuality minorities that do not conform to the regime of heterosexist and patriarchal morality. It is ironical that such a vicious article which depends on the police version should be published in a supposedly progressive and anti-establishment publication like Lankesh Patrike, one of the first Kannada publications to give sympathetic coverage to the emergence of sexuality minorities in Bangalore. It seems that when it comes to sexual minorities, the media, despite repeated exposure to this issue and its own emerging predilections, remains in the grip of gender stereotypes and the heterosexist ideology.
Kothi and Hijra Sex Workers Organizing in Bangalore
As a result of interventions by a number of queer rights groups, the kothi and hijra community has been spurred into mobilizing against discrimination by both the state and society. In this section, we will look at a number of strategies employed by hijra and kothi sex workers in Bangalore to organize themselves.
1.Crisis intervention in cases of violence
This might be one of the most powerful strategies, which has been employed in Bangalore towards building a sense of community.
The first PUCL report indicates that the police capitalize on the fears of the queer community of being outed as well as the deeper societal homophobia in order to blatantly subject queer people to all forms of harassment and violence, knowing fully well that the victims will never challenge them. (However police harassment tends to impact English-speaking queers less and low-income queers more.) In such contexts, interventions can be made at various levels. The experience of the Bangalore-based group Sangama is instructive in using a model of crisis intervention based on community mobilization.
The first strategy of Sangama has been to build a strong community network. This has primarily taken the form of establishing links with the community so that the violations of basic rights are reported. The first initiative in this regard was the formation of the Coalition for Sexuality Minority Rights (CSMR), which received its first report of the illegal detention of a kothi only after an intensive distribution of over 1000 pamphlets in cruising areas about the rights of sexuality minorities along with contact numbers in case of police harassment. This case was taken up as a campaign issue. These initial steps have built up in the community a sense of confidence that situations of violence and harassment will be responded to effectively.
The second strategy of Sangama has involved following up on the community-based networking by intervening actively when members of the queer community come to Sangama for legal help. Whenever the organization found out about instances of violence and abuse, the matter was taken up in court. This intervention on a case-by-case basis had a positive impact in instilling confidence that crisis situations would be responded to. For example, in one case (which is still in court), the police violence which resulted in serious injuries was brought to the notice of the magistrate who asked the concerned police station to take action against the concerned constable. According to the advocate B. T. Venkatesh, who has been representing the hijra and kothi sex workers, this case has had a positive impact on the treatment of hijras and kothis by the Cubbon Park police. Today the police know that there is no impunity for police violence inflicted against hijras and kothis as such violence would be responded to at the level of both legal and collective intervention.
Even bigger challenges have been faced with determination. One such situation arose when the flat-owners association of the building in which Sangama is housed objected to hijras visiting the Sangama premises. When the police at the instance of this association refused to allow hijras to use the Sangama premises, letters were written to the Police Comissioner, the Chief Minister, NHRC, IGLHRC etc with the objective of pressurizing the police to cease their illegal action. The Chief Minister responded by noting that he was having the matter investigated, assuring Sangama that police excesses will be checked. A letter by the NHRC to the Commercial Street police station had the effect of Sangama getting an assurance from the police that they would protect the rights of all residents in that building, including employees and visitors to Sangama. The police were not only forced to back down but also to ensure the protection of the right of hijras to freedom of movement.
However crisis intervention has to be sustained, and police violence tends to intensify the moment pressure is eased. In March 2002, there were a spate of incidents of police assaults on the street-based kothi and hijra sex workers. On 26 March 2002, a kothi sex worker, who is also physically disabled, was brutally attacked by the police near the Bangalore bus station. On 27 March 2002, the Cubbon Park police arrested a kothi sex worker, who is also a peer educator in an NGO working among MSMs (men having sex with men) on HIV/AIDS issues, on a false charge of theft. She was brutally abused in police custody. Sangama got her out on bail on 30 March when she was produced in the court. On 26 and 27 March the Cubbon Park police arrested five kothi sex workers on false charges of extortion. They were severely verbally/physically/sexually abused in custody. Sangama got them out on bail on March 30. To complement the legal interventions, Sangama decided that the scale and systematic nature of the violence against kothis and hijras in Bangalore needed to be documented.
In this regard, the Sunday group requested Sangama to initiate a fact-finding team with representatives from PUCL-K, PDF, ALF, DISC, Vimochana and Sangama. This provided a space for them to share their experiences and also to launch a public campaign against police atrocities. A vigorous campaign was launched at many levels, including press conferences, other protest rallies, representations to police officials, the Chief Minister and the NHRC, and e-mail campaigns. This campaign was covered by the media, especially in the Kannada press, in a very positive and supportive manner.
All of this increased yet further the confidence levels of hijras, kothis, and transgender sex workers who despite continuing police violence resisted it actively by invoking their rights and claiming the support of Sangama. The result was that there was a drastic reduction of police atrocities to the extent that in the last several months, there have been hardly any cases of police abuse of sexuality minorities in police stations or outside in Bangalore. In the meanwhile, the Sunday group transformed itself into Vividha, an autonomous collective of sexuality minorities (comprising mainly hijras and kothis), one of whose activities was the highly successful protest demonstration against Chandinis death on 9.12.02. It was the first time that more than 150 queers came out publicly on the streets of Bangalore. During the rally, Vividha produced a charter of demands including repealing Section 377 and recognition of hijras as women with equal opportunities and providing employment, housing, and rail travel concessions to them.
Two broad conclusions can be drawn from medias coverage of hijras, transgenders and male sex workers:
Queer rights groups need to be pro-active in their approach to the media.
Politicisation is essential in order to claim emerging spaces in Indian society. Politicisation gives visibility, which is a step towards acceptance.
VII Recommendations and Suggestions to protect the rights of hijras and kothis
What became apparent in the course of our study is that discrimination against hijras and kothis is embedded in both state and civil society. The violence that this community faces is not only due to the state but also has deep societal roots. As has been argued in the course of the Report, wider change is premised on changing existing social relations. Any proposal which tries to ensure that the dignity and selfhood of kothis and hijras is respect has to deal with a complex reality in which class , gender and sexuality play a crucial role.
Apart from shifts in class relations, change would also crucially hinge upon overturning the existing regime of both gender and sexuality that enforces its own hierarchies, (e.g. heterosexuality over homosexuality), exclusions (e.g. hijras as the excluded category) and oppressions. While keeping in mind this wider context, a human rights approach has to deal with the various institutional contexts and think through ways in which change can be brought about. In this context the following proposals are made. These recommendations are also based on the demands made by the hijra kothi community in meetings held with them. Some of the demands made by them require us to reorient our very imagination to conceptualize the nature of violation suffered by them. In this context the demand for recognition of the discrimination suffered by them as a form of untouchability ( in terms of access to public spaces, employment, as well as the forms of violence they suffer) needs to be taken seriously.
1. Every person must have the right to decide their gender expression and identity, including transsexuals, transgenders, transvestites and hijras. They should also have the right to freely express their gender identity. This includes the demand for hijras to be considered female as well as a third sex.
2. Comprehensive civil rights legislation should be enacted to offer hijras and kothis the same protection and rights now guaranteed to others on the basis of sex, caste, creed and colour. The Constitution should be amended to include sexual orientation/gender identity as a ground of non-discrimination.
3. There should be a special legal protection against this form of discrimination inflicted by both state and civil society which is very akin to the offence of practicing untouchability.
4. Same-sex marriages should be recognized as legal and valid; all legal benefits, including property rights that accrue to heterosexual married people should be made available to same-sex unions.
5. The Immoral Trafficking in Persons Act, 1956 should be repealed. Sex work should be decriminalized, and legal and other kinds of discrimination against kothis and hijras should stop.
6. Section 377 of the IPC and other discriminatory legislations that single out same-sexual acts between consenting adults should be repealed.
7. Section 375 of the IPC should be amended to punish all kinds of sexual violence, including sexual abuse of children. A comprehensive sexual assault law should be enacted applying to all persons irrespective of their sexual orientation and marital status.
8. Civil rights under law such as the right to get a passport , ration card, make a will, inherit property and adopt children. must be available to all regardless of change in gender/sex identities.
1. The police administration should appoint a standing committee comprising Station House Officers and human rights and social activists to promptly investigate reports of gross abuses by the police against kothis and hijras in public areas and police stations, and the guilty policeman immediately punished.
2. The police administration should adopt transparency in their dealings with hijras and kothis ; make available all information relating to procedures and penalties used in detaining kothis and hijras in public places.
3. Protection and safety should be ensured for hijras and kothis to prevent rape in police custody and in jail. Hijras should not be sent into male cells with other men in order to prevent harassment, abuse and rape.
4. The police at all levels should undergo sensitization workshops by human rights groups/queer groups in order to break down their social prejudices and to train them to accord hijras and kothis the same courteous and humane treatment as they should towards the general public.
Interventions by Civil Society
1. Human rights and social action organizations should take up the issues of hijras and kothis as a part of their mandate for social change. Socialist and Marxist organizations, Gandhian organizations, environmental organizations, dalit organizations and womens organizations, among others, which have played a key role in initiating social change, should integrate the concerns of hijras and kothis as part of their mandate in sites such as the family, religion and the media which foster extreme forms of intolerance to gender non-conformity.
2. A comprehensive sex-education program should be included as part of the school curricula that alters the heterosexist bias in education and provides judgement-free information and fosters a liberal outlook with regard to matters of sexuality, including orientation, identity and behaviour of all sexualities.
3. The Press Council of India and other watchdog institutions of various popular media (including film, video and TV) should issue guidelines to ensure sensitive and respectful treatment of these issues.
[This is a summary of the complete report which has been recently published in English and Kannada. We would welcome any comments and suggestions on this report.
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