Zhang Yuan’s East Palace, West Palace is set in a public toilet in a park in Beijing. The film revolves around a nightlong encounter between a homosexual writer, A-Lan, who comes to the park to cruise other gay men, and a cop, Shi. Thinking that Shi is another gay man, A-Lan kisses him, after which Shi arrests him and interrogates him in the washroom. The film unfolds as A-Lan tells the cop of his previous sexual experiences with other men, where he takes the place of the submissive partner in masochistic encounters. The relationship between the gay man and the cop is portrayed as erotically charged, with A-Lan provoking Shi to prove his manhood and take on the role of the brutish lover.

Claustrophobic and intimate, the film can be read as an allegory of what was until recently the motto of the Delhi Police – “With you, For You, Always”. Said in one voice, the motto sounded like a whisper from a lover or of a parent to a child, conjuring images of warmth and protection from the outside world. Said in another - but no less intimate - voice, it sounds like the threat to a battered partner or the rationale of a stalker. Straddling these two valences of intimacy, the police and the queer movement in parts of India are closely implicated in the lives of one another.

Criminalising sexuality

The legal regulation of queer people in India takes place through various technical registers. The most prominent of these is Section 377 of the Penal Code – the constitutional validity of which has recently been upheld by the Supreme Court. Section 377 criminalises all penetrative sexual acts between adults of the same sex, consensual or otherwise.

Several states also have enactments which (in theory) oblige the police to register all hijra’s under their jurisdiction. These are holdovers of the older colonial Criminal Tribes Act, 1871. This act, which has since been repealed, was based on the theory that criminals were of a certain biological and racial type, and mandated that the police register and constantly monitor the movements of these 'criminal tribes'. As applied to hijra’s, the act prohibited men from dressing in women’s clothing or dancing in public and from living with any boy under the age of 16. It required all hijra’s to provide the local police with their names, addresses, and the details of their property. In their present-day avatars, these enactments oblige the police to maintain a register of names and addresses of all hijra’s or any other person reasonably suspected of committing offences under Section 377 of the Penal Code.

Additionally, there are other criminal laws and regulations which are used against LGBT people in India – performing any obscene acts in a public place, causing public nuisance, or spreading infections.

Policing intimacy in public spaces

With slogans like “Get your laws out of my bedroom”, LGBT rights movements have at times been framed around ideas of spatial privacy. Seen as the infiltration of police into the 'private sphere' of the home, one of several rhetorical strategies of the movement has been to claim the right to privacy, and the determination of 'non-state' spaces for LGBT sexuality. If this is the case, then the most obvious question that arises from the brief survey of legislation above is what laws about public obscenity, or public nuisance have to do with LGBT people, or why dancing in public in women’s clothing would cause such anxiety to the police.

One answer is provided by the scene we opened with – that of sexual or intimate acts in public places. Public intimacy – heterosexual or otherwise – has long been policed in India, with the police chasing heterosexual couples out of public parks or filing cases of obscenity against couples kissing in public. The police often cite public displays of affection or celebrating Valentines Day as ‘against Indian culture’ and as things that ‘pollute Indian society’. At first blush, it would seem as though the police believe sexuality is something to be confined to the private sphere away from the public eye.

Most instances of torture, harassment and extortion of LGBT people in India begin with a sexual act, or a perceived sexual act, in a public place. Many of these instances involve transgender sex workers, gay men cruising in parks, and HIV/AIDS outreach workers.

One of the first documented protests against police harassment of queer men in India was held in response to police raids targeting gay cruising in Central Park, Connaught Place in New Delhi. On 11th August 1992 AIDS Bhedbhav Virodhi Andolan (ABVA - Campaign against AIDS-discrimination) gathered at the Delhi police headquarters to protest the police's activities. The memorandum submitted to the police asked:

When will the police get rid of its homophobia? Is it a crime for two consenting adults (of the same sex) to meet in a public place, become friendly and have a healthy discussion on sexuality or any other matter – which may or may not end up in sexual activity at a place other than a public space?[1]

A 1992 report produced by the ABVA titled Less than Gay, located the violence faced by queer people in a culture of intolerance that spread from the state, to medical institutions and even to human rights activist circles. ABVA’s protest and pioneering report are considered the first articulations of a queer rights movement in India, setting the stage for further protests against police violence towards queer people in India.

In 2001 HIV/AIDS field workers from the Bharosa Trust were arrested by the Lucknow police, accused of running a “sex racket” and showing pornographic films after the police seized “obscene” material from their office - in fact simply publications and pamphlets about safe sex and HIV/AIDS. The workers were initially charged under Sections 377 (sodomy), 120B (criminal conspiracy), 107 and 109 (aiding and abetting the commission of an offence) and 292 (sale and distribution of obscene publications). They were kept in detention for 47 days.

According to Human Rights Watch the workers who were arrested applied for bail. But the chief judicial magistrate in Lucknow initially denied bail noting that “a group of persons indulging in these activities . . . [are] polluting the entire society by encouraging the young persons and abating [sic] them to committing the offence of sodomy.” The public prosecutor argued that homosexuality was “against Indian culture,” a remark echoed by the senior superintendent of police in Lucknow.

One of the most horrific incidents of police violence took place on 22 June 2004 against a transgender sex worker in Bangalore. Kokila, a transgender sex worker, was waiting for clients near a public park off a highway. She was surrounded by 10 goondas, gang raped by the men and forced to have anal and oral sex. While she was being raped, two beat policemen walked by and apprehended two of the men, while the others escaped. Kokila told the police about the gang rape, but instead of registering a case and sending her for a medical examination, they harassed her with offensive language and took her along with the two men to the Byappanahalli Police Station.

For the next 8 hours the police tortured her and repeatedly raped her. They took her to a room inside the Police Station, stripped her naked and handcuffed her hands to a window. Six policemen, allegedly drunk, hit her with their batons and their hands, and kicked her with their boots. They abused her using sexually violent language, including the statements “khoja” (a derogatory word used against transgender people) and “gandu” (butt-fucker). The police also burned her nipples and chapdi (vaginal portion of hijras) with a burning rope. One policeman of the rank of SI (Sub Inspector of Police) positioned his rifle on her chapdi and threatened to shoot her. He also tried pushing the rifle butt and baton into the chapdi and saying, “Do you have a vagina, can this go inside?” while other policemen were laughing.[2] The police forced her to show them other places where hijra’s lived and illegally searched those premises. She was finally released at 3am the next morning.

These (and other incidents) became the foci around which different forms of activism coalesced and alliances formed. The campaign against the arrest of the men in Lucknow resulted in the creation of People for the Rights of Indian Sexual Minorities (PRISM), an early queer rights network in Delhi. The campaign following Kokila’s rape and torture was lead by a coalition between sex worker, queer, women, and dalit rights organisations and trade unions. The history of the queer rights movement in India can be read as a history of responses to police violence against queer people in public spaces.

But this characterization may not go far enough. Akshay Khanna, writing about the life of a hijra organisation in Calcutta, describes an incident where a hijra was beaten by several men and subsequently went to the police station to file a complaint. She was met with ridicule from the police, who only filed a complaint after persistent persuasion. Police harassment in this instance was their inaction. Indeed, even in the protest after Kokila’s rape and torture, activists demanded that the police arrest and dismiss the guilty officers. This was not only a demand to be left alone by the police, but also a demand that the police perform their duty in protecting all citizens.

Policing the performance of queer identity

Another way of understanding police harassment of queer people in India is the policing not of sexual acts, but of identities, modes of dress and bodily affectations. It is in this context that we can understand the anxiety over a man appearing in public wearing women’s clothing – it is the idea that there are distinct gender roles and that we must all, at least in public, properly perform our gender.

One night in Delhi in 2006,  a gay man, “X”, who describes himself as effeminate, was waiting at a near-empty bus stop. Two policemen began asking him if he was a homosexual and accused him of stealing mobile phones, before forcibly taking him to the local police station. He was taken to a room in the police station where other policemen were sleeping. One of the policemen accompanying him woke the rest of them up and said “Dekh main tere liye toufa laya hoon” (See, I’ve brought you a gift) and X was forced to take off his clothes. In a cruel re-enactment of the East Palace, West Palace, for the next two hours X was orally and anally raped by 4 policemen. He was released the next morning but only after he signed a statement which translates as saying “I am a butt-fucker and I have come here to have my butt fucked”.[3]

In September 2006, Madhumita, who identifies as a kothi (born male, but likes to dress as a woman and is sexually attracted to men), was walking through a park, when she was arrested by 4 policemen.[4] She was arrested along with 10-12 other hijras and kothis, all of whom were accused of being in the park with the “intention to engage in unprotected, unnatural sex…for the purposes of earning money and that they, by such immoral sexual acts, may spread immoral diseases like AIDS which may cause severe harm to the general public…”.[5] They were charged under sections 270 (act likely to spread infection of a disease dangerous to life), 290 (public nuisance), 294 (obscene acts and songs), 377 (sodomy), 511 (attempt to commit act prohibited under S. 377).

In these instances, there was no immediate sexual act being policed – even though the police later claimed that sexual acts were taking place. Rather, the police's actions betray anxiety over gender roles, and their 'correct' corresponding sexualities. The belief that people ought to perform their assigned gender leads even the minutiae of how one walks, looks, or speaks to be subject to intimate scrutiny, and met with harassment and violence.

The police as extensions of society

Actions of the police in India against largely transgender and lower-class queer men have been mostly local in character. This is not to characterize them as random acts of violence. Rather, such police actions are embedded in every day social structures, and are entwined with quotidian hierarchies and anxieties over gender identity.

Correspondingly, rape and torture should not be seen as extraordinary or isolated acts of police violence, but as part of a spectrum of violence ranging from verbal abuse and intimidation, to extortion and blackmail. Within this, queer people are not the exclusive targets - under trial prisoners, alleged terrorists, women, and dalits have routinely experienced horrific violence by police officials. The People’s Union for Democratic Rights reports that inter-caste and inter-religious couples are vulnerable to police harassment and torture directed towards the preservation of caste and religious ‘honour’.

Alok Gupta argues that the police exist as extensions of society armed with the power of the state. Gupta’s research shows how the police act in concert with neighbours, colleagues and family members to blackmail transgender and queer men who may still not be open about their identities.

The core of Gupta’s argument begs extension. Whilst blackmail, facilitated by the vulnerability accompanying a secret and criminalised sexuality, may have its immediate monetary logic, police actions manifest a deeper coherence directed towards upholding and maintaining social control of queer people. Like in cases of inter-caste and inter-religious marriages, the police have pursued adult queer women at the behest of their fathers, and arrested gay men on complaints by neighbours. When a queer woman who was in an arranged marriage, ran away from her matrimonial home, and her mother and husband kidnapped and confined her, the police refused to register a complaint on the theory that a married woman could not be kidnapped by her own husband. The police when dealing with queer people in India, act as extensions of family, caste, and religious structures.

Despite this, the police occupy a liminal position – at once upholder of the rule of law and its chief violator. Ponni Arasu and Priya Thangarajah discuss a case of two queer women from Bombay, both of whom were married to men and had children. Believing that their families would not be supportive, they turned towards the police seeking their “authority” to help them get married. The police in turn questioned the women and eventually put them in prison. The women were subject to medical tests to detect fingerprints inside their vaginas as proof of sexual activity between them.

A repeated theme in a genre of Bollywood movies is where heterosexual couples marry over parental objections and turn to the state to secure their ‘happily-ever-afters’. In this respect, the women interviewed by Arasu and Thangarajah had a cinematic imagination of their predicament. Whereas in the imaginary world of Bollywood the police may act to support the right to love, in the real world, their position is much more ambivalent – just like the 'protection' they offer.

[1] Memorandum submitted to the Commissioner of Police, Delhi. On file with the Alternative Law Forum, Bangalore.

[2] Excerpted from her affidavit filed before the Delhi High Court in Naz Foundation v. Government of the National Capital Territory of Delhi and Others WP (C) 7455 of 2001.

[3] Excerpted from his affidavit filed before the Delhi High Court in Naz Foundation v. Government of the National Capital Territory of Delhi and Others WP(C) 7455/2001.

[4] Affidavit filed by Madhumita before the Delhi High Court in Naz Foundation v. Government of the National Capital Territory of Delhi and Others WP(C) 7455/2001.

[5] Crime No.151/06 dated 11.09.2006 filed by Inspector Ratnakar Shetty, before the VIII Chief Metropolitan Magistrate, Bangalore.